4.  The applicant was born in 1968 and lives in Kyiv. 5.  On 20 October 1999 the applicant instituted civil proceedings against the Radyansky Nursery School No. 154 in Kyiv (“the school”), a municipal institution, where she was working as a teacher. The other defendant was the school’s principal. The applicant in particular claimed compensation for belated return of her work-record book (трудова книжка). 6.  On 13 April 2000 she lodged another claim seeking the issue of the work-record book’s duplicate containing rectified records. This claim was subsequently joined to the previous one. 7.  On 22 May 2000 the Radyansky District Court of Kyiv (“the Radyansky Court”), later on renamed into the Svyatoshynsky District Court of Kyiv (“the Svyatoshynsky Court”), rejected the applicant’s claim. On 18 October 2000, the Kyiv City Court (“the Court of Appeal”) upheld this judgment. On 2 February 2001 the Radyansky Court rejected the applicant’s request to reverse its judgment in the light of newly discovered facts. This decision was upheld on 11 April 2001 by the Court of Appeal. 8.  According to the Government, during the proceedings leading up to 18 October 2000, the applicant filed five procedural requests, two requests to extend the time-limit for lodging an appeal, and two appeals, which met procedural requirements, but delayed the proceedings for about ten days. 9.  By a final judgment of 2 October 2002, the Supreme Court partly allowed the applicant’s appeal in cassation and changed the first instance judgment. Relying on section 2.10 of the Instruction on keeping work-record books of employees, it ordered the school to issue a duplicate of the rectified work-record book containing no record of the applicant’s dismissal that had been found unlawful in other court proceedings. 10.  On 26 December 2002 the applicant obtained a writ of execution in respect of the judgment of 2 October 2002 and on the next day, she filed it with the State Bailiffs’ Service (“the bailiffs”) which, on 22 January 2003, commenced enforcement of this judgment. In the period to May 2005 the bailiffs twice suspended and re-opened the enforcement proceedings. In May 2005 they requested the Svyatoshynsky Court to interpret the final judgment as it was not sufficiently clear for enforcement purposes. Their request was, however, rejected on 15 June 2005. 11.  On 16 August 2005 the bailiffs ordered the return of the writ of execution to the applicant. On 4 April 2006 the Shevchenkivsky District Court of Kyiv (“the Shevchenkivsky Court”) quashed the order. 12.  On 27 June 2007 the Supreme Court rejected the applicant’s and the bailiffs’ request to interpret its judgment. 13.  In April 2009 the applicant lodged a complaint with the Shevchenkivsky Court against the bailiffs alleging irregularities in the enforcement proceedings. On 16 June 2009 the bailiffs suspended the enforcement proceedings pending the outcome of this complaint. On 20 October 2009 the complaint was sent to the Svyatoshynsky Court which, on 21 September 2010, ordered the school to hand in the issued duplicates. 14.  According to the applicant, as of 15 November 2010, her work-record book and unduly issued duplicates were with the domestic courts and for this reason she was not able to become employed. 15.  In February 2003 the applicant lodged another claim with the Shevchenkivsky Court against the same defendants. She requested in particular to quash her dismissal order. On 20 October 2003 the court rejected her claims. On 29 December 2003 and 27 December 2004 the Court of Appeal and the Supreme Court, respectively, dismissed the applicant’s appeals.


6.  The applicant was born in Turkey in 1955 and lives in Vienna. He moved to Austria in 1989 and has been living and working there ever since. 7.  On 17 June 2002 he filed a claim for family allowance backdating to 1 June 1997 for his two children who had been resident in Turkey on a permanent basis. His daughter was born in 1978 and at the time of his claim in 2002 she had already finished her studies and taken up a job as a teacher. His son was born in 1980 and had been a student since 2000. Pursuant to a bilateral agreement, the applicant had been receiving a reduced family allowance until 1996. 8.  On 17 February 2003 the Vienna Tax Office dismissed the applicant’s claim because the children were not resident in Austria, which was one of the main conditions for entitlement to such an allowance. 9.  On 8 April 2003 the applicant lodged an appeal, referring to case-law of the European Court of Justice (ECJ). He argued that the decision taken against him contravened European Union (EU) legislation; however, he did not make a request for a referral to the ECJ for a preliminary ruling under Article 267 (ex 234) of the EU Treaty. 10.  On 24 May 2004 the Independent Financial Panel (Unabhängiger Finanzsenat – “the IFP”) dismissed the applicant’s appeal. It held that since Austria had on 30 September 2006 terminated the Social Security Agreement of 12 March 1985 between itself and Turkey (Abkommen zwischen der Republik Österreich und der Türkischen Republik über Soziale Sicherheit) and his children were not resident in Austria, he was no longer entitled to any family allowance. It further found that the applicant did not claim to have ever taken any steps to move his family to Austria. 11.  On 23 September 2004 the applicant made a claim for legal aid and lodged a complaint with the Constitutional Court, alleging a violation of Article 6 of the Convention on the basis that his case had not been referred to the ECJ for a preliminary ruling, although it appears that no such request had ever been made by him. He also alleged breaches of Article 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. 12.  On 30 November 2004 the Constitutional Court dismissed the applicant’s claim for legal aid because he had already been denied eligibility on 13 July 2004. It further declined to deal with the applicant’s complaint finding that it had no prospects of success, and, upon the applicant’s request, remitted the case to the Administrative Court. In particular it held that the IFP was not a domestic authority obliged to refer cases to the ECJ for a preliminary ruling and that the provisions in question neither contravened the Austrian Constitution nor EU legislation since his children lived in Turkey, which was not a member State of the European Union. 13.  In another set of proceedings the IFP on 22 March 2004 dismissed the applicant’s appeal concerning the alleged failure to pay him tax credits for maintenance payments for the years 1999, 2000 and 2001. It held that generally such payments were not possible under Austrian law if the children were over the age of majority and were not in receipt of family allowance. 14.  On an unspecified date the applicant lodged a second complaint with the Constitutional Court against this decision and made a further claim for legal aid. 15.  On 4 October 2004 the Constitutional Court declined to deal with the applicant’s second complaint, finding that it had no prospect of success. It again refused to grant him legal aid. 16.  The applicant requested that the case be remitted to the Administrative Court. The Constitutional Court agreed to do so and thereupon the Administrative Court joined both sets of proceedings. 17.  On 10 August 2005 the Administrative Court, referring to both its own and the Constitutional Court’s case-law, dismissed both complaints. It found that the legislation that had been in force since 1 January 2001, which prevented persons from receiving family allowances for children over the age of majority living abroad, was lawful. It referred to the constitutional provision that prevented the payment of tax credits for maintenance payments in respect of children for whom no family allowance could be received. It further held that since the provisions concerning family allowance were equally applicable to Austrian nationals and foreigners there was no discrimination. Lastly, it found that there was no legal basis on which to refer the case to the ECJ for a preliminary ruling without giving detailed reasons for such a request. Since there was no appearance of a violation of a right of the applicant, no oral hearing was necessary. That decision was served on the applicant’s counsel on 2 September 2005.


