10.  The first applicant, Refah Partisi (the Welfare Party – “Refah”), was a political party founded on 19 July 1983. It was represented by its chairman, Mr Necmettin Erbakan, who is also the second applicant. He was born in 1926 and lives in Ankara. An engineer by training, he is a politician. At the material time he was a member of Parliament and Refah’s chairman.
The third applicant, Mr Şevket Kazan, who was born in 1933, lives in Ankara. He is a politician and a lawyer. At the material time he was a member of Parliament and a vice-chairman of Refah. The fourth applicant, Mr Ahmet Tekdal, who was born in 1931, lives in Ankara. He is a politician and a lawyer. At the material time he was a member of Parliament and a vice-chairman of Refah. 11.  Refah took part in a number of general and local elections. In the local elections in March 1989 Refah obtained about 10% of the votes and its candidates were elected mayor in a number of towns, including five large cities. In the general election of 1991 it obtained 16.88% of the votes. The sixty-two MPs elected as a result took part between 1991 and 1995 in the work of Parliament and its various committees, including the Committee on Constitutional Questions, which proposed amendments to Article 69 of the Constitution that became law on 23 July 1995. During the debate in Parliament on the new sixth paragraph of Article 69 of the Constitution (see paragraph 45 below) the chairman of the Committee on Constitutional Questions explained when he presented the draft it had prepared that the Constitutional Court would not restrict itself to noting the unconstitutional nature of the individual acts of the members of a party but would then be obliged to declare that the party concerned had become a centre of anti‑constitutional activities on account of those acts. One MP, representing the parliamentary group of the Motherland Party, emphasised the need to change the relevant provisions of Law no. 2820 on the regulation of political parties to take account of the new sixth paragraph of Article 69 of the Constitution.
Ultimately, Refah obtained approximately 22% of the votes in the general election of 24 December 1995 and about 35% of the votes in the local elections of 3 November 1996.
The results of the 1995 general election made Refah the largest political party in Turkey with a total of 158 seats in the Grand National Assembly (which had 450 members at the material time). On 28 June 1996 Refah came to power by forming a coalition government with the centre-right True Path Party (Doğru Yol Partisi), led by Mrs Tansu Ciller. According to an opinion poll carried out in January 1997, if a general election had been held at that time, Refah would have obtained 38% of the votes. The same poll predicted that Refah might obtain 67% of the votes in the general election to be held roughly four years later. 12.  On 21 May 1997 Principal State Counsel at the Court of Cassation applied to the Turkish Constitutional Court to have Refah dissolved on the grounds that it was a “centre” (mihrak) of activities contrary to the principles of secularism. In support of his application, he referred to the following acts and remarks by certain leaders and members of Refah.
–  Whenever they spoke in public Refah’s chairman and other leaders advocated the wearing of Islamic headscarves in State schools and buildings occupied by public administrative authorities, whereas the Constitutional Court had already ruled that this infringed the principle of secularism enshrined in the Constitution.
–  At a meeting on constitutional reform Refah’s chairman, Mr Necmettin Erbakan, had made proposals tending towards the abolition of secularism in Turkey. He had suggested that the adherents of each religious movement should obey their own rules rather than the rules of Turkish law.
–  On 13 April 1994 Mr Necmettin Erbakan had asked Refah’s representatives in the Grand National Assembly to consider whether the change in the social order which the party sought would be “peaceful or violent” and would be achieved “harmoniously or by bloodshed”.
–  At a seminar held in January 1991 in Sivas, Mr Necmettin Erbakan had called on Muslims to join Refah, saying that only his party could establish the supremacy of the Koran through a holy war (jihad) and that Muslims should therefore make donations to Refah rather than distributing alms to third parties.
–  During Ramadan Mr Necmettin Erbakan had received the heads of the Islamist movements at the residence reserved for the Prime Minister, thus assuring them of his support.
–  Several members of Refah, including some in high office, had made speeches calling for the secular political system to be replaced by a theocratic system. These persons had also advocated the elimination of the opponents of this policy, if necessary by force. Refah, by refusing to open disciplinary proceedings against the members concerned and even, in certain cases, facilitating the dissemination of their speeches, had tacitly approved the views expressed.
–  On 8 May 1997 a Refah MP, Mr İbrahim Halil Çelik, had said in front of journalists in the corridors of the parliament building that blood would flow if an attempt was made to close the “İmam-Hatip” theological colleges, that the situation might become worse than in Algeria, that he personally wanted blood to flow so that democracy could be installed in the country, that he would strike back against anyone who attacked him and that he would fight to the end for the introduction of Islamic law (sharia).
–  The Minister of Justice, Mr Şevket Kazan (a Refah MP and vice-chairman of the party), had expressed his support for the mayor of Sincan by visiting him in the prison where he had been detained pending trial after being charged with publicly vindicating international Islamist terrorist groups.
Principal State Counsel further observed that Refah had not opened any disciplinary proceedings against those responsible for the above-mentioned acts and remarks. 13.  On 7 July 1997 Principal State Counsel submitted new evidence against Refah to the Constitutional Court. 14.  On 4 August 1997 Refah’s representatives filed their defence submissions, in which they relied on international human-rights protection instruments, including the Convention, pointing out that these instruments formed part of Turkish written law. They further referred to the case-law of the Commission, which had expressed the opinion that Article 11 of the Convention had been breached in the cases concerning the United Communist Party of Turkey and the Socialist Party, and to the case-law of the Court and the Commission on the restrictions on freedom of expression and freedom of association authorised by the second paragraphs of Articles 10 and 11 of the Convention. They contended that the dissolution of Refah was not prompted by a pressing social need and was not necessary in a democratic society. Nor, according to Refah’s representatives, was their party’s dissolution justified by application of the “clear and present danger” test laid down by the Supreme Court of the United States of America. 15.  Refah’s representatives further rejected Principal State Counsel’s argument that the party was a “centre” of activities which undermined the secular nature of the Republic. They submitted that Refah was not caught by the criteria laid down in the Law on the regulation of political parties for determining whether a political party constituted a “centre of anti‑constitutional activities”. They observed, inter alia, that the prosecuting authorities had not issued any warning to Refah (which had four million members) that might have enabled it to expel any of its members whose acts had contravened the provisions of the Criminal Code. 16.  Refah’s representatives also set out their point of view on the concept of secularism. They asserted that the principle of secularism implied respect for all beliefs and that Refah had shown such respect in its political activity. 17.  The applicants’ representatives alleged that in accusing Mr Necmettin Erbakan of supporting the use of force to achieve political ends and of infringing the principle of secularism the prosecuting authorities had merely cited extracts from his speeches which they had distorted and taken out of context. Moreover, these remarks were covered by Mr Necmettin Erbakan’s parliamentary immunity. They further noted that the dinner he had given to senior officials of the Religious Affairs Department and former members of the theology faculty had been presented by Principal State Counsel as a reception organised for the leaders of Islamist fundamentalist movements, which had in any event been legally proscribed since 1925. 18.  With regard to the remarks of the other Refah leaders and members criticised by Principal State Counsel’s Office, Refah’s representatives observed that these did not constitute any criminal offence.
