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test	001-175681	ENG	RUS	COMMITTEE	2,017	CASE OF ZAKHARKIN v. RUSSIA	4	Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) read in the light of Article 10 - (Art. 10) Freedom of expression-{General} (Article 10-1 - Freedom of expression)	Alena Poláčková;Helen Keller;Pere Pastor Vilanova	4. The applicant was born in 1961 and lives in Surgut, KhantyMansiyskiy Region, Russia. 5. The applicant was the leader of a trade union in a private company. His co-workers expressed a wish to hold a public assembly on Constitution Day on 12 December 2009 and the applicant, in his capacity as trade union leader, decided to help them. According to him, such help was “an indirect expression of his own opinion”. The applicant distributed banners and explained that it would be more practicable to stage solo demonstrations. To avoid prosecution for holding a public assembly without notifying the authorities in advance, the applicant suggested that his co-workers position themselves at some distance from each other, for instance on different streets. At the time, there was no federal or regional statutory requirement concerning the minimum distance between simultaneous solo demonstrations (see “Relevant domestic law”). 6. The applicant was then arrested and taken to the police station, where he was held for three hours. 7. On 18 December 2009 a justice of the peace found him guilty under Article 20.2 § 1 of the Code of Administrative Offences (“the CAO”) and fined him 1,500 Russian roubles (RUB) (35 euros at the time). The court considered that the applicant and his co-workers had met in one place; the applicant had given instructions to the others and had distributed banners; he had taken them to the place of the demonstration. In the court’s view, the above circumstances disclosed the presence of a group event in the form of a static demonstration (a “picket”), and confirmed the applicant’s role as its organiser. Thus, it was incumbent on the applicant to lodge a prior notification about this event to the competent authority as required by section 7 of the Public Events Act (“the PEA”). 8. The applicant appealed noting that the PEA defined a “picket” as a form of public expression of opinion where one or more citizens with placards, banners and other means of visual expression stationed themselves near the target object of the “picket”. However, there had been a separate “target object” for each solo demonstrator; the demonstrators had been positioned at a considerable distance from each other (for instance, thirty metres for two of them); thus, he could not be lawfully considered as an organiser of a group event. 9. On 22 January 2010 the Surgut Town Court upheld the judgment.	1
test	001-178094	ENG	TUR	ADMISSIBILITY	2,017	CESUR v. TURKEY	4	Inadmissible	Jon Fridrik Kjølbro;Nebojša Vučinić	1. The applicants, Mr Adem Cesur and Ms Nurdan Cesur, are Turkish nationals, who were born in 1952 and 1958, respectively, and live in Istanbul. 3. The applicants’ son Cüneyt Cesur worked as a police officer in Akçakale, a district of Şanlıurfa, and was married to Cahide Cesur who was also a police officer, at the material time. 4. On an unknown date Cüneyt Cesur instituted divorce proceedings against Cahide Cesur on the basis of breakdown of their relationship. Cahide Cesur decided to move to another house alone in the same district. 5. On 14 April 2009, at around 7:20 p.m., while Cahide Cesur was moving to another house in the same district, with the help of her father and a number of other people from the same town, Cüneyt Cesur came in. According to the statements of those present in the room who were subsequently questioned as witnesses, Cüneyt Cesur opened fire in the direction of the ceiling, then fired a shot on the back of his wife, before shooting himself on the head. Both Cüneyt Cesur and Cahide Cesur were taken to the hospital. Meanwhile, Ö.E., one of the people who was helping Cahide Cesur in the house, was also injured in the hand by a ricocheting bullet. At around 9:50 p.m. the same day Cüneyt Cesur lost his life at the hospital. 6. On 15 April 2009 at 1.10 a.m. an autopsy was carried out by two forensic doctors under the supervision of the public prosecutor at the hospital. According to the post-mortem report, there was a bullet entry wound at right temporoparietal, measuring 5 x 4 centimeters and an exit wound at left parieto-occipital, measuring 5.5 x 4 centimeters. It was noted in the report that the death had occurred due to the injuries caused by the bullet wound and that the shot had been a contact shot or a near-contact shot (bitişik ya da bitişiğe yakın). 7. On 15 April 2009 Şanlıurfa Security Directorate (Şanlıurfa Emniyet Müdürlüğü Olay Yeri İnceleme ve Kimlik Tespit Şube Müdürlüğü) issued an expert report stating that a fingerprint belonging to Cüneyt Cesur’s left index finger had been found on the gun, next to the safety pin. 8. On 28 April 2009 Diyarbakır Criminal Police Laboratory also issued its expert report. That report indicated that analysis of the samples taken from the deceased’s hands and the hands of Cahide Cesur and two other witnesses, Ö.Y. and Ö.E., using the so-called “atomic absorption spectrometry” technique, had revealed that only the deceased had gunpowder residue (“atış artığı”) on his hands, on the outside of his right hand and inside of his left hand. 9. On 4 June 2009 Diyarbakır Criminal Police Laboratory prepared a second report, indicating that the bullets found at the crime scene had been fired by the gun which belonged to Cüneyt Cesur. 10. On 19 November 2009 Akçakale prosecutor issued a decision of non-prosecution. The prosecutor, having regard to the statements of the witnesses, the crime scene report, the post-mortem reports and the Diyarbakır Criminal Police Laboratory’s reports, held that Cüneyt Cesur had committed suicide by using his own gun. 11. On 31 January 2011 the applicants lodged a criminal complaint with the Akçakale prosecutor, claiming that the death of their son was suspicious and that the investigation which had already been concluded could not be considered to be an effective investigation. The applicants requested that another autopsy be conducted, claiming that the existing autopsy report was not sufficient. According to the applicants, the scars which they had noted on the head of their son at the time of his burial, did not match the findings recorded in the autopsy report. The applicant Adem Cesur, who is a retired police officer, claimed that his son had been shot on the left side of his head. The applicants further alleged that the place where the gun had been found raised suspicions, and complained of the fact that the mobile phones that their son had used were not examined. Lastly, the applicants also alleged that, when they went to Akçakale eleven months after the incident, they had received more information from some of the witnesses, raising even more suspicions on the circumstances of their son’s death 12. On 10 March 2011 the Akçakale prosecutor issued another decision of non-prosecution, on the grounds that the post-mortem report of 15 April 2009, the statements of the witnesses and the other evidence gathered by the investigators did not leave any room for doubt that the applicants’ son had committed suicide. The public prosecutor also stated that a decision not to prosecute had already been taken in relation to the same incident and unless new evidence was discovered it was not possible to initiate a new criminal investigation under Article 172 § 2 of the Turkish Code of Criminal Procedure. 13. The applicants filed an objection against the decision of non-prosecution, claiming that their son might have been shot by somebody else. The Siverek Assize Court examined the merits of both the prosecutor’s decision and the applicants’ objection in its decision of on 25 June 2011 and dismissed the objection. According to the court, the criminal investigation was conducted meticulously and that there was no reason to question any additional witnesses proposed by the applicants.	0
test	001-154059	ENG	GBR	ADMISSIBILITY	2,015	MARTUZEVIČIUS v. THE UNITED KINGDOM	4	Inadmissible	George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney	1. The case originated in an application (no. 13566/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Kęstutis Martuzevičius (“the applicant”), on 22 February 2013. 2. The applicant was represented by Mrs Baba of Central Law Practice, a lawyer practising in Wembley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. McLeod of the Foreign & Commonwealth Office. By letter dated 27 June 2013 the Lithuanian Government were asked to notify the Court by 14 August 2013 if they intended to intervene. They did not reply to this letter. 3. On 20 June 2013 the application was communicated to the Government. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant, a Lithuanian national born in 1962, entered the United Kingdom in 1996. On 22 April 2010 the Deputy Prosecutor General in Lithuania issued a European Arrest Warrant (“EAW”) in which he was accused of having committed twenty-two dangerous felonies. 6. The applicant was arrested pursuant to the EAW in June 2011 and detained in HMP Belmarsh. 7. On 13 October 2011 the Magistrates’ Court ordered the applicant’s extradition to Lithuania. The applicant applied to the High Court to have the order set aside on two grounds: first, that the lapse of time since the commission of the alleged offences would render his extradition unjust and oppressive; and secondly, that his extradition would violate Articles 2 and 3 of the Convention because, if returned to Lithuania, he would be at risk of reprisals by a notorious criminal organisation. 8. In August 2012 a doctor at HMP Belmarsh notified the applicant’s representative that he was suffering from paranoid delusions and that he had been referred to Broadmoor High Security Psychiatric Hospital. A psychiatric report prepared on 6 November 2012 recorded that he had been suffering from depression since July 2012, that he was suffering from a delusional disorder and that he should be transferred to Broadmoor for treatment. 9. However, the authorities at Broadmoor did not accept that he should be transferred there. The applicant’s legal representatives subsequently obtained a report from another psychiatrist, who noted that the applicant appeared to be seriously depressed, that he was suffering from a delusional disorder, and that there was a risk of suicide. The psychiatrist expressed some surprise that the applicant’s transfer to Broadmoor had not been granted and suggested that the refusal decision from Broadmoor should be appealed. 10. The High Court hearing was listed for 11 December 2012. The applicant sought an adjournment in order for a full psychiatric report to be obtained. 11. On 11 December 2012 the High Court refused the application for an adjournment. It also refused to set aside the order of the Magistrates’ Court and refused to grant the applicant permission to appeal to the Supreme Court. 12. The High Court’s consideration of how the applicant’s mental health condition would be affected by extradition and the treatment that would be available to him in Lithuania was limited to the following paragraph: “As far as his mental state is concerned, there is evidence before us that the reports on his state, if not already forwarded, will be forwarded and any necessary treatment will be available to him either in hospital if that is necessary or perhaps as an outpatient if he is on bail.” 13. A psychiatric report dated 6 January 2013 recorded that the applicant was suffering from a serious mental illness which required treatment in hospital and which he could not explain by malingering. The applicant sought to re-open the appeal on the basis of this report. However, on 19 February 2013 the High Court refused to certify a point of law of general public importance and thus refused to re-open the appeal. 14. On 21 February 2013 the High Court stayed the applicant’s extradition until four o’clock GMT on 27 February 2013 to enable him to apply to this Court for an interim measure under Rule 39 of the Rules of Court. 15. On 22 February 2013 the applicant’s legal representatives lodged an application before this Court on behalf of the applicant and requested an interim measure to prevent his extradition to Lithuania. 16. On 26 February 2013 the Court asked the Government to provide, by twelve o’clock noon GMT on 27 February 2013, a transcript of the High Court hearing of 11 December 2012 and at the same time to confirm whether or not any assurances had been received from the Lithuanian Government regarding the availability of mental health treatment in detention centres in Lithuania. The Government duly submitted a copy of the transcript and confirmed that there was no record of any assurances on the applicant’s file. 17. On 27 February 2013 the Acting President of the Section decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be extradited to Lithuania until further notice. 18. By letter dated 28 February 2013 the Court asked the Government to respond to the following questions by 21 March 2013: “1. Are your Government aware of the medical report by Dr Andrew Sutherland Horne of 6 January 2013? 2. How do your Government respond to Dr Horne’s opinion that the applicant should be transferred to Broadmoor Hospital? 3. In your Government’s view, would the applicant have access to adequate mental health services upon extradition to Lithuania: (a) in detention pending trial? (b) if he were found not fit to plead? (c) if he were to be tried and convicted? 4. Does the applicant have continuing family and/or personal ties to Lithuania?” 19. The Government replied on 20 March 2013. In their letter they informed the Court that the only parties in extradition cases were the defendant and the Issuing Judicial Authority. As a consequence, the Government had not been represented as a party in the present extradition proceedings and were not in a position to provide the additional information requested. 20. Following communication of the applicant’s case on 20 June 2013, the Prison Service re-referred the applicant to Broadmoor as there had been no change in his mental health condition. 21. On 15 January 2014 the applicant’s representatives notified the Court that he had been admitted to Broadmoor. 22. However, the applicant’s mental health condition subsequently improved significantly and on 13 June 2014 his transfer was ordered from Broadmoor Hospital to HMP Belmarsh. The Government also obtained a number of assurances from the Lithuanian Government: first, given the length of time he had spent in remand in the United Kingdom, there was a very real prospect that upon his return to Lithuania the applicant would be released during the pre-trial investigation stage; secondly, if he were to be remanded in custody and his health were to deteriorate, he would be hospitalised immediately in the psychiatric department of the central prison hospital; thirdly, if he were to remain in an ordinary custodial facility, he would be held in a prison which had psychiatric services available; fourthly, if his fitness to plead were to be in issue, he would be subject to forensic psychiatric examination; fifthly, there would be provision for compulsory or voluntary hospitalisation for treatment of the applicant’s mental health; and finally, if the applicant were convicted and sentenced and continued to require specialist psychiatric care, he would be sent to a facility specifically adapted for convicted persons with special needs. 23. Part I of the Extradition Act 2003 deals with extradition to Category 1 territories which, by designation of the Secretary of State, include all the member states of the European Union which operate the European Arrest Warrant system. Lithuania is therefore a Category 1 territory. 24. Section 21 of the Act requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. If the extradition would be incompatible, then the judge is required to order the person’s discharge. Section 25 provides that if the physical or mental condition of the persons whose extradition is requested is such that it would be unjust or oppressive to extradite them, then the judge must discharge them. 25. If the judge at the extradition hearing orders the person’s extradition, section 26 provides for a right of appeal to the High Court. Section 32 provides for a right of appeal to the House of Lords against a decision of the High Court, with the leave of either the High Court or the House of Lords, which leave shall only be granted if the High Court has certified that the case involves a point of law of general public importance and the Court granting leave considers that the point ought to be considered by the House of Lords.	0
test	001-139933	ENG	HRV	CHAMBER	2,014	CASE OF MARAVIĆ MARKEŠ v. CROATIA	4	Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Equality of arms)	Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković	5. The applicant was born in 1949 and lives in Zagreb. 6. In 1985 the applicant was employed as an inspector for Zagreb Municipal Council (Grad Zagreb). On 25 June 1991 the Executive Board (Izvršno vijeće) of the Municipal Council removed the applicant from her position and on 26 June 1991 she was made available for redeployment (stavljena na raspolaganje) and subsequently redeployed to the Municipal Council’s Secretariat for Planning, Public Utilities, Transport and Infrastructure (Gradski sekretarijat za prostorno uređenje, komunalne poslove, promet i veze – “the Secretariat”) until 30 September 1991, without being given a permanent role there. 7. On 30 September 1991 the Secretariat determined that the applicant could not be found a permanent position within the organisation and terminated her employment upon the expiry of her notice period on 31 March 1992. The applicant did not, at the time, receive any severance pay following her dismissal. 8. On 29 July 2006 the applicant requested payment of severance pay from Zagreb Municipal Council’s Office for Planning, Environmental Protection, Development, Construction, Public Utilities and Transport (Gradski ured za prostorno uređenje, zaštitu okoliša, izgradnju grada, graditeljstvo, komunalne poslove i promet – “the Municipal Office”). 9. On 10 October 2006 the Municipal Office found that the request for payment should have been submitted within three years of the applicant’s dismissal and rejected it as lodged out of time. The relevant part of the decision reads as follows: “... The request of Dragica Markeš is inadmissible, as the conditions for initiating proceedings have not been met... By the Secretariat’s decision... the applicant’s employment was terminated on 31 March 1992 in accordance with section 383 of the Public Administration Act. On 29 July 2006 the applicant requested the severance pay, relying on section 383(a) of the Public Administration Act. This Office finds that in the present case the conditions for initiating proceedings following the request of Dragica Markeš have not been met. Section 138 of the Labour Act... sets the statute of limitations for claims arising from employment at three years. Section 214 subsection 1 of the Obligations Act... provides that the right to claim fulfilment of an obligation ceases when the statutory limitation period expires... In the present case, the statute of limitations ran from 1 April 1992. It follows that the applicant lodged her request for severance pay out of time...” 10. The applicant appealed against this decision to the Chief of the Municipal Office and on 9 November 2006 he dismissed the appeal as without merit and upheld the first-instance decision. The relevant part of the decision reads as follows: “... The appeal is without merit. ... After an examination of the appeal and the entire case file, it was found that the first-instance body had fully and correctly established the factual background and had rendered a correct decision. There had been no breaches of procedural rules or errors in the application of the law to the detriment of the appellant... As regards the appellant’s allegations that, instead of provisions of the Labour Act and the Obligations Act, the provisions of the State Administration Act and Administrative Proceedings Act should have been applied to her case, [this authority finds them to be] unfounded... Section 371 of the Obligations Act provided that claims became time-barred after five years, if no other statutory limitation period was prescribed by law. Section 138 of the Labour Act provides that the statute of limitations for claims arising from employment, including severance pay, is three years. In the light of the above, it is apparent at the outset that under both the Obligations Act, relevant for determining the statute of limitations at the time the appellant’s employment was terminated, and under the Labour Act, relevant for determining the statute of limitations at the time of lodging the request, the appellant’s claim is time-barred. The validity of the decision of the first-instance authority is therefore clear...” 11. On 23 December 2006 the applicant brought an administrative action against the appeal decision in the Administrative Court (Upravni sud Republike Hrvatske). Subsequently, the Administrative Court forwarded the case for comment to the Municipal Office. 12. On 15 February 2007 the Municipal Office submitted its observations to the Administrative Court. In those observations the Municipal Office raised the issue of the applicant’s entitlement to severance pay for the first time and reiterated that the request for payment had been lodged out of time. These observations were not forwarded to the applicant. The relevant part of the observations reads as follows: “... II. It is further noted that even if the claimant had requested severance pay within the statutory time-limit, she would not have been entitled to it, as her employment was not terminated on the basis of section 383(a) of the State Administration Act, on which the claimant relied, but on the basis of section 383 of that Act.... Section 383 of the State Administration Act, on the basis of which the claimant’s employment was terminated, envisages the restructuring of units or individual posts as grounds for being made available for redeployment or termination of employment, and as such does not envisage severance pay... On the contrary, section 383(a) envisages the needs of the civil service as grounds for being made available for redeployment or termination of employment. It is further noted that section 383(a) of the State Administration Act, relied upon by the claimant, came into force on 8 October 1991, at the time when the decision setting the claimant’s notice period, on basis of section 383 of the State Administration Act, had been already rendered. Upon the expiry of that period, the claimant’s employment was terminated. ...” 