9.  The applicant, Ms Şemsi Önen, is a Turkish citizen, born in 1968. At the relevant time, she lived in the village Karataş near Mazıdağı (Mardin) in south-east Turkey. The application was brought by the applicant on behalf of her deceased parents and brother, on her own behalf and on behalf of her ten suriving siblings, namely Mekiye, Ishan, Ercan, Mehmet Nuri, Medine, Sultan, Sevgi, Iskender, Melek and Hamdullah. It concerns the killing of their parents and brother Orhan, allegedly by armed members of the Balpınar village guards, and the investigation thereof. 10.  Since the 1980s, a violent conflict has been conducted in the south-eastern region of Turkey between the security forces and sections of the Kurdish population in favour of Kurdish autonomy, in particular members of the PKK (Kurdish Workers' Party). According to the Government, one of the main terrorist activities of the PKK was the killing of people who have acted contrary to the cause of this organisation or who have misused property of the PKK. At the time of the events in issue, ten of the eleven provinces of south-east Turkey had been under emergency rule since 1987. 11.  The facts of the case, in particular the circumstances of the killings and the efforts of the authorities to investigate the killings, are disputed. 12.  As the village of Karataş, where the applicant and her family lived at the time of the events in issue, had refused the village guard system, tension had arisen between Karataş and its neighbouring village Balpınar. This refusal had also resulted in pressure being applied to the villagers by the gendarmes. 13.  On or about 15 November 1992, four Balpınar village guards were killed in a clash with the PKK. On the same day, shortly after the clash, gendarmes and village guards attacked the village of Karataş. This attack lasted several hours. The following day, the Muhtar of Karataş complained to the Governor that his village was being subjected to pressure and violence from the gendarmes and village guards. No investigation of the attack took place. 14.  Some weeks before 16 March 1993 the house of the Muhtar and the applicant's family house were both strafed by several rounds of bullets fired by Balpınar village guards. The Muhtar again complained to the Governor about the pressure exerted on his village by the Balpınar village guards and requested that steps be taken to put an end to it. 15.  In the evening of 16 March 1993 the applicant's older brother, Orhan Önen, and her parents, Ibrahim and Mome Önen, were killed and the applicant suffered a wound to her foot as a result of a planned action by members of the Balpınar village guards to kill Orhan Önen. Before he was shot and killed, the applicant's father was able to pull the scarf from the head of one of the intruders and shouted that he recognised the gunmen as Ali Ertaş, head of the Balpınar village guards, and his nephew Orhan Ertaş, a former Balpınar village guard. The applicant's mother, who was seriously injured by a bullet, died on her way to hospital. 16.  The Commander of the local Fosfat gendarme station, who had possibly been informed beforehand of the plan by the Balpınar village guards to kill Orhan Önen, seriously delayed the applicant's mother's access to medical treatment by refusing to provide a car to replace the defective minibus which was to transport her to a hospital and by unduly delaying the departure of this minibus for Mazıdağı. 17.  The subsequent investigation of these killings was not only ineffective and inadequate in professional terms, but was in fact designed to cover up the involvement of the Balpınar village guards and to prevent the conviction of Ali and Orhan Ertaş. From the very beginning of the investigation, and throughout the entire subsequent proceedings, the authorities blamed the PKK for the killings and failed to keep the applicant informed of any steps taken in the investigation. 18.  On 8 October 1992 PKK forces attacked Balpınar village guards on the slopes of the Kırmızıtepe hill close to the village of Balpınar. This clash lasted about twenty minutes. There were no casualties. To date, the perpetrators of this attack have not been found. 19.  On 15 November 1992 PKK forces ambushed nine Balpınar village guards on a road near the village of Karataş. In the course of this clash, which lasted about fifteen minutes, four village guards were killed and four others wounded. An investigation into the clash was carried out. The Fosfat gendarme station commander, Salih Kaygusuz, took statements from the five surviving village guards during the course of the investigation. To date, the perpetrators of this attack have not been identified. 20.  On 16 March 1993 at about 20.15 hours an armed PKK attack using rocket missiles and heavy weapons was carried out on a PTT radio link station in Mazıdağı-Kaletepe, at a distance of about one kilometre from Mazıdağı. The village guards present returned fire. The clash lasted about ten to fifteen minutes. There were no casualties. Shortly after the clash, gendarmes from the Mazıdağı Central gendarme station arrived at the scene. The next day, a land mine was found on the road leading to the PTT station. The initial investigation of this attack was carried out by Mazıdağı Central gendarme station under the responsibility of the public prosecutor at Mazıdağı. 21.  Also in the evening of 16 March 1993 the killing of three Karataş villagers was reported to the public prosecutor in Mazıdağı. For reasons of security, the public prosecutor only arrived at the scene of the incident at 08.00 hours the next morning. He conducted an investigation, including attendance at the post mortem examination of the bodies of the victims carried out by a medical doctor. 22.  All necessary steps were taken to investigate the killing of the applicant's parents and brother, including the collection of evidence. After having completed his preliminary investigation, the public prosecutor of Mazıdağı issued on 7 July 1993 a decision of lack of jurisdiction and the investigation was referred to the public prosecutor's office at the Diyarbakır State Security Court. This referral resulted in the institution of proceedings against Ali and Orhan Ertaş before the Diyarbakır State Security Court.
On 6 May 1994, in the context of these proceedings and on the instructions of the Diyarbakır State Security Court, further statements were taken before a judge of the Mazıdağı Criminal First Instance Court from Ali Ertaş, Mahmut Denli and Mecit Kaya. No statements were taken from the applicant and her sister Mekiye, since they no longer resided in Karataş and their new address could not be established. 23.  On 28 December 1994 the Diyarbakır State Security Court acquitted Ali and Orhan Ertaş for lack of evidence. After this decision the investigation nevertheless continued but the perpetrators of the killing of the applicant's parents and brother have not been found. 24.  The Government submitted that it appeared from information obtained that the PKK had provided the applicant's brother Orhan with a taxi, which he had put to his own private use. He had thus made his family a target of the PKK, a terrorist organisation which was in all likelihood responsible for the killing of the applicant's parents and brother. 25.  On 16 March 1993 an incident report was drawn up by the gendarmes of the Mazıdağı District gendarme station stating that at around 21.30 hours that day, a group of terrorists belonging to the outlawed PKK organisation entered the home of Ibrahim Önen and opened fire. Ibrahim and Orhan Önen were shot and killed. Mome and Şemsi Önen were injured and Mome Önen died on the way to hospital. The report also referred to nine empty Kalashnikov cartridges without further specifications.
On the same date NCO Salih Kaygusuz of the Fosfat Gendarme Station drew a sketch map of the interior of the Önen family's two-room house. It indicated in one room the location of the bodies of Ibrahim and Mome Önen, two blood stains between the body of Ibrahim Önen and the front door and five empty cartridges. In the other room the location of the body of Orhan Önen and four empty cartridges was indicated. No blood stains were recorded in the room where the body of Orhan Önen was indicated. The sketch map only recorded what had been found inside the house. It did not contain any information about the immediate surroundings of the house. 26.  According to a post mortem examination report dated 17 March 1993, due to security precautions, the team of experts only arrived on 17 March 1993 at about 08.00 hours in Karataş, acting on a report that three persons had been killed there on 16 March 1993 at 20.00 hours. This team consisted of the public prosecutor of Mazıdağı Yekta Çobanoğlu, the medical doctor Sedat İşçi of the Mazıdağı Health Centre, a clerk, an autopsy assistant and a driver. The report further indicated that Mome had died on the way to hospital and that her body had been brought back to the village. The bodies of Ibrahim, Mome and Orhan Önen had been identified by a relative, Mehmet Hadi Araç. The examination report contained information on bullet - entries and exits and concluded that the respective causes of death were haemorrhaging of the lungs, loss of blood and cessation of vital functions. Given the obvious nature of the cause of death, it was decided that there was no need to conduct an autopsy. 27.  On 1 and 5 April 1993 statements were taken from the applicant and her sister Mekiye by the Fosfat gendarme station commander, Salih Kaygusuz, and by gendarme officer Cengiz Kesler of the Mazıdağı district gendarme station.
On 4 April 1993 Salih Kaygusuz took statements from the Balpınar village guards Ali Ertaş, son of Kasım and born in 1953, and Mecit Kaya, son of Mehmet and born in 1960, in relation to the events of 16 March 1993. Ali Ertaş stated that he was the Head of the Balpınar village guards and that on 16 March 1993 he had been on patrol duty on the Kırmızıtepe hill to the west of Balpınar. He denied any involvement in the killing of the applicant's parents and brother and stated that he felt slandered. His account was supported by Mecit Kaya who confirmed that he had been on patrol on the Kırmızıtepe hill together with Ali Ertaş until the morning of 17 March 1993. Mecit Kaya further declared that neither the village of Balpınar nor Ali Ertaş had any involvement in the killings.
On 5 April 1993 Mr Salih Kaygusuz took a statement from Orhan Ertaş, son of Şeyhmus and born in 1969, who stated that on 16 March 1993 he had not been in Balpınar. On that day he had been loading goods onto his lorry in the province of Mersin and had driven his lorry to Istanbul. He further declared that due to his work, he never stayed very long in Balpınar. 28.  Between 7 April and 17 May 1993 a ballistics examination was carried out. According to a ballistics report of 29 April 1993 of the forensic laboratory in Diyarbakır, the nine empty 7.62 mm calibre Kalashnikov cartridges found at the scene of the killing had been fired from three different weapons with the same calibre, i.e. six from one weapon, two from another and one from a third weapon. In a report of 17 May 1993, transmitted to the Mazıdağı prosecutor, the forensic laboratory in Diyarbakır concluded that none of the nine cartridges found at the scene of the killings matched the five empty cartridges reportedly taken from the Kalashnikov rifle of Ali Ertaş and that, therefore, the nine cartridges had not been fired from Ali Ertaş' weapon. 29.  On 7 July 1993 the Mazıdağı public prosecutor Yekta Çobanoğlu, decided that he lacked jurisdiction to deal with the case. The decision listed Ali and Orhan Ertaş as being suspected of the offence of “politically motivated murder” of the applicant's parents and brother. It noted that, following its investigation, the District gendarme command had concluded that unidentified members of the PKK terrorist organisation had committed the killings, but that, according to the respective accounts of the applicant and her sister Mekiye, their father had recognised the perpetrators as Ali and Orhan Ertaş. Concluding that the alleged offence fell within the scope of Law No. 2845, it was decided that the Mazıdağı prosecutor's office lacked jurisdiction and that the case-file should be transmitted to the prosecutor's office at the Diyarbakır State Security Court. 30.  On 13 September 1993, following referral of the prosecution's case file to the prosecutor at the Diyarbakır State Security Court, the prosecutor at this court, Tanju Güvendiren, took certain additional measures with respect to the ballistics examination. He enquired as to why only five empty cartridge shells had been sent for examination, whereas six such cartridges taken from Kalashnikov weapons owned by six village guards had been required for a comparison. He further instructed the gendarmerie to provide him with a list of the Karataş village guards as well as the Kalashnikov delivery receipts of these village guards and to send the Kalashnikov delivered to Ali Ertaş and all other Kalashnikovs belonging to the village guards to the forensic laboratory in Diyarbakır for a ballistics examination. In the event of there being insufficient replacement rifles, he instructed that these rifles be discharged and the empty cartridges numbered in order to identify which cartridge was fired from which weapon and to send these cartridges to the forensic laboratory for a ballistics examination.
On 19 October 1993 the Mazıdağı District gendarme command sent to the prosecutor's office at the Diyarbakır State Security Court sixty-five weapon and ammunition delivery receipts of the Balpınar village guards and sixty-five numbered empty cartridges. No information was provided as to the circumstances of the firing of the weapons. On 27 October 1994 the Regional Criminal Police Laboratory in Diyarbakır submitted to the State Security Court a ballistics examination report which concluded that none of the sixty-five empty 7.62 mm Kalashnikov cartridges matched the nine cartridges found at the place where the applicant's parents and brother had been shot. 31.  On 6 January 1994 prosecutor Tanju Güvendiren charged Ali and Orhan Ertaş with politically motivated murder of the applicant's parents and brother Orhan, under Articles 31, 33 and 448 of the Turkish Penal Code and Article 13/2 of the Law No. 6136.
