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11. At the beginning of the events relevant to the application, K. had a daughter, P., and a son, M., born in 1986 and 1988 respectively. P.’s father is X and M.’s father is V. From March to May 1989 K. was voluntarily hospitalised for about three months, having been diagnosed as suffering from schizophrenia. From August to November 1989 and from December 1989 to March 1990, she was again hospitalised for periods of about three months on account of this illness. In 1991 she was hospitalised for less than a week, diagnosed as suffering from an atypical and undefinable psychosis. It appears that social welfare and health authorities have been in contact with the family since 1989. 12. The applicants initially cohabited from the summer of 1991 to July 1993. In 1991 both P. and M. were living with them. From 1991 to 1993 K. and X were involved in a custody and access dispute concerning P. In May 1992 a residence order was made transferring custody of P. to X. 13. K. was again hospitalised from 22 April to 7 May 1992, from 13 May to 10 June 1992, and from 11 to 17 January 1993, on account of psychoses. She was in compulsory care between 15 May and 10 June 1992. According to a medical report dated 15 May 1992, K. was paranoid and psychotic. 14. On 19 March 1993, according to the social welfare authorities’ records, a discussion took place between a social worker and K.’s mother. K.’s mother said that her daughter’s health condition was really bad and that K. had destroyed a childhood picture of hers, a wedding photo of the mother, broken a glass and “pierced the eyes” of all appearing in the photos. K.’s mother had said that she was tired of the situation, as she did not get any support from the mental health authorities. She added that she was worried and afraid that “again something must happen before K. is admitted to care”.
On 24 March 1993 K. was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care, having initially been diagnosed as suffering from psychosis. The conditions for compulsory care were not considered to be met but she remained in voluntary care until 5 May 1993. 15. Allegedly, X did not allow K., P. and M. to meet. On 11 May 1993, when K. was again pregnant, her access to P. was further limited by an order of the District Court of R. Basing itself on a doctor’s opinion, the court held that the child’s mental development would be endangered if the meetings between P. and K. continued without supervision as had been ordered in 1992. 16. According to the records of the social welfare authorities, M. showed signs of behavioural problems. On 30 March 1992 a psychologist reported how M. had played with two dolls saying – in very vulgar terms – that they were performing sexual acts. On 17 February 1993 K. was said to have broken a mirror in the presence of M. who had kept repeating: “mummy broke the mirror ...”
Notes of the social authorities of 24 and 30 March 1993 among others state that games which M. played and pictures he drew were of a destructive nature. According to the notes taken on 30 March, he had lately, while the children were singing together at the day-care nursery, shown immense hatred, threatening “to kill everybody”. The occasions when K. fetched him were described as “unpleasant scenes”, M. shouting and hitting his mother who did not react. It was noted, however, that he no longer played doll games with sexual connotations. 17. According to the records of the social welfare authorities, a discussion between K., her mother, T. and a number of social and mental-health care officials took place on 31 March 1993, during which it was mentioned that the authorities might have to intervene in M.’s upbringing, from the child-protection point of view, in a more drastic way than had been the case so far. It appeared that in connection with K.’s recent hospitalisation T. had “forcibly” taken her from a restaurant, which had made K. furious, with the consequence that she had thrown things around; for example, the microwave oven had ended up on the floor. T. had said that K. was unable to control herself. 18. On the following day the child welfare support group, consisting of various social and health authorities, agreed that the aim should be to place M. in a children’s home for three months as an assistance measure of open care under section 14 of the 1983 Child Welfare Act (lastensuojelulaki, barnskyddslag 683/1983 – “the 1983 Act”), during which period psychological examinations of the child would be carried out. 19. On 3 May 1993 a social welfare official decided on behalf of the Social Welfare Board (perusturvalautakunta, grundtrygghetsnämnden) of S. to place M. in a children’s home for a period of three months. This was to be regarded as a short-term support measure pursuant to the 1983 Act. The applicants had been consulted, together with K.’s mother and sister, on 8 April 1993, in order to find an open-care measure which would be practicable. According to the records of that meeting, no such practical measure had been proposed by any of the participants. The applicants had then been heard again on 21 April 1993 and had not objected to the placing of M. in a children’s home. 20. In an opinion of 12 May 1993, requested by the Social Welfare Board, doctors M.L. and K.R. considered that K. was not at that time able to care for M., but that her mental state would not necessarily permanently prevent her from caring for him. Doctors M.L. and K.R. worked at the hospital of H., where K. had been cared for since 1991 during the periods indicated above. 21. On 7 June 1993 it was reported by the social welfare authorities that, when K. and T. had come to the children’s home where M. was staying, the boy had undergone a total change in his behaviour, characterised by anger, hatred, swearing, etc. T. had said that he was really tired of the situation and that in his view K. was in need of hospitalisation. When a visit to the health centre had been suggested to her, she had become very angry.
According to a statement of 22 June 1993 by the children’s home, K. and T. had come to the home on 17 June 1993. While T. had been playing with M., other children had come to tell the staff that K. had asked a 3-year-old girl what her name was. As the girl did not reply, K. had raised her voice and shaken the girl, not letting her go until an older girl had given the child’s name. The other children had been frightened by K.’s behaviour. 22. On 11 June 1993 the social welfare official who had decided on 3 May 1993 to place M. in a children’s home informed the University Hospital of T. and the local hospital of S. in writing that she was very worried about the health of K. and the baby she was carrying. She requested the hospitals to contact her as soon as K. arrived at the hospital and, more particularly, at the time of the baby’s delivery. She also expressed the wish that health-care professionals should pay special attention to the relationship between the mother and the new-born baby from the very beginning. 23. On 18 June 1993 K. was taken to a district hospital, where she gave birth to J. on the same day. According to the hospital records, the mother stayed calm during the delivery. After the delivery a written decision concerning an emergency care order was served on the hospital. The child was taken to the children’s ward. The mother’s behaviour in the ward was later found to be somewhat restless but not completely disorderly. The hospital records indicate that she understood the situation and wanted to leave hospital the following day. Medication to prevent the secretion of milk was prescribed. It seems that K. left the hospital on 19 June 1993, that is, the following morning, without any post-natal examination. She went to her mother’s home, where she started pushing an empty pram around the place. 24. J. was immediately placed in emergency care, pursuant to section 18 of the 1983 Act. After the birth of their child, K. and T. were informed of this decision by two social workers at the hospital of H. The Social Director, who had made the decision on behalf of the Social Welfare Board, noted that K.’s mental state had been unstable during the last stages of her pregnancy. He considered that the baby’s health would be endangered since K. had found out about the plans to place the baby in public care. Lastly, he considered that the baby’s father, T., could not guarantee its development and safety. In addition the Social Director referred to the family’s long-standing difficulties, namely, K.’s serious illness and occasionally uncontrolled emotional reactions which could be traumatic for the children, T.’s inability to care for both J. and K., K.’s reluctance to accept guidance, the impossibility of putting the whole responsibility for J.’s development on T., and the impossibility of providing open-care support measures to the necessary extent. The applicants were not heard prior to the decision. On 24 June 1993 the applicants were notified in writing of the decision to take the new-born baby into public care. The notification was also faxed to K. 25. On 21 June 1993 the Social Director also placed M. in emergency care, citing principally the same reasons as in his decision of 18 June 1993 concerning J. 26. The applicants did not appeal against the emergency care orders. 27. On 21 June 1993 the Social Welfare Board took note of the emergency care orders and prohibited all unsupervised access between K. on the one hand, and J. and M. on the other. The number of supervised visits, however, was not restricted. The Board decided to continue preparations for taking M. and J. into care. 28. A meeting was held by social workers at the family centre on 21 June 1993, before the arrival of the baby from the hospital and in the absence of the applicants. It is mentioned in the report that there was a plan to prohibit the mother’s visits for a month on the ground that her reactions could not be predicted as she had, for example, broken things at home. After this initial period she would be allowed to visit the baby without restriction, but accompanied by her personal nurse. However, this plan was not implemented. The following entry appears in the register for 24 June: “The mother may come with her personal nurse if she wants. Other visitors not allowed for the time being.” 29. K. was asked to come with T. to the social welfare office on 22 June 1993 at 11.30 a.m. in order to be informed of the decision of 21 June 1993 by the Social Director concerning M. On 24 June 1993 K. and V. (M.’s biological father) were notified in writing of the decision of 21 June 1993. The notification was also faxed to K. 30. On 22 June 1993 K. was hospitalised voluntarily at the hospital of H. on account of psychosis, having obtained a referral from a doctor at a health care centre. She was treated there until 30 June 1993. 31. On 23 June 1993 J. was placed in the family centre. T. visited her the same day. 32. At the beginning of July 1993 T. left the applicants’ home, having been told by the social welfare officials that he had to break off his relationship with K. “if he wanted to keep” J. The applicants nevertheless continued their relationship. 33. On 15 July 1993 the Social Welfare Board gave its decisions taking J. and M. into “normal” public care, giving reasons similar to those mentioned in the emergency care orders (see paragraph 24 above), and prolonged the access restriction until 15 September 1993. K. was allowed to see the children only in the company of her personal nurse. The Board essentially considered that K.’s state of health remained unstable; that she was subject to aggressive and uncontrolled emotional moods; and that public care proceedings were a severe mental ordeal for a patient. As regards J., the Board therefore believed that her personal security could be jeopardised if access were to take place without supervision. As regards M., the Board feared that K.’s visits to the children’s home “could no longer be supervised by its staff, which would not be in his interest”. Before the decisions of 15 July 1993 the applicants had been heard and had expressed their objection to the care decisions envisaged. 34. On 15 July 1993 K. visited both her children, accompanied by her personal nurse. The register indicates that it was “a difficult situation”. 35. On 19 July 1993 T. moved to the family unit of the family centre with J. 36. On 20 July 1993 K. was again hospitalised in voluntary care at the open ward of the hospital of H., suffering from psychosis. She left hospital the following day, however. On 26 July 1993 she was placed under observation with a view to determining whether she should be placed in compulsory psychiatric care. On 30 July 1993 she was committed to compulsory psychiatric care. According to the file, her relatives had earlier been worried about her and had contacted the hospital in order to get her into hospital care. They reported that K. had disappeared from her home, where she had behaved in an unsettled and aggressive manner. Her hospitalisation lasted until 27 October 1993, that is, three months. 37. During the period between 18 June and 31 August 1993 K. visited her children at their respective children’s homes. During the visits she was accompanied by her personal nurse from the hospital, who was in contact with the social welfare authorities and arranged the visits having regard to K.’s state of mental health. According to the centre’s register, she visited J. twice during this period. 38. According to a statement made by a social worker on 4 August 1993, T. had taken good care of J., first at the hospital until 23 June 1993 and later on at the family centre. It was agreed that J. would stay at the family centre and that T. would visit her every other day. J. would visit her father for the first time from 13 to 15 August 1993, during which time T. would organise her christening. The intention was that the baby could move in with her father later on. 39. After T.’s paternity had been established on 13 July 1993, T. and K. were granted joint custody of J. on 4 August 1993. 40. T.’s travel expenses to the centre were paid for by the social welfare authorities. From the centre’s records it can be deduced that T. succeeded in creating a relationship with the baby and learned to take good care of her. The home leaves were spent with T. first at his mother’s house and later in his new home. 41. On 12 August 1993 the Social Welfare Board referred both public care orders to the County Administrative Court (lääninoikeus, länsrätten) for confirmation, as the applicants had opposed them. In support of its referrals, the Board submitted a statement by a social welfare official dated 25 August 1993, according to which T. would not be able to care both for M. and the new-born J. alone, since K. was living in the same home and had been psychotic for the last four years. T. had been in contact with J. at the children’s home three to four times a week. While staying in a flat attached to a municipal children’s home, he had cared for J. for two whole weeks and had subsequently cared for her three days a week in his new home. The Board had therefore begun investigating whether it would be possible to entrust him with the responsibility for J. with the help of support measures taken by the Board. 42. On 9 September 1993 the County Administrative Court confirmed the care order concerning J., considering that K. had been mentally ill; that the applicants had had conflicts “as a result of which T. had moved away from their home at the beginning of July 1993”; that because of K.’s illness and the family’s other problems the applicants had been unable to provide J. with adequate care; that the care support provided to the family had not sufficiently improved the family’s situation and that the measures could not be expected to satisfy J.’s care needs. No hearing was held. 43. On 11 November 1993 the County Administrative Court confirmed the care order concerning M., repeating the reasons put forward in its decision of 9 September concerning J. No hearing was held. 44. In an appeal to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) against the confirmation of the public care order concerning M., the applicants were represented by the Public Legal Adviser (yleinen oikeusavustaja, allmänna rättsbiträdet) of S. The Supreme Administrative Court dismissed the appeal on 23 September 1994. 45. On the same date the Supreme Administrative Court extended the time allowed for an appeal by K. against the confirmation of the care order made in respect of J. 46. On 18 October 1994 K. appealed against the care order in respect of J. as confirmed by the County Administrative Court on 9 September 1993. On 21 August 1995 the Supreme Administrative Court granted K. cost-free proceedings as from 1 March 1994, appointed Ms Suomela as her representative and upheld the County Administrative Court’s decision of 9 September 1993. 47. By a decision of 21 January 1994 the Social Welfare Board placed J. in a foster home in K., a town some 120 km away from the applicants’ home. M. joined her on 7 February 1994. The foster parents had no children of their own. Social welfare officials told the applicants and the foster parents that J.’s and M.’s placement would last “for years”. The applicants had proposed that the children’s public care be implemented in the homes of relatives. 48. In the meantime, on 15 August 1993, J. was christened in the presence of K., T. and M. 49. A consultation was held at the children’s home, on 18 August 1993, in the presence of T. According to the records, K.’s mental health was very unstable and her psychiatric treatment was expected to have to be continued for four to five years. T., however, had expressed his hopes that K. and he could, together, take care of J. in the future. It was agreed that J. would stay at the children’s home and would visit T. every week from Thursday until Saturday, beginning on 28 August 1993. T. would visit J. on other days, according to an arrangement to be agreed with the children’s home. 50. On 14 September 1993 the Social Welfare Board prolonged the access restriction until 15 December 1993. 51. The following notes of a social welfare official appear among those in the case records of the Social Welfare Board:
“14 September 1993:
… 2. ... In addition, the importance of future access between J. and T. has now been questioned, since J.’s placement in [public foster care] is under preparation. It will be difficult for T. to give up J. ...”
“13 October 1993: 52. On 27 October 1993 K. was discharged from the hospital of H. 53. On 2 February 1994 the Social Welfare Board drew up a plan concerning the implementation of the public care. The applicants’ alternative plan was allegedly ignored. For instance, the children could not meet their maternal grandmother at her home. 54. After the adoption of the care plan on 2 February 1994, the applicants requested a relaxation of the access restriction. For example, T. had been permitted to see J. only once a month. 55. On 21 March 1994 the applicants requested, inter alia, that the Social Welfare Board should draw up a public care plan aiming at the reunification of the family. 56. On 3 May 1994 the social welfare authorities organised a meeting in order to revise the care plan of 2 February 1994. The applicants and their representative did not attend the meeting. 57. On 17 May 1994 the Social Director restricted both applicants’ access to the children to one monthly visit at the foster home, to take place under supervision and last three hours. The Social Director considered that the grounds for public care still existed. In his view, although the applicants were dissatisfied with the visits set out in the care plan, affording the children an unlimited right to see their parents would create an obstacle to their successful placement. The applicants appealed. 58. On 28 September 1994 the County Administrative Court held an oral hearing concerning the access restriction imposed on 17 May 1994. It took evidence from two psychiatrists, who had interviewed K. One of them, Dr T.I.-E., did not know K. personally but commented on a diagnosis concerning her mental state by indicating that K. had a tendency to react in a psychotic manner to conflict situations. Dr K.P. stated that K.’s state of health did not prevent her from caring for her children. Consequently, if her illness had been the reason for the access restriction, that reason no longer existed. 59. In a written expert opinion, requested by the Social Welfare Board and submitted to the County Administrative Court, Dr E.V., a child psychiatrist, expressed the opinion that the children should be permanently cared for by the foster parents and that the applicants’ visits should, for the time being, be discontinued so as to protect the children and the foster parents. According to the applicants, Dr E.V. had not met them or the children, nor had he consulted the other psychiatrists before making his proposal. 60. On 11 October 1994 the County Administrative Court upheld the access restriction issued on 17 May 1994. It noted that neither of the witnesses who had been heard orally had been willing to state any opinion as regards the children’s development. It reasoned, inter alia, as follows:
“... [By allowing] access to take place once a month and [by allowing contact through correspondence] it will be ensured that the children will retain knowledge about their biological parents. If the grounds for public care later cease to exist, a reunification of the family will thus be possible. ...” 61. The County Administrative Court dismissed the applicants’ request for exemption from costs, since the relevant legislation did not cover disputes concerning access restrictions. At the court’s hearing, the applicants were nevertheless assisted by Ms Suomela. 62. On 26 May 1994 the applicants requested that the Social Welfare Board discontinue the public care of M. and J. 63. On 18 September 1994 the Social Director allegedly told the applicants that any further children born to them would also be placed in public care. According to the Government, the Social Director only told them, when expressly asked, that it was possible that any further children born would be taken into public care. 64. In an opinion of 22 September 1994 submitted at the Social Welfare Board’s request, Dr K.P., a psychiatrist, commented on the possibility of revoking the public care orders. She concluded that K.’s mental state would not prevent her from having custody of the children. According to Dr K.P., K.’s efforts to have public care discontinued and access restrictions relaxed showed that she possessed psychological resources. She noted, inter alia, that T. was K.’s closest support in the care and upbringing of the children. In addition, K.’s mother, at the time her guardian ad litem, was ready to help in caring for them. Dr K.P., however, added that she could not, as a psychiatrist for adults, take any stand as regards the interests of the children. Dr K.P.’s opinion was also based on a report submitted by Dr K.Po., a psychologist, who had come to the same conclusion as regards K.’s ability to have custody of her children. 65. The Public Legal Adviser advised against requesting revocation of the care orders. 66. K. was hospitalised from 15 to 24 February and from 11 April to 29 May 1995, apparently on account of psychosis. 67. On 14 March 1995 the Social Welfare Board rejected the applicants’ request of 26 May 1994 that the care order be revoked, stating as follows:
“At the moment the health of the children’s mother, K., is better and the family situation has changed in other respects in comparison with the situation in 1993 when the decisions to take the children into care were made.
