Annual Activity Report

					   CONSEIL                             COUNCIL
   DE L’EUROPE                        OF EUROPE

COUR EUROPÉENNE DES DROITS DE L’HOMME
   EUROPEAN COURT OF HUMAN RIGHTS




Section activity reports
         2007




     Registry of the European Court of Human Rights
                     Strasbourg, 2008
   EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROPÉENNE DES DROITS DE L’HOMME




         FIRST SECTION




  ANNUAL ACTIVITY REPORT 2007




              January 2008
                                                CONTENTS

                                                                                                             Page

I.     Introduction ............................................................................................. 1

II. Composition of the Section ..................................................................... 2

III.     Hearings................................................................................................ 3

IV.      Cases relinquished to the Grand Chamber ........................................... 8

V.       Other cases of interest........................................................................... 8

VI.      Rule 39 (interim measures) and Rule 41 (priority) requests .............. 20

VII. Third-party intervention (Article 36 and Rule 61) ............................. 23

VIII. Statistical information ........................................................................ 25
                         Annual Report 2007: First Section




I.        INTRODUCTION

   In 2007, the Section held 39 Chamber sessions. Oral hearings were held
in three cases. The Section delivered 336 judgments, of which 252
concerned the merits, two concerned friendly settlements and two concerned
the striking out of cases. The Section applied Article 29 § 3 of the
Convention (combined examination of admissibility and merits) in
723 cases and 232 judgments were delivered under this procedure.

      Of the cases examined by a Chamber

(a)     60 applications were declared admissible;
(b)     50 applications were declared inadmissible;
(c)     133 applications were struck out of the list; and
(d)     746 applications were communicated to the State concerned for
        observations of which 713 were communicated by the President by
        virtue of the new procedure instituted on 1 January 2003.

   In addition, the Section held 44 Committee sessions. 5,705 applications
were declared inadmissible and 100 applications were struck out of the list.
The total number of applications rejected by a Committee represented
96.9% of the inadmissibility and strike-out decisions taken by the Section
during the year.

  At the end of the year, 23,953 applications were pending before the
Section.




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                      Annual Report 2007: First Section


II.    COMPOSITION OF THE SECTION

From 1 January 2007 until 18 January 2007 the Section was composed as
follows:

Christos Rozakis (Greek), President,
Loukis Loucaides (Cypriot), Vice-President,
Françoise Tulkens (Belgian),
Nina Vajić (Croatian),
Anatoly Kovler (Russian),
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian), Judges,

Søren Nielsen, Registrar,
Santiago Quesada, Deputy Registrar.

The Section was recomposed as from 19 January 2007 (Rule 25 of the Rules
of Court). As from 19 January 2007 the Section was composed as follows:

Christos Rozakis (Greek), President,
Loukis Loucaides (Cypriot), Vice-President,
Nina Vajić (Croatian),
Anatoly Kovler (Russian),
Elisabeth Steiner (Austrian),
Khanlar Hajiyev (Azerbaijani),
Dean Spielmann (Luxemburger),
Sverre Erik Jebens (Norwegian),
Giorgio Malinverni (Switzerland), Judges,

Søren Nielsen, Registrar,
André Wampach, Deputy Registrar.




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                          Annual Report 2007: First Section




III.      HEARINGS

      Hearings were held in the following cases:

(1)     no. 76240/01    Wagner & J.M.W.L. v. Luxemburg

  The case was declared admissible on 5 October 2006. A hearing on the
merits was held on 18 January 2007. Judgment was delivered on 28 June
2007 (violation).

    Under an enforceable Peruvian judgment Ms Wagner, a national of
Luxembourg, legally adopted a three-year-old girl in Peru who had been
declared abandoned (the applicants). They brought a civil action to have the
Peruvian judgment declared enforceable in Luxembourg for purposes, in
particular, of the child’s civil registration, acquisition of Luxembourg
nationality (she still had Peruvian nationality) and permanent residence in
Luxembourg. The court rejected the request on the ground that the Peruvian
full adoption judgment had been in contradiction with the laws of
Luxembourg, which were applicable under the conflict-of-law rule
enshrined in the Civil Code and which prohibited full adoption by a single
person. The applicants appealed, contending inter alia (in a section entitled
“Public Policy Implications”) that in placing Luxembourg law above an
international agreement in order to refuse execution, the judgment was
incompatible with Article 8 of the Convention. Their appeal was declared
unfounded, on the ground that the court had rightly held that the Peruvian
decision was in contradiction with Luxembourg legislation on conflict of
laws, under which conditions of adoption were governed by the law of the
country of which the adopter was a national, which in Luxembourg
restricted full adoption to married couples. The Court of Appeal concluded
that it was unnecessary to examine the other conditions for declaring the
decision enforceable, including compatibility with good international
relations. The Court of Cassation confirmed the decision. It decided that the
Court of Appeal had no need to answer the applicants’ submissions under
the heading “Public Policy Implications”, that question having been made
irrelevant by the court’s decision not to apply the foreign law, and that the
arguments contained in the applicants’ appeal concerning Article 8 of the
Convention “did not amount to a ground of appeal requiring a reply, given
their doubtful, vague and imprecise nature”. The applicants subsequently
obtained an open adoption judgment in Luxembourg, which was the only
possibility open to a single person of adopting a child there.




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                        Annual Report 2007: First Section


   Law: Article 6 – It was the duty of the courts to duly consider and reply
to a party’s main submissions and, if those submissions concerned “rights
and freedoms” guaranteed by the Convention or the Protocols thereto, to
examine them with particular care and attention. The issue of the
incompatibility of the first-instance decision with Article 8 of the
Convention – with particular reference to whether it was in accordance with
good international relations – was one of the main grounds of appeal raised
by the applicants, and as such called for a specific and explicit reply. The
Court of Appeal, however, had failed to reply to it. The Court of Cassation
had upheld that position, despite its case-law according to which the
Convention produced direct effects in the Luxembourg legal system.
Conclusion: violation (unanimously).

    Article 8 – This Article was applicable: Ms Wagner had behaved as the
child’s mother in every respect since the Peruvian adoption judgment, so
“family ties” existed de facto between them. The refusal to declare the
Peruvian judgment enforceable – which stemmed from the absence of
provisions in Luxembourg law enabling a single person to be granted full
adoption of a child – amounted to “interference” with the applicants’ right
to respect for their family life. The aim had been to protect the “health or
morals” and the “rights and freedoms” of the child. The question remained
whether the interference had been “necessary in a democratic society”. A
broad consensus existed in the Council of Europe on the issue of adoption
by unmarried persons, which was permitted without further restrictions in
most of the member States. It had been the practice in Luxembourg
automatically to recognise Peruvian judgments granting full adoption
(several single women had been able to register the judgment without
applying for an enforcement order). On arrival in Luxembourg, the
applicants had thus been entitled to expect that the Peruvian judgment
would be registered. However, the practice of registering judgments had
been suddenly abandoned and their case had been submitted to the judicial
authorities. In refusing to declare the judgment enforceable those authorities
had let the conflict-of-law rule take precedence over the social reality and
the situation of the persons concerned. Since the Luxembourg courts had
not officially acknowledged the legal existence of family ties created by the
full adoption granted in Peru, those ties could not take full effect in
Luxembourg. As a result, the applicants encountered obstacles in their day-
today lives and the child did not enjoy the legal protection which would
enable her to fully integrate into her adoptive family. As the child’s best
interests had to take precedence in cases of that kind, the Luxembourg
courts could not reasonably disregard the legal status which had been
created on a valid basis in Peru and which corresponded to family life
within the meaning of Article 8. Full adoption severed a child’s links with
its birth family and opened the way to full and complete integration into the




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                        Annual Report 2007: First Section


new family, and the limits placed on it in Luxembourg law were meant to
protect the interests of the adopted child. In this case, however, as the
second applicant had been declared abandoned and placed in an orphanage
in Peru, it would have been in the higher interest of the child not to refuse to
enforce the Peruvian adoption judgment. The courts could not reasonably
disregard the family ties which existed de facto between the applicants and
in so doing dispense with the need to examine the situation in detail.
Conclusion: violation (unanimously).

   Articles 14 and 8 together – Although the first applicant had complied in
good faith with all the rules laid down by the Peruvian procedure and the
welfare assistant had issued an opinion in favour of the adoption in
Luxembourg, the Peruvian full adoption judgment had not been recognised
in Luxembourg. The second applicant had been subjected in her daily life to
a difference in treatment compared with children whose full adoption
granted abroad was recognised in Luxembourg. The child’s links with her
birth family had been severed and had not been replaced with full and
complete links with her adoptive mother. The child therefore found herself
in a legal vacuum, which had not been remedied by the fact that an open
adoption had been granted in the meantime. As she did not have
Luxembourg nationality, the child could not, for instance, take advantage of
the benefits accorded to Community nationals. Furthermore, for over ten
years, since her arrival in Luxembourg, she had had to apply regularly for
residence permits in Luxembourg and to obtain a visa to visit certain
countries. As to Ms Wagner, she suffered in her daily life the indirect
consequences of the obstacles facing her child. There was no justification
for such discrimination, especially since, prior to the events in question, full
adoption orders had been automatically granted in Luxembourg in respect of
other Peruvian children adopted by single mothers, and it had been decided
in 2006, in a slightly different context, that a Peruvian adoption decision in
favour of a Luxembourg woman was to be acknowledged as of right.
Conclusion: violation (unanimously).

(2)   no. 18712/03     Thiermann & Others v. Norway

   A hearing on the admissibility and merits was held on 8 March 2007,
following which the case was declared inadmissible.
   The applicants (over 150 altogether) all have a Norwegian mother and a
German father and were born during the Second World War. A number of
them were registered as children of “Lebensborn”, a Nazi scheme,
introduced by Heinrich Himmler in 1935, to create children who were
deemed racially and genetically pure. In 1940-45 some 10-12,000 children
were born in Norway with a Norwegian mother and a German father, being
referred to as “war children”. Various public officials publicly denounced




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                        Annual Report 2007: First Section


the war children, claiming that they were mentally and genetically defective
and potential Nazi sympathisers.
   In 1999 seven applicants brought unsuccessful damage proceedings
against the State, claiming to have been subjected to various forms of ill-
treatment, harassment and discrimination. Many war children had been
deprived of their original names and identity, subjected to discrimination,
harassment and ill-treatment and left with psychological problems and
registered disabled at an early age. Some had been placed in psychiatric
institutions without adequate prior expert assessment and several had been
refused baptism certificates.
   In 2001 a city court ruled that the applicants’ compensation claims had
been submitted too late. The High Court unanimously upheld the judgment
and the Appeals Selection Committee of the Supreme Court refused leave to
appeal. A number of the other applicants also brought proceedings which
were stayed pending a legally enforceable decision in the case brought by
the first seven applicants.
   Inadmissible: The Court found no reason to call into doubt the domestic
courts’ assessment that the claims against the State had fallen within the
provisions of the Damage Compensation Act 1969 and section 9 of the
Limitation Act 1979 and that the first seven applicants’ claims had become
time-barred at the latest in 1985, 20 years after the youngest of them had
reached the age of 21.The Court nevertheless went on to consider whether
there were any special circumstances which might have absolved the
applicants from their normal obligation to exhaust domestic remedies within
the applicable statutory time-limits. In this regard, the Court observed that
the individual statements provided by the first group of seven applicants
contained harrowing accounts of personal experiences of social ostracism
and social exclusion.
   However, the impugned statements made by certain public officials and
the contested political decisions and legislative measures taken by the
authorities had essentially predated the entry into force of the Convention
with respect to Norway in 1953. Moreover, the alleged experiences of
harassment and abuse had consisted essentially of instantaneous acts which,
despite their ensuing effects, had not given rise to any possible continuous
situation of a violation of the Convention. Against this background the
Court found nothing to indicate that since the Convention entered into force
in respect of Norway there had been an administrative practice vis-à-vis war
children consisting of a repetition of acts incompatible with the Convention
and an official tolerance by the authorities of the respondent State, of such a
nature as to make proceedings futile or ineffective and to render the
exhaustion rule inapplicable. Neither had it been suggested that by the time
the disputed 20-year time bar expired in 1985 the applicants had been
unaware of the instances of misplacement, ill-treatment, harassment and
discrimination to which they had allegedly been subjected. In sum, there




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                        Annual Report 2007: First Section


was nothing to indicate that the application of the 20-year time bar had
entailed an arbitrary limitation on the applicants’ right to pursue their
compensation claims against the State or that any other special reasons
existed which could have dispensed them from the requirement to exhaust
domestic remedies. Non-exhaustion.

(3)   no. 39051/03    Emonet v. Switzerland

    A hearing on the admissibility and merits the case was held on 7 June
2007. Judgment was delivered on 13 December 2007.
    The applicants were born in 1971, 1946 and 1948 respectively and live in
Geneva. In 1971 the second applicant and her then husband had a child, the
first applicant. The spouses divorced in 1985, and the second applicant’s ex-
husband died in 1994. Since 1986 the second applicant has been living with
the third applicant, who is divorced with no children. The three applicants
lived together between 1986 and 1992, when the first applicant left to set up
home with her husband. That couple divorced in 1998. In March 2000,
following a serious illness, the first applicant became paraplegic. She kept
her own home, but needed to be cared for by her mother and the third
applicant, whom she considered as her father. By agreement between the
three applicants, it was therefore decided that the third applicant should
adopt the first, so that they could become a real family in the eyes of the
law. On 15 June 2001 the cantonal civil status authority informed the
second applicant that the adoption had had the effect of terminating her
parental tie with her daughter and that the first applicant would take on her
adoptive father’s surname, as she was henceforth his daughter. The first two
applicants objected to the termination of the parental tie between them and
requested, unsuccessfully, that it be restored. The applicants alleged that the
effects of the first applicant’s adoption by the third applicant breached their
right to respect for family life as guaranteed by Article 8 of the Convention.
    The Court found that “respect” for the applicants’ family life would have
required that both the biological and social realities were taken into account,
in order to avoid a mechanical and blind application of the legal provisions
to this very specific situation, for which they were obviously not designed.
This failure to take the realities into account had flown in the face of the
wishes of the persons concerned, without actually benefitting anyone.
Conclusion: violation.




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                        Annual Report 2007: First Section




IV.    CASES RELINQUISHED TO THE GRAND CHAMBER

   The Section decided to relinquish to the Grand Chamber the following
cases:

no. 4378/02           Bykov v. Russia

   The case concerns criminal proceedings where the principal evidence
was obtained through a covert operation (Articles 6 and 8). The case is at
present pending before the Grand Chamber.


V.     OTHER CASES OF INTEREST

   Of the judgments delivered by the Section this year, the most interesting
included the following:

(1)   no. 1509/02     TATISHVILI v. Russia

   Facts: The applicant was born in Georgia, but was a citizen of the former
USSR until 31 December 2000 when she became stateless. She lived in
Moscow at the material time. Pursuant to legislation and regulations
introduced in the 1990s persons residing in Russia were under a general
duty under the Propiska (internal registration) system to register themselves
as resident at any address where they intended to stay for more than ten
days. A failure to register could result in a fine and the loss of access to
social rights such as medical assistance, social security or an old-age
pension. However, a ruling by the Constitutional Court in 1998 made it
clear that registration was a purely formal process and that upon
presentation of an identity document and a document confirming the right to
reside at the chosen address, the registration authority was under an
obligation to register the person concerned as resident at the address stated.
On 25 December 2000 the applicant applied to the passport authorities to
have a flat in Moscow registered as her place of residence, but was told that
her application could not be processed. She challenged that decision in a
district court, which dismissed her claim on the grounds that she was
unrelated to the flat owner and therefore not entitled to take up occupation
under the law governing multiple-tenancy agreements and that she was
subject to visa requirements under a treaty between Russia and Georgia. She
appealed to a city court, arguing in particular that she had never held
Georgian citizenship, so that a visa requirement was inappropriate in her




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                        Annual Report 2007: First Section


case, and that, in any event, residence regulations applied uniformly to
everyone lawfully residing within the Russian Federation irrespective of
their citizenship. The appellate court upheld the district court's findings
without addressing the arguments advanced in the applicant's grounds of
appeal.

    Law: Article 2 of Protocol No. 4 – The Government's submission that the
applicant was not “lawfully within the territory of a State” had no legal
and/or factual basis, as at the material time the applicant was a “citizen of
the former USSR”, not a Georgian national or stateless person, and so did
not require a visa or residence permit: applicable.
    The authorities' refusal to certify her residence at the chosen address
amounted to interference as it prevented her from exercising various
fundamental social rights while exposing her to administrative penalties and
fines. The only justification the Government had offered for the interference
was that the applicant was unlawfully resident in Russia, but the Court had
already rejected that argument with regard to applicability. It was also noted
in that connection that the Constitutional Court's authoritative ruling that the
registration authority had a duty to certify an applicant's intention to live at
the specified address and no discretion to review the authenticity of the
submitted documents or their compliance with law appeared to have been
disregarded by the domestic authorities in the applicant's case. The
interference was therefore not “in accordance with law”.
Conclusion: violation (unanimously).

   Article 6(1) – The district court had failed to give any reasons for finding
that a dispute existed between the applicant and the flat owner or for
holding that the municipal-tenancy provisions of the relevant codes should
apply to the applicant's situation. Further, it had relied on the submissions of
the passport department in finding that the applicant was subject to a visa
requirement without checking whether the alleged treaty between Russia
and Georgia in fact existed or giving any reasons for its assumption that the
applicant was a Georgian citizen. The inadequacy of the district court's
reasoning had not been corrected by the city court, which had simply
endorsed its findings in summary fashion, without reviewing the arguments
in the applicant's statement of appeal. Accordingly, the requirements of a
fair trial were not fulfilled.
Conclusion: violation (unanimously).

(2)   no. 59519/00     STAROSZCZYK - Poland
      no. 8932/05      SIAŁKOWSKA - Poland

   Facts: The applicants in both of these cases were claimants in civil
proceedings. They were prevented from appealing to the Supreme Court –




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                        Annual Report 2007: First Section


where legal representation was compulsory – after the lawyers who had
been appointed to assist them under the legal-aid scheme declined to act
after advising that an appeal had no reasonable prospects of success.
   In Staroszczyk, an appeal by the applicants to a regional court was
dismissed in May 1999. As they wished to appeal from there to the Supreme
Court, they made various attempts to contact the lawyer who had been
assigned to represent them under the legal-aid scheme. However, it was not
until seven months later, after the regional court's judgment had been served
on the lawyer, that they finally succeeded in contacting him. The lawyer
then informed them orally at a meeting in his office that there were no
grounds for filing a cassation appeal. They complained to the regional bar
association but were informed that if the lawyer assigned to them under the
legal-aid scheme considered that there were no grounds on which to lodge
an appeal, the bar association would not appoint another lawyer to do so.
   In Siałkowska, the lawyer assigned under the legal-aid scheme to
represent the applicant in her appeal to the Supreme Court wrote to her six
days before the thirty-day time-limit for lodging the appeal was due to
expire to advise that there were no reasonable prospects of success. He
repeated that advice at a meeting in his office three days later.

   Law: The requirement under domestic law for a party to civil
proceedings to be assisted by an advocate or legal counsel in the preparation
of a cassation appeal was not per se contrary to Article 6 and there was no
obligation under the Convention to make legal aid available for disputes in
civil proceedings. However, the method chosen by the domestic authorities
to ensure access to the domestic courts in a particular case had to be
compatible with the Convention. Where legal aid was available for civil
proceedings under domestic law, the State had to be diligent in securing
legally aided parties the genuine and effective enjoyment of the rights
guaranteed under Article 6 and the legal-aid system had to afford substantial
guarantees against arbitrariness. The independence of the legal profession
was crucial to the effective and fair administration of justice. It was not the
State's role to oblige a lawyer, whether appointed under a legal-aid scheme
or otherwise, to institute proceedings or apply for a remedy which he or she
considered had little prospect of success, for that would be detrimental to
the essential role of an independent legal profession founded on the basis of
trust between lawyers and their clients. The responsibility of the State was
to ensure a proper balance between effective access to justice and the
independence of the legal profession. The Supreme Court's view that the
role of legal-aid lawyers was to provide comprehensive legal advice,
including advice on the prospects of success in a cassation appeal, and that
lawyers assigned in civil cases were therefore entitled to refuse to prepare
and lodge an appeal had to be endorsed. Nevertheless, the refusal of a legal-
aid lawyer to act had to meet certain quality requirements. In neither of




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these two cases were the requirements met as the applicants had been
prevented by failings in the legal-aid system from securing access to a court
in a “concrete and effective manner”.
   Staroszczyk – The applicable domestic regulations did not require the
legal-aid lawyer to prepare a written legal opinion on the prospects of the
appeal. Had he been required to provide a written opinion with reasons, it
would have been possible, subsequently, to have had an objective
assessment of whether his refusal to prepare the cassation appeal was
arbitrary. This was particularly important in view of the fact that, as had
been highlighted by the Constitutional Court, the legislation governing
cassation appeals was couched in the broadest terms and gave rise to serious
interpretational difficulties. The absence of a written opinion had left the
applicants without necessary information as to their prospects of success.
Conclusion: violation (four votes to three).
   Siałkowska – The applicable domestic regulations did not specify a time-
frame within which the applicant had to be informed of the refusal to
prepare a cassation appeal. By the time the applicant and her lawyer met,
the time-limit for lodging a cassation appeal was due to expire in three days.
That had not given her a realistic opportunity of having her case brought to
and argued before the cassation court.
Conclusion: violation (unanimously).

(3)   no. 40116/02    ŠEČIĆ v. Croatia

   Facts: The applicant, who was of Roma origin, was attacked by two
unidentified men when collecting scrap metal in Zagreb in April 1999. They
beat him with wooden planks and shouted racial abuse while two other men
kept watch. Shortly afterwards the police arrived, interviewed people at the
scene and made an unsuccessful search for the attackers. The applicant
sustained multiple rib fractures and was later diagnosed as suffering from
post-traumatic stress disorder. In July 1999 his lawyer lodged a criminal
complaint. However, neither the applicant nor the eye-witnesses were able
to give the police a clear description of the attackers. In 2000 the lawyer
informed the state attorney's office that the persons responsible for the
attack on the applicant had also carried out a number of other attacks on
Roma. She provided two lines of inquiry: an eye witness who had identified
one of the attackers and a television interview in which a young skinhead
had admitted engaging in attacks on the Roma population in Zagreb. Neither
yielded a result. The person identified by the eye witness was eliminated
from the inquiry without being questioned because none of the other
witnesses had identified him, despite a very noticeable scar, and he did not
appear to belong to a skinhead group. Likewise, the police were unable to
question the person who had appeared on the television interview as the
journalist refused to reveal his identity. In February 2001 the applicant's




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lawyer informed the prosecuting authorities of several further attacks on the
Roma population by skinheads and gave the names and addresses of the
victims and witnesses. The criminal proceedings are still at the pre-trial
stage. An attempt by the applicant to expedite matters by a complaint to the
Constitutional Court was dismissed on the grounds that it had no
jurisdiction in such cases.

   Law: Article 3 – The applicant's injuries were sufficiently serious to
amount to ill-treatment. The authorities had been under a duty to take all
reasonable steps to collect the relevant evidence promptly. However, the
criminal proceedings had been pending in the pre-trial phase for almost
seven years without the police bringing any charges. Although they had
concluded that the attack had been carried out by skinheads known to have
participated in similar incidents, they did not appear to have questioned
anyone belonging to that group or to have followed up the information that
had been provided in any way. Moreover, they had excluded the person
identified by the eye witness from the list of possible suspects without
questioning him. Nor had the police sought a court order to compel the
journalist to reveal his source, despite a change in the law in 2003 that had
enabled them to do so. Seeking such an order would not necessarily have
been incompatible with the freedom of the media guaranteed under Article
10 of the Convention, since it would have been for the competent court to
weigh up all the interests and to decide whether the source's identity should
be revealed. Lastly, the police had not made use of any of the other
investigative measures open to them or taken any action since 2001.
Conclusion: violation (unanimously).

   Article 14 in conjunction with Article 3 – The applicant's attackers were
suspected of belonging to a group of skinheads. It was in the nature of such
groups to be governed by extremist and racist ideology. Accordingly,
knowing that the attack was probably the result of ethnic hatred, the police
should not have allowed the investigation to drag on for more than seven
years without taking any serious steps to identify or prosecute those
responsible.
Conclusion: violation (unanimously).

(4)   no. 71111/01    HACHETTE FILIPACCHI ASSOCIES v. France

    Facts: A few days after the murder of a French Prefect, the weekly
magazine Paris-Match published an article entitled “La République
assassinée” (The Murdered Republic). A two-page colour photograph taken
moments after the murder showed the Prefect’s lifeless body lying on the
ground in a pool of blood, facing the camera. To defend their right to private
life the Prefect’s widow and children sought injunctions, inter alia against




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                        Annual Report 2007: First Section


the applicant company, which published Paris-Match, to have the copies of
the magazine in which the photo appeared seized and to enforce the
prohibition of their sale by means of coercive fines. The urgent applications
judge acknowledged that the publication had trespassed on the family’s
private life. Considering that the requested seizure order would be difficult
to enforce in practice, he preferred to issue an injunction requiring the
applicant company to publish a statement at its own expense in the
following issue of Paris-Match, under the heading “Court injunction”,
informing readers that the photograph had been judged deeply distressing
for the victim’s widow and her children. The Court of Appeal upheld the
decision, considering that publication of the photograph, while Prefect
Erignac’s close family were still mourning his loss, and given the fact that
they had not given their consent, constituted a gross disturbance of their
grief, and accordingly of the intimacy of their private life. It added that
publication of a statement was legally justified under Article 9 § 2 of the
Civil Code when its purpose was to cause the intrusion into the intimacy of
the family’s private life to cease. The Court of Appeal modified the content
of the statement accordingly and combined it with a coercive fine. The
statement the applicant company was required to publish in its magazine
and finally did publish was to inform readers that the photograph had been
published without the consent of the Erignac family, who considered its
publication an intrusion into the intimacy of their private life. The Court of
Cassation dismissed an appeal on points of law by the applicant company.

   Law: The obligation to publish a statement amounted to interference
under Article 10 and the interference was “prescribed by law”. Article 9 of
the Civil Code gave judges the precisely circumscribed power to prevent or
cause to cease an intrusion into the intimacy of private life. Although all the
measures they could take under that Article were not listed expressly and
exhaustively, they were not unknown to the publishing profession. There
was established case-law which sanctioned the impugned measure and
satisfied the conditions of accessibility and foreseeability. The interference
had also pursued a legitimate aim – to protect the rights of others. As to
whether the interference had been “necessary in a democratic society”, the
Court took into account first of all the duties and responsibilities inherent in
the exercise of freedom of expression. For example, the death of a close
relative and the ensuing mourning must sometimes lead the authorities to
take the necessary measures to ensure respect for the private and family
lives of the persons concerned. In the present case, the photograph had been
published in Paris-Match only 13 days after the murder and ten days after
the funeral. The distress of the victim’s close relatives should have led
journalists to exercise prudence and caution, given that he had died in
violent circumstances which were traumatic for his family, who had
expressly opposed publication of the photograph. The result of publication,




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                        Annual Report 2007: First Section


in a magazine with a very high circulation, had been to heighten the trauma
felt by the victim’s close relatives, so they were justified in arguing that
there had been an infringement of their right to respect for their private life.
The Court then examined to what extent the punishment might have a
dissuasive effect on exercise of freedom of the press. The French courts had
refused to order the seizure of the offending publications. The wording of
the statement, which was different from the text in the first-instance
proceedings, revealed the care the French courts had taken to respect the
editorial freedom of Paris-Match, which was characterised in particular by
the policy of illustrating stories with hard-hitting photographs. That being
so, of all the sanctions permitted, the order to publish the statement was that
which, both in principle and as regards its content, least restricted the
exercise of the applicant company’s rights. The applicant company had not
shown in what way the order to publish the statement had actually had a
dissuasive effect on the way the magazine had exercised and continued to
exercise its right to freedom of expression.
Conclusion: no violation (five votes to two).

(5)   nos. 57953/00 and 37392/03       BITIYEVA and X. v. Russia

    Facts: On 25 January 2000 the first applicant, an active political figure
who participated in anti-war protests, and her son were taken for
questioning about their passports. According to the Government, they were
arrested under vagrancy regulations. They were detained in the
Chernokozovo detention facility, which the Government said was used as a
reception and identification centre, although there were no documents to
indicate its legal status prior to 8 February 2000, when responsibility was
transferred to the Ministry of Justice of Chechnya. The first applicant
complained of the conditions of her detention, in particular the lack of
heating, overcrowding, poor food and hygiene, humiliation and being forced
to witness the ill-treatment of other detainees, including her son. While
there, she suffered from serious respiratory, heart and inflammatory diseases
and claimed that she was denied medical assistance. Her condition
deteriorated rapidly and on 17 February 2000 she was transferred to
hospital. In mid-March she was issued with a certificate stating that her
alleged participation in illegal armed groups had been investigated but no
incriminating evidence had been found. Neither the first applicant nor her
son were ever charged with any crime in relation to their detention. The first
applicant lodged a complaint with the Court in April 2000. In May 2003 the
first applicant and her husband, son and brother were shot and killed at the
first applicant’s home in the middle of the night by masked men wearing
uniforms which eye witnesses identified as belonging to the Special Forces.
An investigation was started the same day. The crime scene was examined
by experts and witnesses were questioned. However, according to the




                                       14
                        Annual Report 2007: First Section


second applicant (the first applicant’s daughter) no autopsy was ordered and
the bodies of her relatives were washed and buried the same day. Although
she requested victim status in November 2003, it was not granted until
December 2005. The case was adjourned and reopened by a supervising
prosecutor four times, but the offenders were never identified. The second
applicant also complained that she and her family had been subjected to
harassment by the authorities after questioned and she herself had been
stopped and questioned. Although she had received assurances from
investigators regarding her safety, she had felt intimidated by to the nature
of his questions, which she claimed were not confined to the question of
harassment but touched upon her application to the Court. In the course of
the proceedings before the Court, the Court requested the Government to
submit various documents. However, citing Article 161 of the Russian Code
of Criminal Procedure, the Government refused to produce certain
documents on the grounds that they contained information about the
military and personal information on the participants in the proceedings.

    Law: The first applicant’s complaints: Article 3 – The second applicant,
as the first applicant’s heir, had standing to continue the proceedings. The
evidence, including the applicant’s own allegations and the findings of the
European Committee for the Prevention of Torture on conditions in
Chernokozovo at the material time, attested to a serious deterioration in the
first applicant’s health during her detention. The Government had been
unable to explain what kind of medical treatment had been administered to
her or to give any details of her treatment. Accordingly, the deterioration in
the first applicant’s health, compounded by the poor conditions of detention
and lack of adequate medical care, had entailed a level of suffering which
amounted to inhuman and degrading treatment.
Conclusion: violation (unanimously).

   Article 5 – The first applicant was detained for 24 days, allegedly for
vagrancy. However, even assuming that to have been the true ground for her
detention, her detention was not in conformity with domestic law as under
the relevant legislation a prosecutor’s order should have been obtained and
the detention should not have exceeded 10 days. In any event, the certificate
issued to the first applicant in March 2000 stated that she was being
investigated for alleged participation in illegal armed groups, so that the real
reason for her detention was suspicion of a criminal offence. However, no
charges were brought, no decision to detain or to release her was taken by a
competent authority, and her detention was not formally linked to any
criminal investigation. Accordingly, she had not benefited from the
procedural safeguards applicable to persons deprived of their liberty and her
detention was arbitrary and in total disregard of the requirement of
lawfulness. This was compounded by the lack of any clear legal status for




                                       15
                        Annual Report 2007: First Section


the detention centre in Chernokozovo. It was inconceivable that in a State
subject to the rule of law a person could be deprived of his or her liberty in a
detention facility over which for a significant period of time no responsible
authority was exercised by a competent State institution. That situation
fostered impunity for all kinds of abuses and was absolutely incompatible
with the authorities’ responsibility for individuals under their control. The
first applicant’s detention was therefore arbitrary and ran counter to the
fundamental aspects of the rule of law.
Conclusion: violation (unanimously).

   The second applicant’s complaints:
   Article 38 § 1 (a) – The Government had withheld disclosure of various
documents from the investigation on the grounds that they contained
information about the location and actions of military personnel and
personal information about the participants in the proceedings. However,
they had not asked the Court to make an order under Rule 33 § 2 of its
Rules restricting, on national-security or privacy grounds, public access to
documents deposited with the Court and Article 161 of the Code of
Criminal Procedure, on which the Government relied, had already been
found in previous cases not to preclude the disclosure of documents from a
pending investigation file. The Government’s explanations were insufficient
to justify the withholding of the vital information requested by the Court
and they had thus fallen short of their obligations to furnish all necessary
facilities to the Court in its task of establishing the facts.
Conclusion: failure to comply (unanimously).

    Article 2 – (a) Substantive aspect – The Court was entitled to draw
inferences from the Government’s failure to comply with Article 38 § 1 (a).
Where an applicant had made out a prima facie case and the Court was
prevented from reaching factual conclusions by the non-disclosure of
relevant documents in the Government’s possession, it was for the
Government to argue conclusively why the documents could not serve to
corroborate the applicant’s allegations or to provide a satisfactory and
convincing explanation of how the events in question occurred. The second
applicant had submitted statements by eyewitnesses that indicated that the
killers belonged to the military or special forces and her account was
supported by an NGO which had reported the killings. She had therefore
made out a prima facie case that her relatives had been extra-judicially
executed by State agents. The Government had failed to provide any other
explanation of the events. Their mere statement that the investigation had
not found any evidence to support the involvement of Special Forces did not
discharge them from the burden of proof. The deaths were therefore
attributable to the State and no justification had been provided for the use of
lethal force. Conclusion: violation on account of the deaths (unanimously).