On 21 January 1994 the State Security Court instructed the Mazıdağı Court of First Instance, inter alia, to take statements from Ali and Orhan Ertaş, Mecit Kaya and Mahmut Denli, and to take evidence from Şemsi and Mekiye Önen. It adjourned its further examination until 16 March 1994. On that date it noted that the results of its instructions had not yet arrived and that it appeared from the case-file that weapons seized from the suspects had been sent to the Diyarbakır Police Laboratory for a ballistics examination.
Pending the implementation of its above-mentioned orders for the hearing of witnesses and a request for the preparation of a further forensic laboratory report, the State Security Court adjourned the proceedings several times, on the last occasion until 28 December 1994. 32.  In the meantime, according to a statement dated 4 May 1994 and signed by the gendarmes Yusuf Kocer and Salih Günay and by the Muhtar of Karataş Muhittin Araç, the applicant and her sister Mekiye were living around Cezaevi in the Diyarbakır province, but their address could not be established. In another statement dated 4 May 1994 and signed by the same gendarmes and the Muhtar of Balpınar, Izettin Kaya, it was noted that the current whereabouts of Orhan Ertaş were unknown.
On 6 May 1994, in the presence of the Mazıdağı public prosecutor Yekta Çobanoğlu, the judge at the Mazıdağı Court of First Instance, Ayhan İstikbal, took statements from Mahmut Denli, Mecit Kaya and Ali Ertaş. It was noted that Orhan Ertaş had not appeared. Ali Ertaş stated that Orhan Ertaş had left Balpınar some time ago, that he was unaware of Orhan's whereabouts and, in any event, Orhan had not been in the village for a long time. As regards the applicant and her sister Mekiye, it was noted that they had not appeared and that the response to their summons indicated that they were not in the village and were residing in the Cezaevi neighbourhood in Diyarbakır. On 29 June 1994 the State Security Court noted that no statements had been taken from the applicant and her sister Mekiye as their address could not be established. 33.  On 28 December 1994 the State Security Court tried the case in the absence of the defendants as well as of the applicant and her sister. The prosecution submitted that the applicant and her sister had only heard their father state the names of the accused but that there was no other evidence supporting their account. The prosecution argued that, in these circumstances, the accused should be given the benefit of the doubt and acquitted. By judgment of 28 December 1994 the State Security Court unanimously acquitted Ali and Orhan Ertaş of the charges against them. 34.  Since the facts of the case are disputed, particularly concerning the circumstances of the killings and the adequacy of the follow-up investigation, the Commission conducted an investigation with the assistance of the parties. The Commission obtained documentary evidence, including written statements. The oral evidence of the applicant and 12 witnesses was heard by three Delegates at a hearing in Ankara on 30 March and 1 and 2 April 1998. 35.  As regards written evidence, the Commission had particular regard to the statements of both the applicant and his sister Mekiye Önen of 1 and 5 April 1993 (taken by the Fosfat gendarme station commander Salih Kaygusuz and by gendarme officer Cengiz Kesler of the Mazıdağı district gendarme station); a statement by the applicant of 9 June 1993 (taken by Mr Yekta Çobanoğlu, the public prosecutor of Mazıdağı); an undated statement taken by Mr Sedat Aslantaş of the Diyarbakır Branch of the Human Rights Association (submitted to the Commission on 18 October 1993); a statement by the applicant's sister of 6 July 1993 (taken by Yekta Çobanoğlu); statements by village guards Ali Ertaş and Mecit Kaya taken on 4 and 5 April 1993 (at Fosfat gendarme station by Salih Kaygusuz); a statement by Mahmut Denli (taken on 5 April 1993 by gendarme Cengiz Kesler at the Mazıdağı District gendarme station); a statement of 6 July 1993 of Ali Ertaş (taken by Yekta Çobanoğlu); statements taken on 6 May 1994 from Mahmut Denli, Mecit Kaya and Ali Ertaş by judge Ayhan İstikbal of the Mazıdağı Court of First Instance upon request of the State Security Court of Diyarbakır.
The Commission also had regard to an incident report and a sketch map, both dated 16 March 1993; an ambulance record of 16 March 1993; a post mortem examination report dated 17 March 1993; correspondence of the Mazıdağı public prosecutor; forensic ballistics inquiries and examinations; Yekta Çobanoğlu's decision of lack of jurisdiction dated 7 July 1993 and a number of minutes of the proceedings before the State Security Court; as well as other documents.
The latter included gendarme reports and statements related to the investigation of the attack on Balpınar village guards on 15 November 1992, according to which a group of nine Balpınar village guards travelling by tractor on the road from Balpınar to the Fosfat gendarme station were attacked by PKK forces on 15 November 1992 at around 16.00 hours. At the time of the attack, the village guards found themselves between the villages Arısu and Karataş. Four village guards were injured, amongst whom Ramazan Ertaş, son of Kasım and born in 1955. Four others were killed, amongst whom Nesrettin Ertaş, son of Şeyhmus and born in 1965, and Davut Ertaş, son of Kasım and born in 1944.
Account was also taken of letters of various dates between 30 June 1995 and 25 March 1998, from the Commander of the Mazıdağı District gendarme station to the office of the public prosecutor in Mazıdağı in which he informed the public prosecutor that the identities of the PKK members who had killed the applicant's parents and brother had not yet been established. A number of these letters, including one sent on 25 March 1998, stated that the investigation of the matter was still ongoing. 36.  The oral evidence included statements by the applicant herself, Mekiye Önen, Ercan Önen, Muhittin Araç, Tahir Önen, Mehmet Hadi Araç, Salih Kaygusuz, Mahmut Denli, Mecit Kaya, Yekta Çobanoğlu, Sedat İşçi, Cengiz Kesler and Tanju Güvendiren. 37.  The verbatim record of the hearing held on 30 March 1998 contained the following passages of relevance to the Government's preliminary objection as to the authenticity of the application (see paragraph 71 below):
“Mr RESS: Did you make two statements at the station, and did you sign them?

Miss Şemsi ÖNEN: Yes. I went there a few times. They asked me questions. I answered them. They wrote them down. I put my fingerprint as I don't know how to write. But I don't know what they wrote. I answered the questions just as I'm doing here now. My brother was with me. I put my fingerprint to the statements.

Mr. RESS: Since you cannot read, I will only show you your fingerprint, and you will say whether it's yours or not.

A document is shown to the applicant.

Miss Şemsi ÖNEN: Yes, it's mine. That's how I put my fingerprint.” 38.  In relation to the oral evidence, the Commission was aware of the difficulties in assessing evidence obtained orally through interpreters: it therefore paid careful attention to the meaning and significance to be attributed to the statements made by the witnesses appearing before its Delegates. The Commission was aware that the cultural context of the applicant and witnesses rendered it inevitable that there would be a certain degree of imprecision with regard to dates and other details. However it did not consider that this by itself detracted from the credibility of the testimony.
In a case where there were contradictory and conflicting factual accounts of events, the Commission was acutely aware of its own limitations as a first instance tribunal of fact. The problems of language were adverted to above; there was also an inevitable lack of detailed and direct familiarity with the conditions in the region. In addition, the Commission had no powers to take specific measures to compel witnesses to give oral or written evidence. In the present case, despite the Commission's specific request, the Government failed to submit certain relevant documents. The Commission was therefore faced with the difficult task of determining events on the basis of incomplete evidence.
The Commission's findings can be summarised as follows. 39.  The villages of Balpınar and Karataş were situated in an area which was subjected to significant PKK activity in the early 1990's. It was undisputed that, prior to the events at issue, village guards from Balpınar had been attacked on two occasions by PKK forces and that, on 16 March 1993, PKK forces attacked a nearby PTT radio link installation.
The inhabitants of Karataş, Balpınar and about forty other villages belonged to the “Metina” clan. It appeared that, at the relevant time, all villages belonging to this clan, with the exception of the village of Karataş and one other village, had village guards and that pressure was exerted to join the village guard system. A number of witnesses stated that the refusal of Karataş to join the village guard system had resulted in tension between Karataş and Balpınar. Other witnesses denied such tension. The public prosecutor at Mazıdağı confirmed that he had heard rumours that the inhabitants of Karataş opposed the Turkish State and, therefore, the village guards were their enemies. The Balpınar village guards were not authorised to act on their own initiative. They received their orders from and had to report to the Commander of the nearby Fosfat gendarme station. 40.  Although it could not make any definite findings on this point, the Commission did not consider it to be implausible that Karataş' refusal to join the village guard system during a period of significant PKK activity in the area, had resulted in tension between the village guards of Balpınar and the inhabitants of Karataş. 41.  The Commission was satisfied from the evidence given by the applicant and her sister, that in the evening of 16 March 1993 after having introduced themselves as soldiers knowing that the Muhtar was absent from Karataş and wishing to conduct a house search, two armed and masked men entered their family home. One of the men immediately shot and killed their brother Orhan. In the course of their struggle with the intruders, the applicant's father was shot and killed by one of the intruders and the applicant's mother was seriously injured by a shot fired by the other intruder. There was no reason to doubt that both the applicant and her sister heard their father call out the names of the two perpetrators whom he had recognised as Ali and Orhan Ertaş from Balpınar.