13. On 26 September 2007 the applicant requested that the proceedings before the Administrative Court be expedited. On 7 February 2008 the applicant again requested that the proceedings be expedited and an oral hearing held in her case. On 24 May and 9 December 2008 the applicant requested that the Administrative Court expedite the proceedings and decide her case with or without holding an oral hearing. 14. On 31 March 2009 the applicant asked the Administrative Court and the President of the Supreme Court (Vrhovni sud Republike Hrvatske) to exclude the assigned judge and the President of the Administrative Court from her case. She expressed concerns that her case had been deliberately delayed. 15. On 16 April 2009 the President of the Supreme Court dismissed the applicant’s request for exclusion of the President of the Administrative Court as groundless. 16. On 23 April 2009 the President of the Administrative Court dismissed the applicant’s request for exclusion of the assigned judge as unsubstantiated. 17. On 6 May 2009 the Administrative Court dismissed the applicant’s action. The relevant part of the judgment reads as follows: “ ... The complaint is without merit. ... It transpires from the above-mentioned statutory provisions that the claimant’s employment was terminated on the basis of section 383, and not section 383(a) of the State Administration Act, and that the claimant’s claim is unfounded because her employment was terminated due to the restructuring of units or individual posts, and not due to redeployment for the needs of the civil service, as prescribed by section 383(a) of the Act. In the light of the above, the claimant has no grounds for severance pay. However, the defendant authority did not entertain the claimant’s severance pay entitlement. Instead, it declared her request inadmissible as time-barred... Given that the claimant lodged her request after the expiry of the statutory time-limit, the defendant authority correctly dismissed the claimant’s appeal against its decision ...” 18. On 10 July 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, inter alia, of a lack of adversarial proceedings before the Administrative Court. On 30 March 2011 the Constitutional Court declared the applicant’s complaint inadmissible as manifestly ill-founded. The relevant part of the decision reads as follows: “The constitutional complaint is declared inadmissible. 1. The constitutional complaint was lodged against the decision of the Administrative Court... of 6 May 2009 whereby [that court] dismissed the complainant’s administrative complaint and upheld the decision of the Municipal Office... of 9 November 2006. By that decision the complainant’s appeal against the first-instance decision whereby her request for severance pay had been declared inadmissible was dismissed. 2. The complainant considers that her rights guaranteed by Articles 14 § 2, 19 § 1, 29 § 1 and 48 § 1 of the Constitution were violated by the contested decisions. She also cites Articles 6, 13 and 14 of the European Convention on Human Rights... The conditions for examining the merits of the case have not been met. 3. ... Section 32 of the Constitutional Court Act provides: “The Constitutional Court shall declare inadmissible any request or complaint in respect of which it has no jurisdiction; which is lodged out of time; and in other situations where the conditions for examining the merits of the case are not met. By “examining the merits of the case”, section 32 of the Constitutional Court Act refers to scrutinising the constitutional law aspects of the case. 4. In accordance with the Constitution and the Constitutional Court Act, the Constitutional Court does not form part of the regular judicial system, does not conduct court proceedings and does not decide on the merits of judicial matters. The Constitutional Court is a separate body established under the Constitution for the protection of individual human rights and fundamental freedoms (constitutional rights) in proceedings instituted by a constitutional complaint. 5. A constitutional complaint is not a regular or extraordinary remedy within the system of domestic legal remedies. It is a special, constitutional remedy for the protection of constitutional rights in individual cases. It is therefore not sufficient to base a constitutional complaint on breaches resulting from alleged unlawful acts committed by a competent body or a court. The legal protection against such unlawfulness is provided by general and specialised courts in proceedings taking place before several levels of jurisdiction. They can exceptionally be examined before the Constitutional Court, but only in so far as they can [be argued to have] violated human rights and fundamental freedoms protected by the Constitution. It is also not sufficient to repeat the submissions from the appeal or cassation proceedings or to merely enumerate constitutional rights that have allegedly been violated. The constitutional complaint must contain specific and reasoned claims of a breach of a constitutional right. 6. In the present case, the Administrative Court accepted the findings of the administrative bodies that the complainant’s claim had been time-barred, as her employment had been terminated on 31 March 1992 and she had submitted her request for severance pay on 29 July 2006. The Constitutional Court finds the claims in the constitutional complaint to be a repetition of the claims in the administrative complaint. In her constitutional complaint, the complainant was unable to show that the Administrative Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on. ...” 19. Meanwhile, on 28 November 2008 the applicant lodged a complaint with the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the administrative proceedings. 20. On 30 October 2009 her complaint was dismissed. The Supreme Court found that the proceedings had lasted for two years, eight months and fifteen days at two levels of jurisdiction, which was not deemed to be excessive. 21. The applicant appealed against this decision and on 7 February 2011 a panel of judges of the Supreme Court dismissed her appeal. 22. On 18 April 2011 the applicant lodged a constitutional complaint before the Constitutional Court against the decisions of the Supreme Court. 23. On 2 June 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the contested decisions were not susceptible to constitutional review.	1
test	001-172131	ENG	UKR	COMMITTEE	2,017	CASE OF SHUST AND SIDORENKO v. UKRAINE	4	Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)	Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. They also raised other complaints under the provisions of the Convention.	1
test	001-160416	ENG	RUS	COMMITTEE	2,016	CASE OF ULYANOV AND OTHERS v. RUSSIA	4	Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)	Branko Lubarda;Dmitry Dedov;Helena Jäderblom	8. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal convictions for drug dealing. 9. The applicants disagreed with their convictions and argued that the police had incited them to commit drug-related offences.	1
test	001-175138	ENG	HRV	CHAMBER	2,017	CASE OF ORAVEC v. CROATIA	3	Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković	5. The applicant was born in 1978 and lives in Osijek. 6. On 27 April 2011 the applicant was arrested on suspicion of trafficking illegal substances. On the same day an investigating judge of the Osijek County Court (Županijski sud u Osijeku) heard his evidence and ordered his pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). The decision also stated that the detention could not exceed forty-eight hours. 7. On 28 April 2011 another investigating judge of the Osijek County Court summoned the applicant, who said that he would be remaining silent because he wanted to be represented by a lawyer, D.O. The judge issued a decision on opening an investigation against him and two other suspects, G.D. and I.D., on charges of trafficking illegal substances. He also ordered his detention for one month, referring to Article 104 § 1 and Article 102 § 1 (3) of the Code of Criminal Procedure. The applicant’s detention was ordered because G.D. had said that he had been buying illegal drugs from him. Furthermore, he was unemployed and another set of criminal proceedings on similar charges was pending against him. Following an appeal lodged by the applicant, on 3 May 2011 the decision on his detention was upheld by a three-judge panel of the Osijek County Court. 8. On 24 May 2011 the investigating judge ordered the applicant’s immediate release because G.D. had retracted his previous statement that he had been buying illegal drugs from him. Furthermore, the applicant had submitted documents showing that he had his own candle-making business. The applicant was released that same day. However, following an appeal lodged by the Osijek County State Attorney’s Office (Županijsko državno odvjetništvo u Osijeku), on 26 May 2011 a three-judge panel of the Osijek County Court quashed that investigating judge’s decision and ordered him to re-examine the case. 9. On 31 May 2011 the investigating judge confirmed his previous decision. On 1 June 2011 the Osijek County State Attorney’s Office lodged an appeal, which was not communicated to the applicant or his counsel. It was argued that the risk of the applicant reoffending continued to exist for several reasons. Firstly, G.D. had given a detailed statement describing how he and I.D. had been buying illegal drugs from the applicant, and the evidence showed that the applicant had had frequent telephone contact with G.D. and I.D. Furthermore, G.D.’s retraction of his previous statement had been unconvincing. Secondly, the applicant had already been convicted of a similar offence, and another set of criminal proceedings concerning charges of trafficking illegal substances were pending against him. Thirdly, the evidence indicated that the applicant had been suspected of selling illegal substances over a longer period of time. Fourthly, he was unemployed and had no lawful means of subsistence. 10. On 10 June 2011 a three-judge panel of the Osijek County Court, composed of Judges D.K., A.B. and M.J., held a closed session in the parties’ absence. They reversed the investigating judge’s decision and ordered the applicant’s pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure. The decision did not set any time-limit for the detention. 11. On 14 June 2011 the applicant was again placed in pre-trial detention. 12. On 17 June he lodged an appeal with the Supreme Court against the decision of 10 June 2011. Judge M.R., acting as a single judge of the Osijek County Court, declared it inadmissible on 27 June 2011 on the grounds that it was not amenable to further appeal. This decision was upheld on 1 July 2011 by a three-judge panel of the same court, composed of Judges R.Š., A.R. and N.S. 13. On 6 July 2011 the Osijek County State Attorney’s Office indicted the applicant in the Osijek County Court on charges of trafficking illegal substances. 14. On 8 July 2011 a three-judge panel of the court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure. An appeal lodged by him against that decision was dismissed by the Supreme Court on 20 July 2011. 15. On 12 July 2011 the applicant lodged two constitutional complaints, about the decisions of 10 June and 1 July 2011 respectively (see paragraphs 10 and 12 above). 16. On 15 July 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the constitutional complaint about the decision of 10 June 2011 inadmissible, on the grounds that on 8 July 2011 a new decision extending the applicant’s detention had been adopted. It also declared his constitutional complaint about the decision of 1 July 2011 inadmissible, endorsing the lower courts’ reasoning (see paragraph 12 above). 17. On 18 October 2012 the Osijek County Court dismissed the indictment against the applicant because the prosecutor had withdrawn the charges against him. On 14 June 2012 the Supreme Court ordered his release. 18. On 15 April 2013 the applicant submitted a request for settlement with the Ministry of Justice in connection with his wrongful detention. A settlement was not reached. 19. On 1 August 2013 the applicant brought a claim in the Osijek Municipal Court against the State under Article 480 of the Code of Criminal Procedure, seeking non-pecuniary and pecuniary damages for his detention, which he claimed had been unfounded (neosnovan). 20. On 18 February 2014 the court allowed the applicant’s claim and awarded him 137,550 Croatian kunas (HRK – about 18,560 euros) in non-pecuniary damages. It held that his detention had been unfounded because a judgment dismissing the charges (presuda kojom se optužba odbija) had been adopted after the State Attorney’s Office had dropped the charges against him. The proceedings are still pending as regards the claim for pecuniary damages. The relevant part of the judgment reads: “The claimant’s claim is well founded in its entirety. The documents in the case file show that the claimant was finally acquitted of the charge [sic] that he had committed the criminal offence against the values protected by international law – abuse of illegal drugs, described and punishable under Article 173 § 2 of the Criminal Code in conjunction with section 41 of the Criminal Code Amendments Act (Official Gazette no. 71/06) by the Osijek County Court’s final judgment no. K-43/2012-86 of 18 October 2012. Further documents show that the claimant was actually detained in connection with the criminal proceedings against him for 393 days. The Osijek County Court’s decision no. Kv-138/2011-3 of 26 May 2011 (pages 16 and 17 of the case file) shows that the claimant had already been finally convicted by the Donji Miholjac Municipal Court of the criminal offence of abuse of illegal drugs under Article 173 § 1 of the Criminal Code, that is to say for an offence of the same type but in its basic form. Against the above background, this court considers that the claimant is to be awarded the amount of HRK 350 for each day he spent in detention, which in total amounts to HRK 137,550 since the claimant was detained without basis for 393 days. When assessing the adequate amount of [just] satisfaction, the Court has taken into account all the circumstances of this case: that the claimant was indicted for the criminal offence of abuse of illegal drugs, described and punishable under Article 173(2) of the Criminal Code in conjunction with section 41 of the Criminal Code Amendments Act; was deprived of his personal liberty for 393 days; [and] that the proceedings ended by the Osijek County Court’s judgment no. K-43/2012-86 of 18 October 2012 because the County State Attorney’s Office had withdrawn the charges. It is true that the claimant was previously convicted of the above-mentioned criminal offence. However, in the opinion of this court the sole fact that the claimant was previously convicted has no effect on the defendant’s obligation to compensate him for his unfounded deprivation of liberty, or his detention. Therefore, since the defendant has not proved that the claimant caused his arrest by some unlawful act such as absconding or concealing evidence, this court considers that there was no contribution on his part to the ordering of his detention.”	1
test	001-167802	ENG	RUS	COMMITTEE	2,016	CASE OF CHKHIKVISHVILI v. RUSSIA	4	Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion)	Alena Poláčková;Helen Keller;Pere Pastor Vilanova	5. The applicant was born in 1960 in the Georgian SSR of the USSR. He had lived in Russia since 1995. On 23 November 2007 his Georgian nationality was revoked by a decree of the President of Georgia. 6. In 1998, 2007 and 2009 the applicant was convicted of drug-related offences in Russia and given a custodial sentence. The most recent sentence was set to expire on 11 October 2012. 7. On 8 October 2012 the Ministry of Justice issued a decision declaring that the applicant’s presence in Russia would be undesirable upon his release (the “exclusion order”). 8. On 11 October 2012 the Federal Migration Service (FMS) issued a deportation order against the applicant and asked the Abakan Town Court of the Khakassiya Republic to authorise the applicant’s placement into the detention centre for aliens pending his deportation. On the same day the Town Court granted the request, holding that the applicant should remain in the centre “until his deportation”. 9. On 1 November 2012 the Abakan Town Court, and on 16 January 2013 the Supreme Court of the Khakassiya Republic, confirmed the validity of the exclusion and deportation orders. On 8 April 2013 the applicant’s request for leave to appeal was rejected. 10. On 7 November 2012 the Supreme Court of the Khakassiya Republic heard the applicant’s appeal against the decision on his placement in custody. The Supreme Court upheld the detention order but limited it in time until 31 December 2012. 11. On 14 December 2012 the Abakan Town Court examined an application for an extension of the time-limit. Noting that the FMS had not yet received a response from the Georgian Interests Section as to the applicant’s nationality, it extended the time-limit until 1 July 2013. 12. The applicant filed an appeal. He submitted that, upon serving the sentence, he should have been given an opportunity to leave Russia of his own will but that had been refused to him. 13. On 24 January 2013 the Supreme Court of the Khakassiya Republic rejected the appeal. It further held that the Town Court had erred in fixing a specific time-limit for the applicant’s detention and that the applicant should remain in detention “until his deportation”. On 8 April 2013 the applicant’s request for leave to appeal was rejected. 14. On 1 March, 16 October and 23 November 2012 the FMS inquired the Georgian Interests Section at the Embassy of Switzerland in Moscow whether or not the applicant was a Georgian national. On 5 February 2013 the Georgian Interests Section replied that the applicant’s Georgian nationality had been revoked by the President’s decree on 23 November 2007. 15. On 30 January and 19 February 2013 the applicant asked the FMS to consider his deportation to Turkey where he owned real estate and where he had lived between 2001 and 2005. On 27 February 2013 the FMS applied for assistance to the Consular Department of the Ministry of Foreign Affairs (MFA). However, on 16 May 2013 the MFA explained that it was unable to issue laissez-passer documents to foreign nationals and referred the FMS to the Turkish Embassy in Moscow. 16. In June 2013 the FMS established a working group on the applicant’s deportation. On 1 July 2013 the group sent a request to the Turkish Embassy and also asked the Georgian Interests Section whether the President’s decree revoking the applicant’s Georgian nationality could be quashed in connection with the Georgian amnesty act of 13 January 2013. 17. The applicant complained to a court about an excessive length of his detention. He submitted that he had been spent more than eight months in custody owing to the FMS’s failure to act diligently in the deportation proceedings. On 26 July 2013 the Abakan Town Court agreed with the applicant’s claim, noting that more than six months had lapsed between a first inquiry to the Georgian Interests Section about the applicant’s nationality dated 1 March 2012 and the second inquiry dated 16 October 2012, that no information about any action by the FMS in the period between 27 February and 1 July 2013 had been submitted, and that a request to the Turkish Embassy had been sent more than forty-five days after receiving the MFA’s explanation. The Town Court pronounced unlawful the FMS’s failure to act but refused to fix a time-limit for the applicant’s detention, referring to the Supreme Court’s judgment of 24 January 2013 (see paragraph 13 above). 18. In the meantime, Georgian counsel for the applicant’s family challenged the President’s decree revoking the applicant’s Georgian nationality in the Tbilisi City Court. Hearings were held on 26 September and 11 and 22 October 2013. On 11 November 2013 the City Court granted the claim and set aside the decree. That decision was upheld on appeal on 10 January 2014. 19. On 24 February 2014 the applicant obtained Georgian passport. On 3 March 2014 he was deported from Russia.	1