...
According to Dr K.P., a psychiatrist, K. still has ‘a lot of instability’ in her emotional life as well as fragility, brought about by the last five years’ experiences and the diagnosis of mental illness for which she needs – and will need for a long time to come – therapeutic support and treatment. A regular medication is also needed in order to guarantee her continued well-being and to make it possible for her to manage in open care and to have custody of her children. Dr K.P., however, did not give her more precise opinion as to K.’s ability to take care of and bring up her children even though Dr K.P. was explicitly asked to give such an opinion. 68. The applicants appealed on 5 April 1995, requesting that they be granted exemption from costs and afforded free legal representation. They also requested an oral hearing. 69. On 7 April 1995 a further child, R., was born to the applicants. Having given birth, K. left the hospital for a while on the same evening with the new-born baby wrapped in a blanket, walking barefoot in the cold weather until the hospital staff realised what had happened and intervened. 70. On 13 April 1995 K. was committed to compulsory psychiatric care and treated at the hospital of H. until 29 May 1995, while R. was being cared for by T. According to a psychiatrist’s observation of 10 April 1995, K. “must have been suffering from paranoid schizophrenia for some time”. 71. On 15 June 1995 the County Administrative Court granted the applicants exemption from costs and appointed Ms Suomela as their representative in the case concerning their appeal against the Social Welfare Board’s decision of 14 March 1995. It decided not to hold a hearing in respect of the applicants’ request for a revocation of the care orders and provided the parties with an opportunity to supplement their written observations. 72. On 28 September 1995 the County Administrative Court rejected the applicants’ appeals of 5 April 1995 without holding an oral hearing. The court noted, inter alia, that according to the medical certificates, K.’s state of health had improved but her emotional life was still unstable. She therefore continued to be in need of psychotherapy and medication. In addition, a further child had been born to the applicants and K. had again been treated at the hospital of H. These two factors had caused an additional strain militating against a revocation of the care orders. 73. On 17 November 1994 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on neutral premises at the Family Advice Centre of K., where the foster parents were living. The applicants objected to this proposal, considering that it would have entailed a further restriction of their access to the children. Instead, they requested two meetings a month, one of which was to be at their place of residence. On 22 December 1994 they asked for a separate written decision concerning their access request, so that they could appeal against it. 74. In a letter of 22 December 1994 the Social Director informed the applicants that there were no longer any grounds for the access restriction. Meetings between the applicants and the children were nevertheless only authorised for three hours once a month on premises chosen by the Social Welfare Board. They were also informed that the meetings would be supervised. 75. In his decision of 11 January 1995 the Social Director confirmed that there were no longer any grounds for the access restriction. On 31 January and 28 February 1995 the Social Welfare Board confirmed the decision of 11 January 1995. The applicants appealed. 76. As regards the applicants’ appeal against the Social Welfare Board’s decisions of 31 January and 28 February 1995, the County Administrative Court considered, on 15 June 1995, that the revised care plan drawn up on 17 November 1994 had already entailed an access restriction which had later been renewed by further decisions, without the applicants having been properly heard, in respect of their access request. The matter was referred back to the Social Welfare Board for further consideration. 77. In the light of the County Administrative Court’s decision the Acting Social Director, on 28 June 1995, formally restricted the applicants’ access to the children to one meeting a month up to 31 May 1996. The meetings were to take place in the foster home. In addition, the foster parents were to visit the applicants with the children every six months. The Director considered, inter alia, that it was important that the children settle themselves in the foster family environment in which they would grow up. Closer contacts with their parents would mean change and insecurity as well as the creation of a new crisis in their development. The process of settling which had started well would be jeopardised. For the children’s progress it was therefore necessary that their situation remain stable and secure. The Director’s decision was confirmed by the Social Welfare Board on 22 August 1995. The applicants appealed. 78. On 3 November 1995 the County Administrative Court rejected the applicants’ appeal against the access restriction confirmed on 22 August 1995. 79. On 25 May 1996 social welfare officials revised the public care plan, proposing that the children meet the applicants once a month on the premises of a school at the children’s place of residence. As the applicants were not present when the proposal was made, the care plan was again revised on 9 October 1996 in so far as the access restriction was concerned. The applicants then proposed that the children meet them without supervision once a month. The public care plan was, however, revised as proposed by the social welfare officials. 80. On 17 June 1996 the Social Director restricted both applicants’ access to the children, until 30 November 1997, to one monthly visit on the premises of a school at the children’s place of residence, where access was to take place under supervision for three hours. One of the foster parents was also ordered to be present at the time of the access. The Social Director’s decision was confirmed by the Social Welfare Board on 20 August 1996. The applicants’ appealed against the decision to the County Administrative Court, requesting an oral hearing. The court obtained a statement from a child psychiatrist, Dr J.P., who was also recommended by the applicants’ representative to the Social Welfare Board. Dr J.P.’s statement included the following observations:
“The right of access of M. and J. to the persons close to them must primarily be examined in the light of their psychological growth and development and their health. This requires an examination of the quality, permanence and durability of their human relationships, because psychological growth and development take place in interaction with human relationships. In my opinion, the human relationships are to be examined from the children’s point of view. ...
... In conclusion, I note that before M. was placed in the children’s home ... the mother had been in psychiatric hospital for treatment eight times, making a total of thirteen months. Thus, M. had lived with his mother for forty-five months, namely, three years and nine months. The longest that they spent together was two years and one month. ... T. has, as ‘stepfather’, helped to look after M. for at most ten months. ... the foster parents have so far looked after M. for three years and three months without interruption. ... In practice, M. has not had any kind of relationship with his biological father ...
In the light of the above, I note that the human relationships in M.’s early childhood have, owing to the circumstances, been non-continuous, short-term and changing. The most stable and continuous relationships have been with his foster parents ... Therefore, these relationships are the most relevant and important ones for M.’s psychological growth and development.
... J. was born in June 1993. She was taken into public care immediately after she was born. At first, she stayed in the district hospital for a short time, and later at a reception home for small children. T., as the biological father of J., looked after her for two weeks in June and August 1993. J. was placed in the foster family ... in January 1994, when she was some seven months old. So far, J. has stayed with her foster family for some three years and three months without interruption. J. is now a little over 3 years and 10 months old.
In the light of the above, I note that, due to the circumstances, J. has not had any significant and important relationships other than those with her foster parents. J.’s relationship with her foster parents is of primary importance for her psychological growth and development. ...
... From the children’s point of view, especially, but naturally also from that of the foster parents, the foster family is a family to which the principles concerning family life enshrined in the United Nations Convention on the Rights of the Child and in the European Convention on Human Rights can be applied in the same way as to biological families. This point of view is especially important when, due to the circumstances, the biological family has not lived together.
In the light of the above, I note that the arrangements for helping and supporting the foster parents of M. and J. are in the best interests of the children. The arrangement will, in the first place, ensure the important, continuous and safe human relationships of M. and J. with their foster parents ...
It is also important for M. and J.’s psychological growth and development that, in the safe and stable conditions provided by the foster family, they are able to form and maintain a good internalised picture of their biological parents ... from whom they have been separated because of the circumstances.
In my opinion, this can be done by complying with the decision of the Social Welfare Board of S. of 20 August 1996 concerning the right of access. At present, an unrestricted right of access or a right of access of the extent suggested by the applicants is not in the interests of the children, because K. and T. are not capable of meeting the emotional needs of M. and J. ... Such arrangements concerning the right of access would clearly endanger the health and development of M. and J. In my opinion, the question of an unrestricted right of access should be evaluated when the children have attained the age of 12.” 81. In a statement of 10 September 1996 Dr K.P. stated that in her opinion K.’s psychiatric state did not preclude K.’s having custody of her daughter R. 82. On 2 April 1997 the care plan was again revised by the social welfare authorities. The applicants had been informed of the time of the meeting concerning the revision of this care plan on home visits on 15 January and 10 March 1997. Their representative had also been informed of the meeting by a letter sent on 10 February 1997. The applicants did not attend the meeting, and neither did their representative. The applicants were thus not explicitly heard in this connection but, as they had expressed their opinion on other occasions, the authorities recorded their point of view in the plan. 83. On 12 June 1997 the County Administrative Court rejected the applicants’ appeal against the Social Welfare Board’s decision of 20 August 1996 to restrict the applicants’ access right (see paragraph 80 above). It refused the applicants’ request for an oral hearing. 84. Although the applicants had stated only in their reply that the appeal was also made on R.’s behalf, the County Administrative Court found in its decision that it was in part made in her name. The court stated that a person to whom a decision was directed, or upon whose right, duty or interest it had a direct effect, had the right of appeal. The court considered that the Board’s decision, which concerned R.’s siblings’ and parents’ right of access, was not such a decision. 85. On 28 November 1997 the Social Director restricted the applicants’, and consequently their youngest child R.’s, access to J. and M. to one monthly visit of three hours on the premises of a school at the children’s place of residence until the end of 1998. The applicants did not appeal. 86. The care plan was again revised on 1 December 1998. 87. According to a statement made on 3 July 1998 by Dr K.M. (formerly Dr K.P.), K. had not been hospitalised since May 1995 and her health had been stable since the beginning of 1995. There had been no problems concerning the care of R. (who had lived with her parents all the time and had not been taken into care). It was recommended by Dr K.M. that the social welfare authorities should reduce or discontinue control visits to the applicants’ home in order to give K. the possibility of settling down to normal life without constant supervision by the authorities. 88. The restriction orders were extended by the Social Director on 11 December 1998, until the end of 2000. The visits were to take place under supervision on the premises of a school at the children’s place of residence. However, one of the visits was to take place at the applicants’ home in the presence of the foster parents. The Social Director considered, inter alia, that the reunification of the family was not in sight as the foster family was now the children’s de facto home; that the applicants’ access to the children once a month and through correspondence was enough to maintain the children’s awareness of their biological parents; and that closer contacts with the applicants would endanger the children’s development, bring change and insecurity and create a new crisis in their development. The applicants appealed against this decision to the Social Welfare Board which, on 2 February 1999, rejected the appeal and upheld the Social Director’s decisions. In its reasoning, the Board quoted both the County Administrative Court and Dr J.P. 89. According to the reports drawn up by the supervisor who attended the meetings of the children and the applicants during the period from 25 May 1996 to 10 January 1999, the adults got on quite well together during the meetings. J. often played games with M. When R. was smaller, J. played by herself, but later it seemed that the girls, J. and R., spent more time together. On the other hand, it seemed that the first applicant made very little contact with J. and M. According to the supervisor’s description, especially in the earlier reports, the first applicant seemed to have concentrated on R. 90. M. visited K. and T. at their home for the weekend of 21 to 23 July 2000 without supervision. 91. The applicants appealed against the Social Welfare Board’s decision of 2 February 1999, concerning the right of access, to the Administrative Court (formerly the County Administrative Court). An oral hearing, at which M. was also heard, was held on 3 October 2000. In its decision of 13 October 2000 the administrative court upheld the Social Welfare Board’s decision. 92. The social authorities reviewed the care plan on 23 November 2000, having consulted the applicants, among others. It was decided that the children would remain in the foster home. According to the care plan, M. and J. are allowed to meet K. and T and others close to them, as from 1 January 2001 until 31 December 2001, without supervision once a month alternately at the applicants’ home and the foster parents’ home. The meetings at the applicants’ home will take place from Saturday 11 a.m. until Sunday 4 p.m., and the meetings at the foster parents’ home on Sundays, from 11 a.m. until 5 p.m. The children are also allowed to meet their other relatives freely during those meetings. In addition to the above, the children will also spend a day and a night with the applicants each Christmas, and two weeks each summer during their school holidays. 93. J. and M.’s foster mother died in May 2001. | [
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9. The applicant is the monarch of Liechtenstein, born in 1945 and living in Vaduz (Liechtenstein). 10. The applicant’s late father, the former monarch of Liechtenstein, had been the owner of the painting Szene an einem römischen Kalkofen (alias Der große Kalkofen) of Pieter van Laer, which had formed part of his family’s art collection since at least 1767. Until the end of the Second World War the painting had been in one of the family’s castles on the territory of the now Czech Republic. 11. In 1946 the former Czechoslovakia confiscated the property of the applicant’s father which was situated in its territory, including the painting in question, under Decree no. 12 on the “confiscation and accelerated allocation of agricultural property of German and Hungarian persons and of those having committed treason and acted as enemies of the Czech and Slovak people” (dekretu prezidenta republiky č. 12/1945 Sb. o konfiskaci a urychleném rozdělení majetku Němců, Mad’arů, zrádců a nepřátel), issued by the President of the former Czechoslovakia on 21 June 1945 (“the Beneš Decrees” – “Benešovy dekrety”). 12. On 21 November 1951 the Bratislava Administrative Court (správní soud) dismissed the appeal lodged by the applicant’s father.
In its reasoning on the merits of the case, the Administrative Court stated that the defendant office had come to the conclusion that the appellant was a person of German nationality within the meaning of the provision in Article 1 § 1 (a) of the decree, on the basis of a finding that this was and had been generally known. It noted that the defence of the complaint directed against this finding was restricted to the representation that this finding was not supported in the files and that, due to this shortcoming, it had not been necessary to deal with the finding in greater detail. The Administrative Court considered that this approach was mistaken as, under the relevant provision of the administrative regulations, no evidence was required for facts which were generally known and, therefore, it was not necessary for evidence to be contained in the administrative files; however, counter-evidence against an official finding that a certain fact was generally known would have been admitted.
The Administrative Court concluded that, as the appellant had failed to raise the objection that the issue was not a fact of general knowledge and to contend that he was in a position to bring counter-evidence, the finding of the defendant office had remained uncontested. 13. In 1991 the municipality of Cologne obtained the painting as a temporary loan from the Brno Historical Monuments Office in the Czech Republic. 14. On 11 November 1991 the Cologne Regional Court (Landgericht) granted the applicant’s request for an interim injunction ordering the municipality of Cologne to hand over the painting to a bailiff at the end of the exhibition. The painting was sequestrated on 17 December 1991. 15. At the beginning of 1992 the applicant instituted proceedings before the Cologne Regional Court against the municipality of Cologne, requesting that the defendant consent to the delivery of the painting to him by the bailiff. He argued that, as his late father’s heir, he was the owner of the painting. He submitted that the painting had not been subject to expropriation measures in the former Czechoslovakia and that in any event such measures were invalid or irrelevant on account of violation of the ordre public of the Federal Republic of Germany. 16. The Brno Historical Monuments Office intervened in these proceedings in support of the defendant. It submitted that the applicant’s father had lost his ownership of the painting as a result of the confiscation in 1946 and that the lawfulness of this confiscation had been confirmed by the Bratislava Administrative Court in its decision of 21 November 1951. 17. On 10 October 1995 the Cologne Regional Court, following a hearing, declared the applicant’s action inadmissible. In the court’s view, Chapter 6, Article 3, of the Convention on the Settlement of Matters Arising out of the War and the Occupation (Vertrag zur Regelung aus Krieg und Besatzung entstandener Fragen – “the Settlement Convention”) of 23 October 1954 between the United States of America, the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Federal Republic of Germany excluded German jurisdiction over the applicant’s case.
In its reasoning, the Regional Court noted that, under the terms of that Article’s paragraph 3 taken in conjunction with paragraph 1, claims or actions against persons having acquired or transferred title to property on the basis of measures carried out with regard to German external assets or other property, seized for the purpose of reparation or restitution, or as a result of the state of war, or on the basis of specific agreements, were not admissible. These particular provisions had been confirmed upon German unification.
According to the Regional Court, Chapter 6, Article 3 § 3, of the Settlement Convention applied, mutatis mutandis, to the applicant’s claims against the defendant, which had obtained the painting on loan and had not acquired property, because any review of the aforementioned measures should be excluded.
The Regional Court found that the confiscation of the applicant’s father’s property under Decree no. 12 on the “confiscation and accelerated allocation of agricultural property of German and Hungarian persons and of those having committed treason and acted as enemies of the Czech and Slovak people”, issued by the President of the former Czechoslovakia on 21 June 1945, constituted a measure within the meaning of Chapter 6, Article 3 § 3.