They asserted that none of the MPs whose speeches had been referred to by Principal State Counsel was authorised to represent Refah or held office within the party and claimed that the prosecuting authorities had not set in motion the procedure laid down in the Law on the regulation of political parties so as to give Refah the opportunity, if the need arose, to decide whether or not the persons concerned should continue to be members of the party; the first time Refah’s leadership had been informed of the remarks criticised in the case had been when they read Principal State Counsel’s submissions. The three MPs under attack had been expelled from the party, which had thus done what was necessary to avoid becoming a “centre” of illegal activities within the meaning of the Law on the regulation of political parties. 19.  On 5 August 1997 Principal State Counsel filed his observations on the merits of the case with the Constitutional Court. He submitted that according to the Convention and the case-law of the Turkish courts on constitutional-law issues nothing obliged States to tolerate the existence of political parties that sought the destruction of democracy and the rule of law. He contended that Refah, by describing itself as an army engaged in a jihad and by openly declaring its intention to replace the Republic’s statute law by sharia, had demonstrated that its objectives were incompatible with the requirements of a democratic society. Refah’s aim to establish a plurality of legal systems (in which each group would be governed by a legal system in conformity with its members’ religious beliefs) constituted the first stage in the process designed to substitute a theocratic regime for the Republic. 20.  In their observations on the merits of the case, Refah’s representatives again argued that the dissolution of their party could not be grounded on any of the restrictions permitted by the second paragraph of Article 11 of the Convention. They went on to say that Article 17 was not applicable in the case, as Refah had nothing in common with political parties which sought to install a totalitarian regime. Furthermore, the plurality of legal systems which their party proposed was actually intended to promote the freedom to enter into contracts and the freedom to choose which court should have jurisdiction. 21.  On 11 November 1997 Principal State Counsel submitted his observations orally. On 18 and 20 November 1997 Mr Necmettin Erbakan submitted his oral observations on behalf of Refah. 22.  In a judgment of 9 January 1998, which it delivered following proceedings on preliminary issues it had instituted of its own motion as the court dealing with the merits, the Constitutional Court ruled that, regard being had to Article 69 § 6 of the Constitution, the second paragraph of section 103 of the Law on the regulation of political parties was unconstitutional and declared it null and void. Article 69 § 6, taken together with section 101(d) of the same Law, provided that for a political party to be considered a “centre” of activities contrary to the fundamental principles of the Republic its members had to have been convicted of criminal offences. According to the Constitutional Court, that legal restriction did not cover all cases where the principles of the Republic had been flouted. It pointed out, among other observations, that after the repeal of Article 163 of the Criminal Code activities contrary to the principle of secularism no longer attracted criminal penalties. 23.  On 16 January 1998 the Constitutional Court dissolved Refah on the ground that it had become a “centre of activities contrary to the principle of secularism”. It based its decision on sections 101(b) and 103(1) of Law no. 2820 on the regulation of political parties. It also noted the transfer of Refah’s assets to the Treasury as an automatic consequence of dissolution, in accordance with section 107 of Law no. 2820. 24.  In its judgment the Constitutional Court first dismissed the preliminary objections raised by Refah. In that connection it held that the parliamentary immunity of the MPs whose remarks had been mentioned in Principal State Counsel’s submissions of 21 May 1997 had nothing to do with consideration of an application for the dissolution of a political party and forfeiture of political rights by its members, but was a question of the criminal responsibility of the MPs concerned, which was not a matter of constitutional law. 25.  With regard to the merits, the Constitutional Court held that while political parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions. In particular, activities by them incompatible with the rule of law could not be tolerated. The Constitutional Court referred to the provisions of the Constitution which imposed respect for secularism on the various organs of political power. It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life. The Constitutional Court observed that secularism was one of the indispensable conditions of democracy. In Turkey the principle of secularism was safeguarded by the Constitution, on account of the country’s historical experience and the specific features of Islam. The rules of sharia were incompatible with the democratic regime. The principle of secularism prevented the State from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law. Intervention by the State to preserve the secular nature of the political regime had to be considered necessary in a democratic society. 26.  The Constitutional Court held that the following evidence proved that Refah had become a centre of activities contrary to the principle of secularism (see paragraphs 27-39 below): 27.  Refah’s chairman, Mr Necmettin Erbakan, had encouraged the wearing of Islamic headscarves in public and educational establishments. On 10 October 1993, at the party’s Fourth Ordinary General Meeting, he had said:
“... when we were in government, for four years, the notorious Article 163 of the Persecution Code was never applied against any child in the country. In our time there was never any question of hostility to the wearing of headscarves ...”
In his speech of 14 December 1995 before the general election he had said:
“... [university] chancellors are going to retreat before the headscarf when Refah comes to power.”
But manifesting one’s religion in such a manner amounted to exerting pressure on persons who did not follow that practice and created discrimination on the ground of religion or beliefs. That finding was supported by various rulings of the Constitutional Court and the Supreme Administrative Court and by the case-law of the European Commission of Human Rights on applications nos. 16278/90 and 18783/91 concerning the wearing of headscarves at universities. 28.  The plurality of legal systems proposed by Mr Necmettin Erbakan was nothing to do with the freedom to enter into contracts as Refah claimed, but was an attempt to establish a distinction between citizens on the ground of their religion and beliefs and was aimed at the installation of a theocratic regime. On 23 March 1993 Mr Erbakan had made the following speech to the National Assembly:
“... ‘you shall live in a manner compatible with your beliefs’. We want despotism to be abolished. There must be several legal systems. The citizen must be able to choose for himself which legal system is most appropriate for him, within a framework of general principles. Moreover, that has always been the case throughout our history. In our history there have been various religious movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace. Why, then, should I be obliged to live according to another’s rules? ... The right to choose one’s own legal system is an integral part of the freedom of religion.”
In addition, Mr Necmettin Erbakan had spoken as follows on 10 October 1993 at a Refah party conference:
“... we shall guarantee all human rights. We shall guarantee to everyone the right to live as he sees fit and to choose the legal system he prefers. We shall free the administration from centralism. The State which you have installed is a repressive State, not a State at the people’s service. You do not allow the freedom to choose one’s code of law. When we are in power a Muslim will be able to get married before the mufti, if he wishes, and a Christian will be able to marry in church, if he prefers.” 29.  The plurality of legal systems advocated by Mr Necmettin Erbakan in his speeches had its origin in the practice introduced in the first years of Islam by the “Medina Agreement”, which had given the Jewish and polytheist communities the right to live according to their own legal systems, not according to Islamic law. On the basis of the Medina Agreement some Islamist thinkers and politicians had proposed a model of peaceful social co-existence under which each religious group would be free to choose its own legal system. Since the foundation of the Nizam Party in 1970 (dissolved by a judgment of 2 May 1971) Mr Necmettin Erbakan had been seeking to replace the single legal system with a plurality of legal systems. 30.  The Constitutional Court further observed that in a plurality of legal systems, as proposed by Refah, society would have to be divided into several religious movements; each individual would have to choose the movement to which he wished to belong and would thus be subjected to the rights and obligations prescribed by the religion of his community. The Constitutional Court pointed out that such a system, whose origins lay in the history of Islam as a political regime, was inimical to the consciousness of allegiance to a nation having legislative and judicial unity. It would naturally impair judicial unity since each religious movement would set up its own courts and the ordinary courts would be obliged to apply the law according to the religion of those appearing before them, thus obliging the latter to reveal their beliefs. It would also undermine legislative and judicial unity, the preconditions for secularism and the consciousness of nationhood, given that each religious movement would be empowered to decree what legal rules should be applicable to its members. 31.  In addition, Mr Necmettin Erbakan had made a speech on 13 April 1994 to the Refah group in Parliament in which he had advocated setting up a theocratic regime, if necessary through force:
“The second important point is this: Refah will come to power and a just [social] order [adil dozen] will be established. The question we must ask ourselves is whether this change will be violent or peaceful; whether it will entail bloodshed. I would have preferred not to have to use those terms, but in the face of all that, in the face of terrorism, and so that everyone can see the true situation clearly, I feel obliged to do so. Today Turkey must take a decision. The Welfare Party will establish a just order, that is certain. [But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed? The sixty million [citizens] must make up their minds on that point.” 32.  The reception given by Mr Necmettin Erbakan at the Prime Minister’s residence to the leaders of various religious movements, who had attended in vestments denoting their religious allegiance, unambiguously evidenced Refah’s chairman’s support for these religious groups vis-à-vis public opinion. 33.  In a public speech in April 1994 Mr Şevki Yılmaz, MP for the province of Rize, had issued a clear call to wage a jihad and had argued for the introduction of Islamic law, making the following declaration:
“We shall certainly call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s Messenger of his jurisdiction in their country.”
In another public speech, also in April 1994, Mr Şevki Yılmaz had said:
“In the hereafter you will be summoned with the leaders you have chosen in this life. ... Have you considered to what extent the Koran is applied in this country? I have done the sums. Only 39% [of the rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly forgotten ... You found a Koranic school, you build a hostel, you pay for a child’s education, you teach, you preach. ... None of that is part of the chapter on jihad but of that on the amel-i salih [peacetime activities]. Jihad is the name given to the quest for power for the advent of justice, for the propagation of justice and for glorification of Allah’s Word. Allah did not see that task as an abstract political concept; he made it a requirement for warriors [cahudi]. What does that mean? That jihad must be waged by an army! The commander is identified ... The condition to be met before prayer [namaz] is the Islamisation of power. Allah says that, before mosques, it is the path of power which must be Muslim ... It is not erecting vaulted ceilings in the places of prayer which will lead you to Paradise. For Allah does not ask whether you have built up vaulted ceilings in this country. He will not ask that. He will ask you if you have reached a sufficient level ... today, if Muslims have a hundred liras, they must give thirty to the Koranic schools, to train our children, girls and boys, and sixty must be given to the political establishments which open the road to power. Allah asked all His prophets to fight for power. You cannot name a single member of a religious movement who does not fight for power. I tell you, if I had as many heads as I have hairs on my head, even if each of those heads were to be torn from my shoulders for following the way of the Koran, I would not abandon my cause ... The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’ Erbakan and his friends want to bring Islam to this country in the form of a political party. The prosecutor understood that clearly. If we could understand that as he did, the problem would be solved. Even Abraham the Jew has realised that in this country the symbol of Islam is Refah. He who incites the Muslim community [cemaat] to take up arms before political power is in Muslim hands is a fool, or a traitor doing the bidding of others. For none of the prophets authorised war before the capture of State power. ... Muslims are intelligent. They do not reveal how they intend to beat their enemy. The general staff gives orders and the soldiers obey. If the general staff reveals its plan, it is up to the commanders of the Muslim community to make a new plan. Our mission is not to talk, but to apply the war plan, as soldiers in the army ...”