                                       16
                        Annual Report 2007: First Section


   (b) Procedural aspect – Here, too, the Court could draw strong
inferences from the Government’s failure to produce key elements of the
investigation, the assumption being that the disclosure was selective and
intended to demonstrate the effectiveness of the investigation. Although
certain important steps were taken on the day of the killings, the
investigation into the deaths was never in fact completed and the individuals
responsible were not identified or indicted. Even the most basic facts did not
appear to have established such as the number of attackers, the sequence of
events, the routes and weapons used or the motive for the killings. The
second applicant was not granted victim status until 2005 and the only
information communicated to the victims concerned procedural matters.
Conclusion: violation on account of the failure to hold an effective
investigation (unanimously).

   Article 3 – The Court followed its previous case-law in declining to
extend the application of Article 3 to the relatives of persons who had been
killed in violation of Article 2 (as opposed to the relatives of the victims of
enforced disappearances or to cases of unjustified use of lethal force by
State agents).
Conclusion: no violation (five votes to two).

   Article 13 – The State had failed in its obligation under this provision as
the ineffectiveness of the criminal investigation had undermined the
effectiveness of other potential remedies, including civil remedies.
Conclusion: violation of Article 13 in conjunction with Article 2
(unanimously).

   Article 34 – There was no direct evidence to support the second
applicant’s assertion that the killings of the first applicant and her family
members were related to her application to the Court. A breach of Article 34
could not be found on the basis of mere supposition, even if the brutal and
unresolved killing of the first applicant would inevitably have had a
“chilling effect” on other current and prospective applicants, especially
those living in Chechnya. As to the alleged intimidation of the second
applicant, the Court was unable to conclude that the incident to which she
had referred had any relation to her application to the Court as opposed to a
security check. As regards the questioning of the second applicant by the
investigators, the transcripts indicated that the interviews related mostly to
the public prosecutor’s duty to collect information about the applicant’s
criminal complaints and that the questions about her application to the Court
were not central. She had not, for example, been requested to certify the
authenticity of her complaints or to give details about their content.




                                       17
                        Annual Report 2007: First Section


   In sum, the Court did not have sufficient material before it to conclude
that the Government had put undue pressure on the second applicant in
order to dissuade her from pursuing her application to the Court.
Conclusion: no breach of the obligation (unanimously).

(6)   nos. 17864/04 and 21396/04       KRASNOV v. Russia
                                       and SKURATOV v. Russia

    Facts: The applicants complained that they had been disqualified from
standing in the general elections to the State Duma because they had
submitted inaccurate information in their applications for registration as
candidates. The first applicant was accused of claiming to be head of a
district council of the Presnenskiy District of Moscow when he no longer
held that post. The second applicant was alleged to have declared that he
was acting Head of the Law Department at a State university whereas he
had been transferred to a post of professor in the same department. He was
also accused of not having adduced evidence of his membership of the
Communist Party in the correct form. Ultimately, neither applicant took part
in the elections.

   Law: Article 3 of Prot. No. 1. Legitimate aim – Requiring a candidate for
election to the national parliament to submit truthful information on their
employment and party affiliation enabled voters to make an informed choice
with regard to the candidate’s professional and political background and
thus constituted a legitimate aim.

   Proportionality – (a) The first applicant – The Court found that the first
applicant had knowingly submitted untrue information on his employment.
As a candidate for election in the same district, the information whether or
not he remained the head of the district council was not a matter of
indifference to the voters, all of whom were local residents. By withholding
information on his discharge, the first applicant had cloaked himself in the
authority associated in the voters’ eyes with a position he no longer held and
may therefore have adversely affected their ability to make an informed
choice. As he had deliberately submitted substantially untrue information
capable of misleading the voters, the decision as to his ineligibility was not
disproportionate.
Conclusion: no violation (unanimously).

   (b) The second applicant – As regards the allegedly incorrect information
about his employment, the findings of the domestic authorities were
inconsistent inter se and not founded on any relevant legal provision or
case-law interpreting the statutory requirements. The impugned measure did
not therefore appear to have met the requisite standard of “lawfulness” and




                                       18
                        Annual Report 2007: First Section


“foreseeability”. Indeed, in the view of independent observers of the
election, the ruling on his application had “suggested an inconsistent and
selective application of the registration rules”. In any event, it could not be
seriously maintained that the difference between the positions of professor
and acting head of the same department was capable of misleading the
voters. The fact that the second applicant was a well-known public figure in
another capacity also made his current academic position of lesser
relevance. As to the evidence of his membership of the Communist Party,
here too the domestic authorities’ interpretation of the legislation did not
meet the Convention standard of “lawfulness” and “foreseeability”. Further,
it had never been claimed that the second applicant was not a member of the
Communist Party, so that it could not be argued that the decision on his
ineligibility, in so far as it was founded solely on the alleged formal defect
in the membership certificate, was taken with the aim of preventing voters
from forming misconceptions about his political leanings. The domestic
authorities’ decision on the second applicant’s ineligibility was thus
disproportionate as it was not based on relevant and sufficient reasons and
did not accord with the undisputed facts.
Conclusion: violation (unanimously).

(7)   no. 12148/03    SANCHEZ CARDENAS v. Norway

   Facts: In 1995 the applicant separated from the mother of his two sons.
Although they initially agreed on terms of access, a dispute subsequently
arose following allegations by the mother to the police that the applicant had
sexually abused one of the boys. The police investigation into the
allegations was later discontinued. In 2001 a city court granted the applicant
access on alternate weekends and for part of the holidays after rejecting the
allegations of sexual abuse as being a fabrication by the mother designed to
obstruct the applicant’s access rights. That decision was overturned by the
High Court, which refused the applicant access as it considered this to be
the course most favourable to the children’s development and justified by
their best interest. With regard to the allegations of sexual abuse it stated
that the fact that there was insufficient evidence for a criminal conviction
was not decisive and that no risk could be taken in the case of access to
minors; it added that there were many elements that might indicate that
abuse had occurred, although it did not find it necessary to go into or take a
stance on that point.

   Law: Article 8. Even though the impugned passage in the High Court’s
judgment had had no bearing on its decision regarding access, it suggested
that the applicant might have engaged in highly reprehensible conduct vis-à-
vis his son and was capable of adversely affecting his enjoyment of his
private and family life, in the ordinary sense of those terms. The complaint




                                       19
                        Annual Report 2007: First Section


thus fell within the scope of Article 8. The interference was “in accordance
with law” and pursued the legitimate aim of protecting the rights and
freedoms of others. However, as regards the necessity of the interference, it
was not apparent why the High Court should have indicated that there was
evidence of abuse but then decided that it was unnecessary to go further into
that issue. The message thereby conveyed was that, on the basis of the
available evidence, it suspected the applicant of the sexual abuse of one of
his sons. In the Court’s opinion, the High Court should either have dealt
with that issue fully, with all that meant in terms of evidentiary assessment
and reasoning, or left it to one side. Portraying the applicant in that light in
an authoritative judicial decision had stigmatised him, damaged his honour
and reputation and adversely affected his private and family life. There had
been no cogent reasons for the inclusion of the impugned passage.
Accordingly, the interference was not sufficiently justified and was
disproportionate.
Conclusion: violation (unanimously).


VI.    RULE 39 (INTERIM MEASURES) AND RULE 41 (PRIORITY) REQUESTS

  (a) Requests for interim measures pursuant to Rule 39 of the Rules of
Court were granted in the following cases:

(1)   no. 7749/07      Shazemann v. Norway

   The application concerns a complaint by an Iraqi national about his
expulsion from Norway to Iraq. In 1999 he obtained residence in Norway
on humanitarian grounds but, due to criminal proceedings against him, the
permit was not renewed beyond April 2003. In March 2005, after the
Gulating High Court had upheld his conviction and had sentenced him to
seven years’ imprisonment, the Aliens Directorate ordered his expulsion to
Iraq (Articles 2 and 3).
   On 22 February 2007 the President applied Article 39 to stop the
applicant’s expulsion.
   The case has been communicated to the Government.

(2)   no. 39780/06     Kotsaftis v. Greece

   The applicant, a Greek national who was born in 1947, is currently held
in Patras prison, where he is serving a 13-year prison sentence for
trafficking in antiques. On 12 August 2003 the applicant was taken to
Amaliada Hospital, where he was found to be suffering from cirrhosis of the
liver. On 8 January 2004 the criminal court ordered a stay of execution of
the applicant’s sentence so that he could be admitted to hospital for a




                                       20
                        Annual Report 2007: First Section


minimum period of four months. The applicant underwent various
operations. On 4 September 2006 the applicant applied to the criminal court
for a stay of execution of his sentence, claiming that, on account of his
serious health problems, he was likely to suffer irreparable damage. On
18 October 2006 the court dismissed his application, and held that long-
term hospitalisation was not necessary (Article 3).
   On 9 March 2007 the President applied Article 39 and asked the
Government to order that the applicant be transferred to a specialised
medical centre for all the necessary tests, and that he remain in hospital until
the doctors treating him considered that he could be re-imprisoned without
danger to his life.
   The case has been communicated to the Government.

(3)   no. 37325/05     Noah v. Switzerland

   The applicant, a Cameroon national, arrived in Switzerland in 2001. He
had allegedly been arrested in Cameroon on suspicion of having taken part
in arms trafficking. He alleged that he was held in humiliating and
degrading conditions.
   In 2001 he managed to escape from his cell, left his country and arrived
in Switzerland in April 2001. His asylum request was rejected by a decision
of the Federal Migration Office on 18 December 2001.
   On 22 March 2007 the President applied Article 39 to stop the
applicant’s expulsion.
   The case is pending.

(4)   no. 41615/07     Neulinger v. Switzerland

   The applicant, a Belgian and Swiss national who belonged to the Jewish
faith, decided to settle in Israel in 1999; there she met (in 2001) an Israeli
national, also Jewish. They married on 23 October 2001 in Israel and a
child, Noam, was born in Tel Aviv on 10 June 2003. In autumn 2003 the
applicant’s husband joined the Jewish ultra-orthodox “Lubavitch”
movement, which (according to the applicant) is a radical movement that
proselytises intensively. The applicant claimed that daily life subsequently
became extremely difficult, and that she was threatened with death by her
husband for resisting. On 24 May 2005 the applicant left Israeli territory and
settled in Switzerland with the child, Noam. On 22 May 2006 the Israeli
Central Authority submitted a request for his return to the Swiss Central
Authority. By a judgment of 16 August 2007, served on the applicant’s
lawyer on 21 September 2007, the Federal Court granted an appeal by the
child’s father. That court considered that the exceptions preventing the
child’s return should be interpreted restrictively; the parent who had carried
out the abduction should obtain no advantage from that unlawful behaviour.




                                       21
                        Annual Report 2007: First Section


The court did not contest the fact that there was a serious risk that the child
would be exposed to psychological danger if he were returned without his
mother, but considered that that danger would be inexistent if the mother
accompanied him to Israel, something that could reasonably be expected of
her. The Federal Court stated that the cantonal courts had not established
formal proof that there would be a serious risk of danger or an intolerable
situation for the child if he were to return with his mother. Finally, it also
noted that the mother did not claim to be threatened with imprisonment or
even a criminal penalty.
   On 27 September 2007 the President asked that the applicant’s child
(Noam), aged 4 years and 3 months and living with the applicant in
Switzerland, not be sent back to Israel.
   The case has been communicated to the Government.

(5)   no. 38124/07    Dzhurayev v. Russia

   The applicant was convicted in Uzbekistan for being a member of the
prohibited religious organization “Tablighi Dzhamaat” and ordered him to
pay a substantial fine. To avoid pressure allegedly put on him and his family
by the authorities of Uzbekistan the applicant left for Moscow. On
29 January 2007 the applicant was detained in Russia following the
extradition request of the authorities of Uzbekistan. On 30 August 2007 the
applicant was released since the Office of the Prosecutor General of Russia
refused the request for extradition. On the same day the applicant was
detained for violation of the rules on migration. The applicant fears that, if
expelled to Uzbekistan, he would be subjected to torture for religious
reasons and would not receive a fair trial.
   On 4 September 2007, the President indicated to the respondent
Government not to expel the applicant until further notice.
   The case is pending.

(6)   no. 46468/06    V.A. v. Russia

   The applicant was appointed vice-president of the Yukos oil company
and apparently opposed to the Government’s plans to liquidate the company
and sell its property for the alleged tax debts. In 2005 criminal proceedings
were initiated in respect of the applicant. He was taken into custody on 7
April 2005. He sought release, referring to his poor state of health and lack
of any evidence against him, but this was refused. In 2006 the doctors
detected that the applicant was HIV-positive. Special anti-retroviral therapy
was recommended. However, he claims that the prison authorities did not
treat him appropriately.
   On 27 November 2007 the President applied Article 39 and asked the
Government to secure immediately, by appropriate means, the in-patient




                                       22
                        Annual Report 2007: First Section


treatment of the applicant in a hospital specialised in treatment of AIDS and
concomitant diseases.
   The case is pending.

(7)    no. 52812/07   Kamaliyev v. Russia

   In Uzbekistan the applicant was placed under investigation on charges of
involvement in extremist religious organisations and attempting to subvert
the constitutional system. The applicant therefore feared persecution on
account of his political and religious convictions (Articles 3, 6 and 8).
   On 3 December 2007 the President indicated to the respondent
Government not to expel the applicant until further notice.
   The case is pending.


   (b) Requests for priority pursuant to Rule 41 of the Rules of Court were
granted in 49 cases.


VII.    THIRD-PARTY INTERVENTION (ARTICLE 36 AND RULE 44)

   Leave to submit third-party comments was given by the President
pursuant to Rule 44 § 2 of the Rules of Court in 7 cases:

(1)    no. 14030/03   Shchyukin and Others v. Cyprus

   The case concerns the arrest and expulsion of a group of Ukrainian
sailors from Cyprus. The case raises issues under Articles 3, 5, 1 Protocol
No. 1 and 1 Protocol No. 7.
   The case is pending.

(2)    no. 30141/04   Schalk and Kopf v. Austria

   The applicants, a homosexual couple, complain that they are denied the
right to marry under Austrian law and are therefore discriminated against on
account of their sexual orientation. The case raises issues under Articles 8,
12 and 14.
   The case is pending.

(3)    no. 28606/05   Kabili v. Greece

   The applicant complained that his detention on remand for a long period
had been abusive and excessive, that he had received no compensation in
this respect and that the reasons given by the Athens Court of Appeal for




                                       23
                       Annual Report 2007: First Section


dismissing his request for compensation did not comply with the principle
of the presumption of innocence and the distribution of the burden of proof
in criminal matters (Arts. 5, 6 §§ 1 and 2).
   The case is pending.

(4)   no. 34148/05   Behar Metushi v. Greece

  Fairness and length of the proceedings brought against the applicant
(Arts. 3, 5 and 6 § 1).
  Judgment 25/10/07

(5)   no. 34643/05   Luan Metushi v. Greece

  Fairness and length of the criminal proceedings brought against the
applicant (Art. 6 § 1). Judgment 25/10/07

(6)   no. 41515/05   Sekseni v. Greece

   Criminal proceedings brought against the applicant, an Albanese
national, for drug trafficking (Article 6 § 1).
   The case is pending (communicated on 30.01.07)

(7)   no. 5019/06    Zoukova v. Cyprus

   The case concerns the length of enforcement proceedings. In particular it
concerns the delay on the part of the Cypriot authorities in enforcing a
judgment given by the First Instance Court of Volos in Greece regarding the
payment of child maintenance by the applicant’s former husband, a Cypriot
national (Article 6 § 1).
   The case has been communicated on 14 May 2007.




                                      24
                        Annual Report 2007: First Section


VIII. STATISTICAL INFORMATION

    1. Results for year
    2. Results by month
    3. Applications pending
    4. Graphic charts
       (a) Judgments delivered
       (b) Inadmissibility and strike-out decisions
       (c) Admissibility decisions
       (d) Applications communicated
       (e) Applications pending by year of lodging
       (f) Applications pending by State




                                       25
                           Annual Report 2007: First Section


                                APPENDIX 1

                      Judgments delivered in 2007
Merits                                                               326
Striking out                                                           2
Friendly settlement                                                    2
Just satisfaction                                                      6
Revision
    Total                                                            336


                 Chamber decisions adopted in 2007
Applications declared admissible                                      60
Applications declared inadmissible                                    50
Applications struck out of the list                                  133
    Total                                                            243


                Committee decisions adopted in 2007
Applications declared inadmissible                                   5705
Applications struck out of the list                                  100
    Total                                                            5805


                 Applications communicated in 2007
    Total                                                               746




  Total cases finalised in 2007 (judgments*,
                                                                     6334
inadmissibility and strike-out decisions)

* Not including judgments on just satisfaction and revision but including judgments
which are not yet final. Some judgments dealt with a number of joined applications.




                                          26
                                      Annual Report 2007: First Section


                                           APPENDIX 2

                                       Chambers                                                   Committees
            Judgments   Admissible   Inadmissible         Struck out      Communicated   Inadmissible     Struck out
January        33           1              3                  9                49            468               13
February       38           4              9                 12                46            482               10
March          16           2              2                 13                85            397               12
April          32           6              2                  8                35            230                5
May            35           5              9                 13               105            462               6
June           28           5              1                 16                70            737               9
July           32           5              6                  5                34            217               3
August         0            0              0                  0                0              0                0
September      30           8              8                 19               122            666               17
October        25          10              2                 13                84            503               10
November       35          10              5                 11                94            697               6
December       36           4              3                 14                22            846                9
   Total      340          60             50                 133              746           5705               100




                                                     27
                     Annual Report 2007: First Section


                          APPENDIX 3

        Applications pending on 31 December 2007


Total applications not yet examined                      22507


Adjourned/Communicated for information                    3


Communicated/Adjourned                                    0


Communicated for observations                            1166


Admissible                                               140


Judgments not yet final                                   137


TOTAL APPLICATIONS PENDING                               23953
(Chamber: 3100)
(Committee: 20853)




                                    28
                                             Annual Report 2007: First Section


                                                       APPENDIX 4
                                                      Chart 1: Judgments delivered in 2007


40
                               38
                                                                                                                                                                         36
                                                                        35                                                                                    35
35
               33
                                                            32                                        32
                                                                                                                                  30
30
                                                                                     28

                                                                                                                                                 25
25



20

                                             16
15



10



 5


                                                                                                                      0
 0
          ry         ary               rch           ril            y           ne              uly            st          er               er           er         er
        ua        bru                Ma            Ap             Ma          Ju            J                gu          mb              tob           mb         mb
  J   an        Fe                                                                                         Au         pte              Oc            ve         ce
                                                                                                                    Se                             No         De




                                Chart 2: Inadmissibility and strike-out decisions adopted in 2007


900                                                                                                                                                                           874


800                                                                                   762
                                                                                                                                                                 719
700


600
                                                                                                                                                   528
                               513
               493                                                      490                                                           490
500
                                             424
400


300
                                                            245
                                                                                                       231

200


100

                                                                                                                          0
  0

      ary                ary           rch            ril           y            ne               ly             st              er           er            er           er
    nu                bru            Ma             Ap            Ma           Ju               Ju             gu              mb          tob            mb           mb
  Ja                Fe                                                                                       Au             pte          Oc             ve           ce
                                                                                                                          Se                          No           De




                                                                             29
                                           Annual Report 2007: First Section



                                           Chart 3: Admissibility decisions adopted in 2007

                                                                                                                                      10         10
 10


 9

                                                                                                                        8
 8


 7

                                                         6
 6

                                                                     5           5           5
 5

                              4                                                                                                                             4
 4


 3

                                           2
 2

               1
 1

                                                                                                           0
 0

      ary               ary          rch           ril          y           ne          ly            st          er             er         er         er
    nu               bru           Ma            Ap           Ma          Ju          Ju            gu          mb            tob         mb         mb
  Ja               Fe                                                                             Au         pte            Oc          ve         ce
                                                                                                           Se                         No         De




                                                Chart 4: Applications communicated in 2007


140


                                                                                                                       122
120

                                                                    105

100
                                                                                                                                                 94

                                           85                                                                                         84
 80
                                                                                 70


 60
               49
                              46

 40                                                      35                                  34

                                                                                                                                                            22
 20


                                                                                                           0
 0
          ry            ary          rch           ril          y           ne          ly            st          er             er         er         er
        ua           bru           Ma            Ap           Ma          Ju          Ju            gu          mb            tob         mb         mb
  J   an           Fe                                                                             Au         pte            Oc          ve         ce
                                                                                                           Se                         No         De




                                                                          30
                                                    Annual Report 2007: First Section



                                        Chart 5: Applications pending on 31 December 2007 by year of lodging


                         25000

                                    22177


                         20000
Number of applications




                         15000



                                                   9869
                         10000


                                                                 5896

                         5000

                                                                               1605
                                                                                             535          214           103          48           10           6
                             0
                                   07         06            05            04            03           02            01           00           99           98
                                 20         20            20            20            20           20            20           20           19          -19
                                                                                                                                                     97
                                                                                                                                                   19
                                                                                         Year of lodging




                                                   Chart 6: Applications pending on 31 December 2007 by State

                                                                                                   Austria
                                                                                                    2,4%        Azerbaijan
                                                                                         Others                               Croatia
                                                                                                                  4,1%
                                                                                         0,2%                                  4,0%

                                                                        Switzerland                                           Cyprus      Greece
                                                                          1,8%                                                 0,5%        2,3%
                                                                                                                                           Luxembourg
                                                                                                                                              0,2%
                                                                                                                                       Norway
                                                                                                                                        0,4%




                                                                                Russia
                                                                                84,1%




                                                                               31
   EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROPÉENNE DES DROITS DE L’HOMME




        SECOND SECTION




  ANNUAL ACTIVITY REPORT 2007




              January 2008
                                              CONTENTS

                                                                                                           Page

I.      Introduction .......................................................................................... 1

II.    Composition of the Section .................................................................. 2

III.   Hearings................................................................................................ 3

IV.     Cases relinquished to the Grand Chamber ........................................... 4

V.      Other cases of interest........................................................................... 5

VI.     Rule 39 (interim measures) and Rule 41 (priority) requests .............. 11

VII. Third-party intervention (Article 36 and Rule 44) ........................... 144

VIII. Statistical information ...................................................................... 155
                                Annual Report 2007: Second Section




I.     INTRODUCTION

       In 2007, the Section held 45 Chamber sessions (including seven in the Section’s former
composition). Oral hearings were held in 3 cases (including one in the Section’s former
composition). The Section delivered 344 judgments (including 25 in its former composition),
of which 341 concerned the merits, 1 concerned friendly settlements, 2 dealt with just
satisfaction. The Section applied Article 29 § 3 of the Convention (combined examination of
admissibility and merits) in 887 cases and 297 judgments were delivered under this
procedure.

      Of the cases examined by a Chamber

(a)   23 applications were declared admissible;
(b)   144 applications were declared inadmissible;
(c)   134 applications were struck out of the list (including one which had previously been
      declared admissible);
(d)   898 applications were communicated to the State concerned for observations, of which
      789 were communicated by the President.

      In addition, the Section held 58 committee sessions. 3351 applications were declared
inadmissible and 118 applications were struck out of the list. The total number of applications
rejected by a Committee represented around 80 % of the inadmissibility and strike-out
decisions adopted by the Section during the year.

      At the end of the year, 13 814 applications were pending before the Section.




                                                1
                              Annual Report 2007: Second Section




II.    COMPOSITION OF THE SECTION

       Prior to 19 January 2007 the Section was composed as follows:

       Jean-Paul Costa (French), President,
       András Baka (Hungarian), Vice-President,
       Ireneu Cabral Barreto (Portuguese),
       Riza Türmen (Turkish),
       Mindia Ugrekhelidze (Georgian),
       Antonella Mularoni (San Marinese),
       Elisabet Fura-Sandström (Swedish),
       Danutė Jočienė (Lithuanian),
       Dragoljub Popović (citizen of Serbia), Judges,


       Sally Dollé, Registrar,
       Stanley Naismith, Deputy Registrar

       Following the appointment of Jean-Paul Costa as President of the Court, the Second
Section was composed as follows:

       Françoise Tulkens (Belgian), President,
       András Baka (Hungarian), Vice-President,
       Ireneu Cabral Barreto (Portuguese),
       Riza Türmen (Turkish),
       Mindia Ugrekhelidze (Georgian),
       Vladimiro Zagrebelsky (Italian)
       Antonella Mularoni (San Marinese),
       Danutė Jočienė (Lithuanian),
       Dragoljub Popović (citizen of Serbia), Judges,


       Sally Dollé, Registrar,
       Françoise Elens-Passos, Deputy Registrar




                                              2
                                Annual Report 2007: Second Section




III.    HEARINGS

        Hearings were held in the following 3 cases:

(1)    Gebremedhin (Gaberamadhian) v. France, no. 25389/05

      The application concerned the right of asylum. The applicant, a young Erythrean
reporter for an independent newspaper, arrived in France by air with the intention of applying
for asylum at the border. He was held for 22 days (20 days according to the Government) in
the waiting area at Roissy airport. Following the application of Rule 39 by the Court, the
applicant was eventually issued with a temporary residence permit and given political refugee
status.
      - Article 13 in conjunction with Article 3 and Article 5 § 1
      A hearing on admissibility and the merits was held on 16 January 2007. The judgment
was delivered on 26 April 2007 (old section) - Violation of Article 13 in conjunction with
Article 3, no violation of Article 5 § 1 (f).


(2)    The Georgian Labour Party v. Georgia, no. 9103/04

      The applicant, a political party, challenged domestic electoral mechanisms that
allegedly led to violations of its rights during the parliamentary and presidential elections.
      - Article 3 of Protocol No. 1 and Article 14 of the Convention
      The application was declared admissible on 22 May 2007. A hearing on the merits was
held on 4 September 2007. Judgment will be delivered in 2008.

(3)    Oecumenical Patriarchate (Fener Rum Patrikligi) v. Turkey, no. 14340/05

      The applicant alleged that in ruling on the registration of its property in the name of an
Orphanage, now managed by the General Directorate of Foundations, the domestic courts had
violated its right to the peaceful enjoyment of its possessions.
      - Article 1 of Protocol No. 1 and Articles 6 and 14 of the Convention
      The application was declared admissible on 22 June 2007. A hearing on the merits was
held on 27 November 2007. Judgment will be delivered at a later date.




                                                3
                                Annual Report 2007: Second Section




IV.    CASES RELINQUISHED TO THE GRAND CHAMBER

The Section decided to relinquish the case to the Grand Chamber or referral was requested by
the Parties in the following cases.

(1)   Korbely v. Hungary, no. 9174/02

      After several procedures beginning in 1994, the applicant, a retired military officer, was
convicted in 2001 based on Article 3 (1) of the Geneva Convention for a crime against
humanity committed in 1956. However, the Geneva Convention was proclaimed in 1954 by a
Law-Decree but did not formally take effect in Hungary until its official translation was
published in 2000. The applicant complains of being wrongfully convicted for an action
which did not constitute a crime under domestic law when it was committed, and about the
length of the proceedings.
      - Articles 6 and 7 of the Convention

(2)   Yumak and Sadak v. Turkey, no. 10226/03

      The application mainly concerns the Turkish parliamentary election system, under
which a party has to win at least 10% of the vote nationwide in order to qualify for seats in the
National Assembly. The applicants complain that that requirement violates people’s freedom
of expression, but also that they were prevented from holding a political meeting.
      - Article 3 of Protocol No. 1
      Judgment of 30 January 2007 (old Section) – No violation of Article 3 of Protocol No.
1. The case was referred to the Grand Chamber at the applicants’ request.

(3)   Salduz v. Turkey, no. 36391/02

       The applicant, a minor of 17 years when he was arrested in May 2001, was taken into
police custody, accused of participation in an illegal demonstration and involvement in
terrorist-related activities. He mainly complains that he was denied legal assistance during
police custody (Art. 6 § 3 (c)) and that the submissions of the Principal Public Prosecutor
were not communicated to him, depriving him of the possibility to put forward his counter-
arguments (Art. 6 § 1).
       - Article 6 §§ 1 and 3 (c) of the Convention
       Judgment of 26 April 2007 – Violation of Article 6 § 1
 The case was referred to the Grand Chamber at the applicant’s request.




                                                4
                                Annual Report 2007: Second Section

V.        OTHER CASES OF INTEREST

      Of the judgments delivered and decisions adopted by the Section in 2007, the most
interesting included the following:

      (1) Fener Rum Erkek Lisesi Vafki v. Turkey, no. 34478/97

        The applicant foundation alleged in particular that the law regulating foundations and
the way in which the domestic courts interpreted it had violated its right to the peaceful
enjoyment of its possessions. It complained that a ban preventing it from acquiring real estate
had resulted in the loss of its ownership rights. It also considered that it had been a victim of
discrimination.
      - Article 1 of Protocol No. 1 and Article 14 of the Convention
      Judgment of 9 January 2007 (old Section) – Violation of Article 1 of Protocol No. 1.

(2)     Bénazet v. France, no. 49/03

        The applicant had been committed several times to the difficult patients unit of a
psychiatric hospital, and challenged the lawfulness, conditions and consequences of the
confinement measures concerned. Following the applicant’s death, the guardianship judge
representing his only heir, a disabled daughter, decided that it was not in the interest of the
daughter’s protection for her to pursue her father’s application. The people in whose care the
daughter was living informed the Court that she did not wish to pursue the application.
      - Articles 3, 5 §§ 1 to 4, 6, 8, 10, 11 and 13 of the Convention
      Struck out of the list (old Section) – Decision on 4 January 2007.

(3) Ekinci and Akalın v. Turkey, no. 77097/01

      The case mainly concerns the applicants’ freedom of correspondence when they were in
prison for belonging to a terrorist organisation. Various letters, including letters to their
lawyer, were censored or destroyed. The applicants also complained of unfair proceedings.
      - Articles 6 § 3 (c), 8 and 13 of the Convention.
      Judgment of 30 January 2007 (old Section) – Violation of Article 8.

(4)     Evaldsson and Others v. Sweden, no. 75252/01

This case concerned the levying of fees on the non-unionised applicants’ wages, in order to
compensate a union for its monitoring work.
      - Article 1 of Protocol No. 1, Articles 9, 10, 11 and 14 of the Convention
      Judgment of 13 February 2007 (old Section) – Violation of Article 1 of Protocol No. 1.




                                                5
                                Annual Report 2007: Second Section

(5)   Akpınar and Altun v. Turkey, no. 56760/00

      The case concerned the killing of the first applicant’s brother and the second applicant’s
son in the course of an armed clash, and the alleged mutilation of their corpses by the security
forces. The applicants also complained of the absence of an effective investigation.
      - Articles 2, 3 and 13 of the Convention
      Judgment of 27 February 2007 – Procedural violation of Article 2 and substantive
violation of Article 3 in respect of the applicants.

(6)   Erdoğan Yağız v. Turkey, no. 27473/02

      This case mainly concerned the conditions in which the applicant, a doctor employed by
the security police, was arrested and held in police custody. He complained of humiliating and
degrading treatment at the hands of the police, and in particular of having been exhibited
handcuffed in public, at his place of work and in front of his family, and also that he had not
been informed of the reasons for his arrest. He suffered a nervous breakdown after the
experience and lost his job.
      - Articles 3, 5 and 8 of the Convention
      Judgment of 6 March 2007 – Violation of Article 3.

(7)   Yakışan v. Turkey, no. 11339/03

      The case concerned the length of criminal proceedings (almost 13 years and still
pending when the judgment was delivered) and the length of the applicant’s detention on
remand (11 years and 7 months, on-going at the time of the judgment).
      - Articles 5 § 3 and 6 § 1
      Judgment of 6 March 2007 – Violation of Articles 5 and 6 and insertion of a special
clause in respect of Article 41 of the Convention.

(8)   Kozacıoğlu v. Turkey, no. 2334/03

The applicant complained of a violation of his right to the peaceful enjoyment of his
possessions and of unfair proceedings. A building he owned had been expropriated as a listed
“cultural asset”. However, the additional compensation awarded did not take into account the
real value of the property considering its historical interest.
      - Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
      Judgment of 31 July 2007 – Violation of Article 1 of Protocol No. 1.




                                                6
                                Annual Report 2007: Second Section

(9) 97 Members of the Gldani Congregation of Jehovah's Witnesses and 4 Others v.
Georgia, no. 71156/01

      The case concerned a violent attack on the applicants – Jehova’s Witnesses who had
gathered for a religious meeting in 1999 – by a group of Orthodox religious fanatics. No
effective investigation was carried out and several of the attackers were not prosecuted until
2005, in connection with a criminal case concerning other acts of religious violence, a
habitual activity of theirs.
      - Articles 3, 9, 10, 11, 13 and 14 of the Convention
      Judgment of 3 May 2007 – Violation of Articles 3 and 9, in isolation and in conjunction
with Article 14 of the Convention in respect of certain applicants.

(10) Uzun v. Turkey, no. 37410/97

      The applicant considered the military authorities responsible for a mortar explosion that
killed his mother and endangered his father’s life.
      - Articles 2, 6, 8 and 13 of the Convention and Article 1 of Protocol No. 1.
      Judgment of 10 May 2007– Procedural violation of Article 2.

(11) Giusto, Bornacin and V. v. Italy, no. 38972/06

      The application concerns the repatriation of the third applicant, a young girl from
Belarus who had stayed with the other applicants, an Italian couple, as part of a foreign
holiday exchange scheme. The couple wanted to adopt the child but she was repatriated at the
request of the Belarussian authorities.
      - Articles 3, 8, 6 § 1, 13 and 14 of the Convention.
      Inadmissible (decision of 15 May 2007).

(12) Frérot v. France, no. 70204/01

       The applicant, a former member of “Action Directe”, an armed, left-wing extremist
group, had been given a life sentence for attempted murder, armed robbery, abduction and
hostage-taking to facilitate or prepare the commission of a serious crime or other major
offences. The applicant’s main complaints concerned the strip-searching of prisoners (for
which provision was made in a ministerial circular), and the interference with their
correspondence.
       - Articles 3, 8, 6 § 1 and 13 of the Convention.
       Judgment of 12 June 2007 (old Section) – Violation of Articles 3, 8 (correspondence),
13 and 6 § 1 of the Convention.