The Regional Court rejected, in particular, the applicant’s argument that this provision did not apply as it only concerned measures carried out with regard to German external assets or other property and his father had never been a German citizen. In this respect, the court, referring to case-law of the Federal Court of Justice (Bundesgerichtshof), stated that the view of the confiscating State was decisive. The aim and purpose of this provision, namely to sanction, without any further examination, confiscation measures implemented abroad could only be achieved by excluding such measures from judicial review in Germany.
Moreover, the Regional Court found that the confiscation measure in question pursued one of the purposes mentioned in Chapter 6, Article 3 § 3. Having regard to German case-law regarding other “Beneš Decrees”, especially Decree no. 108 on the “confiscation of enemy property and the national reform fund”, it considered that Decree no. 12, while also pursuing economic aims, was intended to expropriate the property of German and Hungarian nationals, that is, “enemy property”.
The Regional Court further noted that the applicant’s father’s painting had been expropriated under Decree no. 12. The competent Czechoslovakian authorities had interpreted its provisions as applying to the applicant’s father, regarding him as a “person of German nationality”. The applicant’s father had unsuccessfully appealed against this decision which had been confirmed by the Bratislava Administrative Court in 1951. The German courts were not in a position to review the lawfulness of the confiscation at issue.
Finally, the Regional Court considered that the painting at issue, as part of the inventory of the agricultural property, had been included in the confiscation measure.
The Regional Court dismissed the applicant’s request to suspend the proceedings in order to await the outcome of proceedings to be instituted under the German Equalisation of Burdens Act (Lastenausgleichsgesetz) concerning compensation for damage and losses due to, inter alia, expulsion and destruction during the Second World War and the post-war period in the then Soviet-occupied zone of Germany and of Berlin. The Regional Court considered that the question underlying the litigation before it would not be clarified in such proceedings. Irrespective of the question of whether the plaintiff was of German origin, he had no equalisation claims under the said legislation, which only applied to persons who resided in the Federal Republic of Germany or West Berlin on 31 December 1952. In any event, there was no right to compensation for the loss of works of art (Kunstgegenstände). 18. On 9 July 1996 the Cologne Court of Appeal (Oberlandesgericht) dismissed the applicant’s appeal. The Court of Appeal confirmed that the applicant’s action was inadmissible as German jurisdiction in respect of his claim was excluded under Chapter 6, Article 3 § 1, in conjunction with paragraph 3, of the Settlement Convention.
The Court of Appeal considered that the notion of German jurisdiction included the competence, derived from State sovereignty and generally vested by the State in the courts, to administer justice. German jurisdiction was delimited by international agreements, customary international law and the generally recognised rules of international law. Chapter 6, Article 3 § 3, taken in conjunction with paragraph 1, of the Settlements Convention excluded German jurisdiction in respect of claims and actions against persons, who, as a consequence of reparation measures, had directly or indirectly acquired title to German property confiscated abroad.
The Court of Appeal confirmed that the provisions in question continued to be in force under the Treaty of 12 September 1990 on the Final Settlement with respect to Germany. Article 7 of this Treaty, which provided for the termination of the operation of quadripartite rights and responsibilities with respect to Berlin and Germany as a whole, was amended by the Agreement of 27 and 28 September 1990 according to which the Settlement Convention was suspended and later terminated with the exception of the provisions specified in paragraph 3 of that Agreement, inter alia, Chapter 6, Article 3 §§ 1 and 3. That Agreement was valid under public international law and under German constitutional law.
The Court of Appeal further considered that Chapter 6, Article 3 § 3, of the Settlement Convention applied in the applicant’s case. In the court’s view, this provision was the procedural consequence of the notion that the legal relations resulting from the liquidation of German property abroad by foreign powers for the purpose of reparation were “final and unchallengeable” (Endgültigkeit und Unanfechtbarkeit) for the Federal Republic of Germany and the private persons concerned.
According to the Court of Appeal, the applicant’s constitutional rights, in particular his right to property, his right of access to a court and his right to a decision by the legally competent court (gesetzlicher Richter), had not been infringed. Basic rights protected individuals against acts of domestic public authorities and not against the exercise of public authority by a foreign State abroad. The domestic legislator was therefore not prevented from limiting domestic legal protection against violations of basic rights by a foreign State if this was necessary to attain more important goals.
When applying Chapter 6, Article 3 § 3, of the Settlement Convention, the domestic law of the expropriating State concerning the concrete confiscation measure had to be taken into account, as this provision was aimed at excluding litigation in Germany regarding confiscation measures based on legislation concerning enemy property.
As regards the applicant’s objections against the lawfulness, in particular under public international law, of the confiscation and expropriation of his father’s property, the Court of Appeal found that by virtue of Chapter 6, Article 3 § 3 of the Settlement Convention, German courts had no jurisdiction. Likewise, this provision did not allow recourse to be had to general rules of public international law or to German ordre public when examining the admissibility of the action. The applicant’s argument that the provisions of the Settlement Convention and their application to him as a national and head of a neutral State violated the law of peace was accordingly rejected.
According to the Court of Appeal, the painting at issue constituted external assets within the meaning of Chapter 6, Article 3 § 1, of the Settlement Convention, referred to in paragraph 3 of Article 3. The Court of Appeal noted that the applicant’s father had indisputably never had German nationality. However, following the case-law of the Federal Court of Justice, it considered that the notion of “German external assets” had to be interpreted in the light of the law of the expropriating State. The confiscation in dispute had been found to be in compliance with the legislation of the expropriating State: the competent Czechoslovakian administrative authorities as well as the Bratislava Administrative Court had found that Presidential Decree no. 12 of 21 June 1945 applied to the applicant’s father’s confiscated property. Article 1 § 1 (a) of this decree provided for the confiscation of agricultural properties of “all persons of German or Hungarian nationality” irrespective of their citizenship. The notions of “German nationality”, or of “German origin” (“deutsche Volkszugehörigkeit”), likewise used at that time, comprised as relevant elements a person’s citizenship and nationality, the latter depending on the mother tongue. At the relevant time, the Czechoslovakian authorities indisputably regarded the applicant’s father as of German origin in that broader sense.
The Court of Appeal also found that the painting at issue, as part of the confiscated agricultural property, had been subject to the expropriation measure. There were no doubts as to the effectiveness of the expropriation, as it was sufficient under the relevant case-law that such expropriations had been implemented and that the previous owners had been deprived of their factual power of disposition. Furthermore, the painting had been confiscated for the purpose of reparation within the meaning of Chapter 6, Article 3 §§ 1 and 3, of the Settlement Agreement. The limitation of the confiscation measures to persons belonging to enemy States in itself justified such a conclusion. The assets of the persons concerned were confiscated as enemy assets.
Finally, the Court of Appeal considered that both the defendant and the intervener belonged to the group of persons protected by Chapter 6, Article 3 § 3, of the Settlement Agreement. German jurisdiction was excluded whenever the plaintiff intended to challenge measures within the meaning of Chapter 6, Article 3 § 1. 19. On 25 September 1997 the Federal Court of Justice refused to entertain the applicant’s appeal on points of law, as the case was of no fundamental importance and, in any event, had no prospect of success. 20. On 28 January 1998 the Third Section of the Second Division (3. Kammer des zweiten Senats) of the Federal Constitutional Court (Bundesverfassungsgericht) refused to entertain the applicant’s constitutional complaint (Verfassungsbeschwerde), as it offered no prospect of success.
The Federal Constitutional Court considered in particular that, for the purposes of the civil court decisions, questions as to the existence or non-existence of certain rules of customary international law on the confiscation of neutral assets or on the determination of citizenship were irrelevant as they concerned the issue of the lawfulness of the expropriation by the former Czechoslovakia. The German civil courts had not decided this issue and, under public international law, they had not been obliged to do so. Moreover, to the extent that the civil courts had regarded the expropriation as a measure within the meaning of Chapter 6, Article 3 § 1, of the Settlement Convention, they had expressly refrained from qualifying the applicant’s father’s nationality. Their interpretation of the terms “measures with regard to German external assets” as comprising any measures which, in the intention of the expropriating State, were directed against German assets, could not be objected to under constitutional law. The bar on litigation did not constitute an agreement to the detriment of Liechtenstein, as only the Federal Republic of Germany and its courts were under this treaty obligation.
The Federal Constitutional Court further recalled that the exclusion of jurisdiction did not amount to a violation of the right of property as these clauses and the Settlement Convention as a whole served to settle matters dating back to a time before the entry into force of the German Basic Law (Grundgesetz) on 23 May 1949.
Finally, there was no indication of arbitrariness or of a violation of other constitutional rights. The Federal Constitutional Court confirmed that Chapter 6, Article 3 §§ 1 and 3, of the Settlement Convention had not been set aside by the Treaty on the Final Settlement with respect to Germany: while Germany obtained full sovereignty, its obligations under treaties with the Three Powers were not affected. This had also been the legal opinion of the Federal Republic of Germany and the Three Powers, which otherwise would not have settled the suspension and termination of parts of the Settlement Convention in a separate agreement.
The decision was served on 2 February 1998. 21. On 9 June 1998 the Cologne Regional Court discharged its interim injunction of 11 November 1991. The bailiff thereupon handed the painting over to the Cologne municipality, which had it returned to the Czech Republic. | [
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9. In June 1949 plots of agricultural land owned by the applicant’s father were expropriated by the former Doksy District National Council (okresní národní výbor) under the Czechoslovak New Land Reform Act No. 46/1948 (“the 1948 Act”). The applicant’s father had never obtained any compensation. In 1957 some of these plots were transferred to the ownership of natural persons in an assignment procedure under the 1948 Act. In 1977 the applicant’s father died and the applicant’s rights over his estate were confirmed. 10. After the fall of the communist regime in Czechoslovakia, the Act No. 229/1991 on Adjustment of Ownership Rights in respect of Land and Other Agricultural Property (“zákon o půdě”, the “Land Ownership Act”) entered into force on 24 June 1991. The Act provided that the 1948 Act was no longer applicable and that under certain conditions property confiscated pursuant to that Act without compensation could be returned to its former owners or their heirs if it was still in the possession of the State or of a legal person. However, if such property had been transferred into the possession of natural persons, the former owners or their heirs could – subject to certain exceptions – only claim the assignment of other equivalent property or financial compensation. 11. On the basis of the Land Ownership Act, the applicant entered into restitution agreements with two legal persons (the Hradec Králové State Forest Enterprise and the Líny – Krásná Ves Agricultural Cooperative) on 10 December 1993 and 4 May 1994 respectively. By two decisions of 12 October 1994 the Mladá Boleslav Land Office (pozemkový úřad, “the Land Office”) refused to approve the restitution agreements. Referring to section 32(3) of the Land Ownership Act, it found that some of the plots had been assigned to different owners pursuant to the 1948 Act, and that these owners, being natural persons, had proved their property rights by showing their deeds of assignment. The Land Office based its decisions on the following documents: the decision of the former Mladá Boleslav State Notary (státní notářství) of 26 May 1977 on the applicant’s father’s inheritance, the decision of the former Doksy District National Council of 7 June 1949 on the expropriation of the applicant’s father’s property, the record of the former Líny Local National Council (místní národní výbor) of 7 November 1949 on the proceedings on the applicant’s father’s appeal against the expropriation, the decision of the former Liberec Regional National Council (krajský národní výbor) of 29 November 1949 by which the decision of expropriation had been modified, and an extract (výpis) from the land register (pozemková kniha) relating to the Líny and Krásná Ves Districts. The Land Office had also at its disposal copies of the deeds of assignment made out by the Mladá Boleslav Land Register Office (katastrální úřad) on 23 September 1994. 12. It appears from the text of the invitation issued by the Land Office on 28 September 1994 that the latter scheduled a hearing for 12 October 1994 to which the applicant and his lawyer were invited, together with the representatives of the State Forest Enterprise, the agricultural cooperative and representatives of the Mladá Boleslav Land Fund (Pozemkový fond). According to the record of the hearing, only the applicant and the representatives of the State Forest Enterprise and of the agricultural cooperative attended the hearing. The applicant refused to make any comments on the issue of the administrative proceedings and did not sign the record. The representatives of both legal persons left the hearing before the end. 13. On 11 November 1994 the applicant lodged appeals with the Prague Municipal Court (městský soud, “the Municipal Court”) against the two administrative decisions. He claimed the restitution of the entire property, contesting that the acquisition of part thereof had been proven by the natural persons concerned and requesting access to the respective deeds of assignment. 14. On 31 May 1995 the Municipal Court joined both appeals and upheld the administrative decisions of 12 October 1994. It held that the Land Office had correctly refused to approve the restitution agreements as a whole as they also covered property whose ownership had been transferred to natural persons and thus could not be returned to the original owner. This had been established on the basis of all relevant documents including the deeds of assignment, which were included in the administrative files. The applicant could have consulted them at any time during the administrative proceedings if he had wished to do so as provided for in section 23(1) of the Code of Administrative Procedure. The Municipal Court considered that no hearing was necessary in the applicant’s case, as the facts had been correctly established by the administrative authority and only points of law were in issue before it. In this respect, it referred to section 250(f) of the Code of Civil Procedure. 15. The case was referred back to the Land Office pursuant to section 9(3) of the Land Ownership Act (see paragraph 25 below) which gave a new decision on 25 July 1995. In accordance with the opinion of the Municipal Court, by which it was bound by virtue of section 250(r) of the Code of Civil Procedure, the Land Office confirmed the applicant’s property rights in respect of those plots which had not been transferred to natural persons under the 1948 Act. At the same time, it informed the applicant that he could seek compensation under section 11 or 16 of the Land Ownership Act for the plots which could not be returned to him. 16. On 14 September and 15 October 1995 the applicant lodged a constitutional appeal (ústavní stížnost) claiming inter alia that his property rights had been violated, that he had not been able to put forward further evidence and that the Municipal Court had not informed him about its decision to join both cases. He invoked inter alia Articles 36 and 38 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). 17. On 29 November 1995 the Constitutional Court (Ústavní soud) rejected the applicant’s appeal as manifestly ill-founded. It considered that the applicant’s constitutional rights to a proper court procedure had not been violated by the manner in which the Municipal Court had dealt with his appeal. Having regard to the special nature of the judicial review of administrative decisions, the court’s function was limited to a legal reassessment of the case on the basis of the facts established by the administrative authority. The applicant had not invoked evidence disregarded by the Land Office and, by merely articulating his discontent with the latter’s decision, had not raised any valid objection to the facts as established by it. Furthermore, according to the Constitutional Court, the Municipal Court had not infringed constitutional law by deciding the case without a hearing as this was lawful under section 250(f) of the Code of Civil Procedure when the case involved only the assessment of points of law. 18. On 1 May 1998 the applicant died. Nevertheless, his lawyer introduced before the Land Office a request for compensation by the assignment of other plots pursuant to section 11(2) of the Land Ownership Act. According to the Government, this request is still pending before the Land Office. 19. On 29 October 1998 the judicial proceedings regarding the applicant’s inheritance were terminated by a finding of the Prague 2 District Court that the applicant had not left any estate. Apparently, the court was not aware of the Land Office’s decision of 25 July 1995. 20. On 22 February 2000 the applicant’s nephew, Mr Bouček, requested the district court to re-open the inheritance proceedings. He produced his uncle’s last will of 22 March 1998 in which he was designated as a universal heir of the applicant’s estate, while the applicant’s two adult children were disinherited. The re-opening of the judicial proceedings concerning the inheritance was eventually granted on 21 August 2000. On 28 March 2001 the Prague 2 District Court approved an agreement concluded between Mr Bouček and the applicant’s two children concerning the division of the applicant’s estate on an equal basis. | [
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8. In 1991 Mr Dušan Slobodník, a research worker in the field of literature, published an autobiography entitled Paragraph: Polar Circle. He described in it, inter alia, his conviction by a Soviet military tribunal in 1945 on the ground that he had been ordered to spy on the Soviet army after having been enrolled, in 1944 when he was 17 years old, in a military training course organised by Germans. In the book, Mr Slobodník also wrote about his detention in Soviet gulags and his rehabilitation by the Supreme Court of the Union of the Soviet Socialist Republics in 1960. In June 1992 Mr Slobodník became Minister for Culture and Education of the Slovak Republic. 9. On 20 July 1992 the newspaper Telegraf published a poem by the applicant. It was dated 17 July 1992 (the day when the sovereignty of the Slovak Republic was solemnly proclaimed) and entitled “Good night, my beloved” (“Dobrú noc, má milá”). One of its verses read as follows:
“In Prague prisoner Havel is giving up his presidential office. In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB [The ŠTB (Štátna bezpečnosť) was the secret police during the communist regime in Czechoslovakia] embraced each other.” 10. The poem was later published in another newspaper. In separate articles, two journalists alleged that the expression “member of the SS” stood for Mr Dušan Slobodník. 11. On 30 July 1992 several newspapers published a statement which the applicant had distributed to the Public Information Service (Verejná informačná služba) the day before. It was entitled “For a better picture of Slovakia – without a minister with a fascist past” (“Za lepší obraz Slovenska – bez ministra s fašistickou minulosťou”). It read as follows:
“There has been a problem about how to keep a democratic character in [the Slovakian] national emancipation process, which we have tried to resolve many times. Until now, Slovakia has lost most when matters related to the Slovakian nation were in the hands of the wrong people who led us away from democratic evolution. The cost was high: for example, the combatants’ lives lost in the Slovakian National Uprising [in 1944 and 1945] .