Criminal proceedings had been brought against Mr Şevki Yılmaz. Although his antipathy to secularism was well-known, Refah had adopted him as a candidate in local-government elections. After he had been elected mayor of Rize, Refah had made sure that he was elected as an MP in the Turkish Grand National Assembly. 34.  In a public speech on 14 March 1993 and a television interview first recorded in 1992 and rebroadcast on 24 November 1996, Mr Hasan Hüseyin Ceylan, Refah MP for the province of Ankara, had encouraged discrimination between believers and non-believers and had predicted that if the supporters of applying sharia came to power they would annihilate non‑believers:
“Our homeland belongs to us, but not the regime, dear brothers. The regime and Kemalism belong to others. ... Turkey will be destroyed, gentlemen. People say: Could Turkey become like Algeria? Just as, in Algeria, we got 81% [of the votes], here too we will reach 81%, we will not remain on 20%. Do not waste your energy on us – I am speaking here to you, to those ... of the imperialist West, the colonising West, the wild West, to those who, in order to unite with the rest of the world, become the enemies of honour and modesty, those who lower themselves to the level of dogs, of puppies, in order to imitate the West, to the extent of putting dogs between the legs of Muslim women – it is to you I speak when I say: ‘Do not waste your energy on us, you will die at the hands of the people of Kırıkkale.’ ”
“... the army says: ‘We can accept it if you’re a supporter of the PKK, but a supporter of sharia, never.’ Well you won’t solve the problem with that attitude. If you want the solution, it’s sharia.”
Refah had ensured that Mr Ceylan was elected as an MP and its local branches had played videotapes of this speech and the interview. 35.  Refah’s vice-chairman, Mr Ahmet Tekdal, in a speech he made in 1993 while on pilgrimage in Saudi Arabia which was shown by a Turkish television station, had said that he advocated installing a regime based on sharia:
“In countries which have a parliamentary regime, if the people are not sufficiently aware, if they do not work hard enough to bring about the advent of ‘hak nizami’ [a just order or God’s order], two calamities lie ahead. The first calamity is the renegades they will have to face. They will be tyrannised by them and will eventually disappear. The second calamity is that they will not be able to give a satisfactory account of themselves to Allah, as they will not have worked to establish ‘hak nizami’. And so they will likewise perish. Venerable brothers, our duty is to do what is necessary to introduce the system of justice, taking these subtleties into consideration. The political apparatus which seeks to establish ‘hak nizami’ in Turkey is the Welfare Party.” 36.  On 10 November 1996 the mayor of Kayseri, Mr Şükrü Karatepe, had urged the population to renounce secularism and asked his audience to “keep their hatred alive” until the regime was changed, in the following terms:
“The dominant forces say ‘either you live as we do or we will sow discord and corruption among you’. So even Welfare Party Ministers dare not reveal their world-outlook inside their Ministries. This morning I too attended a ceremony in my official capacity. When you see me dressed up like this in all this finery, don’t think it’s because I’m a supporter of secularism. In this period when our beliefs are not respected, and indeed are blasphemed against, I have had to attend these ceremonies in spite of myself. The Prime Minister, other Ministers and MPs have certain obligations. But you have no obligations. This system must change. We have waited, we will wait a little longer. Let us see what the future has in store for us. And let Muslims keep alive the resentment, rancour and hatred they feel in their hearts.”
Mr Şükrü Karatepe had been convicted of inciting the people to hatred on the ground of religion. 37.  On 8 May 1997 Mr İbrahim Halil Çelik, Refah MP for the province of Şanlıurfa, had spoken in Parliament in favour of the establishment of a regime based on sharia and approving acts of violence like those which were taking place in Algeria:
“If you attempt to close down the ‘İmam-Hatip’ theological colleges while the Welfare Party is in government, blood will flow. It would be worse than in Algeria. I too would like blood to flow. That’s how democracy will be installed. And it will be a beautiful thing. The army has not been able to deal with 3,500 members of the PKK. How would it see off six million Islamists? If they piss into the wind they’ll get their faces wet. If anyone attacks me I will strike back. I will fight to the end to introduce sharia.”
Mr İbrahim Halil Çelik had been expelled from the party one month after the application for dissolution had been lodged. His exclusion had probably only been an attempt to evade the penalty in question. 38.  Refah’s vice-chairman, the Minister of Justice, Mr Şevket Kazan, had visited a person detained pending trial for activities contrary to the principle of secularism, thus publicly lending him his support as a Minister. 39.  On the basis of the evidence adduced on 7 July 1997 by Principal State Counsel’s Office, the Constitutional Court held that the following further evidence confirmed that Refah was a centre of activities contrary to the principle of secularism:
–  In a public speech on 7 May 1996 Mr Necmettin Erbakan had emphasised the importance of television as an instrument of propaganda in the holy war being waged in order to establish Islamic order:
“... A State without television is not a State. If today, with your leadership, you wished to create a State, if you wanted to set up a television station, you would not even be able to broadcast for more than twenty-four hours. Do you believe it is as easy as that to create a State? That’s what I told them ten years ago. I remember it now. Because today people who have beliefs, an audience and a certain vision of the world, have a television station of their own, thanks be to God. It is a great event.
Conscience, the fact that the television [channel] has the same conscience in all its programmes, and that the whole is harmonious, is very important. A cause cannot be fought for without [the support of] television. Besides, today we can say that television plays the role of artillery or an air force in the jihad, that is the war for domination of the people ... it would be unthinkable to send a soldier to occupy a hill before those forces had shelled or bombed it. That is why the jihad of today cannot be waged without television. So, for something so vital, sacrifices must be made. What difference does it make if we sacrifice money? Death is close to all of us. When everything is dark, after death, if you want something to show you the way, that something is the money you give today, with conviction, for Kanal 7. It was to remind you of that that I shared my memories with you.
... That is why, from now on, with that conviction, we will truly make every sacrifice, until it hurts. May those who contribute, with conviction, to the supremacy of Hakk [Allah] be happy. May Allah bless you all, and may He grant Kanal 7 even more success. Greetings.”
–  By a decree of 13 January 1997 the cabinet (in which the Refah members formed a majority) had reorganised working hours in public establishments to make allowances for fasting during Ramadan. The Supreme Administrative Court had annulled this decree on the ground that it undermined the principle of secularism. 40.  The Constitutional Court observed that it had taken into consideration international human-rights protection instruments, including the Convention. It also referred to the restrictions authorised by the second paragraph of Article 11 and Article 17 of the Convention. It pointed out in that context that Refah’s leaders and members were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia. The Constitutional Court observed:
“Democracy is the antithesis of sharia. [The] principle [of secularism], which is a sign of civic responsibility, was the impetus which enabled the Turkish Republic to move on from Ummah [ümmet – the Muslim religious community] to the nation. With adherence to the principle of secularism, values based on reason and science replaced dogmatic values. ... Persons of different beliefs, desiring to live together, were encouraged to do so by the State’s egalitarian attitude towards them. ... Secularism accelerated civilisation by preventing religion from replacing scientific thought in the State’s activities. It creates a vast environment of civic responsibility and freedom. The philosophy of modernisation of Turkey is based on a humanist ideal, namely living in a more human way. Under a secular regime religion, which is a specific social institution, can have no authority over the constitution and governance of the State. ... Conferring on the State the right to supervise and oversee religious matters cannot be regarded as interference contrary to the requirements of democratic society. ... Secularism, which is also the instrument of the transition to democracy, is the philosophical essence of life in Turkey. Within a secular State religious feelings simply cannot be associated with politics, public affairs and legislative provisions. Those are not matters to which religious requirements and thought apply, only scientific data, with consideration for the needs of individuals and societies.”
The Constitutional Court held that where a political party pursued activities aimed at bringing the democratic order to an end and used its freedom of expression to issue calls to action to achieve that aim, the Constitution and supranational human-rights protection rules authorised its dissolution. 41.  The Constitutional Court observed that the public statements of Refah’s leaders, namely those of Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal, had directly engaged Refah’s responsibility with regard to the constitutionality of its activities. It further observed that the public statements made by MPs Mr Şevki Yılmaz, Mr Hasan Hüseyin Ceylan and Mr İbrahim Halil Çelik, and by the mayor of Kayseri, Mr Şükrü Karatepe, had likewise engaged the party’s responsibility since it had not reacted to them in any way or sought to distance itself from them, or at least not before the commencement of the dissolution proceedings. 42.  As an additional penalty, the Constitutional Court decided to strip Necmettin Erbakan, Şevket Kazan, Ahmet Tekdal, Şevki Yılmaz, Hasan Hüseyin Ceylan and İbrahim Halil Çelik of their MP status, in accordance with Article 84 of the Constitution. It found that these persons, by their words and deeds, had caused Refah’s dissolution. The Constitutional Court also banned them for five years from becoming founding members, ordinary members, leaders or auditors of any other political party, pursuant to Article 69 § 8 of the Constitution. 43.  Judges Haşim Kılıç and Sacit Adalı expressed dissenting opinions stating, inter alia, that in their view the dissolution of Refah was not compatible either with the provisions of the Convention or with the case‑law of the European Court of Human Rights on the dissolution of political parties. They observed that political parties which did not support the use of violence should be able to take part in political life and that in a pluralist system there should be room for debate about ideas thought to be disturbing or even shocking. 44.  This judgment was published in the Official Gazette on 22 February 1998.