test	001-141197	ENG	DEU	CHAMBER	2,014	CASE OF KARAMAN v. GERMANY	2	No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)	Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens	6. The applicant was born in 1952 and lives in Istanbul. He is the founder of the Turkish TV station Kanal 7 and director of the management board of its operating company Yeni Dünya Iletisim A.S. Kanal 7’s programme contents are broadcast nationwide in Turkey and in Germany through the TV station Kanal 7 Int. The latter is operated by private limited-liability companies established under German law and, since 2001, by Euro 7 Fernseh- und Marketing GmbH (Gesellschaft mit beschränkter Haftung) with the applicant as one of its shareholders. The applicant alternately occupied the position of managing director (Geschäftsführer) or authorised signatory (Prokurist) in such companies. 7. Since 1998 a specific programme slot in the channel’s broadcasting schedule had been allocated to the non-profit association Deniz Feneri Yardimlasma Dernegi, founded, inter alia, by the Kanal 7 head of human resources who was also a member of the association’s board of directors. During that programme, broadcast in Turkey and in Germany, the association reported on charitable aid projects being run by it and appealed for monetary donations. In 1999 a similar association was founded in Germany under the name of Deniz Feneri Dernegi e.V. (hereinafter “Deniz Feneri”) by G., one of the other shareholders and managing directors or, alternately, authorised signatories of Euro 7 Fernseh- und Marketing GmbH. G. was also appointed chairman of the association and remained in that position until 2006. In its donation appeals on television Deniz Feneri stressed that the funds donated would be used directly and exclusively for charitable purposes and for the funding of social projects. 8. In 2006 the Frankfurt am Main prosecution authorities (Staatsanwaltschaft) launched investigations against the applicant and several co-suspects, including G., on suspicion of having fraudulently used the majority of funds donated to the associations for commercial purposes and their own benefit. 9. On 11 March 2008 the preliminary criminal proceedings against the applicant were separated from the investigations against the co-suspects. 10. In the middle of 2008 criminal investigations based on the same allegations of fraud were also initiated against the applicant in Turkey. 11. By a judgment, the operative part of which together with a summary of its reasoning was pronounced orally on 17 September 2008 (file no. 5/26 Kls 6350 Js 203391/06 4/08), the Extended Economic Crimes Chamber (Große Strafkammer als Wirtschaftsstrafkammer) of the Frankfurt am Main Regional Court convicted two of the applicant’s co-suspects, G. and T., of aggravated fraud (Betrug in einem besonders schweren Fall) acting as members of a joint criminal enterprise with its leaders in Turkey. Another co-accused, E., was convicted of having aided and abetted the commission of the offence. G. and T. were sentenced to prison sentences of five years and ten months and two years and nine months respectively, while E. was given a suspended prison sentence of one year and ten months. The full judgment, with the complete reasoning, was subsequently delivered in writing between 17 September and the beginning of November 2008. 12. The Regional Court found it to be established that G. had created and maintained a complex structure for the purpose of concealing the fact that the majority of the donations obtained for charitable purposes as advertised by Deniz Feneri were in reality earmarked and used to finance the entrepreneurial activities of private companies in which G. and the applicant, among others, became shareholders. At G.’s request, T. had contributed to the fraudulent misrepresentation by, inter alia, fabricating minutes of virtual association meetings of Deniz Feneri in order to conceal the unauthorised use of donated funds from the tax authorities. E., for his part, also acting upon instructions from G., had omitted to record the actual use of the donations in the association’s official accounts and had documented them in separate unofficial accounts (Nebenbuchhaltung). 13. The court’s findings were primarily based on confessions made by T., E. and G. following a plea bargain reached between the court, the prosecution authorities and the defence and also on further evidence obtained in the course of the trial. Whereas G. maintained that he alone had decided how the donated funds would be used without having consulted any contact persons in Turkey, T. and E. testified that G. had been integrated into the hierarchy of a criminal organisation whose leaders were in Turkey and in which the applicant had played a leading role. According to T. and E.’s testimony, G. had to obtain the applicant’s prior approval with respect to all essential decisions relating to the use of donations obtained by the association. The court was therefore satisifed that G. had not been at the top of the criminal organisation’s hierarchy but had received orders from its leaders residing in Turkey. 14. The judgment’s reasoning is divided into six parts headed by Roman numerals. Part I provides information on the personal background of the accused. Part II contains a description of the circumstances of the case. Part III sets out the type of evidence on which the Regional Court based its establishment of the facts and the court’s assessment of the veracity and credibility of the relevant evidence. Parts IV and V contain the legal assessment of the offences committed by the accused and the determination of their relative guilt and the resulting sentence. Part VI stipulates that the accused are to bear the costs of the proceedings. The judgment refers on several occasions to the role that the heads of the criminal organisation in Turkey played in connection with the use of donated funds for non-charitable purposes. In that context the applicant’s full first and last names are mentioned numerous times in the judgment running to some thirtytwo pages. The most relevant passages of the judgment in parts II to V of its reasoning read as follows: ... It was neither the association’s chairman nor the registered members of the association [Deniz Feneri] who decided on the use of funds obtained on behalf of the association but the accused G. in coordination with and upon the instructions of the separately prosecuted (gesondert Verfolgte) Zekeriya Karaman, ..., ... and ..., ... (pp. 8 to 9) ... The accused G. and the persons in charge of Kanal 7 in Turkey were ... aware that donations collected in the German association’s [Deniz Feneri] name would only partly be used for charitable purposes or social projects. At any rate, since the year 2002 it had been the intention of G. and the separately prosecuted persons behind the scenes (Hinterleute) to also use a large part of the collected funds for economic activities, in particular for the start-up financing of entrepreneurial projects of private-law companies in which G. or the separately prosecuted Zekeriya Karaman, ..., ... and ... became shareholders. (pp. 9 to 10) ... For this reason, the accused G. and the separately prosecuted Zekeriya Karaman instructed the co-accused E. to keep unofficial accounts (Nebenbuchhaltung). (p. 11) ... Every month the contents of the unofficial accounts in Germany were coordinated between G. and ..., ... or Zekeriya Karaman. (p. 12) ... According to the entries in the unofficial accounts a total amount of 4,504,000 euros was handed over to the separately prosecuted Zekeriya Karaman. (p. 15) ... The separately prosecuted Zekeriya Karaman, ..., ..., ... and ... decided on the use of the funds collected by means of donations. In his capacity as director of the management board of Yeni Dunya Iletisim A.S., Zekeriya Karaman was accorded a pre-eminent role in this respect. (p. 15) ... The accused T. was not aware of the exact amount of donated funds that had been used for non-charitable purposes. However he endorsed appeals for further donations while knowing that they were to a large extent going to be used for unauthorised purposes ... Following G.’s arrest in April 2007 he was the contact person of Zekeriya Karaman with respect to all matters related to Deniz Feneri in Germany. The latter provided him with a mobile phone and a prepaid card in view of suspected telephone surveillance. (p. 21) ... Sachverhalt) have been established (steht fest) on the basis of the confessions made by the accused and further evidence obtained in the course of the trial as set out in the record of the hearing. (p. 22). ... The Chamber did not follow G.’s submissions that he alone had decided on the unauthorised use of donated funds without consulting the persons behind the scenes in Turkey. The accused E. and the accused T. had stated in the course of their confessions during trial and during previous police questioning that G. had been integrated into a hierarchy and had to coordinate all essential decisions with the separately prosecuted Zekeriya Karaman, ... and ..., while Zekeriya Karaman, in his capacity as director of the management board of Yeni Dunya Iletisim A.S., played a pre-eminent role. (p. 23) Such integration into a structure controlled from Turkey, as described by the two coaccused, is sufficiently proved by the implementation of an unofficial accounting system, a parallel structure to the television station and the association Deniz Feneri in Germany and Turkey for the collection of donations, the shareholding in the companies funded by donations, and the fact that cash withdrawals had been handed over at the premises of Kanal 7 in Turkey. By assuming sole responsibility for the donation appeals and the unauthorised use of the donated funds, the accused G. apparently tried to protect the persons behind him in Turkey from criminal prosecution in Germany and/or Turkey. (p. 23) ... ... The accused T. is guilty of fraud committed in his capacity as successive joint offender (in sukzessiver Mittäterschaft) pursuant to Articles 263 and 25 § 2 of the German Criminal Code. Not only did T. want to support the actions of others but he also wanted to participate in a joint operation (gemeinschaftliche Tätigkeit) together with G. and the persons behind the scenes in Turkey. (p. 25) ... ... Furthermore, it had to be considered in [G.’s] favour that he was not positioned at the top of the hierarchy which organised the fraud (Spitze der Organisation des Betrugs) but received instructions from the persons behind the scenes in Turkey. He could not decide alone on the unauthorised use of the donated funds but only develop ideas that ultimately had to be approved by the persons behind the scenes in Turkey. He was an executing organ rather than a decision maker (mehr ausführendes als bestimmendes Organ). (p. 28) ... [T.’s] confession was not limited to his own participation in the commission of the offence. He also revealed his knowledge regarding the background and in particular concerning the persons behind the scenes. His knowledge was limited since G. and the persons behind him deliberately granted him only a restricted insight. In the hierarchy he was placed far below G. and the responsible persons in Turkey. (p. 29) ... By keeping unofficial accounts [E.] made a significant contribution to the functioning of the overall system. The fact that he was not only requested by G. but also directly by the separately prosecuted Karaman to keep off the recorded accounts demonstrates the importance of such unofficial accounting. (p. 30) ... The persons behind the scenes in Turkey had previously attempted to prevent [E.] from testifying before the investigative authorities by establishing contact with his first counsel and members of his family.” (p. 31) 15. According to an article published by the German newspaper Frankfurter Rundschau on the Internet on 18 September 2008, the Acting President of the Frankfurt am Main Regional Court’s Extended Economic Crimes Chamber had stated, when delivering the judgment, that the donated funds had been used by the persons behind the scenes for a mixture of their own economic and political purposes even though part of the money had indeed been spent on aid projects. The same newspaper had reported in an article published on the Internet on 15 September 2008 that the prosecution authorities (Staatsanwaltschaft) had referred to the applicant as the “main perpetrator and leader (führender Kopf) of the whole organisation”. Similar quotations were published in several Turkish newspapers on 17 and 18 September 2008. For instance, according to an article published in the Turkish newspaper Hürriyet on 18 September 2008, the presiding judge had declared when delivering the judgment, that “strings were pulled at the level of Kanal 7. G. and T. acted in accordance with instructions they had received from Kanal 7, in particular from Zekyria Karaman, ..., ... and ... The main persons in charge were located in Turkey.” 16. The judgment was published on the Regional Court’s website on 25 November 2008. In the judgment’s Internet version the names of the accused and separately prosecuted were replaced by letters and the names of the companies involved by numbers. The introductory comments to the Internet publication included a paragraph stating that the judgment had become final and was binding only on the three convicted persons. It was specified that references and findings in the judgment with respect to the actions of other persons, in particular those separately prosecuted, were not binding in relation to those persons and that the latter still benefited from the presumption of innocence. The text of the judgment itself does not contain a similar specification. 17. The judgment became final on 13 November 2008. 18. By written submissions dated 16 December 2008 the applicant lodged a complaint with the Federal Constitutional Court. He argued that the references in the reasoning of the Regional Court’s judgment of 17 September 2008 to his role in the fraudulent use of the donated funds had violated the principle of the presumption of innocence, which constituted one aspect of the constitutionally guaranteed right to a fair trial taken in conjunction with the principle of the rule of law. 19. By a decision of 3 September 2009, served on the applicant on 25 September 2009, the Federal Constitutional Court dismissed the complaint as inadmissible (file no. 2 BvR 2540/08). 20. The Constitutional Court found that while defendants were not categorically prevented from challenging a judgment delivered in proceedings conducted against third persons, an applicant who had not been party to the proceedings did have to be able to claim that his or her legitimate interests were directly affected by the impugned decision and not only in an indirect de facto manner. The Constitutional Court reiterated its established case-law according to which, by virtue of the constitutionally guaranteed principle of the presumption of innocence, no measures effectively amounting to a penalty could be taken against an accused without his guilt having been established beforehand in the course of a fair trial. Furthermore, that finding of guilt had to become final before it could be held against the person concerned. However, in the context of criminal proceedings the presumption of innocence did not prevent the law-enforcement authorities from making an assessment as to whether and to what degree a person could be suspected of having committed a criminal offence. 21. , the Constitutional Court pointed out that the presumption of innocence did not protect the applicant ab initio from any factual impact of statements made in a judgment rendered in criminal proceedings against third persons with respect to his own involvement in the commission of the offence. That judgment did not constitute a decision that required the determination of the applicant’s guilt or exposed him to disadvantages amounting to a conviction or sentence. Statements made in criminal proceedings against third persons did not have a binding effect on the courts or the prosecution authorities, whether with respect to preliminary proceedings pending against an applicant or in relation to any other court or administrative proceedings to which an applicant might possibly become a party in the future. The applicant could not be regarded as guilty on the basis of that judgment and was still protected by the principle of the presumption of innocence. The fact that the establishment of the facts by the Regional Court not only concerned the accused, who were convicted at the end of the proceedings, but also the applicant was an inevitable consequence of the fact that in complex criminal proceedings it was hardly ever possible to conduct and terminate the proceedings against all the accused simultaneously. 22. A request for legal assistance was sent to the Turkish authorities on 20 January 2009 with a view to obtaining the applicant’s examination in Turkey. No information was submitted to the Court as regards compliance with that request. 23. On 20 August 2009 the Frankfurt am Main prosecution authorities brought charges against the applicant and three co-accused in connection with the events in issue. It further appears that on 9 April 2012 the Ankara General Prosecutor’s Office brought similar charges against the applicant and that his trial in Turkey commenced on 16 January 2013. According to the Government’s submissions, the Frankfurt am Main Regional Court, by an order dated 19 August 2013, opened the main hearing in the proceedings against the applicant. These are apparently still pending.	0
test	001-167092	ENG	RUS	COMMITTEE	2,016	CASE OF TUMANOV v. RUSSIA	4	Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)	Branko Lubarda;Dmitry Dedov;Helena Jäderblom	4. The applicant was born in 1984 and is detained in Saint-Petersburg. 5. On 22 April 2004 he was arrested on suspicion of murder. 6. On 24 April 2004 the Vyborgskiy Federal District Court of Saint-Petersburg authorised the applicant’s pre-trial detention. He remained in custody pending investigation and trial. 7. On 7 February 2005 the District Court extended the applicant’s pretrial detention. The court referred to the gravity of charges, the applicant’s character, lack of permanent residence in Saint-Petersburg, and risk of absconding or re-offending. 8. On 7 April 2005 the District Court returned the case to the prosecutor and extended the applicant’s detention without specifying any reasons. 9. On 15 September 2005, 21 October 2005 and 15 December 2005 when extending pre-trial detention, the District Court reproduced the grounds for detention described above. 10. On 2 March 2006 the Saint-Petersburg City Court quashed the detention order of 15 December 2005 and remitted the case for a fresh examination. 11. On 16 March 2006, 22 March 2006 and 21 June 2006 the District Court extended the applicant’s detention referring to the gravity of charges, absence of permanent residence, his character, possibility of absconding and committing crimes. The applicant and his lawyer did not attend the hearing on 21 June 2006. 12. On 30 June 2006 the Vyborgskiy District Court of Saint-Petersburg convicted the applicant of murder and theft. 13. On 31 January 2007 the Saint-Petersburg City Court upheld his conviction on appeal. As regards the applicant’s appeal against the detention order of 21 June 2006, the court noted that the lower court had failed to ensure the applicant’s and his lawyer’s presence at the hearing of 21 June 2006. However, in view of the applicant’s conviction, it discontinued the appeal proceedings finding them unnecessary.	1
test	001-148075	ENG	NLD	ADMISSIBILITY	2,014	ÖZTÜRK v. THE NETHERLANDS	4	Inadmissible	Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall	1. The applicant, Mr Fuat Öztürk, is a Turkish national, who was born in 1968 and lives in Rotterdam. He is represented before the Court by Ms J. Serrarens, a lawyer practising in Maastricht. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and their Deputy Agent, Ms L. Egmond, both of the Ministry of Foreign Affairs. 2. The Government of the Republic of Turkey were informed of their right to take part in the proceedings (Article 36 § 1 of the Convention) but did not express the desire to do so. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In April 2007 the applicant, a convict prisoner who had been in detention since 1999, was transferred to the Penal Institution “Dordtse Poorten” in Dordrecht. 5. By letter of 2 April 2007 the Correctional Institutions Agency of the Ministry of Justice (Dienst Justitiële Inrichtingen van het Ministerie van Justitie) informed the Governor of “Dordtse Poorten” about a project for the taking of prisoners’ biometric data (photographic likenesses and fingerprints), referred to by the name of “Biometrics”, which was prompted by the finding that a number of prisoners in a different institution had assumed a false identity. The project, referred to as a “catch-up exercise” (inhaalslag), was intended to constitute the initial phase of a complete overhaul of the prisoner identification system. As part of this project, the Governor of “Dordtse Poorten” was asked to take biometric data of certain prisoners in his institution. 6. As one of the prisoners chosen, the applicant was informed by letter of the intention of the Governor to take his fingerprints and digital photograph. The letter did not provide information on the storage or use of the data taken. The applicant states that the penal institution’s staff members, when asked, told him that the data would be stored for “decades” in a national database that would be accessible to the police and the judicial authorities. 7. On 23 April 2007 the applicant was asked to submit to the taking of his fingerprints and a digital photograph. He refused to do so, firstly, because he had already given these data when he was admitted to the penal institution and, secondly, because he opposed the fact that his data would be stored in a national database for an unknown length of time and that they would be accessible to the police and the judicial authorities. 8. Because of the applicant’s refusal to cooperate, the Unit Director of the penal institution imposed on the applicant three days’ solitary confinement in his own cell which included the removal of his television, starting on 24 April 2007. Later that day, the applicant submitted a complaint against this punishment to the Complaints Commission (beklagcommissie) of the penal institution’s Supervisory Board (Commissie van Toezicht), stating that he had complied with his obligations under Section 28 (2) of the Prisons Act (Penitentiaire Beginselenwet) when he had submitted to the taking of his fingerprints and digital photograph during his admittance to the penal institution. He further argued that he was not obliged to submit his data again because they would not be used internally, within the penal institution, but for a national database for which there was no legal basis in the Prisons Act or any other act. 9. On 25 July 2007 the Unit Director sanctioned the applicant a second time and the institution’s staff members threatened to report the applicant to the Public Prosecution Service for refusal to comply with an official order if he continued to refuse to provide his fingerprints and digital photograph. Following this threat, the applicant cooperated and submitted his data. He was, neither then, nor after his release, given any information on the way his data would be stored or used. 10. On 24 June 2008 the Complaints Commission of the penal institution’s Supervisory Board rejected the applicant’s complaint. It held that the sanction had not been unreasonable because the Governor had been obliged to comply with the instructions of the Correctional Institutions Agency; because the refusal of a prisoner to comply with an order of the Governor was a disciplinary offence; and because the applicant had refused to submit his data when ordered to do so by the Governor. 