Now, we are scared that this mistake could be made again. To say that our way to Europe is by working together and cooperating in its democratic evolution is not enough. This is a direct condition arising from international law without the fulfilment of which no one in Europe will take notice of us.
I expressed this concern in my polemics with Mr Dušan Slobodník last year; life has finished the writing of our polemics, and my views were proved correct.
This year Mr Slobodník became the Slovak Republic’s Minister for Culture and Education and the next thing was that his fascist past came out in public. Mr Slobodník managed this situation in a way that allowed the writer Ladislav Mňačko to prove he was a liar. But he still has not given up his ministerial post, although in any other democratic country he would have had to do so a long time ago.
Does Mr Slobodník think that Slovakia is some special exception and that it is the only country having the right to revise the philosophy of the Nuremberg trials, which is binding on the post-war development of all other European countries? Or is the message of the Slovakian National Uprising not correct? ... Does Mr Mečiar think that having this minister in the government will help him to persuade people in Europe that his talk about the democratic intentions of his government is serious? Is it good to have Mr Slobodník in the government when this fact will lead to the political, economic and cultural isolation of Slovakia?
Mr Slobodník likes to use every chance to talk about improving the image of Slovakia around the world. I fully agree with him on this. He has a personal opportunity to do something in order to improve the image of Slovakia: to resign.” 12. On 5 August 1992 Mr Slobodník publicly declared that he would sue the applicant for the above statement. 13. In an interview published in the Czech daily Lidové noviny on 12 August 1992 the applicant stated, inter alia:
“... when I speak of the fascist past [of Mr Slobodník], I do not characterise him, I only think that the fact that he attended a terrorist training course organised by the SS falls within the term ‘fascist past’. I consider that such a person has nothing to do in the government of a democratic State ...” 14. In the context of the nomination of Mr Slobodník to a post in the government, issues relating to his past were taken up by several Slovakian and Czech newspapers both before and after the publication of the applicant’s statement. Articles concerning this subject were also published in The New York Times, on 22 July 1992, the Tribune de Genève, on 18 September 1992, Izvestia on 31 August 1992, as well as by the Austrian Press Agency. The New York Times, the Tribune de Genève and Izvestia later published the reaction of Mr Slobodník to their respective articles. 15. On 9 September 1992 Mr Slobodník sued the applicant for defamation under Article 11 et seq. of the Civil Code before the Bratislava City Court (Mestský súd). He later extended the action and alleged that the verses “In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB embraced each other” from the applicant’s poem referred to him. He also alleged that the above-mentioned statement published in the newspapers wrongly referred to his fascist past. The plaintiff claimed that the applicant should bear the costs of publication of an apology in five newspapers and also pay him 250,000 Slovakian korunas (SKK) as compensation. 16. On 18 October 1993 the Bratislava City Court dismissed the action. It established that the plaintiff had been a member of the Hlinka Youth (Hlinkova mládež) and that in February and March 1945 he had participated in a terrorist training course in Sekule. It observed that the Hlinka Youth had been a military corps of the Hlinka Slovakian People’s Party (Hlinkova slovenská ľudová strana) and that under the law then in force the Slovak nation had participated in the exercise of State power through the intermediary of that party. The court pointed out that, under Article 5 of Presidential Decree no. 5/1945 of 19 May 1945, legal persons which had deliberately promoted the war waged by Germany and Hungary or had served fascist and Nazi aims were to be considered unworthy of the State’s trust. 17. The City Court further established that in May 1945 a military tribunal of the Soviet army had sentenced Mr Slobodník to fifteen years’ imprisonment on the ground that he had attended the training course in Sekule and had been ordered, on 22 March 1945, to cross the front line and to spy on Soviet troops. The military tribunal’s judgment further stated that Mr Slobodník had not crossed the front line but had gone home in April 1945, when he had been arrested. The City Court also noted that the plaintiff had served the sentence in Soviet camps until his release in 1953. In 1960 the Supreme Court of the USSR had quashed the sentence and discontinued the proceedings for the lack of factual elements of an offence. 18. Before the City Court, Mr Slobodník claimed that he had been a member of the Hlinka Youth only for a short time and that he had joined the organisation only because it had been a prerequisite for his participation in a table-tennis tournament. He further explained that he had been summoned to the training course in Sekule and that he had complied with the summons out of fear for himself and his family. Mr Slobodník alleged that he had been excluded from the course as being unreliable after he had expressed his negative opinion about it. He had then been taken to the Hlinka Youth headquarters in Bratislava, from where he had been allowed to return home to Banská Bystrica under the condition that he would report on the Soviet army. However, the City Court did not find these facts established. In particular, it did not consider as relevant evidence the description of the events contained in the plaintiff’s book Paragraph: Polar Circle, which had been published earlier. In its view, the fact that the 1945 sentence had been quashed did not prove that the plaintiff had not been a member of the Hlinka Youth and that he had not attended the training course in Sekule. 19. The City Court also noted that the relevant period of Mr Slobodník’s life had been covered by the press both in Slovakia and abroad prior to the applicant’s statement, and that on several occasions Mr Slobodník himself had commented and given interviews on those issues, both in Slovakia and abroad. The court concluded that, in the statement, the applicant had expressed his opinion on the basis of information which had already been published in the press. The statement concerned a public figure who was inevitably exposed to close scrutiny and sometimes also to criticism by other members of society. By making the statement, the applicant had exercised his right to freedom of expression and he had not unjustifiably interfered with the plaintiff’s personality rights. 20. Mr Slobodník appealed to the Supreme Court (Najvyšší súd), alleging that the applicant had not proved that he had a “fascist past”, and that the City Court had not established the meaning of that term. Mr Slobodník argued that he had been summoned to the training course in Sekule by an order and that he had left it at the first opportunity after he had learned about its real purpose. He also explained that martial law had been in force at the material time and that people had been unlawfully executed or detained. Members of the Hlinka Youth had been incorporated in the armed forces by a presidential order and had fallen under military judicial and disciplinary rules. The plaintiff maintained that he had done nothing against his homeland or the anti-fascist allies and concluded that the applicant’s statement and poem were defamatory. 21. The applicant contended, in particular, that the courts should abandon their established practice according to which the defendant has to prove the truthfulness of his statements in defamation proceedings. He maintained that the burden of proof should be shifted onto the plaintiff or shared between the parties. The applicant further argued that his statement was a value judgment based on the undisputed facts that the plaintiff had been a member of the Hlinka Youth and that he had attended a terrorist training course in Sekule. It was irrelevant to what extent the plaintiff had been involved in the activities of the Hlinka Youth or for how long he had been a member of it. What mattered was that the plaintiff had voluntarily joined the organisation and that, after his alleged exclusion from the training course in Sekule, he had undertaken, as shown by the Soviet military tribunal’s judgment of 19 May 1945, to provide information on the movements of Soviet troops to the headquarters of the Hlinka Youth. The applicant therefore proposed that the appeal be dismissed. 22. On 23 March 1994 the Supreme Court reversed the first-instance judgment, ruling as follows:
“... [the applicant] has to accept that ... Dušan Slobodník will distribute, if he thinks fit, to the Press Agency of the Slovak Republic as well as to five newspapers of his choice, both in Slovakia and abroad, the following declaration to be published at [the applicant’s] expense:
‘(1) [The applicant’s] statement addressed to [the Public Information Service] and published in daily newspapers on 30 July 1992 which reads: “...This year Mr Slobodník became the Slovak Republic’s Minister for Culture and Education and the next thing was that his fascist past came out in public ... Does Mr Slobodník think that Slovakia is some special exception and that it is the only country having the right to revise the philosophy of the Nuremberg trials, which is binding on the post-war development of all other European countries? ...”
(2) The occasional poem ... entitled “Good night, my beloved” in its part “... In Bratislava the prosecutor rules again. And rule by one party is above the law. A member of the SS and a member of the ŠTB embraced each other ...”
... represent a gross slander and disparagement of the civil honour and life, and an unjustified interference with the personality of the plaintiff Dušan Slobodník.’
...
(4) [The applicant] is liable to pay SKK 200,000 to the plaintiff in respect of non-pecuniary damage. ...’ ” 23. The applicant was also ordered to pay costs and the other party’s expenses. 24. The Supreme Court noted that the plaintiff had described the relevant events in his book Paragraph: Polar Circle before the dispute concerning his past had arisen, and that no other relevant facts had been established in the course of the proceedings. 25. In the appellate court’s view, the term “fascist past” was equivalent to the statement that a person was a fascist in the past. The court considered that the applicant himself had given a restrictive interpretation of that term in connection with the plaintiff, namely the interpretation according to the philosophy of the Nuremberg trials. This philosophy was derived from the multilateral agreement of 8 August 1945, which included also the statute of the International Military Tribunal, and which had become part of the Czechoslovakian legal order on 2 October 1947. The Supreme Court held that it was bound by the principle of individual responsibility set out in that agreement. 26. The Supreme Court further studied all available documents and evidence used during the Nuremberg trials relating to Slovakia. It found no reference in those documents to the Hlinka Youth in connection with fascist organisations. It established that the propagation or implementation of fascist theories had not been inherent in the statutory rules and regulations governing the Hlinka Youth. If some persons had abused the Christian principles on which the organisation had been built, this had contravened the rules then in force. Such persons and, as the case might be, those who had let themselves be abused for criminal purposes, were individually responsible. However, such was not the case of the plaintiff. The Supreme Court accepted the latter’s argument that he had learned about the character of the training course in Sekule only after he had started attending it. 27. The appellate court found irrelevant the reference, in the first-instance court’s judgment, to Presidential Decree no. 5/1945 of 19 May 1945 as that decree had only concerned property, in that it had placed under national administration the property of persons whom the State had considered unreliable. 28. The Supreme Court recalled that, at the relevant time, criminal and moral liability had been governed by Order no. 33 on the punishment of fascist criminals, occupants, traitors and collaborators and on the establishment of the people’s judiciary adopted by the Slovakian National Council on 15 May 1945 and also by Presidential Decree no. 16/1945 of 19 June 1945 on the punishment of Nazi criminals, traitors and their assistants and on extra-ordinary people’s courts. These rules were partly based on the principle of collective liability, but they did not mention the Hlinka Youth. 29. As regards the poem by the applicant, the Supreme Court noted that it was dated 17 July 1992, that is, the day on which the sovereignty of the Slovak Republic had been proclaimed from the balcony of the Slovakian National Council, where Mr Slobodník had also been present. Shortly afterwards, the applicant had written his statement concerning Mr Slobodník’s past and two journalists had interpreted the poem as a description of the scene during the proclamation. They had alleged that by “member of the SS” the applicant had meant to designate Mr Slobodník. The court therefore concluded that the applicant had infringed the plaintiff’s personality rights by his poem as well as by his statement of 29 July 1992. 30. The applicant’s request that the burden of proof in the case should be shifted onto the plaintiff or at least shared between the parties was not accepted as it had no basis in domestic law and practice. The Supreme Court concluded that the applicant had not proved that Mr Slobodník had been a fascist in the past, holding that the latter had joined the Hlinka Youth because he had wanted to participate in sports activities and had not been motivated by fascist sympathies. As to the training course in Sekule, it found that Mr Slobodník had not completed it, and it was irrelevant whether he had been excluded or had left it on his own initiative. The only relevant fact was that the plaintiff’s past could not be considered fascist from that point of view. 31. The applicant filed an appeal on points of law alleging, inter alia, a violation of his rights under Article 10 of the Convention. He claimed that the Supreme Court should have concluded from the relevant provisions of Presidential Decree no. 5/1945 that the Hlinka Youth was a fascist organisation and that, in accordance with the relevant provisions of the Slovakian National Council’s Orders nos. 1/1944 and 4/1944, participation in any activity within the Hlinka Youth was to be considered as participation in an unlawful fascist organisation. He further complained that the Supreme Court had not established with sufficient certainty whether the plaintiff had actually been excluded from the training course in Sekule, and whether he had undertaken to carry out terrorist activities or not. 32. On 25 May 1995 a different Chamber of the Supreme Court sitting as a court of cassation upheld the part of the appeal judgment of 23 March 1994 according to which the plaintiff was entitled to arrange for publication of the text set out in it and concerning the applicant’s statement of 29 July 1992. As for the remainder, the court of cassation quashed both the first and second-instance judgments and sent the case back to the Bratislava City Court. 33. The court of cassation did not share the applicant’s view that the plaintiff should be required to prove that the applicant’s allegations were untrue. It further held that a person could be considered as having a fascist past only if he or she had propagated or practised fascism in an active manner. Mere membership of an organisation and participation in a terrorist training course which had not been followed by any practical actions could not be characterised as a fascist past. 34. As the applicant had failed to prove that the plaintiff had a fascist past within the above meaning, the court found that his statement had infringed without justification the plaintiff’s personality rights. In the judgment, the court admitted that Slovakian law characterised the Hlinka Youth as a fascist organisation. It recalled, however, that the relevant legal rules, including those relied on by the applicant, applied to natural persons only where justified by their specific actions. Applying those rules to all members of such organisations without considering their actual deeds would entail the recognition of their collective guilt. It recalled that children over the age of 6 had been admitted to the Hlinka Youth. 35. The court considered that the applicant’s argument according to which his statement was a value judgment could only have been accepted if the applicant had expressly referred, in that statement, to the particular facts on which such a value judgment was based. The court stated, inter alia:
“Indicating that the plaintiff has had a fascist past is not a value judgment based on an analysis of facts, but an allegation (statement) made without any concurrent justification of factual circumstances from which a conclusion can be inferred by the person making the judgment. It could have been a value judgment if the statement [of the applicant] had been accompanied by reference to the [plaintiff’s] membership of the Hlinka Youth and his participation in the training course, namely, to the activities which the person making the judgment considers to constitute a fascist past. Only such a statement, based on circumstantial facts used by the person making the judgment, would be a value judgment the truthfulness of which would not require any proof. Only such an interpretation will guarantee a balance between the freedom of expression and the right to the protection of [a person’s] reputation within the meaning of Article 10 of the Convention.” 36. The court then found the restriction on the applicant’s freedom of expression compatible with the requirements of Article 10 § 2 of the Convention as it was necessary for the protection of the plaintiff’s reputation in accordance with Articles 11 et seq. of the Civil Code. 37. As to the poem, the court of cassation quashed both the first and second-instance judgments for lack of evidence and held that in further proceedings the plaintiff would have to prove that the applicant had referred to him in the poem. It also quashed the part of the appeal concerning compensation for non-pecuniary damage and costs since their award depended on an assessment of both the interferences complained of by the plaintiff. 38. On 15 April 1996 the Bratislava City Court reached a new decision on the remainder of the case. It stayed the proceedings as far as the poem was concerned on the ground that the plaintiff had withdrawn that part of the action. 39. The City Court further dismissed the claim in respect of non-pecuniary damage as it did not find it established that the applicant’s statement had considerably diminished the plaintiff’s dignity and position in society within the meaning of Article 13 § 2 of the Civil Code. In its view, the plaintiff had failed to show that the considerable publicity concerning his person had arisen as a result of the applicant’s statement and not, as the case might be, as a consequence of newspaper articles and the plaintiff’s book published prior to the applicant’s statement. 40. Having considered to what extent the parties had been successful in the proceedings, the City Court ordered the plaintiff to pay SKK 56,780 to the applicant in reimbursement of the relevant part of the latter’s costs. The applicant and the plaintiff were further ordered to pay respectively SKK 875 and 2,625 in reimbursement of the costs paid in advance by the court. 41. On 25 November 1998 the Supreme Court upheld the decision of the Bratislava City Court to discontinue the proceedings in respect of the poem and to dismiss the plaintiff’s claim for non-pecuniary damage. The Supreme Court held that neither party was entitled to have the costs reimbursed. It further ordered each party to pay half of the costs paid in advance by the State, namely SKK 1,750. Mr Slobodník filed an appeal on points of law. The proceedings are pending. | [
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9. The applicant is an Italian citizen, born in 1947 and living in Oristano (Italy). 10. The applicant and another person transferred land, property and a sum of money to a limited liability company, A., which the applicant had just formed and of which he owned – directly and indirectly – almost the entire share capital and was the representative. The company, whose object was organising farm holidays for tourists (agriturismo), applied to the tax authorities for a reduction in the applicable rate of certain taxes payable on the above-mentioned transfer of property, in accordance with a statute which it deemed applicable, and paid the sum it considered due. 11. The present case concerns three sets of proceedings. The first concerned in particular the payment of capital-gains tax (INVIM, imposta sull’incremento di valore immobiliare) and the two others the applicable rate of stamp duty, mortgage-registry tax and capital-transfer tax (imposta di registro, ipotecaria e voltura), and the application of a reduction in the rate. 12. In the first set of proceedings, the tax authorities served a supplementary tax assessment on the applicant on 31 August 1987 on the ground that the property transferred to the company had been incorrectly valued. They requested payment of an aggregate sum of 43,624,700 Italian lire comprising the tax due and penalties. On 14 January 1988 the applicant applied to the Oristano District Tax Commission for the supplementary tax assessment to be set aside.