3.  The applicant was born in 1934 and lives in the Isle of Man. He grew raspberries there and had a lucrative contract with the shop Marks & Spencers, but lost it in 1990 when the local environmental health officer let it be known to the shop that the applicant was packing raspberries in his kitchen. The applicant and his wife sued the Department of Local Government and the Environment ('DOLGE') for mis-statement and were awarded over GBP 16,000 in damages by the Manx High Court on 1 April 1993. The applicant did not consider that this was enough, and, wishing to appeal, instructed a new (Manx) advocate, a Mr Carter, then a partner in a firm of advocates called Carter Jones McDonald ('CJM').
Mr Carter advised that there was merit in an appeal, and applied for legal aid on his client's behalf in April 1993: this application was rejected on 25 May 1993. The applicant's Petition of Appeal from the first instance judgment was rejected the next day because it had been filed two days late. Mr Carter advised (via letter and at a meeting) that it would not be unduly difficult to apply for an extension of time in which to lodge the appeal, but that, in the circumstances, the best course of action was for the applicant to cut his losses and to accept an offer put forward by DOLGE. The applicant accepted this advice and, on 17 June 1993, DOLGE's offer of GBP 20,000. 4.  CJM issued proceedings against the applicant for payment of their fees on 7 December 1993. An advocate instructed by the applicant to defend the claim failed to file a Defence in the prescribed period, and judgment was entered for CJM on 5 January 1994. After taxation of CJM's costs, judgment was issued on 2 March 1995 for a total of GBP 929.80. Mr Carter then applied for execution of the judgment and on 9 October 1995, the applicant's property was placed under arrest by the Coroner. The applicant appealed on 30 October 1995 and on 7 November 1995 Mr Carter wrote to the Coroner and the applicant requesting that no further steps be taken in respect of the enforcement of the execution against the applicant until specifically instructed. It appears that the execution remained suspended until the judgment of 17 November 2003 detailed below. 5.  After a delay occasioned by their difficulty in obtaining legal aid, the applicant and his wife brought proceedings on 26 March 1996 against CJM in negligence, claiming that CJM's actions and omissions in April-June 1993 had deprived them of the opportunity to pursue their appeal against the first instance decision in their case against DOLGE. These proceedings are referred to hereafter as “the CJM proceedings.” In them, the applicant and his wife were represented throughout by leading Counsel from England, who had been granted a special temporary licence as a Manx advocate. The proceedings were heard by Acting Deemster Hall, succeeded by Acting Deemster Newey. 6.  The summons issued on 26 March 1996 was not served on CJM until 20 March 1998, the time for service of the summons having been extended by the High Court on 27 February 1997. After the applicant filed a motion for judgment in default of defence on 22 June 1998, it appears a first defence was served out of time on 7 July 1998. A second defence was served on 16 September 1998. After the service of this second defence, a motion filed by the applicant for judgment in default was dismissed by consent on 17 September 1998. On 25 January 1999 the defendants filed a motion for a split trial between liability and quantum issues, which was dismissed on 25 October 2000. It appears that there had been no correspondence between the parties and the High Court between 27 July 1999 and 6 January 2000, leading the High Court to write to the defendants on 26 January 2000 indicating, inter alia, that Acting Deemster Hall “was very anxious to progress the matter”. After the dismissal of the defendant's motion for a split trial on 25 October 2000, it appears it was incumbent on the applicant to apply to have the case set down for trial within 28 days of this date. No application was made. On 12 January 2001, the High Court wrote to the applicant's solicitors requesting that they make the necessary application as soon as possible. On 19 January 2001, the applicant's solicitors replied, apologising for the delay in their application. On 22 January 2001, the High Court replied with instructions from the Acting Deemster that the case be set down for trial within 28 days. Both parties responded expressing concern at this proposal.
It further appears that throughout 2001 the parties each filed a number of motions, the defendants requesting a stay in the proceedings and each seeking leave to amend the statement of case, the defence and reply. Further such motions were sought throughout 2002 and January and February 2003. On 31 October 2002 and 12 February 2003, the High Court made orders setting further directions for the proceedings. Further orders were agreed by consent between the parties on 21 June 2001, 1 February 2002 and 17 July 2002, in each instance agreeing to a revised timetable and date for trial. On 20 December 2002 the applicant issued a motion for additional time to serve a further expert report to which the defendants responded with a motion that the action be struck out for non-compliance with orders of the High Court. In order to hear the motions, the High Court vacated the scheduled trial date. They were heard on 12 February 2003 with the defendant's motion being dismissed, the applicant being given leave to serve the expert report and further directions being given to the parties. 7.  The CJM proceedings did not therefore come to trial before Acting Deemster Newey until 21 March 2003, at which point CJM essentially conceded liability and limited themselves to contesting quantum. By a judgment dated 17 November 2003: (1) the judgments obtained by CJM in 1995 were set aside (by consent) and these earlier proceedings dismissed; and (2) the applicant and his wife were awarded the sum of GBP 10,780.93 plus interest of GBP 8,567.13. 8.  The applicant and his wife appealed against the quantum of the award; their appeal was dismissed on 25 May 2004. In a detailed 37 page judgment, the High Court of Justice of the Isle of Man (Staff Government Division) considered and dismissed each head of their challenge to the conclusions of the first instance judge. It seems that the applicant's Counsel was directed by the lead judge at the end of the hearing that his interest was now at end. 9.  The applicant wished to apply to the Privy Council for special leave to appeal directly to the Council but it appears that after failing to obtain such leave as a “poor person” and failing to obtain legal aid from the Manx authorities, he did not do so.


5.  The first applicant was born in 1982 and lives in Novosibirsk. The second applicant was born in 1982 and lives in Kazan. The third applicant was born in 1984 and lives in Roshal, Moscow Region. 6.  The applicants are members of the National Bolsheviks Party. 7.  On 14 December 2004 a group of about forty members of the National Bolsheviks Party occupied the waiting area of the President’s administration building in Moscow and locked themselves in an office on the ground floor. 8.  They asked for a meeting with the President, the deputy head of the President’s administration and the President’s economic adviser. They handed out leaflets through the windows featuring a printed letter to the President which listed ten ways in which he had allegedly failed to comply with the Constitution and which called for his resignation. 9.  The intruders stayed in the office for an hour and a half until the police broke down the locked door and arrested them. They did not offer any resistance to the authorities. 10.  On 16 December 2004 the Khamovnicheskiy District Court of Moscow ordered the applicants’ detention on the ground that they were suspected of an especially serious criminal offence. 11.  The applicants were charged, on 21 December 2004, with the attempted violent overthrow of State power (Article 278 of the Criminal Code) and the intentional destruction and degradation of others’ property in public places (Articles 167 § 2 and 214). 12.  By separate decisions of 8, 9 and 11 February 2005 the Zamoskvoretskiy District Court of Moscow extended the applicants’ detention until 14 April 2005 on the basis of the gravity of the charges. The court also found that the second applicant had no registered place of residence in Moscow or the Moscow region, and therefore there was a possibility that she might abscond or interfere with the investigation. In respect of the third applicant the court held that his permanent place of residence in the Moscow region, ongoing studies at a university in Moscow, previously clean criminal record and good character references were insufficient to warrant his release, given the gravity of the charges laid against him. 13.  On 16 February 2005 the applicants’ charge was amended to that of participation in mass disorder, an offence under Article 212 § 2 of the Criminal Code. 14.  By separate but identically worded decisions of 7 April 2005 the District Court granted the prosecution’s request for an extension of the applicants’ detention until 14 July 2005, for the following reasons:
“The court takes into account that the case involves forty defendants who have just started, together with their counsel, to study the case file which comprises twelve volumes ... Moreover, the prosecution needs additional time in order to prepare the bill of indictment ...
Having regard to the fact that [the first and the second applicants] are not registered with a permanent place of residence in Moscow or the Moscow region and taking into account the gravity of the charges and the prosecutor’s arguments that [the applicants], once released, might flee from justice, the court considers that [the applicants] should remain in custody. ” 15.  On appeal, counsel for the applicants asked for their release as they had no previous criminal record, had good character references and a permanent place of residence and were in employment or studying at the university. He further submitted that the applicants did not require much time to study the case file. At the appeal hearing before the Moscow City Court the applicants confirmed that they had finished studying the case file. 16.  On 11 May 2005 the Moscow City Court upheld the decisions of 7 April 2005, finding that they had been lawful, sufficiently reasoned and justified. 17.  The investigation was completed on 7 June 2005 and thirty-nine persons, including the applicants, were committed for trial. 18.  On 20 June 2005 the Tverskoy District Court of Moscow scheduled the preliminary hearing for 30 June 2005 and held that all the defendants should meanwhile remain in custody. 19.  On 30 June 2005 the District Court held a preliminary hearing. It rejected the defendants’ requests for release, taking into account their character, young age, frail health, family situation and stable way of life. However, it found, referring to the gravity of the charges, that “the grounds on which the preventive measure [had been] previously imposed still persist[ed]” and that “the case file gave sufficient reasons to believe that, once released, the defendants would flee or interfere with the trial”. It therefore ordered that all the defendants should remain in custody pending trial. 20.  The applicants lodged applications for release. On 27 July 2005 the District Court rejected these requests, finding that their detention was lawful and justified. 21.  On 10 August 2005 the applicants filed new applications for release. On the same day the District Court rejected the requests. It held:
“The court takes into account the defence’s argument that an individual approach to each defendant’s situation is essential when deciding on the preventive measure.