(13) Bakan v. Turkey, no. 50939/99

     The application concerned the accidental death of the applicants’ relative, caused by a
shot fired by a police officer, and the right of access to a court. The applicants also
complained that they were refused legal aid.
     - Articles 2, 6 and 13 de la Convention and Article 1 of Protocol No. 1.
     Judgment of 12 June 2007 (old Section) – Violation of Article 6 (access to a court).



                                                7
                                 Annual Report 2007: Second Section

(14) Ferreira Alves v. Portugal, no. 25053/05

      This case essentially concerns a peculiarity of Portuguese law which makes it
impossible for litigants to see and comment on documents contained in the appeal file, in
particular notes drafted by the trial court judge for the attention of the appeal court on appeals
lodged by parties. The applicant complained that failure to communicate various documents,
notes and items submitted by the public prosecutor and the note of the first-instance judge,
had violated the principle of a fair hearing.
      - Article 6 § 1
      Judgment of 19 June 2007 – Violation of Article 6 § 1 of the Convention.

(15) Karakaya (Yalçın) v. Turkey, no. 29586/03

      The applicant complained that her marriage had remained valid even though she had
been abducted and forced to marry. She alleged that her right to marry and her right to
security of person had been violated because her marriage, although null and void, remained
valid. She also complained of the suspension of the criminal proceedings against her
abductors.
      - Articles 6 and 8 of the Convention
      Inadmissible (decision of 5 June 2007).

(16) Mehmet and Suna Yiğit v. Turkey, no. 52658/99

       The applicants' daughter was left severely handicapped as a result of an operation
which, they alleged, was performed negligently. They were refused legal aid to bring
proceedings against the hospital staff and were thus unable to pay the court fees required for
bringing the action.
       - Articles 3, 6 § 1 and 8 of the Convention and Article 1 of Protocol No. 1
      Judgment of 17 July 2007 – Violation of Article 6 § 1.

(17) Longobardi and Others v. Italy, no. 7670/03
     PERINELLI v. Italy, no. 7718/03

      The applicants’ property was building land according to the city development plan, but
all building on it was prohibited, without them being awarded any compensation, because of
the archaeological interest of the surrounding area.
      - Article 1 of Protocol No. 1
      Inadmissible (decisions of 26 June 2007).

(18) L. v. Lithuania, no. 27527/03

      This transsexual case concerns the State’s failure to implement subsidiary legislation
concerning gender-reassignment surgery, and the consequences of that failure for the
applicant.
      - Articles 3, 8, 12 and 14 of the Convention
      Judgment of 11 September 2007 (old Section) – Violation of Article 8.




                                                 8
                               Annual Report 2007: Second Section

(19) Tremblay v. France, no. 37194/02

       The case concerns prostitute who has been trying for ten years to give up prostitution.
The applicant complained that she was obliged to continue working as a prostitute in order to
pay the family allowance contributions demanded of her. She complained in particular of the
attitude of the Paris URSSAF, the body responsible for collecting social security and family
allowance contributions, in requiring her to pay various amounts in social contributions.
       - Articles 3 and 4 of the Convention
       Judgment of 11 September 2007 (old Section) – No violation of Article 3.

(20) Teren Aksakal v. Turkey, no. 51967/99

       The applicant’s husband had died in 1980 as a result of the torture and ill-treatment
inflicted on him in custody by the police. Criminal proceedings lasting 22 years had resulted
in the identification of only two accomplices, but their sentence had never been enforced. The
applicant complained of a violation of her husband’s right to life, the de facto impunity
enjoyed by his torturers and murderers, and the duration of the proceedings.
       - Articles. 2, 3, 6 and 13 of the Convention
       Judgment of 11 September 2007 (old Section) – Violation of Articles 2 and 3
(procedural aspect).

(21) Suküt v. Turkey, no. 59773/00

      This application is one of a large group of cases concerning the dismissal of army
officers for acts of indiscipline. In this case the applicant complained that he had had no
effective remedy before the domestic courts against a decision taken by the Supreme Military
Council.
      - Articles 6, 7, 8, 9, 13 and 14.
       Inadmissible (decision of 11 September 2007).

(22) Hasan and Eylem Zengin v. Turkey, no. 1448/04

       Refusal by the Turkish authorities to exempt the first applicant, at the request of her
father, the second applicant, from mandatory lessons on religion and morals at school. The
applicant and her family were of the Alevi faith, a minority, heterodox branch of Islam with
religious practices which differ from those of Sunni Muslems. The applicants complained that
the way in which compulsory religious instruction was dispensed was not neutral and had a
distinctly Sunni slant.
       - Article 9 of the Convention and Article 2 of Protocol No. 1
       Judgment of 9 October 2007 (old Section) – Violation of Article 2 of Protocol No. 1.




                                               9
                                Annual Report 2007: Second Section

(23) Saoud v. France, n° 9375/02

      Mr Saoud, who suffered from a schizophrenic behavioural disorder, died as a result of
force used to subdue him during his arrest. The applicants – his mother, sisters and brothers –
complained mainly of a violation of Mr Saoud’s right to life when the police were called to
their home, and of the circumstances of his death (face-down immobilisation on the floor).
They further complained of several violations of their right to a fair hearing in the criminal
proceedings brought following the death, and in particular of the fact that the specialist lawyer
appointed to assist one of the applicants had been unable to file supplementary pleadings with
the Court of Cassation.
      - Articles 2 and 3 of the Convention
      Judgment of 9 October 2007 – Violation of Articles 2 and 6 § 1.

(24) Asan v. Turkey, no. 28582/02

      All copies of a book were seized, as separatist propaganda, for a nine-month period.
      - Article 10 of the Convention
      Judgment of 27 November 2007 – Violation of Article 10.

(25) Hamer v. Belgium, no. 21861/03

      In 1993 the applicant inherited a holiday home that had been built without planning
permission in 1967. In 1999 (thirty years later) – although a report had declared the
construction illegal as early as 1994 – the applicant was brought before the domestic courts
for keeping an unauthorised structure between 1993 and 1999 on forest land where building
was prohibited (an offence currently punishable under a decree on urban planning). The
applicant complained of excessively lengthy proceedings, discrimination in relation to other
owners and a disproportionate violation of her right to the peaceful enjoyment of her
possessions.
      - Articles 6 § 1 and 14 of the Convention and Article 1 of Protocol No. 1
      Judgment of 27 November 2007 – Violation of Article 6 § 1; no violation of Article 1 of
Protocol No. 1.

(26) Tillack v. Belgium, no. 28582/02

      The applicant, a journalist, published articles based on confidential information. When
the European Anti-Fraud Office (OLAF) lodged a complaint, suspecting him of having bribed
a European civil servant, the applicant’s home and place of work were searched. He
complained that the searches and the seizure of certain items had violated his right to freedom
of expression, and also that his right to a fair hearing had been violated.
      - Articles 6 and 10 of the Convention
      Judgment of 27 November 2007 – Violation of Article 10.




                                               10
                                Annual Report 2007: Second Section

VI .   RULE 39 (INTERIM MEASURES) AND RULE 41 (PRIORITY) REQUESTS

(a) Requests for interim measures pursuant to Rule 39 were granted in 20 cases, some of
the most interesting being the following:

(1)    S. v. France, no. 43022/06 (old Section)

      The application concerns the expulsion of the applicant, a Sri Lankan national of Tamil
origin. Having entered France illegally in May 2001, he made several asylum applications to
the OFPRA (the French office for the protection of refugees and stateless persons) in which
he explained, inter alia, that he had been arrested by the army, detained and ill-treated from
January to April 2000 because of his alleged links with the “Liberation Tigers of Tamil
Eelam” (LTTE). On 12 January 2007 the Government were invited not to expel the applicant.
The application, which is now before the Third Section, has been communicated.

(2)    Ayashi v. Turkey, no. 3083/07

      The extradition of an Iranian national to Iran, where he claims he has been sentenced to
death. On 19 January 2007 the Government were invited not to expel the applicant.
The application, which has been given priority, has been communicated and is pending.

(3)    Ben Khemais v. Italy, no. 246/07

      The applicant, a Tunisian national, was to be expelled by the Italian authorities back to
his country of origin, where he had allegedly been sentenced in absentia to 10 years’
imprisonment for being a member of a terrorist organisation. He feared that if he was sent
back he would not only be denied justice, but his sentence would be increased without a
proper trial and he would be subjected to ill-treatment or even torture. On 29 March 2007 the
Government were invited not to expel the applicant.
The application, now pending, has been communicated to the Government.

(4)    Abdelhedi v. Italy, no. 2638/07

      In 2003 the applicant, a Tunisian national, was arrested and charged with membership
of a terrorist group involved, inter alia, in arms trafficking, handling stolen goods, forging
documents and illegal immigration. The court recommended that he be sent back to Tunisia
after serving his sentence. The applicant feared that he might be expelled at any time in
conformity with the judgment delivered by the Milan court on 3 December 2004 and upheld
by the Milan Court of Appeal. On 3 April 2007 the Government were invited not to expel the
applicant.
The application, now pending, has been communicated.




                                               11
                                Annual Report 2007: Second Section

(5)    Berfejani and Hajaran v. Turkey, no. 18854/07

        The application, lodged by a husband and wife, concerns the possible deportation of
the wife, who was arrested in Turkey, to Iran, where she would allegedly be in danger of
death or ill-treatment because the Iranian authorities were convinced she intended to convert
to Judaism. The husband lives in Israel. On 3 May 2007 the Government were invited not to
expel the applicant to Iran.
The case is pending.

(6)    Oboladze and Lobjanidze v. Georgia, no. 31197/06

      The case concerns the conditions of detention of one of the applicants, whose state of
health gives cause for concern in terms of the potential consequences of a lack of proper care.
On 6 June 2006 the Government were invited, with the applicant’s consent, to administer the
medical care required by his state of health in an appropriate medical establishment, and to
have the applicant examined by two neurosurgeons, one appointed by each party.
The case is pending.

(7)    Elizbarashvili v. Georgia, no. 28263/07

      The applicant, a detainee suffering from hepatitis C, asked to be transferred to a medical
establishment capable of administering proper care. On 6 July 2007 the Government were
invited to make the transfer, set up a panel to examine the applicant’s health and submit
details to the Court of the medical treatment administered to him.
The case is pending.

(8)    L. v. Georgia, no. 30030/07

      The applicant, an AIDS sufferer since 2002 who also suffers from other ailments,
applied to be transferred from his allegedly strict confinement cell to a medical establishment
capable of administering proper care. On 19 July 2007 the Government were invited to
provide him with the necessary medical treatment in an appropriate medical establishment.
The case is pending.

(9)    Hadi Emin Nazari v. Turkey, no. 30748/07

      The applicant, an Afghan national, fears that if sent home he might be tortured or
executed because his family are members of the Communist Party. His brother was allegedly
granted refugee status in Sweden. On 20 July 2007 the Government were invited not to expel
the applicant.
The case is pending.




                                               12
                                 Annual Report 2007: Second Section

(10)   Kadagishvili v. Georgia, no. 12391/06

      Two of the three applicants, a father and son suffering from various pathologies and
detained in Roustavi prison no. 2, asked to be transferred to a medical establishment capable
of administering proper care. On 21 August 2007 the Government were invited to make the
transfer.
The case is pending.

(11)   Y. v. Georgia, no. 34179/07

      The applicant, who suffered from A2-type AIDS and was detained in deplorable
conditions without proper treatment, asked to be transferred to the prison hospital. On 24
August 2007 the Government were invited to administer the medical care required by the
applicant’s state of health, in an appropriate medical establishment it.
The case is pending.

(12)   Ranjbar v. Turkey, no. 37040/07

      The application concerns the expulsion of five Iranian nationals who were granted
refugee status by the Office of the UN High Commissioner for Refugees. On 28 August 2007
the Government were invited to suspend their deportation and the application was
communicated to them urgently.
The case is pending.

(13)   Dawandari v. Turkey, no. 29447/07

      The applicants are threatened with extradition to Iran, where one of them is allegedly
wanted by the authorities on account of his political activities. The other applicants, an Iranian
couple who are refugees in Turkey, are allegedly also Komala members and might face
persecution, torture and death if extradited. On 18 October 2007 the Government were
invited not to deport the applicants before 19 December 2007. The measure has been lifted.
A committee declared the application inadmissible on 11 December 2007.

(14)   Charahili v. Turkey, no. 46605/07

      The applicant, a Tunisian national, fears persecution if he returns to Tunisia. He claims
to be a member of Nahda, which is an illegal organisation in Tunisia. The Office of the UN
High Commissioner for Refugees in Ankara has granted him refugee status. On 26 October
2007 the Government were invited not to deport the applicant, and to provide factual
information.
The case is pending.

(15)   Ghaderypoor v. Turkey, no. 49662/07

      The applicant, an Iranian woman, who alleges that she would be sentenced to death if
she returned to Iran, has asked not to be deported there. She was arrested in Ankara, for illegal
entry into Turkey, as she was about to board a plane to London, where she had lived for the



                                                13
                               Annual Report 2007: Second Section

past five years and been granted refugee status. Article 39 was applied on 16 November 2007,
for one week, and extended on 21 November 2007 until further notice, with a request for
factual information from the applicant’s representative.
The application is pending.


b) Requests for priority under Rule 41 of the Rules of Court were granted in 65 cases.


VII.   THIRD-PARTY INTERVENTION (ARTICLE 36 AND RULE 44)

         Leave to submit a third-party comment was given by the President pursuant to Rule
44 § 2 of the Rules of Court in five cases.

1)     Fonkin v. Georgia, no. 21004/02

       The application deals with the impossibility, since August 1992, for the applicant to
receive his disability allowance in execution of the judgment of 22 November 1972.
       The Russian Government were authorised to intervene.

(2)    Pakkovic v. Serbia, no. 45204/04

       The applicant, a Croatian citizen, complains about not being able to use his foreign
currency savings as a result of the respondent State’s legislation.
       The Croatian Government were authorised to intervene.

(3)    Husovic & others v. Italy, no. 4830/05

      The application deals with the destruction of the applicants’ wooden house, built in a
nomad camp. The applicants, of Roma origin, are from former Yugoslavia.
      The European Roma Rights Centre (ERRC) was authorised to intervene.




                                              14
                              Annual Report 2007: Second Section

VIII. STATISTICAL INFORMATION

    1. Results for the year
    2. Results by month
    3. Applications pending
    4. Graphic charts
       (a) Judgments delivered
       (b) Inadmissibility and strike-out decisions
       (c) Admissibility decisions
       (d) Applications communicated
       (e) Applications pending by year of lodging
       (f) Applications pending by State




                                             15
                         Annual Report 2007: Second Section


                                APPENDIX 1
                      Judgments delivered in 2007
Merits                                                               341
Striking out                                                           0
Friendly settlement                                                    1
Just satisfaction                                                      2
Revision                                                               0
    Total                                                            344


                 Chamber decisions adopted in 2007
Applications declared admissible                                      23
Applications declared inadmissible                                   144
Applications struck out of the list                                  134
    Total                                                            301


                Committee decisions adopted in 2007
Applications declared inadmissible                                   3351
Applications struck out of the list                                  118
    Total                                                            3469


                 Applications communicated in 2007
    Total                                                            898


  Total cases finalised in 2007 (judgments*,
                                                                     4191
inadmissibility and strike-out decisions)



* Not including judgments on just satisfaction and revision but including judgments
which are not yet final. Some judgments dealt with a number of joined applications.




                                          16
                                     Annual Report 2007: Second Section


                                           APPENDIX 2

                                       Chambers                                                   Committees
            Judgments   Admissible   Inadmissible        Struck out       Communicated   Inadmissible     Struck out
January        44           0             25                23                110            398               16
February       12           2              5                 3                 25            78                2
March          9            0             11                 7                 43            281               6
April          18           3             12                 4                 65            199                5
May            27           4             13                13                 68            273               4
June           46           3             16                12                105            296               6
July           64           4              4                 7                 77            190               5
August         8            4              4                 5                 25             0                0
September      15           1             15                 2                181            613               27
October        26           1             13                16                 50            509               5
November       53           1             14                12                105            407               4
December       22           0             12                10                 44            107               38
   Total      344          23            144                134               898           3351               118




                                                    17
                     Annual Report 2007: Second Section




                           APPENDIX 3



             Applications pending on 31 December 2007


Total applications not yet examined                       11 530


Adjourned/Communicated for information                      468


Communicated/Adjourned                                        0


Communicated for observations                              1 676


Admissible                                                   96


Judgments not yet final                                     160


TOTAL APPLICATIONS PENDING                                13 930
(Chamber: 6,724)
(Committee: 7,206)




                                    18
                                           Annual Report 2007: Second Section


                                                         APPENDIX 4


                                                    Chart 1: Judgments delivered in 2007*


70
                                                                                                      64

60

                                                                                                                                                                       53

50
                                                                                      46
                44

40



30
                                                                         27                                                                             26
                                                                                                                                                                                      22
20                                                           18
                                                                                                                                     15
                             12
10                                         9                                                                             8



 0
                                                    ri   l                                                           t           r                  r             er             er
          ary          ary           rch         Ap                Ma
                                                                     y
                                                                               Ju
                                                                                 ne         Ju
                                                                                                 ly
                                                                                                               g   us          be           tob
                                                                                                                                                e
                                                                                                                                                                mb             mb
  Ja
       nu           bru           Ma                                                                        Au              tem           Oc               ve             ce
                  Fe                                                                                                     Sep                             No             De



                             Chart 2: Inadmissibility and strike-out decisions adopted in 2007


700
                                                                                                                                     655


600
                                                                                                                                                        543

500
                462
                                                                                                                                                                       437

400

                                                                                      330
                                           304                           303
300

                                                             220
                                                                                                      206
200
                                                                                                                                                                                      167



100                          86


                                                                                                                         9
 0
                                                    ri   l                                                           t           r                er              er             er
          ary          ary           rch         Ap                Ma
                                                                     y
                                                                               Ju
                                                                                 ne         Ju
                                                                                                 ly
                                                                                                               g   us          be           tob                 mb             mb
  Ja
       nu           bru           Ma                                                                        Au              tem           Oc               ve             ce
                  Fe                                                                                                     Sep                             No             De




                                                                              19
                                             Annual Report 2007: Second Section




                                             Chart 3: Admissibility decisions adopted in 2007

                                                                          4                            4                 4
 4



3,5


                                                               3                       3
 3



2,5


                               2
 2



1,5


                                                                                                                                     1                 1             1
 1



0,5


                0                            0                                                                                                                                      0
 0
                                                      ri   l                                                         t           r                 r            er             er
          ary            ary           rch         Ap               Ma
                                                                      y
                                                                                Ju
                                                                                  ne         Ju
                                                                                                  ly
                                                                                                               g   us          be          tob
                                                                                                                                               e
                                                                                                                                                              mb             mb
  Ja
       nu             bru           Ma                                                                      Au              tem          Oc              ve             ce
                    Fe                                                                                                   Sep                           No             De




                                                  Chart 4: Applications communicated in 2007


200

                                                                                                                                     181
180


160


140


120
                110
                                                                                       105                                                                           105
100


80                                                                                                     77
                                                               65         68

60
                                                                                                                                                       50
                                             43                                                                                                                                     44
40
                               25                                                                                        25
20


 0
                                                      ri   l                                                         t           r                 r            er             er
          ary            ary           rch         Ap               Ma
                                                                      y
                                                                                Ju
                                                                                  ne         Ju
                                                                                                  ly
                                                                                                               g   us          be          tob
                                                                                                                                               e
                                                                                                                                                              mb             mb
  Ja
       nu             bru           Ma                                                                      Au              tem          Oc              ve             ce
                    Fe                                                                                                   Sep                           No             De




                                                                               20
                                                            Annual Report 2007: Second Section




                                          Chart 5: Applications pending on 31 December 2007 by year of lodging

                                       5950
                         6000




                         5000




                         4000
Number of applications




                                                     3466


                         3000


                                                                    2066
                         2000


                                                                                  1212

                         1000                                                                    862

                                                                                                              286
                                                                                                                           48            24           14                2
                            0

                                  07            06             05            04             03           02           01            00           99             9   8
                                20            20             20            20             20           20           20           20            19           -19
                                                                                                                                                         96
                                                                                                                                                       19
                                                                                              Year of lodging




                                                 Chart 6: Applications pending on 31 December 2007 by State


                                                                                                        Belgium
                                                                      Other States                                     Georgia
                                                                                                          1%
                                                                          0%                                             2%
                                                                                                                                         Hungary
                                                                                                                                           8%




                                                                                                                                                                                    Italy
                                                                                                                                                                                    21%




                  Turkey
                   53%

                                                                                                                                                                        Lithuania
                                                                                                                                                                           3%



                                                                                                                                                               Portugal
                                                                                                                      Serbia and Montenegro                      2%
                                                                                                                               10%




                                                                                         21
   EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROPÉENNE DES DROITS DE L’HOMME




         THIRD SECTION




  ANNUAL ACTIVITY REPORT 2007




              January 2008
                                                CONTENTS

                                                                                                             Page

I.     Introduction ............................................................................................. 1

II. Composition of the Section ..................................................................... 2

III.     Hearings................................................................................................ 3

IV.      Cases relinquished to the Grand Chamber ........................................... 4

V.       Other cases of interest........................................................................... 4

VI.      Rule 39 (interim measures) and Rule 41 (priority) requests .............. 10

VII. Third-party intervention (Article 36 and Rule 44) ............................. 14

VIII. Statistical information ........................................................................ 15
                                Annual Report 2007: Third Section




I.     INTRODUCTION

       In 2007, the Section held 42 Chamber sessions (including two in the framework of the
Section’s former composition). Oral hearings were held in three cases. The Section delivered
271 judgments (including four in its former composition), of which 261 concerned the merits,
three concerned friendly settlements, three were strike-out judgments and four dealt with just
satisfaction. The Section applied Article 29 § 3 of the Convention (combined examination of
admissibility and merits) in 667 cases and 229 judgments were delivered under this
procedure.

      Of the cases examined by a Chamber

(a)   12 applications were declared admissible;
(b)   87 applications were declared inadmissible;
(c)   108 applications were struck out of the list; and
(d)   726 applications were communicated to the State concerned for observations, of which
      668 were communicated by the President.

      In addition, the Section held 51 Committee sessions. 4,925 applications were declared
inadmissible and 93 applications were struck out of the list. The total number of applications
rejected by a Committee represented 96.26% of the inadmissibility and strike-out decisions
adopted by the Section during the year.

      During the year, the Section examined 202 requests for interim measures to be applied
by virtue of Rule 39 of the Rules of Court 56 of these requests were granted.

      At the end of the year, 17 222 applications were pending before the Section.




                                               1
                            Annual Report 2007: Third Section




II.   COMPOSITION OF THE SECTION

      The Section was composed as follows:

      Boštjan M. Zupančič (Slovenian), President,
      Corneliu Bîrsan (Romanian), Vice-President,
      Jean-Paul Costa (French),
      Elisabet Fura-Sandström (Swedish),
      Alvina Gyulumyan (Armenian),
      Egbert Myjer (Dutch),
      David Thór Björgvinsson (Icelandic),
      Ineta Ziemele (Latvian),
      Isabelle Berro-Lefèvre (Monegasque), Judges,

      Santiago Quesada, Registrar,
      Stanley Naismith, Deputy Registrar




                                             2
                                 Annual Report 2007: Third Section




III.    HEARINGS

        Hearings were held in the following three cases:

(1)    Maumousseau and Washington v. France, no. 39388/05

      The application concerned the return of the first applicant’s daughter to her father in the
United States, by order of the Aix-en-Provence Court of Appeal (judgment of 13 May 2004)
based on the Hague Convention. The child was born in the United States in August 2000 and
had been habitually resident there until March 2003, when her mother decided while on
holiday in France not to return to the United States and to keep her daughter with her. The
applicants complained of a “flagrant denial of justice”.
      – Articles 6 § 1 and 8 of the Convention
      A hearing on the admissibility and merits was held on 28 June 2007. Judgment was
delivered on 6 December 2007 – no violation of Articles 6 § 1 and 8.

(2)    Kononov v. Latvia, no. 36376/04

         The application, lodged by a former non-commissioned officer in the Soviet armed
forces, concerns his sentencing to one year and eight months’ imprisonment for war crimes on
account of the massacre of some of the inhabitants of a village. At the material time, Latvia
was officially part of the Soviet Union, but was occupied by Germany. On 27 May 1944 a
platoon belonging to the Soviet army led by the applicant carried out a reprisal raid on the
Latvian village of Mazie Bati. The villagers had been issued with weapons by the German
occupying forces and the applicant’s commanding officer suspected them of having
previously handed over another detachment of Soviet partisans to the Germans. According to
the facts as established by the Latvian courts, the applicant and his men, disguised as German
soldiers, entered Mazie Bati and killed nine villagers – six men and three women, one of
whom, in the late stages of pregnancy, was burned alive. They also set fire to some buildings
and looted the village before leaving. After the restoration of Latvian independence, the
applicant was tried and convicted of “war crimes” on the basis of Article 68-3 of the former
Criminal Code, inserted in April 1993. The provision in question made explicit reference to
the “relevant legal conventions”. The Latvian courts also based their decisions on Articles 6-1
and 45-1 of the Code, inserted on the same date, which provided respectively that the criminal
law applied retrospectively to war crimes and crimes against humanity and that no limitation
period attached to the prosecution of such crimes. In the applicant’s submission, his
conviction was contrary to the requirements of Article 7 of the Convention. The Russian
Government is a third-party intervener in the proceedings before the Court.
       – Article 7 of the Convention
       A hearing on the admissibility and merits was held on 20 September 2007. The
application was declared partly admissible on 20 September 2007. Judgment will be delivered
at a later date.




                                                3
                                Annual Report 2007: Third Section

(3)   Tatar v. Romania, no. 67021/01

   The case concerns the use by a factory, during the technological process for extracting
gold, of a chemical substance (sodium cyanide) alleged to damage the ecosystem and pose a
risk to the applicants’ health.
   – Article 8 of the Convention
   The application was declared admissible on 5 July 2007. A hearing on the merits was held
on 18 October 2007. Judgment will be delivered at a later date.



IV.    CASES RELINQUISHED TO THE GRAND CHAMBER

      The Section decided to relinquish to the Grand Chamber the following cases:

(1)   N.S. v. Italy, no. 37201/06

      The application concerns the possible deportation to Tunisia of the applicant, who was
charged with international terrorism.
      It raises issues under Articles 3, 6 and 8 of the Convention and Article 1 of Protocol
No. 7.

(2)   Andrejeva v. Latvia, no. 55707/00

      The application concerns the method used to calculate retirement pensions in respect of
periods worked in the former Soviet Union before the restoration of Latvian independence.
      It raises issues under Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1.


V.     OTHER CASES OF INTEREST

      Of the judgments delivered and decisions adopted by the Section in 2007, the most
interesting included the following:

(1)   Salah Sheekh v. the Netherlands, no. 1948/04

      The application was one of a series of cases against the Netherlands concerning rejected
Somali asylum seekers in which Rule 39 was applied. The applicant complained that his
expulsion would expose him to a real risk of torture or inhuman or degrading treatment,
having regard to his personal situation of belonging to a minority in the context of the general
human rights situation in Somalia. He also alleged that he had not had an effective remedy,
given the refusal of the Netherlands authorities to suspend his expulsion pending a decision
on his administrative appeal against the manner of its implementation.
      – Articles 3 and 13 of the Convention
      Judgment of 11 January 2007 (former composition) – violation of Article 3 in the event
of expulsion; no violation of Article 13.


                                               4
                                Annual Report 2007: Third Section


(2)   Boldea v. Romania, no. 19997/02

      The case concerned the failure of the domestic courts to give reasons for decisions
convicting the applicant of defamation for accusing his university colleagues of plagiarism
and ordering him to pay an administrative fine and reimburse the complainants’ court costs.
      – Articles 6 and 10 of the Convention
      Judgment of 15 February 2007 – violation of Articles 6 and 10.

(3)   Bock and Palade v. Romania, no. 21740/02

       The application concerned interference, not provided for by law, with the applicants’
right to the peaceful enjoyment of their possessions, on account of an order by the domestic
courts granting ownership of a building which had belonged to the applicants, and the right to
use the adjoining land owned by them, to the municipal council.
       – Article 1 of Protocol No. 1
       Judgment of 15 February 2007 – violation of Article 1 of Protocol No. 1.

(4)   Geerings v. the Netherlands, no. 30810/03

      The case concerned an order for the confiscation of sums of money with the purported
aim of depriving the applicant of the proceeds of crime. The applicant had not been found
guilty of all the crimes he was charged with; he had been tried and acquitted of some of the
crimes covered by the confiscation order.
      – Article 6 § 2 of the Convention
      Judgment of 1 March 2007 – violation of Article 6 § 2

(5)   Collins and A. Akaziebie v. Sweden, no. 23944/05

      The applicants, a mother and her young daughter from Delta State in Nigeria, had their
requests for asylum refused by the Swedish authorities. They complained that, if expelled
from Sweden to Nigeria, there was a real risk that they would be subjected to female genital
mutilation.
      – Article 3 of the Convention
      Inadmissible (decision of 8 March 2007).

(6)   Kavakci v. Turkey, no. 71907/01

      The application related to the forfeiture of the applicant’s parliamentary seat after she
had been stripped of her Turkish nationality and to the restriction of her political rights
following dissolution of her party, Fazilet.
      – Article 3 of Protocol No. 1
      Judgment of 5 April 2007 (former composition) – violation of Article 3 of Protocol
No. 1




                                               5
                                 Annual Report 2007: Third Section

(7)   Spampinato v. Italy, no. 23123/04

        The application concerned the allocation of part of the applicant’s income tax either to
the State or to one of the institutions representing the six religious organisations authorised to
receive such subsidies.
      – Articles 9 and 14 of the Convention and Article 1 of Protocol No. 1
        Inadmissible (decision of 29 March 2007).

(8)   Kalanyos v. Romania, no. 57884/00, and Gergely v. Romania, no. 57885/00

      The applications concerned mob attacks against the Roma population in villages which
led to the death of two Roma, the burning of several houses belonging to Roma and the
expulsion of the Roma communities from their respective villages.
      – Articles 3, 6, 8 and 14 of the Convention
        Judgment of 26 April 2007 – striking out of the list of cases.

(9)   Dumitru Popescu v. Romania (no. 2), no. 71525/01

      The application concerned the allegedly illegal interception of the applicant’s telephone
calls by the intelligence services and the use of the transcripts as evidence in the criminal
proceedings against him for smuggling cigarettes and conspiracy. The case had received
widespread media coverage in Romania on account of the involvement of certain
high-ranking officials in a vast cigarette-smuggling operation in 1998 based in a Romanian
military airport.
      – Articles 6 and 10 of the Convention
        Judgment of 26 April 2007 – violation of Article 10; no violation of Article 6.

(10) Esposito v. Italy, no. 34971/02

      The application concerned the immunity conferred on members of the Judicial Service
Commission in respect of any views expressed “in the exercise of their duties and in relation
to the subject under discussion”.
      – Articles 6 § 1 and 8 of the Convention
      Inadmissible (decision of 5 April 2007).

(11) Dragotoniu and Militari-Pidhorni v. Romania, no. 77913/01

        The applications concerned the criminal conviction of the two applicants for accepting
bribes, based on a broad interpretation (by analogy) of the criminal law. The applicants
complained that they had been convicted on account of acts which, at the time they were
committed, had not constituted an offence under national or international law. They further
complained that they had been placed in pre-trial detention although there was no reasonable
suspicion that they had committed an offence.
        – Article 7 § 1 of the Convention
        Judgment of 24 May 2007 – violation of Article 7 § 1.




                                                6
                                Annual Report 2007: Third Section


(12) Dupuis and Others v. France, no. 1914/02

      This case concerned the conviction of the applicants (two journalists and the publishing
company which published their book) for breaching the confidentiality of the investigation,
following a complaint made against them by an individual (a former aide of President
Mitterrand) placed under investigation in the so-called “Elysée eavesdropping” case, on
account of the publication of documents from the judicial investigation file in a book about
the case.
        – Article 10 of the Convention
      Judgment of 7 June 2007 – violation of Article 10.

(13) Šilih v. Slovenia, no. 71463/01

       The case concerns the death of the applicants’ son due to alleged medical negligence,
and the subsequent proceedings. The applicants complain that their son died as a result of
negligence by medical practitioners and that the criminal and civil proceedings instituted did
not allow for the prompt and effective establishment of responsibility. They allege that the
failure of the domestic judicial authorities to deal properly with their case amounted to
humiliating and degrading treatment, which led to their early retirement on the grounds of
disability, and that their criminal complaint against the doctor who treated their son led to
hostility on the part of the hospital which compelled them to seek medical care elsewhere.
       – Article 2 of the Convention
      Judgment of 28 June 2007 – violation of Article 2 (procedural)
       The case was subsequently referred to the Grand Chamber.

(14) Harutyunyan v. Armenia, no. 36549/03

     The case concerned the use of confession statements obtained from the applicant and
two main witnesses under torture in the criminal proceedings against him.
     – Article 6 § 1 of the Convention
     Judgment of 28 June 2007 – violation of Article 6

(15) Sara Lind Eggertsdóttir v. Iceland, no. 31930/04

      The case concerned the alleged lack of a fair hearing before an impartial tribunal on
account of the composition of the State Medico-Legal Board (SMLB) when providing an
opinion to the Supreme Court in a case concerning medical negligence (soon after the
applicant’s birth at the University Hospital it became clear that she was severely handicapped
both physically and mentally). In particular, certain members of the Board had links to the
hospital.
      – Article 6 § 1 of the Convention
      Judgment of 5 July 2007 – violation of Article 6 § 1




                                               7
                                Annual Report 2007: Third Section


(16) Feyzi Yıldırım v. Turkey, no. 40074/98

      The case concerned the applicant’s allegations that his father, Mr Emin Yıldırım, died
of complications following a brain haemorrhage as a result of blows inflicted on him a month
earlier by the commanding officer of Çermik gendarmerie. The applicant also complained that
the ensuing investigation had been inadequate and that the criminal justice system had
ultimately granted impunity to the gendarmerie command.
      – Article 2 of the Convention
      Judgment of 19 July 2007 – violation of Article 2 (procedural).