The killings in question were the result of a premeditated plan to kill the applicant's brother. As to the possible motive for the killing it could not be excluded that there were tensions between the inhabitants of Karataş and the Balpınar village guards at the relevant time which had already resulted in armed attacks on houses in Karataş. Nor could it be excluded that Orhan Önen may have been a particular target because of his suspected involvement in the PKK killing of village guards from Balpınar. On the other hand, the Government's contention that the PKK had a motive for killing Orhan Önen because they had provided him with a vehicle which he had used for his own benefit rather than for services required by the PKK had not only remained unsubstantiated but was, moreover, contradicted by substantial evidence submitted by the applicant. 42.  As to the circumstances of the killing itself, the Commission found it established that the killers were aware that the Muhtar of Karataş was absent from the village and that the applicant and her sister heard their father call out the names of the perpetrators, identifying them as Ali and Orhan Ertaş. Moreover, the evidence of Mahmut Denli and Mecit Kaya that the Balpınar village guards, including Ali Ertaş, had been on guard duty throughout the night of 16 March 1993 was at least open to question. In addition, the suspicion of the involvement of Balpınar village guards was reinforced by the identification of Ali and Orhan Ertaş by the applicant and her sister at the Mazıdağı gendarme station. Nevertheless, while the evidence was sufficient to give rise to suspicion as to the identity of the killers, it had not been established to the required standard of proof beyond reasonable doubt that the applicant's brother, father and mother were killed by agents of the State.
In this connection, the Commission noted that the applicant had given the Delegates a description of the two men: the one who shot her brother Orhan and her mother had been described as a person with long fair hair, hazel eyes and a fair complexion, whilst the man who shot their father was described as having a moustache and black eyes. Her sister, Mekiye, confirmed that the man who shot Orhan had hazel eyes but stated that she had not seen the second intruder. The applicant had further given evidence that, on 5 April 1993, when she subsequently attended the Mazıdağı gendarme station, she saw Ali and Orhan Ertaş and recognised them as the same two men. This was confirmed by Mekiye in that, on the same occasion, she had recognised Orhan Ertaş as one of the killers from his height, build, hazel eyes, nose and complexion.
The Commission considered that this evidence should be treated with caution. In the circumstances of the sudden and traumatic events of that night, it was at least doubtful whether either the applicant or her sister would have had an opportunity to form a clear and accurate impression of the features of either man. In particular, Mekiye appeared only fleetingly to have seen her brother's killer, whose face had been masked with a scarf. The Commission noted that the description given by them of Orhan and Ali was contradicted by Muhittin Araç, who knew both men and who described Orhan as being lean with a dark complexion and black hair and Ali as being a more bulky man of the same height with a light complexion and chestnut brown hair.
As to the evidence of the subsequent identification of these two men, the Commission found no reason to doubt that the applicant and her sister did see Ali and Orhan Ertaş at the Mazıdağı gendarme station on 5 April 1993. What was, however, more doubtful was whether the identification of the two men was entirely spontaneous or whether the applicant and her sister were made aware that the men were Ali and Orhan, whose names had been called out by their father. 43.  Finally, it had not been established that Salih Kaygusuz, the Commander of the Fosfat gendarme station, had considerably delayed the provision of medical treatment to the applicant's injured mother or that the gendarme forces failed to offer her available assistance. In this connection, the Commission had regard to its findings as regards the time of the armed attack and the moment at which the applicant's mother received medical care in Mazıdağı. 44.  From the evidence of Salih Kaygusuz it appeared that, after the minibus transporting the applicant's mother had left for Mazıdağı, he reported the incident in Karataş to his superiors at the District gendarme station in Mazıdağı and stated that he suspected that the PKK was responsible for the killings. He was told that, for reasons of security, the public prosecutor would only come to Karataş the next morning. He then ordered a first gendarme team to secure the area around Karataş. A second team, led by himself, joined the first team some time later. Thereupon, he and one gendarme team went to Karataş. They arrived sometime after midnight and found the bodies of the three victims inside the applicant's house. 45.  Although the local gendarmes only arrived in Karataş at least three hours after the killings occurred, the Commission accepted that this delay had been caused by the fact that on the same evening an armed attack on a nearby radio link installation had taken place. However, once in Karataş, the gendarmes only secured the scene of the crime and, in the absence of any instructions, passively awaited the arrival of the competent investigation authorities, in the instant case the public prosecutor at Mazıdağı. 46.  According to Salih Kaygusuz, the villagers present were unwilling to provide the first team of gendarmes with any information about the killings. After having secured the scene of the killings, he and the other gendarmes merely awaited the arrival of the prosecutor since they had not been ordered to take any investigative steps. 47.  In the morning of 17 March 1993 an investigation team consisting of the public prosecutor of Mazıdağı, Yekta Çobanoğlu, and, amongst others, Dr. Sedat İşçi left Mazıdağı for Karataş.
After the investigation team had arrived in Karataş and before attending the post mortem examination of the victims' bodies, the public prosecutor briefly inspected the scene of the killings and ordered Salih Kaygusuz to draw a sketch map of the scene of the killings and to collect the empty cartridges lying there. Without having been numbered and without having recorded the exact location of each cartridge, the nine empty cartridges found were put together in a bag and handed to the public prosecutor. No photographs of the scene of the killings were taken by or on behalf of the investigation team. 48.  The information recorded on the sketch map of the scene of the killings appeared to be incomplete. In contrast to a remark in the post mortem body examination report and the testimony of Dr. Sedat İşçi, the sketch map did not indicate a large blood stain on the spot where the body of Orhan Önen had been found. Furthermore, although both Salih Kaygusuz, who drew the sketch map, and Yekta Çobanoğlu were aware that the body of the applicant's mother had been moved, this fact had not been recorded on the sketch map. Although the Commission accepted that, at the time this sketch map was drawn, the members of the investigation team may have been unaware of the fact that the body of the applicant's father had also been moved from the outside of the house, the subsequent investigation could not have been assisted by the fact that the scope of the sketch map was confined to the inside of the house and did not contain any information about the immediate surroundings. 49.  The Commission noted that, according to the post mortem examination report, the applicant's brother, lying in bed, was hit by numerous bullets in his face, by one bullet in his chest and by another bullet in his knee. The Commission found this recorded observation difficult to reconcile with the fact that, according to the sketch map, only four empty cartridges were found in the room where Orhan Önen was shot and with the evidence that not a single bullet had been found in that room. Furthermore, although there was strong evidence suggesting that the applicant's father had been shot and killed outside the house, the sketch map only contained information on what had been found inside the house. Although this was denied by Salih Kaygusuz, the Commission could not exclude that more than the nine recorded empty cartridges were in fact found and collected, including empty cartridges found outside the house. 50.  After having conducted the examination of the bodies and released the victims' remains for burial, the investigation team left Karataş. Although the public prosecutor was aware that both the applicant and her sister were present in Karataş during the visit of the investigation team, neither the public prosecutor nor any other official took any statement's from them or any of the other inhabitants of Karataş on that day. 51.  As early as 17 March 1993 the public prosecutor suspected that the PKK was responsible for the killings and, in a telegram sent the same day, informed the office of the public prosecutor at the State Security Court in Diyarbakır accordingly. Although in his evidence to the Commission's Delegates, Yekta Çobanoğlu stressed that this had only been a provisional opinion, his respective requests dated 17 March 1993 to the Census Directorate in Mazıdağı to issue death certificates in respect of the applicant's parents and brother simply state that they “were murdered by fire-armed members of the outlawed PKK terrorist organisation” and, consequently, their deaths were officially recorded as having been caused by the PKK terrorist organisation. 52.  It was only on 1 April 1993 that the applicant and her sister Mekiye gave a statement about the events of 16 March 1993 to the commander of the Fosfat gendarme station Salih Kaygusuz. The applicant stated that she had heard her father call out the names of the intruders and she further gave a description of the intruders' physical appearance. Mekiye stated that she had heard her father call out only one name and did not give any description of the intruders' physical features. According to Salih Kaygusuz, this was the first time that he heard the allegation that Ali and Orhan Ertaş had committed the killings. 53.  In his testimony to the Delegates, Salih Kaygusuz had a firm recollection that he had also taken statements from Muhittin Araç, Tahir Önen and Mahmut Denli. In reply to the request of the Commission's Delegates to submit these statements, the Government stated by letter of 21 January 1999 that Salih Kaygusuz had not participated in the interrogation of these three persons. The Commission further noted that its case-file did not contain any statement given by any of these three persons at the Fosfat gendarme station. 54.  The Commission further found it established that Yekta Çobanoğlu, from the outset, had a rather firm conviction that PKK forces had committed the killings. Although he stressed that this had only been a provisional opinion inspired by views expressed by the gendarmes and his own experience, the Commission found no support for the asserted provisional nature of this suspicion. In fact, it appeared from the contents of his written communications of 17 March 1993 that he had firm ideas about the identity of the perpetrators. This element, taken together with his failure to try to talk to the applicant and her sister on 17 March 1993, resulted in a loss of time in the initial phase of the investigation. 55.  As regards the encounter on 5 April 1993 between the applicant and her sister and Ali and Orhan Ertaş in the Mazıdağı District gendarme station, the Commission found that it could not be excluded that this encounter was in fact the result of a coincidence since Yekta Çobanoğlu had not ordered a confrontation. It did not appear from the evidence that the applicant and her sister had been invited by the investigation authorities to identify the perpetrators either from a collection of photographs or at an identity parade. The Commission found that no photographs of Ali and Orhan Ertaş had ever been shown to the applicant and her sister and that at no point in time had a formal confrontation been ordered.