In a letter of 7 February 1998 the District Tax Commission informed the applicant that a hearing had been listed for 21 March 1998. In the meantime, on 23 February 1998, the tax authorities informed the commission that they accepted the applicant’s comments and requested the case to be struck out of the list.
In a decision of 21 March 1998, the text of which was deposited on 4 April 1998, the District Tax Commission struck the case out of the list. 13. In the other two sets of proceedings, the tax authorities served two supplementary tax assessments on A. on 16 November 1987 on the ground that the company was ineligible for the reduced rate of tax to which it had referred. The tax authorities’ note stated that the company would be liable to an administrative penalty of 20% of the amounts requested if payment was not made within sixty days.
On 15 January 1988 the applicant, acting in his own right, although the matter concerned the company A., lodged two applications with the Oristano District Tax Commission for the above-mentioned supplementary tax assessments to be set aside.
In two letters of 20 March 1998 the District Tax Commission informed the applicant, in his capacity as representative of A., that a hearing had been listed for 9 May 1998 in the two other cases. In two orders of that date the District Tax Commission adjourned the cases sine die and gave the applicant thirty days in which to appoint a lawyer. Subsequently, a hearing was listed for 24 April 1999.
In two decisions of 22 May 1999, the text of which was deposited at the registry on 16 July 1999, the District Tax Commission dismissed A.’s applications on the ground that the transferred property, which included, among other things, a swimming pool and a tennis court, could not be regarded as the normal assets of an agricultural company.
On 27 October 2000 A. lodged an appeal with the Regional Tax Commission. | [
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12. In 1987 the applicant association published a book entitled Euskadi at war. There were four versions – Basque, English, Spanish and French – and the book was distributed in numerous countries, including France and Spain. According to the applicant association, this was a collective work containing contributions from a number of academics with specialist knowledge of the Basque Country and giving an account of the historical, cultural, linguistic and socio-political aspects of the Basque cause. It ended with a political article entitled “Euskadi at war, a promise of peace” by the Basque national liberation movement. 13. The book was published in the second quarter of 1987. On 29 April 1988 a ministerial order was issued by the French Ministry of the Interior under section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, banning the circulation, distribution and sale of the book in France in any of its four versions on the ground that “the circulation in France of this book, which promotes separatism and vindicates recourse to violence, is likely to constitute a threat to public order”. On 6 May 1988, pursuant to the aforementioned order, the département director of the airport and border police refused to allow over two thousand copies of the book to be brought into France. 14. On 1 June 1988 the applicant association lodged an administrative appeal against the ban. When this was implicitly rejected, it appealed to the Pau Administrative Court on 29 November 1988. 15. The Administrative Court held that it did not have jurisdiction and so referred the case to the Conseil d’Etat. By a decision of 9 January 1991 the President of the Judicial Division of the Conseil d’Etat remitted the case to the Pau Administrative Court. 16. In a judgment delivered on 1 June 1993 after a public hearing in the presence of both parties, the Pau Administrative Court rejected the applicant association’s appeal on the following grounds:
“It has been established that the book at issue entitled Euskadi at war was printed in Spain, that four of its five chapters were written by authors of Spanish nationality and that the documentation used for the preparation of the publication was mainly of Spanish origin. Therefore, and notwithstanding the fact that the book was published by the applicant association, which is based in Bayonne, the offending book must be regarded as of foreign origin within the meaning of the aforementioned provisions. Accordingly, the Minister of the Interior was legally entitled to prohibit the book’s circulation, distribution and sale.
In taking the view that the book at issue could pose a threat to public order since it argued, particularly in Chapter 4, that the violence of the Spanish State justified the ETA terrorist organisation’s ‘proportionate counter-offensive’, the Minister of the Interior did not make any obvious error in assessing the evidence.
Under Article 10 of the European Convention on Human Rights, ‘[e]veryone has the right to freedom ...’; it is the task of the administrative courts to assess whether any restriction of the freedom of expression guaranteed by the above-mentioned Article 10 is proportionate to the legitimate aim being pursued and to assess whether the ban on a publication of foreign origin is in keeping with that aim. In the instant case the evidence does not show that the general prohibition of the book at issue was disproportionate to the public-order objectives being pursued ...” 17. The applicant association lodged an appeal against this judgment with the Conseil d’Etat on 20 August 1993. In its further observations, it asked the Conseil d’Etat to find that section 14 of the Law of 29 July 1881, as amended, was incompatible with Articles 10 and 14 of the Convention taken together. 18. On 9 July 1997 the Conseil d’Etat ruled that section 14 of the Law of 1881, as amended, was not incompatible with Articles 10 and 14 of the Convention on the following grounds:
“Under section 14 of the Law of 29 July 1881, as amended by the decree of 6 May 1939, ‘the circulation, distribution or sale in France of newspapers or texts written in a foreign language, whether periodicals or not, may be prohibited by a decision of the Minister of the Interior. Newspapers and texts of foreign origin written in French and printed abroad or in France may also be prohibited’. In the absence of any statutory provision establishing the conditions circumscribing the legality of decisions taken on the basis of this provision, any restrictions of the Minister’s power derive from the need to reconcile the general interests for which he is responsible with the respect due to public freedoms, particularly freedom of the press. When an appeal against such a prohibition order is lodged with an administrative court, it is duty-bound to assess whether the banned publication poses such a threat to these general interests that it warrants an infringement of public freedoms. Contrary to the applicant association’s assertions, the power thus exercised by the Minister of the Interior, under the supervision of the courts, is not incompatible with the combined provisions of Articles 10 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms …” 19. On the other hand, the Conseil d’Etat quashed the judgment and the ministerial order of 29 April 1988 on the following grounds:
“By the impugned order, the Minister of the Interior prohibited the circulation, distribution and sale of the collective work Euskadi at war, which must be viewed as a written text of foreign origin within the meaning of the aforementioned section 14 of the Law of 29 July 1881. Having regard to the interests that the Minister is responsible for protecting, in particular public safety and public order, the Court finds that the content of this publication does not provide sufficient legal justification for the serious infringement of press freedom embodied in the impugned decision.
It follows from the above considerations that the Association Ekin has good grounds for maintaining that the Pau Administrative Court was wrong to reject, by means of the impugned judgment, the association’s application to set aside the decision of 29 April 1988, taken on the basis of the aforementioned section 14 of the Law of 29 July 1881, by which the Minister of the Interior prohibited the circulation, distribution, and sale in France of the book entitled Euskadi at war, published by the association ...” 20. In a registered letter with recorded delivery received by the Ministry of the Interior on 2 December 1997, the applicant association presented the Minister with a claim for compensation for the pecuniary and non-pecuniary damage caused by the application of the unlawful order of 29 April 1988 for more than nine years. According to the applicant association, the implementation of this order amounted to tortious conduct on the part of the authority. It estimated the overall losses it had sustained at 831,000 French francs (FRF), including FRF 481,000 resulting from the financial loss deriving directly from the prohibition of sales of the book throughout France. To date it has not had any reply from the Minister of the Interior. Under the rules of French administrative proceedings, this silence counts as a refusal of the applicant association’s claim. | [
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7. The applicants are former members of the Turkish National Assembly and of the Democracy Party (DEP), which was dissolved by the Constitutional Court on 16 June 1994. 8. The public prosecutor at the Ankara National Security Court accused them of having infringed Article 125 of the Turkish Criminal Code and made repeated applications – on 27 November 1991, 16 December 1992, 25 May 1993 and 2 July 1993 – for their parliamentary immunity to be lifted.
On 2 March 1994 the National Assembly, having deliberated on the basis of the application of 16 December 1992, decided to lift the applicants’ parliamentary immunity under Article 83 of the Turkish Constitution. 9. On 2 March 1994 Mr Dicle and Mr Doğan were taken into police custody on the orders of the public prosecutor at the Ankara National Security Court. On 4 March 1994 Mrs Zana suffered the same fate.
A few days later the public prosecutor at the Ankara National Security Court ordered the detention of those three applicants in police custody to be extended until 16 March 1994. 10. While in custody, the applicants made no statements to the police. 11. On 16 March 1994 they were brought before a judge of the Ankara National Security Court and placed in detention pending trial. 12. On 16 June 1994 the Constitutional Court dissolved the DEP and ordered the party’s MPs to vacate their parliamentary seats. 13. Mr Sadak was taken into police custody on 1 July 1994 and placed in detention pending trial on 12 July 1994. 14. In the meantime, on 21 June 1994 the public prosecutor at the Ankara National Security Court had filed a bill of indictment in which he accused the applicants of treason against the integrity of the State – a capital offence under Article 125 of the Criminal Code. The accusation was based firstly on the activities that the applicants were alleged to have engaged in on behalf of the Workers’ Party of Kurdistan (PKK) (harbouring militants and providing one of them with medical care, negotiating with local leaders or proffering threats against them to make them help the PKK establish itself in their regions) and secondly on the content of oral and written statements by the applicants expressing support for PKK activities. On the evening of 21 June 1994 the offences of which the applicants were accused were announced in the news bulletin of the publicly owned TRT 1 television channel. 15. On 8 December 1994, the date of the final hearing before the Ankara National Security Court, the applicants learned that the prosecution was proposing to alter the charge to belonging to an armed gang within the meaning of Article 168 of the Criminal Code. The National Security Court invited the applicants to submit their observations on this new characterisation of the offences. The applicants’ lawyers were not present at the hearing because they had decided to protest against the National Security Court’s refusal to adopt a procedural measure they had requested of it. 16. In a judgment of 8 December 1994 the Ankara National Security Court sentenced the four applicants to fifteen years’ imprisonment for belonging to an armed gang within the meaning of Article 168, paragraph 2, of the Turkish Criminal Code. It rejected the charge under Article 125 of the Criminal Code, which provided for the death penalty in the event of treason against the integrity of the State. 17. It found it established that the applicants had engaged in intensive “separatist” activity under instructions from leaders of the PKK, a separatist armed gang seeking to found a Kurdish State in south-eastern and eastern Turkey. In that context it noted the following points: in the run-up to the 1991 parliamentary election the applicants had given speeches under the PKK banner at meetings where slogans had been shouted such as “Long Live the PKK” and “Strike guerrillas strike, found Kurdistan”; the applicants had provoked unrest among the population and created an atmosphere that had undermined the authority of the State; they had worn PKK colours when they were sworn in as members of the National Assembly in November 1991; at the congresses of their political parties, the HADEP and the DEP, the PKK flag had been hoisted instead of the Turkish flag and the Turkish Republic had been described as an occupier and enemy; conversations recorded between three of the four applicants and heads of clans (aşiret reisi) in south-eastern and eastern Anatolia had revealed that the former had used threats to try to persuade the latter to join or support the PKK; one of the applicants had harboured a PKK militant in his official residence, had helped him to obtain medical treatment and had fraudulently induced the State to pay his hospital bills; another had harboured in his home PKK militants preparing to join those who were already involved in field operations in the region; and all the applicants had made statements on behalf of the PKK in foreign countries and spread lies about the Turkish State intended to uphold the PKK’s views. The National Security Court also rejected an application by a co-defendant for a public hearing of a witness for the prosecution owing to the danger that the witness might suffer reprisals at the hands of the PKK. 18. When classifying the facts found in the instant case as offences under Article 168 rather than Article 125 of the Criminal Code, the National Security Court referred to the case-law according to which Article 125 defined a crime in terms of the ends pursued and Article 168 in terms of the means deployed. Treason against the integrity of the State within the meaning of Article 125 was a crime which could only be made out if it was established that acts had been committed which were likely to pose a real threat to the State’s survival. Acts of violence and terrorism could fall within the scope of Article 125 if they were serious enough to pose such a threat. Article 168, paragraph 2, on the other hand, made it an offence merely to belong to an armed organisation which was already considered to be acting for a purpose contrary to Article 125. The material element of the offence lay in the fact that the persons in question belonged to an armed organisation of the aforementioned type complete with a system of disciplinary rules and a hierarchical structure. In that context, it was not necessary for the defendants themselves to have committed acts posing a threat to the State’s survival. However, Article 168 did require a specific mental element, namely that the offenders were aware that they belonged to the illegal organisation. 19. The applicants and the public prosecutor at the Ankara National Security Court appealed on points of law against the judgment of 8 December 1994. 20. The public prosecutor argued that the offences were indeed punishable under Article 125 of the Turkish Criminal Code. 21. The applicants submitted for their part that the criminal proceedings had been brought for a political purpose, namely to suppress the opinions of members of Parliament defending the Kurdish cause. They contended that the National Security Court by which they had been convicted was a special political court which could not be considered an independent and impartial tribunal.
They also asserted that they had been denied a fair trial because, among other things, their equality of arms with the prosecution had not been respected. They complained in particular that they had been denied the assistance of a lawyer during their fifteen days in police custody; that their representatives had not had access to the documents on the case file during the preliminary investigation; that pressure had been brought to bear on their representatives by the government as their defence had been the subject of reports by the Turkish secret services and their access to the courtroom had sometimes been impeded; that the applications filed by their representatives had never been allowed by the National Security Court; that they had not been permitted to examine before that court the witnesses interviewed by the prosecution during the preliminary investigation or the experts appointed by the prosecution; that their applications for the examination of the sound and video recordings made by the prosecution had been rejected by the National Security Court for no valid reason; that the evidence on which their conviction had been based had not been read out at the hearing; and that their applications for further witnesses to be heard and second opinions to be sought had been dismissed by the National Security Court. The applicants also argued that the difficulties encountered by certain lawyers and foreign delegations when attempting to enter the courtroom had infringed the requirement of a public hearing. Lastly, they criticised the National Security Court for laying the activities of all pro-Kurdish organisations, whether legal or illegal, at their door and taking account of findings of a political nature having no probative value with regard to the accusations levelled against them. 22. In a judgment of 26 October 1995 the Court of Cassation upheld the decision at first instance as to the applicants’ guilt and the sentences imposed on them. 23. On the other hand it held that some of the reasons given by the Ankara National Security Court in its judgment of 8 December 1994 could not be permitted to stand. When the telephone conversations between the applicants and the head of the PKK had been recorded the statutory provisions intended to safeguard the freedom of communication had been infringed; the fact that the applicants’ diaries contained the names and addresses of PKK leaders did not prove the accusations; and the fact that some of the defendants (including two of the four applicants) had taken part in a press conference held by the head of the PKK could not in itself be regarded as an offence. 24. In assessing each of the applicants’ guilt, the Court of Cassation took account of various public communiqués that they had issued. In those documents they had described the parliamentary oath as racist on the ground that it omitted any reference to the Kurdish identity, and asserted that the Turkish government was waging war on the Kurdish population, that Kurdish uprisings had been suppressed using methods of genocide and that the national rights of the Kurdish people were denied by the Turkish State. 25. Regarding Leyla Zana, the Court of Cassation noted the following: she had undergone political training in a PKK camp in Bekaa (Syria); she had had four conversations with the head of a clan in south-eastern Turkey, advising him not to prevent the PKK from attacking State targets and encouraging him to telephone the head of the PKK, addressing him as “Mr Secretary General”; she had twice visited the head of another clan to encourage him to join the PKK to help found Kurdistan; she had handed over to the PKK one of its opponents who had been abducted by PKK militants; she had described slogans such as “Long Live Apo [Apo is a diminutive used to refer to Abdullah Öcalan, the head of the PKK]” or “Long Live Kurdistan”, shouted at a demonstration in Cizre, as “slogans of the Kurdish people”; she had declared on German television that she felt like a foreigner in Turkey and that the Turkish parliament, of which she was a member, was constantly taking decisions whose aim was to wipe out the Kurdish people; and she had taken part in a demonstration and a press conference held by the PKK in Brussels and had addressed the participants from a rostrum draped with the PKK flag. 26. Regarding Orhan Doğan, the Court of Cassation noted the following: he had knowingly harboured a PKK militant in his home owing to his organic links with the PKK; he had helped the militant in question to obtain medical treatment and had fraudulently had the costs reimbursed by the National Assembly; he had harboured four other PKK militants who were about to return to the organisation’s camps; he had made statements to foreign embassies to the effect that the villagers leaving Şirnak in August 1992 were actually fleeing the State forces; and he had stated at demonstrations that the Turkish State was repressing the Kurdish people in various ways, while describing the PKK as an army. 27. Regarding Hatip Dicle, the Court of Cassation noted the following: he had put pressure on the head of a clan in south-eastern Turkey to join the PKK, whose aims he had said were to found Kurdistan and destroy the enemy; he had asked the persons attending a public meeting in Diyarbakır to observe a minute’s silence in honour of the PKK’s dead, asserting that the Turkish army had come to the region to repress the Kurdish people; he had stated in an interview given to a Belgian daily newspaper that the Kurds’ ideal would be to found a Kurdish State and that they had been fighting for their freedom since the Treaty of Lausanne (1923); he had described the PKK as a movement with popular roots; he had stated that all those who were against the Kurds should be expelled from their territory even if that would cost them their lives; he had said that the Kurds were engaged in an armed resistance to ensure their survival and that the alleged fight against terrorism amounted to an attempt to crush the Kurds’ claims to nationhood; he had attempted to justify the terrorist attack on the cadets of the military college for infantry conscripts, in which four people were killed and twenty injured, by saying that everyone in uniform was a potential target by virtue of the international conventions on the laws of war; and he had stated at a meeting of his party that the State could not solve the Kurdish problem by banning the PKK. 28. Lastly, regarding Selim Sadak, the Court of Cassation found the following facts established: he had put pressure on the head of a clan in south-eastern Turkey to accept the authority of the PKK; he had asked the inhabitants of the village of Şenoba (in south-east Turkey) to relinquish their positions as village guards, explaining that they were in Kurdistan and that the Kurdish war of national liberation was soon to be launched against the fascist Turkish State; he had described police officers escorting persons in police custody on suspicion of having been active within the PKK as torturers, while stating that he would prevent the repression of the Kurds by the Turks and that the Kurds would demand some form of retribution; at a meeting held by the PKK in Neuchâtel (Switzerland), he had described the PKK as a guerrilla army fighting for the independence of Kurdistan and the Kurdish people; and in a communiqué sent to foreign embassies in Turkey he had declared that the villagers leaving Şirnak in August 1992 had in fact been fleeing the State forces. | [
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7. The circumstances in which the applicant’s brother disappeared are disputed. In accordance with former Article 28 § 1 (a) of the Convention, the Commission conducted an investigation with the assistance of the parties and obtained documentary evidence and oral depositions.