(17) Hirschhorn v. Romania, no. 29294/02

        The application concerned the failure to enforce a final domestic judgment ordering
the administrative authorities to return to the applicant a building occupied by the United
States Peace Corps. The applicant alleged that the non-enforcement of the final judgment had
infringed his right to a court and that the civil division of the Bucharest Court of Appeal had
not been an “independent and impartial” tribunal on account of the intervention of the
President of the Court of Appeal, through the intermediary of the inspecting judge, in order to
influence the outcome of the proceedings pending before that court. The applicant further
alleged that his right to the peaceful enjoyment of his possessions had been infringed as he
had been unable to have the final judgment enforced, that the principle of equality of arms
had been breached as a result of the refusal of the Court of Appeal to adjourn the hearing and
that he had been the victim of discrimination on account of his Jewish origin.
      – Article 6 of the Convention and Article 1 of Protocol No. 1
      Judgment of 26 July 2007 – violation of Article 6 and Article 1 of Protocol No. 1.

(18) Schmidt v. France, no. 35109/02

      This case concerned the placing of the applicants’ daughter in the care of the health and
social affairs department and then with her paternal grandparents. The child had remained in
care for approximately seven years until her mother, a New Zealand national, taking
advantage of the residential contact she had been granted, left France with her daughter for
Northern Ireland, where she was living.
      – Articles 6, 8 and 13 of the Convention
      Judgment of 26 July 2007 – no violation of Article 8; violation of Article 6 § 1 and of
Article 6 § 1 combined with Article 13.

(19) Cobzaru v. Romania, no. 48254/99

      The case concerned the ill-treatment to which the applicant had allegedly been
subjected by the police.
      – Articles 3, 13 and 14 of the Convention
        Judgment of 26 July 2007 – violation of Articles 3, 13 and 14.




                                               8
                                 Annual Report 2007: Third Section

(20) Zaicevs v. Latvia, no. 65022/01

      The application concerned the sentencing of the applicant to three days’ “administrative
detention” for contempt of court (not classified as a criminal offence under domestic law).
      – Article 6 of the Convention and Article 2 of Protocol No. 7
      Judgment of 31 July 2007 – no violation of Article 6; violation of Article 2 of Protocol
No. 7

(21) Sevinger and Eman v. the Netherlands, nos. 17173/07 and 17180/07

      The applicants complained about the fact that they were excluded from participation in
elections to the Lower House of the Netherlands Parliament, although the Lower House has
legislative powers in relation to Kingdom matters, which also concern Aruba. They further
complained that their exclusion from eligibility to vote in the elections to the Lower House of
the Netherlands Parliament, on the ground that they were residents of Aruba, constituted
discrimination, since other Netherlands nationals not resident in the Netherlands did have that
voting right.
      Article 3 of Protocol No. 1 and Article 14 of the Convention
      Inadmissible (decision of 6 September 2007)

(22) Sultani v. France, no. 45223/05

       The applicant challenged the measures taken for his removal from France and argued
that if he were returned to Afghanistan he would run the risk of being subjected to inhuman or
degrading treatment. He alleged, in particular, that the hostility of the ruling authorities in his
province of origin, based on ethnic and political factors, had forced him and his family to flee
Afghanistan twice in fear of their lives.
       – Article 3 of the Convention and Article 4 of Protocol No. 4
       Judgment of 20 September 2007 – no violation of Article 3 or of Article 4 of Protocol
No. 4

(23) Corcuff v. France, no. 16290/04

      The application concerned the fairness of proceedings before the Assize Court of
Appeal. The applicant complained that the principal public prosecutor in the proceedings
against him had also been present at the information meeting for jurors the day before the trial
began in the Assize Court of Appeal.
      – Article 6 of the Convention
      Judgment of 4 October 2007 – no violation of Article 6

(24) Perry v. Latvia, no. 30373/03

      The applicant had been granted a Latvian residence permit but prohibited from
organising public religious activities. He complained of unlawful and disproportionate
interference with the exercise of his right to freedom of religion, in particular of his right to
“manifest his religion”.
        – Article 9 of the Convention
        Judgment of 8 November 2007 – violation of Article 9

                                                9
                                Annual Report 2007: Third Section


(25) Galstyan v. Armenia, no. 26986/03

        The application concerned the imposition of an administrative sanction –
administrative detention – for a minor offence (participation in a demonstration) and raised
issues in particular with regard to the right to a fair and public hearing by an impartial
tribunal, freedom of peaceful assembly and the lack of a possibility of appeal against the
decision imposing the sanction.
        – Article 6 §§ 1 and 3 and Article 11 of the Convention, and Article 2 of Protocol
No. 7
        Judgment of 15 November 2007 – no violation of Article 6 § 1 with regard to the right
to a fair and public hearing by an impartial tribunal; violation of Article 6 § 1 taken together
with Article 6 § 3(b); violation of Article 11; violation of Article 2 of Protocol No. 7

(26) Beian v. Romania, no. 30658/05

     The application concerned the contradictory case-law of the High Court of Cassation
and Justice with regard to the payment of a benefit. The applicant complained that the
proceedings had been unfair and that he had been discriminated against compared with other
persons in a similar situation.
       – Article 6 § 1 of the Convention and Article 14 of the Convention taken in
conjunction with Article 1 of Protocol No. 1
       Judgment of 6 December 2007 – violation of Article 6 § 1 and Article 14 in
conjunction with Article 1 of Protocol No. 1

(27) Islamic Republic of Iran Shipping Lines v. Turkey, no. 40998/98

       The application concerned the arrest and detention by the Turkish authorities of a
Cypriot-owned vessel of which the applicant company was time charterer.
       – Article 1 of Protocol No. 1
       Judgment of 13 December 2007 – violation Article 1 of Protocol No. 1


VI.    RULE 39 (INTERIM MEASURES) AND RULE 41 (PRIORITY) REQUESTS

      (a) Requests for interim measures pursuant to Rule 39 were granted in 56 cases. 23 of
         these concerned the threatened return of Tamils to Sri Lanka.


      (b) Requests for priority pursuant to Rule 41 of the Rules of Court were granted in
          99 cases in 2007, including 56 of the Rule 39 cases. Most of the applications had an
          element of individual urgency, such as an imminent deportation, child custody
          litigation or access, the conditions of a prisoner’s detention or an applicant’s
          advanced age or critical state of health.




                                               10
                                Annual Report 2007: Third Section




VII.   THIRD-PARTY INTERVENTION (ARTICLE 36 AND RULE 44)

       Leave to submit third-party comments was given by the President pursuant to Rule 44 §
2 of the Rules of Court in the following cases:

1)      Elezaj v. Sweden, no. 17654/05

On 19 March 2007 to the Government of Albania.
(The application was declared inadmissible on 20 September 2007.)

(2)     Agnidis v. Turkey, no. 21668/02

On 7 May 2007 to the Government of Greece.

(3)     Fokas v. Turkey, no. 31026/02

On 5 September 2007 to the Government of Greece.

(4)     Makuc and Others v. Slovenia, no. 26828/06

On 3 September 2007 to the Peace Institute and the Legal Information Centre for NGOs, the
Open Society Justice Initiative and the Equal Rights Trust.
On 17 September 2007 to the Government of Serbia.




                                               11
                              Annual Report 2007: Third Section




VIII. STATISTICAL INFORMATION

    1. Results for the year
    2. Results by month
    3. Applications pending
    4. Graphic charts
       (a) Judgments delivered
       (b) Inadmissibility and strike-out decisions
       (c) Admissibility decisions
       (d) Applications communicated
       (e) Applications pending by year of lodging
       (f) Applications pending by State




                                             12
                         Annual Report 2007: Third Section


                               APPENDIX 1
                       Judgments delivered in 2007
  Merits                                                               261
  Striking out                                                          3
  Friendly settlement                                                   3
  Just satisfaction                                                     4
  Revision
    Total                                                              271


                  Chamber decisions adopted in 2007
  Applications declared admissible                                     12
  Applications declared inadmissible                                   87
  Applications struck out of the list                                  108
    Total                                                              207


                 Committee decisions adopted in 2007
  Applications declared inadmissible                                  4925
  Applications struck out of the list                                  93
    Total                                                             5018


                  Applications communicated in 2007
    Total                                                              726




  Total cases finalised in 2007 (judgments*,
                                                                      5480
  inadmissibility and strike-out decisions)


* Not including judgments on just satisfaction and revision but including judgments
which are not yet final. Some judgments dealt with a number of joined applications.




                                         13
                                     Annual Report 2007: Third Section


                                          APPENDIX 2

                                     Chambers                                                    Committees
            Judgments   Admissible   Inadmissible        Struck out      Communicated   Inadmissible    Struck out
January        17           3             5                  1               80             307               6
February       27           1             3                 13               49             256               4
March          18           0             4                  9               61             352               5
April          23           0             4                  5               41             255               3
May            23           0             8                 10               105            677               10
June           30           2             6                  8               67             509               8
July           28           1             5                  7               85             107               1
August         0            0            11                  9               29              0                0
September      14           2            18                 12               47             769               11
October        23           0            12                 18               90             612               10
November       32           2             7                 15               42             658               22
December       36           1             4                  1               30             423               13
 Total        271          12            87                 108              726           4925               93




                                                    14
                 Annual Report 2007: Third Section


                      APPENDIX 3

        Applications pending on 31 December 2007


Total applications not yet examined                  15 490


Adjourned/Communicated for information                187


Communicated/Adjourned                                 1


Communicated for observations                        1 286


Admissible                                            103


Judgments not yet final                               155


TOTAL APPLICATIONS PENDING                           17 222
 (Chamber: 7 869)
 (Committee: 9 353)




                                15
                                                         Annual Report 2007: Third Section


                                                                           APPENDIX 4

                                                             Chart 1: Judgments delivered in 2007


40

                                                                                                                                                                                                                         36
35
                                                                                                                                                                                                     32
                                                                                                   30
30
                                                                                                                28
                                  27

25
                                                                      23          23                                                                                            23


20
                                                    18
                17

15                                                                                                                                                         14



10



 5


                                                                                                                                    0
 0
           ry                ry                              ri   l           y                e           ly                st                        r                   er                   er                  er
        ua              ru a               rc h           Ap                Ma              un           Ju                gu                   mb
                                                                                                                                                   e
                                                                                                                                                                     tob                   mb                   b
  Ja
    n               b                   Ma                                              J                             Au                 p te                   Oc                    ve                     em
                  Fe                                                                                                                Se                                           No                   De
                                                                                                                                                                                                         c




                                   Chart 2: Inadmissibility and strike-out decisions adopted in 2007


900

                                                                                                                                                           810
800

                                                                                  705                                                                                                                702
700
                                                                                                                                                                                652

600
                                                                                                   531

500
                                                                                                                                                                                                                         441

400                                                 370
                319
300                               276                                 267


200

                                                                                                                120
100

                                                                                                                                    20
 0
                                                             ri   l                                                             t                      r                   er                   er                  er
         a ry              ary             rc   h
                                                          Ap                Ma
                                                                              y
                                                                                        Ju
                                                                                             ne          Ju
                                                                                                           ly
                                                                                                                         g   us                 mb
                                                                                                                                                   e
                                                                                                                                                                     tob                   mb                   b
    nu              b ru                Ma                                                                            Au                                                                                     em
  Ja              Fe                                                                                                                     p te                   Oc                    ve                 c
                                                                                                                                    Se                                           No                   De




                                                                                                   16
                                                          Annual Report 2007: Third Section




                                                     Chart 3: Admissibility decisions adopted in 2007
                3
 3




 3



                                                                                                   2                                                     2                                        2
 2




 2



                                    1                                                                          1                                                                                                     1
 1




 1



                                                     0                 0          0                                               0                                           0
 0
           ry                  ry                             ri   l          y                e          ly               st                     r                      r                   er                 er
        ua                ru a              rc h           Ap               Ma              un          Ju               gu                    be                     be                mb                  b
  Ja
    n                 b                  Ma                                             J                           Au                     te m                   c to             ve                    em
                    Fe                                                                                                            Se
                                                                                                                                       p                      O
                                                                                                                                                                              No                  De
                                                                                                                                                                                                     c




                                                          Chart 4: Applications communicated in 2007


120


                                                                                  105

100
                                                                                                                                                                              90
                                                                                                               85
                80
80

                                                                                                   67
                                                     61
60

                                    49
                                                                                                                                                         47
                                                                       41                                                                                                                         42
40

                                                                                                                                  29                                                                                 30


20




 0
                                                              ri   l                                                          t                      r                   er                  er                 er
         a ry                ary            rc   h
                                                           Ap               Ma
                                                                              y
                                                                                        Ju
                                                                                             ne         Ju
                                                                                                          ly
                                                                                                                       g   us                 mb
                                                                                                                                                 e
                                                                                                                                                                   tob                  mb                  b
    nu                b ru               Ma                                                                         Au                                                                                   em
  Ja                Fe                                                                                                                 p te                   Oc                   ve                c
                                                                                                                                  Se                                          No                  De




                                                                                                   17
                                                                                              Annual Report 2007: Third Section



                                              Chart 5: Applications pending on 31 December 2007 by year of lodging


                         5000
                                       4636
                         4500


                         4000


                         3500
Number of applications




                         3000


                         2500
                                                         2248
                                                                          2060
                         2000


                         1500
                                                                                       1039
                         1000

                                                                                                        443
                          500
                                                                                                                     108          53                                                               40
                                                                                                                                                 26               9              7
                            0
                                  06                05               04               03           02           01           00             99               98             97                96
                                20             20               20               20           20              20           20          19               19             19               -19
                                                                                                                                                                                   90
                                                                                                                                                                                 19
                                                                                                          Year of lodging




                                                         Chart 6: Applications pending on 31 December 2007 by State

                                                                                 Other States
                                                                                                                           Armenia
                                                                                     1%
                                                                                                                             4%
                                                                          Turkey
                                                                           10%                                                                        France
                                          Sweden                                                                                                       13%
                                            2%




                                                                                                                                                                  Latvia
                                        Slovenia                                                                                                                   4%
                                          16%
                                                                                                                                                                   Netherlands
                                                                                                                                                                       2%




                                                                                                                              Romania
                                                                                                                                48%




                                                                                                                                   18
   EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROPÉENNE DES DROITS DE L’HOMME




        FOURTH SECTION




  ANNUAL ACTIVITY REPORT 2007




              January 2008
                                 Annual Report 2007: Fourth Section


                                              CONTENTS

                                                                                                            Page

I.      Introduction .......................................................................................... 1

II.     Composition of the Section .................................................................. 2

III.    Hearings................................................................................................ 3

IV.     Cases relinquished to the Grand Chamber ........................................... 4

V.      Interesting judgments and decisions/Other cases of interest ................ 6

VI.     Rule 39 (interim measures) and Rule 41 (priority) requests .............. 17

VII. Third-party intervention (Article 36 and Rule 44) ............................. 19

VIII. Statistical information ........................................................................ 22
                        Annual Report 2007: Fourth Section




I.        INTRODUCTION

   In 2007, the Section held 39 Chamber sessions. Oral hearings were held
in one case. The Section delivered 333 judgments of which 292 concerned
the merits and 24 concerned friendly settlements. Article 29 § 3 of the
Convention (combined examination of admissibility and merits) was
applied in 521 cases and 257 judgments were delivered under this
procedure.

      Of the cases examined by a Chamber

(a)     273 applications were declared admissible;
(b)     77 applications were declared inadmissible;
(c)     283 applications were struck out of the list; and
(d)     550 applications were communicated to the State concerned for
        observations of which 479 were communicated by the President by
        virtue of the above-mentioned Article 29 § 3 procedure.

   In addition, the Section held 45 Committee sessions. 5049 applications
were declared inadmissible and 75 applications were struck out of the list.
The total number of applications rejected by a Committee represented
93.44 % of the inadmissibility and strike-out decisions taken by the Section
during the year.

  At the end of the year, 9036 applications were pending before the
Section.




                                        1
                      Annual Report 2007: Fourth Section


II.    COMPOSITION OF THE SECTION

Sir Nicolas Bratza (British), President,
Josep Casadevall (Andorran), Vice-President,
Giovanni Bonello (Maltese),
Kristaq Traja (Albanian),
Stanislav Pavlovschi (Moldovan),
Lech Garlicki (Polish),
Ljiljana Mijović (citizen of Bosnia and Herzegovina),
Ján Šikuta (Slovakian),
Paivi Hirvelä (Finnish), Judges,

Lawrence Early, Registrar,
Fatoş Araci, Deputy Registrar.




                                      2
                      Annual Report 2007: Fourth Section




III.    HEARINGS

   A hearing on the merits was held in the following case:

       Urbarska Obec Trencianske Biskupice v. Slovakia, no. 74258/01

   Under the communist regime in Czechoslovakia, the authorities approved
the setting up of garden allotments on the land owned by the predecessors of
the members of the applicant association. Under the Landownership Act
1991 the owners of the land were entitled to charge rent to the gardeners and
to recover full possession of the land on the expiry of the lease. Between
1998 and 2002 the property tax on the land amounted to 0.44 Slovakian
koruna (SKK) per m² and, following the entry into force of Act 64/1997, the
gardeners paid SKK 0.3 per m² in rent.
   On 22 July 1998 the individual gardeners using the land brought
proceedings under Act 64/1997 to have the ownership of the land
transferred to them. As a result, on 11 February 2002 a consolidation plan
was approved, which valued part of the applicant's land (on the date the
allotments had been created) at SKK 6.1 per m² and part at SKK 6.9 per m².
The applicant association was to be provided with land in compensation
valued at SKK 9 per m². The gardeners subsequently paid the purchase
price for the 25711 hectares of the applicant's land to the Slovakian Land
Fund and became the new owners. On 1 October 2002 the applicant
association received 1.4097 hectares of land in compensation. At the time of
transfer of ownership the market value of the land acquired by the gardeners
was assessed at approximately SKK 300 per m² and the general value of the
land which the applicant association received in compensation at
approximately SKK 110 per m².
   – Article 1 of Protocol No. 1.
   – Admissible (decision of 12 September 2006). A hearing on the merits
was held on 9 January 2007.
   – Judgment of 27 November 2007 – violation – Article 1 of Protocol
No. 1 - Article 41 reserved.




                                      3
                        Annual Report 2007: Fourth Section




IV.    CASES RELINQUISHED TO THE GRAND CHAMBER

   The Section decided to relinquish to the Grand Chamber the following
cases:

(1)   A. and Others v. the United Kingdom, no. 3455/05

   The case concerns the applicants’ open-ended detention under special
anti-terrorist legislation based on an Article 15 derogation which the United
Kingdom Government had deposited with the Secretary General of the
Council of Europe. The applicants – 11 in all- are non-UK nationals who
were suspected of having links to terrorism. They could not be deported to
their countries of origin as it was feared that there was a substantial risk that
they would be subjected to treatment proscribed by Article 3 of the
Convention in their receiving countries. They could not be released from
detention on account of the alleged threat which they represented to national
security in the United Kingdom. In a judgment of the House of Lords it was
found that the domestic derogation order was discriminatory in its
application and the order was for that reason quashed.
   – Articles 3, 5 § 1, 13, 14 and 15 of the Convention.
   Third party: Liberty.
   The case is pending before the Grand Chamber.
   Relinquished to Grand Chamber on 10 July 2007.

(2)   S. v. the United Kingdom, no. 30562/04
      Marper v. the United Kingdom, no. 30566/04

   The applicants were charged with robbery (S.) and harassment (Marper).
Fingerprints and DNA samples were taken from them. S. was acquitted and
the proceedings against Marper were discontinued. Subsequently, they
requested the destruction of the samples, but the police refused. The House
of Lords found that the interference was modest in its effect and that the
retention of the data was limited to purposes related to the prevention or
detection of crime, which confined the permissible use which could be made
of the data. The applicants maintain that the continued retention of their
fingerprints and DNA samples and profiles violates their right to respect for
their private life.
   – Articles 8 and 14 of the Convention.
   – Admissible (decision of 16 January 2007).
   Third party: Liberty.
   The cases are pending before the Grand Chamber.
   Relinquished to Grand Chamber on 10 July 2007.




                                        4
                       Annual Report 2007: Fourth Section



(3)   Guja v. Moldova, no. 14277/04

   The applicant worked as head of the press department at the Office of the
Prosecutor General. The applicant forwarded to a newspaper two letters
which had been sent by the Deputy Speaker of the Parliament to the
Prosecutor General. These letters, which were published by the newspaper,
suggested that the Deputy Speaker had tried to influence the course of a
criminal investigation into allegations of police brutality. The applicant was
dismissed on the grounds, among other things, that the letters had been
secret and that he had failed to consult the heads of other departments of the
Prosecutor General’s Office before handing over the letters, in breach of the
press department’s internal regulations. The applicant unsuccessfully
instituted civil proceedings seeking reinstatement, claiming that the letters
in question had not been classified secret and that he had acted as he did in
order to maintain the integrity of the Office of the Prosecutor General
against the threat of corruption.
   The applicant contends that his dismissal amounted to a breach of his
right to impart information, as guaranteed by Article 10 of the Convention.
   – Articles 10 and 6 of the Convention.
   The case is pending before the Grand Chamber.
   Relinquished to Grand Chamber on 20 February 2007.

(4)   N. v. the United Kingdom, no. 26565/05

    The applicant, an asylum seeker from Uganda, was refused asylum by
the United Kingdom authorities. The applicant is HIV positive and is
undergoing treatment in the United Kingdom for her condition. The
applicant alleges that her removal to Uganda would violate Article 3 as she
would not have access to equivalent anti-viral treatment in Uganda and her
life expectancy would be considerably curtailed in consequence.
    – Articles 3 and 8 of the Convention.
    The case is pending before the Grand Chamber.
    Relinquished to Grand Chamber on 22 May 2007.




                                       5
                       Annual Report 2007: Fourth Section




V.     INTERESTING     JUDGMENTS       AND    DECISIONS/OTHER     CASES    OF
       INTEREST


  Of the judgments delivered and decisions adopted by the Section, the
most interesting included the following:

(1)   Salgin v. Turkey, no 46748/99

   The case concerns the death of the applicant's son during his military
service. After an extensive investigation he was considered to have suffered
from psychological problems and had taken his life. The death was
registered as suicide but the applicant claimed that his son was killed due to
his Kurdish origins and that the investigation was deficient since his lawyer
was refused access to documents and that he, the applicant, was denied his
right to participate in the investigation.
   – Article 2 combined with Articles 14 and 13 of the Convention.
   – Judgment of 20 February 2007 - violation of Article 2 only as regards
the authorities’ failure to comply with their procedural obligations.

(2)   Associated Society of Locomotive Engineers & Firemen (ASLEF)
      v. the United Kingdom, no. 11002/05

   The case concerned the requirement for a trade union to readmit a
member whom it had expelled because he belonged to an extreme-right
wing political party which advocated views which were incompatible with
the general philosophy of the trade union. A domestic court had found in
favour of the member on the ground that section 174 of the Trade Union and
Labour Relations (Consolidation) Act 1992 prohibited the expulsion of
members on account of their membership of political parties.
   The applicant claimed that the obligation imposed on it to readmit the
member interfered with its right to freedom of association guaranteed by
Article 11 of the Convention.
   – Article 11 of the Convention.
   – Judgment of 27 February 2007 – violation of Article 11 of the
Convention.

(3)   Huohvanainen v. Finland, no. 57389/00

    The case concerned the death of the applicant's 27-year-old brother, J.,
who was shot dead by police officers at close range following a house siege
on an island lasting two days. The deceased, who had been heavily armed,
had repeatedly fired at the police and a police helicopter and eventually set
fire to the house. He crawled out of the house with two weapons. He was hit
by two shots fired simultaneously from an armoured vehicle, at a range of
six metres. Both shots were aimed at his shoulder and arm, but owing to his


                                       6
                       Annual Report 2007: Fourth Section


position, the firing angle through the porthole of the armoured vehicle and
the short time available, he was hit in the head and died shortly afterwards.
   An investigation was carried out. Less than a year after the incident, the
Public Prosecutor brought charges against Superintendent H., commander
of the special task force, of negligent homicide and negligent breach of
official duty.
   – Article 2 of the Convention.
   – Judgment of 13 March 2007 – no violation of Article 2 either as
regards the use of force or the adequacy of the investigation into the death
of J.

(4)   Castravet v. Moldova, no. 23393/05

   The applicant was arrested by the Centre for Fighting Economic Crime
and Corruption (CFECC) on charges of embezzlement. He had no criminal
record. The applicant was detained in the CFECC remand centre from 25
May 2005 until 11 October 2005 when he was released. Relying on Article
5 §§ 3 and 4 of the Convention, the applicant complained about the lack of
relevant and sufficient reasons for his detention on remand or for refusing
his applications for release, and that he was unable to confer in private with
his lawyers about his habeas corpus proceedings due to the existence of a
glass partition in the CFECC lawyer-detainee meeting room. According to
the applicant, he and his lawyer had to shout to make themselves heard and,
moreover, there was no aperture in the glass petition to allow them to
exchange documents.
   – Articles 5 §§ 3 and 4 of the Convention.
   Judgment of 13 March 2007 – violation of Article 5 §§ 3 and 4 of the
Convention.

(5)   Tysiac v. Poland, no. 5410/03

   The applicant suffered for many years from severe myopia and requested
a certificate authorising the termination of her pregnancy. The request was
refused on the ground that although the retina might detach itself as a result
of pregnancy, it was not certain and there were no medical grounds for
performing a therapeutic abortion. The applicant was therefore unable to
have her pregnancy terminated. Following the delivery of her child, the
applicant’s eyesight deteriorated considerably as a result of what was
diagnosed as a retinal haemorrhage. The applicant lodged a criminal
complaint against a doctor, R.D., who had refused to terminate the
pregnancy, but the investigation was discontinued by the district prosecutor
on the ground that there was no causal link between the doctor’s decision
and the deterioration of the applicant’s eyesight. Moreover, no disciplinary
action was taken against the doctor. The applicant, who is raising her three
children alone, is now registered as significantly disabled and on that
account receives a monthly pension equivalent to 140 euros. She cannot see



                                       7
                       Annual Report 2007: Fourth Section


objects more than 1.5 metres away and fears that she will eventually
become blind.
   – Articles 3, 8, 13 and 14 of the Convention.
   – Judgment of 20 March 2007 - violation of Article 8 of the Convention.

(2)   Copland v. the United Kingdom, no. 62617/00

    The case concerned the monitoring at the request of the Deputy Principal
of a State-funded college, of an employee's use of the telephone, internet
and e-mail at work. According to the Government, monitoring had been
necessary in order to ascertain whether the applicant was making excessive
use of college facilities for personal purposes. The applicant claimed that
the monitoring breached her right to respect for her private life and that she
had no effective remedy in this connection In particular, she contended that
at the material time there was no legal basis to regulate such monitoring.
    – Articles 8 and 13 of the Convention.
    Judgment of 3 April 2007 - violation of Article 8 of the Convention.

(7)   Lombardo and Others v. Malta, no. 7333/06

   The applicants were elected councillors. During a council meeting the
applicants unsuccessfully tabled a motion calling for a public meeting to be
held about a road project. Later the applicants published an article in the
local newspaper, referring to the disagreement about the project and stating
that the council “had not consulted the public” and was “ignoring public
opinion” on the matter. As a result, the council sued the applicants as well
as the editor of the newspaper, who was also an applicant. The applicants
challenged that claim, arguing that the article amounted to fair comment in
view of the rejection of their motion to hold a public meeting. In their
opinion, the council's efforts to examine the issues relating to the dispute
had not involved public consultation. The applicants were eventually
ordered to pay approximately EUR 4,800 in damages.
   The applicants maintained that there right to freedom of expression had
been breached.
   – Article 10 of the Convention.
   Judgment of 24 April 2007 - violation of Article 10 of the Convention.

(8)   Matyjek v. Poland, no. 38184/03

   The applicant, who had been a member of parliament, declared that he
had not collaborated with the communist-era secret services. The
declaration was made pursuant to a 1997 law on disclosing work for or
service in the State’s security services or collaboration with them between
1944 and 1990 by persons exercising public functions. In 1999 proceedings
were instituted against him on the ground that he had lied in his declaration
by denying his cooperation with the secret services. The applicant was
found guilty of having made a false lustration declaration and was deprived
of his MP status and prevented from engaging in certain other public

                                       8
                        Annual Report 2007: Fourth Section


functions for a 10-year period. He complained that the proceedings were
unfair since he was placed at a serious disadvantage vis à vis the Public
Interest Commissioner who had brought the case against him, with the
result that he could not defend himself adequately. He highlighted in
particular the restrictions on his ability to consult his file, to take notes from
it and to make notes at the hearings.
    – Admissible (decision 30 May 2006).
    – Article 6 § 1 in conjunction with Article 6 § 3 of the Convention.
    Judgment of 24 April 2007 – violation of Article 6 of the Convention.

(9)   Baczkowski and others v. Poland, no. 1543/06

   The applicants, a group of individuals and a Foundation, requested the
Warsaw Town Hall permission to organise an anti-discrimination
march/assemblies. The intention of the applicants was to alert public
opinion to the issue of discrimination against various minority groups
(including homosexuals) and women. Citing road traffic regulations and the
risk of violent clashes with other demonstrators, the authorities refused
permission for the march and some of the meetings. Shortly before the date
scheduled for the demonstrations the Mayor of Warsaw said in an interview
with a Polish national newspaper that he would refuse the applicants'
request in all circumstances and that, in his view, “propaganda about
homosexuality is not tantamount to exercising one's freedom of assembly”.
The applicants went ahead with their planned march despite the refusal and
demonstrations and meetings organised by various other groups were
allowed to proceed. Although the municipal authorities' decisions were
subsequently quashed on appeal, the applicants argued that the remedy had
come too late as the dates planned for the demonstrations had already
passed.
   The applicants claimed that, as regards their right to freedom of
assembly, they were treated in a discriminatory manner due to their
homosexuality and, in view of the circumstances of their case, they had no
effective remedy to vindicate that right.
   - Articles 11, 13 and 14 of the Convention.
   Judgment of 3 May 2007 - violation of Articles 11, 13 and 14 of the
Convention.




                                        9
                       Annual Report 2007: Fourth Section



(10) Runkee v. the United Kingdom, no. 42949/98
     White v. the United Kingdom, no. 53134/99

   The applicants complained that, as men, they were not entitled to receive
widows’ benefits, including Widow’s Pension and a lump sum Widow’s
Payment, equivalent to those available to comparable bereaved women. The
applicants maintained that this state of affairs discriminated against them
both as regards their enjoyment of their right to right to respect for private
and family life and the protection of their property right.
   – Article 14 of the Convention in conjunction with both Article 8 and
Article 1 of Protocol No. 1 to the Convention.
   Judgment of 10 May 2007 – no violation of Article 14 in conjunction
with Article 1 of Protocol No 1 to the Convention as regards the applicants’
non-entitlement to a Widow’s Pension; violation as regards their non-
entitlement to a lump sum Widow’s Payment.

(11) Kanala v. Slovakia, no. 57239/00

   In 1991 the applicant acquired a property at an auction. He took out two
loans to buy and to reconstruct the buildings. Subsequently he was unable to
pay the instalments to the bank. In 1998, pursuant to a court decision, the
executions officer ordered the sale of the applicant’s share in the property at
a public auction. The auction was cancelled after the other co-owner used
his pre-emption right and acquired the applicant’s share in the property by
depositing a sum corresponding to the value of the applicant’s share as
determined by an expert in accordance with the relevant regulation. The
valuation did not reflect the market value of the property. The applicant’s
objections were dismissed.
   The applicant complained that his property had been sold to the co-
owner, in the context of enforcement of his debt, at a price which was below
its actual value. In his submission, this amounted to a disproportionate
interference with his right to respect for his property as guaranteed by
Article 1 of Protocol No. 1 to the Convention.
   – Article 1 of Protocol No. 1 to the Convention.
   Judgment of 10 July 2007 – violation of Article 1 of Protocol No. 1 to
the Convention - Article 41 reserved.

(12) Bimer S.A. v. Moldova, no. 15084/03

   The applicant, Bimer S.A., is a company based in the Republic of
Moldova. The applicant company complained that the closure of its frontier
duty free shop and bar pursuant to new customs regulations constituted a
breach of its property rights. It maintained that its business was protected
for ten years under the “customs, tax and other incentives” of the Tax and
Foreign Investment Act and that the new measures had disregarded this
protection with the result that the interference was not lawful. The Court of
Appeal twice accepted that argument and found for the applicant. The

                                      10
                       Annual Report 2007: Fourth Section


Supreme Court however found that there had been no interference since the
applicant could operate its duty-free business at airport terminals and on
board aircraft and was not prevented from carrying out other activities. It
did not contradict the Court of Appeal’s view on the issue of legality.
    The applicant argued under Article 1 of Protocol No. 1 that it had to bear
an excessive and individual burden as a result of the impugned measures
and that a fair balance had not been struck between the public interest and
its individual rights.
    – Article 1 of Protocol No. 1 to the Convention.
    Judgment of 10 July 2007 – violation of Article 1 of Protocol No. 1 to
the Convention.

(13) Johansson v. Finland, no. 10163/02

   The applicants wished to have their son registered under the name “Axl
Mick”. The local population registration authority refused to register the
forename “Axl” as the spelling of that did not comply with the Names Act.
The applicants pointed out that the forename “Axl” had been accepted by
the authorities in respect of six other children. The applicants’ appeal
against the decision was unsuccessful.
   - Articles 8 and 14 of the Convention.
   Judgment of 6 September 2007 – violation of Article 8 of the
Convention.