The Commission further noted from the evidence submitted that, apart from the statement taken from Orhan Ertaş at the Fosfat gendarme station on 5 April 1993, hardly any attempts were made or seriously pursued to obtain any further evidence from him. Nor did it seem that any attempt had been made to verify his alibi by, for instance, checking his whereabouts on 16 and 17 March 1993 by seeking confirmation from those persons present when he was allegedly loading goods in Mersin or from those to whom he had delivered these goods. It did not appear from the statement he gave at the Fosfat gendarme station that he was in fact asked to give the names of persons who had seen him on 16 and 17 March 1993.
As regards the alibi advanced by Ali Ertaş, the Commission noted that his presence on Kırmızıtepe hill at the time of the killings was in fact only supported by the statements of Mecit Kaya and Mahmut Denli, whereas the latter had stated to the Commission's Delegates that he had not in fact been in the presence of Ali Ertaş at the time of the killings, but had only seen him shortly afterwards. Given the evidence that there were, in total, 65 village guards in Balpınar who were organised in teams of 12-14 persons, the Commission found it remarkable that, apart from Mecit Kaya, no evidence was taken from the other village guards who were on duty in the same team as Ali Ertaş at the relevant time in order to verify the respective positions of each team member on Kırmızıtepe hill that evening. 56.  After having received the case-file, Tanju Güvendiren, the public prosecutor at the State Security Court noted that the investigation had been incomplete. In order to complete the investigation, he issued a number of instructions to the Mazıdağı District gendarme station by letter of 13 September 1993 including that comparison cartridges be taken from the weapons held by the village guards from Karataş. On 19 October 1993 the Commander of the Mazıdağı District gendarme station transmitted 65 weapon delivery receipts and 65 empty cartridges taken from the Balpınar village guards to the office of the public prosecutor at the State Security Court. This letter contained no information as to when and in which manner these cartridges were obtained.
Although Tanju Güvendiren considered that there was no concrete evidence in support of the accusations made against Ali and Orhan Ertaş and was convinced that the PKK was responsible for the killings, he nevertheless brought proceedings against Ali and Orhan Ertaş on charges of politically motivated murder and indicted them on 6 January 1994 before the State Security Court, which had jurisdiction to determine murder charges linked to terrorism. He did not find it necessary to take any further statements or to order the arrest or pre-trial detention of the accused. In his opinion, it was excluded that the security forces would cover up a crime committed by village guards.
In the subsequent proceedings before it, the State Security Court in Diyarbakır requested, inter alia, that statements be taken from Ali and Orhan Ertaş, from the applicant and her sister Mekiye, and from Mecit Kaya and Mahmut Denli. They were all summoned to appear on 6 May 1994 before a judge of the Mazıdağı Court of First Instance in order to give statements, but only Ali Ertaş, Mecit Kaya and Mahmut Denli in fact did so. As the whereabouts of Orhan Ertaş, the applicant and her sister were not established, their summonses were returned to the State Security Court and, consequently, no further statements were taken from them.
The Commission noted that, although the gendarmes and the State Security Court were informed that the applicant and her sister were residing in the Cezaevi neighbourhood in Diyarbakır, it did not appear that any attempts were made or ordered to locate them. Nor did it seem that any further attempts were made or ordered to find Orhan Ertaş. The Commission noted that the Muhtar of Karataş, Muhittin Araç, testified that he had been aware of the exact address of the applicant and her sister in Diyarbakır, but that he had never been asked to provide the local gendarmes with this address. He explained his signature on a document dated 4 May 1994 by stating that it had been normal practice in the area for gendarmes to require Muhtars to sign blank documents for future use. No further clarification on this point could be obtained from Salih Kaygusuz, as he had left the Fosfat gendarme station in August 1993. In these circumstances, it was impossible for the Commission to make any findings in this respect. What was clear, however, was that the State Security Court was informed that the applicant and her sister were residing at that time in the Cezaevi neighbourhood of Diyarbakır. In this connection, the Commission had also regard to the evidence of the applicant's brother that, since their departure from Karataş and to date, the Önen family had always lived at the same address in Diyarbakır. 57.  The Commission accepted that the supplementary investigation measures ordered by the public prosecutor at the State Security Court, Tanju Güvendiren, in order to mend certain deficiencies in the preliminary investigation, were appropriate, although it was open to doubt whether, given the passage of time since the killings, these measures were as effective as they might have been in the initial phase of the proceedings. Moreover, he testified that he was convinced at the outset that the PKK was responsible for the killings, which might explain why he decided to indict Ali and Orhan Ertaş before the State Security Court, rather than referring the case to a court competent to try common crimes. This was supported by the fact that, apart from Ali Ertaş, none of the other vital witnesses gave evidence to the State Security Court.


5.  The applicant was born in 1951 and lives in Moscow. 6.  At the material time the applicant held the position of Head of the Department of Justice of the Sakhalin Region (начальник Управления юстиции Сахалинской области). 7.  On an unspecified date an external audit commenced in the said Department and embezzlement of budgetary assets was subsequently established. 8.  On 25 February 2000 criminal proceedings were instituted in this connection. 9.  On 28 February 2000 at 8 a.m. the applicant retained a lawyer. 10.  On 28 February 2000 at 8:30 a.m. the applicant was arrested and placed in custody. Being questioned as a suspect in the case, the applicant availed herself of the right to remain silent and applied for release on bail or subject to personal surety. 11.  On 29 February 2000 the investigator in charge refused to release the applicant, stating that, according to Article 101 of the Code of Criminal Procedure, “a measure of restraint could only be changed in the circumstances when it was no longer needed” and that “there were no such circumstances” in the applicant's case. 12.  On the same date the applicant resigned from her position. 13.  On 1 March 2000 the investigator in charge remanded the applicant in custody. The order, which was approved by a deputy prosecutor of the Sakhalin Region, referred to the danger of the applicant's absconding, the risk of her obstructing the establishment of the truth and influencing the witnesses who had been her subordinates, and to the gravity of the charges against her. 14.  The applicant's request to release her subject to the imposition of another measure of restraint was examined and refused by the investigator on 2 March 2000. 15.  On 6 March 2000 the applicant's lawyer appealed to the court against the applicant's pre-trial detention. 16.  The application was examined by judge A. of the Yuzhno-Sakhalinsk Town Court (“the Town Court”) on 10 March 2000. At the hearing the applicant and her counsel reiterated their request for the applicant's release in view of her poor health, the fact that she had family commitments and a good reference from her former place of work. The judge confirmed the lawfulness of the applicant's remand in custody, having based this decision on “the evidence in the applicant's case file, proving that she might abscond or influence the witnesses if released”. 17.  According to the applicant, the evidence referred to by Judge A. was a transcript of an audio tape recording of telephone conversations of another suspect, K. During one such conversation K. stated that “on Monday Nina Ivanovna will leave forever”. 18.  On 12 April 2000 the Sakhalin Regional Court (“the Regional Court”) upheld the decision of 10 March 2000 on appeal. 19.  Meanwhile, on 7 March 2000, formal charges of embezzlement and abuse of power had been brought against the applicant. Since the applicant's counsel was unable to attend the police station that day, the investigating authorities appointed another lawyer to assist her. However, in the absence of her counsel, the applicant refused to read and sign the decision to charge her. 20.  On 15 March 2000 the applicant's lawyer challenged the decision of 7 March 2000 before the court, claiming that the applicant's right to defence had been violated. He also requested the court to release the applicant pending trial. 21.  On 4 April 2000 judge A. of the Town Court disallowed the above complaint, having noted that the allegations advanced by the applicant's representative had already been examined and rejected by the courts during the first judicial review of the applicant's detention. 22.  On 3 May 2000 the Regional Court set aside the above decision and discontinued the proceedings in respect of the complaint of 15 March 2000. The court noted, inter alia, that the applicant was entitled to appeal against the alleged infringement of her right to defence at the trial stage. 23.  On 19 April 2000 the regional prosecutor extended the applicant's detention until 25 June 2000 on the ground that she might flee the trial or put pressure on witnesses while at liberty. 24.  On 17 May 2000 the applicant challenged this order before the court, and requested to be released. She maintained, in particular, that she could not hinder the investigation or influence the witnesses, since the audit had terminated on 13 April 2000. The applicant also referred to poor conditions of her detention and deterioration of her health. 25.  On 25 May 2000 judge A. of the Town Court dismissed the applicant's complaint as unfounded, with reference to the gravity of the charges, “the applicant's personality” and “the evidence in the applicant's case file, proving that she might abscond or influence the witnesses if released”. The judge also noted that the investigating authorities had produced a medical report stating that the applicant had no need of medical treatment. 26.  In her appeal against the decision of 25 May 2000 the applicant stated, inter alia, that Judge A. should have been disqualified from reviewing her detention, as this judge had already considered and rejected her applications for release on two previous occasions. 27.  On 25 June 2000 the Regional Court upheld the decision of 25 May 2000. With respect to the applicant's argument concerning Judge A., the court noted that the domestic law entitled a judge to examine a repeated complaint about the lawfulness of detention. 28.  On 30 May 2000 a deputy prosecutor of the Sakhalin Region refused the applicant's request for release. 29.  On 2 June 2000 the applicant was charged with a number of additional counts relating to embezzlement, abuse of power and forgery. 30.  On 13 June 2000 the preliminary investigation was terminated and the applicant and her lawyer began studying the case file. 31.  On 21 June 2000 the regional prosecutor ordered the extension of the applicant's detention until 10 August 2000. 32.  The applicant appealed against the prosecutor's decision, claiming that she was unable to obstruct the establishment of the truth or influence the witnesses, since the investigation had already terminated. She also referred to her poor state of health. 33.  On 24 July 2000 judge B. of the Town Court dismissed the applicant's complaint, holding that her detention was “in accordance with law” and necessary in view of the seriousness of the charges and the applicant's personality. The judge also took note of medical certificates produced by the applicant's lawyer as well as the aforementioned medical report adduced by the investigating body, and found the applicant's allegations that she was in poor health unsubstantiated. 34.  