Delegates from the Commission heard witnesses on 17 September 1999 in Strasbourg and from 20 to 22 September 1999 in Ankara. They also visited the offices of the anti-terrorist branch at Ankara Security Directorate on 20 September 1999. Evidence was taken from the following witnesses: the applicant, eleven people who had been in custody at the material time at Ankara Security Directorate and who alleged that they had met Kenan Bilgin there and had witnessed the ill-treatment to which he had been subjected, two public prosecutors who had investigated the case, a deputy director at Ankara Security Directorate and a police officer from the anti-terrorist branch at Ankara Security Directorate. 8. At 10 a.m. on 12 September 1994 the applicant’s brother, Kenan Bilgin, was arrested at a taxi rank in Dikmen (Ankara) by plainclothes police officers. His family was not informed. 9. The applicant received three anonymous telephone calls from someone who confirmed that his brother was being held at Gölbaşı (Ankara) with three other prisoners. He was told that his brother’s condition was serious and that he was being administered serum. During the last conversation, which took place on 15 November 1994, the caller said that the applicant’s brother had been moved elsewhere. 10. On 3 October 1994 Kenan Bilgin’s lawyer, Ms Hatipoğlu, contacted the Human Rights Commission of the Turkish National Assembly. She and two other lawyers also made a written statement to the press. 11. By an undated letter the applicant requested information from the Principal Public Prosecutor at the Ankara National Security Court about his brother’s health, indicating that his brother had been arrested on 11 September 1994. On 4 October 1994 a similar request was made to the Principal Public Prosecutor by Ms Hatipoğlu, who put the date of the arrest at 13 September 1994. 12. In his letters in reply dated 10 October 1994 the Principal Public Prosecutor said that no one by the name of Kenan Bilgin had been interviewed and that no warrant had been issued for his arrest. 13. On 10 October 1994 the applicant made a written statement to the press. The same day, his representatives contacted the Ankara branch of the Human Rights Association about his brother’s case. On 11 October 1994 the association issued an appeal to the provincial governor of Ankara for Kenan Bilgin to be brought before the public prosecutor, while the applicant managed to obtain written statements signed by ten prisoners who had also been held at Ankara Security Directorate between 12 and 27 September 1994, in which they confirmed that Kenan Bilgin had been held there between those dates and subjected to ill-treatment. 14. On 12 October 1994 Ms Hatipoğlu wrote to the Principal Public Prosecutor at the Ankara National Security Court to enquire what had become of Kenan Bilgin. She explained that although several witnesses affirmed that they had seen him in police custody, the police denied that he had been detained. 15. On 9 November 1994 the applicant lodged a complaint with the Ankara public prosecutor against the officers who had been on duty while his brother was in custody, namely police officers from the anti-terrorist branch at the Ankara Security Directorate. Inter alia, he gave the names of witnesses who had testified that Kenan Bilgin had been held in the same building as them. 16. Furthermore, at a hearing on 21 November 1994 in criminal proceedings before the Ankara National Security Court, one of the defendants, whose name was Mr Yılmaz, testified to having met Kenan Bilgin at the Ankara Security Directorate. Another defendant, Mr Çoban, said in evidence before the court that police officers had threatened him, telling him that unless he made a confession he would meet the same fate as Kenan Bilgin. 17. When making a bail application to the Ankara National Security Court on 1 February 1995, a lawyer, Mr Demir, said that while he and Kenan Bilgin were in custody together they had spoken and Kenan Bilgin had told him that he had been held for twenty-two days and that the police intended to arrange for his disappearance. Kenan Bilgin had also asked Mr Demir to inform his family. 18. The Government’s position was that while it was true that Kenan Bilgin was a member of the Revolutionary Communist Party of Turkey (TDKP), he was not wanted by the police and had not been arrested by the security forces. As the Ankara public prosecutor had stated in a letter of 23 December 1994 to the Ministry of Justice, the custody records showed that Kenan Bilgin had not been arrested or detained. 19. In a statement made on 3 or 4 October 1994, a lawyer, Murat Demir, said that he had spoken with Kenan Bilgin, who had informed him that he had been in custody for twenty-two days and that his name had not been entered on the custody record.
Ercan Aktaş stated that prisoners in custody in the offices of the anti-terrorist branch of the Ankara Security Directorate from 13 to 27 August 1994 had been systematically subjected to ill-treatment and that he had seen Kenan Bilgin during that period through an aperture in the cell-door window.
Talat Abay stated that he had been held at the Ankara Security Directorate from 8 to 23 September 1994, during which period he and his fellow inmates had been constantly subjected to ill-treatment. On 18 or 19 September he had met Kenan Bilgin, whom he already knew, in the toilets.
Bülent Kat stated that he had been held at the Ankara Security Directorate from 8 to 23 September 1994. On 18 or 19 September he had managed to make out through an aperture in the cell-door window a group of police officers dragging a prisoner along the ground to the bathroom. Approximately two hours later he had seen a person carrying a doctor’s bag leave the bathroom. He had subsequently learnt that the prisoner’s name was Kenan Bilgin.
Cavit Nacitarhan stated that he had been held at the Ankara Security Directorate from 12 September to 6 October 1994 and had seen Kenan Bilgin on several occasions being led away, unclothed, by police officers.
Müjdat Yılmaz stated that he had been held at the Ankara Security Directorate from 12 to 26 September 1994. He had heard the cries of prisoners being subjected to ill-treatment. Through the cell-door window he had seen a prisoner being dragged along the ground by police officers and had later heard his cries of distress and the police officers’ questions such as: “What is your name? If you do not tell us your name, we will kill you.” Later, he had seen the same prisoner being taken to the toilet and had heard him call out: “My name is Kenan Bilgin! I am registered at the Tunceli Records Office. The police want to kill me. Make sure that public opinion is informed about this!”
Salman Mazı stated that he had been held from 12 to 26 September 1994, during which period police officers had subjected prisoners to ill-treatment. One day, he had seen a prisoner in the toilets. The man was in poor health. He introduced himself as Kenan Bilgin and told him that he had been held since 12 September 1994, that his name had not been entered on the custody record and that he feared he would be executed.
Emine Yılmaz stated that she had been held from 12 to 25 September 1994. She recalled hearing someone call out: “My name is Kenan Bilgin! I was taken into custody on 12 September, but my name is not on the custody record.”
Ayşe Nur İkiz Akdemir stated that while being held in custody between 13 and 25 September 1994 she had heard someone call out: “My name is Kenan Bilgin! I was taken into custody on 12 September and they want to arrange for me to disappear.” According to her, the prisoner she had seen through the cell-door window was Kenan Bilgin. He had difficulty walking and his body bore marks of torture.
Özer Akdemir stated that he had been held from 12 to 25 September 1994 in the offices of the anti-terrorist branch at the Ankara Security Directorate. During that period all the prisoners had been systematically subjected to torture. He had been in cell no. 6. The prisoner in cell no. 8 was subjected to severe ill-treatment every day. He was taken away naked for torture sessions and dragged back to his cell afterwards. He saw him through an aperture in the cell-door window. The four people who took the prisoner away for interrogation were the same four people who had interrogated him, so he would have no difficulty in recognising them. One day, the prisoner from cell no. 8 cried out from the toilets where he had been taken: “My name is Kenan Bilgin. They want to arrange for me to disappear! My name is not on the custody record.” He had been brought back to cell no. 8 later.
(b) Complaints lodged by the applicant with the public prosecutor at the Ankara National Security Court on 4 and 12 October 1994 and petition by the Ankara Human Rights Association to the provincial governor’s office and the anti-terrorist branch of the Ankara Security Directorate on 11 October 1994 20. The applicant alleged that his brother had been arrested on 11 September 1994 and that eyewitnesses had seen him in custody. He requested information about his brother’s fate. His brother’s lawyer made a similar request alleging that Kenan Bilgin had been taken into custody by police officers from the anti-terrorist branch of the Ankara Security Directorate on 13 September 1994.
In its petition the Ankara Human Rights Association gave the names of the eyewitnesses who had seen Kenan Bilgin at the Ankara Security Directorate.
(c) Documents relating to the investigation by the Ankara public prosecutor 21. In a letter of 21 November 1994 referring to the complaints lodged by the applicant’s representatives, the Ankara public prosecutor, Selahattin Kemaloğlu, instructed the public prosecutor’s office at Pendik (Istanbul) to question the applicant about the matters raised. He also instructed the Ankara Security Directorate to start an investigation into the applicant’s allegations. 22. On 24 November 1994 the Ministry of the Interior informed the Ministry of Foreign Affairs that the Security Directorate had advised that Kenan Bilgin had not been taken into custody, his name had not been entered on the custody record and he was not wanted by the police. 23. On 9 December 1994 the deputy director at the Security Directorate, Ülkü Met, sent a letter to the Ankara public prosecutor’s office, the relevant parts of which read:
“... Between 12 September and 21 November 1994 the anti-terrorist branch carried out 249 arrests. Of those arrested, 115 were brought before the principal public prosecutor at the National Security Court and the remaining 134 released. In addition on 16 and 17 October 1994 the Committee for the Prevention of Torture carried out two ad hoc visits to the Security Directorate. They did not report any case of unlawful detention there ... In the interests of an effective investigation, persons remanded in custody, whether members of the same or of different organisations, never see each other unless a confrontation becomes necessary. Even for the purposes of answering a call of nature, remand prisoners are taken to the toilets individually and are accompanied by a warder. Furthermore, members of the same organisation are put in cells that are far apart from each other ... The sole aim of the persons whose names appear in the complaint and who claim to have seen the person known as Kenan Bilgin is to mislead the judicial authorities, to discredit the police and to obstruct the operations being carried out against illegal organisations ... The Turkish police are proud of their 149-year history. Certain people seek to destroy the democratic secular Republic; they commit crimes, arguing that such unlawful acts are legitimate, and make allegations such as the present one to discredit the police and the State.” 24. On 23 December 1994 the Ankara public prosecutor, Nazmi Şarvan, informed the Ministry of Justice that, while it was true that an investigation had been started into the affairs of members of the TDKP, Kenan Bilgin’s name did not appear on the list of its members. 25. On 13 January 1995 the Ankara Principal Public Prosecutor, Özden Tönük, sent a letter to the Ankara public prosecutor’s office, which was in charge of the investigation. The relevant parts of the letter read:
“The Committee for the Prevention of Torture (CPT) interviewed prisoners in Ankara Prison who had been transferred from the anti-terrorist branch at the Security Directorate and who said that they had seen Kenan Bilgin in September 1994 in the building where remand prisoners are detained. When we spoke to them, they said that they had seen Kenan Bilgin between 13 and 25 September 1994 through an aperture in their cell-door windows when he was being taken to the toilets, to the torture room or to be photographed. The investigation reveals that the section of the premises where remand prisoners are held contains individual cells with windows in the cell door that enable police officers to communicate with the prisoners or to pass them their food and which can only be opened from the outside by the warders. The cells are aired by a ventilator attached to the ceiling and it is impossible for prisoners to see what is happening outside. Prisoners are interrogated on the floor above in an interview room that complies with European standards. The cells are not numbered but a small sheet of paper bearing the prisoner’s name is attached to the cell door. Persons arrested are photographed and fingerprinted by the technical services at the Security Directorate. Between 1 January and 31 December 1994, 771 people were taken into custody at the anti-terrorist branch of the Security Directorate; of these, 160 were released by the police, 574 brought before a judge and 37 transferred to other branches at the Security Directorate. Thus, with the exception of Kenan Bilgin, there had been no complaints of any disappearances of prisoners being held in custody. According to the inquiry conducted by the CPT on 16 and 17 October 1994, in an unannounced visit to the Security Directorate, there are no reports of unlawful detention on the premises. Considering that the purported witnesses did not know either Kenan Bilgin or his family and that the Security Directorate state that his name was not on the custody record, it can safely be deduced that the allegations of the prisoners regarding the disappearance of the person known as Kenan Bilgin while in custody at the Security Directorate were aimed at misleading public opinion and harming the police as they attempted to mount operations against the illegal organisations.” 26. On 17 March 1995 the public prosecutor Selahattin Kemaloğlu took witness statements from Cavit Nacitarhan, Özer Akdemir, Salman Mazı, Murat Demir and Müjdat Yılmaz, who were all accused of being members of an illegal extreme left-wing organisation, the TDKP. The following depositions were taken.
(a) Cavit Nacitarhan: “I was arrested on 12 September 1994 and remained in custody for twenty-four days. I did not know Kenan Bilgin. However, after my second day in custody I saw him every day. He would cry out: ‘My name is Kenan Bilgin, I have been in custody since 12 September and my name has not been entered on the records; if anyone is released, please inform the press, lawyers and human rights [associations] about my case.’ I do not know why he was arrested but I saw him over a period of twenty-one days. He was dressed only in his underpants. He did not have the strength to stand unaided and had to be supported by two people. After my release, I saw his photograph in newspaper articles about his disappearance and that is how I recognised him.”
(b) Özer Akdemir: “I was taken into custody on 26 September 1994. I did not know Kenan Bilgin, but I saw him three times at the Security Directorate. He was dressed only in his underpants. I was in cell no. 6 and he was in cell no. 8. When he was taken to the toilets, he would cry out: ‘My name is Kenan Bilgin. They want to arrange for me to disappear. My name has not been entered on the custody records.’ Later, he was taken from his cell. That is all I witnessed. [I] certify that the signature on the written statement made on 16 or 17 September 1994 is mine.”
(c) Salman Mazı: “I certify that I signed the written statement dated 11 October 1994. When I was in custody at the offices of the anti-terrorist branch at the Security Directorate between 12 and 25 September 1994, I saw Kenan Bilgin on several occasions. At one stage, I noticed that he was being dragged by his arm to the toilets in his underpants. He was often taken for interrogation and was severely tortured. He was in cell no. 8. On the eighth day I saw him in the toilets. He said to me in a weak voice: ‘My name is Kenan Bilgin, I was arrested on 12 September at Dikmen. My name has still not been entered on the records. They are probably going to arrange for me to disappear. If you get out of here, contact the public prosecutor’s office and inform the press.’ The warder then appeared and reprimanded him for having spoken to me, before taking him away. Later I recognised his photograph in the newspapers.”
(d) Murat Demir: “I was taken into custody on 10 September 1994 and was put in cell no. 11. Kenan Bilgin was in no. 13 or 14. I did not know him. We were severely tortured. The remand prisoner in no. 13 stopped me and, as I was known as ‘the lawyer’, asked me if I really was a lawyer. He gave me his name and continued: ‘I have been here for twenty-two days. My name has not been entered on the records. They probably want to arrange for me to disappear. I worked at a printer’s. If you are brought before a judge, tell the lawyers that I am here.’ He too was tortured. I heard the sounds of torture and groans. I certify that the signature on the written statement is mine and confirm the content. I saw his photograph in the newspapers later. However, he seemed far more exhausted and tired [in custody].”