11. In his appeal to the Appeals Board (beroepscommissie) of the Council for the Application of Criminal Justice and Protection of Juveniles (Raad voor Strafrechtstoepassing en Jeugdbescherming) the applicant largely restated his arguments. He further submitted that the existence of a Determination of the Identity of Suspects, Convicted Persons and Witnesses Bill (Wetsvoorstel Wet identiteitsvaststelling verdachten, veroordeelden en getuigen), which provided a legal basis for the taking and processing of prisoners’ biometric data in a national database, proved that section 28 (2) of the Prisons Act did not yet confer any such power. 12. On 3 December 2008 the Appeals Board noted that in practice the identity of prisoners was checked at the time of admission to the institution. It further noted that on entering the institution the applicant had complied with this obligation to submit identifying data as provided for in section 28 (2) of the Prisons Act. It held that, even though the collection of the data itself had not been unlawful, it had been up to the Governor to explain to the applicant why his data needed to be taken a second time and to provide him afterwards with another opportunity to submit his data. As the Governor had failed to do so, the Appeals Board held that the sanction had been unreasonable. The Appeals Board awarded the applicant financial compensation in an amount of 22.50 euros (EUR). 13. The applicant was released on 7 September 2009. 14. In their further observations submitted in response to the applicant’s observations, the Government submitted a written statement on paper bearing the letterhead of the Judicial Information Service (Justitiële Informatiedienst) and dated 22 March 2013. It reads as follows: “Destruction The undersigned, J.J. Wiltvank, General Director of the Judicial Information Service, makes the following declaration: It is described in the official record (proces-verbaal) of destruction dated 12 December 2012 (annexed) that the personal information as used during the so-called ‘catch-up exercise’ has been destroyed; Supplementing this official record, the undersigned also declares that: during the period of processing the data were stored in a safe; the data were not used for any other purpose than for checking, once only; the data were compared, during this once-only check, against the HAVANK data [HAVANK, acronym for Het Automatisch Vinger Afdrukkensysteem Nederlandse Kollektie, The Automatic Fingerprint System Netherlands Collection]; as far as the Judicial Information Service are able to observe, these data have not been entered in the HAVANK database. ... I declare this to be a statement of the truth, made on 26 March 2012 [sic]. J.J. Wiltvank General Director of the Judicial Information Service” This document bears no manuscript signature. 15. Also annexed to the Government’s further observations were an official record attesting the destruction of “personal data of the catch-up exercise”, recording the destruction of information stored on CDs and external hard disc drives by Ministry of Justice officials and of the original fingerprints by a waste-processing company, Milieu Service Nederland. The official record includes the following: “Instruction On 21 November 2012 the Director of the Judicial Information Service instructed the undersigned to ensure the destruction of any personal data from the catch-up exercise that might still unjustifiably be stored (de mogelijk nog ten onrechte in bewaring zijnde persoonsgegevens). Stocktaking ... During stocktaking a search was carried out for other media that might exist outside the Judicial Information Service. From the information obtained from the then keeper of the mobile kits it appears that there are no data bearers left there all information was removed from the mobile kits upon transfer to the Judicial Information Service the mobile kits were dismantled a considerable time ago by the supplier HSB. ...” Attached to the official record is a “Destruction and Recycling Certificate” dated 10 December 2012, provided by Milieu Service Nederland. 16. The Prisons Act, as in force at the relevant time, in its relevant part provided as follows: “1. The Governor can oblige the prisoner to carry a valid identity document and to show this at the request of a civil servant or a staff member. 2. The prisoner is obliged to cooperate with the recording of his digital photograph, the taking of a fingerprint or the taking of a hand scan.” “Rules will be laid down by or pursuant to order in council concerning the creation of files. These rules will in any event give a definition of the detainees about whom a file must be created, the nature of the information contained therein, the right of the detainee concerned to inspect or obtain a copy of the file and the limits to this right, and the length of time and way in which the file is to be kept.” “1. A detainee may lodge a complaint with the Complaints Committee against a decision concerning him taken by or on behalf of the Governor. 2. A failure or refusal to give a decision is equated with a decision as referred to in subsection 1. If no decision has been given within the statutory time limit or, in the absence thereof, within a reasonable time limit, this is deemed to be a failure or refusal to give a decision. 3. The Governor must ensure that a detainee wishing to lodge a complaint is given an opportunity to do so as quickly as possible.” 17. The following is taken from the drafting history of the Prisons Act (Explanatory Memorandum (Memorie van Toelichting), Lower House of Parliament, no. 24,263, 1994-95 session, no. 3): “... Chapter VI of the Bill specifies permissible interferences with the constitutional rights of respect for one’s privacy and for the integrity of the body, the clothing and of the prisoner’s bodily secretion. ... The following powers are granted to the Governor to exercise control over the prisoners and the use of force against them: a. to impose a duty to provide proof of identity; ... a. Duty to provide identity The duty to provide proof of identity is copied from section 27 of the [former] Prison Rules (Gevangenismaatregel) with the addition of the [prisoner’s] explicit duty to cooperate with the recording of his likeness, or the taking of a fingerprint for the purpose of an identity check.” 18. The Prison Rules (Penitentiaire maatregel), as in force at the relevant time, in their relevant part provided as follows: “... 2. The other documents relating to the detainee are to be collated in an institutional file [i.e. a file peculiar to the institution]. They are to be arranged by subject in chronological order.” “... 4. The institutional file referred to in article 37, paragraph 2 must be destroyed six months after the detainee’s stay at the institution has ended. If the detainee is again confined in the institution before the end of this period, the limited retention period ceases to apply.” “1. In the event that inspection by the detainee of his file is denied on one of the grounds laid down in section 43 of the Personal Data Protection Act, the Governor may arrange for a member of the Supervisory Committee authorised by the detainee to inspect the data which the detainee has been denied leave to inspect. Sections 57 and 58 of the Act [i.e. the Prisons Act] apply mutatis mutandis. 2. Data from the file may be disclosed to Our Minister and the civil servant or staff designated by him in so far as necessary with a view to: a. dealing with requests concerning the detainee; b. dealing with procedures concerning the detainee; c. managing the files; d. dealing with other decisions concerning the detainee. The same applies to the assignment officer, the Governor and the civil servants or staff designated by them.” 19. The Act on the determination of the identity of suspects, convicted persons and witnesses (Wet identiteitsvaststelling verdachten, veroordeelden en getuigen) entered into force on 1 October 2010. It altered section 28 of the Prisons Act so as to empower the Governor to take a prisoner’s biometric data (fingerprints, DNA, photographic likeness). Delegated legislation is to govern the processing of these data. 20. Article 27b § 4 of the Code of Criminal Procedure (Wetboek van Strafvordering) now provides for data needed to establish the identity of a suspect or convict to be stored in the “criminal procedure database” (strafrechtsketendatabank). 21. Detailed regulation of the criminal procedure database is provided by the Determination of the Identity of Suspects and Convicted Persons Decree (Besluit identiteitsvaststelling verdachten en veroordeelden), which also entered into force on 1 October 2010. This Decree sets rules for the organisation of the database in which biometric data of convicted persons are kept, storage and destruction of those data and access to them.	0
test	001-155522	ENG	HRV	ADMISSIBILITY	2,015	RADIČANIN AND OTHERS v. CROATIA	4	Inadmissible	Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković	1. The first applicant, Mr Dragan Radičanin, was born in 1947 and lives in Karlovac. The second applicant, Ms Danica Beneta, was born in 1952 and lives in Zagreb. The third applicant, Ms Nedjeljka Čuturilo, was born in 1949 and lives in Karlovac. The fourth applicant, Dragica Martinović, was born in 1943 and lives in Karlovac. They are all Croatian nationals and were represented by Mr L. Šušak, a lawyer practicing in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. During 1991 and 1992 Serbian para-military forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). The applicants’ father, D.R., lived in Selakova Poljana, a village situated in the Krajina. At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over the Krajina. The action was codenamed “Storm” and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina had fled Croatia, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 5. On 7 November 2000 the second applicant informed the Vojinić Police about the disappearance of her father in 1995. She alleged that she and her sister, Nedjeljka Čuturilo, had learned that D.Sa., a neighbour of their late father, knew who had killed him. 6. On 29 June 2001 the police interviewed D.Sa., who said that the applicants’ father had been killed by a certain B.S. during the military action “Storm”. Later on B.S. had moved to Zagreb and had died there. 7. On 8 January 2002 the police interviewed M.P., who said that he had heard that the applicants’ father had been found in the courtyard of his house but nobody knew how or by whom he had been killed. 8. On 11 February and 27 March 2002 the police interviewed N.B. and P.G. N.B. had no knowledge about the killing of the applicants’ father. P.G. said that he had heard that the applicants’ father had been killed and buried in his courtyard and expressed the opinion that he had been killed by Serbian para-military forces because his family was rich. 9. On 29 March 2002 the police interviewed the second applicant, who said that a certain M.M. had been staying with her father in Selakova Poljana during the military action “Storm” and that M.M. had told her that on 15 August 1995 her father had gone to his neighbours’ estate to feed their pigs. M.M. had heard him yelling: “You thieves, why are you stealing?”, followed by three gunshots. M.M. had run away after that and had no knowledge what had happened to the applicants’ father. D.Se. had told the second applicant that the applicants’ father had been buried under a beech tree in his courtyard. Her father had had a valuable estate and kept 7,000 German marks in the house. The estate had been burned down after the military action “Storm”. 10. On 3 April 2002 the police interviewed D.Se., M.M. and the first applicant. D.Se. said that during the military action “Storm” she had not been in Selakova Poljana. When she had returned there together with a daughter of D.R. after the military action “Storm”, they had found that D.R.’s estate had been burned down. M.M. confirmed the facts given in the interview with the second applicant. The first applicant said that he had heard from his sister, the third applicant, that their father had been killed and buried under a beech tree in his courtyard. 11. On 17 March 2003 the ground under the beech tree in the courtyard of late D.R.’s house was excavated but no body was found. 12. On 31 July 2003 the police again interviewed D.Se., D.Sa. and M.M. They repeated their previous statements. 13. On 10 July 2006 the applicants lodged a criminal complaint with the State Attorney’s Office against unknown perpetrators for the criminal offence of a war crime against the civilian population in connection with the killing of their father D.R. However, since then no new information has been obtained.	0
test	001-174995	ENG	HRV	CHAMBER	2,017	CASE OF OBAJDIN v. CROATIA	4	No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)	Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković	5. The first applicant was born in 1983 and lives in Ludbreg. The second applicant was born in 1959 and lives in Slunj. 6. During 1991 and 1992 Serbian paramilitary forces gained control of about a third of the territory of Croatia and proclaimed the “Serbian Autonomous Region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). At the beginning of August 1995 the Croatian authorities announced their intention to take military action with the aim of regaining control over Krajina. The operation was codenamed “Storm” (Oluja) and took place from 4 to 7 August 1995. Before the military action, the vast majority of the population of Krajina fled Croatia. Most of them went to Bosnia and Herzegovina, and also to Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 7. On 5 November 1997 Croatia ratified the Convention. 8. On 8 August 1995 the applicants’ close relatives, G.O. and M.V., were killed in a house in Veljun, a town on the territory of Krajina. The police were alerted to the killings on the same day. On 11 August 1995 the bodies were buried in a cemetery in Slunj. 9. On 25 January 2002 the police interviewed M.M., who said that on 8 August 1995 he had been wounded by the Croatian army in Veljun. That day he had seen G.O. and M.V. alive but did not know what had happened to them after that because he had been taken to a hospital by a member of the Croatian army. 10. On 20 February 2002 the police interviewed D.V. and J.V. D.V. said that on 6 August 1995 she had moved to a house in Veljun, together with the first applicant, G.O. and M.V. On 7 August 1995 the Croatian army had entered Veljun. When G.O. and M.V. had been killed she had not been in the house and had not seen who had killed them. J.V. said that he had lived in Veljun during the war. On 7 August 1995 the Croatian army had entered Veljun. On 9 August 1995 he had heard that G.O. and M.V. had been killed the day before but had not seen who had done it. 11. On 25 February 2002 the police interviewed the second applicant. He said that at the material time he had been serving as a Croatian policeman in Karlovac. He had learned about the killing of his wife G.O. and her mother M.V. on 8 August 1995 when his son, who had lived with his mother and grandmother, had been brought to him. The son said that on the morning of 8 August 1995 some members of the Croatian army had come to their house and asked for the keys of a Golf vehicle parked in the courtyard but that his grandmother had shouted at them. The second applicant assumed that that had angered the soldiers who had then killed his wife and her mother. 12. On 30 March 2006 the Karlovac State Attorney’s Office asked the Slunj police whether the Veljun area had been occupied on 7 August 1995; whether the perpetrator of the killing of G.O. had been identified; and whether G.O. had been a member of the paramilitary forces of Krajina or of the Croatian army. On 6 July 2006 the Karlovac police department replied that Veljun had not been occupied on 7 August 1995 because Serbian paramilitary forces had left the area the previous day as the Croatian forces had advanced from the direction of Slunj. However, owing to the disorganised nature of the withdrawal of the Serbian paramilitary forces, there had still been some armed members of the “Serbian army” in the area. On 7 August 1995 the Croatian forces had started to enter the area and therefore it could be said that from a military point of view that area had been in a war zone. There had been no information about the people who had killed G.O. and she had not been registered as a member of any army. 13. On 25 October 2006 the police interviewed the first applicant, who said that he had lived with his mother and grandmother in Slunj and that his father had been a Croatian policeman. When the war had escalated in 1991 his mother had stayed in Slunj, in occupied territory, since her mother was a disabled person who could not move at all. Some time at the beginning of Operation Storm his uncle had taken them all to a relative’s house in Veljun. On 5 or 6 August 1995 the Croatian army had entered Veljun. They had instructed them to put a white flag on their house to indicate that there were civilians living there and his mother had done so. The following day he had spent some time with Croatian soldiers, about 1,500 metres from the house where he had been staying with his family. Around noon he had heard some gunshots from the direction of the house but had not paid much attention to them. About half an hour later he had returned home and had found his mother and grandmother shot dead in the house. He had informed some of the Croatian soldiers about it. After that they had taken him to his father in Slunj. He could not remember whether there had been any dispute between his mother and grandmother and Croatian soldiers about the Golf parked in their courtyard, which had belonged to his uncle. 14. On 17 January 2007 the police interviewed I.B., a policeman who had carried out an inspection of the crime scene. He described how he had found the bodies of G.O. and M.V. On the same day another police officer, Z.G., made a note stating that on 8 January 2007 he had inspected the premises of the elementary school in Veljun, where he had found the following inscriptions on the walls: “Tigers, I.V. 4 August 1995, K.T., 40th regiment GSOSRH” and “Tigers TNT No 31 – Moles”. 15. On 1 February 2007 the Karlovac police lodged a criminal complaint with the Karlovac County State Attorney’s Office against unknown perpetrators in connection with the killing of G.O. and M.V. 16. On 1 August 2007 the police interviewed Mi.V. who said that she had not been in Veljun during Operation Storm and had no direct knowledge about the killing of G.O. and M.V. 17. On 22 October 2012 a Deputy State Attorney of the Karlovac State Attorney’s Office interviewed the applicants, who repeated their previous statements. The first applicant added that in his opinion the Croatian soldiers who had killed his mother and grandmother had not been those who had been the first to enter Veljun because that group had treated civilians correctly. 18. On 9 November 2012 the Karlovac police asked the Ministry of Defence about the Croatian army units which had been in Veljun between 7 and 12 August 1995, the identity of their commanders and all their members. That request was repeated on 11 December 2012. 19. On 9 January 2013 the first applicant asked the President’s Office, the State Attorney, the Karlovac County State Attorney, the Ministry of Justice and the State Attorney’s Department of War Crimes to identify the perpetrators of the killing of his mother and grandmother. 20. On 21 February 2013 the Karlovac police drew up a note on the investigation. It stated that documents about the Croatian army units present in Veljun in the material period (those documents have not been submitted to the Court by the Government) showed that on 7 August 1995 at 10.30 a.m. Veljun had been liberated by members of the 143rd Domobran Regiment of Ogulin (143. domobranska pukovnija Ogulin), under the command of Captain (satnik) N.N. On 7 August 1995 at about noon the armoured battalion of the “Tigers” First Guards Brigade (oklopna bojna 1. gardijske brigade “Tigrovi”) under the command of Captain Lj.U., as well as the Second Infantry Battalion of the First Guards Brigade (2. pješačka bojna 1. gardijske brigade) under the command of Major A.K., had arrived. On 8 August 1995 the following Croatian army units had been in Veljun: the Second Infantry Battalion of the 143rd Domobran Regiment from Ogulin under the command of Captain M.K. and the IS-2 (izvidnička skupina IS-2) patrol group comprised of the soldiers M.I., M.B., T.N. and Z.Č., under the command of Lance Corporal (razvodnik) P.K. 21. Between 27 February and 28 March 2013 the police interviewed several Croatian soldiers who belonged to the units of the Croatian army that had been in Veljun on 7 and 8 August 1995. N.N., the commander of the Second Battalion of the 143rd Domobran Regiment, said that they had entered Veljun on the morning of 8 August 1995. At the same time the First Guards Brigade under the command of I.K. had been coming to Veljun from the direction of Slunj. He had no knowledge of the killing of two women in Veljun. As regards the officers of the Second Battalion, Z.K. had been in command of the First Company (prva satnija), M.B. of the Second Company (druga satnija) and I.Z. (who had died later on) of the Third Company (treća satnija). The brigade also had a mortar unit (mitnica minobacača) under the command of N.V., a communications squad (desetina za veze) led by D.L., a medical platoon (sanitrani vod) headed by S.P. and an anti-tank platoon (protuoklopni vod) under the command of D.S. B.S., the second-in-command of the First Battalion of the 143rd Domobran Regiment, confirmed that M.K. had been the commander. The regiment had been composed of three companies. The First and Second Companies had been under the command of I.F. and I.P. respectively, but he could not remember the commander of the Third Company. He said that owing to the passage of time he could not remember the places they had been during Operation Storm. He had no knowledge about the killing of civilians in Veljun. Officer J.C. of the Slunj police said that he had heard about the killing of his colleague’s wife and her mother, but had no relevant information. M.K., the commander of the First Battalion of the 143rd Domobran Regiment of Ogulin, said that that formation had comprised three battalions. His First Battalion and the Second Battalion, which had been under the command of N.N, had had about 970 soldiers. The Third Battalion had been under the command of T.L. He then described the units of the First Battalion and named the commanders he could remember. He had no knowledge about the killing of civilians in Veljun. A.B., the commander of a platoon of the 134th Domobran Regiment, said that he and his men had spent about an hour in Veljun during Operation Storm but could not say on which day exactly. None of the soldiers in his platoon had searched for civilians in houses and he had no knowledge about the killing of G.O. and M.V. S.P., the commander of the medical squad of the Second Battalion of the 143rd Domobran Regiment, said that his battalion had entered Veljun at about noon on 7 August 1995 and had stayed there for two days. There had been no military action and he had not given any medical assistance to anyone in Veljun. He knew nothing about the killing of two women there. Officer I.Š. of the Slunj police said that during Operation Storm a Croatian soldier had approached him and told him that a child in Veljun needed transport. I.Š. had gone with his colleague M.V. to Veljun where they had found two dead bodies and a child in a house. They had taken the child to Slunj police station to join his father, Pave Obajdin. M.V. confirmed that statement. S.V. said that he had been a policeman in Slunj during Operation Storm and had been the one who had found the bodies of G.O. and M.V. 22. Between 14 October 2014 and 21 October 2015 the police conducted further interviews with Croatian soldiers A.Ž., Z.P., B.S., B.G., V.J. and P.K., who all said they had no knowledge about the killing of G.O. and M.V. In the same period the police also interviewed the victims’ relatives G.V., D.M. and S.V., who had all heard about the killing of G.O. and M.V. but had no relevant information about possible perpetrators.	0