On 13 September 2000 the Regional Court upheld the above decision on appeal. The court noted that the applicant was charged with a serious criminal offence and its severity alone could, according to Article 96-2 of the Code of Criminal Procedure, permit her continued detention. 35.  On 8 August 2000 the applicant's counsel lodged a complaint against the investigator in charge, requesting the court to order the applicant's inpatient examination by an independent medical authority. 36.  On 15 August 2000 Judge B. of the Town Court declined jurisdiction to examine the complaint, stating that it fell within the competence of the prosecutor. This decision was upheld on appeal by the Regional Court on 25 October 2000. 37.  In the meantime, on 7 August 2000, the regional prosecutor extended the period of the applicant's remand in custody until 25 August 2000. 38.  On 15 August 2000 the applicant appealed to the court against the prosecutor's order. Her complaint was assigned to Judge A. of the Town Court. 39.  The applicant sought the withdrawal of the judge. On 18 August 2000 Judge A. dismissed the challenge. 40.  At the hearing on 21 August 2000 the applicant and her defence counsel claimed that the preliminary investigation had been completed, that the applicant had finished studying her case file, and that therefore the investigating authorities had no reasons to believe that the applicant might flee or obstruct the establishment of the truth if at large. Moreover, the applicant posed no danger to the public and suffered from various health problems, which required proper medical treatment. 41.  Having heard the parties, Judge A. found that the applicant should remain in custody, on account of the gravity of the charges and the risk of her absconding. The judge further rejected the applicant's complaints about her health as groundless. This decision was upheld on appeal by the Regional Court on 13 September 2000. 42.  On 23 August 2000 the investigator refused to release the applicant, making a general reference to the absence of any circumstances proving that her detention was no longer needed. 43.  On 25 August 2000 the applicant's case was forwarded to the Town Court for examination. 44.  On 4 September 2000 Judge K. of the Town Court remitted the case for a further investigation and stated that the applicant should remain in custody in view of the seriousness of the charges. 45.  The applicant appealed against the above decision in so far as it concerned her detention. 46.  On 25 October 2000 the Regional Court dismissed the appeal. 47.  Meanwhile, on 22 August 2000 the deputy Prosecutor General had authorised the applicant's detention until 25 October 2000. This order was served on the applicant on 15 September 2000. 48.  On 17 September 2000 the applicant challenged the extension of her custody period before the Town Court, complaining, in particular, that she had not been notified of the order of 22 August 2000 in time. 49.  At the hearing on 25 September 2000 the applicant also referred to the poor state of her health and the absence of any risk that she might abscond or hinder the investigation, which was at an end. Her arguments were examined and rejected as unfounded. Having acknowledged the fact that the order of 22 August 2000 had not been served on the applicant in due time, the court held that this fact did not affect the legal force of the extension order or the lawfulness of the applicant's detention. It therefore ordered the applicant's continued detention, with reference to the gravity of the charges against her. On 25 October 2000 the Regional Court upheld the first-instance decision. 50.  On 16 October 2000 the applicant requested the investigator to release her. 51.  On 17 October 2000 the investigator informed the applicant that there were no reasons to release her. 52.  On 20 October 2000 the case was again transferred to the Town Court for examination on the merits. 53.  On 4 November 2000 Judge K. of the Town Court scheduled a hearing in the applicant's case and held that “in view of the gravity of the charges [against the applicant] the measure of restraint applied to her should remain unchanged”. The decision did not specify the time-limit for the applicant's detention, nor did it refer to any other matters regarding the lawfulness of her detention. 54.  On 17 November 2000 the applicant appealed against the above decision in so far as it related to her detention. She claimed that between 25 October 2000, when the period of her remand in custody had expired, and 4 November 2000 her detention had had no basis in domestic law. She further complained that the court had ignored her submissions about the state of her health. 55.  On 13 December 2000 the Regional Court dismissed the applicant's appeal, finding that her detention was lawful. The court stated that the applicant had been charged with serious crimes, and could be detained on the sole ground of the dangerousness of those offences. With regard to the applicant's argument concerning her detention between 25 October 2000 and 4 November 2000, the court noted that the applicant's case file, including the indictment, had been transmitted to court on 20 October 2000, before the period of her remand in custody had expired. Accordingly, in the court's opinion, the statutory provisions governing the time-limit for detention during the preliminary investigation had been complied with in respect of the applicant. The court further stated that, upon referral of the case to court, the first instance had taken its decision in due time, as prescribed by Article 223-1 of the Code of Criminal Procedure. 56.  The applicant's further requests for release were rejected by the Town Court on 22 and 29 December 2000 and 9 January 2001 with a reference to the absence of any “new grounds for altering [the applicant's] measure of restraint”. 57.  On 6 February 2001 the Yuzhno-Sakhalinsk Town Court, composed of Judge K. and two lay assessors, convicted the applicant, along with another co-accused, of embezzlement, forgery and abuse of power, and sentenced her to six years and six months' imprisonment and confiscation of her property. 58.  On 23 May 2001 the Sakhalin Regional Court upheld the sentence, having lifted the charges against the applicant on three counts with reference to a limitation period. 59.  Thereafter the applicant applied unsuccessfully for a supervisory review. 60.  On 30 September 2002 the applicant was released on parole. 1.  Detention in the temporary holding facility of the Yuzhno-Sakhalinsk Department of the Interior
(a)  The applicant's submission on the facts 61.  According to the applicant, from 28 February until 29 March 2000 she was kept in the temporary holding facility of the Yuzhno-Sakhalinsk Department of the Interior (изолятор временного содержания управления внутренних дел г. Южно-Сахалинска, “the IVS”). In support of that submission, the applicant enclosed the authorities' letters dated 10 and 22 March 2000 respectively sent to her at the address of the IVS. 62.  The applicant corroborated her account below with a written statement from one her former inmates. 63.  The IVS was situated in the basement of the premises of the Department of the Interior. Following her arrest the applicant was placed in a cell measuring approximately 3 x 2.5 metres which was 2.5 metres high. There were no windows in the cell, with the result that there was no natural light, nor any fresh air. The inside temperature did not exceed 12oC. There was an iron sink and a cold-water tap, but the water pressure was very low. There was no toilet bowl or any other installation in the cell, and the applicant had to use the sink for her needs. The cell was overrun with mice, rats, lice, cockroaches and fungus. 64.  The applicant was not allowed to take any toiletries or a change of clothes with her. She was not provided with any bedding and had to sleep on a plain wooden plank bed. During the first two days of her detention the applicant was not given any food or drinking water. 65.  On 29 February 2000, in the evening, the applicant was transferred to another cell which accommodated four other inmates. The conditions in that cell were similar to those described above. It had no windows and was lit by a single 40-watt bulb. All the inmates except the applicant were smokers but the cell was ventilated only once a week when the detainees were taken to shower. 66.  There was a big aluminium tank with a capacity of 80-100 litres in the cell. The tank, which had no cover, was used by the cellmates as a toilet. They stretched a piece of cloth over the top to try to reduce the smell. Every evening the cellmates took the tank out of the cell to the common toilet and washed it in turn using a hose with cold water. The tank was never disinfected. 67.  The applicant was not provided with any bedding until a fortnight later, when she received it from her family, and slept on a wooden plank bed. The detainees were taken to shower no more than once a week; they were not given soap or any other toiletries or a change of clean underwear. During the entire period of her detention in the IVS the applicant did not have even one opportunity for exercise, due to the absence of the necessary facilities. 68.  The applicant was allowed to receive food from her relatives, but, in her submission, she was hardly able to eat given that she had gastrointestinal problems and because of the poor sanitary conditions in the cell. The applicant, who suffered from heart, gastrointestinal and gynaecological conditions, was prohibited from receiving any medicines which she had been taking prior to her detention from her family with the result that her state of health deteriorated. Between 23 and 26 March 2000, following the applicant's complaints about aggravation of osteochondrosis, the IVS authorities called an ambulance and the applicant was given pain-relieving injections. 69.  On 7 March 2000 the applicant's representative applied to the regional prosecutor's office, requesting the applicant's transfer into a separate cell. 70.  In a letter of 13 March 2000 the regional prosecutor instructed the head of the Regional Department of the Interior to grant this request.
(b)  The Government's submission on the facts 71.  In their additional observations of 7 September 2007 the Government stated that throughout the entire period of her detention the applicant was held in remand centre IZ-62/1. They therefore provided no information relating to the applicant's alleged detention in the IVS. 72.  The exact period during which the applicant was held in remand centre IZ-62/1 (subsequently IZ-65/1) in Yuzhno-Sakhalinsk (СИЗО- 62/1 – “the IZ-62/1”) and the conditions of her detention there are disputed by the parties. 73.  According to the applicant, on 29 March 2000 she was transferred to the IZ-62/1, in which she remained until 30 September 2002. The applicant corroborated her account of the conditions in the remand centre with written statements by two of her former cellmates, dated 28 February 2001 and 7 December 2007. 74.  In their observations of 15 December 2004 the Government indicated that the applicant was detained in the IZ-62/1 from 29 March 2000 until 29 September 2002. In their additional observations of 7 September 2007 the Government submitted that in the periods from 28 February until 29 March 2000 and from 29 March 2000 until 30 September 2002 the applicant was held in the IZ-62/1. 75.  In their original observations, the Government based the account concerning the applicant's conditions of detention on a number of certificates issued by the head of the IZ-62/1 on 3 November 2004. In their additional observations, in reply to the Court's request that the description of the conditions of the applicant's detention be corroborated with documentary evidence pertaining to the period when she had been detained in the IZ-62/1, the Government submitted a number of certificates issued by the head of the remand centre on 21 August 2007, written explanations given on 17 August 2007 by several warders who had served in the IZ-62/1 at the relevant time, a copy of the applicant's medical file, and photographs of the cells which had accommodated the applicant. The certificates either describe the present-day conditions in the cells in which the applicant was kept or report on various aspects of the applicant's detention at the relevant period. The warders' written statements concern the conditions of the applicant's detention at the relevant period. The medical file is the only document issued during the applicant's detention. It reflects the applicant's medical history in the IZ-62/1.