Examining the grounds on which ... the court ordered and extended the detention of all the defendants without exception ... the court notes that these grounds still persist today. Therefore, having regard to the state of health, family situation, age, profession and character of all the defendants, and to the personal guarantees offered on their behalf by certain private individuals and included in the case file, the court concludes that, if released, each of the applicants might abscond or obstruct the course of justice in some other way...
In the court’s view, in these circumstances, having regard to the gravity of the charges, there are no grounds for varying or revoking the preventive measure in respect of any defendant ...” 22.  On 8 December 2005 the District Court found the applicants and their co-defendants guilty of participation in mass disorder. It gave each applicant a suspended sentence of three years and released them all on probation. 23.  The first and third applicants were held in remand prison no. IZ-77/2 in Moscow.
(a)  The description provided by the Government 24.  The Government provided the following description of the conditions of detention in respect of the first and third applicants.
(i)  The cell population in respect of the first applicant 25.  As regards the number of inmates sharing a cell with the first applicant, the Government relied on a number of excerpts from the prison population register in respect of fourteen days and the certificates prepared by the remand prison administration in April 2009.

Period of detention
Cell number
Cell area (square metres)
Cell capacity/Number of inmates
From 16 to 17 December 2004
150 57.9
14 (22 in December 2005)/14 (21 in December 2005)
(ii)  The cell population in respect of the third applicant 26.  As regards the number of inmates sharing a cell with the third applicant, the Government relied on a number of excerpts from the prison population register in respect of four days and the certificates prepared by the remand prison administration in April 2009.

Period of detention
Cell number
Cell area (square metres)
Cell capacity/Number of inmates
From 16 to 26 December 2004
281 8.4
4/2
(iii)  Other aspects of the conditions of detention in respect of the first and third applicants 27.  According to the Government, the first and third applicants were each provided with their own bed and bedding, a mug, a dish and a spoon. 28.  The lighting in the cells was in compliance with applicable standards. At night low-voltage bulbs were used to maintain lighting for surveillance purposes. The cells were serviced by a ventilation system in good working order. The inmates were allowed exercise for one hour per day in the prison yard. The cells were regularly disinfected.
(b)  The description provided by the first and third applicants 29.  The first and third applicants contested the Government’s submissions. According to them, the cells where they were detained were overcrowded at all times and infested with insects. The toilet had only been separated by a screen from the living area of the cell and did not offer any privacy. The applicants had been allowed to take a ten-minute shower once a week. The food was scarce and no medicine, other than aspirin and other analgesics, was available. The applicants had been permitted a walk for about an hour per day. The exercise yard was sheltered and measured 15 square metres in area. No books or newspapers had been available. 30.  The second applicant was detained in remand prison no. IZ-77/6 in Moscow. According to the Government, she was held in cells nos. 202 and 204 which measured 131.1 and 131.3 square metres respectively. Cell no. 202 was equipped with forty-four beds and housed thirty-one inmates. Cell no. 204 was equipped with forty-two beds and housed from twenty‑nine to thirty-two inmates. The second applicant had been provided with bed sheets, soap and personal hygiene products. The ventilation system in the cells had been in good working order. Additional access to fresh air was possible through the windows. The cells were disinfected once a month. 31.  According to the second applicant, the cells were infested with cockroaches and crickets. The toilet was separated from the living area of the cell by a screen – one metre in height – which did not offer any privacy. She had been allowed to take a ten-minute shower once a week. The food was of poor quality. No books were available. The inmates received one periodical a month behind publication.


8.  The applicant is a Moldovan national who was born in 1949 and lives in Chişinău (Moldova). He is a lawyer and Chairman of the Moldovan Bar Council. 9.  In 2000 a group composed of members of parliament and the Moldovan Ombudsman sought a ruling from the Constitutional Court that the Lawyers (Organisation of the Profession) Act (Law no. 395-XIV) was unconstitutional. The Act laid down, inter alia, that all lawyers practising in Moldova should be members of the Bar Council, a national association of all lawyers from the local Bars. They argued that compulsory membership of the Bar Council was contrary to the right of freedom of association guaranteed by the Moldovan Constitution. 10.  After consulting, inter alia, the Bar Council, which expressed the view that the Act was consistent with the Constitution, the Constitutional Court held in a decision of 15 February 2000 that the provisions making membership of the Moldovan Bar Council compulsory were unconstitutional. 11.  The applicant criticised the Constitutional Court’s decision in a telephone interview he gave to A.M., a journalist on the Economiceskoe Obozrenie (“Economic Analysis”) newspaper. 12.  In the February 2000 edition of the newspaper, A.M. published an article on the debate which the Constitutional Court’s decision of 15 February 2000 had sparked off among lawyers. He gave the following account of his telephone interview with the applicant:
“... After the Constitutional Court’s decision was made public, Economiceskoe Obozrenie put a series of questions to the Chairman of the Bar Council, Mr Gheorghe Amihalachioaie. His comments are tinged with emotion, no doubt because they were made in the heat of the moment:
‘The Constitutional Court’s decision will produce total anarchy in the legal profession’, said Mr Amihalachioaie. ‘You will see what will happen over the course of the next year. From now on, we no longer have a single system for organising the profession or a unitarian State. We have become accustomed to this – it is easier to live and work in chaos. Taxes are not paid, there is no supervision and, consequently, no ethics, no discipline and no responsibility.
In view of this, the question is whether the Constitutional Court is constitutional. In 1990 the United Nations adopted its Basic Principles on the Role of the Bar, which are fully guaranteed by our law. The legal profession is independent the world over. In Moldova it is subordinate to the executive, that is to say the Ministry of Justice. This is a serious breach of fundamental democratic principles.
The Constitutional Court did not take into account the judgments of the Strasbourg Court referred to by the Bar Council in its observations. The judges of the Constitutional Court probably do not regard the European Court of Human Rights as an authority. Am I to assume that they have acquired more experience in five years than the Strasbourg judges in fifty? We shall certainly be informing the Council of Europe that Moldova does not comply with the case-law or requirements of the European Court of Human Rights.’
According to Mr Amihalachioaie, lawyers have always been regarded as being at the forefront of the legal profession: ‘Despite everything, even after the Constitutional Court’s decision, the body of lawyers remains a force.’ ...” 13.  In a letter of 18 February 2000, the President of the Constitutional Court informed the applicant that his remarks as reported in the Economiceskoe Obozrenie newspaper could constitute a lack of regard for the court within the meaning of Article 82 § 1 (e) of the Code of Constitutional Procedure and invited him to submit written observations on this point within ten days. 14.  On 28 February 2000 the applicant submitted the requested observations. He said that he had only learned of the publication of his remarks from the letter of 18 February 2000 and confirmed having had a long telephone conversation with the journalist A.M. about the decision of 15 February 2000. He stressed, however, that his remarks had been misquoted and largely taken out of context. He added that, had A.M. submitted the article to him prior to publication, he would have checked the presentation of his remarks carefully and, accordingly, assumed full responsibility for them. 15.  On 6 March 2000 the Constitutional Court issued a final decision pursuant to Articles 81 and 82 of the Code of Constitutional Procedure in which it imposed an administrative fine on the applicant in the sum of 360 Moldovan lei (equivalent to 36 euros).
It found that the applicant had made the following comments in the aforementioned interview: “The Constitutional Court’s decision will produce total anarchy in the legal profession. ... the question is whether the Constitutional Court is constitutional. ... The judges of the Constitutional Court ... do not regard the European Court of Human Rights as an authority.” It found that these comments showed a lack of respect on the applicant’s part for the Constitutional Court and its decision. 16.  As the Constitutional Court’s decision was final, the applicant paid the sum of 360 lei into the Ministry of Finance’s account on 7 July 2000.