test	001-161048	ENG	RUS	CHAMBER	2,016	CASE OF Y.Y. v. RUSSIA	3	Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova	5. The applicant was born in 1966 and lives in St Petersburg. 6. In April 2003 the applicant gave birth prematurely to twins at a maternity hospital in St Petersburg (“the maternity hospital”). The first twin died nine hours after her birth. The second twin, who was transferred to a resuscitation and intensive therapy unit at one of the St Petersburg children’s hospitals (“the children’s hospital”) twenty hours after his birth, survived. The applicant was of the opinion that her daughter would also have survived had she been promptly transferred to a resuscitation and intensive therapy unit at a children’s hospital. 7. On 25 May 2003 the applicant’s mother, Mrs D., sent the following telegram to the President of the Russian Federation: “... newborns are dying because of delays in emergency medical treatment. Resuscitation units lack capacity. [Hospitals] have waiting lists – a brutal practice. Thus in ... April at ... a.m. in Maternity Hospital no. ... [my] grandchildren, twins, ... were born. They were tenth on the waiting list. [My] granddaughter ... never got to the top of the list and died ten hours later. [My] grandson ... was hospitalised twenty hours after his birth and placed in the resuscitation unit of Children’s Hospital no. ... in a very serious condition ... The death [of my granddaughter] has shocked our family. We could not imagine that it was possible not to provide emergency medical treatment to the newborn child ... Does the waiting list constitute negligence or irresponsibility on a criminal scale? I ask [you] to take action. Children’s Hospital no. ... needs urgent help ...” 8. On 15 June and 1 August 2003 D. sent two more telegrams to the President of the Russian Federation, stating: “I am informing you for the second time that emergency neonatal resuscitation for premature babies in St Petersburg is being provided on the basis of a waiting list. Who is responsible for the deaths of these children? I request that this problem be examined at the meetings of the Government and the State Duma ...” “I am wiring you for the third time about the deaths of premature newborns in St Petersburg ... [I] consider the existence of a waiting list for resuscitation treatment a crime ... Waiting for [your] response about the action taken ...” 9. The Administration of the President of the Russian Federation forwarded the telegrams to the Ministry of Healthcare of the Russian Federation (“the Ministry”) for examination. The Ministry asked the Committee for Healthcare at the St Petersburg City Administration (“the Committee”) to examine the allegations and take the necessary action. 10. The Committee ordered an examination, which was carried out by a panel consisting of the chief neonatologist of the Committee and the head of the paediatrics department at the advanced medical studies faculty of the St Petersburg State Paediatrics Medical Academy. The examination was carried out on the basis of the applicant’s and the twins’ medical records, which were obtained from the maternity hospital and the children’s hospital. The results of the examination were set out in a report (рецензия), which mainly concerned the development and treatment of the twin who had died. In particular, the report stated that the infant had been born prematurely in the thirty-first week of gestation of an eighth pregnancy and by a first delivery. Her blood test had indicated the possibility of a prenatal viral infection, and she had been clinically diagnosed as premature (at thirtyone weeks), with respiratory distress syndrome and atelectasis. A postmortem examination had revealed moderate interstitial emphysema of the lungs, which had explained the immediate cause of death. It was concluded that she had been born with severe respiratory distress syndrome complicated by an air leak syndrome, and that she had been provided with treatment which had been entirely appropriate, given the seriousness of the condition and the nature of the disease. Such cases carried a risk of death of not less than 80%, in addition to the risk of serious disabilities, and an early transfer to a children’s hospital did not guarantee survival or a favourable outcome. The report also noted that the second twin had suffered from respiratory distress syndrome as well, but to a much lesser extent. The experts did not make any significant observations about the treatment he had received at the maternity hospital or the children’s hospital. 11. On 5 September 2003 the acting head of the Committee sent the report to the Ministry with an accompanying letter. 12. On 12 September 2003, in reply to her telegrams, the Committee informed D. of the results of the experts’ examination of the twins’ medical records by briefly restating the conclusions in the report. The Committee noted that the results of the examination of her allegations had been communicated to the Ministry. 13. On the same day, the Committee forwarded to the Ministry a copy of its reply to D. and informed the Ministry that, according to the conclusion of a commission formed by the maternity hospital where the twins had been born, the reasons for the applicant’s premature delivery had been her compromised obstetricgynaecological history – in particular, seven artificial abortions – and her urogenital mycoplasmosis infection. The letter of 12 September 2003 was the subject of proceedings brought by the applicant against the Committee, about which no further information is available. 14. On 3 December 2003 the applicant received a letter from the Committee with similar contents to the letter of 12 September 2003 that it had sent to D., stating, in particular, that her children’s medical records had been examined by the panel of experts. It appears that a request by the applicant for a copy of the report was refused, and that that refusal was the subject of separate proceedings brought by the applicant against the Committee. In the course of those proceedings, on 30 November 2004, the applicant received a copy of the report and the Committee’s letter to the Ministry of 5 September 2003. 15. On 25 February 2005 she brought new proceedings against the Committee, seeking a declaration that its actions had been unlawful in that it had collected and examined her medical records and those of her children, and had communicated the report containing her personal information to the Ministry without obtaining her consent. She requested that the report and the letter of 5 September 2003 be declared invalid. She stated that she had not asked the Committee to examine the quality of the medical treatment she and her children had received or to establish the cause of her daughter’s death. She claimed that the Committee had interfered with her private life by disclosing – without her consent – confidential information to a considerable number of individuals, including staff at the Committee and the Ministry who dealt with correspondence and other employees. She relied on Article 61 of the Basic Principles of Public Health Law, which prohibited the disclosure of confidential medical information without a patient’s consent. She argued that the provisions of Article 61 contained an exhaustive list of exceptions to that general rule, and that the Committee’s impugned acts had not fallen under any of them. 16. On 14 December 2005 the Kuybyshevskiy District Court of St Petersburg dismissed her application. The chief neonatologist, who was examined as a witness, stated that: he had acted within his powers; he had not been able to verify D.’s allegations without obtaining the medical records in question; he had involved medical specialists in the examination of those records; and no disclosure of the information contained in those medical records had taken place. A representative of the Committee denied the applicant’s allegations. 17. The District Court found that the Ministry had asked the Committee to examine the allegations set out in D.’s telegrams. The Ministry had had the power to request material from the Committee, which in turn had had a corresponding duty to submit detailed information. The applicant’s medical records had been examined by doctors bound by confidentiality. It was the report prepared as a result of that examination, and not the applicant’s medical records per se, which had been transferred to the Ministry. 18. On the basis of the above considerations, the District Court held that the applicant’s rights, as guaranteed by Article 61 of the Basic Principles of Public Health Law, had not been violated. 19. The District Court also noted that the applicant had lodged her application on 25 February 2005, although she had learned that her children’s medical records had been obtained without her consent on 3 December 2003 from the Committee’s letter of that date. The District Court saw no reasonable excuse for her failure to lodge her application within the statutory timelimit. Lastly, it rejected her request for a separate ruling to denounce the Committee’s allegedly common practice of obtaining medical records without patients’ consent. 20. An application by the applicant for clarification of the judgment – in particular, for details as to whether her application had been dismissed on the merits or because it had been time-barred – was dismissed on 20 January 2006 by the District Court, which considered that the judgment had been clearly formulated and did not allow for different interpretations. The applicant did not appeal against that decision. 21. The applicant appealed against the judgment, relying on Article 61 and, in particular, the exhaustive list of exceptions to the general rule of non-disclosure of confidential medical information without a patient’s consent provided therein. She stated that her own medical records and those of her children had been collected and examined without her consent by Committee officials acting ultra vires, and not by her own doctors, who were bound by confidentiality. The report contained confidential medical information and its communication to the Ministry without her consent had been unlawful. The fact that her own personal medical records had been examined in addition to those of her children had become known to her at a later date than 3 December 2003. The threemonth timelimit for lodging her application had started running on 30 November 2004, when she had received a copy of the report. She had therefore complied with that time-limit. 22. On 14 March 2006 the St Petersburg City Court dismissed the applicant’s appeal against the judgment and fully endorsed the District Court’s findings.	1
test	001-148683	ENG	ITA	CHAMBER	2,014	CASE OF BATTISTA v. ITALY	1	Remainder inadmissible;Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Non-pecuniary damage - award	András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano	I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1967 and lives in Naples. 5. While he was in judicial separation proceedings from his wife (D.L.), a provisional residence order was issued to both parents in respect of the couple’s two children (G.L. and M.T.). 6. On 29 August 2007 the applicant asked the guardianship judge to issue him with a new passport, requesting that the name of his son, G.L., also be entered in it. His former wife objected, arguing that the applicant was not making the maintenance payments ordered by the president of the court at the time of the judicial separation. 7. By a decree of 18 September 2007, the guardianship judge rejected the applicant’s request, holding that it was inappropriate to issue the requested passport, given the imperative of protecting the children’s right to receive the maintenance payments. In this regard, he emphasised that the applicant, who was supposed to make a maintenance payment of 600 euros (EUR) per month, paid only a small amount (EUR 45 to 90) and that there was a risk that he would shirk his obligation completely if he were to travel abroad. 8. By a decision of 26 October 2007, the guardianship judge ordered that M.T.’s name be removed from the applicant’s passport. 9. On 31 October 2007 the Naples Police Commissioner (questore) ordered the applicant to hand in his passport to the police station and amended his identity card, making it invalid for foreign travel. 10. The applicant appealed to the Naples Court against the guardianship judge’s decision. He alleged that: – under the measures ordered by the president of the court at the time of the judicial separation, the children had been due to spend the period of 10 to 26 August, during the school holidays, with him; on that basis, he had planned to take them to Sicily by plane; however, this required that the names of his two children be included in his passport; – on account of his former wife’s objection and the guardianship judge’s decree, he and his children had been unable to go on holiday; – the children’s names were included in the mother’s passport; – the dismissal of his request amounted to a penalty that was not prescribed by law. 11. On 7 February 2008 the applicant asked the Naples guardianship judge to issue him with a new passport, explaining that his former wife had retained his identity card and his passport in the family home. 12. By a decree of 29 February 2008, the Naples guardianship judge dismissed the applicant’s request on the ground that he had not paid the maintenance sums due in respect of his children, and that it was to be feared that he was leaving the country only in order to evade his obligation entirely. The applicant also appealed against that decision to the Naples Court, alleging a breach of his right to freedom of movement. 13. By a decision of 5 February 2009, the Naples Court joined the appeals and dismissed them. The court noted, firstly, that the legal basis for the guardianship judge’s decision was Law no. 1185 of 21 November 1967, as amended by the Passports Act 2003 (Law no. 3). 14. The court found that the guardianship judge did indeed have jurisdiction to rule on the applicant’s request for a passport and on the inclusion in it of his son’s name. As to the merits of the appeal, the court noted that the applicant was not complying with his obligation to pay maintenance and that this circumstance was one of the lawful grounds for refusing to issue a passport, in the children’s interests, in accordance with section 12 of the Passports Act. 15. On 4 November 2008 D.L. was ordered to pay a fine of EUR 100 for failing to bring the children to an appointment with the applicant. 16. By a decree of 8 April 2009, the guardianship judge issued D.L., at her request, with a passport in which the names of the two children were included. 17. On 21 August 2012 the applicant asked the Naples guardianship judge to issue individual passports to his children, in application of Legislative Decree no. 135 of 2009. 18. D.L. objected, arguing that the children did not need these passports; that the applicant had made no maintenance payments since 2007; and that, indeed, criminal proceedings were pending in that regard. 19. By a decision of 3 October 2012, the guardianship judge rejected the applicant’s request. He considered that the proceedings for the separation of the applicant and D.L. were still pending and that, in the light of the considerations put forward by D.L., with whom the children resided, it was appropriate to stay any issue of passports to the children. The applicant did not appeal against that decision.	1
test	001-183955	ENG	RUS	COMMITTEE	2,018	CASE OF STEPANOV AND OTHERS v. RUSSIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)	Alena Poláčková;Dmitry Dedov	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. In applications nos. 44497/17 and 60480/17 the applicants also raised complaints under Article 13 of the Convention.	1
test	001-173802	ENG	MDA;RUS	CHAMBER	2,017	CASE OF VARDANEAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA	4	No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Russia);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Independent tribunal) (the Republic of Moldova);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Independent tribunal) (Russia);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home) (the Republic of Moldova);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home) (Russia);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application)	Dmitry Dedov;Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Ksenija Turković	5. The applicants, Mr Ernest Vardanean and Ms Irina Vardanean, are Moldovan nationals who were born in 1980 and live in Chisinau. 6. The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004VII) and Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012). 7. The applicants are husband and wife and are journalists. At the time of the events they were living in the self-proclaimed “Moldovan Republic of Transdniestria” (the “MRT”). The first applicant was employed by a Russian news agency and by a Moldovan newspaper. 8. On 7 April 2010 the first applicant was arrested by agents of the secret service of the “MRT” on charges of treason and/or espionage undertaken for the Republic of Moldova. A search was carried out in the applicants’ apartment and many of their belongings – such as pictures, computers and a bank card – were seized. 9. On 16 December 2010, a tribunal from the “MRT” convicted the first applicant and sentenced him to fifteen years’ imprisonment. Following international pressure, on 5 May 2011 the president of the “MRT” pardoned him. After that date, the applicant and his family moved to Chisinau. 10. During his detention the first applicant met on several occasions with representatives of the “MRT” secret services, including the chief of the secret services, and was led to believe that his family might suffer if he refused to cooperate with them. He was asked to record a video of himself admitting having worked for the Moldovan secret services. That video was aired on Transdniestrian television. On another occasion he was asked to write a letter to the foreign ambassadors to Moldova “disclosing” the fact that the Moldovan secret services were spying on the foreign embassies based in Chisinau. He subsequently was given to understand by representatives of the “MRT” secret services that the letter had served the purpose of creating tensions between Chisinau and western countries and that the whole matter, including his arrest, was being coordinated from Moscow. 11. The second applicant could only visit the first applicant on a limited number of occasions during his detention and lawyers representing the first applicant in the proceedings before the Court were denied access to him on the grounds that they were not members of the “Transdniestrian Bar Association”. 12. In the meantime, the Moldovan authorities made numerous attempts to secure the first applicant’s release. In particular, the problem of his detention in the “MRT” was raised by the Moldovan authorities with the European Union and the United States authorities in April 2010 in Brussels. The Moldovan delegation distributed a circular letter during the April 2010 session of the Parliamentary Assembly of the Council of Europe and raised the first applicant’s situation during meetings of the Committee of Ministers of the Council of Europe in January and February 2011. The first applicant’s situation was also raised by the Moldovan authorities in their discussions with the OSCE representatives in Chisinau, and a criminal investigation was initiated by the Moldovan Prosecutor’s Office in respect of the applicant’s detention in the “MRT”. However, the criminal investigation was later discontinued. 13. The Moldovan Government also awarded financial assistance to the first applicant’s family during the period of the first applicant’s detention in the “MRT” and transferred to them ownership of a flat in Chisinau worth 53,000 euros (EUR) after the first applicant’s release from detention.	1