(14) Luczak v. Poland, no. 77782/01

   The applicant was a French national of Polish origin. He was married to a
Polish national, had a permanent resident status in Poland, had worked there
and, as an employee, had contributed to Poland’s social security scheme for
many years. He bought a farm in Poland and applied to be admitted to the
farmers’ social security scheme. His application was refused since the latter
scheme was only open to Polish nationals. The applicant was left without
any social security cover since he had withdrawn from the general social
security scheme. He eventually had to abandon farming and subsequently
left Poland.
   The applicant complained that he had been refused admission to the
farmers’ social security scheme because he was not Polish and that that
refusal discriminated against him on grounds of nationality.
   - Article 14 of the Convention in conjunction with Article 1 of Protocol
No. 1 of the Convention.
   Admissible (decision of 27 March 2007).
   Judgment of 7 November 2007 – violation of Article 14 in conjunction
with Article 1 of Protocol No. 1 to the Convention.




                                      11
                       Annual Report 2007: Fourth Section



(15) Karanovic v. Bosnia and Herzegovina, no. 39462/03

   At the time of the armed conflict in the region, the applicant went to live
in the Repulika Srpska as an internally displaced person. When he returned
to Sarajevo his pension continued to be paid by the Republika Srpska fund.
The amount received was lower than that received by pensioners from the
Federation Fund in Bosnia and Herzegovina who had not moved away
during the conflict or who had moved to other countries. The Human Rights
Chamber ordered the authorities, in a final and enforceable decision, to
ensure that the applicant and others in his situation would not be treated
differently as regards the level of pension entitlements and that legislative
and administrative action be taken to secure this, in particular by
transferring the applicant from the Republika Srpska fund to the Federation
Fund. The applicant complained under Article 6 of the Convention that the
authorities had not enforced that final decision and that he had thereby been
denied his right of access to a court.
   – Article 6 § 1 of the Convention.
   – Judgment of 20 November 2007 - violation of Article 6 of the
Convention.

(16) Brecknell v. the United Kingdom, no. 32457/04

   The applicant complained that there has been no proper or effective
investigation by the authorities into fresh evidence obtained in 1999 from a
former police officer that the applicant’s husband was killed in 1975 in
Northern Ireland by an organised group of loyalist paramilitaries acting in
collusion with the Royal Ulster Constabulary (RUC). The original
investigation into the shooting of the applicant's husband came to an
inconclusive conclusion in 1981. In the light of the new evidence, the RUC
began an investigation in 1999 into the applicant’s allegations. In 2004 the
case was transferred to a body independent of the RUC, the Serious Crimes
Review Team, which carried out a further assessment and then referred it to
the Historical Enquiry Team where evidence was reviewed under the
supervision of a Metropolitan Police senior officer. This team did succeed in
interviewing the former police officer who refused either to make a
statement or to agree to give evidence in a United Kingdom court. The team
has now apparently reached the conclusion that there is insufficient
evidence to proceed further although it does not appear that any formal
decision has yet been issued to that effect.
   – Articles 2 and 13 of the Convention
   – Judgment of 27 November 2007 – violation of Article 2 of the
Convention.




                                      12
                        Annual Report 2007: Fourth Section



(17)   Kontrová v. Slovakia, no. 7510/04

   In November 2002 the applicant filed a criminal complaint against her
husband, accusing him of having assaulted her. She also gave a long
account of physical and psychological abuse by her husband. Accompanied
by her husband, she later tried to withdraw her criminal complaint. On the
advice of a police officer, she consequently modified the complaint such
that her husband's alleged actions were treated as a minor offence which
called for no further action. During the night of 26 to 27 December 2002 the
applicant and her relative called the local police to report that the applicant's
husband had a shotgun and was threatening to kill himself and the children.
As the husband had left the scene prior to the arrival of the police patrol, the
policemen took the applicant to her parents' home and asked her to come to
the police station so that a formal record of the incident could be drawn up.
On 27 December and 31 December 2002, she went to the local police,
enquiring about her criminal complaints. Later, on 31 December 2002 the
applicant's husband shot dead their two children and himself. The domestic
courts found that the shooting had been a direct consequence of the police
officers' failure to act. In 2006 the police officers involved were convicted
of negligent dereliction of their duties. The applicant was unable to obtain
compensation.
   – Articles 2 and 13 of the Convention.
   Judgment of 31 May 2007 - violation of Articles 2 and 13 of the
Convention.

(18) Szula v. the United Kingdom, no. 18727/06

   The applicant complained under Article 3 of the Convention that the
State had failed in its positive obligation to ensure the enforcement of the
criminal law and to provide protection against the sexual and physical
assaults perpetrated on him when he was a child by a certain D.S. He
complained that D.S. was not prosecuted on account of delays and failures
to bring criminal proceedings against him without good reason. Eventually,
the Lord Advocate was led to conclude that, given the lapse of time and
D.S.’s age (82), no prosecution could be brought without breaching D.S.’s
right to a fair hearing under Article 6 of the Convention. The applicant
complained under Article 8 that for similar reasons there had been a failure
to protect his right to respect for his physical integrity. He complained under
Article 13 that he had no effective remedy for the violations of Articles 3
and 8 of the Convention which he had suffered.
   – Articles 3, 8 and 13 of the Convention.
   Inadmissible (decision of 4 January 2007).




                                       13
                      Annual Report 2007: Fourth Section



(19) Beric v. Bosnia and Herzegovina, no. 36357/04

   The applicants were holders of various public functions in Republika
Srpska, one of the two entities within Bosnia and Herzegovina. In 2004 the
High Representative for Bosnia and Herzegovina – an international
administrator monitoring the implementation of the Dayton Peace
Agreement whose office had been endorsed by the UN Security Council in
1995 – removed the applicants from all their public and political party
positions for “obstructing international law by assisting in evading justice
individuals indicted by the ICTY”. The High Representative subsequently
declared that his decisions, pursuant to his international mandate, were not
justiciable by the courts of Bosnia and Herzegovina or its entities.
   The applicants complained under the criminal limb of Article 6 and
under Articles 11 and 13 of the Convention about the High Representative’s
measures and the lack of an effective remedy in that respect.
   – Articles 6 §§ 1 and 3 and Articles 11 and 13 of the Convention.
   – Inadmissible (decision of 16 October 2007).

(20) Wolkenberg and others v. Poland, no. 50003/99

   The case concerns the applicants’ unsuccessful attempts to recover
compensation for real property which their family had had to abandon in the
so-called “territories beyond the Bug River” because of the Second World
War. In the years following the end of the war, the applicants’ family, along
with 1,240.000 Polish citizens, were repatriated to Poland. From 1946
Polish law has provided that persons repatriated from the territories beyond
the Bug River were entitled to have the value of the property abandoned as a
result of the Second World War offset either against the fee for the right of
perpetual use or against the price of immovable property purchased from the
State Treasury. The applicants obtained a certificate confirming their
claims. In its Broniowski v. Poland judgment, the Grand Chamber of the
Court held that Poland was to take steps to ensure that Bug River claimants
in general were properly compensated as well as finding that there had been
a violation of Article 1 of Protocol No. 1 to the Convention in that
applicant’s case. In July 2005 the Polish Government passed a new law
setting the ceiling for compensation for Bug River property at 20% of its
original value. The applicants in the instant case applied for and obtained
compensation under the new scheme but contest its adequacy.
   - Article 1 of Protocol No. 1 to the Convention.
   - Strike-out decision adopted on 4 December 2007.




                                     14
                       Annual Report 2007: Fourth Section


(21) Giuliani v. Italy, no. 23458/02

    The applicants claim that the death of their son/brother, C.G., was due to
the use of excessive force by security forces during a G8 Summit
demonstration in Genoa. C.G. together with other demonstrators had
attacked a jeep which had become separated from a squad of carabinieri
who had had to retreat under a hail of missiles. Two shots were fired by one
of the carabinieri trapped in the jeep, one of which killed the applicants’
son. The jeep inadvertently ran over C.’s body when the carabinieri were
making their escape.
    The criminal proceedings against the carabinieri were discontinued. The
evidence pointed to self-defence and to the fact that the fatal shot had been
fired upwards but the bullet had hit a stone or a piece of rubble thrown by
the mob and was deflected downward hitting C. in the head. The applicants
contest the use of force which led to the death of C.G. and the independence
and overall effectiveness of the investigation into C.G.’s death.
    – Articles 2, 3, 6 and 13 of the Convention.
    A hearing on the admissibility and merits was held on 5 December 2006.
    – Admissible (decision of 6 February 2007).
    The case is pending.
    **


       OTHER CASES OF INTEREST


(22) Jaremowicz v. Poland, no 24023/03

   The case concerns the authorities’ refusal to grant the applicant, a
prisoner, leave to marry in prison a woman. The applicant had met the
women in prison when she was a detainee. The prison authorities considered
that they had formed their relationship illegally while in prison and that
marriage would not be in the interests of the applicant’s rehabilitation. The
applicant complains of discrimination on the ground of his status as a
prisoner.
   – Articles 12 and 13 and Article 14 of the Convention.
   The case is pending.

(23) Palic v. Bosnia and Herzegovina, no. 4704/04

   The applicant’s husband, a colonel, was allegedly abducted by security
forces of the Republika Srpska in 1995 during the conflict in the region.
The Human Rights Chamber held in 2000 with respect to the Republika
Srpska that her husband had been the victim of an enforced disappearance
and found inter alia breaches of Articles 2, 3 and 5 of the Convention. The
applicant was awarded compensation and the Republika Srpska was
ordered, among other things, to investigate the circumstances of the
disappearance and to determine whether the applicant’s husband was dead
                                      15
                       Annual Report 2007: Fourth Section


and, if so, to return his remains to the applicant. The applicant complains,
with respect to Bosnia and Herzegovina, that this order has not been
complied with by its entity, the Republika Srpska.
   – Articles 2, 3, 8 and 13 of the Convention.
   The case is pending.

(3)   R.R. v. Poland, no. 27617/04

   When the applicant was pregnant with her third child, she was informed,
on the basis of ultrasound scan results, of the likelihood that the foetus had
been affected with Turner syndrome. A genetic examination was
recommended to confirm or dispel these suspicions. However, her local
physician refused to give her a referral to undergo such an examination as in
his view her condition did not qualify for an abortion. She was subsequently
refused a genetic examination in local and teaching hospitals. In the 23rd
week of pregnancy she went, without a referral, to another hospital where
she was admitted as an emergency patient. Genetic tests were performed
there. In the 25th week of her pregnancy she received the results confirming
that the foetus was suffering from Turner Syndrome. Before and after she
obtained the results, she again requested the local hospital to carry out an
abortion. This was refused since by then it was too late for a lawful abortion
on grounds of foetal abnormality. The applicant eventually gave birth to a
baby suffering from Turner Syndrome. She unsuccessfully requested the
prosecuting authorities to institute criminal proceedings against persons
involved in handling her case. She also filed a civil action for compensation
against the relevant physicians and health care institutions The case is still
pending before the domestic courts.
   – Articles 3, 8 and 13 of the Convention.
   The case is pending.

(25) Garlicki v. Poland, no. 36921/07

   The applicant is a renowned heart transplant surgeon. He was arrested by
masked and armed police officers at his hospital and was taken handcuffed
in full public view to the hospital car park and then driven off to the police
station. The event was filmed throughout, as was the subsequent search of
his flat. A sum of money was seized from his flat. The applicant was
charged with homicide of a patient, endangering patients’ lives and taking
bribes in relation to the carrying out of heart operations. At a press
conference, the Prosecutor General stated that “no-one else will ever again
be deprived of life by this gentleman”. The applicant was subsequently
released from detention on bail of 90,000 euros. No bill of indictment has
yet been filed and the investigation is still continuing.
   – Articles 3, 5 §§ 1 and 3, Article 6 § 2 and Article 1 of Protocol No. 1 to
the Convention.
   The case is pending.



                                      16
                      Annual Report 2007: Fourth Section



(26) Boumediene v. Bosnia-Herzgovina, no. 38703/06

    The applicants are four nationals, one former national and one former
resident of Bosnia-Herzgovina. They were handed over to the US
authorities by the Bosnia-Herzgovina authorities on 18 January 2002 in
breach of an interim decision of the Human Rights Chamber. They have
been detained in Guantanamo Bay since then. The applicants contend that
the authorities have not taken all reasonable diplomatic measures to protect
their well-being and to secure their return, in violation of follow-up orders
given by the Human Rights Chamber on 11 October 2002 and 4 April 2003
to that effect.
    – Articles 2, 3, 5 and 9 and Article 1 of Protocols No. 6 and 13 of the
Convention.
    The case is pending.



VI.    RULE 39 (INTERIM MEASURES) AND RULE 41 (PRIORITY) REQUESTS

  (a) Requests for interim measures pursuant to Rule 39 of the Rules of
Court were granted in 164 including the following cases:

(1)   Alnour v. the United Kingdom, no. 1682/07

   The applicant is a non-Arab member of the Zaghawa tribe from the
Darfur region of Sudan. He claims that his expulsion to Sudan would
expose him to risk 1) as an alleged member of the Justice and Equality
Movement (JEM), a rebel group involved in the Darfur conflict and opposed
to the Government and 2) his Zaghawa ethnicity, being a failed asylum
seeker his return to Khartoum would expose him to ill-treatment since it
would be assumed that he was a rebel activist.
   The case is pending.

(2)   Mamilov v. Poland, no. 18358/07

    The applicant is of Ingush origin. He arrived illegally in Poland and
(three-years later) applied for refugee status. In the meantime the Russian
authorities requested his extradition since he was wanted on kidnapping
charges. He claims that he would be subjected to torture and denied a fair
trial if extradited to Russia. His request for refugee status is currently
pending before the administrative courts. The Rule 39 measure was
prolonged pending the outcome of the administrative proceedings.
    The case is pending.




                                     17
                      Annual Report 2007: Fourth Section



(3)   Ahmed and Aswat v. the United Kingdom, no. 24027/07

   The application concerns two applicants, British nationals, who are
indicted for terrorist offences in the United States. The United States has
sought their extradition. Two diplomatic notes were produced by the United
States Embassy to the domestic courts, giving a series of assurances in
relation to future criminal proceedings against the applicants in the United
States. The diplomatic notes gave assurances that the death penalty would
not be called for, that the applicants would only be tried before the federal
courts and not by military commissions and that they would not be
designated as enemy combatants upon the applicants’ extradition to the
United States. The domestic courts allowed the extraditions to proceed. The
applicants lodged a request for interim measures which was granted on 12
June 2007.
   The case is pending.

(4)   Sobowale (I) v. the United Kingdom, no. 33700/07

  The applicant, a Nigerian national, risks deportation without her
daughter, a US national born with a kidney condition.
  The case is pending.

(5)   NA. v. the United Kingdom, no. 25904/07

   The case concerns the proposed removal of the applicant, who is of
Tamil ethnicity, to Sri Lanka. Rule 39 was applied in this case and in …
further cases involving the proposed removal of Tamils from the United
Kingdom.
   The case is pending.

   (b) Requests for priority pursuant to Rule 41 of the Rules of Court were
granted in 205 cases.




                                     18
                         Annual Report 2007: Fourth Section




VII.      THIRD-PARTY INTERVENTION (ARTICLE 36 AND RULE 44)

   Leave to submit third-party comments was given by the President
pursuant to Rule 44 § 2 of the Rules of Court in the following cases:

(1)     Wolkenberg and others v. Poland, no. 50003/99

   (See under Sub-head III).
   Third party: All-Polish Association of Borderland Creditors of the State
Treasury

(2)     Witkowska-Tobola v. Poland, no. 11208/02

   (See under Sub-head III in the related case of Wolkenberg and others v.
Poland, no. 50003/99)
   – Article 1 of Protocol No. 1 to the Convention
   Third party: All-Polish Association of Borderland Creditors of the State
Treasury
   Strike- off decision adopted on 4 December 2007

(3)     Wojtas-Kaleta v. Poland, no 20436/02

      The case concerns the right to freedom of expression.
      – Article 10 of the Convention.
      Third party: Helsinki Foundation for Human Rights.
      The case is pending.

(4)     R.R. v. Poland, no. 27617/04

   (See under Sub-head III)
   Third party: Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health
(Office of the United Nations).
   The case is pending.

(5)     M.W. v. the United Kingdom, no. 11313/02

   The case concerns difference in treatment under United Kingdom social
security legislation between married couples and homosexual partners who
had lived together for twenty three years.
   – Article 14 of the Convention taken in conjunction with Article 8 of the
Convention and Article 1 of Protocol No 1 to the Convention.
   Third party: The European Region of the International Lesbian and Gay
Association.
   The case is pending.


                                        19
                        Annual Report 2007: Fourth Section


(6)     K.U. v. Finland, no. 2872/02

   The case concerns the alleged failure of the authorities to protect the
applicants’ minor son’s right to respect for his private life in the context of
his use of the Internet.
   – Articles 8 and 13 of the Convention.
   Third party: Helsinki Foundation for Human Rights.
   - Admissible (decision of 27 June 2006).
   The case is pending.

(7)     Frasik v. Poland, no 22933/02

   The case concerns the refusal to grant an accused leave to marry in
prison pending trial. The applicant, accused of rape, was refused leave by
the trial court to marry his victim in prison.
   – Article 5 § 4 and Articles 12 and 13 of the Convention.
   Third party: Helsinki Foundation for Human Rights.
   The case is pending.

(8)     Jaremowicz v. Poland, no. 24023/03

      (See under Sub-head III)
      – Articles 12, 13 14 of the Convention.
      Third party: Helsinki Foundation for Human Rights.
      The case is pending.

(9)     Grzelak v. Poland, no. 7710/02

    The case concerns the lack of suitable alternative arrangements for pupils
who opt out of religious instruction in State primary schools and who wish
to take classes in ethics instead.
    – Article 9 of the Convention combined with Article 14 of the
Convention and ex officio under Article 8 of the Convention.
    Third party: Helsinki Foundation for Human Rights.
    The case is pending.




                                       20
                      Annual Report 2007: Fourth Section


(10) Czarnowski v. Poland, no. 28586/03

   The case concerns the authorities’ refusal to grant the applicant
permission to leave the prison where he was serving his sentence in order to
attend his father’s funeral.
   – Article 8 of the Convention.
   Third party: Helsinki Foundation for Human Rights.
   The case is pending.

(11) Boumediene v. Bosnia-Herzgovina, no. 38703/06

  (See under Sub-head III)
  Third party: Interights, the International Commission of Jurists and the
Center for Constitutional Rights.
  The case is pending.

(12) Ogorek v. Poland, no. 28490/03

   The case concerns the respondent State’s alleged continued failure to
issue an ordinance determining compensation for nationalised property as
foreseen in legislation adopted in 1946 or to obtain a judicial determination
on their right to compensation within a reasonable time.
   – Article 1 of Protocol No. 1 to the Convention and Article 6 of the
Convention.
   Third party: Helsinki Foundation for Human Rights.
   The case is pending.




                                     21
                     Annual Report 2007: Fourth Section




VIII. STATISTICAL INFORMATION

    1. Results for year
    2. Results by month
    3. Applications pending
    4. Graphic charts
       (a) Judgments delivered
       (b) Inadmissibility and strike-out decisions
       (c) Admissibility decisions
       (d) Applications communicated
       (e) Applications pending by year of lodging
       (f) Applications pending by State




                                     22
                        Annual Report 2007: Fourth Section


                               APPENDIX 1
                       Judgments delivered in 2007
  Merits                                                               298
  Striking out                                                          8
  Friendly settlement                                                  24
  Just satisfaction                                                     3
  Revision                                                              0
    Total                                                              333


                  Chamber decisions adopted in 2007
  Applications declared admissible                                     273
  Applications declared inadmissible                                   77
  Applications struck out of the list                                  283
    Total                                                              633


                 Committee decisions adopted in 2007
  Applications declared inadmissible                                  5049
  Applications struck out of the list                                  75
    Total                                                             5124


                  Applications communicated in 2007
    Total                                                              550




  Total cases finalised in 2007 (judgments*,
                                                                      5814
  inadmissibility and strike-out decisions)


* Not including judgments on just satisfaction and revision but including judgments
which are not yet final. Some judgments dealt with a number of joined applications.




                                         23
                                     Annual Report 2007: Fourth Section


                                           APPENDIX 2

                                     Chambers                                                     Committees
            Judgments   Admissible   Inadmissible        Struck out       Communicated   Inadmissible    Struck out
January        33          28             11                12                63             466               6
February       29          12              9                 7                29             259               3
March          16          24              5                12                53             375               1
April          19           9              2                 4                19             197               3
May            30          17              3                24                48             651               5
June           23          19              2                16                35             447               5
July           28          19              1                11                22             428               5
August         0            3              0                 4                28              0                0
September      19          39              7                35                57             767               12
October        60          44             30                32                55             428               14
November       55          30              3                17                80             448               13
December       21          29              4                109               61             583               8
 Total        333          273            77                283               550           5049               75




                                                    24
                 Annual Report 2007: Fourth Section


                       APPENDIX 3

        Applications pending on 31 December 2007


Total applications not yet examined                   7341


Adjourned/Communicated for information                403


Communicated for observations                         1058


Admissible                                             66


Judgments not yet final                               168


TOTAL APPLICATIONS PENDING                            9036
 (Chamber: 3947)
 (Committee: 5089)




                                25
                                                 Annual Report 2007: Fourth Section


                                                                   APPENDIX 4
                                                                        Chart 1: Judgments delivered in 2007

                                                                                                                                                                                                           60
 60
                                                                                                                                                                                                                                 55


 50




 40

                   33
                                                                                               30
 30                                        29
                                                                                                                                         28

                                                                                                                    23
                                                                                                                                                                                                                                                    21
 20                                                                             19                                                                                                  19
                                                             16



 10



                                                                                                                                                              0
  0
              ry                ary                   rch               r il               y                    e
                                                                                                                              J ul
                                                                                                                                     y                  st                     er                     er                     r                  r
         ua                                      Ma                Ap                 Ma                 J un                                      gu                     mb                   to b                     be                   be
  Ja n                    bru                                                                                                                 Au                   p te                   Oc                     v em                 c em
                     Fe                                                                                                                                       Se                                            No                   De



                                            Chart 2: Inadmissibility and strike-out decisions adopted in 2007



900
                                                                                                                                                                                         822
800

                                                                                                                                                                                                                                                             704
700                                                                                                686


600

                   495                                                                                                                                                                                          504
500                                                                                                                     479                                                                                                           480
                                                                                                                                          445
                                                             393
400


300                                        278

                                                                                206
200


100

                                                                                                                                                                  4
 0
              ry                    ar y              rc h                ril                  y                    e
                                                                                                                                J ul
                                                                                                                                    y                        st                     er                     er                    er                      r
         ua                                      Ma                Ap                 Ma                  J un                                       gu                       mb                    to b                   mb                       be
  J an                       br u                                                                                                               Au                       te                    Oc                     ve                    cem
                        Fe                                                                                                                                        S   ep                                         No                    De




                                                                                           26
                                           Annual Report 2007: Fourth Section


                                                       Chart 3: Admissibility decisions adopted in 2007


45                                                                                                                                                                                  44


40                                                                                                                                                             39


35

                                                                                                                                                                                                       30
30                                                                                                                                                                                                                        29
                  28


25                                                    24


20                                                                                                    19             19
                                                                                      17

15
                                     12

10                                                                      9


 5
                                                                                                                                         3


 0
             ry                ary             rc h              ri l             y               e
                                                                                                           J ul
                                                                                                               y                    st                     r                   er                 er                 er
        ua                                Ma                Ap               Ma            J un                                gu                     be                 tob                 mb                 mb
 J an                   b ru                                                                                              Au                    tem                 Oc                  ve                 ce
                   Fe                                                                                                                    Se
                                                                                                                                            p                                        No                 De




                                                           Chart 4: Applications communicated in 2007

                                                                                                                                                                                                       80
80



70
                  63
                                                                                                                                                                                                                          61
60                                                                                                                                                             57
                                                                                                                                                                                    55
                                                      53

50                                                                                    48



40
                                                                                                      35

30                                   29                                                                                                  28

                                                                                                                     22
20                                                                      19



10



0
                                                               ri   l          y                                ly             st                     r                  er                     r                er
     ary                 ary                rc h            Ap               Ma            Ju
                                                                                             ne            Ju                gu                     be                tob                     be           mb
   nu                b ru                 Ma                                                                              Au                    m                                          em
 Ja                Fe                                                                                                                       pte                     Oc                 v                 ce
                                                                                                                                         Se                                         No                 De




                                                                                      27
                                                   Annual Report 2007: Fourth Section


                                          Chart 5: Applications pending on 31 December 2007 by year of lodging

                         5000
                                               4660
                         4500

                         4000

                         3500
Number of applications




                         3000

                         2500

                         2000                             1928


                         1500
                                                                     1149
                         1000

                         500                                                    445                              374
                                                                                                250
                                                                                                                              115             68             28          8             6             2                  3
                            0

                                     ed       07         06      0   5     04              03            0   2           01              00             99          98            97            96             99
                                                                                                                                                                                                                    5
                             lod
                                 g          20      20        20         20           20              20               20           20             19             19         19            19            0-1
                          se                                                                                                                                                                        9
           a                                                                                                                                                                                     19
        rc
Y     ea
                                                                                                       Year of lodging




                                                      Chart 6: Applications pending on 31 December 2007 by State
                                                                                                                                               Finland
                                                    United Kingdom                                                                               6%
                                                         17%
                                                                                                                                                                                   Other States
                                                                                                                                                                                       1%




                                     Turkey
                                      1%




                                                                                                                                                                                                                    Moldova
                                                                                                                                                                                                                     23%


                                Slovakia
                                  15%




                                                                                  Poland
                                                                                   37%




                                                                                      28
   EUROPEAN COURT OF HUMAN RIGHTS
COUR EUROPÉENNE DES DROITS DE L’HOMME




         FIFTH SECTION




 ANNUAL ACTIVITY REPORT 2007




              January 2007
                                              CONTENTS

                                                                                                            Page

I.      Introduction .......................................................................................... 1

II.     Composition of the Section .................................................................. 2

III.    Hearings................................................................................................ 3

IV.     Cases relinquished to the Grand Chamber ........................................... 3

V.      Interesting judgments and decisions/Other cases of interest ................ 3

VI.     Rule 39 (interim measures) and Rule 41 (priority) requests .............. 45

VII. Third-party intervention (Article 36 and Rule 44) ............................. 47

VIII. Statistical information ........................................................................ 49
                         Annual Report 2007: Fifth Section




I.        INTRODUCTION

    In 2007, the Section held 38 Chamber sessions. The Section delivered
212 (239) judgments, of which 209 (236) concerned the merits, 2 concerned
friendly settlements and 1 concerned the striking out of a case. The Section
applied Article 29 § 3 of the Convention (combined examination of
admissibility and merits) in 372 (388) cases and 184 (201) judgments were
delivered under this procedure.

      Of the cases examined by a Chamber

(a)     71 applications were declared admissible;
(b)     132 applications were declared inadmissible;
(c)     92 applications were struck out of the list; and
(d)     413 applications were communicated to the State concerned for
        observations of which 316 were communicated by the President by
        virtue of the new procedure instituted on 1 January 2003.

   In addition, the Section held 43 Committee sessions. 6,253 applications
were declared inadmissible and 143 applications were struck out of the list.
The total number of applications rejected by a Committee represented
96,6 % of the inadmissibility and strike-out decisions taken by the Section
during the year.

  At the end of the year, 15195 applications were pending before the
Section.




                                        1
                             Annual Report 2007: Fifth Section


II.     COMPOSITION OF THE SECTION

To 18 January 2007

Peer Lorenzen (Danish), President,
Snejana Botoucharova (Bulgarian), Vice-President,
Luzius Wildhaber (Swiss)
Karel Jungwiert (Czech),
Volodymyr H. Butkevych (Ukrainian),
Margarita Tsatsa-Nikolovska (citizen of “the Former Yugoslav Republic of
Macedonia”),
Rait Maruste (Estonian),
Javier Borrego-Borrego (Spanish),
Renate Jaeger (German),
Mark Villiger 1 (Swiss), judges,

Claudia Westerdiek, Registrar,
Stephen Phillips, Deputy Registrar.

As from 19 January 2007

Peer Lorenzen (Danish), President,
Snejana Botoucharova (Bulgarian), Vice-President,
Karel Jungwiert (Czech),
Volodymyr H. Butkevych (Ukrainian),
Margarita Tsatsa-Nikolovska (citizen of “the Former Yugoslav Republic of
Macedonia”),
Rait Maruste (Estonian),
Javier Borrego-Borrego (Spanish),
Renate Jaeger (German),
Mark Villiger1 (Swiss), judges,

Claudia Westerdiek, Registrar,
Stephen Phillips, Deputy Registrar.




1. Judge elected in respect of Liechtenstein.




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                          Annual Report 2007: Fifth Section




III.      HEARINGS

   No hearings were held in Strasbourg in 2007.
   In the case of Druzenko and Others v. Ukraine (nos 17674/02 and
39081/02), a delegation of three Court Judges took evidence from witnesses
in Khmelnytsky (Ukraine) from Monday 25 to Wednesday 27 June 2007 in
Izyaslav Prison and held an on-the-spot investigation.
   The case, which was declared admissible under Articles 3, 8, 13 and 34
concerns the applicants’ allegations of ill-treatment during a police training
exercise and of poor conditions of detention.


IV.       CASES RELINQUISHED TO THE GRAND CHAMBER

      The Section did not relinquish any cases to the Grand Chamber.


V.        INTERESTING    JUDGMENTS       AND     DECISIONS/OTHER   CASES    OF
          INTEREST


   Of the judgments delivered and decisions adopted by the Section this
year, the most interesting included the following:

(1)     Kňákal v. Czech Republic, no. 39277/06

   In 2001 the applicant met his future partner, who was already pregnant.
Shortly afterwards she gave birth to a daughter in respect of whom he
acknowledged paternity, and he was entered as the father in the birth
register. His partner then discontinued the paternity suit she had brought
against the child’s putative biological father. In 2004 the applicant and his
partner ended their relationship. The applicant, claiming that he had lost all
ties with the child, requested the attorney-general’s office to initiate an
action to disclaim paternity on his behalf. The attorney-general dismissed
his request on the ground that the applicant himself had failed to bring an
action to disclaim paternity within the statutory time-limit of six months,
and that the possibility of disclaiming paternity would neither result in a
positive change in the child’s life nor lead to the restoration of ties between
the child and her biological father. A constitutional appeal by the applicant
was also dismissed.
   Inadmissible: Article 6 § 1 – In view of the decision of the Constitutional
Court, which had considered that the applicant’s right to disclaim paternity




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                        Annual Report 2007: Fifth Section


had lapsed, as he had failed to exercise that right within the statutory time-
limit of six months, the Court found that he had asserted a right which could
not arguably be said to have been recognised under domestic law:
incompatible ratione materiae.
   Article 8, whether or not in conjunction with Article 13 – There was
nothing to substantiate the applicant’s argument that it was in the child’s
interest that the right to disclaim paternity should be unrestricted. In the
Court’s opinion a fair balance had been struck between the various interests
involved. In particular, it could not be regarded as unjustified that, once the
limitation period for the applicant’s own action to disclaim paternity had
expired, greater weight had been given by the authorities to the interests of
the child than to those of the applicant. Unlike the situation in the case of
Paulík v. Slovakia (no. 10699/05, 10 October 2006), the applicant in this
case had known even before the child’s birth that he was not her biological
father but had nevertheless acknowledged paternity in full awareness of the
consequences. Moreover, the child in question was an infant who was partly
dependent on the applicant’s maintenance payments: manifestly ill-founded.

(2)   Erdel v. Germany, no. 30067/04

   The applicant is a member of a political party (Die Republikaner) which
is considered as populist and right-wing and has therefore been under
scrutiny by the German offices for the protection of the constitution. His
call-up in the German army as a lieutenant on the reserve list was revoked
on account of his membership in the above party. He unsuccessfully
appealed against this decision before the administrative courts and the
Federal Constitutional Court.
   Inadmissible: The assumed interference with the applicant’s right to
freedom of expression had been lawful and had pursued the legitimate aims
of preserving the army’s political neutrality and of preventing any future
criminal offences with a right-wing extremist background to be committed
from within the army which is supposed to be a guarantor of the constitution
and democracy. The latter notion has a special importance in Germany
because of the country’s experience during the Third Reich, and the Federal
Republic’s constitution was based on the principle of a “democracy capable
of defending itself”. Given the fact that several criminal offences with a
right-wing extremist background had been committed by members of the
German army, this having attracted widespread publicity and having
considerably damaged the army’s reputation, the courts did not overstep
their margin of appreciation when presuming possible disloyalty of the
applicant’s party on the basis of a report by the Federal Office for the
Protection of the Constitution. Moreover, the applicant bore a special
responsibility as he held a senior post within the army. The courts also
carefully examined why a prior ban on the party in question by the Federal




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                        Annual Report 2007: Fifth Section


Constitutional Court had not been a prerequisite to take the applicant’s
membership into account when revoking his call-up. In contrast with the
Vogt v. Germany case, the applicant, being a practising lawyer and not a
professional soldier, was therefore not threatened with losing his livelihood
by the impugned measure. Moreover, the revocation had not resulted in his
loss of rank as a reserve officer, but only in his ineligibility for future
military trainings. In these circumstances, the revocation had not amounted
to a disproportionate restriction of his right to freedom of expression:
manifestly ill-founded.