(a)  General conditions 76.  According to the applicant, between 29 March and early May 2000 she was held in cell no. 53, then she was transferred to cell no. 47 in which she spent three months, in early August 2000 she was placed in cell no. 020 where she remained until the middle of October 2000, then she spent a month and a half in cell no. 49, and from later November 2000 until 30 September 2002 she was kept in cell no. 54. The Government disputed this submission. One of the certificates of 21 August 2007 submitted by them states that from 29 March until 29 May 2000 the applicant was held in cell no. 49, from 29 May until 29 June 2000 she was kept in cell no. 020, and from this latter date until 30 September 2002 she was kept in cell no. 54. 77.  In the applicant's submission, cell no. 53 measured approximately 24 square metres and was 3 metres high. It was designed for ten detainees. The applicant shared this cell with five inmates. Cell no. 47 also measured approximately 24 square metres and was designed for ten detainees. It held nine inmates. The applicant shared cell no. 020 measuring about 8 square metres and designed for four detainees with another cellmate. Cell no. 49 measured 20 square metres and was designed for ten inmates. It accommodated the applicant and one more detainee. The applicant shared cell no. 54 measuring 14 square metres with another detainee. 78.  According to the Government, cell no. 49 measures between 24.6 square metres, as indicated in a certificate of 3 November 2004, and 26 square metres, as indicated in a certificate of 21 August 2007. The cell is intended for seven detainees, whereas the applicant shared this cell with five cellmates. Cell no. 020 measures 8 square metres and is designed for two detainees. In the Government's submission, the applicant was held there alone. Cell no. 54 measures between 14 square metres, according to a certificate of 3 November 2004, and 15.1 square metres, as stated in a certificate of 21 August 2007. The applicant shared this cell, which could accommodate up to four detainees, with another cellmate. 79.  According to the applicant, in each cell where she was kept there was a single window. In cell no. 53 the window measuring approximately 1 x 1.4 metres was partly covered with glass and partly with plywood and always remained shut, therefore there was no natural ventilation. In cells nos. 47, 020 and 49 the windows were not glazed, whereas in cell no. 54 the window, also measuring 1 x 1.4 metres, was only partly glazed. The applicant submitted in respect of her detention in cell no. 49 that the prison authorities had repeatedly refused to accept glass for the window from her husband and had not glazed the window before the middle of November 2000 following numerous complaints by the applicant to the regional prosecutor's office. In the applicant's submission, the windows in each cell were covered with metal grilles supplemented with “eyelashes”, which are metal strips covering the grille. From the outside the windows were covered with wooden shields, and therefore only refracted daylight could reach inside. Each cell was only illuminated with a single 60-watt bulb. 80.  The Government submitted that during the entire period of the applicant's detention the windows in all the cells had been glazed and had never been covered with plywood. The size of the windows – 1.4 x 1 metres in cells nos. 49 and 54, and 0.8 x 0.8 metres in cell no. 020 – was sufficient to let in enough daylight to enable detainees to read. Each window had a vent which ensured proper natural ventilation of the cells. According to the Government, the shutters had been removed from the windows in the period from January to March 2003. As regards artificial light, the Government submitted that each cell was illuminated with a bulb of 75- up to100-watt in the day and with a 25-watt bulb in the night. 81.  According to the applicant, she was the only non-smoker in the cells where all the other detainees smoked. There was no mechanical ventilation in any of the cells. The cells were damp, with concrete floors. In the winter the temperature in the cells did not exceed 12oC whilst in the summer it was stiflingly hot inside and the temperature reached 24-26oC. In the Government's submission, each cell was equipped with mechanical ventilation and the average temperature was maintained at the level of 20‑22oC with a humidity level of 55.3 per cent. They relied on a report reflecting the results of measurement on 17 August 2007 of temperature and humidity level in cells nos. 49, 020 and 54 of the IZ-65/1. The report was drawn up by a regional authority for hygiene and epidemiology and indicated that the temperature in the cells ranged between 23.5 and 23.9oC with the humidity level ranging between 54.4 and 58.4 per cent. The Government accepted that at least for some time the applicant had had to share a cell with smokers, but insisted that she had not endured severe suffering in this connection, given that a cell had been 3 metres high and had had natural and mechanical ventilation. They also submitted that on 29 May 2000, at the applicant's request, she had been transferred to cell no. 020, where she was held alone, and a month later she was transferred to cell no. 54, which she shared with a non-smoker. 82.  It was not in dispute between the parties that each cell was equipped with a sink and a lavatory pan, that cold running water was available around the clock and that the detainees were also regularly provided with drinking water. The Government also submitted that detainees were provided daily with hot water for hygienic purposes. As regards the toilet, the applicant submitted that it had had no flush system and the inmates washed it with water from a bucket. The Government stated that the toilet in cells nos. 49, 020 and 54 had a flush system which filled with water run from a tap. The applicant also submitted that during the period of her detention in cell no. 54 the toilet was not disinfected even once. 83.  According to the applicant, the lavatory pan was separated by a partition from the sink but not from the living area and dining table. The detainees' attempts to separate the toilet from them with curtains made of sheets were suppressed by the prison authorities. In the Government's submission, the sanitary installations were separated from the living area with a partition which was one metre high and offered privacy. The photographs show that the lavatory pan is separated from the living area by a thick partition and that in cells nos. 49 and 54 there is also a curtain in front of the pan. 84.  According to the applicant, the cells were overrun with cockroaches, mice and rats. The Government stated that all the cells were disinfected twice a month during the summer period and once a month in the winter. 85.  The parties did not dispute the fact that throughout the period of the applicant's detention in the IZ-62/1 she had had a personal sleeping place. According to the applicant, she was provided with a mattress, although it was of poor quality, and was allowed to take her own warm blanket, pillow and bed linen. The Government insisted that the prison authorities had provided the applicant with bedding, including a mattress, a pillow, a semi-woollen blanket, three sheets, two pillowcases and a towel, and that she had signed for these in a register of provision of detainees with bedding. They did not submit the document relied on. A certificate of 21 August 2007 indicates that the relevant documentation cannot be provided, since the time-limit for its storage does not exceed five years. According to the Government, the bed linen was changed weekly. 86.  The parties further agreed that the applicant was allowed to take a shower once a week for 30 minutes. The applicant alleged, however, that she had to wash herself, along with ten to fifteen other detainees, using wash-basins in a room measuring 4 x 4 metres which adjoined another room measuring 2 x 2 metres. The latter room was equipped with two showers. According to her, the cellmates were provided with 50 grams of soap per week. 87.  According to the applicant, the detainees were allowed exercise less than once a day for a period of thirty to sixty minutes. During the period of her detention in cell no. 53 she was taken for outdoor exercise on two or three occasions into a courtyard measuring approximately 2.5 x 2.5 metres. At the same time seven to ten detainees were walking in the courtyard. Each walk lasted about thirty minutes. The Government insisted that the applicant was allowed to take a walk every day for two hours during daylight hours. 88.  In the applicant's submission, the scarce meals were of poor quality, but the prison authorities only allowed her to receive bread and flour products, sugar and tea from her family. She was not allowed to receive any dairy products, fish, meat or juices, which, according to the applicant, she needed in view of her gastrointestinal problems, or any other products such as jam or honey. According to the Government, the applicant, like all the other detainees, was provided with meals three times a day and received a well-balanced menu. In particular, she received daily 100 grams of cereals, 20 grams of noodles, 100 grams of meat, 100 grams of fish, 10 grams of fats, 15 grams of seed-oil, 30 grams of sugar, 500 grams of potatoes, 250 grams of vegetables and 550 grams of bread. A certificate of 21 August 2007 states that the relevant documentation cannot be provided, as it had been destroyed.