5.  The applicant party, Özgürlük ve Dayanışma Partisi (“the ÖDP”), is a Turkish political party based in Ankara. 6.  By a decree of 28 November 1998, the Higher Electoral Commission published a list of the eighteen political parties authorised to participate in the parliamentary and municipal elections to be held on 18 April 1999. The ÖDP featured on the list. In order to be able to participate in the elections in question, the political parties had to have had, for at least six months prior to the elections, branches in no fewer than half the country’s provinces and to have already organised their party conference. 7.  On 23 September 1998 the ÖDP applied to the Ministry of Finance for the financial assistance available to political parties under Article 68 of the Constitution. 8.  By a decision of 23 November 1998, the Ministry of Finance refused the application on the ground that only political parties meeting the criteria laid down by Law no. 2820 on political parties were eligible for public funding. 9.  On 29 December 1998 the ÖDP brought proceedings in the Ankara Administrative Court seeking the setting-aside of the decision of 23 November 1998. The ÖDP began by pointing out that the Constitution itself provided that “the State shall grant political parties sufficient and equitable funding” and that “the law shall define the principles applicable to party funding, members’ subscriptions and donations”. The applicant party observed in particular that the criteria laid down by the Law on political parties excluded parties which were not represented in Parliament from entitlement to State subsidies. Pointing to the difficulty of carrying out political activities and campaigning without the necessary financial resources, it contended that the statutory exclusion was unconstitutional and contrary to the principles of a democratic State, to the State’s duty to promote democratic rights and freedoms, and to the principle of non‑discrimination. Furthermore, the provisions in question were in breach of international human rights protection instruments. 10.  In a judgment of 29 September 1999, the Ankara Administrative Court rejected the application lodged by the ÖDP, on the ground that the latter did not satisfy the criteria laid down by Law no. 2820 on political parties. The court did not rule on the plea of unconstitutionality raised by the ÖDP. 11.  The ÖDP lodged an appeal on points of law against the judgment of 29 September 1999, reiterating the arguments it had submitted at first instance. 12.  In a judgment delivered on 25 April 2002 and served on the applicant party on 10 July 2002, the Supreme Administrative Court upheld the impugned judgment, which it found to be in accordance with the rules of procedure and law.


4.  The applicant was born in 1957 and lives in Voronezh. 5.  She brought civil proceedings against her local authority requesting arrears of child benefits due to her. 6.  On 25 August 2000 the Levoberezhny District Court of Voronezh granted her claims and awarded her the arrears in the amount of roubles 4,287.36 (RUR). The judgment was not appealed against and became final on 4 September 2000. 7.  On 28 November 2000 a writ of execution was issued. 8.  As the judgment remained unexecuted, on an unspecified date the applicant forwarded the writ to the debtor's bank and requested it to debit the sum due from the debtor's account, but the bank refused. 9.  She then brought proceedings against the bank claiming damages for its refusal to enforce the judgment of 25 August 2000. 10.  On 17 April 2003 the Justice of the Peace of the Second Circuit of the Central District of Voronezh dismissed the applicant's claims on the ground that the bank had not been at fault in refusing to enforce the judgment of 25 August 2000. On appeal, the judgment was upheld by the Central District Court of Voronezh on 10 November 2003. 11.  On 30 December 2004 the applicant received RUR 1,402.56 in execution of the judgment of the Levoberezhny District Court of Voronezh of 25 August 2000. 12.  On 26 January 2005 the applicant received RUR 818,16, and on 14 December 2005 the outstanding balance of RUR 2,066.64 thus completing full execution of the judgment.


4.  The applicant was born in 1919 and lives in the village of Lebedyn. 5.  On 16 August 2000 the applicant instituted proceedings in the Boryspil Town Court against the Boryspil Town Police Department and the State Treasury, seeking compensation. The applicant alleged that Messrs K. and M. had unlawfully attempted to enter and search his flat and insulted him in the presence of his neighbours. Messrs K. and M. took part in the proceedings as third parties. On 30 August 2000 the court found against the applicant. On an unspecified date the Kyiv Regional Court of Appeal quashed that decision and remitted the case for a fresh consideration. 6.  On 11 September 2001 the Boryspil Town Court found in part for the applicant and awarded him UAH 12,125.09[1] in compensation for non-pecuniary damage and court expenses. On an unspecified date the Kyiv Regional Court of Appeal quashed that decision and remitted the case for a fresh consideration. 7.  On 24 May 2002 the Boryspil Town Court ruled in part for the applicant. It found that two acting police officers, Messrs K. and M., had been ordered by the Boryspil Town Police Department to check the applicant's flat. On 25 April 2000, in the course of execution of the above order, they had unlawfully attempted to enter the applicant's flat and had made abusive statements in his respect. The court held that the State authorities were responsible for the acts of the police officers and ordered the State Treasury to pay the applicant UAH 2,393.09[2] in compensation for non-pecuniary damage and court expenses. The court, referring to Article 25 of the Police Act (see paragraph 18 below), further ordered Messrs K. and M. to apologise for their unlawful actions in the presence of the applicant and his neighbours who had witnessed the incident. 8.  On 1 July 2002 the same court rejected the applicant's request for leave to appeal for failure to pay court fees and to comply with other procedural formalities. On 9 August 2002 and 2 January 2003, respectively, the Kyiv Regional Court of Appeal and the Supreme Court of Ukraine upheld the decision of 1 July 2002. 9.  On 26 April 2003 the Pecherskyy District Bailiffs' Service initiated enforcement proceedings in respect of the monetary award of 24 May 2002. 10.  On 27 August 2003 the applicant was paid the full amount of the award. 11.  On 5 September 2003 the applicant submitted to the Boryspil Town Bailiffs' Service a writ of execution for the non-pecuniary part of the judgment. 12.  On 8 September 2003 the Bailiffs' Service initiated enforcement proceedings in respect of the obligation of Mr K. to apologize to the applicant. 13.  On 3 and 14 October 2003 the Bailiffs' Service fined Mr K. for his failure to comply with the judgment of 24 May 2002. 14.  On 22 October 2003 the Bailiffs discontinued the enforcement proceedings against Mr K., no reasons having been given for this decision. 15.  On 23 March 2004 Mr K. retired. His present place of residence is unknown. 16.  On 25 April 2006 Mr M. together with two other police officers visited the applicant's place of residence. According to the Government, the applicant and his daughter received the apologies from Mr M. for the events of 25 April 2000. The applicant stated that he had been absent during that visit. 17.  On 14 September 2006 the Trudova Slava local newspaper (газета “Трудова Слава”) published an announcement which read as follows:
“...[Mr M.], an employee of the MIA [Ministry of Internal Affairs], officially apologizes to [Mr] Donichenko, Ivan Petrovych, for the moral damage caused to him by the police officer in the course of exercise of his duties in 2001.”


5.  The applicant was born in 1966 and lives in Panevėžys. 6.  The applicant was employed as the head of a municipal kindergarten in Panevėžys. 7.  On 11 December 2007 she was informed by the local office of the Special Investigation Service that, as a person of equivalent status to a civil servant, she was under investigation on suspicion of fraudulent management of accounts, abuse of office and forgery of documents. In May 2008 she was informed of additional suspicions against her concerning further acts of abuse of office, forgery of documents and misappropriation of property. 8.  In June 2008 the applicant submitted a request to the pre-trial judge to terminate the criminal investigation on the grounds that it had been excessively long. The judge refused the request, noting that the investigation had been completed earlier that month and the case was ready for trial. 9.  On 4 July 2008 the case was referred for judicial examination. On 13 July 2009 the Panevėžys District Court (hereinafter “the first-instance court”) found the applicant guilty on several of the charges against her. She was sentenced to a fine of 2,600 Lithuanian litai (LTL, approximately 753 euros (EUR)) and a prohibition on working for the civil service for two years and six months. 10.  The judgment was amended on appeal: on 19 February 2010 the Panevėžys Regional Court (hereinafter “the appellate court”) upheld the applicant’s conviction on some of the charges and acquitted her on several others. Her sentence was reduced to a fine of LTL 1,820 (EUR 527) and a prohibition on working for the civil service for one year and nine months. Soon afterwards the applicant was dismissed from her job by the Panevėžys City Municipality in line with the decision of the appellate court. 11.  By a final judgment of 16 November 2010 the Supreme Court of Lithuania upheld the reasoning of the appellate court but changed the applicant’s sentence. The Supreme Court found that when determining the length of the applicant’s prohibition on working for the civil service, it was necessary to take into account the fact that she had been suspended from her post during the criminal investigation (see paragraphs 12-19 below). As a result, the period of prohibition was reduced to one year and three months. 12.  Immediately after the launch of the criminal investigation against the applicant (see paragraph 7 above), on 12 December 2007 the first-instance court granted the prosecutor’s request to have the applicant suspended from her job as the head of the kindergarten for three months. The court held that there were grounds to believe that the applicant, as a person of equivalent status to a civil servant, might use her official position to hinder the investigation by, for example, destroying or fabricating evidence, or attempting to influence the witnesses in the case, who were her subordinates. 13.  The applicant appealed against the decision, arguing that she could not be equated to a civil servant because she worked under an employment contract with the Panevėžys City Municipality. She further argued that all the important documents had already been collected from the kindergarten and all the relevant witnesses had been questioned, so there was no possibility for her to interfere with the investigation. The applicant also submitted that she had no prior convictions and had never been subject to any disciplinary action at work and that her employer’s evaluation of her had always been positive; thus there were no grounds to believe that she would use her official position to hinder the investigation. Lastly, the applicant submitted that her job in the kindergarten was her only source of income and therefore the suspension would cause significant difficulties for her and her young daughter, whom the applicant was raising alone. However, the appellate court dismissed the applicant’s appeal and upheld the reasoning of the first-instance court. 