(3)   Al-Moayad v. Germany, no. 35865/03

   A Yemeni citizen on an undercover mission in Yemen for the US
investigation and prosecution authorities convinced the applicant that he
could put him in touch with a person abroad who was willing to make a
major financial donation. Thereupon, the applicant decided to travel to
Germany, where he was arrested, under an arrest warrant issued by the US
authorities, which charged him with supporting terrorist groups.
   The US authorities requested formally his extradition for criminal
prosecution and charged him finally with membership of two terrorist
associations, Al-Qaeda and the extremist branch of the Hamas. In Germany,
the applicant was remanded in custody pending extradition.
   The US Embassy gave an assurance to the German authorities that the
applicant would not be prosecuted by a military tribunal or by any other
extraordinary court.
   Thereupon, and as there was nothing to warrant the conclusion that the
applicant might be subjected to unfair criminal proceedings or torture in the
US, the extradition to the USA was granted. The applicant’s appeals against
his extradition were dismissed.
   The applicant filed a constitutional complaint. He argued, in particular,
that his surveillance by the FBI in Yemen and his abduction from that
country to Germany had been in breach of public international law and that,
accordingly, his detention pending extradition had no legal basis. He
claimed that if he were to be extradited, he would be placed in preventive
detention in the USA indefinitely without access to a court or a lawyer, and
exposed to interrogation methods amounting to torture. The Constitutional
Court rejected his complaint. It stated in particular that there was no general
rule of public international law to prevent a person being lured by trickery
from his State of origin to a State to which a request was then made for his
extradition in order to circumvent a ban on extradition that was valid in his
State of origin. The German Government thereafter authorised the
extradition, on condition that the applicant was not sentenced to death or
committed to stand trial before a military tribunal. The applicant lodged a
request before the Court under Rule 39 of its Rules of Court for his




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                        Annual Report 2007: Fifth Section


extradition to be stayed pending the outcome of his application to the Court.
Two days later, the German authorities extradited him. At that time, the
Court had not yet rendered a decision on the applicant’s request. The
applicant was brought before a judge immediately after his arrival in the
USA. A US court began trying him on charges of having provided material
support to Al-Qaeda about one year and two months after his arrival in the
USA. The applicant has been sentenced to imprisonment.
   Inadmissible under Article 3 – On the basis of reports concerning the ill-
treatment of prisoners associated with international terrorism, the applicant
complained that following his extradition he would be subjected to
interrogation methods amounting to torture at the hands of the US
authorities.
   However, these reports concern prisoners detained by the US authorities
outside the national territory and the German authorities were satisfied by
the assurance given to them by the US authorities that the applicant would
not be detained in any of these places. The German authorities expressly
stated in the extradition proceedings and in their conditions for allowing the
applicant’s extradition that they understood the US authorities’ assurance to
comprise an undertaking not to detain the applicant in a facility outside the
USA. This assessment has indeed been confirmed following the extradition.
Moreover, it had not been Germany’s experience that assurances given to
them in the course of proceedings concerning extraditions to the USA were
not respected in practice or that the suspect was subsequently ill-treated in
US custody. Finally, the applicant’s personal circumstances were carefully
considered by the German authorities and courts in the light of a substantial
body of material concerning the current situation in the USA. Hence, the
assurance obtained was such as to avert the risk of the applicant’s being
subjected to interrogation methods contrary to Article 3 following his
extradition: manifestly ill-founded.
   Inadmissible under Article 5 § 1 (f) – The applicant claimed that his
detention pending extradition had been unlawful, as his placement under
surveillance in and abduction from Yemen by the US authorities had
breached public international law.
   However, no use of force had been alleged. The applicant was tricked by
the US authorities into travelling to Germany. The respondent State was not
the one responsible for the extraterritorial measures on Yemen’s territory
aimed at inciting the applicant to leave that country. The cooperation
between German and US authorities on German territory, pursuant to the
rules governing mutual legal assistance in arresting and detaining the
applicant, does not in itself give rise to any problem under Article 5:
manifestly ill-founded.
   Inadmissible under Article 6 § 1 – The applicant argued that he risked
suffering a flagrant denial of fair trial in the extradition’s State.




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                        Annual Report 2007: Fifth Section


    However, at the time of his extradition, there were no substantial grounds
for believing that he would subsequently suffer a flagrant denial of a fair
trial by being detained without access to a lawyer and to the ordinary US
criminal courts. Regard must be had, in this respect, to the assurance given
by the US authorities, to the fact that the extradition was granted on the
basis of a bilateral treaty between Germany and the USA, to the thorough
examination of the circumstances of the case carried out by the German
authorities and courts and to their long-standing experience of extraditions
to the USA, and in particular to the fact that the assurances given to them up
to that point had been respected in practice. The German Government was
entitled to infer from the assurance given that the applicant would not be
transferred to one of the detention facilities outside the USA – that is, the
facilities in which terrorist suspects were held without being granted access
to a lawyer or to the ordinary criminal courts. The German authorities could
reasonably infer from the assurance given to them in the course of the
extradition proceedings that the applicant would in fact be committed to
stand trial for the offences in respect of which his extradition had been
granted and that he would therefore not be detained for an indefinite
duration without being able to defend himself in court: manifestly ill-
founded.
    Inadmissible under Article 34 – The applicant argued that the German
authorities had extradited him to the USA even though the Government had
been notified that he had lodged an application and a Rule 39 request with
the Strasbourg Court.
    As this Court had not yet rendered a decision on the applicant’s request
for interim measures under Rule 39 at the time the German authorities
extradited him, the respondent Government could not be said to have failed
to comply with measures formally indicated under Rule 39.
    Moreover, it had not been established that the competent German
authorities were duly informed that a request under Rule 39 had been made
by the applicant. Hence the Court could conclude that those authorities
deliberately prevented it from taking a decision on the applicant’s Rule 39
request or from notifying them of this decision in a timely manner, in
breach of the respondent Government’s obligation to cooperate with the
Court in good faith: manifestly ill-founded.




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                        Annual Report 2007: Fifth Section


(4)    Velikovi and Others v. Bulgaria, nos 43278/98, 45437/99,
       48014/99, 48380/99, 51362/99, 53367/99, 60036/00, 73465/01 and
       194/02
   The nine applications were all brought by Bulgarian nationals.
   The applications concerned nationalised property acquired by the
applicants and the subsequent proceedings brought against them under the
Restitution Law by the pre-nationalisation owners or their heirs resulting in
the applicants being ordered to vacate their property.
   They relied on Article 1 of Protocol No. 1 (protection of property) to the
European Convention on Human Rights and, in certain cases, Articles 13
(right to an effective remedy) and 14 (prohibition of discrimination) alleging
that they were discriminated against in that the Restitution Law favoured
pre-nationalisation owners to the detriment of post-nationalisation owners.
In one of the cases, Nikolovi, the applicants also relied on Article 6 § 1
(right of access to a court) alleging that the municipality’s refusal to sell
them an apartment had been unlawful.
   The Court, setting out several factors to be taken into consideration in its
assessment of the facts of each of the nine cases, distinguished between
cases where the property in question had been obtained through abuse or
material violations of housing regulations, cases where the State
administration had been responsible for irregularities resulting in the
applicants’ titles having been annulled and cases where the domestic courts’
interpretation of the Restitution Law’s scope of application had been
excessive.
   On the basis of these distinctions, the Court held unanimously that there
had been no violation of Article 1 of Protocol No. 1 in the application of
Velikovi and one other application because there had been abuse by the
applicants in obtaining the property in question and, in any case, they had
obtained adequate compensation. It further held that there had been no
violation of Article 1 of Protocol No. 1 in two other cases due to there
having been material violations of the relevant housing regulations.
   The Court held unanimously in four other cases that there had been a
violation of Article 1 of Protocol No. 1 either because the State
administration had been responsible for irregularities resulting in the
applicants’ titles having been annulled or because interpretation of the
Restitution Law’s scope of application had been excessive.
   In the case of Nikolovi, where the State administration had been
responsible for an irregularity resulting in the applicants’ title having been
annulled, the Court, nevertheless, held, unanimously, that there had been no
violation of Article 1 of Protocol No. 1 because it did not find that the
threshold of hardship had been reached, the applicants having obtained
partial compensation and having been granted the tenancy of a municipal
apartment. The Court also held that there had been no violation of Article 6
§ 1.




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                        Annual Report 2007: Fifth Section


   Finally, the Court decided that it was not necessary to examine separately
the applicants’ complaints under Articles 13 and 14.
   The Court further held, unanimously, that, in the four cases where a
violation had been found, the question of the application of Article 41 was
not ready for decision concerning the claims in respect of damage. The
Court awarded the applicants in those four cases a total of 8,000 euros
(EUR) for costs and expenses.

(5)   Ceku v. Germany, no. 41559/06

   In 1985 the applicant, a Serbian national, killed two people in the course
of an armed robbery in Germany. He was arrested two years later in Spain,
where he subsequently served a prison sentence for other offences. He was
extradited to Germany in 1999 following a request by the German
authorities for his temporary surrender. There he was convicted of two
counts of murder and aggravated robbery and sentenced to life
imprisonment, after the trial court had ruled that his “guilt was of particular
gravity”. In 1994 the applicant was diagnosed as being infected with HIV
and in October 2005 as suffering from full-blown AIDS. His severe immune
deficiency, which made him vulnerable to severe HIV-associated infections
and was expected to progress, was partly attributed to his failure to take
prescribed medication. His life expectancy was estimated to be
approximately two years, possibly longer with effective therapy. A request
by the applicant for the remainder of his sentence to be suspended was
rejected by a regional court in December 2005, inter alia, on the ground that
the gravity of the offences required a further two years of the sentence to be
served with effect from May 2005. That decision was upheld on appeal. The
Federal Constitutional Court subsequently refused to admit the applicant’s
complaint for adjudication on the grounds that it only partly fulfilled the
admissibility requirements (as relevant documents were missing) and that
the remainder of the complaint was unfounded. It reaffirmed the principle
that respect for human dignity demanded that convicted persons had to be
granted a concrete and realistic chance of regaining their liberty. It found,
however, that the additional two-year requirement was acceptable from a
constitutional perspective in view of the gravity of the offences, the
applicant’s dangerousness and the need to protect the public, the possibility
that his life expectancy would increase with therapy, and the fact that he
could make a fresh request for release in the event of a change of
circumstances. It would appear that at some point, the applicant’s health
deteriorated dramatically and he was admitted to intensive care. He has not
specified when this happened or submitted any documentary evidence
confirming his condition.
   Inadmissible: Article 3 could not be interpreted as laying down a general
obligation to release detainees suffering from an illness that was particularly




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                        Annual Report 2007: Fifth Section


difficult to treat or to transfer them to a civil hospital. Nevertheless, the
State had to ensure that prisoners were detained in conditions compatible
with respect for human dignity, that they were not subjected to distress or
hardship of an intensity exceeding the unavoidable level of suffering
inherent in detention and that their health and well-being were adequately
secured by, among other things, requisite medical assistance. The applicant
had been infected with HIV for more than thirteen years. He was now
suffering from AIDS and his life expectancy had been estimated at two
years. However, the alleged deterioration in his health appeared to have
occurred only after the Federal Constitutional Court had given its final
decision; the applicant, who was represented by counsel, had not established
that he had availed himself of any further domestic remedies, such as filing
a fresh request for his sentence to be suspended. As the Federal
Constitutional Court had ruled that the domestic authorities were under an
obligation to react to any change in his circumstances, there was no
indication that such a request would have had no prospect of success:
failure to exhaust domestic remedies.
   With respect to the conditions of detention, the applicant was currently
being held in a prison hospital. He had not suggested that his detention there
was ill-adapted to his condition or that he was not receiving appropriate
treatment. The domestic courts had examined his case thoroughly and the
Federal Constitutional Court had expressly acknowledged that a change in
his condition might warrant a re-examination of his case. Moreover, the
domestic courts found, on the basis of expert psychological evidence, that
the applicant continued to pose a considerable danger to the public, in spite
of his disease. In these circumstances, neither his state of health at the
relevant time, nor his alleged distress, had attained a sufficient level of
severity: manifestly ill-founded.

(6)   Mücke v. Germany, no. 19359/04

   Since the applicant, born in 1957, attained the age of criminal
responsibility he was convicted seven times, notably of murder, robberies
and assaults, and spent only short periods outside prison. In 1986, the trial
court sentenced him to five years’ imprisonment and ordered his placement
in preventive detention, since, according to experts, he was dangerous for
the public and it was to be expected that he would repeat spontaneous acts
of violence. Since 1991, the applicant, having served his full prison
sentence, is remanded in preventive detention. At that time, the maximum
term of preventive detention could not exceed ten years. In 1998, the
Criminal Code was amended to the effect that the maximum period of
preventive detention was abolished. In 2001, applying the new rule, the
regional court dismissed the applicant’s motions to suspend on probation his
placement in preventive detention. Having heard him in person as well as




                                       10
                        Annual Report 2007: Fifth Section


the prison authorities, the prosecutor and an expert, the court found that it
could not be expected that the applicant, if released, would not commit any
further serious offences. The applicant appealed unsuccessfully. In his
constitutional complaint he raised the issue of retroactive application of the
amended Criminal Code provision which had led to his life-long
imprisonment without any prospects of being released. In 2004, the Federal
Constitutional Court, having consulted psychiatric experts and several
prison directors, dismissed the applicant’s complaint as ill-founded. It held,
inter alia, that the absolute ban on retroactivity of criminal laws imposed by
the Basic Law did not cover the measures of correction and prevention
provided for in the Criminal Code. It concluded that the legislator’s duty to
protect the public against interference with its life, health and sexual
integrity had outweighed the detainee’s reliance on continued application of
the ten-year limit and that the retrospective application of the new rule had
not been disproportionate.
   Communicated under Articles 5 §§ 1 and 7 of the Convention.

(7)   Ivan Vasilev v. Bulgaria, no. 48130/99

    The applicant, Ivan Tsekov Vasilev, is a Bulgarian national who was
born in 1979 and was living in Vidin (Bulgaria).
    On the evening of 14 May 1994, when he was 14, while running to join
friends in the centre of Vidin, he was chased by two trainee police officers,
who mistook him for a person suspected of vandalism. The police officers
were patrolling in a private car without the supervising officer who was
supposed to accompany them. It is in dispute as to whether the police
officers identified themselves, but after a minute the applicant tripped, fell
to the ground and the police officers caught up with him. According to
witnesses they hit him repeatedly with their truncheons on the back and legs
and kicked him. The applicant claimed that he had received several
truncheon blows to the head. Shortly afterwards two sergeants arrived on
the scene and took the applicant to the emergency ward of Vidin Regional
Hospital. It was found that he had an injury on the back of his head. He also
complained of severe pain in the area of the right kidney. He was taken to
the surgical ward where the injury to his head was treated. From there he
was driven to the police station where it was established that he had no
connection with the acts of vandalism that had given rise to the incident. He
was then taken home. Alarmed at his condition his mother took him back to
the hospital, but was told that nothing more could be done for him, as there
were no doctors available. At the police station she was given the names of
the officers who assaulted her son.
    The following day the applicant went to the hospital, where he was
admitted to the surgical ward. He was diagnosed as suffering from
contusion in the right lumbar area, commotion of the right kidney and




                                       11
                        Annual Report 2007: Fifth Section


haematuria (blood in the urine). He remained in hospital until 28 May 1994.
Two days later, on 30 May 1994, the applicant was urgently admitted to the
urology centre of the Medical Academy in Sofia. Over the next two years
the applicant underwent numerous examinations of his right kidney. In July
1996 he was admitted to the urology ward of the National Institute for
Urgent Medical Care “Pirogov”, after complaining about pain in his right
lumbar area and on 22 July 1996 he underwent surgery to have his right
kidney removed.
   Following complaints lodged by the applicant’s parents, criminal
proceedings were opened against the two trainee officers in June 1994. A
forensic medical report was drawn up concluding that the beating had
caused the applicant a short-term life-threatening condition. On 6 July 1995
the applicant’s mother, acting for the applicant, who was still underage,
submitted a civil claim against the police officers, seeking 400,000 old
Bulgarian levs (BGL) on the applicant’s behalf.
   On 3 November 1995 the Pleven Military Prosecutor’s Office filed with
the Pleven Military Court an indictment charging the police officers with
causing “intermediate” bodily harm to the applicant. A further report by
three medical experts concluded, unlike the previous report, that the
applicant’s condition had not been truly life-threatening. They also found
that before the incident the applicant had been suffering from a congenital
kidney anomaly. In the experts’ view, the beating had caused the applicant
only a temporary (two or three-week) health problem.
   In view of the divergence of medical opinion, a third report was prepared
by five experts including the doctor who had drawn up the first report. They
concluded that it could not be categorically established that the beating had
not contributed to the need for the removal of the kidney, but the main
factor had been the congenital anomaly. At a later hearing the first medical
expert distanced herself from the conclusions of this report maintaining that
she stood by the opinion expressed in her initial report. The applicant
increased his civil claim to BGL 10,000,000.
   In a judgment of 26 January 1998 Pleven Military Court found the police
officers guilty of causing the applicant minor bodily harm and not guilty of
inflicting on him intermediate bodily harm. It sentenced them to five
months’ imprisonment, suspended for three years. The court also partially
allowed the applicant’s claim for damages, awarding him BGL 300,000.
   The police officers appealed, as did the applicant challenging the amount
of damages. In a judgment of 8 June 1998 the Military Court of Appeals
upheld the Pleven Military Court’s judgment. However it took the view that
a different finding could have been made as to the reason for the surgical
removal of the applicant’s right kidney. Since no appeal had been lodged by
the prosecution, the court merely noted that factual mistake and did not
correct it in its judgment by holding that the applicant had suffered
“intermediate” bodily harm.




                                       12
                        Annual Report 2007: Fifth Section


   The police officers appealed on points of law to the Supreme Court of
Cassation. The applicant also appealed, requesting an increase in the amount
of damages awarded. In a final judgment of 11 November 1998 the
Supreme Court of Cassation overturned the police officers’ convictions and
dismissed the applicant’s civil claim.
   The applicant complained about being ill-treated by two police officers
and the ensuing criminal proceedings, which resulted in their acquittal. He
relied, in particular, on Article 3 and Article 13.
   According to the Court’s case-law, Article 3 of the Convention does not
prohibit the use of force for effecting an arrest provided that it is
indispensable and not excessive. In the applicant’s case the Court found that
the injuries he had sustained at the hands of the police officers had led to
grave physical pain and suffering. Moreover, they had had lasting
consequences for his health. The acts of violence against the applicant had
been committed by the police officers in the performance of their duties and
they had taken place during the applicant’s arrest. However, the exact
circumstances of the arrest and intensity of the force used against the
applicant were disputed by the parties and had been subject to conflicting
assessments by the national courts. Disagreeing with the findings of the
lower courts, the Supreme Court of Cassation had held that the use of force
had been fully warranted. However, the acquittal of the officers by a
national court bound by the presumption of innocence and by the manner in
which domestic law regulated the use of force by the police did not absolve
Bulgaria from its responsibility under the Convention. Bearing in mind the
nature and the extent of the applicant’s numerous and serious injuries, the
circumstances surrounding his arrest (including the fact that the officers,
who had been merely trainees, had not been accompanied by a supervisor,
and the fact that at the material time the applicant had been only 14 years
old and clearly inferior to the officers in terms of physical strength), and
analysing those facts in the light of its case-law in this area, the Court
concluded that the force used against the applicant had been clearly
excessive, both in intensity and duration. There had therefore been a
violation of Article 3.
   The applicant further complained that the criminal proceedings against
the police officers, in which he had participated as a civil claimant, had been
unfair. He submitted that the courts had not been objective in their
assessment of the facts and had failed to redress the grievance which he
bore as a result of the beating. He relied on Articles 3, 6 and 13.
   The Court considered that the applicant’s complaints in that respect
under Articles 3 and 6 fell to be dealt with under Article 13, which required
the existence of a domestic remedy to enforce the substance of the
Convention rights and freedoms in whatever form they might be secured in
the national legal order.




                                       13
                        Annual Report 2007: Fifth Section


   While the authorities had investigated the applicant’s beating, brought
those responsible for it to trial, and convicted and sentenced them, the
conviction and sentence had been subsequently quashed and the police
officers who assaulted the applicant had been acquitted. That acquittal was
not due to the lack of sufficient proof that the officers had committed the act
alleged against them, but was the result of the manner in which the Supreme
Court of Cassation had interpreted the domestic-law provisions regulating
the use of force by the police. It was not for the Court to determine whether
that interpretation was correct. The Court had however to verify whether the
manner in which the law had been applied had led to a breach of the
applicant’s right under Article 13 to an effective remedy. In the case under
review the Supreme Court of Cassation had not embarked on an assessment
of the proportionality of the force used against the applicant. It had not
endeavoured to analyse the degree of force and whether it had been
necessary and proportionate in the circumstances.
   The lower courts had clearly established that the applicant had suffered
numerous injuries as a result of excessive force. Without questioning those
findings, the Supreme Court of Cassation held that that the officers had
lawfully assaulted the applicant, as he had tried to escape and had been –
albeit wrongfully – identified as the person wanted by the police. In so
doing, the Supreme Court had treated as irrelevant a number of other factors
– that at the time of the events the applicant had been 14 years old, that the
violence against him had continued after he had been subdued, and that the
beating had been wilful –, all of which were material for determining
whether the act complained of amounted to a breach of Article 3. That
approach was wholly inconsistent with the standards stemming from the
Strasbourg case-law in this field. The Supreme Court of Cassation had thus
failed to address the substance of the applicant’s Convention complaint and
there had therefore been a violation of Article 13.
   The remainder of the application was declared inadmissible.
   Under Article 41 (just satisfaction) of the Convention, the Court awarded
the applicant EUR 12,000 in respect of non-pecuniary damage and EUR
2,165 for costs and expenses.

8)    Ivanova v. Bulgaria, no. 52435/99

   The applicant, Kalinka Todorova Ivanova, is a Bulgarian national who
was born in 1950 and lives in Ruse (Bulgaria).
   She was a member of a Christian Evangelical Group, known as “Word of
Life”, which had become active in the early 1990s. Word of Life was one of
a number of mainly protestant groups which were refused registration under
the Persons and Family Act, effectively denying them legal status and,
among other things, the possibility of hiring meeting halls and opening bank
accounts.




                                       14
                        Annual Report 2007: Fifth Section


   As a result of the authorities’ refusal to register Word of Life, the
religious organisation began clandestine activities. Meetings were
periodically thwarted by the police followed by media propaganda against
the organisation and its members.
   Ms Ivanova had been employed as a “swimming pool manager” at the
River Shipbuilding and Navigation School in Ruse where several of the
non-academic staff were allegedly followers of Word of Life.
   In October 1995 the school principal was dismissed by the Ministry of
Education, Science and Technology (the Ministry) for, among other things,
not having dismissed members of staff who were followers of Word of Life
and for tolerating its activities.
   In November 1995 the applicant was put under pressure to resign or
renounce her faith by the Chief Education Inspector for Ruse and his
deputy, who said they would otherwise instruct the new principal to dismiss
her. She refused.
   In December 1995 the applicant was dismissed from the school because
she no longer met the educational and professional requirements of her post.
   On 27 May 1996 the applicant brought proceedings before Ruse District
Court challenging the lawfulness of the dismissal and seeking reinstatement
in her previous post and compensation for loss of income. She also alleged
that her dismissal had been directly related to her religious beliefs and her
refusal to resign, which amounted to religious discrimination.
   On 5 May 1997 Ruse District Court dismissed her claims. The court
found that her dismissal had been lawful and that her claim that her
dismissal had been motivated by her religious beliefs was unfounded.
   The applicant appealed unsuccessfully to Ruse Regional Court which, on
23 July 1997, found that the school had both a need and the right to change
the roster of posts and the requirements for the applicant’s post and to
dismiss her because she did not meet those requirements. It also found that
the district court had adequately addressed her allegations of religious
discrimination and found them to be “totally and irrefutably ... irrelevant”.
   The applicant filed a petition for review (cassation appeal), claiming that
the lower courts had failed to assess properly the evidence before them and
had never addressed the substance of her complaint alleging religious
discrimination. In a final judgment of 9 December 1998 the Supreme Court
of Cassation dismissed the applicant’s appeal.
   Relying on Articles 9 and 14, the applicant alleged that her right to
freedom of religion had been violated because her employment had been
terminated on account of her religious beliefs, which had amounted to
discrimination on religious grounds.
   The Court observed that at the heart of the applicant’s case was whether
her employment had been terminated solely as a result of the school’s need
to change the requirements for her post, as the Government claimed, or




                                       15
                        Annual Report 2007: Fifth Section


whether, as she argued, she had been dismissed because of her religious
beliefs.
   The Court noted that the Government had made lengthy submissions on
the secular nature of the system of education and the need to preserve it.
They referred to certain alleged instances of proselytising at the school by
staff members, but did not provide any evidence that there had ever been
any credible accusations that the applicant had engaged in such activities.
The Government’s submissions on that point had been somewhat
ambiguous and contradictory, because, despite the lengthy arguments
submitted in respect of the applicant’s alleged involvement in proselytising
at the school, they had explicitly claimed that the termination of her
employment had had nothing whatsoever to do with her religious beliefs.
   By assessing the facts in the case and considering the sequence of events
in their entirety, rather than as separate and distinct incidents, the Court
reached the conclusion that the applicant’s employment had been terminated
not simply because the requirements for her post had been altered, but in
reality because of her religious beliefs and affiliation with Word of Life.
That constituted an interference with her right to freedom of religion at
variance with Article 9. The fact that the applicant’s employment had been
terminated in accordance with the applicable labour legislation – by
introducing new requirements for her post which she failed to meet – did
not eliminate the substantive motive for her dismissal.
   The Court considered the State’s responsibility to be engaged by the fact
that the applicant was employed as a non-academic staff member at the
school, which was under the direct supervision of the Ministry. Moreover, it
noted activities such as the breaking up of gatherings of Word of Life
around the country and the involvement of other authorities and officials in
the events in question. Those events hinted at a policy of intolerance on the
part of the authorities during the relevant period towards Word of Life, its
activities and followers in Ruse, and at the school in particular. The
dismissal of the applicant soon after the appointment of a new principal
appeared, therefore, to have resulted directly from the implementation of
that policy.
   The Court found that the applicant’s right to freedom of religion under
Article 9 had been violated because her employment had been terminated on
account of her religious beliefs.
   The Court considered that there as no need to separately examine the
application under Article 14.
   Under Article 41 (just satisfaction), the Court awarded the applicant
EUR 589.23 in respect of pecuniary damage, EUR 4,000 in respect of non-
pecuniary damage and EUR 2,500 for costs and expenses.




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                         Annual Report 2007: Fifth Section


(9)   Gäfgen v. Germany, no. 22978/05

    The applicant was arrested on suspicion of having kidnapped an eleven-
year-old boy, the youngest son of a well-known banker’s family, in order to
extort a ransom from his parents. During police questioning he was
threatened with “considerable pain” at the hands of an interrogator if he did
not disclose the child’s whereabouts. The applicant then took the police to
the place where he had hidden the body before subsequently confessing to
the police, the public prosecutor and a district judge to the kidnapping and
killing of the boy. However, before his trial started, he lodged various
motions with the trial court seeking orders discontinuing the proceedings
and excluding prosecution evidence on the grounds that it had been obtained
by coercion. The trial court ruled that all the confessions and statements that
had been made by the applicant up to that point were inadmissible in
evidence. However, it went on to hold that the rights of the defence had not
been infringed to the extent that it was necessary to bar the continuation of
the criminal proceedings or to exclude evidence obtained from information
in the applicant’s statements. At the trial, despite being informed that he had
the right to remain silent and that his earlier statements could not be used in
evidence against him, the applicant again confessed to the kidnapping and
killing. That confession formed an essential, if not the only, basis for the
trial court’s findings of fact. The applicant was convicted of murder and
kidnapping and sentenced to life imprisonment. He lodged a complaint with
the Constitutional Court, but this was dismissed, inter alia, on the grounds
that there was no violation of fundamental rights if prohibited methods of
investigation were remedied by the exclusion of the statements thereby
obtained. The police officers involved were subsequently convicted of
coercion, after their defence of necessity had been rejected. The applicant
brought a claim for compensation against the Land for the trauma he alleged
he had suffered at the hands of the police. Although the regional court found
that the police officers had acted in breach of duty, it ruled that the applicant
had already obtained sufficient redress and was not entitled to
compensation.
    The applicant complains of torture and a breach of his right to a fair trial,
including his right not to incriminate himself.
    The Court declared the case admissible under Article 3 and under
Article 6 in so far as it relates to the decisions not to discontinue the
criminal proceedings or to exclude the evidence obtained as a result of the
applicant’s statements.




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                        Annual Report 2007: Fifth Section


(10) Vera Fernandez-Huidobro v. Spain, no. 74181/01

    The applicant was Minister of State for Security in the Ministry of the
Interior. Criminal proceedings were brought against him on counts of
misappropriation of public funds, holding a person against his will and
belonging to an armed group (as well as against police officers who
confessed their guilt, see decision Saiz Oceja v. Spain, 74182/01). The case
concerning the holding of a person against his will was assigned to central
investigating judge no. 5 (“the judge”) of the Audiencia nacional, who had
been elected to parliament and appointed Government Delegate for the
Ministry of the Interior. The applicant was placed under investigation. He
filed a criminal complaint against the judge of the criminal section of the
Supreme Court, for torture, threats, coercion and provocation during the
investigation, aimed at making him divulge secrets. The Supreme Court
dismissed the case. The judge summoned the applicant to appear in court as
a suspect. The applicant challenged the judge for bias, it being common
knowledge that they were not on good terms with each other, and because
the judge had taken part in political activities incompatible with his current
position as judge. The challenge was rejected, as was the amparo appeal the
applicant lodged with the Constitutional Court against that decision. The
applicant was charged at the judge’s request, and appealed. The criminal
section of the Audiencia nacional decided to release him on bail. A judge
delegated by the criminal section of the Supreme Court was assigned to the
case and continued the investigation, heard witnesses for the defence and
the prosecution and indicted both the Minister of the Interior and the
applicant. The criminal section of the Supreme Court dismissed the appeal
against the judge’s indictment. This was confirmed by a decision of the
Supreme Court. Once the investigation was completed, the case was sent
before the criminal section of the Supreme Court for trial. The applicant was
found guilty on several counts, including holding a person against his will.
The Minister of the Interior and the applicant were found guilty of
misappropriation of public funds. The criminal section of the Supreme
Court dismissed the application for the judge to be withdrawn. It rejected
the appeal to set aside the decision based on the new grounds for
challenging a judge introduced by the organic law, namely when the judge
has held a public office in which he might have been able to form an
opinion, to the detriment of the requisite impartiality, about the object of the
dispute or its cause, or about the parties, their representatives or the defence
counsel, as this legislative reform had no retroactive effect. Four of its
judges expressed dissenting opinions. The applicant filed an amparo appeal
against this judgment with the Constitutional Court. The appeal was
declared admissible, but dismissed. The court pointed out that it was not its
role to question the courts’ assessment of the evidence, and noted, with
detailed reasons, that the decision reached by the criminal section of the




                                       18
                        Annual Report 2007: Fifth Section


Supreme Court could not be considered arbitrary or unreasonable. The
ground of lack of impartiality was rejected. One judge expressed a separate
opinion.
   The Court declared the case admissible as regards the complaints of lack
of impartiality and the principle of the presumption innocence and
inadmissible as regards the remainder of the application (length of
proceedings).

(11) Svyato-Mykhaylivska Parafiya v. Ukraine, no. 77703/01

   The applicant, the Svyato-Mykhaylivska Parafiya, was created in 1989
by a group of 25 persons. The association was registered in 1990 as a
religious association of the Russian Orthodox Church in the Darnytsky
District of Kyiv. Since its registration, it belonged to the denomination of
the Ukrainian Orthodox Church of the Moscow Patriarchate. In accordance
with its statute, membership of the association was restricted by certain
conditions. On 24 December 1999 the association’s Parishioners’
Assembly, with 21 out of 27 of its members present, decided to withdraw
from the jurisdiction and canonical guidance of the Moscow Patriarchate
and to accept that of the Ukrainian Orthodox Church of the Kyiv
Patriarchate. It then requested the Kyiv City State Administration to register
changes and amendments to the statute adopted at its meeting of 24
December 1999. The domestic authorities, including the national courts,
rejected, for various reasons, the association’s requests. The association had
29 members in October 2000 and 30 in February 2005.
   The present application concerned the applicant’s complaints about the
unlawful refusal of the Ukrainian authorities to register amendments to its
statute following the decision of the highest governing body of the church to
change its denomination to the Ukrainian Orthodox Church of the Kyiv
Patriarchate. The association alleged that, as a result, parishioners of the
church were restricted in their right to practice their religion and were
unable to manage the parish’s property and its affairs. The applicant
association relied in particular on Articles 6 § 1 (right to a fair trial) and
Article 9 (freedom of thought, conscience and religion).
   The Court, after having examined submissions by the parties and relevant
circumstances of the case, considered that the interference with the
association’s rights was prescribed by law. Nevertheless, even though the
relevant law was accessible, it was not, from the Court’s point of view,
sufficiently “foreseeable”. It further held that the interference complained of
essentially pursued a legitimate aim, namely protection of public order and
safety and the rights of others.
   Moreover, the Court concluded that the interference at issue was not
justified. It noted that the lack of safeguards against arbitrary decisions by
the registering authority were not rectified by the judicial review conducted




                                       19
                        Annual Report 2007: Fifth Section


by the domestic courts, which were clearly prevented from reaching a
different finding due to the lack of coherence and foreseeability of the
legislation.
   The Court made no award for just satisfaction as the applicant
association submitted its claims out of time.