test	001-178698	ENG	GEO	CHAMBER	2,017	CASE OF KITIASHVILI v. GEORGIA	4	No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)	André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer	5. The applicant was born in 1977 and at the material time was serving a sentence of imprisonment. The facts of the case as submitted by the parties may be summarised as follows. 6. The case file indicates that in April 2001 and March 2005 the applicant was found guilty of various criminal offences, but his prison sentence was suspended for health reasons (cardiovascular and lung disorders, high blood pressure, a left bundle branch block, and tuberculosis of the left lung). 7. In November 2005 and March 2007 two additional sets of criminal proceedings on multiple charges including armed robbery were initiated against the applicant. He was arrested on 28 December 2006 and placed in pre-trial detention. 8. On 14 June 2007 the applicant was found guilty as charged in the first set of proceedings and sentenced to twenty-four years’ imprisonment. The applicant did not appeal against his conviction. 9. On 25 September 2007, in the second set of criminal proceedings, the applicant was found guilty of armed robbery and sentenced to thirteen years’ imprisonment. The court further decided that the aggregate term of imprisonment to be served pursuant to that judgment and the judgment of 14 June 2007 should be fixed at thirty years. 10. The judgment of 25 September 2007 was altered on appeal on 21 January 2008. The prison sentence for the offences committed in 2005 was reduced to ten years, but the total sentence to be served remained unchanged at thirty years. An appeal on points of law by the applicant was rejected as inadmissible by the Supreme Court of Georgia on 15 September 2008. 11. On 1 November 2012 the applicant was granted early release from prison. 12. The applicant entered the prison system with a history of tuberculosis of the left lung. On 10 April 2008 he was transferred to the Department of Prisons’ medical facility (“the prison hospital”), where an Xray of his lungs was performed. As no pathologies were revealed, the applicant was returned to Rustavi Prison no. 6 on 17 April 2008. 13. On 1 May 2008 he was hospitalised again because of a cyst on his right testicle, and on 4 May 2008 he underwent a surgical operation to have the cyst removed. The results of a subsequent biopsy revealed that the cyst was a benign skin cyst. On 6 May 2008 additional blood tests revealed that the applicant did not have AIDS, but it was not possible at that stage to determine the presence of the hepatitis C antibody in his blood. Further tests three months later were recommended. After a trouble-free period of convalescence, the applicant was sent back to prison on 24 May 2008. 14. On 23 June 2008 the applicant’s lawyer asked for additional medical tests to be organised for the applicant. In particular, he asked for a blood test for hepatitis C. That request apparently went unanswered. On 10 July 2008 the applicant was transferred to the prison hospital because of an abscess in his lower jaw. In addition to being treated by a dentist, according to the medical file, the applicant had a consultation with a neurologist and an endocrinologist because he was experiencing persistent headaches. The neurologist diagnosed him with post-traumatic encephalopathy and prescribed treatment. On 30 July 2008 the applicant was discharged from the prison hospital, although his headaches persisted. 15. On 8, 9, 15 and 24 September 2008 the applicant applied to the prison authorities to be returned to the prison hospital “for serious health reasons”. He did not specify what was wrong with his health. On 10 September 2008 the prison authorities forwarded the applicant’s letters to the governor of Rustavi Prison no. 6 and the head of the prison administration’s group of medical experts, so that they could be examined and appropriate action could be taken. 16. On 30 October 2008 the applicant staged a hunger strike to obtain an examination by a neurologist. On 5 November 2008 the applicant was seen in prison by a neurologist, who prescribed treatment for his post-traumatic encephalopathy. 17. On 10 November 2008 representatives of the Public Defender’s Office visited the applicant, who complained of headaches. The applicant alleged that during his previous stay in the prison hospital he had taken medicine for his headaches for a week, but to no avail. He said that he had suffered from headaches before his arrest, however, the pain had become more severe, and at that point it had been constant for six months. He also alleged that the treatment prescribed on 5 November 2008 had not yielded any results. On 11 November 2008 the Public Defender sent a report on the meeting to the prison governor and requested news of the applicant’s state of health. 18. On 27 November 2008, after having examined the applicant, the neurologist diagnosed neurasthenia and post-traumatic encephalopathy. Noting that the previous treatment had not worked, he considered that a more thorough examination was necessary. 19. On 8 December 2008 the applicant staged a second hunger strike, requesting that he be transferred to the prison hospital. He maintained that, having suffered a serious head injury in the past, he was in need of a comprehensive inpatient examination of his head. He further complained that, although he was only being prescribed simple sedatives, he was not receiving them. On 17 December 2008 a representative from the Public Defender’s office met with the chief physician of Rustavi Prison no. 6, where the applicant was staying at the material time. The doctor confirmed that the applicant was suffering from headaches and was in need of a tomography scan. He explained, however, that the applicant was only receiving pain medication, as the relevant insurance company refused to finance the required examination and treatment. According to an entry in the applicant’s medical file, on 19 December 2008 he was still on hunger strike, suffering from headaches. 20. On 29 December 2008 the Public Defender wrote a letter to the Minister of Justice, the head of the Prisons Department, and the Governor of Rustavi Prison no. 6, challenging the effectiveness of the insurance company with which the Ministry of Prisons had concluded a contract, on the basis of, inter alia, the applicant’s case. The Public Defender alleged that the applicant was being denied adequate examination and treatment for his post-traumatic brain condition. While discussing in detail the failures and shortcomings of the existing insurance scheme, the Public Defender recommended that the relevant authorities annul the relevant contract. 21. In the meantime, an X-ray of the applicant’s lungs taken on either 22 or 23 of December 2008 had revealed signs of recurrent tuberculosis. His doctor recommended bacteriological analysis and an examination by a specialist. On 23 January 2009 bacteriological tests revealed the presence of tuberculosis bacteria, and the applicant was immediately put on a DOTS (Directly Observed Treatment, Shortcourse) programme, the treatment strategy for the detection and cure of tuberculosis, as recommended by the World Health Organisation. 22. According to an entry in the applicant’s medical file, on 18 February 2009 he was still suffering from constant headaches. The doctor treating the applicant recommended that he be transferred to the prison hospital for proper examination. On 19 February 2009 the applicant was placed in the prison hospital with a diagnosis of pulmonary tuberculosis and posttraumatic encephalopathy. There, he underwent various medical tests, including a blood test for hepatitis C markers, which was negative, and a tomography scan. He also had a consultation with a neurologist. As a result, he was diagnosed with intracranial hypertension syndrome. The applicant was prescribed relevant treatment and sent back to Rustavi Prison no. 6 on 26 February 2009. 23. On 5 March 2009 the applicant was placed in a facility in Ksani for prisoners with tuberculosis. On 10 and 13 July 2009 he violated the internal rules of the facility. As a result, on an unspecified date he was transferred back to Rustavi Prison no. 6, where, according to the latest medical examination of which the Court was informed, he continued his treatment for tuberculosis. 24. On 14 July 2009 the applicant underwent a serological test, which detected no active hepatitis C virus in his system. 25. On 29 December 2006 the applicant was placed in Tbilisi Prison no. 5, where he stayed for almost six months. According to him, the conditions of detention in that prison were inhuman and degrading. In view of the severe overcrowding in prison, he had to take turns sleeping, sleeping for a maximum of four hours a day. The sanitary and hygienic conditions were appalling, and for months there was no opportunity for him to have proper shower. The applicant was also deprived of the opportunity to have regular outdoor exercise. Whilst in Tbilisi Prison no. 5, he was not allowed to see his family even once. 26. On 23 June 2007, following his conviction, the applicant was transferred to Rustavi Prison no. 6. According to him, the conditions of his detention improved there, although he was still deprived of regular outdoor exercise. Moreover, the nutrition in the prison was poor and he was deprived of basic items relating to hygiene, such as soap, bed linen, toilet paper, and towels. 27. According to a letter from the prison governor dated 24 June 2008, the applicant was only visited by his family once during his time in that prison, on 22 April 2008.	0
test	001-179219	ENG	BIH	CHAMBER	2,017	CASE OF HAMIDOVIĆ v. BOSNIA AND HERZEGOVINA	1	Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano	5. The applicant was born in 1976 and lives in Gornja Maoča. 6. On 28 October 2011 Mr Mevlid Jašarević, a member of the local group advocating the Wahhabi/Salafi version of Islam (see, concerning this group, Al Husin v. Bosnia and Herzegovina, no. 3727/08, § 20, 7 February 2012), attacked the United States Embassy in Sarajevo. One police officer was severely wounded in the attack. In April 2012 Mr Jašarević and two other members of the group were indicted in relation to that event. Mr Jašarević was eventually convicted of terrorism and sentenced to fifteen years’ imprisonment. The other two defendants were acquitted. The relevant part of the first-instance judgment rendered in that case, depicting the religious community to which the applicant also belonged, reads as follows: “In his Report/Findings and Opinion and at the main trial, the expert witness Prof. Azinović clarified the notions of ‘Wahhabism’ and ‘Salafism’ from a scientific perspective: ‘... Salafi communities in Bosnia and Herzegovina, like the one in Gornja Maoča (in which the accused lived at the time of the attack), are often isolated and inaccessible. The choice of remote and isolated locations to establish settlements is often informed by the belief that true believers who live in a non-believer (or secular) country need to resort to hijrah – emigration or withdrawal from the surrounding (non-believers’) world, following the example set by the Prophet Muhammad and his followers, who moved from Mecca to Medina in 622 to establish the first Muslim community. Despite mutual differences, most of the Bosnian Salafi groups share some common traits that are not inherent in Islamic organisations (or religious sects) only. In practice, they confirm the tendencies of certain traditional religious communities to isolate from other believers and define their holy community through their disciplined opposition to both non-believers and half-hearted believers. This pattern is inherent in fundamentalist movements and sects within almost all religious traditions. Such movements as a rule have similar characteristics despite the differences in theological doctrines, size and social composition, the scope of their influence or their tendency towards violence. Yet these fundamentalist and puritan groups mostly do not encourage or approve violence, whether it is aimed against members of the same group or against the outer world. According to the available sources and their own declarations, members of the community in Gornja Maoča oppose the concept of a secular State, democracy, free elections and any laws that are not based on Sharia. The positions taken by this group are, inter alia, available at a number of web sites, including www.putvjernika.com, while part of its followers live in Serbia, Croatia, Montenegro, Slovenia, Austria, Germany, Switzerland, Australia and other countries.’ ... 6.1.5.1 Punishment of the accused (Article 242 of the Code of Criminal Procedure) Having been called by the court officer to stand up when the Trial Chamber entered the courtroom at the first hearing, the accused refused to do so. Also, the accused Jašarević and Fojnica were wearing skullcaps, which the Court could correlate with clothing details indicating their religious affiliation. Pursuant to Article 256 of the Code of Criminal Procedure, all those present in the courtroom must stand up upon the call from a court officer. The President of the Trial Chamber asked the accused to explain both their refusal to stand up and the reasons why they had entered the courtroom wearing skullcaps. The accused stated that they only respected Allah’s judgment and that they did not want to take part in rituals acknowledging man-made judgment. The Court thereupon warned the accused that standing up was a statutory obligation of the accused and that under Article 242 § 2 of the Code of Criminal Procedure, disruptive conduct constituted contempt of court, which the Court would punish by removing them from the courtroom. After the warning, the President adjourned the hearing and provided the accused with a reasonable period of time to consult their attorneys in order to change their minds. When the Trial Chamber returned to the courtroom, the accused did not stand up, and therefore the President removed them from the courtroom. The transcript from the hearing was subsequently delivered to the accused. At a new hearing, the accused Fojnica and Ahmetspahić again did not want to stand up on being called by the court officer, while the accused Jašarević refused to enter the courtroom. The President therefore asked the accused to respond whether it was their definite decision to act in the same way until the completion of the trial. The accused confirmed that, until the completion of the trial, they had no intention of showing any respect, by standing up, for the Court, which they did not recognise. The Court found that to continue to bring the accused to scheduled hearings would unnecessarily expose the Court to significant expense. Therefore, the Court decided to remove the accused from the trial until its completion, with a warning that they would be notified of any scheduled hearing, and that, prior to it, they could notify the Court if they changed their mind, in which case the Court would allow them to come to the hearing. The accused Fojnica and Ahmetspahić then changed their mind and regularly appeared before the Court, while the accused Jašarević did so only at the following hearing. The Court delivered to the accused the audio-recordings and the transcripts from the hearings they had not attended in order to allow them to agree with their defence attorneys on their defence strategy.” 7. In the context of that trial, the Court of Bosnia and Herzegovina (“the State Court”) summoned the applicant, who belonged to the same religious community, to appear as a witness on 10 September 2012. He appeared, as summoned, but refused to remove his skullcap, notwithstanding an order from the president of the trial chamber to do so. He was then expelled from the courtroom, convicted of contempt of court and sentenced to a fine of 10,000 convertible marks (BAM) under Article 242 § 3 of the Code of Criminal Procedure. The relevant part of that decision reads as follows: “The Court has examined the situation encountered in the courtroom with the utmost care. The Court is aware that the witness belongs to a religious community, organised under special rules in the village of Maoča, of which the accused are also members. In view of that, the Court has acquainted the witness with the provisions of Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina and the obligations of the parties in the judicial institutions, which ban visitors from entering these buildings in clothing that is not in accordance with the generally accepted dress codes within the professional environment of the judicial institutions. In addition, the Court has pointed out to the witness that, in public institutions, it is not acceptable to display religious affiliation through clothing or religious symbols, and that the Court is obliged to support and promote values that bring people closer, not those that separate them. The Court has particularly emphasised that the rights of the individual are not absolute and must not jeopardise common values. The witness’s attention has especially been drawn to the fact that people of various religious beliefs, belonging to different religious groups, appear before the court and that it is necessary to have confidence in the court. Thus, the court is not a place where religious beliefs can be expressed in a way that discredits certain common rules and principles in a multicultural society. That is why the law obliges everyone who appears before the Court to respect the Court and its rules. The Court finds the witness’s refusal to accept the rules of court and to show respect to the Court by accepting its warnings, to be a flagrant breach of order in the courtroom. The Court has found that this behaviour is connected to a number of other identical cases before it, in which the members of the same religious group behaved in the same manner, publicly indicating that they did not recognise this Court. The frequency of such disrespectful behaviour and contempt of court is producing dangerous criminogenic effects and undoubtedly presents a specific threat to society. It is not necessary to particularly substantiate how this behaviour impairs the Court’s reputation and confidence in the Court. A legitimate conclusion may be that it is essentially directed against the State and basic social values. Therefore, a severe and uncompromising reaction on the part of the State, taking all existing repressive measures, is crucial for dealing with such behaviour. Restraint on the part of the State in cases of this or other types of extremism can have serious consequences for the reputation of the judiciary and the stability of society in Bosnia and Herzegovina. Bearing in mind the frequency, seriousness and gravity of this type of breach of order in the courtroom and its damaging consequences, the Court has decided to punish the witness by imposing the maximum fine of BAM 10,000. Such a severe penalty should be a message to all the parties in the courtroom that contempt of court is unacceptable. The Court must be respected and the level of respect for the Court is the same as for the State of Bosnia and Herzegovina.” 8. On 11 October 2012 an appeals chamber of the same court reduced the fine to BAM 3,000 and upheld the rest of the first-instance decision. It held that the requirement to remove any and all headgear on the premises of public institutions was one of the basic requirements of life in society. It further held that in a secular State such as Bosnia and Herzegovina, any manifestation of religion in a courtroom was forbidden. The relevant part of that decision reads: “The Chamber observes that it is obvious and well known that skullcaps, hats and other headgear should be removed when entering any premises, and notably the premises of State and other public institutions, as there is no longer a need to wear them and removing a skullcap or a hat is an expression of respect for this institution and its function. The duty to remove headgear exists not only in this court but also in other courts and institutions in Bosnia and Herzegovina as well as in other States. Such rules and duties apply to all persons without exception, regardless of religious, sexual, national or other affiliation. Indeed, this is a duty of all those who visit the State Court in whatever capacity, as explained in more detail in Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina: ‘Visitors must respect the dress code applicable to judicial institutions. Visitors shall not wear miniskirts, shorts, t-shirts with thin straps, open heel shoes and other garments that do not correspond to the dress code applicable to judicial institutions’. It would appear from the case file that the judge in charge of this specific case first directed the witness to remove his skullcap in the courtroom, and then gave him an additional ten minutes to think about it as well as about the consequences of rejecting that order. As the witness had nevertheless failed to remove his skullcap, showing thereby wilful disrespect for the authority of the court, the President of the Trial Chamber fined him in accordance with Article 242 § 3 of the Code of Criminal Procedure. It follows from the aforementioned that the judge in charge did not invent the duty of removing the skullcap when addressing the court, as claimed in the appeal. This is indeed a matter of a generally accepted standard of behaviour in the courtroom which applies not only to this Court but also to other courts; furthermore, it has always been applied. This duty stems from Rule 20 of the House Rules of the Judicial Institutions cited above. Therefore, the allegations made by the lawyer Mulahalilović in the appeal are not only unjustified but totally inappropriate. The allegation in the appeal that the witness was punished simply because he was a believer who was practising his religion, and that he had thereby been discriminated against, is also unsubstantiated. The duty of removing headgear and behaving decently applies without exception to anyone visiting the court premises. All persons visiting the Court, regardless of their religion, nationality, sex or other status, have the same rights and obligations and are obliged, among other things, to remove their skullcaps, hats and other headgear. This was explained to the witness. Any behaviour to the contrary has always been interpreted and is still interpreted as disrespectful towards the court, and the appellant is aware of that. Bosnia and Herzegovina, as mentioned in the impugned decision, is a secular State in which religion is separate from public life. The Chamber therefore holds that the premises of the Court cannot be a place for the manifestation of any religion. It clearly follows from the aforementioned that the witness Husmet Hamidović was not deprived of his right to freedom of religion and freedom to manifest religion at his home or any other place dedicated for that purpose, but not in the courtroom. Therefore, the allegations by the lawyer Mulahalilović of a violation of the rights guaranteed by the Constitution and the European Convention on Human Rights, and of discrimination on religious grounds, are unsubstantiated. Having found that the witness’s punishment was justified and that his appeal was ill-founded in that part, the Appeals Chamber then examined the amount of the fine and decided that it was excessive. As noted in the appeal, BAM 10,000 is the maximum fine for contempt of court. The maximum fine should be imposed in the most serious cases. Turning to the relevant criteria, the nature and the seriousness of the conduct must certainly be taken into consideration. However, the appellant is wrong in claiming that his means should have also been taken into account, as the fine for contempt of court is not a criminal sanction, but is of a disciplinary nature. While the witness showed a high level of determination in disrespecting the court (he again failed to remove his skullcap after a pause of ten minutes given to him to reflect) and this fact definitely affected the amount of the fine, the act itself (failure to remove headgear) is not the most serious case of contempt of court which would justify the maximum fine. Since the witness did not use offensive language, there was no need to impose the maximum fine. This is notwithstanding the fact that members of the same religious group have lately shown a pattern of disrespectful behaviour. While it is true that the general prevention is one of the aims of sanctions, including disciplinary ones, disciplinary sanctions are primarily directed at individuals. Everyone should therefore be held responsible and adequately punished for his/her conduct only, and not for that of other members of any group. This follows from Article 242 § 3 of the Code of Criminal Procedure. In the circumstances of this case, and having regard to the nature and the intensity of contempt of court committed by this witness, the appeals chamber finds that a fine in the amount of BAM 3,000 is appropriate. The appeal by the lawyer Mulahalilović is therefore partially accepted and the impugned decision amended.” 