(e) Müjdat Yılmaz: “I confirm the content of the written statement of 11 October 1994. I do not know Kenan Bilgin, but I saw him on two or three occasions. I was in cell no. 2. I saw him being taken to the toilets by his torturers and heard him call out: ‘My name is Kenan Bilgin. They want to arrange for me to disappear.’ I saw him like that three times. I am able to recognise these men [the police officers] because they also undressed my wife before my eyes. One of them was smaller than me, approximately 1.80 m tall with a receding hairline and was called ‘boss’ by the others. He was one of the men who took Kenan Bilgin away. I would recognise him without any hesitation. I made a statement to the public prosecutor who came to the prison.” 27. Referring to the statements of these witnesses, the public prosecutor Selahattin Kemaloğlu enquired of the Ankara Principal Public Prosecutor whether an investigation had been started following the allegations that Kenan Bilgin had been tortured and had disappeared after being taken into custody in the offices of the anti-terrorist branch of the Ankara Security Directorate. 28. On the instructions of the public prosecutor Selahattin Kemaloğlu, two police officers from the Security Directorate at Üsküdar (Istanbul) took a statement from the applicant on 5 April 1994. The applicant stated that a cousin had informed him that his brother had been arrested in Ankara on 12 September 1994. He and his brothers had gone to the offices of the Ankara Human Rights Association, had consulted lawyers and had learnt that certain prisoners had claimed that Kenan Bilgin had been in custody in the same building as them but had not been brought before a judge for an order to be made for his detention pending trial. 29. On 16 September 1995 the applicant had given a statement at Kısıklı (Istanbul) police station. He said that he had lodged a complaint with the Ankara public prosecutor’s office and had given the names of witnesses who said that they had seen Kenan Bilgin in the offices of the anti-terrorist branch at the Security Directorate. He had repeated his allegations and asked for news of his brother. 30. By a letter of 27 December 1995 in which he referred to the applicant’s complaint and statement, the public prosecutor Selahattin Kemaloğlu requested the Pertek (Tunceli) public prosecutor’s office for the locality where the register of births of the Bilgin family was held to conduct an investigation into the alleged disappearance of Kenan Bilgin, and in so doing to have regard to the possibility that he may have taken part in PKK (Workers’ Party of Kurdistan) activities. He added that the Security Directorate considered the allegations of the applicant and his lawyers regarding the alleged disappearance at the hands of the police to be an attempt to damage the police’s reputation. 31. By letters of 9 October and 27 November 1996 the Pertek public prosecutor instructed the district gendarmerie to make enquiries of the people with whom Kenan Bilgin was in close contact in order to establish whether he had joined the ranks of the PKK. 32. On 3 December 1996 the gendarmes took a statement from someone who lived in the village in which Kenan Bilgin was born. He said that the Bilgin family had left the village forty years earlier and that he did not know whether Kenan Bilgin was a member of the PKK. 33. On 9 July 1997 the public prosecutor Selahattin Kemaloğlu instructed the Ankara Security Directorate to carry out a search for Kenan Bilgin. The relevant part of his letter reads as follows.
“An investigation has been carried out into allegations by İrfan Bilgin that his brother, who was arrested on 12 September 1994 at Dikimevi (Ankara), was taken into custody in the offices of the anti-terrorist branch of the Ankara Security Directorate, that he was seen by other prisoners but has given no signs of life since. Other enquiries have been made into the possibility that Kenan Bilgin belongs to the PKK organisation or that attempts have been made to damage the police’s reputation, and enquiries have been made of the authorities of the village where he was born and in the locality where he resides. However, it is not been possible to reach any conclusion in this case.
“I wish to request your department to start an investigation into every eventuality, namely whether Kenan Bilgin disappeared while in police custody, or whether he has joined the ranks of the PKK or has been hiding in secret in Turkey and has in fact been used by people close to him with a view to damaging the reputation of the police. I should be grateful if you would then inform me of the result of your findings.”
(d) The findings of the delegates of the Commission on their visit to the Ankara Security Directorate on 20 September 1999 34. The delegation visited the premises in which prisoners were held at the offices of the anti-terrorist branch of the Ankara Security Directorate. It was informed that alterations had been made to the layout of the cells on the ground floor at the end of 1994. There were now thirteen cells (three cells having been converted into a single cell) running along one side of a long, narrow corridor. The delegation found an empty room at the end of that corridor, with a small corridor leading off to the adjoining toilets. The prisoners’ names and numbers were written on cards inserted into slots above the doors with the reverse side facing outwards. The police officer in charge of the premises said: “Prisoners have no possibility of seeing or speaking to each other and their movements in the premises are made in accordance with official regulations. Dishes are passed directly through the door with the prisoners being required to stand back. The police officer in charge of the premises where prisoners are held has a list of the people in custody and of the cell numbers, and prisoners do not change cells while in custody.” The delegation carried out two experiments on the premises.
(i) Two delegates were shut in two adjoining cells. One said his name out loud. He was heard by the other and by the group in the corridor.
(ii) A delegate was shut in a cell and a lawyer from the delegation in a cell two doors away. In order to establish what they could hear, they were asked to speak in their cells. The lawyer heard the delegate’s voice but said that the noise from the ventilation system prevented him from making out what he said.
The delegation then visited the interrogation room on the first floor.
(e) The custody records 35. The name Kenan Bilgin does not appear on the custody records at the Ankara Security Directorate. The records show that several people were arrested and taken into custody at the Directorate between 8 and 29 September 1994, including Bülent Kat and Talat Abay on 8 September, Salman Mazı, Müjdat Yılmaz and Emine Öğün on 12 September, Sahir Çoban, Ayse Nur İkiz Akdemir, Özer Akdemir and Ercan Aktaş on 13 September, Murat Demir on 27 September, and Cavit Nacitarhan on 25 September. 36. On 17 September in Strasbourg and between 20 and 22 September 1999 in Ankara, three Commission delegates took the following depositions.
(a) İrfan Bilgin 37. İrfan Bilgin is the applicant and Kenan Bilgin’s brother. He said that his brother had been arrested on 12 September 1994 at Dikmen (Ankara) and that he had been informed of the arrest approximately twenty days later.
His brother had been arrested as part of an operation that had been carried out by the security forces in different localities on the same day against members of the revolutionary movement. 38. Kenan Bilgin had previously been in custody in 1977 and had spent three years in prison. He had been a member of the revolutionary movement since 1976 and had been on the police’s wanted list. In 1993 he had been arrested at Gaziantep (a town in south-east Turkey) in possession of false identity papers. He had been held for twenty-five days and severely tortured. He had told his family that the police had made threats on releasing him, warning him: “This time, you are safe, you have escaped with your life, but the next time we catch you, you will not leave here alive.” 39. The applicant said that following his brother’s disappearance he had received two or three telephone calls from one Coşkun, who had informed him that his brother was being held at Gölbaşı (Ankara) and subjected to torture. He was in very poor shape and on a drip. 40. The applicant said that he had contacted people who claimed to have been held on the same premises as Kenan Bilgin. After speaking to them, he had lodged applications with the Ministry of the Interior, the National Security Court, the Secretary of State for Human Rights and the Security Directorate. However, despite the evidence of several prisoners, those authorities had denied that his brother had ever been in custody. 41. The applicant said that he had lodged a complaint with the public prosecutor’s office. However, he was unaware whether an investigation had been started. He had been required to attend the offices of the anti-terrorist branch at the Istanbul Security Directorate either once or twice and had repeated his allegations.
(b) Murat Demir 42. The witness is a lawyer who currently lives in Germany, where he has been granted political asylum. He said that he was arrested by police officers from the Ankara Security Directorate in his office on 27 September 1994 and held by the anti-terrorist branch for thirteen days. He was detained in a small cell and had changed cells on three or four occasions. 43. He gave the following description of the premises where prisoners were held. The cells were not numbered and ran the length of one side of a corridor. On the other side of the corridor was a room used for torture, toilets, a bathroom that was also used for torture, the warders’ office and two other cells that were larger and better furnished than the others. The doors were equipped with small windows, approximately 20 to 30 cm across, through which the prisoners could be observed. Both the windows and the cell doors were opened from time to time by the warders. By pressing his head firmly against the aperture in the cell-door window, he was able to see what was going on outside and had thus seen the other prisoners when they were taken away to be tortured. 44. When first taken into custody he had been put in a cell between the toilets and the bathroom that doubled up as a torture chamber. The prisoner in the cell next door was a university lecturer. The witness said that he had heard groans coming from the cell next to the lecturer’s. He explained that he was systematically tortured and that one evening, at the end of the torture session and after he had been taken back to his cell, the prisoner, who was groaning and was in very poor shape had said to him: “I have been detained for twenty-two days. My name is Kenan Bilgin. You are the lawyer of a close relative of mine, Hüseyin Özaslan, who is currently being held in Ankara Prison. My name has not been entered on the custody records. They are going to arrange for me to disappear. Could you inform my family and the lawyers that I have been detained?” On hearing this, the witness had tried to reassure the man, saying that he now had an eyewitness to his detention and that he could no longer be regarded as having disappeared. A few days later, on returning to his cell after another torture session that had lasted all night, he noticed that all the prisoners had changed cells. He had not see Kenan Bilgin again. 45. The witness said that detention in police cells was not always entered on the custody record and that the police officers used that practice as a form of torture. He had heard them tell certain prisoners in custody: “We have not entered your name on the custody record. We can do as we please with you.” 46. He said that he did not know Kenan Bilgin personally. Kenan Bilgin’s lawyer, Ms Hatipoğlu, had asked him while visiting the prison whether he had met Kenan Bilgin at the police station and he had informed her of their conversation.
(c) Cavit Nacitarhan 47. Cavit Nacitarhan said that he had been arrested on 12 September 1994 by the police for being a member of an illegal organisation, the TDKP. He had been held in custody for twenty-four days. For eighteen or nineteen days he had been taken for interrogation twice daily at 10 a.m. and 10 p.m. During the interrogation sessions he had been systematically tortured. For the remainder of his time in custody he had been given medical attention to remove the marks left by the injuries on his body. 48. He described the events following his arrest as follows: he had firstly been taken to a place called Gölbaşı, where the police officers had threatened to kill him unless he cooperated with them; he had been interrogated there before being taken to the Ankara Security Directorate. 49. The witness gave the names of other people who had been in custody during the same period. He said that he had learnt their names following a confrontation that had been organised with them or after meeting some of them in the prison. He had heard Kenan Bilgin’s name while in police custody. 50. He related how, in general, prisoners were taken to the toilets in groups of four or five. However, that did not apply to certain prisoners, including himself and another prisoner. They were only allowed to leave their cells to go to the toilet when the doors of the other cells had been shut. Prisoners’ names, apart from his own and that of another prisoner who he later discovered was Kenan Bilgin, were written on small cards that were fastened to the cell doors. On seeing Kenan Bilgin’s photographs in the press, he had immediately realised that it was the same person. One day, when all the cells were closed, he had attempted to see what was going on in the corridor by looking through a small aperture next to the cell-door window. Although his angle of view had been very restricted, he had been able to make out two police officers leading a nearly naked prisoner whose eyes were blindfolded. The prisoner had been taken back to his cell many hours later. He had seen him several times being dragged across the floor to or from his cell. 51. A few days later he had heard a prisoner saying: “My name is Kenan Bilgin. My name has not been entered on the custody record. Please inform my family and public opinion about my case.” He had heard the same person cry out several times from the bathroom that had been converted into a torture chamber. The man had been asked repeatedly: “What is your name? Tell us your name. Do not shout.” 52. On 26 September a confrontation had been organised with other prisoners who had been arrested as part of the same operation. Kenan Bilgin was not among them. On 3 October 1994 the witness had again seen Kenan Bilgin being led away by police officers. He was in very poor shape. That same evening there seemed to be a panic and the doors had remained closed throughout the evening. Police officers were running in all directions. Since that day, he had not seen Kenan Bilgin again. In his opinion, Kenan Bilgin was executed on 3 October. 53. The witness said that the applicant had visited him in prison in 1996 and that was how he had informed him of the date he was taken into custody. They had had a very short discussion about Kenan Bilgin. He said that he had sent a written statement through his representatives certifying that Kenan Bilgin had been present at the Ankara Security Directorate. 54. According to the witness, although he had been taken into custody on 12 September 1994, his detention had not been recorded until 26 September 1994, after his admission to hospital. He had informed the public prosecutor of that fact but the public prosecutor had merely accepted the police officers’ account.
(d) Bülent Kat 55. Bülent Kat said that he had been arrested on 8 September 1994 with two other people and had remained in custody in the offices of the anti-terrorist branch of the Ankara Security Directorate for fifteen days. When first detained, three or four prisoners were being held; a week later, their number had risen to approximately fifty. 56. The first prisoner he noticed was Cavit Nacitarhan, who was the nephew of a member of Parliament and occupied the cell next to his. The police officers had began the torture sessions with Cavit, whose body was swollen and covered in bruises and who had difficulty walking. The witness had a clear view of prisoners being taken to the torture chamber, which was diagonally opposite his cell. 57. He related how, after Cavit Nacitarhan was interrogated, it was the turn of another prisoner to suffer the same treatment. The question he heard most often was: “What is your name?” The prisoner’s cries had turned into grunts and groans. The last time he had seen him brought by a group of police officers for a torture session, either on 18 or 19 September, was identical to the others: the same groans, the same question, the same insults, the same cries. The witness went on: “Suddenly, there was total silence. The police officers came out of the torture chamber and a man carrying a black bag went inside. He looked like a doctor, but was probably from the police. They brought the prisoner out, dragging him behind them.” 58. The witness said that the warders opened the windows in their cell doors from time to time to give them bread or water. However, the aperture in the windows to the cells of Cavit Nacitarhan and the prisoner referred to above were kept shut. 59. He said that he did not know Kenan Bilgin before his arrest and had identified him from photographs in the press. 60. In practice, detention at the anti-terrorist branch was not entered on the records on the day the prisoner was taken into custody. The practice depended on how the interrogation proceeded. 61. The witness repeated that Kenan Bilgin had been on the same premises as him for at least fifteen days and had been tortured throughout that period. 62. He stated that he had signed a statement on 11 October 1994 as testimony for the benefit of public opinion and had made a statement to the public prosecutor.
(e) Talat Abay 63. Talat Abay said that he had been arrested on 8 September 1994 as a member of an illegal organisation, Rizgari, and had been held in custody for fifteen days at the Ankara Security Directorate. On 12 September a number of people had been taken into custody and all the cells were occupied. While in custody, prisoners were systematically subjected to torture. 64. He had known Kenan Bilgin before September 1994, as he had stayed at the witness’s home for almost two years in 1985 and 1986. 65. He had seen Kenan Bilgin on the night of 18 or 19 September 1994, when he was taken to the toilet. They had made eye contact but had not spoken. 66. The witness said that he had made a written statement confirming that Kenan Bilgin had been held in custody. In addition, he added that at his trial before the National Security Court he had testified to meeting Kenan Bilgin at the Ankara Security Directorate.
(f) Ercan Aktaş 67. The witness, who was a student at the material time, had been held in custody from 13 to 27 September 1994, for being a member of the PKK. 68. As he had said in his written statement, he and the other prisoners had been systematically taken for torture sessions. The torture chamber was near his cell. For several nights another prisoner had been taken to the torture chamber after him. He was always asked the same question, “What is your name?”, and he had heard cries and groans. He had seen him once, through an aperture in the cell-door window, for five or six seconds, from the front and distinctly, being supported by two police officers. The prisoner could not walk without assistance and dragged his feet. The witness had subsequently learnt, after being transferred to prison, that the prisoner’s name was Kenan Bilgin. 69. The witness said that he had no difficulty in being certain that the prisoner who had groaned and cried out in agony was Kenan Bilgin, since he had seen almost all of the other prisoners in prison. 70. The police officers would accompany them to the toilet and when they washed their hands and faces in the wash basins, they had an opportunity of meeting other prisoners.
(g) Sahir Çoban 71. Sahir Çoban accompanied the delegates when they visited the offices of the anti-terrorist branch of the Ankara Security Directorate. 72. At the material time he was a teacher. He had been arrested by the police on 12 September 1994 in the village where he taught for aiding and abetting an illegal organisation. He had been detained at the Ankara Security Directorate on 13 September 1994. 73. The witness reported his findings concerning the premises visited by the delegates of the Commission. The premises had been altered. The cells had been ventilated through the open cell-door windows, there being no ventilation through the ceiling. The room where the custody records were made up had been at what was now the entrance. The cells had been smaller and closer together and there had been additional cells along another corridor. The witness had been held in one of those cells and had remained there for approximately seven days. On the second or third day of his detention, he had been able to make out, through the open window in his cell door, two other prisoners in cells diagonally opposite his own, approximately three metres away. He did not know Kenan Bilgin before his arrest. He had seen his photograph in the offices of the Human Rights Association. He had made a statement that he had seen him in custody at the Security Directorate and had agreed to give evidence to that effect. 74. After making his statement he had been intimidated, in the presence of his wife, by a police officer who had visited him at the school where he taught. The police officer had made threats such as: “You eat from the State’s plate. I will not allow you to dirty that plate. You will suffer the same fate as Kenan Bilgin.” He added that, despite the threats, he had deposed before the National Security Court in November 1994.
(h) Müjdat Yılmaz 75. Müjdat Yılmaz said that he had been accused of being a member of the TDKP. He had been arrested on 12 September 1994 and had remained in custody until 26 September 1994. 76. As his two closest relatives had also been detained on the same premises, he had endeavoured to keep watch through an aperture in the cell-door window to see what was happening in the corridor. On 16 or 17 September he had seen a prisoner in the toilets, with his back to the wall. The prisoner was exhausted and did not have the strength to remain upright. He was being insulted and pulled backwards by his hair. The witness had seen the same prisoner on another occasion, in similar circumstances, being dragged along by police officers. On the third occasion he saw him, the prisoner was in very poor shape and incapable of standing up. He had cried out: “My name is Kenan Bilgin. I am registered at Tunceli. The police want to kill me. When you get out of here, inform public opinion about my case.” The officers in charge had prevented him from saying any more by taking hold of him by his hair and hitting him. After being transferred to prison, the witness had learnt that the prisoner concerned was called Kenan Bilgin. 77. The witness said that it was possible to communicate from one cell to another by raising one’s voice and that he had thus been able to converse from time to time with his niece. 78. In addition to his written statement he had made a deposition in prison in which he had stated that he could identify the police officers who had dragged Kenan Bilgin back to his cell. The same officers had undressed his wife before his eyes and he was certain he would recognise them.