(12) Holy Synod of the Bulgarian Orthodox Church (represented by
     Metropolitan Inokentii) and Others v. Bulgaria, nos 412/03 and
     35677/04

   This case concerns alleged State intervention in a leadership quarrel
within the Bulgarian Orthodox Church that began in 1989, following the
democratisation of Bulgaria, when the legitimacy of the incumbent Patriarch
Maxim was challenged by a movement which considered his appointment
to have been in violation of traditional canons and the statute of the Church.
The applicant organisation represented that movement and gathered support
among a number of churches and monasteries. It appointed its own leader,
but was unsuccessful in its attempts to have him registered as the Head of
the Church. In 2001 a newly elected government publicly expressed their
opinion that Patriarch Maxim was the legitimate leader of the Church and
stated their intention to introduce legislation to put an end to the divisions
within the Church. This was achieved through the introduction of the
Religious Denominations Act 2003. It provided for the ex lege recognition
of the Bulgarian Orthodox Church and required its registration by the city
court. The applicant organisation then applied to the city court for the
registration of its local organisation in Sofia. Its request was made by its
leader Metropolitan Inokentii, who stated that he headed and represented the
Holy Synod and the Bulgarian Orthodox Church. However, the city court,
in a decision that was upheld on appeal, rejected the request, noting that it
had not been submitted by Patriarch Maxim. Thereafter, religious ministers
who continued to support the applicant organisation were dismissed and
local prosecutors were instructed to assist the Church, as represented by
Patriarch Maxim, to recover premises that had allegedly been unlawfully
occupied by the applicant organisation. In one of the decisions authorising
eviction, the prosecutor noted that the 2003 Act did not allow the existence
of more than one religious denomination with the same name and prohibited
the use of the name and property of a religious denomination by persons
who had seceded from it. In 2004 police blocked more than fifty churches
and monasteries in the country, evicted religious ministers and staff who
identified with the applicant organisation and transferred possession of the
buildings to representatives of Patriarch Maxim. According to the applicant
organisation, these buildings included several new churches that had been
built entirely under its leadership.




                                       20
                        Annual Report 2007: Fifth Section


   The applicants complain of State interference in the internal dispute
within the Church and with their freedom of religion through the arbitrary,
unlawful and unnecessary acts of the authorities that had compelled them to
accept Patriarch Maxim’s leadership and deprived them of property they
had built with their own funds.
   The Court declared the case admissible under Articles 6 (access to a
court), 9 and 13 of the Convention and Article 1 of Protocol No. 1.

(13) Kern v. Germany, no. 26870/04

    Under the Law on Contracts for Federal Employees persons in the
employ of federal, state or municipal bodies were required to recognise, and
act in accordance with, the free democratic order within the meaning of the
Basic Law. The applicant was dismissed from his job as an environmental
engineer with the Lübeck municipality after issuing a press release on
behalf of a right-wing extremist group on the day following the terrorist
attacks on the World Trade Centre and the Pentagon on 11 September 2001.
In the press release the United States were accused of terrorism, “one-eyed
idiocy” and of acting “in the interest of a Zionist oligarchy”. The 11
September attacks were described as “an act of liberation ... which had been
overdue for a long time”. The release ended with a general condemnation of
terrorist attacks. In finding the applicant’s dismissal to have been lawful, the
court of appeal noted that municipal employees were required, when
publicly commenting on current political affairs, to do so in a careful
manner in order not to damage public confidence in their impartial, just and
welfare-oriented performance and that it would not be possible for the
municipality to continue the employment as it could not rely on the
applicant respecting the free democratic order in the future. The applicant
was refused leave to appeal on points of law and the Federal Constitutional
Court declined to accept his constitutional complaint for adjudication.
    Inadmissible: It had to be determined whether a fair balance had been
struck between the fundamental right of the individual to freedom of
expression and the legitimate interest of a democratic State in ensuring that
public servants complied with their duty of discretion and obligation to
respect the free democratic order. The court of appeal had reasoned that the
press release issued by the applicant breached his obligation to recognise the
free democratic order and that the applicant had approved of the attacks and
tried to minimise their importance. It had also found that the municipality’s
interest in terminating the employment prevailed over the applicant’s
difficulty in finding alternative employment. That decision had been
approved by both the Federal Labour Court and the Federal Constitutional
Court. Having regard to all the circumstances, the court of appeal’s
assessment could not be said to have been arbitrary or to have failed to take
the applicant’s interests into account adequately. Its judgment was carefully




                                       21
                        Annual Report 2007: Fifth Section


reasoned. It had correctly comprehended the content and the consequences
of the applicant’s statements. By addressing the media, the applicant had
failed to take the adverse effects of such activities on the integrity of the
public service sufficiently into account. Therefore, the court of appeal’s
assessment of the duty of discretion incumbent on the applicant, even
though he was employed in a technical sector at the municipal level, had not
unduly restricted the freedom of expression of civil service employees.
Having regard to the domestic courts’ margin of appreciation the
interference was not disproportionate to the legitimate aim pursued:
manifestly ill-founded.

(14) Vomočil v. Czech Republic, no. 38817/04

   In 1995 the applicant acquired a block of flats subject to the rent-control
scheme. He succeeded into the existing lease agreements. As a result of the
rent ceilings provided for by law, the rent paid was almost four times lower
than the average market rent in Brno. The annual aggregate rent did not
cover the maintenance costs. Nor did it cover the cost of the loan, by means
of which the applicant had financed the reconstruction of his house and the
subsequent maintenance works. The Civil Code did not allow the lease
contracts to be terminated or renegotiated in order to increase rents without
the tenant’s consent. In 2000, the Constitutional Court declared the law on
the rent ceilings unconstitutional. In 2005, the applicant instituted
proceedings seeking to order his tenants to conclude amendments to their
respective lease contracts aimed at increasing the rent. The proceedings are
now pending before the first-instance court. In 2006, a new law entered into
force which entitled landlords to increase rents annually without the consent
of tenants and provided for new rent ceilings. However, it did not remedy
interferences with landlords’ property rights which had occurred prior to its
entry into force. The question of the constitutionality of this law is currently
under review by the Constitutional Court.
   Communicated under Articles 13 and 14 of the Convention and Article 1
of Protocol no. 1.

(15) Havelka and Others v. Czech Republic, no. 23499/06

   The applicants, Antonín Havelka and his children Šárka Havelková,
Tomáš Havelka and Eliška Havelková, are Czech nationals who were born
in 1950 and 1992, 1993 and 1994, respectively. Mr Havelka lives in Prague
and his children are currently in a public establishment in Radenín (Czech
Republic).
   After October 1995, when his wife left the family home, Mr Havelka
cared alone for their children and for his wife’s other three minor children.
In March 2004 Šárka, Tomáš and Eliška were temporarily placed in a public




                                       22
                        Annual Report 2007: Fifth Section


educational establishment. That measure was definitively extended in June
2004 and April 2005, on the ground that the care provided by Mr Havelka
was worsening and that, on account of his difficult financial position, his
flat was no longer connected to the electricity supply and the family was
threatened with eviction.
   The applicants alleged, in particular, that the State’s decision to take the
children into care had infringed their right to respect for family life. They
relied on Article 8 (right to respect for private and family life).
   The Court reiterated that the fact that a child could be placed in a more
beneficial environment for his or her upbringing did not on its own justify a
compulsory measure of removal from the care of the biological parents;
there had to exist other circumstances pointing to the “necessity” for such an
interference with the parents’ right under Article 8 to have a family life
with their child.
   Having regard to the circumstances of the case, the Court considered that
the decisions to place the children in care had not been supported by
sufficient reasons justifying them as proportionate to the legitimate aim
pursued. Notwithstanding the Czech authorities’ margin of appreciation, the
children’s placement in care had not been “necessary in a democratic
society”.
   The court awarded the applicants jointly EUR 10,000 for non-pecuniary
damage and EUR 2,000 for costs and expenses, less the EUR 850 already
received from the Council of Europe in legal aid.

(16) Ghosh v. Germany, no. 24017/03

    The applicant is wanted by the Indian authorities, under an arrest
warrant, for criminal conspiracy and fraud in several cases involving sums
in excess of two million euros. He was arrested in Germany and placed in
custody pending extradition. In a verbal note India requested the applicant’s
extradition, to which the Court of Appeal agreed. The court subsequently
rejected several appeals lodged by the applicant concerning the risk of
exposure to ill-treatment in India, as the reality of the risk of ill-treatment
and torture had not been demonstrated. The Federal Constitutional Court
declined to consider a constitutional appeal lodged by the applicant. The
applicant then swallowed a knife blade 10 cm long, which is still lodged in
his stomach today. The Court of Appeal rejected a new appeal by the
applicant, noting inter alia that the fact that the applicant had swallowed a
knife blade and refused to have an operation to remove it only affected his
fitness for transport, i.e. the enforceability of his extradition, not its
admissibility. The Federal Constitutional Court declined to consider a new
constitutional appeal lodged by the applicant. At regular intervals the Court
of Appeal subsequently extended the applicant’s detention pending
extradition. According to a medical report, the blade might injure the




                                       23
                        Annual Report 2007: Fifth Section


applicant if he made certain movements while resisting transport. According
to the prison authorities, the applicant’s health has deteriorated but he
refuses to undergo treatment.
    Inadmissible under Article 3 – The Court held that an applicant could not
claim to be a ”victim” of an expulsion measure when that measure could not
be enforced. By swallowing a knife blade which was still in his stomach and
which he refused to have removed, the applicant had in effect created an
obstacle to his extradition. The Court of Appeal had considered that his
unfitness for transport did not affect the admissibility of the extradition but
only its enforceability. Were the present obstacle to the extradition to be
removed, the Court of Appeal would examine the applicant’s health to
determine whether he was fit to travel, would re-examine the risk of
treatment prohibited under Article 3 of the Convention as a result of the
criminal proceedings in India and the conditions of detention there, and
would allow the applicant sufficient time to make submissions. As things
stood, the applicant’s extradition did not appear to be imminent and the
applicant could not claim to be a victim of the alleged violations: manifestly
ill-founded.

(17) Jorgic v. Germany, no. 74613/01

   The applicant, Nicola Jorgic, is a national of Bosnia and Herzegovina, of
Serb origin, who was born in 1946 in Doboj (Bosnia). He legally resided in
Germany from 1969 to 1992. At the time of lodging his application, he was
serving a sentence of life imprisonment in Bochum (Germany).
   In 1992 Mr Jorgic returned to his place of birth, Doboj. In December
1995 he was arrested on his return to Germany and placed in pre-trial
detention on the ground that he was strongly suspected of having committed
acts of genocide during the ethnic cleansing which took place in the Doboj
region between May and September 1992.
   Mr Jorgic was accused of setting up a paramilitary group which had
participated in the arrest, detention, assault, ill-treatment and killing of
Muslim men from three villages in Bosnia in the beginning of May and June
1992. In June 1992, he had also shot 22 inhabitants of another village,
including women, the elderly and disabled. Subsequently, Mr Jorgic with
his paramilitary group had chased some 40 men from their village and had
ordered them to be ill-treated and six of them to be shot. A seventh injured
person had died from being burnt along with the corpses of those six people.
In September 1992 he had killed a prisoner with a wooden truncheon in
order to demonstrate a new method of ill-treatment and killing.
   In a judgment of 26 September 1997, Düsseldorf Court of Appeal,
relying on Article 220a of the Criminal Code, convicted the applicant of
those accusations. He was found guilty, in particular, of acting with intent to
commit 11 counts of genocide, murder of 22 people and dangerous assault




                                       24
                         Annual Report 2007: Fifth Section


and deprivation of liberty. Stating that his guilt was of a particular gravity,
the court sentenced him to life imprisonment.
    The court stated that it had jurisdiction over the case pursuant to Article 6
no. 1 of the Criminal Code. There was a legitimate link for criminal
prosecution in Germany, as this was in accordance with Germany’s military
and humanitarian missions in Bosnia and Herzegovina and the applicant had
resided in Germany for more than 20 years and had been arrested there.
Furthermore, agreeing with the findings of an expert in public international
law, the court found that the German courts were not debarred under public
international law from trying the case. In particular, neither Article VI of the
Convention on the Prevention and Suppression of the Crime of Genocide
(Genocide Convention) (1948), nor Article 9 of the Statute of the
International Criminal Tribunal for the Former Yugoslavia (ICTY Statute)
(1993) excluded the jurisdiction of German courts over acts of genocide
committed outside Germany by a foreigner against foreigners.
    The court also found that the applicant had acted with intent to commit
genocide within the meaning of Article 220a of the Criminal Code.
Referring to the views expressed by several legal writers, it stated that the
“destruction of a group” within the meaning of Article 220a of the Criminal
Code meant destruction of the group as a social unit in its distinctiveness
and particularity and its feeling of belonging together ; a biological-physical
destruction was not necessary. It concluded that the applicant had therefore
acted with intent to destroy the group of Muslims in the North of Bosnia, or
at least in the Doboj region.
    Ultimately, following further proceedings before the domestic courts, the
judgment of Düsseldorf Court of Appeal of 26 September 1997 remained
final regarding the applicant’s conviction for genocide and on eight counts
of murder, including the court’s finding that his guilt was of a particular
gravity.
    Relying in particular on Article 5 § 1 (a) (right to liberty and security)
and Article 6 § 1 (right to a fair trial), Mr Jorgic alleged that the German
courts had not had jurisdiction to convict him. Moreover, he complained
that his conviction for genocide was in breach of Article 7 § 1 (no
punishment without law) in particular because the national courts’ wide
interpretation of that crime had no basis in German or public international
law.
    The Court observed that the German courts’ interpretation of Article VI
of the Genocide Convention in the light of Article I of that Convention and
their establishment of jurisdiction to try the applicant on charges of
genocide was widely confirmed by the statutory provisions and case-law of
numerous other Contracting States to the European Convention on Human
Rights and by the Statute and case-law of the ICTY. Furthermore, Article 9
§ 1 of the ICTY Statute confirmed the German courts’ view, providing for




                                        25
                        Annual Report 2007: Fifth Section


concurrent jurisdiction of the ICTY and national courts, without any
restriction to domestic courts of particular countries.
   The Court further noted that the German courts’ interpretation of the
applicable provisions and rules of public international law was not arbitrary.
They therefore had reasonable grounds for establishing their jurisdiction to
try the applicant on charges of genocide. It followed that the applicant was
heard by a tribunal established by law within the meaning of Article 6 § 1 of
the Convention.
   The Court therefore concluded that the applicant was lawfully detained
after conviction “by a competent court” within the meaning of Article 5
§ 1 (a) of the Convention.
   The Court considered that, while many authorities had favoured a narrow
interpretation of the crime of genocide, there had already been several
authorities which had interpreted the offence of genocide in a wider way, in
common with the German courts. In those circumstances it found that the
applicant, if need be with the assistance of a lawyer, could reasonably have
foreseen that he risked being charged with and convicted of genocide for the
acts he had committed. In that context the Court also noted that the
applicant was found guilty of acts of a considerable severity and duration.
   Those requirements having been met, it was for the German courts to
decide which interpretation of the crime of genocide under domestic law
they wished to adopt. Accordingly, the applicant’s conviction for genocide
was not in breach of Article 7 § 1 of the Convention.

(18) Nanning v. Germany, no. 39741/02

   The applicant, Sabine Nanning, is a German national who was born in
1961 and lives in Düsseldorf (Germany).
   In 1987 Mrs Nanning decided to join a married couple and their four
children in order to live together with them and her own daughter E, aged
four, as one family. When the relationship between the adults deteriorated in
1991, E remained with the other couple, who prevented contacts between
Mrs Nanning and her daughter. From 1991 onwards she unsuccessfully
attempted to have her daughter returned.
   She relied, in particular, on Article 6 § 1 (right to a fair hearing within a
reasonable time) and Article 8 (right to respect for private and family life).
   Noting that the proceedings were pending for four years before
Düsseldorf Regional Court, the Court held unanimously that there had been
a violation of Article 6 § 1. It also considered that the domestic courts
adduced relevant reasons for rejecting the applicant’s request to return E,
and therefore held that there had been no violation of Article 8 as regards
the continued placement in the foster family and partial transferral of
custody rights. The Court further noted that the reasons which Düsseldorf
Regional Court relied on to exclude the applicant’s access to her child were




                                       26
                        Annual Report 2007: Fifth Section


insufficient to justify such interference in the applicant’s family life.
Therefore it held that there had been a violation of article 8 as regards the
exclusion of access rights.
   Mrs Nanning was awarded EUR 8,000 in respect of non-pecuniary
damage and EUR 397.35 for costs and expenses.

(19) Stankov v. Bulgaria, no. 68490/01

   The applicant, Parvan Slavchev Stankov, is a Bulgarian national who
was born in 1952 and lives in Sofia.
   He instituted proceedings against the State for damage caused by his
unjustified pre-trial detention. The domestic courts held that the State was
liable and awarded damages to the applicant. However, applying the court-
fee system under the State Responsibility for Damage Act, the domestic
courts ordered the applicant to pay court fees in an amount equal to
approximately 90% of the award made. The applicant thus lost his
compensation in court fees.
   He relied in particular on Article 6 § 1 (access to a court) of the European
Convention on Human Rights.
   The Court held unanimously that there had been a violation of Article 6
§ 1 (access to court). It held that the imposition of a considerable financial
burden due after the conclusion of the proceedings might well act as a
restriction on the right of access to a court. The costs order against the
applicant had constituted such a restriction. The Court further found that the
impugned court-fee system had failed to take into account the difficulty of
assessing likely awards for non-pecuniary damage. The court fees had been
particularly significant because the relevant legislation imposed a flat 4%
rate with no upper limit and no room for any judicial discretion. Despite its
legitimate aim, the court-fee system under the State Responsibility for
Damage Act had resulted in a disproportionate restriction on the applicant’s
right to a court, as a consequence in particular of its automatic nature.
   The Court awarded Mr Stankov 2,000 EUR in respect of non-pecuniary
damage and EUR 1,300 for costs and expenses.

(20) Angelova and Iliev v. Bulgaria, no. 55523/00

    The applicants, Ginka Dimitrova Angelova, and her son, Mitko Dimitrov
Iliev, are Bulgarian nationals.
    They are the mother and brother of Angel Dimitrov Iliev, of Roma
origin, who was attacked by seven teenagers in the evening of 18 April
1996, in Shumen (Bulgaria). He was severely beaten and also stabbed
several times by one of the assailants. Although he was later taken to
hospital, he died the following morning.




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    The police detained the assailants and questioned them on the day of the
attack. One of them, G.M.G. – after being identified by two of the others
(N.K. and S.H.) as the person who had stabbed Angel Dimitrov Iliev – was
charged with murder stemming from an act of hooliganism. The
investigators were informed by another of the assailants, D.K., that the
attack had been racially motivated because the victim was of Roma origin.
    An autopsy of the victim was performed on 20 April 1996. It established
that he had been stabbed three times in the thigh and twice in the abdomen.
He also had bruises on his face and the back of his head. The autopsy
concluded that the cause of death was internal haemorrhaging, resulting
from the severance of the profunda femoris artery in his thigh.
    On 15 and 16 May 1996 four of the assailants were charged with
hooliganism of exceptional cynicism and impudence.
    On 14 June 1996 the Shumen District Prosecutor’s Office found that
there was a lack of evidence that G.M.G. had stabbed the victim, dismissed
the charges against him and released him. He was then charged in the same
way as the other four assailants. And, on 21 June 1996, N.R. and S.H. were
charged with having made false statements against G.M.G..
    On 26 June 1996 the second assailant was charged with negligent
homicide. He pleaded not guilty.
    On several occasions the applicants made unsuccessful attempts to gain
information on the progress of the case. However, sometime in the spring of
1999, their lawyer was granted access to the case file.
    On 18 October 1999 the applicants filed a request to be recognised as
civil claimants in the criminal proceedings and, on 18 December 1999, they
filed a complaint about the length of the proceedings. It appears that no
action was taken in response to their complaint.
    Subsequently, a number of face-to-face meetings were organised
between various of the assailants and reports were requested by the
investigating authorities.
    On 17 April 2000 Ginka Dimitrova Angelova was recognised as a civil
claimant in the criminal proceedings.
    On 12 June 2001 the investigator in charge concluded that the case
should go to trial and the case file was transferred to the Shumen Regional
Prosecutor’s Office. There was then no development in the criminal
proceedings for four years.
    On 18 March 2005 the prosecutor’s office dismissed the hooliganism and
false incrimination charges against all the assailants who had been juveniles
at the relevant time, because the time limit for bringing a case against them
had expired. Relying on the evidence collected and the tests conducted in
the course of the preliminary investigation, the prosecutor’s office also
dismissed the charges against the second assailant for negligent homicide
and remitted the case for further investigation, with instructions that G.M.G.
be again charged with murder stemming from an act of hooliganism. A




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hooliganism charge remained in relation to another of the accused, who had
been 18 years old at the time of the attack.
   On 22 April 2005 the applicants and the victim’s three sisters filed a
request to be recognised as civil claimants in the criminal proceedings and
claimed damages.
   On 16 May 2005 the applicants’ lawyer was informed that the case file
had been requested and was being held by the Ministry of Justice. The
Court has not been informed of any further developments in the criminal
proceedings.
   The applicants alleged that the authorities failed to carry out a proper
investigation capable of leading to the trial and conviction of the individuals
responsible for the ill-treatment and death of their relative. They also
complained that domestic criminal legislation contained no specific
provisions or penalties for racially-motivated crimes. Lastly, the applicants
alleged that the excessive length of the criminal proceedings had prevented
them from gaining access to a court to claim damages. They relied on
Article 2, Article 3 (prohibition of inhuman or degrading treatment), Article
13 (right to an effective remedy), Article 14 and Article 6 § 1 (right to a fair
hearing) of the Convention.
   The Court observed that the preliminary investigation into Angel
Dimitrov Iliev’s death had been opened almost immediately after the attack
on 18 April 1996. Within less than a day investigators had identified those
who had perpetrated the attack, had detained or questioned all of them and
had charged the first assailant. At the same time, the investigation was
informed by one of the assailants, D.K., that the attack had been racially
motivated because the victim was of Roma origin. Within another month,
medical and other reports had been requested and the remaining five
assailants had been charged. The Court further observed that the changes in
the testimonies of those assailants who had at first blamed G.M.G. for
stabbing the victim had initially been dealt with expeditiously by the
authorities.
   Over the next three years, however, the preliminary investigation became
protracted for undisclosed reasons, with investigative procedures being
performed approximately once a year. From 1999 to 2001 there was more
activity on the part of the authorities, but nothing further of substance
transpired. Then, for a period of four years between 2001 and 2005, there
were absolutely no further developments and the criminal proceedings
remained at the investigation stage until the case before the European Court
was communicated to the Bulgarian Government. As a result of the
accumulated delays, the time limit expired for prosecuting the majority of
the assailants. Thus, in spite of the authorities having identified the
assailants almost immediately after the attack and having determined with
some degree of certainty the identity of the person who had stabbed the
victim, no one was brought to trial for the attack on the applicants’ relative




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over a period of more than 11 years. The Court further observed that the
Government had failed to provide convincing explanations for the length of
the criminal proceedings.
    The Court recognised that the preliminary investigation was still pending
against two of the assailants, but, considering the length of the proceedings
so far, it found it questionable whether either of them would ever be brought
to trial or be successfully convicted. The Court also did not consider that the
applicants should have waited for the completion of the criminal
proceedings before filing their complaints before the Court, as the
conclusion of those proceedings would not remedy their overall delay in any
way.
    As to whether Bulgaria’s legal system provided adequate protection
against racially-motivated offences, the Court observed that there were no
specific crimes for racially- motivated murder or serious bodily injury and
no explicit penalty-enhancing provisions relating to such offences.
However, the Court considered that other means might also be employed to
attain the desired result of punishing perpetrators with racist motives. The
possibility existed in domestic legislation to impose a more severe sentence
depending on, among other things, the motive of the offender. The Court
further observed that the authorities had charged the assailants with
aggravated offences, which, though failing to make a direct reference to the
perpetrators’ racist motives, provided for more severe sentences than those
envisaged under domestic legislation for racial hatred offences. Thus, it did
not consider that domestic legislation and the lack of penalty-enhancing
provisions for racist murder or serious bodily injury were responsible for
hampering or constraining the authorities from conducting an effective
investigation into Angel Dimitrov Iliev’s death and applying existing
domestic legislation effectively.
    The Court concluded that the authorities had failed in their obligation
under Article 2 to effectively investigate Angel Dimitrov Iliev’s death
promptly, expeditiously and with the required vigour, considering the racial
motives of the attack and the need to maintain the confidence of minority
groups in the ability of the authorities to protect them from the threat of
racist violence. There had therefore been a violation of Article 2.
    The Court did not consider it necessary to make a separate finding under
Articles 3 and 13.
    The Court noted that the racist motives of the assailants in perpetrating
the attack against Angel Dimitrov Iliev had become known to the authorities
at a very early stage of the investigation, when D.K. had given a statement
to that affect on 19 April 1996. The Court considered it completely
unacceptable that, while aware that the attack was incited by racial hatred,
the authorities had not completed the preliminary investigation against the
assailants and brought them to trial expeditiously. On the contrary, they
allowed the criminal proceedings to procrastinate and to remain at the




                                       30
                        Annual Report 2007: Fifth Section


investigation stage for more than 11 years. As a result, the time limit
expired for prosecuting the majority of the assailants. In addition, the Court
observed that the authorities had failed to charge the assailants with any
racially-motivated offences. It noted in that respect the widespread
prejudices and violence against Roma during the relevant period and the
need to reassert continuously society’s condemnation of racism and to
maintain the confidence of minorities in the authorities’ ability to protect
them from the threat of racist violence. The Court concluded that the
authorities had failed to make the required distinction from other, non-
racially motivated offences, which constituted unjustified treatment
irreconcilable with Article 14. Consequently, it found that there had been a
violation of Article 14 taken in conjunction with Article 2.
    The Court did not consider it necessary to make a separate finding under
Article 14 taken in conjunction with Article 3.
    The Court noted that the applicants had not brought a civil claim against
Angel Dimitrov Iliev’s assailants and that, had they done so, the competent
civil court would have been able to accept it for examination. It was true
that the court would have, in all likelihood, stayed the proceedings, had it
found that the relevant facts involved criminal acts. However, the civil
courts were not bound by a refusal or delay of the prosecuting authorities to
investigate. In circumstances where the applicants did not bring a civil
action, it was pure speculation to consider that the civil proceedings would
have remained stayed for a long period, as claimed by the applicants. Their
complaint that the length of the criminal proceedings effectively denied
them access to a court to claim damages was therefore declared
inadmissible.
    Under Article 41 (just satisfaction), the Court awarded EUR 15,000 in
respect of non-pecuniary damage, payable jointly to the applicants, and
EUR 3,500 in respect of costs and expenses.

(21) Peev v. Bulgaria, no. 64209/01

   The applicant, Peycho Ivanov Peev, is a Bulgarian national who was
born in 1968 and lives in Sofia. He was employed as an expert at the
Criminology Studies Council of the Supreme Cassation Prosecutor’s Office.
   On 13 May 2000 the daily newspaper Trud published a letter written by
Mr Peev in which he criticised the Chief Prosecutor. In retaliation, the
applicant alleged that a search was unlawfully carried out of his office and
that a draft letter of resignation was seized and used against him so that he
was dismissed from his post. Following civil proceedings he brought against
the Prosecutor’s Office, the domestic courts declared in March 2002 that the
termination of his contract was unlawful. That judgment ordered the
applicant to be reinstated to his former post and awarded him compensation.
He was never reinstated but, in April 2003 and independently of the Court




                                       31
                        Annual Report 2007: Fifth Section


order, he was given an appointment in a similar body (now under the
authority of the Ministry of Justice) to his former post.
   He relied, in particular, on Article 8 (right to respect for private and
family life and for correspondence), Article 10 (freedom of expression) and
Article 13 (right to an effective remedy).
   The Court found that Mr Peev could reasonably have expected his desk
and filing cabinets to be treated as private property, particularly given the
personal belongings he had kept there. The Court concluded that the search
had amounted to interference by a public authority with the applicant’s
private life. The Government had not relied on any domestic law or
regulations governing the Prosecutor’s Office to justify the fact that the
applicant’s office had been searched even though no criminal investigation
had been brought against him. The Court therefore found that that
interference had not been “in accordance with the law” and held,
unanimously, that there had been a violation of Article 8.
   The Court noted that Mr Peev’s office had been sealed off and searched
and he had been dismissed very shortly after the publication of his letter.
The sequence of those events led the Court to conclude that the measures
taken against the applicant had resulted from the accusations in his letter.
Those measures amounted to restrictions which interfered with the
applicant’s right to freedom of expression. Given that the applicant’s
dismissal had already been found unlawful in the domestic proceedings, that
interference had not been “prescribed by law”. Accordingly, the Court
found unanimously that there had been a violation of Article 10.
   The Court further noted that the domestic proceedings in which Mr Peev
had challenged his dismissal had only concentrated on his complaint about
whether he had actually lawfully given his resignation. No remedy had been
provided with which he could effectively complain about his freedom of
expression having been breached. Neither did the Government indicate a
remedy whereby the applicant could have obtained redress for the unlawful
search of his office. The Court therefore held unanimously that there had
also been a violation of Article 13 in conjunction with Articles 8 and 10.
   Mr Peev was awarded EUR 5,000 for non-pecuniary damage and
EUR 2,613.66 for costs and expenses, to be paid to the applicant’s
representative, Mr D. Kanchev.

(22) Poznanski and Others v. Germany, no. 25101/05

   During the Second World War the applicants and their relatives, then
Polish nationals, were subjected to forced labour in a concentration camp
which was operated by an industrial corporation. In 1999 they sued the
corporation’s legal successor for compensation. In August 2000 a law
entered into force which provided for the establishment of a public-law
foundation “Remembrance, Responsibility and Future” to oversee a scheme




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                        Annual Report 2007: Fifth Section


to compensate former forced labourers. The law stipulated that
compensation could only be requested pursuant to its provisions and that all
further claims against the German State and German companies became
extinct. In 2001 the regional court rejected the applicants’ actions. They
appealed unsuccessfully. They were subsequently granted payments under
the new law.
   Inadmissible: The applicants’ claims before the domestic courts, under
the ordinary rules of tort law, had constituted “possessions”. As a result of
the new law, they had lost their claims. The loss of claims had constituted a
“deprivation of possessions”. Instead of having a claim, they had become
eligible for, and received, compensation from the fund which had been set
up by the Federal Republic of Germany and German industry. Since the law
had, inter alia, been aimed at creating legal certainty for German industry
and the German State, the replacement of the applicants’ claims could be
considered to be “in the public interest”. The claims which the applicants
had lost were not assets in the sense of matters which had a physical
existence and a quantifiable value; indeed, the substance of the claims had
not been adjudicated on and the applicants had never had the benefit of a
final judgment in their favour. Moreover, the applicants’ actions had
involved a challenge to the settled case-law, which indicated clearly that the
actions would be time-barred. In this, the applicants’ loss had been
substantially less than that suffered by applicants in cases where pending
claims had had substantial prospects of success. Instead, they had been
awarded the maximum amount available under the compensation scheme
set up by the law (about EUR 7,700 each). Although their civil claims
against the successor company had been for amounts considerably in excess
of that figure, namely for the sums of between EUR 20,000 and 36,000,
they could have been protracted and would have been subject to the usual
risks of civil litigation, whereas the compensation payments had been made
out of the fund with a minimum of formality and relatively speedily.
Finally, the Court noted the substantial public interest in setting up the
foundation to deal comprehensively with all compensation claims for forced
labour under the Nazi regime. The interference with the applicants’ right of
property had therefore not upset the “fair balance” which had to be struck
between the protection of property and the requirements of the general
interest: manifestly ill-founded.

(23) Gajic v. Germany, no. 31446/02

   The application was lodged by a Serbian national who complained under
Art. 8 that the German KFOR contingent used his apartment in Prizren
without compensation.
   With reference to Behrami and Behrami v. France and Saramati v.
France, Germany and Norway (dec.), nos. 7412/01 and 78166/01, § 71,




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                        Annual Report 2007: Fifth Section


ECHR 2007, the Court found that the application was incompatible ratione
personae. In any event, it was premature, as administrative proceedings are
pending in Germany.

(24) Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland
     no. 32772/02

   The applicant, Verein gegen Tierfabriken Schweiz (VgT), is a Swiss-
registered animal-protection association which, among other things,
campaigns against experiments on animals and battery farming.
   In response to various advertisements produced by the meat industry, it
made a television commercial which showed a noisy hall with pigs in small
pens and compared the conditions to those in concentration camps. The
commercial ended with the words: “Eat less meat, for the sake of your
health, the animals and the environment”.
   Permission to broadcast the commercial was refused on 24 January 1994
by the Commercial Television Company (AG für das Werbefernsehen –
now Publisuisse S.A.) and at final instance by the Federal Court, which
dismissed an administrative-law appeal by the applicant association on 20
August 1997.
   The applicant association lodged an initial application (no. 24699/94)
with the European Court of Human Rights, which in a judgment of 28 June
2001 held that the Swiss authorities’ refusal to broadcast the commercial in
question had breached the association’s freedom of expression. It found a
violation of Article 10 and awarded the applicant association 20,000 Swiss
francs (approximately EUR 12,000) for costs and expenses.
   On 1 December 2001, on the basis of the Court’s judgment, the applicant
association applied to the Federal Court for revision of the final domestic
judgment prohibiting the commercial from being broadcast. In their
respective observations of 10 January and 15 February 2002, which were
duly communicated to the applicant association, the Federal Department of
Environment, Transport, Energy and Communication and the Swiss Radio
and Television Company submitted that the request for revision should be
refused.
   In a judgment of 29 April 2002 the Federal Court refused the request for
revision, finding that the applicant association had not provided a sufficient
explanation of the nature of “the amendment of the judgment and the
redress being sought” and had been unable to show how revision of the
judgment was the only means of affording redress. It added that the
association had not sufficiently shown that it still had an interest in
broadcasting the commercial, which now appeared out of date, almost eight
years after it had initially intended to do so.
   The Committee of Ministers of the Council of Europe, which is
responsible for supervising execution of the Court’s judgments, had not




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                        Annual Report 2007: Fifth Section


been informed of the Federal Court’s refusal of the request for revision and
accordingly ended its examination of the applicant association’s initial
application (no. 24699/94) by adopting a resolution in July 2003. However,
the resolution noted the possibility of lodging a request for revision with the
Federal Court.
    In July 2002 the applicant association lodged the application in the
present case with the Court, contesting the refusal of its request for revision.
The Court pointed out, in particular, that the grounds given by the Federal
Court as to the applicant association’s interest in broadcasting the television
commercial were capable of giving rise to a fresh interference with its
freedom of expression.
    It therefore held that the association’s complaint under Article 10
concerning the Federal Court’s refusal to revise its judgment of 20 August
1997 should be viewed as raising a new issue not determined by the
judgment of 28 June 2001.
    The applicant association alleged that the continued prohibition on
broadcasting the television commercial in question, after the Court had
found a violation of its freedom of expression, constituted interference in
breach of its freedom of expression under Article 10.
    The Court noted that the Federal Court had refused the applicant
association’s request for revision on the ground that the association had not
provided a sufficient explanation of the nature of “the amendment of the
judgment and the redress being sought”. That approach appeared overly
formalistic, seeing that it followed from the circumstances of the case as a
whole that the association’s request concerned the broadcasting of the
commercial in question, which had been prohibited by the Federal Court
itself on 20 August 1997.
    The Court further noted that the Federal Court had held that the applicant
association had not sufficiently shown that it still had an interest in
broadcasting the commercial in its original version. In doing so, it had
effectively taken the place of the association in deciding whether there was
still any purpose in broadcasting the commercial and had itself failed to
explain how the public debate on battery farming had changed or become
less topical since 1994.
    The Court accordingly considered that the reasons given by the Swiss
Federal Court, having regard to the case as a whole and to the interest of a
democratic society in ensuring and maintaining freedom of expression in
matters of indisputable public interest, were not “relevant and sufficient” to
justify the interference in issue. There had therefore been a violation of
Article 10.
    Judges Jaeger and Borrego Borrego expressed a dissenting opinion,
which is annexed to the judgment.