9. As the applicant had failed to pay the fine, on 27 November 2012 the fine was converted into thirty days’ imprisonment pursuant to Article 47 of the Criminal Code. That decision was upheld on 13 December 2012 and the applicant served his prison sentence immediately. 10. On 9 July 2015 the Constitutional Court of Bosnia and Herzegovina found no breach of Articles 9 and 14 of the Convention, fully accepting the reasoning of the State Court. At the same time, it found a breach of Article 6 of the Convention because of the automatic way in which fines were converted into imprisonment and ordered that Article 47 of the Criminal Code of Bosnia and Herzegovina be amended. However, it decided not to quash the decision converting the fine into imprisonment in this case, relying on the principle of legal certainty. The relevant part of the majority decision reads as follows: “40. The Constitutional Court notes that the present case concerns a specific situation where the universally accepted standard of conduct in a judicial institution intertwines with the right of the appellant to manifest in a courtroom, contrary to that standard, affiliation with his religious community. The appellant claims that the State Court did not have a basis in law for imposing a fine for his failure to comply with a court order, as the Code of Criminal Procedure does not contain a provision prescribing any such measure, for which reason his right to freedom of thought, conscience and religion was violated. 41. Starting from the main objection raised by the appellant, that the limitation in the case at hand was not prescribed by law, the Constitutional Court notes that the European Court (The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30) has held that two requirements flow from the expression ‘prescribed by law’ in Article 9 of the European Convention. ‘Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’ In addition, the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see Kokkinakis, cited above). 42. Accordingly, as concerns the issue of whether the State Court, in adopting the challenged ruling, acted in accordance with the law, the Constitutional Court observes that the provision of Article 242 § 3 of the Code of Criminal Procedure provides that the judge or the presiding judge may order that a party to the proceedings who disrupts order in a courtroom or disobeys court orders be removed from the courtroom and be fined in an amount of up to BAM 10,000. The Constitutional Court also observes that the cited provision, on which the State Court relied, does not prescribe a list of all types of conduct which may be regarded as disruption of order in a courtroom, but rather each court, in the circumstances of a given case, decides whether some type of conduct may be considered disruptive or not, which falls within the scope of that court’s margin of discretion (see the Constitutional Court decision no. AP 2486/11 of 17 July 2014, § 33). This is a universally accepted standard of conduct of the courts in Bosnia and Herzegovina, which is in accordance with the position of the European Court, referred to in the Kokkinakis judgment, that the interpretation and application of such enactments that are couched in vague terms depend on practice. 43. The Constitutional Court notes that the State Court relied also on Rule 20 of the House Rules, providing that ‘visitors must respect the dress code applicable to judicial institutions’, as an internal act of the State Court and other judicial institutions. The Constitutional Court observes likewise that the mentioned provision does not specify what that dress code is. However, the State Court in the case at hand kept in mind that the universally accepted standard of conduct in a civilised society required that upon entering the premises of a public institution one should remove one’s headgear out of respect for that institution and its function. Likewise, the Constitutional Court is aware that the said House Rules were not published, but that is not a problem since the present case concerns a universally accepted and usual standard of conduct in a judicial institution in a civilised and democratic society that Bosnia and Herzegovina aspires to become. The Constitutional Court also holds that the standard in issue could and should have been known to the appellant. In addition, the Constitutional Court observes that the State Court clearly and unequivocally warned the appellant of that universally accepted standard of conduct, which is indeed mandatory for all visitors of judicial institutions, irrespective of their religion, sex, national origin or other status. 44. Moreover, the State Court clearly warned the appellant of the consequences of such conduct and, although it was not required to do so, accorded him an additional time to reconsider his position. This is clearly in accordance with the stance taken by the European Court in relation to the notion ‘prescribed by law’ (The Sunday Times, cited above). Indeed, the State Court clearly and unequivocally informed the appellant of the applicable rules in the judicial institutions and of the consequences of disobeying the rules. Moreover, at his own request, the appellant was granted additional time to think about all this. The Constitutional Court especially emphasises the fact that the limitation in question applied only while the appellant was in the courtroom, that is, during his testimony before the State Court. The Constitutional Court holds that the State Court did not thereby place an excessive burden on the appellant, given that it simply requested that the appellant adjust his conduct to the House Rules, which applied to all visitors, and only in the courtroom. Bearing in mind all the aforementioned, the Constitutional Court holds, in the circumstances of this particular case, that the State Court, using the margin of discretion referred to in Article 242 § 3 of the Code of Criminal Procedure, acted in accordance with the law, and that, contrary to the appellant’s opinion, the interference, which was of a limited nature, was lawful. 45. As to the question whether the interference in the present case had a legitimate aim, the Constitutional Court notes that the State Court simply relied on a universally accepted standard of conduct in a judicial institution, which requires all the visitors of judicial institutions to respect ‘the dress code applicable to judicial institutions’. That court further relied on the inadmissibility of the manifestation in public institutions of religious affiliation and religious symbols which were contrary to the usual standards of conduct, and in so doing it took into account its obligation to support the values that bring people closer and not those that separate them. The Constitutional Court notes that the State Court underlined in that regard that Bosnia and Herzegovina was a secular State where religion was separated from public life and that therefore no one could manifest his/her religion or religious affiliation in a courtroom. Considering the position of the European Court that in democratic societies in which several religions coexist (as is the case of Bosnia and Herzegovina) it may be necessary to place restrictions on the freedom of religion (Kokkinakis, cited above), in the context of the obligation of an independent judicial institution to support the values that bring people closer, and not those that separate them, the Constitutional Court holds that the restriction in the present case, which was of a temporary nature, aspired to achieve legitimate aims. Finally, the Constitutional Court reiterates that Article 242 § 3 of the Code of Criminal Procedure is primarily designed to allow the State Court unhindered and effective conduct of proceedings. A judge or the president of a chamber is thereby given the possibility of imposing a fine for any inappropriate behaviour which is directed at disrupting order in a courtroom or at damaging the reputation of the State Court. In the present case, the State Court considered the repeated refusal of the appellant to comply with an order of the court to be damaging to the reputation and the dignity of a judicial institution. Therefore, the Constitutional Court finds that the restriction in issue, which was of a limited nature, was in accordance with the legitimate aim of maintaining the dignity of a judicial institution for the purposes of Article 9 of the European Convention. 46. Finally, as to the question whether the decision was necessary in a democratic society in order to achieve one of the legitimate aims under Article 9 of the European Convention, the Constitutional Court reiterates that, according to the settled case-law of the European Court, the Contracting States have a certain margin of appreciation in assessing the existence and extent of the need for interference, but this margin is subject to European supervision, embracing both the law and the decisions applying it, even those given by independent courts (Dahlab, cited above). Furthermore, under the well-established case-law of the European Court, the Court is called upon to establish whether the measures undertaken at the national level were justified in principle – that is, whether the reasons given by the national authorities to justify them were ‘relevant and sufficient’ and whether the measures were proportionate to the legitimate aim pursued (The Sunday Times, cited above, § 50). of Criminal Procedure enabling the courts to fine participants in proceedings who refuse to obey court orders, with a view to conducting proceedings efficiently and maintaining the authority and dignity of courts. The Constitutional Court took into account the fact that owing to his failure to pay the fine, the appellant’s fine was converted to a prison sentence pursuant to Article 47 of the Criminal Code. However, the Constitutional Court will examine that factor in the following paragraphs of this decision concerning the right to a fair trial. Therefore, in view of the above and the circumstances of this particular case, the Constitutional Court holds that the impugned restriction did not constitute an excessive burden for the appellant, that the measure undertaken by the State Court pursued legitimate aims within the meaning of Article 9 of the European Convention, and that there was a reasonable relationship of proportionality between the restriction and the legitimate aim pursued. 48. Accordingly, the Constitutional Court concludes that the impugned decision did not breach the appellant’s right to manifest his religion under Article II § 3 (g) of the Constitution of Bosnia and Herzegovina and Article 9 of the European Convention.” 11. Two out of the eight judges of the Constitutional Court appended dissenting opinions. They disagreed with the majority as concerns Articles 9 and 14 of the Convention. In particular, given that the applicant had appeared as summoned and had stood up while addressing the court, they considered that his conduct had not been disrespectful. They further maintained that, unlike public officials, private citizens, such as the applicant, did not owe a duty of neutrality. Therefore, the applicant’s punishment for refusing to remove a religious symbol in a courtroom constituted, in their opinion, disproportionate interference with his right to freedom of religion.	1
test	001-154980	ENG	SWE	CHAMBER	2,015	CASE OF J.K. AND OTHERS v. SWEDEN	3	Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq)	Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano	6. The applicants, a married couple and their son, were born in 1964, 1965 and 2000, respectively. Their religious affiliation is unknown. 7. On 14 December 2010, the applicant husband applied for asylum and a residence permit in Sweden. On 11 July 2011, his application was dismissed since he was registered as having left the country. 8. On 25 August 2011, the applicant husband applied anew for asylum and a residence permit in Sweden, as did the other applicants on 19 September 2011. 9. Before the Migration Board (Migrationsverket), all the applicants were heard in an introductory interview on 26 September 2011. Subsequently, the adult applicants were heard anew during a longer interview, which took place on 11 October 2011 and lasted almost three and a half hours. The applicant son was interviewed briefly for a second time and the applicant husband was interviewed a third time. The applicants were assisted by appointed counsel. 10. The applicants maintained that upon return to Iraq they risked persecution by al-Qaeda and that the applicant husband appeared on their death list. The applicants had been brought up in Baghdad. Since the 1990s the applicant husband had run his own business exclusively with American clients and had had his office at the American base “Victoria Camp”. Several of his employees had on occasion been warned not to cooperate with the Americans. 11. On 26 October 2004, the applicant husband had been the target of a murder attempt carried out by al-Qaeda. He had had to stay in hospital for three months. There, unknown men had asked for him, after which he was treated in three different hospitals. 12. In 2005, his brother had been kidnapped by al-Qaeda who had claimed that they would kill him due to the applicant’s collaboration with the Americans. His brother had been released through bribes a few days later and had immediately fled from Iraq. The applicants had fled to Jordan and stayed there until December 2006, before returning to Iraq. 13. Soon thereafter, alQaeda members had placed a bomb next to their house. However, it had been detected by the applicant wife, and the Americans had arrested the perpetrator. During interrogations, the perpetrator had confessed that he had been paid by al-Qaeda to kill the applicant husband and had disclosed the names of 16 persons who had been designated to watch the applicants. Thereafter, the applicants had moved to Syria although the applicant husband had continued his business in Iraq. During this time, al-Qaeda had destroyed their home and their business stocks. 14. In January 2008, the applicants had returned to Baghdad. In October the same year, the applicant husband and his daughter had been shot at when driving. The daughter had been taken to a hospital where she had died. The applicant husband had then stopped working and the family had started to move around in Baghdad. The business stocks had been attacked four or five times by al-Qaeda members, who had threatened the guards. The applicant husband stated that he had not received any personal threats since 2008, as the family was moving around. The applicant son had spent most of his time indoors for fear of attacks and had only attended school for the final exams. They had never sought protection from the domestic authorities as they lack ability to protect the family and for fear of disclosing their address, knowing that al-Qaeda collaborated with the authorities. The applicant husband still had an open and infected wound on his stomach where he was shot in 2004. The applicant wife had cysts on her liver and in her uterus. They submitted several documents, including identity papers, a death certificate for the applicants’ daughter and a medical certificate for the applicant husband’s injury. 15. On 22 November 2011, the Migration Board rejected the application. It found that all of the applicants had proved their identity and that their asylum story was credible. However, the Board noted that the applicant husband had ended his collaboration with the Americans in 2008 and that, thereafter, he had stayed in Baghdad for two years without being victim of any attacks except for the ongoing threats against his work stocks. Moreover, the applicant couple had three daughters who still lived in Baghdad and who were not harassed. The Board acknowledged that the applicants had been the victims of severe violence and harassment but observed that they had not sought any protection from the domestic authorities in Baghdad. Although it was true that al-Qaeda had infiltrated the domestic authorities, this had to a great extent diminished. Therefore, the Board concluded that the applicants had not made probable that they would be unable to seek the domestic authorities’ protection. Furthermore, the applicants’ state of health was not poor enough to grant them asylum. Consequently, there were no grounds on which to grant the applicants asylum or residence permits in Sweden. 16. The applicants appealed to the Migration Court (Migrationsdomstolen) and maintained that the Iraqi authorities had been and would be unable to protect them. They had contacted the police following the fire at their home and business stock in 2006 and 2008 and the murder of their daughter in 2008, but thereafter they had not dared to contact the authorities due to the risk of disclosing their residence. Together with their written submissions, they enclosed a written translated testimony attestation allegedly from a neighbour in Baghdad, who stated that a masked terrorist group had come looking for the applicant husband on 10 September 2011 at 10 p.m. and that the neighbour had told them that the applicants had moved to an unknown place. The neighbour also stated that, just after the incident, the applicant husband had called him and been told about the incident. The applicants also submitted a translated residence certificate/police report allegedly certifying that the applicants’ house had been burned down by a terrorist group on 12 November 2011. Furthermore, the applicants submitted a recording of a public debate on TV concerning the corruption and infiltration of al-Qaeda members within the Iraqi administration. The applicants mentioned in that connection that the applicant husband had participated in the public debate, which was broadcast on the Alhurra Channel in Iraq on 12 February 2008, thus four years earlier. Finally, submitting various medical certificates, the applicants contended that the applicant husband’s health had deteriorated and that he could not obtain adequate hospital care in Iraq. Before the Migration Court the Migration Board was heard. It stated, among other things, that the documents submitted concerning the alleged incidents on 10 September and 12 November 2011 were of a simple nature and low value as evidence. 17. On 23 April 2012, the Migration Court upheld the Migration Board’s decision. The court stated that the criminal acts of al-Qaeda had been committed several years before and that the applicant husband no longer had any business with the Americans. In the event that a threat still remained against the applicants, the court found it probable that the Iraqi authorities had the will and the capacity to protect them. Finally, referring to the applicants’ health, the court noted that these could not be seen as exceptionally distressing circumstances. In view of the above, there were no grounds on which to grant the applicants asylum or residence permits in Sweden. 18. The applicants appealed to the Migration Court of Appeal (Migrationsöverdomstolen). Their request for leave to appeal was refused on 9 August 2012. 19. On 29 August 2012 the applicants submitted an application to the Migration Board for a re-examination of their case. They maintained that the applicant husband was under threat from al-Qaeda because he had been politically active. They enclosed a video showing the applicant husband being interviewed in English, a video showing a demonstration, and a video showing a TV debate. The applicants’ request was refused on 26 September 2012. The applicants did not appeal against the decision to the Migration Court.	0