(b)  Medical assistance
i.  The parties' submission on the facts 89.  According to the applicant, before her placement in custody she had been suffering from heart, gastrointestinal and gynaecological conditions. In support of her submissions, she relied on medical documents confirming that she had undergone treatment in respect of those conditions in the 1990s. In particular, a certificate issued in March 2000 states that in November-December 1999 the applicant was diagnosed with hypertension and ischaemic heart disease and a certificate of 20 December 2000 confirms that the applicant had her gall bladder removed in 1991. There is also a certificate stating that the applicant was diagnosed with hysteromyoma. 90.  The applicant further submitted that her health had deteriorated during her detention. In particular, she started suffering from gastritis, conjunctivitis, myopia and contracted a facial dermatological disease, demodicosis. The applicant adduced a copy of an extract from her medical file dated 18 April 2005 and medical documents of 26 February and 22 June 2006 confirming the presence of those diseases. In the applicant's submission, when in custody she repeatedly complained to the authorities about her poor state of health and requested an independent medical examination. She submitted copies of her written requests to various authorities. 91.  In particular, on 6 April 2000 the applicant requested the head of the IZ-62/1 that she receive an independent medical examination. 92.  On 24 April 2000 the applicant complained to the regional prosecutor that the medical examinations carried out in the IZ-62/1 were inadequate, that her medicines had been taken away and that the authorities had failed to have her independent medical examination carried out. She also complained that she had to share a cell with nine other detainees, all of them smokers, and that although the cells were severely infested with cockroaches the prison authorities made no attempts to exterminate them. 93.  In a letter of 10 May 2000 the regional prosecutor's office informed the applicant about regulations which provided that medicine prescribed to suspects should be kept by a duty officer and taken by patients in the presence of that officer. In respect of the applicant's request to order an independent medical examination, the letter stated that there was no such obligation on the authorities. Lastly, the applicant was invited to address her complaints concerning sanitary conditions in the cell to the administration of the IZ-62/1 or to the administration of the Department for Execution of Punishments. 94.  In her complaint of 17 May 2000 concerning the extension of her pre-trial detention (see paragraph 24 above) the applicant referred, inter alia, to poor conditions of her detention, stating that she was being kept in a poorly lit cell with smokers, that her sight had deteriorated, that her medicines had been seized and that she had not received adequate medical treatment and had been refused an independent medical examination. 95.  On 22 May 2000 the applicant sent another complaint to the regional prosecutor, in which she again mentioned the authorities' failure to have her independent medical examination carried out and complained of deterioration of her sight, high blood pressure and aggravation of her health problems. 96.  In May-July 2000 the applicant suffered from an inflammatory condition on her face which, according to her, proved to be demodicosis. In her submission, the treatment she received from prison doctors was ineffective. On 13 and 14 June 2000 the applicant sent complaints to the head of the regional Department for Execution of Punishments and the regional prosecutor in which she informed them that she was in need of urgent professional medical treatment for her acute facial condition, which could not be administered to her in the remand centre, and requested that she either be examined by specialists in connection with that condition, or admitted to a hospital for inpatient treatment. 97.  On 3 August 2000 the applicant complained in writing to the head of the IZ-62/1 that there was no adequate medical assistance in connection with her heart condition and that medicines for injection and syringes which had been delivered by her family members had been taken away. She also mentioned that the cell in which she was being held was never ventilated. 98.  On 2 November 2000 the applicant, with reference to her heart, gastrointestinal and gynaecological problems and the deterioration of her health in detention, requested the Yuzhno-Sakhalinsk Town Court to order an independent medical examination. On 12 November 2000 the applicant forwarded a similar request to the head of the IZ-62/1. 99.  On 17 November 2000 the head of the IZ-62/1 sent a written request to the Town Court to allow an independent medical examination of the applicant. 100.  According to the applicant, despite numerous requests, she had no proper medical treatment and her medicines were taken from her by the prison authorities. In the spring 2001 the prison authorities accepted from the applicant's relatives medicines for treatment of heart diseases and disposable syringes. However, according to the applicant, she was not administered any injection until the autumn of 2001 after her numerous complaints to the authorities. In the Government's submission, all the medicines received by the prison authorities from the applicant's relatives were delivered to the applicant, except for medicines for injection and syringes.
ii.  Information from the applicant's medical file 101.  A copy of the applicant's medical file made during her detention in the IZ-62/1 submitted by the Government reveals the following. 102.  On 29 March 2000, on the applicant's arrival at the remand centre, she underwent a medical examination which established that she was fit. During the examination the applicant stated that her gall bladder had been extracted and complained of pain in the small of her back. She made no other complaints. 103.  On 31 March 2000 a duty paramedic attended the applicant in the cell, at her request. The officer took the applicant's blood pressure. 104.  On 7 April 2000, upon the applicant's complaint of slight headaches and some bleeding from the ears, she was examined by a general practitioner and diagnosed with vegetative-vascular dystonia. The applicant was prescribed and administered medication. 105.  On 12 April 2000 the applicant was received by the head of the IZ‑62/1 medical office in connection with her complaint that her medicines had been taken away. Some of the medicines were returned to her. The head of the medical office also took the applicant's blood pressure. 106.  On 19 April 2000 the applicant was examined by a medical commission of the Central Hospital of the Department for Execution of Punishments, including a general practitioner and a surgeon. She complained of pain in the right pre-costal area and constipation. The applicant was diagnosed with biliary dyskinesia and prescribed pain-relieving medicines. Her general state of health was found to be satisfactory. 107.  On 24 April 2000 the applicant's blood pressure was measured. 108.  On 12 May 2000 the applicant refused to undergo a gynaecological examination by a gynaecologist from the city maternity and gynaecology hospital, stating that the person assigned to carry it out was incompetent. She insisted on an independent gynaecological examination as well as examinations by a dermatologist and an ophthalmologist. 109.  On the same date the applicant was examined by the head of the ophthalmological department of the regional hospital, diagnosed with slight myopia and prescribed glasses. 110.  On 16 May 2000 the applicant was examined by a duty paramedic in connection with the inflammation of her face. She was diagnosed with allergic dermatitis and prescribed antihistamine pills and ointment. 111.  The next day the applicant was examined by a psychiatrist in connection with her complaints of insomnia and itching and eruptions on her face. The doctor concluded that she was “almost fit”. 112.  On 22 May 2000 the applicant was examined by a duty paramedic in connection with her complaints of nausea, weakness and shooting pains in the heart area. She was diagnosed with presumed cardio neurosis and prescribed relevant treatment. 113.  On 26 May 2000, upon the applicant's complaint to the effect that she was unable to take part in a court hearing scheduled for that day because of her poor physical condition, she was examined by a general practitioner who concluded that she was fit. 114.  On 28 May 2000 the applicant was examined by a dermatologist in connection with her complaint of eruptions on her face. She was diagnosed with allergic dermatitis and prescribed antihistamines, vitamins and ointments. 115.  On 29 May 2000 the applicant was examined by a general practitioner who diagnosed her with presumed osteochondrosis and premenopausal syndrome and prescribed relevant treatment. 116.  On 5 June 2000 the applicant was examined by the head of the IZ‑62/1 medical office, who concluded that her dermatological condition was satisfactory. 117.  The next day the applicant was examined by a dermatologist who also confirmed that she was fit. 118.  On 21 June 2000 the applicant had a conversation with the head of the IZ-62/1 medical office as regards the administration of medicines for treatment of heart disease received from the applicant's family members. The applicant was invited to undergo an electrocardiographic monitoring necessary prior to the administration of that medicine, but she refused the monitoring, stating that the device was outdated. 119.  On 22 June 2000 the applicant was attended and examined by the head of the Tselitel medical centre, who concluded that the applicant was suffering from premenopausal syndrome and suggested that she undergo treatment with hormonal medicines. 120.  On 12 July 2000 the applicant was examined by a general practitioner, who diagnosed her with influenza and administered relevant treatment. 121.  On 9 August 2000 the applicant was examined by a general practitioner, who found that she had post-cholecystectomy syndrome. She was prescribed relevant treatment. 122.  On 30 August 2000 the applicant was examined by a duty paramedic as she stated that she had been on hunger strike since 25 August 2000. The paramedic weighed the applicant and took her blood pressure. Her physical condition was found to be satisfactory. 123.  On 13 October 2000 a general practitioner examined the applicant, took her blood pressure and, at the applicant's request, prescribed her the medicines which had been delivered by her family members. 124.  On 26 October 2000 the applicant was examined by a general practitioner and diagnosed with influenza. Relevant treatment was prescribed. 125.  On 14 November 2000 the applicant was examined by a duty paramedic in connection with her complaint of headaches and weakness. The paramedic found that she had vegetative-vascular dystonia and recommended relevant treatment. 126.  On 28 December 2000 a general practitioner diagnosed the applicant with acute laryngotracheitis and prescribed relevant treatment. 127.  On 18 January 2001 the applicant was attended and treated by a general practitioner in connection with pharyngitis and vegetative-vascular dystonia. 128.  On 8 February 2001 the applicant was examined by a general practitioner, diagnosed with acute tracheobronchitis and prescribed relevant treatment. 129.  On 13 February 2001 the applicant was attended and treated by a general practitioner in connection with protracted tracheitis. On 15 February 2001 the general practitioner again examined the applicant and recommended that the treatment be continued. 130.  On 6 March 2002 the applicant was examined by a general practitioner and diagnosed with follicular tonsillitis. Relevant treatment was prescribed. On 10 March 2002 she was attended by a duty paramedic who recommended that she continue with the treatment. 131.  During the period of her detention in remand centre IZ-62/1 the applicant underwent fluorography examinations on six occasions; the examination disclosed no pathologies. 132.  On 3 March 2000 the investigator in charge ordered the seizure of the applicant's flat pending trial. 133.  On 16 March 2000 a deputy regional prosecutor rejected the applicant's complaint against the investigator's order. 134.  On 28 July 2000 the applicant applied to a court, stating that the flat in question was the only housing for her family and therefore was immune from seizure. 135.  On 8 August 2000 the Yuzhno-Sakhalinsk Town Court found in the applicant's favour and lifted the seizure. 136.  On 3 October 2000, on an appeal by the regional prosecutor, the Sakhalin Regional Court quashed the above judgment and remitted the case to the first-instance court. 137.  It appears that, following the applicant's conviction, on 11 March 2002, the Town Court lifted the seizure of the applicant's flat in a separate set of proceedings. The court noted that this apartment was the permanent place of residence for the applicant's family and was not subject to confiscation. 138.  On 12 March 2002 the Town Court discontinued the proceedings on the applicant's action of 28 July 2000, since she had waived her claims.