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(25) Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria,
     no. 14134/02

    The applicants are Glas Nadezhda EOOD, a limited liability company set
up in 2000 and based in Sofia, and its only member and manager, Anatoliy
Elenkov, a Bulgarian national, born in 1972 and living in Sofia. Mr Elenkov
is a Christian and a member of the Protestant Church in Bulgaria.
    In August 2000 Glas Nadezhda EOOD applied to the State
Telecommunications Commission (the “STC”) for a licence to set up a radio
station to broadcast Christian programmes in and around Sofia. On 2
November 2000 the STC refused to grant the licence. That refusal was
based on a decision taken on 2 October 2000 by the National Radio and
Television Committee (the “NRTC”) which found that, on the basis of the
documents submitted by Glas Nadezhda EOOD, the proposed radio station
would not meet its requirements to make social and business programmes or
to target regional audiences. The proposals also failed to fully meet its
requirements to produce original programmes, to ensure audience
satisfaction and to provide the professional and technological resources
required.
    Glas Nadezhda EOOD brought proceedings before the Supreme
Administrative Court for judicial review of the STC’s decision. It submitted
in particular that the courts should first examine whether the NRTC’s
decision was lawful before ruling on the STC’s decision. The NRTC had
not explained why the applicants’ documents had failed to meet its
requirements, in breach of the rules of procedure and the requirement that
administrative decisions be reasoned. The Supreme Administrative Court
dismissed that application on the ground that the STC was bound by the
NRTC’s decision and could not review its lawfulness. That court could not
examine the lawfulness of the NRTC’s decision either because the
proceedings in question were against the STC. It could only review the
NRTC’s decision in separate proceedings.
    Glas Nadezhda EOOD’s ensuing application for judicial review of the
NRTC’s decision was dismissed on 28 December 2002. The Supreme
Administrative Court held that the NRTC had total discretion in assessing
whether an application for a broadcasting licence had met certain criteria
and that that discretion was not open to judicial scrutiny.
    In the meantime, Mr Elenkov attempted to obtain a copy of the minutes
of the NRTC’s deliberations, which were meant to be available to the public
under the Access to Public Information Act 2000. Despite his requests and a
court order, Mr Elenkov has not yet had access to those minutes.
    Relying on Articles 9 (freedom of thought, conscience and religion) and
10 (freedom of expression), the applicants complained that Glas Nadezhda
EOOD was refused a broadcasting licence. They also complained under




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                        Annual Report 2007: Fifth Section


Article 13 (right to an effective remedy) about the ensuing judicial review
proceedings.
   The Court noted that the interference with the applicants’ freedom of
expression had stemmed entirely from the NRTC’s decision, which had
been binding on the STC by law.
   The NRTC had not held any form of public hearing and its deliberations
had been kept secret, despite a court order obliging it to provide the
applicants with a copy of its minutes. Furthermore, the NRTC had merely
stated in its decision of 2 October 2000 that Glas Nadezhda EOOD had not
or had only partially corresponded to a number of its criteria. No reasoning
was given to explain why the NRTC came to that conclusion or why it had
exercised its discretion to deny a broadcasting licence.
   No redress had been given either for that lack of reasoning in the ensuing
judicial review proceedings because it had been held that the NRTC’s
discretion had not been reviewable. That, together with the NRTC’s
vagueness concerning certain criteria for programmes, had denied the
applicants legal protection against arbitrary interference with their freedom
of expression. Indeed, guidelines adopted by the Council of Europe’s
Committee of Ministers in the broadcasting regulation domain called for
open and transparent application of regulations governing licensing
procedures and specifically recommended that “[a]ll decisions taken ... by
the regulatory authorities ... be ... duly reasoned [and] open to review by the
competent jurisdictions”.
   Consequently, the Court concluded that the interference with the
applicants’ freedom of expression had not been lawful and held that there
had been a violation of Article 10.
   Given its findings under Article 10, the Court considered that it was not
necessary to examine separately whether there had been a violation of
Article 9.
   The Court found that the approach taken by the Supreme Administrative
Court in the applicant’s case, which had involved refusing to interfere with
the NRTC’s discretionary powers, had fallen short of Article 13
requirements, which obliged the domestic authorities to examine the
substance of the Convention complaint. That meant examining whether the
interference with the applicants’ rights had answered a pressing social need
and had been proportionate to the legitimate aims pursued. The Court
therefore held that there had been a violation of Article 13 in conjunction
with Article 10.
   Under Article 41 (just satisfaction), the Court awarded the applicants
EUR 5,000 in respect of non-pecuniary damage and EUR 2,500 for costs
and expenses.




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(26) Khamidov v. Russia, no. 72118/01

    The applicant, Khanbatay Abulkhanovich Khamidov, is a Russian
national who was born in 1954 and lives in the village of Bratskoye
(Chechnya).
    Mr Khamidov and his brother, Dzhabrail Abulkhanovich Khamidov,
own land in Bratskoye on which they each have a house and on which their
family business (a bakery) is located, including industrial buildings, a mill
and storage facilities.
    In early October 1999 the Russian Government launched a counter-
terrorist operation in the Chechen Republic and, fearing possible attacks, the
applicant and his relatives left the village. On 13 October 1999 police units
from Tambov moved onto the applicant’s property.
    The applicant and his family spent the winter of 1999 to 2000 in tents in
a refugee camp in Znamenskoye (Chechnya), where living conditions were
very poor. The applicant’s 19-month-old nephew died of pneumonia while
at that camp.
    At the relevant time, the Chechen courts were inoperative so the
applicant could not bring legal proceedings. From November 1999 to
December 2000 he did, however, lodge numerous complaints with State
bodies, including the military, prosecutors and other law-enforcement
agencies, and administrative authorities, in which he sought eviction of the
police units. He mainly received replies to inform him that his complaints
had been forwarded on to other bodies. No effective measures were taken.
    On 25 May 2000 a military commander of the Nadterechny District, at
the applicant’s request, ordered the police units to ensure that no damage
would be caused to the applicant’s property.
    In January 2001, when the courts in Chechnya became operational again,
the applicant brought proceedings in which he sought eviction of the police
units. The Nadterechny District Court of Chechnya found in his favour in a
judgment of 14 February 2001. That judgment came into force on 24
February 2001. Attempts to enforce that judgment were unsuccessful: when
the Tula police units moved out, other police units from Kaluga moved in
and the applicant was prevented from entering his property by trenches,
check-points and barbed wire. The police units finally vacated the
applicant’s property on 14 June 2002.
    In the meantime, the applicant brought proceedings against the Russian
Ministry of the Interior, complaining that police units refused to comply
with the judgment of 14 February 2001. He further sought compensation for
the damage caused to his property and for non-pecuniary damage in respect
of the appalling conditions in which he and his family had had to live in the
refugee camp. In support of his claims he submitted evidence including
documents which certified his title to the estate and the value of its
industrial equipment, a copy of the judgment of 14 February 2001, copies




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                        Annual Report 2007: Fifth Section


from various public bodies acknowledging the occupation, evaluation
reports confirming the damage to his property, bailiffs’ reports and
estimates for the repair work needed.
   On 23 January 2002 Zamoskvoretskiy District Court of Moscow rejected
the applicant’s claims for compensation as groundless. It found, in
particular, that the applicant had failed to provide sufficient proof that the
damage to his property had been the fault of the Ministry of the Interior.
The applicant’s subsequent appeal and requests for supervisory review were
also dismissed.
   Mr Khamidov complained, in particular, that his family’s estate was
occupied and damaged by federal police and that he was unable to obtain
compensation. He further complained about his inability to bring the
eviction claim before a court for a prolonged period of time, the delayed
enforcement of the judgment in his favour, the unfairness of the proceedings
for compensation and the absence of effective remedies. He relied on
Articles 6, 8 and 13, and Article 1 of Protocol No. 1.
   The Court found that the applicant’s house and that of his brother should
be considered as his home.
   The applicant had provided the Court with extensive evidence
(certificates and reports) to prove that his estate had been damaged by police
units whereas the Government had only submitted certain unofficial written
statements by police officers and a Bratskoye local councillor. The Court
therefore found that it had sufficient grounds to consider it established that
the applicant’s estate had been damaged by police units and that there had
therefore been an interference with the applicant’s right to respect for his
home and peaceful enjoyment of his possessions.
   The Court found that that interference had been unlawful.
   Concerning the period between 13 October 1999 and 23 February 2001,
the Government had not submitted any document which had specifically
authorised the police units’ temporary occupation of the applicant’s estate.
The Court considered that sections 13 and 21 of the Law on Suppression of
Terrorism, relied on by the Government, had not been a sufficient legal
basis for such a drastic interference as occupation for a prolonged period of
time of an individual’s housing and property.
   In the period between 24 February 2001 and 14 June 2002, the
interference was manifestly in breach of Russian law, given the judgment of
14 February 2001.
   The Court further considered that the damage caused to the applicant’s
estate had had no basis in domestic law: the Government had not submitted
any decision, order or instruction which had authorised the police units to
cause any such damage. Indeed, on 25 May 2000 a military commander had
issued an order to preserve the applicant’s property.
   Accordingly, the Court held unanimously that there had been a violation
of Article 8 and Article 1 of Protocol No. 1 as a result of the temporary




                                       39
                        Annual Report 2007: Fifth Section


occupation of the applicant’s estate by police units of the Russian Ministry
of the Interior, and a further violation of the same articles as a result of the
damage caused to his estate.
    The Court noted that it was clear under domestic law, notably Article 119
of the Code of Civil Procedure, that the applicant had only been allowed to
file his eviction claim in the place where his estate was located, i.e.
Chechnya. Furthermore, the Russian authorities had not made any effort to
authorise the applicant to file a claim in another region of Russia. The
applicant had therefore effectively been deprived, between October 1999
and January 2001 when the Chechen courts had been out of operation, of an
opportunity to seek eviction of the police units. The Court therefore found
that that had clearly constituted a limitation on the applicant’s right of
access to a court and held unanimously that there had been a violation of
Article 6 § 1.
    The Court held unanimously that there had been another violation of
Article 6 § 1 on account of the non-enforcement for over 15 months of the
judgment of 14 February 2001 in the applicant’s favour.
    The Court also held unanimously that there had been a further two
violations of Article 6 § 1 concerning the proceedings in 2002. Firstly, the
domestic courts had only considered the applicant’s compensation claim in
respect of damage to his property and had failed to examine his claims in
respect of compensation for occupation of his property and for non-
pecuniary damage. The courts had referred to the claims as “groundless” but
had given no explanation as to how they had come to that conclusion. The
applicant had therefore been denied access to a court. Secondly, in those
same proceedings, the courts had considered that it had not been proven that
the applicant’s estate had been occupied by police units, despite abundant
evidence to the contrary and the findings in the judgment of 14 February
2001. In the Court’s view, the unreasonableness of that conclusion was so
striking that the decisions of the domestic courts in 2002 could only be
described as grossly arbitrary. The applicant had therefore been denied a fair
hearing concerning his claim for compensation in respect of damage caused
to his estate.
    The Court observed that the applicant’s complaints under Article 13 were
essentially the same as those under Article 6 § 1. Therefore, the Court did
not consider it necessary to examine the complaints under Article 13.
    Under Article 41 (just satisfaction), the Court awarded Mr Khamidov
EUR 157,000 in respect of pecuniary damage, EUR 15,000 in respect of
non-pecuniary damage and EUR 3,385 for costs and expenses.




                                       40
                        Annual Report 2007: Fifth Section


(27) Vokurka v. Czech Republic, no. 40552/02

    In 1993 the applicant brought a court action against a public transport
company, seeking compensation. His claims were allowed in part. The
proceedings ended in 2002 with a decision of the Constitutional Court
dismissing the applicant’s appeal. The applicant complained of the length of
the proceedings.
    The preventive remedy: the possibility of applying for a time-limit to be
set for the completion of a procedural step was introduced into the Czech
judicial system as of 1 July 2004, in order to guarantee the right to a hearing
within a reasonable time. However, such an application could be made only
if the interested party had previously and unsuccessfully lodged a complaint
with the competent judicial authority for delays in the proceedings. That
being so, it was really no more than an extension of administrative appeal to
a higher authority. On several occasions, however, the Court had found that
administrative appeal in Czech law did not constitute an effective remedy
within the meaning of Article 35 § 1. It followed that this preventive
remedy could not be considered as such either.
    Concerning the compensatory remedy introduced into Czech law in April
2006, compensation for the non-pecuniary damage sustained as a result of
failure to take a step or deliver a decision within a reasonable time had to be
claimed from the State authorities – generally the Ministry of Justice. While
acknowledging that this system had its advantages, the Court could not
avoid expressing reservations about the risk of proceedings being drawn out
unduly, but deemed it premature to pronounce itself on that issue. It
considered it particularly important that the State’s liability should also
apply to any damage caused prior to the date of entry into force of the law
concerned. Where a person had lodged an application with the Court
complaining of the excessive length of proceedings brought before the new
law came into force, the right to compensation for non-pecuniary damage
was not time-barred until one year after the date on which the law had
entered into force. Although the ideal solution would be to prevent delays,
the fact that the remedy in question – which could be used during or after
the proceedings – was purely compensatory was not decisive in determining
its effectiveness. This new remedy thus afforded the Czech people a genuine
possibility of obtaining redress at the domestic level, a possibility of which
they should, in principle, avail themselves. Although the Registry of the
Court had informed him of its existence, the applicant had not availed
himself of a remedy which was considered effective and accessible: non-
exhaustion of domestic remedies.




                                       41
                        Annual Report 2007: Fifth Section


(28) Mooren v. Germany, no. 11364/03

   The applicant, Burghard Theodor Mooren, is a German national who was
born in 1963 and was living in Mönchengladbach (Germany) at the time of
his application to the Court. The case concerned the applicant’s complaint
about the unlawfulness of his pre-trial detention following his arrest in July
2002 on suspicion of tax evasion. The Court held by five votes to two that
there had been no violation of Article 5 § 1 (right to liberty and security).
The Court held unanimously that there had been two violations of Article 5
§ 4 on account of the lack of speedy review of the lawfulness of the
applicant’s detention and the refusal to grant access to the case files in those
review proceedings. The applicant was awarded EUR 1,500 in respect of
non-pecuniary damage and EUR 5,150 for costs and expenses.

(29) Omwenyeke and Others v. Germany, no. 44294/04

    The applicant, a Nigerian national, entered Germany in 1998 and
requested asylum. He was issued a provisional residence permit and
directed to reside and remain within the city of Wolfsburg pending the
decision on his asylum request. However, the applicant left Wolfsburg on
several occasions without permission by the competent authorities and was
subsequently convicted and fined for disregarding the territorial restrictions
on his residence. In 2001, following his marriage to a German national, the
applicant was granted a residence permit and was no longer subject to
restrictions of movement.
    Inadmissible: Article 2 of Protocol No. 4 secures freedom of movement
only to persons “lawfully within a territory of the State”. As the former
European Commission of Human Rights had stated in its case-law, pending
proceedings to determine whether or not they were entitled to a residence
permit under domestic law, foreigners provisionally admitted to a certain
district of the territory of a State could only be regarded as “lawfully” in the
territory as long as they complied with the conditions to which their
admission and stay were subjected. Since the applicant had repeatedly left
the district he had been ordered to remain in without the necessary
permission from the authorities, he had not been “lawfully” within the
territory of Germany at that moment and could therefore not rely on the
right to liberty of movement under Article 2 of Protocol No. 4: manifestly
ill-founded.




                                       42
                        Annual Report 2007: Fifth Section


(30) Nikolova and Velichkova, no. 7888/03

   The applicants, Krastinka Nikolova and Violeta Velichkova, are
Bulgarian nationals who were born in 1939 and 1960, respectively, and live
in Shumen (Bulgaria). They are the widow and daughter of Atanas Nikolov.
   The case concerned the applicants’ allegation that Mr Nikolov died, aged
62, as a result of ill-treatment by two police officers and that the ensuing
criminal proceedings were inadequate.
   On 27 September 1994 the Shumen Regional Police Department’s rapid-
response force were on a training exercise. They were not in uniform. The
leader of the team spotted Mr Nikolov testing a home-made metal detector
and sent police officers to investigate. Chief Sergeants B.I. and H.T.
approached Mr Nikolov who, surprised by their sudden appearance, raised
the hoe he was holding in defence. Chief sergeant B.I. pulled the hoe out of
Mr Nikolov’s hands and threw it to a safe distance. Both officers then hit
Mr Nikolov over the head, overpowered and handcuffed him. He was taken
to Shumen Police Station where, while waiting to be questioned, he fainted.
Mr Nikolov was taken to hospital and, following an unsuccessful operation
to remove a blood clot, he died on 1 October 1994. A subsequent medical
report concluded that the cause of death was severe cranial and cerebral
trauma and internal brain haemorrhaging.
   On 2 October 1994 criminal proceedings were opened into the incident
by Shumen Regional Investigation Service. Chief Sergeants B.I. and H.T.
were charged, witnesses were interviewed and a number of expert reports
were drawn up. The investigator in charge concluded in May 1995 that the
officers should be committed to trial.
   Following an amendment in June 1995 to the Code of Criminal
Procedure which gave military courts jurisdiction to try police officers, the
case was transferred to Varna Regional Military Prosecutor’s Office. As a
result of the applicants’ repeated complaints, the proceedings were resumed
in January 1998 and, in the autumn of 1999, the chief sergeants were
brought to trial. In a judgment of 3 December 1999 Varna Military Court
convicted the chief sergeants of having caused the death of Mr Nikolov
through intentional grievous bodily harm, in violation of Article 124 § 1 of
the Criminal Code, and sentenced them to a three-year suspended prison
sentence. Ms Nikolov and Ms Velichkova were awarded compensation, to
be paid by the Chief Sergeants. In that judgment the Military Court noted
that, although the chief sergeants had not intended to kill Mr Nikolov, they
could have envisaged the seriousness of the consequences of the blows to
Mr Nikolov’s head. Furthermore, as members of the rapid response force,
they had special training in restraining and arresting offenders.
   On appeal the applicants complained that the chief sergeants’ sentencing
was too lenient and the compensation too low. In December 2000 the
Military Appellate Court found that the “situation [had] not call[ed] for the




                                       43
                        Annual Report 2007: Fifth Section


use of such intense physical violence” but upheld the suspended sentence.
The compensation awarded to each applicant was, however, increased.
Ultimately, in January 2002 the Supreme Court of Cassation upheld that
judgment.
    The enforcement proceedings with respect to the compensation owed to
the applicants were discontinued at the end of 2004 as the chief sergeants
had no assets to be seized.
    Following a tort action brought by the applicants, in June 2004 Shumen
District Court ordered Shumen Regional Police Department to pay
compensation. Those amounts were paid shortly after the end of the
proceedings in March 2005.
    No disciplinary measures have ever been taken against Chief Sergeants
B.I. or H.T.
    Chief Sergeant B.I. was promoted to unit commander in the Shumen riot
police in 1998 but has since resigned from the police force. In 1999 Chief
Sergeant B.I. was apparently still working for the police force as a guard in
a commercial bank.
    Relying, in particular, on Article 2 and Article 3 (prohibition of inhuman
or degrading treatment), the applicants complained that Mr Nikolov had
been subjected to ill-treatment by the police and that the ensuing criminal
proceedings had been inadequate.
    The Court found that, even though the applicants had received
compensation for Mr Nikolov’s death, the measures taken by the authorities
had failed to provide appropriate redress and they could therefore still claim
to be victims for the purposes of Article 34 (right of individual petition).
    Concerning the death of Mr Nikolov
    The Court noted that the Bulgarian criminal courts had examined the
evidence and facts of the applicants’ case and found that Chief Sergeants
B.I. and H.T, acting in their official capacity, had intentionally hit Mr
Nikolov and been responsible for his death. Moreover, the courts found that
the incident on 27 September 1994 had not required “such intense physical
violence”. The Court therefore concluded that the death of Mr Nikolov was
attributable to Bulgaria and that the force used for carrying out his arrest
had not been “absolutely necessary”, in violation of Article 2.
    Concerning the criminal proceedings
    The Court considered the promptness of the criminal proceedings as a
gauge for assessing the authorities’ determination to prosecute those
responsible for Mr Nikolov’s death. An investigation had immediately been
opened into Mr Nikolov’s death and had, at first, progressed at a good pace.
However, after June 1995, when the case had been transferred to the
military prosecution authorities, the proceedings had ground to a halt and
had not been resumed until two-and-a-half years later and only after the
applicants’ repeated complaints. The chief sergeants had finally been
convicted and sentenced in 2002, more than seven years after having killed




                                       44
                        Annual Report 2007: Fifth Section


Mr Nikolov. The court considered those delays to be unacceptable as the
case had involved police violence and required a swift reaction from the
authorities.
   The Court could not overlook the fact that, even though the Bulgarian
Criminal Code of 1968 had given the domestic courts the possibility of
sentencing the Chief Sergeants to a maximum of 12 years’ imprisonment,
they had chosen the minimum penalty and suspended it. Indeed, at least
until 1999, well after the beginning of the criminal proceedings, both
officers had still been serving in the police. One of them had even been
promoted. In the Court’s view, such a reaction to a serious case of deliberate
police ill-treatment resulting in death could not be considered adequate.
   By punishing Chief Sergeants B.I. and H.T with suspended terms of
imprisonment, more than seven years after Mr Nikolov was killed, and
never disciplining them, Bulgaria had in effect supported the officers’
feeling that they were not responsible. The Court therefore found that the
criminal proceedings against the police officers responsible for Mr
Nikolov’s death had been inadequate and held that there had been a further
violation of Article 2.
   Given the grounds for which it had already found two violations of
Article 2, the Court considered that no separate issue arose under Article 3.
   Under Article 41 (just satisfaction), the Court awarded EUR 7,000 to
Ms Nikolova in respect of pecuniary damage, and EUR 10,000, each, to
Ms Nikolova and Ms Velichkova in respect of non-pecuniary damage.


VI.    RULE 39 (INTERIM MEASURES) AND RULE 41 (PRIORITY) REQUESTS

  (a) Requests for interim measures pursuant to Rule 39 of the Rules of
Court were granted in the following cases:

(1)   Soldatenko v. Ukraine, no. 2440/07

   The applicant, who claims to be stateless, is the subject of extradition
proceedings to Turkmenistan. He alleges that if extradited, he would risk
receiving an unfair trial, as well as being tortured and treated inhumanly and
degradingly by the Turkmen authorities.


(2)   Chyryanyk v. Czech Republic, no. 17070/07

   The applicant was to be extradited to Ukraine where he allegedly risked
political persecution and ill-treatment.
   The applicant having left the territory of the Czech Republic, the
measure was lifted.




                                       45
                        Annual Report 2007: Fifth Section



(3)   Dubovik v. Ukraine, no. 33210/07

   The applicant, a Belarusian national, was arrested in connection with a
request for her extradition to Belarus, where she was wanted on suspicion of
aggravated trafficking in human beings and organised crime. She contends
that she would be ill-treated and would not receive a fair trial if returned,
and that she risked the death penalty. She also claims that her continuing
detention in Ukraine is not compatible with Article 5 of the Convention.

(4)   Atmaca v. Germany, no. 45293/06

   The applicant, a former high-ranking member of the PKK of Turkish and
Armenian origin, claims that if extradited to Turkey, he would be ill-treated
in Turkish prisons, and would not receive a fair trial.

(5)   Koktysh v. Ukraine, no. 43707/07
(6)   Kreydich v. Ukraine, no. 48495/07
(7)   Stankevich v. Ukraine, no. 48814/07
(8)   Kulikovskiy v. Ukraine, no. 50063/07

    The applicants in these unconnected applications are Belarusian nationals
who fear the death penalty, inhuman treatment and torture, or an unfair trial
if extradited to Belarus.

(9)   Okhrimenko v. Ukraine, no. 53896/07

  The applicant is held in the medical unit of a detention centre. The
Government have been requested to ensure that that he receives treatment
appropriate to his condition.

   (b) Requests for priority pursuant to Rule 41 of the Rules of Court were
granted in 37 cases.




                                       46
                        Annual Report 2007: Fifth Section




VII.    THIRD-PARTY INTERVENTION (ARTICLE 36 AND RULE 44)

   Third-party interventions were announced or admitted in the following
cases:

(1)    Leela Forderkreis e.V. and Others v. Germany, no. 58911/00

   Leave to intervene was given to the Helsinki Foundation for Human
Rights in this case concerning Government agencies’ reference the applicant
associations as “sects”, “youth sects”, “youth religions” and “psycho sects”.

(2)    Kamyshev v. Ukraine, no. 3990/06

  Leave to intervene was given to the Helsinki Foundation for Human
Rights in this case concerning detention and proposed extradition of the
applicant, a former Deputy President of the Belarus Customs Committee, to
Belarus.

(3)    Soffer v. the Czech Republic, no. 31419/04

  Leave to intervene was given to the Slovak Government in this case
concerning the applicant’s access to court.

(4)    Gäfgen v. Germany, no. 22978/05

   Leave to intervene was given to the victim’s parents (for a summary of
the facts, see p. 17 above)

(5)    Kaboulov v. Ukraine, no. 41015/04

  Leave to intervene was given to the Helsinki Foundation for Human
Rights in this case concerning the applicant’s proposed extradition to
Kazakhstan.

(6)    Soldatenko v. Ukraine, no. 2440/07

  Leave to intervene was given to the Helsinki Foundation for Human
Rights in this case concerning the applicant’s proposed extradition to
Turkmenistan (see also under Rule 39, above).




                                       47
                       Annual Report 2007: Fifth Section


(7)   Association of Citizens Radko & Paunkovski v.        “the    former
      Yugoslav Republic of Macedonia”, no. 74651/01

   The Government of Bulgaria intervened in this case concerning the ipso
jure dissolution of the applicant association by the Constitutional Court.

(8)   Atmaca v. Germany, no. 45293/06

  The Turkish Government intervened in this case concerning the
applicant’s proposed extradition to Turkey (see also under Rule 39, above).




                                      48
                        Annual Report 2007: Fifth Section




VIII. STATISTICAL INFORMATION

    1. Results for year
    2. Results by month
    3. Applications pending
    4. Graphic charts
       (a) Judgments delivered
       (b) Inadmissibility and strike-out decisions
       (c) Admissibility decisions
       (d) Applications communicated
       (e) Applications pending by year of lodging
       (f) Applications pending by State




                                       49
                           Annual Report 2007: Fifth Section


                                 APPENDIX 1
                       Judgments delivered in 2007
  Merits                                                                209
  Striking out                                                             1
  Friendly settlement                                                      2
  Just satisfaction                                                        0
  Revision                                                                 0
    Total                                                               212


                  Chamber decisions adopted in 2007
  Applications declared admissible                                       71
  Applications declared inadmissible                                    132
  Applications struck out of the list                                    92
    Total                                                               295


                 Committee decisions adopted in 2007
  Applications declared inadmissible                                  6,253
  Applications struck out of the list                                   143
    Total                                                             6,396


                  Applications communicated in 2007
    Total                                                               413




  Total cases finalised in 2007 (judgments*,
                                                                      6,832
  inadmissibility and strike-out decisions)


* Not including judgments on just satisfaction and revision but including judgments
which are not yet final. Some judgments dealt with a number of joined applications.




                                           50
                                     Annual Report 2007: Fifth Section


                                          APPENDIX 2

                                     Chambers                                                    Committees
            Judgments   Admissible   Inadmissible        Struck out      Communicated   Inadmissible    Struck out
January       19            3             5                  3               28           439                 2
February      12            2             8                  1               27           437                 7
March         11            2             4                  8               40           962              15
April         17            2             9                  3               14           215                 4
May           21            4            17                  8               47           624              10
June          29            1             8                  5               22           687              30
July          34            0             8                  2               18           506              11
August         0            0             3                  0               10           144                 6
September     17            0            29                 22              111           439              10
October       11            1            18                 17               29           454              19
November      26            2             9                 13               41           603              18
December      15           54            14                 10               26           743              11
 Total       212           71          132                  92              413          6,253           143




                                                    51
                   Annual Report 2007: Fifth Section


                          APPENDIX 3

        Applications pending on 31 December 2007


Total applications not yet examined                    13,885


Adjourned/Communicated for information                  148


Communicated/Adjourned                                   5


Communicated for observations                           849


Admissible                                              218


Judgments not yet final                                 90


TOTAL APPLICATIONS PENDING                             15,195
 (Chamber: *)                                          4,853
 (Committee: *)                                        10,342




                                  52
                                            Annual Report 2007: Fifth Section


                                                             APPENDIX 4

                                                     Chart 1: Judgments delivered in 2007


 35                                                                                                   34



 30                                                                                      29

                                                                                                                                                          26
 25

                                                                         21
 20             19
                                                             17                                                                   17
                                                                                                                                                                      15
 15
                             12
                                           11                                                                                                    11
 10



   5


                                                                                                                     0
   0
           ry          ary           rch            ril              y               e           ly             st           er             er          er       er
         ua         bru            Ma            Ap                Ma          J   un          Ju             gu           mb            tob          mb       mb
   J   an         Fe                                                                                        Au          pte            Oc           ve       ce
                                                                                                                     Se                           No       De




                              Chart 2: Inadmissibility and strike-out decisions adopted in 2007

                                           989
1000


 900


 800                                                                                                                                                                  778
                                                                                         730
 700                                                                     659
                                                                                                                                                          643

 600
                                                                                                      527
                                                                                                                                  500            508
 500
                449          453

 400


 300
                                                             231
 200
                                                                                                                     153

 100


   0
                                                    ri   l           y                                          st           er             er          er       er
       ary             ary           rch         Ap                Ma          Ju
                                                                                 ne            Ju
                                                                                                 ly
                                                                                                              gu           mb            tob          mb       mb
     nu             bru            Ma                                                                       Au
   Ja             Fe                                                                                                    pte            Oc           ve       ce
                                                                                                                     Se                           No       De




                                                                               53
                                              Annual Report 2007: Fifth Section



                                              Chart 3: Admissibility decisions adopted in 2007



60

                                                                                                                                                                                        54

50




40




30




20




10

                                                                                4
               3
                               2             2                   2                                                                                                          2
                                                                                                1                                                               1
                                                                                                                 0                 0              0
 0

     ary                ary            rch                 ril              y              ne              ly                 st             er            er          er          er
   nu                bru            Ma                Ap                  Ma             Ju              Ju                 gu             mb           tob          mb          mb
 Ja                Fe                                                                                                  Au               pte           Oc          ve           ce
                                                                                                                                   Se                           No          De




                                                      Chart 4: Applications communicated in 2007


120
                                                                                                                                                        111


100




 80




 60

                                                                                    47
                                                 40                                                                                                                             41
 40

               28                                                                                                                                                   29
                               27                                                                                                                                                            26
                                                                                                    22
 20                                                                                                                    18
                                                                     14
                                                                                                                                         10


  0
                                                          ri     l            y                                   ly             st                er          er         er       er
         ary             ary            rch            Ap                   Ma             Ju
                                                                                             ne                 Ju             gu                mb         tob         mb       mb
       nu             bru             Ma                                                                                     Au
     Ja             Fe                                                                                                                        pte         Oc          ve       ce
                                                                                                                                         Se                         No       De




                                                                                         54
                                                            Annual Report 2007: Fifth Section



                                         Chart 5: Applications pending on 31 December 2007 by year of lodging


                         7000          6680



                         6000



                         5000
Number of applications




                                                     4243

                         4000



                         3000
                                                                    2533


                         2000


                                                                                  1023
                         1000
                                                                                                   388
                                                                                                                  207
                                                                                                                               76           39                6
                           0
                                  07            06             05            04               03             02           01           00                99
                                20            20             20            20               20             20           20           20               -19
                                                                                                                                                   98
                                                                                                                                                 19
                                                                                         Year of lodging




                                                      Chart 6: Applications pending on 31 December 2007 by State



                                                                                               Other States
                                                                                                   1%                               Bulgaria
                                                                                                                                     12%


                                                                                                                                            Estonia
                                                                                                                                              3%


                                                 Ukraine
                                                  38%                                                                                               Germany
                                                                                                                                                     16%




                                                                                                                                            Spain
                                                                                                                                             4%


                                          Former Yugoslav Republic of
                                                  Macedonia                                                                    The Czech Republic
                                                     6%                                                                               20%




                                                                                         55

				
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