14.  Subsequently the first-instance court granted the prosecutor’s requests to extend the applicant’s suspension from her post by further periods of one to three months on essentially the same grounds. The applicant appealed against all the decisions, raising the same arguments as before, but her appeals were dismissed by the appellate court (on 27 December 2007, 21 March 2008, 26 May 2008, 18 June 2008 and 6 August 2008). On 6 August 2008 the appellate court noted, inter alia, that the applicant was only suspended from holding a specific post in a particular kindergarten, so the suspension did not affect her ability to take a different job and thus obtain a source of income. 15.  On each of the above-mentioned occasions the decision of the first-instance court was taken following a written procedure, while the appellate court held oral hearings (see paragraphs 23 and 25 below). Neither the applicant nor her representative was present at any of these hearings. The prosecutor was present at the hearing of 21 March 2008. 16.  After the criminal case was referred for judicial examination (see paragraph 9 above), in October 2008 the first-instance court held an oral hearing in which it extended the applicant’s suspension from her post by two months on the same grounds as before. The applicant and her representative were present at the hearing. The applicant’s appeal was subsequently dismissed by the appellate court. 17.  On 1 December 2008 the first-instance court in an oral hearing at which the applicant and her representative were present, terminated the applicant’s suspension from her post. The court found that almost all the witnesses had been questioned, so there were no grounds to believe that the applicant might attempt to influence them or otherwise hinder the investigation. The applicant returned to her job as the head of the kindergarten the following day. 18.  However, on 12 December 2008 the appellate court overturned the decision of the first-instance court, finding that the investigation had not been completed yet, so there was still a risk that the applicant may hinder it. Since the appellate court was not authorised by law to adopt a new decision extending the suspension, the prosecutor submitted a new request for an extension to the first-instance court. During this period the applicant continued working as the head of the kindergarten. 19.  On 16 January 2009 the first-instance court, in an oral hearing at which the applicant and her representative were present, renewed the applicant’s suspension from her post for a period of three months. However, on 12 February 2009 the appellate court allowed an appeal by the applicant against this decision and quashed the above extension ordered by the first-instance court. The applicant returned to her job and remained the head of the kindergarten until her dismissal in February 2010 (see paragraph 10 above). 20.  On 20 December 2007 the applicant submitted a complaint to the Inspector of Journalistic Ethics concerning several articles in the Panevėžio rytas newspaper. The publications commented on the criminal case against the applicant and presented statements from her subordinates criticising her competence and personality. The applicant complained that these articles had been defamatory and insulting. She also complained about a comment posted by a user on the website of the Lietuvos rytas newspaper which insulted the applicant and her young daughter on the grounds that the applicant was a single mother. 21.  On 9 June 2008 the Inspector of Journalistic Ethics partly satisfied the applicant’s complaint. The Inspector found that the comment on the website of Lietuvos rytas was insulting to the applicant and her daughter and ordered the newspaper to remove it from the website. With respect to the articles in Panevėžio rytas, the Inspector held that the applicant was a public figure and therefore had to accept a greater level of media attention and criticism. The Inspector also found that the statements about the applicant in the articles in question reflected the opinions of the interviewed individuals, so the newspaper could not be held accountable for their factual accuracy. 22.  The Inspector’s decision indicated that it could be appealed to the court within thirty days. The applicant did not appeal.


4.  The applicant was born in 1935 and lives in Kyiv, Ukraine.
First set of proceedings 5.  In April 1994 the applicant instituted proceedings in the Irpin Town Court (Ірпінський міський суд Київської області) against her former husband seeking to divide their property. The latter lodged a counterclaim. On 18 August 1995 the court divided the property between the applicant and her former husband. 6.  On 6 February 1996 the Kyiv Regional Court (Київський обласний суд)[1] quashed this judgment and remitted the case for a fresh consideration. 7.  On 23 December 1997 the Irpin Town Court adopted another judgment on the division of property between the applicant and her former husband. The court further rejected the remainder of principal and counter claims. 8.  On 10 March 1998 the Kyiv Regional Court quashed this judgment and, because of the complexity of the issues involved, took over the case. In its ruling the court stated inter alia that by partially rejecting the principal and counter claims the Irpin Town Court in fact had left unsettled the matter of property right over the house which was a part of the disputed property. 9.  In the course of the aforesaid proceedings a number of forensic examinations have been ordered by the courts. In particular, in their rulings of 22 October 1996 and 22 April 1999 the courts, ordering additional examinations, noted inter alia that “inasmuch as long period of time ha[d] lapsed since the previous forensic examination[s]” they, accordingly, were out-of-date and did not correspond to the actual state of things. 10.  By its letter of 16 July 2001 the Kyiv Regional Court of Appeal remitted the case back to the first instance court for examination. The court did not provide any reasoning for this remittal except for a general reference to Article 31 of the Judiciary Law, which, at the material time, set forth the competence of a court of appeal. 11.  On 19 February 2002 the Irpin Town Court divided the property between the applicant and her former husband. In particular, the court held that the applicant did not have any property rights regarding the house, in which she lived with her former husband. 12.  On 2 July 2002 the Kyiv Regional Court of Appeal upheld this judgment. 13.  On 20 January 2003 the Supreme Court of Ukraine rejected the applicant's appeal in cassation.
Second set of proceedings 14.  In April 2003 the applicant instituted proceedings in the Irpin Town Court against her former husband complaining that he had evicted her from the house in which they lived. She also sought to move in the house in question. On 26 June 2003 the court found against the applicant and held that the house in question was owned by the applicant's former husband and a certain M. Moreover, in March 2003 the applicant's former husband had sold his part of the house to D. Therefore, the applicant had no property rights over the house in question and there were no legal grounds to move her in. On 21 October 2003 the Kyiv Regional Court of Appeal upheld this judgment. On 29 August 2005 the Supreme Court of Ukraine rejected the applicant's appeal in cassation.


5.  The applicant was born in 1982 and lives in Adana. As the facts of the case are in dispute between the parties, they will be set out separately. The facts as presented by the applicant are set out in Section B below (paragraph 6). The Government’s submissions concerning the facts are summarised in Section C below (paragraph 7). The documentary evidence submitted by the applicant and the Government is summarised in Section D (paragraph 8-30). 6.  At the time of the incidents the applicant was selling CDs from a street stand in Adana. On 5 July 2001 the applicant and his relative M.Y. were arrested by the police while they were working at the stand. They were taken to the police station and beaten up by a police officer there. As a result of a punch to his ear, the applicant’s eardrum was perforated. The applicant and M.Y. were subsequently released from the police station. 7.  On 5 July 2001 the Adana Police Station received a complaint that damaged CDs were being sold from a street stand. A number of police officers went to the venue and talked the applicant and M.Y. into a solution with the complainant, but they did not arrest them because their activity had not constituted an offence. 8.  On 7 July 2001 the applicant and M.Y. lodged a criminal complaint with the Adana prosecutor against a police officer who they alleged had ill-treated them on 5 July 2001. At the time of their complaint they did not know the identity of the police officer but gave a description of his physical appearance. They also complained that they had been arrested without any explanation and that as a result of that arrest they had been arbitrarily deprived of their rights. 9.  On 9 July 2001 the applicant went back to the Adana prosecutor’s office and complained that he had been injured as a result of the ill-treatment. In order to provide evidence of his injuries the applicant requested a medical examination. On the same day the Adana prosecutor referred the applicant to the Adana Forensic Medicine Institute. 10.  On 10 July 2001 the Adana Forensic Medicine Institute reported that the applicant’s left eardrum had been perforated as a result of physical trauma, and that the injury required a 15-day healing period. 11.  On 10 July 2001 the applicant also applied to the Adana branch of the Turkish Human Rights Foundation, where a number of physical and psychological assessments were carried out by the doctors working for the Foundation. According to a report drawn up on 22 October 2001, the applicant had a perforation in his left eardrum and he was suffering from acute post-traumatic stress disorder. The report concluded that the doctors’ findings were compatible with the applicant’s story of ill-treatment. 12.  In the Turkish Human Rights Foundation’s report the applicant was reported as having described the incident and told the doctors that after he was punched on his ear, his eardrum had been perforated and he was no longer able to hear on that side. He added that, at the end of his arrest, he had not been taken to a forensic doctor for the required medical check, but the police officers had taken him to a private doctor, where he was diagnosed with ear perforation. The applicant submitted the report for the investigation file. However, this evidence was not further investigated during the proceedings. 13.  On 11 July 2001 the applicant and his relative M.Y. gave their statements at the Adana prosecutor’s office. The applicant complained that he had been beaten by a police officer working at the Adana Police Station and as a result his eardrum had been perforated. He said that he did not know the name of the officer, but he could identify him. M.Y. affirmed the same in his statement. He complained that he had also been beaten by the same officer; however, he had not asked to be examined by a doctor because the ill-treatment had not left any marks on his body. 14.  On 16 July 2001 the prosecutor’s office asked for another medical examination at the Adana State Hospital in order to determine the date of injury to the applicant’s ear. It was concluded that it was medically not possible to determine the date of injury. 