(i) Salman Mazı 79. Salman Mazı said that he had been arrested for aiding and abetting the TDKP and held in custody from 12 to 26 September 1994. 80. He had seen Kenan Bilgin in person three times and for almost fifteen days had heard his groans when he was taken away for interrogation. 81. Two prisoners were treated differently from the others. One was Cavit Nacitarhan. They were taken separately to the toilet, being dragged there by their arms by two police officers. On his eighth day in custody, while the witness was washing his hands in the washroom, one of the two prisoners had been brought there. He looked exhausted and had whispered: “My name is Kenan Bilgin. I was taken into custody on 12 September and my name has still not been entered on the record. I think they want to kill me or to arrange for me to disappear. Inform public opinion about my case.” The warder had intervened and dragged him back to his cell. He had seen him a second time, lying on his bed in his cell opposite the toilets in his underpants. A day or two later, he had seen him through the window in his cell door. He was being dragged away. 82. The witness affirmed that he had heard Kenan Bilgin cry out from his cell, giving his surname, first name and the name of the province from which he came.
(j) Emine Öğün 83. Emine Öğün said that she had been arrested with her husband on 12 September 1994 for being a member of an illegal organisation and had remained in custody until 25 September 1994. 84. Two days before her release, when asking for water through the window in her cell door, she had seen a prisoner in a bad condition who had said to her: “My name is Kenan Bilgin. I was taken into custody on 12 September.”
(k) Ayşe Nur İkiz Akdemir 85. Ayşe Nur İkiz Akdemir said that she had been arrested on 12 September 1994 at Çanakkale. She had been detained at the Ankara Security Directorate from 13 to 25 September. 86. She affirmed that she had heard someone cry out “My name is Kenan Bilgin”, and had caught a glimpse, through her cell window, of a dark man, bald and with a moustache, whom she had later identified as Kenan Bilgin. 87. The witness said that the public prosecutor had taken a statement from her in prison and had asked her to describe the circumstances in which she had seen Kenan Bilgin.
(l) Özer Akdemir 88. Özer Akdemir said that he had been arrested on 12 September 1994 for being a member of an illegal organisation and had remained in custody until 25 September. 89. He had been systematically subjected to torture while in detention. He had been able to see through an aperture in the cell-door window that the prisoner in cell no. 8 was subjected to more intensive torture then he. He had seen him being dragged along by four police officers, two of them supporting him by the arms. On the same date he had seen a person with a bag go into cell no. 8 and had heard someone say: “He is not taking any milk. He is not drinking any milk.” On another occasion the witness had seen, again through the window in his cell door, the same prisoner being taken to the toilet. The prisoner had cried out: “My name is Kenan Bilgin. They want to arrange for me to disappear.” 90. The witness explained that in principle prisoners were not allowed to communicate with each other. However, they would either speak in whispers while at the wash basins or attempt to make themselves heard between cells. 91. The witness affirmed that he had drafted his written statement in the prison where he was detained. He had been questioned about it by the public prosecutor .
(m) Özden Tönük 92. Özden Tönük said that at the material time he had been the Ankara Principal Public Prosecutor, a position he still held. He had not been directly responsible for the investigation into the allegations concerning Kenan Bilgin’s disappearance. His letter of 13 January 1995 to the Ankara public prosecutor’s office contained a description of the actual conditions of detention and of the quarters used for holding prisoners at the Ankara Security Directorate. 93. He had been to the Security Directorate and had inspected the premises. He had heard evidence from people who said that they had seen Kenan Bilgin in custody. Without giving details, the witness affirmed that their statements were inconsistent. He declined to comment on the conclusion, which read: “Accordingly, it has been concluded that the statements of the persons held in custody were not true.” 94. The witness explained that he had drafted his report at the request of the Ministry of Justice and had not organised any confrontation between the prisoners who claimed to have seen Kenan Bilgin and the police officers present on the premises at the material time.
(n) Selahattin Kemaloğlu 95. Selahattin Kemaloğlu said that at the material time he had been the Ankara public prosecutor. He was now the public prosecutor for the district of Elmadağ (Ankara). 96. The witness said that it had been another prosecutor, Özden Tönük, who had started the investigation into Kenan Bilgin’s disappearance. The witness had been assigned to the case after a complaint was lodged by Kenan Bilgin’s brother. 97. He summarised his investigation as follows. He had sent a letter to the Ankara Security Directorate enquiring whether Kenan Bilgin had been detained there. The police had replied that he had at no stage been in custody. He had taken evidence from the witnesses whose names had been supplied by İrfan Bilgin and they had repeated their written statements, saying that they had seen Kenan Bilgin, in very poor shape, in custody at the Ankara Security Directorate. After hearing that evidence he had become convinced that Kenan Bilgin had disappeared like many others. 98. The witness went on to say: “At the material time there had been a number of cases of disappearances and, as a prosecutor, I was very disturbed by this. On hearing the evidence of the witnesses, I realised that the information given by the police did not reflect the truth. I received no replies to the letters I sent to other police departments. I sent the documents from the investigation to the Principal Public Prosecutor, Özden Tönük, with a request for the cases to be joined. However, the case file was returned to me. I asked the Principal Public Prosecutor to institute criminal proceedings against the head of the Security Directorate under the laws that made it an offence to refuse to cooperate with the relevant prosecuting authorities, as he had failed to produce a list of the police officers on duty when the alleged offences were committed. As the authorities did not respond, I was unable to interview the police officers or to arrange a confrontation with the eyewitnesses. The police enjoyed a sort of immunity at the time. I was not able to visit the premises where the prisoners were detained.” 99. The witness explained that 12 September was a relatively sensitive date in Turkey and that, at that time of the year, several thousand people were being held in police custody; some of them later disappeared. He said: “At the material time we, the prosecutors, were unable to inspect prisons or police stations. During a visit to the Security Directorate, I heard certain noises and asked the police officers where they were coming from. They replied that they had recorded the sound of people crying out in pain with a view to subduing prisoners. With regard to the present case, I tried to investigate it to the best of my ability. I had strong suspicions but did not manage to get very far. I am of Kurdish origin and my telephone line was being monitored. I was transferred to Elmadağ (Ankara), the district where I worked thirty years ago.”
(o) Mehmet Karataş 100. Mehmet Karataş said that at the material time he was a police officer with the anti-terrorist branch of the Ankara Security Directorate. He was responsible for compiling the custody records. 101. He described how the custody records were held. The following information was noted on them: the surname and first name of the accused; the surname and first names of the accused’s mother and father; the accused’s date of birth; and the date and time the accused was taken into custody. He said that it was impossible for the name of a person taken into custody to be omitted from the record and that he was under fairly strict instructions in that regard. He said that a custody report was sent every day to the departmental head and to the public prosecutor at the National Security Court. 102. He indicated that the labels attached to the door handles were numbered and that the prisoners’ names were written on other labels that were affixed to the cell doors. 103. With regard to the complaint concerning Kenan Bilgin’s disappearance, he had not been interviewed by the authorities and had not been the subject of any investigation. The witness was unable to say whether a prosecutor had inspected the premises in connection with the investigation. According to him, all the allegations of torture had been invented by certain movements hostile to the government and were totally unfounded. 104. He said that before the events that had given rise to the present case Kenan Bilgin had been arrested for being a member of the TDKP. He had been charged and had served his sentence. He had also been taken into custody for other activities as a member of that illegal organisation. His name was on file and the anti-terrorist branch had his case file containing details of his criminal record and of his membership of an illegal organisation.
(p) Ülkü Met 105. Ülkü Met said that at the material time he was deputy director at the Ankara Security Directorate. 106. He stated that after Kenan Bilgin’s brother had lodged the complaint, the public prosecutor had begun an investigation and had made four or five written requests to the Security Directorate for information, but he had not inspected the premises. 107. The witness stated that the operation carried out by the police against the TDKP between 12 September and 21 November 1994 was routine and had been undertaken on the basis of information and statements received. The police had relatively large numbers of files on persons who were in custody or had been convicted for belonging to illegal organisations. He said that Kenan Bilgin had not been arrested during the operation; his name was not on the custody record and, in his opinion, the other prisoners’ claims that Kenan Bilgin had been detained at the Security Directorate had been concocted by militants. 108. He explained that at all times at least two police officers were on duty with the responsibility of carrying out body searches on anyone who had been arrested, collecting their personal effects and getting them to sign a list setting these out. They were also required to enter the names of persons arrested on the custody record. 109. The witness dismissed all allegations of ill-treatment or torture during custody and stated that, while he had been deputy director, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) had carried out two ad hoc visits to the Security Directorate. He was, however, unable to comment on the two public statements made by the CPT, in which they had found: “Torture and other forms of ill-treatment were still important characteristics of police custody.” 110. The witness rejected the assertion of the public prosecutor Selahattin Kemaloğlu that the Security Directorate had failed to cooperate with him and said that prosecutors in charge of investigations could inspect the premises at any time. | [
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11. On 29 April 1962 the applicant married Mr A. Gigliozzi in a religious ceremony which was also valid in the eyes of the law (matrimonio concordatario). 12. On 23 February 1987 the applicant petitioned the Rome District Court for judicial separation. 13. In a judgment dated 2 October 1990 the District Court granted her petition and also ordered Mr Gigliozzi to pay the applicant maintenance (mantenimento) of 300,000 Italian lira per month. 14. In the meantime, on 20 November 1987, the applicant was summoned to appear before the Lazio Regional Ecclesiastical Court of the Rome Vicariate on 1 December 1987 “to answer questions in the Gigliozzi-Pellegrini matrimonial case”. 15. On 1 December 1987 the applicant went alone to the Ecclesiastical Court without knowing why she had been summoned to appear. She was informed that on 6 November 1987 her husband had sought to have the marriage annulled on the ground of consanguinity (the applicant’s mother and Mr Gigliozzi’s father being cousins). She was questioned by the judge and stated that she had known of her consanguineous relationship with Mr Gigliozzi but did not know whether, at the time of her marriage, the priest had requested a special dispensation (dispensatio). 16. In a judgment delivered on 10 December 1987 and deposited with the registry on the same day, the Ecclesiastical Court annulled the marriage on the ground of consanguinity. The court had followed a summary procedure (praetermissis solemnitatibus processus ordinarii) under Article 1688 of the Code of Canon Law. That procedure is followed where, once the parties have been summoned to appear and the defensor vinculis (defender of the institution of marriage) has intervened, it is clear from an agreed document that there is a ground for annulling the marriage. 17. On 12 December 1987 the applicant was notified by the registry of the Ecclesiastical Court that on 6 November 1987 the court had annulled the marriage on the ground of consanguinity. 18. On 21 December 1987 the applicant lodged an appeal with the Roman Rota (Romana Rota) against the Ecclesiastical Court’s judgment. She submitted first that she had never received a copy of the judgment in question and complained that the court had not heard her submissions until 1 December 1987, which was after it had delivered its judgment of 6 November 1987. The applicant also alleged a breach of her defence rights and of the adversarial principle on account of the fact that she had been summoned to appear before the Ecclesiastical Court without being informed in advance either of the application to have the marriage annulled or the reasons for that application. She had therefore not prepared any defence and, furthermore, had not been assisted by a lawyer. 19. On 26 January 1988 the registry of the Ecclesiastical Court informed the applicant that there had been a clerical error in the notification sent to her on 12 December 1987 and that the judgment was dated 10 December 1987. 20. On 3 February 1988 the defensor vinculis submitted observations to the effect that the applicant “had acted correctly in appealing against the judgment” (la convenuta aveva agito giustamente facendo appello contro la sentenza) of the Lazio Court. Accordingly, in a summons of 9 March 1988 the reporting judge of the Rota summoned the parties and the defensor vinculis to appear. 21. On 10 March 1988 the applicant was informed that the Rota would examine her appeal on 13 April 1988 and that she had twenty days in which to submit observations. On 29 March 1988 the applicant, who was still unassisted by a lawyer, submitted her observations, in which she complained, inter alia, that she had not had adequate time and facilities for the preparation of her defence. She gave details of the financial arrangements between herself and her ex-husband and stressed that the annulment of the marriage would have substantial repercussions on her ex-husband’s obligation to pay her maintenance, which was her only source of income. 22. In a judgment of 13 April 1988, which was deposited with the registry on 10 May 1988, the Rota upheld the decision annulling the marriage on the ground of consanguinity. The applicant received only the operative provisions of the judgment, her request for a full copy of it having been refused. 23. On 23 November 1988 the Rota informed the applicant and her ex-husband that its judgment, which had become enforceable by a decision of the superior ecclesiastical review body, had been referred to the Florence Court of Appeal for a declaration that it could be enforced under Italian law (delibazione). 24. On 25 September 1989 the applicant’s ex-husband summoned her to appear before the Florence Court of Appeal. 25. The applicant appeared before that court and requested it to set aside the Rota’s judgment for infringing her defence rights. She stated that she had not received a copy of the application to have the marriage annulled and had been unable to examine the documents filed in the proceedings, including the observations of the defensor vinculis. She requested the court to refuse to declare the Rota’s judgment enforceable, submitting that, in any event, the proceedings would have to be reopened in order to allow her to examine and reply to the documents filed in the proceedings under canon law. She requested, in the alternative, in the event that the court should declare the judgment enforceable, that her ex-husband be ordered to pay her monthly maintenance for the rest of her life. 26. In a judgment of 8 November 1991, deposited with the registry on 10 March 1992, the Florence Court of Appeal declared the judgment of 13 April 1988 enforceable. The court found that the opportunity given to the applicant on 1 December 1987 to answer questions had been sufficient to ensure that the adversarial principle had been complied with and that, moreover, she had freely chosen to bring the proceedings before the Rota and had been able to exercise her defence rights in those proceedings “irrespective of the special features of proceedings under canon law”. The court went on to hold that it did not have jurisdiction to award her maintenance “for the rest of her life”; as far as a possible award of interim maintenance (assegno provvisorio) was concerned, which was a provisional arrangement, the court pointed out that the applicant had not in any event proved that she needed the money. 27. The applicant appealed on points of law, repeating her submission that her defence rights had been infringed in the proceedings before the ecclesiastical courts. She submitted, among other things, that the Court of Appeal had omitted to take account of the following features of the proceedings before the ecclesiastical courts: the parties cannot be represented by a lawyer; the respondent is not informed of the reasons relied on by the petitioner for having the marriage annulled until he or she is questioned; the defensor vinculis, who acts as the respondent’s guardian, is not obliged to lodge an appeal; an appeal must be lodged personally by the party in question and not by their lawyer; the ecclesiastical court is not particularly autonomous. She repeated that she had not been informed in detail of the application to have the marriage annulled or of the possibility of being assisted by a lawyer. Furthermore, the proceedings at first instance had been too quick. The applicant also criticised the fact that the Court of Appeal appeared to have omitted to examine the case file relating to the proceedings before the ecclesiastical courts, which might have yielded evidence in the applicant’s favour. Besides that, the applicant submitted that she had shown herself to be in financial need and was therefore entitled to maintenance. 28. During the proceedings the applicant had requested the registry of the Ecclesiastical Court to give her a copy of the documents filed in the annulment proceedings in order to produce them before the Court of Cassation, but the court clerk had refused to grant her request on the ground that the parties could receive only the operative provisions of the judgment, “which should be sufficient to allow them to exercise their defence rights”. 29. In a judgment of 10 March 1995, deposited with the registry on 21 June 1995, the Court of Cassation dismissed the appeal. It held, first of all, that the adversarial principle had been complied with in the proceedings before the ecclesiastical courts; moreover, there was case-law authority to support the view that while the assistance of a lawyer was not a requirement under canon law, it was not forbidden: the applicant could therefore have taken advantage of that possibility. The court also held that the fact that the applicant had had a very short time in which to prepare her defence in November 1987 did not amount to an infringement of her defence rights because she had not indicated why she had needed more time. With regard to the request for maintenance, the Court of Cassation held that the Court of Appeal could not have decided otherwise, given that the applicant had mistakenly referred to maintenance “for the rest of her life” and, furthermore, had failed to show that she was entitled to maintenance and needed it. The Court of Cassation did not rule on the fact that the case file relating to the proceedings under canon law had not been examined by the Court of Appeal. 30. From June 1992 the applicant’s ex-husband ceased paying her maintenance. The applicant therefore began enforcement proceedings for payment of the maintenance by serving notice (precetto) on him to pay it. On 6 November 1994 her ex-husband lodged an objection with the Viterbo Court, which, in a judgment of 14 July 1999, upheld his objection and ruled that he no longer had to pay maintenance because the Florence Court of Appeal had declared that the decision annulling the marriage was enforceable. The applicant did not appeal against that judgment because on 19 June 2000 she reached an agreement with her ex-husband (under the terms of that agreement she also withdrew another set of proceedings that she had instituted in the Viterbo Court claiming joint title to property). | [
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