15.  On 18 July 2001 the applicant submitted the names of his witnesses to the investigating authorities. 16.  On 2 August 2001, a chief police commissioner who had been entrusted with the duty of investigating the applicant’s allegations, questioned the applicant, his relative M.Y., the suspect and two other police officers as witnesses. That administrative investigation was conducted because the domestic law applicable at the time required prosecutors to seek permission from the administrative authorities before they could prosecute a police officer (see paragraph 58 below). A police officer, V.A., who worked at the Adana police station, testified as a witness. He stated that the applicant had neither been arrested nor ill-treated on 5 July 2001. 17. On the same day the applicant was arrested once more after a complaint was received regarding his CD stand, and taken to the police station. He was released the following day. 18.  On 25 October 2001 the Adana prosecutor decided not to prosecute the police officer because the Governor of Adana had denied the requisite permission for a criminal prosecution. 19.  On 6 May 2002 the prosecutor’s decision was notified to the applicant’s lawyer. On the same day the lawyer lodged an objection against the decision. 20.  In response to the applicant’s objection, on 20 May 2002 the Tarsus Assize Court decided to quash the decision and ordered the prosecutor to file criminal charges against the police officer. The Assize Court noted that the prosecutor had not conducted a proper investigation and had failed, in particular, to establish whether the applicant had been taken to the police station on 5 July 2001, and to question the eyewitnesses named by the applicant. 21.  M.T., a police officer working at the Adana Police Station, was subsequently indicted before the Adana 8th Criminal Court of First Instance (hereinafter “the criminal court”) and the applicant was admitted to the case as the complainant. On 14 August 2002 M.T. gave his statement before the criminal court. He denied all the charges. 22.  On 13 August 2002 the suspect M.T. informed the criminal court in writing that he had been assigned to work for the United Nations Mission in Kosovo; therefore, he would not be able to be present at the court hearings. As a result, until June 2004 the criminal court was unable to summon him to take part in the proceedings. 23.  On 18 March 2003 and 29 September 2003 the witnesses proposed by the applicant testified before the criminal court. The first witness stated that he had helped the applicant at his CD stand occasionally, and that he had seen him on the day of the incident. The applicant had told him that he had been ill-treated by the police because he had refused to provide them with free CDs. The other witness testified that he had taken the applicant to the hospital, and during that time the applicant had told him that he had been beaten in the police station. 24.  On 25 March 2003 police officer V.A. (see paragraph 16 above) appeared as a witness before the criminal court. He testified that the applicant had been taken to the police station by the suspect M.T. However, he had not been subjected to ill-treatment. 25.  On 10 June 2004 the suspect M.T. attended the hearing before the criminal court. The applicant was not present at the hearing. The criminal court ordered the applicant to attend the next hearing and identify the suspect from his photographs. However, the applicant and his relative M.Y. could not be brought before the criminal court until May 2005 as a result of a change of address. 26.  On 5 May 2005 the applicant and his relative M.Y. attended the hearing before the criminal court. M.Y. also testified as a witness. He stated that the applicant had been subjected to ill-treatment at the police station and had suffered injuries to his ear, which was later diagnosed at the hospital as perforation of the eardrum. The criminal court also asked him to identify the suspect from his photograph. M.Y. stated that he needed to see the suspect in person in order to be able to identify him because he considered that he would not be able to do so from the photographs. 27.  On 5 January 2006 the criminal court was informed that the suspect could not appear before the court because he was in Kosovo. The suspect could not be brought before the court until December 2006. 28.  On 17 September 2007 the criminal court decided to acquit the police officer on the ground of insufficient evidence. 29.  On 18 September 2007 the applicant’s lawyer appealed to the Court of Cassation. 30.  On 8 February 2010 the Court of Cassation quashed the decision of the first instance court on the ground that the limitation period had expired, and ordered the discontinuation of the proceedings against the police officer.


5.  The applicant was born in 1954 and lives in Herceg Novi. 6.  The facts of the case, as submitted by the parties, may be summarised as follows. 7.  On 6 February 2003 a Montenegrin daily newspaper published an article about the quality of the water in the Herceg-Novi area, entitled “Taps full of bacteria” (Slavine pune bakterija). The article stated that all of the current water sources contained various bacteria. These assertions were based on a report produced by the Institute for Health (Institut za zdravlje Crne Gore), which had been requested by the Chief State Water Inspector (Glavni republički vodoprivredni inspektor, hereinafter “the Chief Inspector”), apparently with a view to exploring the possibility of connecting additional sources to the water-supply grid. The same article also included a statement by the applicant, at that time the Director of a public corporation called “The Water Supply and Sewage Systems” (JP Vodovod i Kanalizacija, hereinafter “the Water Supply Company”) and a member of the Socialist People’s Party (SNP)[1], that he was not familiar with the analysis at issue, but that the water was regularly tested and always filtered before being pumped into the system. 8.  On the same day the applicant held a press conference in response to the above-mentioned article. The applicant stated that, firstly, all tap water was filtered before being pumped into the water-supply system and was thus safe for use by the public. Secondly, the Chief Inspector had been promoting the interests of the two private companies which had already been granted licences to develop additional water sources and, lastly, the Chief Inspector had been directed to do so by the Democratic Party of Socialists (DPS)[2] and the companies in question had themselves obtained their licences unlawfully. The statement was published in several daily newspapers. 9.  On 7 April 2003 the Chief Inspector lodged a private criminal action (privatna krivična tužba) against the applicant for defamation (kleveta), claiming that the latter’s statements were untrue and, therefore, harmful to his honour and reputation. 10.  On 4 September 2003 the Court of First Instance (Osnovni sud) in Podgorica held the main hearing, during which the applicant said that his statement was not defamatory, but that “it was a value judgment, which he could prove”. He stated that he had been informed about the results of the water analysis three days after the press conference, and the analysis clearly stated that the water from the water-supply system was of the necessary quality and was not a danger to health. He explained that there were obviously two reports, one concerning the water sources and one concerning the filtered water. He did not dispute the right of the Chief Inspector to ask for a water analysis, as it was his duty to do so, but the applicant did not think that the analysis of unfiltered water should have been published, but rather the analysis of the filtered water. Finally, he proposed that the court should read the article “Taps full of bacteria” to understand the context in which the impugned statement had been made, and that it should obtain the files concerning other proceedings ongoing at the time between the Water Supply Company and the two private companies in question. 11.  At the same hearing the court also heard the Chief Inspector. He stated that he had always worked professionally and that he did not work under anybody’s orders, he himself having filed a criminal complaint against one of the two companies. He stated that he had ordered the analysis at issue after consulting his Minister, who had “supported” him (“koji [me] je podržao u tome”). He emphasised that the title of the newspaper article had had nothing to do with him, as newspapers wrote what they deemed appropriate (“novine pišu [...] po sopstvenom nahođenju”), although they were contacting him to obtain data. However, he was not interested in what the newspapers had written on this particular issue or why they had not published the analysis of the filtered water (“nije me interesovalo zašto nijesu objavljivali o analizi tretirane vode...”), his main concern being to prove that a particular water source was of adequate quality and that it could be used. 12.  On the same day the court found the applicant guilty and sentenced him to three months’ imprisonment. This sentence, however, was suspended and was not to be enforced unless the applicant committed another crime within a period of two years. 13.  In the operative part of the judgment only the following statement was found to amount to defamation, that is, to be “untrue” and “harmful to the honour and reputation of the private prosecutor”:
“The Inspector [...] works in the interest and at the request of [the two companies], as directed by the DPS”. 14.  In its reasoning the court stated that the statement made by the applicant was not supported by facts and rejected the applicant’s defence that it was merely a value judgment. In the court’s view the applicant had been aware that he might harm the honour and reputation of the private prosecutor and thus had had a defamatory intention (klevetnička namjera). The court refused to read the newspaper article or to request the files of the proceedings referred to by the applicant as that would only have delayed the proceedings and, in any event, neither was relevant for the proceedings at issue. 15.  On an unspecified date thereafter the applicant lodged an appeal. He stated that, firstly, the Chief Inspector had sought the said analysis in order to examine the possibility of connecting water sources administered by the two private companies to the water-supply grid. Secondly, there were two water analyses, before and after it had been filtered, but the Chief Inspector had provided the newspapers only with the analysis of the unfiltered water. Thirdly, the Chief Inspector himself had not responded to the misleading title of the article stating that the taps were full of bacteria, because he was “not interested” in it. Fourthly, the court had refused to read the newspaper article, without which it was impossible to conclude that his intention had been to defame the private prosecutor. Finally, he did not think it was defamatory to say that a “government official worked as directed by the ruling party”, or that his response to such an article could be considered to amount to defamation of the private prosecutor. 16.  On 1 November 2005 the judgment of 4 September 2003 was upheld by the High Court (Viši sud) in Podgorica, which fully endorsed the reasons given by the Court of First Instance. No effective appeal lay against this judgment to the Court of Serbia and Montenegro (see paragraphs 17-18 and 29 below).