test	001-148624	ENG	RUS	COMMITTEE	2,014	CASE OF BIRYUCHENKO AND OTHERS v. RUSSIA	4	Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review by a court);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)	Dmitry Dedov;Erik Møse;Khanlar Hajiyev	5. The applicants are all Russian nationals. They were charged with different criminal offences and placed in detention. The applicants complain in particular that after their cases had been submitted to the trial court they were detained for approximately six months without a court order. The applicants’ individual circumstances are detailed below. 6. The applicant was born in 1964 and lives in Vsevolozhsk. 7. In 1998 criminal proceedings were instituted against him on suspicion of being a member of a large criminal group which had committed extortions by threats and other serious crimes. 8. On 7 December 1999 he was arrested by Czech police in Prague and on 18 February 2002 extradited to Russia where he was placed in detention. 9. On 1 March 2002 the Prosecutor of St Petersburg extended his detention up to four months, until 18 June 2002. The applicant did not appeal against this order. 10. On 10 June 2002 the Deputy Prosecutor General extended the applicant’s detention until 18 September 2002. 11. On 15 July 2002 the applicant’s counsel lodged an application for release with the Oktyabrskiy Federal Court claiming that the applicant should be released on the ground that the new Code of Criminal Procedure had entered into force on 1 July 2002, and that a person could now be detained only on the basis of a court order. 12. On 9 August 2002 the Oktyabrskiy Federal Court dismissed the application for release. This decision was quashed on 11 September 2002 by the St Petersburg City Court on the applicant’s appeal and the matter was sent back for reconsideration. On 4 October 2002 the Oktyabrskiy Federal Court referred the matter back to the City Court because the case had already been referred to it for trial. 13. On 19 September 2002 the applicant was served with a bill of indictment and on the same date the case was referred for trial to the St Petersburg City Court. 14. On 20 September and on 23 December 2002 the applicant applied to the St Petersburg City Court asking to be released on the grounds that his detention had ceased to be lawful after the expiration on 18 September 2002 of the last detention order. 15. On 13 March 2003 the applicant complained to the Supreme Court (“the Supreme Court”) about the St Petersburg City Court’s failure to examine his application for release of 23 December 2002. On 10 April 2003 the Supreme Court forwarded his complaint to the City Court. 16. The applicant’s detention was further extended by the St Petersburg City Court on 18 March, 18 June and 18 September 2003. Each time the City Court relied on the gravity of charges. All detention orders were appealed by the applicant. The detention orders of 18 March and 18 June 2003 were upheld by the Supreme Court on 18 September and on 8 October, respectively, whereas the detention order of 18 September 2003 was quashed on 3 December 2003. 17. On 8 December 2003 the applicant lodged an application for release with the St Petersburg City Court on the ground that since the extension order of 18 September 2003 had been quashed on appeal, he should be immediately released from detention. This application was never examined by the City Court. 18. On 16 December 2003 the St Petersburg City Court relying on the gravity of the charges extended the applicant’s detention for further three months, until 18 March 2004. 19. On 30 December 2003 the applicant appealed on the ground that the order had been unlawful since it was only based on the gravity of charges against him. Moreover, his detention had been extended despite the fact that the previous detention order had been quashed on appeal. 20. It appears that the applicant’s detention was further extended on 16 March 2004 and that the applicant appealed against that decision. On 29 March 2004 the St Petersburg City Court referred the case for additional investigation and confirmed that the applicant should remain in detention. 21. On 5 May 2004 the St Petersburg City Court referred the case for additional investigation. On the same date an investigator with the Prosecutor’s Office of St Petersburg ordered the applicant’s release on an undertaking not to leave his place of residence. 22. On 6 December 2007 the St Petersburg City Court found the applicant guilty as charged and sentenced him conditionally to five years’ imprisonment. 23. The applicants, Mr Ilya Aleksandrovich Stepanov (“the first applicant”), Mr Roman Sergeyevich Ponomarev (“the second applicant”) and Mr Aleksandr Anatolyevich Leontyev (“the third applicant”) were born in 1978, 1975 and 1964 respectively and live in Syasstroy, in the Leningrad region. 24. On 11 November 2004 the applicants were arrested on suspicion of theft. 25. On 13 November 2004 the Lodeynopolskiy Town Court of the Leningrad Region extended the applicants’ custody up to seventy-two hours. The applicants did not appeal this decision. 26. On 16 November 2004 the same court ordered the applicants’ pre-trial detention. No appeal was lodged against this order. 27. On 11 January 2005 the Lodeynopolskiy Town Court by three separate decisions extended the applicants’ detention until 12 February 2005. The Town Court held, in respect of the first and second applicants, that they “had committed the crime” while they had been under a written undertaking not to abscond. In respect of the third applicant, the Town Court held that he “had committed the crime” while he had been under a suspended sentence. The applicants appealed, notably on account of the wording used in these orders. 28. On 4 February 2005 the prosecuting authorities referred the criminal case against the applicants to the Lodeynopolskiy Town Court for trial. 29. On 9 February 2005 the Leningrad Regional Court upheld the detention orders of 11 January 2005. 30. On 14 February 2005 the Lodeynopolskiy Town Court remitted the criminal case against the applicants to the prosecuting authorities. The Town Court also held that the measure of restraint should remain unchanged without other details. 31. On 11 and 12 April 2005 the applicants’ detention was upheld by the Town Court with the same summary formula. Both decisions were appealed by the applicants and on 18 May 2005 both were upheld by the Leningrad Regional Court. 32. On 25 July 2005 the Lodeynopolskiy Town Court extended the applicants’ detention, indicating that this extension was necessary given that the six-month period of the applicants’ detention pending trial would expire on 4 August 2005. 33. On 21 October 2005 the Lodeynopolskiy Town Court acquitted the applicants of all charges and they were immediately released. On 14 December 2005 the Regional Court quashed this judgment. 34. On 28 April 2007 the Lodeynopolskiy Town Court found the applicants guilty of theft and sentenced them to different terms of imprisonment. On 6 June 2007 the Leningrad Regional Court upheld that judgment. 35. The applicant, Mr German Leonidovich Oynas was born in 1966 and lives in St Peterburg. 36. On 27 November 2003 the applicant was charged with causing grave bodily injury, an offence under Article 111 § 1 of the Criminal Code. 37. On 28 November 2003 the Vyborgskiy District Court of St Petersburg ordered the applicant’s placement in detention. On 25 December 2003 this order was upheld by the St Petersburg City Court. 38. On 22 January 2004 the Vyborgskiy District Court extended the applicant’s detention until 26 February 2004. The applicant appealed. On 26 February 2004 the St Petersburg City Court, in the applicant’s absence, upheld the extension order of 22 January 2004. 39. On 26 February 2004 the case was referred to the Vyborgskiy District Court for trial. 40. On 2 March 2004 the District Court, in the absence of the applicant, decided to set the case for trial without holding a preliminary hearing and held that the measure of restraint applied to the applicant should remain unchanged. The prosecutor and the applicant appealed. 41. On 29 April 2004 the St Petersburg City Court, in the applicant’s absence, quashed the decision of 2 March 2004 in so far as it had set the examination of the case without holding of a preliminary hearing and remitted the matter for fresh examination to the Vyborgskiy District Court. It also held that the review of the lawfulness of the applicant’s detention was not within its competence. It further decided that the measure of restraint applied to the applicant should remain unchanged. 42. On 20 May 2004 the applicant lodged an application for release with the Vyborgskiy District Court. He complained that after 26 February 2004 he had been detained without any court order, that on 29 April 2004 the St Petersburg City Court quashed the decision of 2 March 2004 in his absence and, without giving any reasons, ordered not to change the measure of restraint. On 25 June 2004 this application was rejected by the District Court. 43. On 27 May 2004 the Vyborgskiy District Court opened the preliminary hearing. The applicant applied for release. On the same date the court rejected the applicant’s motion for release having found that the applicant was charged with a serious offence, had been previously convicted and might interfere with the proceedings if released. The hearing was adjourned until 18 June 2004 and subsequently until 25 June 2004. 44. On 5 June 2004 the applicant appealed against the decision of 27 May 2004. 45. On 18 June 2004 the applicant’s counsel lodged an application for release with the Vyborgskiy District Court. On 25 June 2004 the Vyborgskiy District Court dismissed it having found that the applicant was charged with a serious offence, had been previously convicted, and might interfere with proceedings if released 46. On 25 June 2004, after having held the preliminary hearing, the Vyborgskiy District Court, set the case for trial on 9 July 2004 and held that the measure of restraint should remain unchanged. 47. On 4 and 5 July 2004 the applicant appealed against the decisions of 25 June 2004. 48. On 9 July 2004 the Vyborgskiy District Court extended the applicant’s detention until 26 November 2004, having found that the applicant was charged with a serious offence, he had been previously convicted and might interfere with proceedings if released. The applicant appealed. On 14 October 2004 the St Petersburg City Court upheld the detention order of 9 July 2004. 49. On the same date the St Petersburg City Court held that it was impossible to examine the applicant’s appeals against the decisions of 27 May and 25 June 2004 by which his requests for release had been dismissed. 50. The applicant’s detention was further extended by the Vyborgskiy District Court on 23 November 2004, 25 February 2005, 23 May 2005 and on 15 July 2005. All these extension orders were based on the same grounds. Each time the applicant appealed. All these extension orders were upheld by the City Court. 51. On 4 October 2005 the applicant was found guilty and sentenced to five years’ imprisonment. His conviction was upheld by the St Petersburg City Court on appeal on 31 January 2006. On 12 March 2007 the applicant was released for good behaviour. 52. On 4 August 2003 Mr Biryuchenko and on 16 September 2004 Mr Oynas complained to the Russian Constitutional Court about the de facto extension of their detention after their case files had been sent by the prosecution authorities to the respective trial courts. The Constitutional Court examined their complaints together with similar complaints lodged by other individuals. In a Ruling adopted on 22 March 2005 the Constitutional Court found that the challenged provisions of the new CCrP complied with the Constitution of the Russian Federation. However, their practical interpretation by the courts may have contradicted their constitutional meaning. In part 3.2 of the Ruling the Constitutional Court held: “The second part of Article 22 of the Constitution of the Russian Federation provides that ... the detention is permitted only on the basis of a court order ... . Consequently, if the term of detention, as defined in the court order, expires, the court shall decide on the extension of the detention, otherwise the accused person should be released ... These rules are common for all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to the preventive measure applied at previous stages. Therefore, when the case is transmitted by the prosecution to the trial court, the preventive measure applied at the pre-trial stage ... may continue to apply until the expiry of the term, for which it has been set in the respective court decision [imposing it] ... [Under Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within fourteen days, set a hearing and establish ‘whether the preventive measure applied should be lifted or changed’. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, only until the end of the term, for which the preventive measure has been set. The prosecution, in its turn, while approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has expired and whether it is sufficient to allow the judge to take a decision [on further detention of the accused pending trial]. If by the moment of transferal of the case-file to the court this term has expired, or if it appears to be insufficient to allow the judge to take a decision [on detention], the prosecutor, pursuant to Articles 108 and 109 of the Code of Criminal Proceedings, [should] request the court to extend the period of detention.” 53. On 1 August 2005 Mr Biryuchenko lodged a complaint with the General Prosecutor’s office. He submitted that between 19 September 2002, which was after his case had been referred for trial to the City Court, and 18 March 2003, he had been detained unlawfully (see paragraphs 10-16 above). Subsequently, his detention had been extended six times: on 18 March, 18 June, 18 September and 16 December 2003, on 16 March and 29 March 2004. He pointed out that he had appealed against all the extension orders, but the appeal court had failed to take his arguments into account. Relying on the ruling of the Constitutional Court of 22 March 2005, the applicant argued that in his case the courts had wrongly interpreted Article 255 of the new CCrP and had taken an unlawful decision on 18 March 2003. All the subsequent detention orders had also been unlawful. He requested the Prosecutor to lodge a request for supervisory review with the Supreme Court and apply for quashing of the extension orders. 54. On 21 September 2005 the General Prosecutor’s Office replied that the ambiguity of Article 255 allowed the courts to detain the defendants during six months without taking any decision in this respect. Therefore, when extending the applicant’s detention and dismissing his applications for release, the courts of first and second instances had not found any violation of law. Furthermore, the applicant had been released on 5 May 2004. Therefore, his right to liberty had been reinstated long before the adoption of the ruling of 22 March 2005 by the Constitutional Court. For these reasons, there had been no grounds to apply for a supervisory review of detention orders.	1
test	001-157527	ENG	POL	CHAMBER	2,015	CASE OF ŻUK v. POLAND	4	Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)	George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev	5. The applicant was born in 1951 and lives in Szczecin. 6. The applicant and her husband married in 1979 under the statutory regime of common marital property, provided for by the provisions of the 1994 Family and Custody Code. Under the applicable provisions of that Code they had equal shares in their common property. 7. By an administrative decision of 20 November 1989 the Szczecin Town Council (Urząd Miejski) held that the applicant’s husband, Mr Henryk Żuk, was determined a candidate to purchase two plots of land, nos. 184/3 and 187/3, owned at that time by the State Treasury and managed on its behalf by the State Land Fund (Państwowy Fundusz Ziemi). The Town Council, representing the State Treasury at that time, was obliged to sell the land to him on the basis of that decision. The administrative body established a three-month time-limit for the sale contract to be concluded. 8. J.S., W.K. and W.H., who had also applied to purchase the plots of land concerned, appealed against this decision. On 21 March 1990 the Director of the Regional Land Management Office in Szczecin (Urząd Wojewódzki) dismissed the appeal brought by J.S. It further confirmed the entitlement to purchase the land created by the contested decision, considering, inter alia, that the plots concerned were adjacent to a farm owned and run by the applicant and her husband and that therefore they were natural candidates for the purchase. The authority referred to the Act on Selling State-Owned Properties 1958 (ustawa o sprzedaży nieruchomości Państwowego Funduszu Ziemi). 9. By letters of 27 April 1990 and 23 July 1990 the Mayor of Szczecin (Prezydent m. Szczecina) informed the applicant and her husband that the decision of 20 November 1989 confirmed by the decision of 21 March 1990 could not be executed because W.K. had also contested it. The proceedings had therefore been re-opened ex officio. It was further stated that after the finalization of the appellate proceedings, the documents would be forwarded to the Cooperative Bank in Szczecin in order for the contract to be concluded. The three-month time-limit for the conclusion of the contract would start to run only after the decision became final. 10. On 16 April 1993 the Szczecin Governor (Wojewoda) upheld the validity of the decision of 20 November 1989. On 6 June 1994 the Minister of Agriculture dismissed the appeals referred to in paragraph 8 above. On 16 October 1995 the Supreme Administrative Court in Warsaw dismissed the appeal brought by W.K. Accordingly, the contested decision became final on an unspecified date in early 1996. 11. On 16 May 1994 a new local land development plan (plan zagospodarowania przestrzennego) was adopted by the Szczecin municipality. 12. On 27 March 1998 the Szczecin Governor (Wojewoda) gave an administrative decision transferring ownership of the land concerned to the Agency of Agricultural Property of the State Treasury (Agencja Własności Rolnej Skarbu Państwa) in order for the 1989 decision to be executed. The Agency appealed. On 10 January 2002 the Minister of Agriculture quashed this decision. He found that under the provisions of the Szczecin land development plan of 1994 the lands situated within the administrative limits of the municipality and intended for agricultural purposes were not to be owned by the State Treasury and therefore not subject to transfer to the resources of the Agency. 13. The Szczecin Town Council, when subsequently called by the applicant and her husband to execute the 1989 decision by selling the land to them, refused to do so. In letters dated 13 June and 31 July 2002 and 14 February 2003 addressed to the applicant and her husband, the municipality’s executive board (Zarząd miasta) refused to transfer ownership to them essentially because the land concerned, situated within the administrative limits of the Szczecin municipality, had been designated for non-agricultural purposes under the 1994 land development plan. 14. In 2003 the applicant called on the Zachodniopomorskie Governor (Wojewoda Zachodniopomorski) to issue an administrative decision transferring ownership rights from the State Treasury to the Szczecin municipality, but to no avail. 15. On an unspecified date the Szczecin Mayor (representing the municipality) requested the Governor (representing the State Treasury) to take over the ownership of the plots of land concerned. On 30 September 2003 the Governor refused to do so, relying on the Act of 19 October 1991 on the management of State-owned agricultural property (ustawa o gospodarowaniu nieruchomościami rolnymi Skarbu Państwa oraz o zmianie niektórych ustaw). It was noted that under the 1994 land development plan adopted by the Szczecin municipality, the plots no longer constituted agricultural land either within the meaning of the Civil Code nor under the local land development plan. It could therefore not be transferred to the Agency representing the State Treasury in the management of agricultural properties it owned as the agency had jurisdiction only in respect of land designated for agricultural uses. The Mayor appealed. On 8 June 2005 the Minister of Agriculture upheld the contested decision. No appeal to the administrative court against this decision was lodged. 16. As a result, the land remained municipal property. 17. On 17 April 2003 the applicant and her husband lodged a civil action against the Szczecin municipality. They requested the court, relying on Article 64 of the Civil Code, to oblige the defendant municipality to sell the property concerned to the applicant’s husband on the basis of the 1989 decision (roszczenie o złożenie oświadczenia woli). In response to the claim the defendant municipality asked for the action to be dismissed. It submitted that it did not own the land concerned. It was at that time owned by the State Treasury. As the Governor had refused to give a decision on the transfer of ownership of that land to the municipality (see paragraph 15 above), the latter could not sell it. The municipality further argued that the claim to have the property sold to the applicants had become prescribed. 18. The Szczecin District Court, by a judgment of 28 November 2003, dismissed the claim. The applicant and her husband appealed. 19. On 15 April 2004 the Szczecin Regional Court allowed the appeal, amended the contested judgment and allowed the claim. It dismissed the prescription objection. The court was of the view that the ten-year prescription period provided for pecuniary claims under the provisions of the Civil Code had started to run only in 1996 when the 1989 decision had become final (see paragraph 10 above). 20. The court further obliged the municipality to sell the land concerned to the applicant and her husband. It was of the view that the first-instance court had erred in finding that neither the provisions of the 1958 Sale of the National Land Fund Act (ustawa o sprzedaży nieruchomości Państwowego Funduszu Ziemi) nor the decision given in 1989 and 1990 (see paragraphs 7 and 8 above) on the basis of that Act provided for an obligation on the part of the municipality to sell the land to the addressee of that decision. That decision created on the claimants’ part a claim of a pecuniary nature to have the sale contract concluded with them. They were not therefore obliged to participate in a tender which was simply another procedure for buying the land owned by the State, not applicable to their situation. The fact that the proceedings lasted until 1996 because other persons had contested that decision did not affect the validity of their claim. Nor did the fact that the applicable provisions changed in 1991 and the ownership of the land had thereby been transferred ex lege from the State Treasury to the municipality (see paragraphs 34-35 below) affect the existence and validity of the claim to have the purchase contract concluded or the corresponding obligation on the part of the public authorities. In the operative part of the judgment the court expressly formulated the essential provisions of the sale contract to be concluded by the Szczecin Municipality with the applicants, including the price of PLN 11,015 to be paid for the plots. The court further ordered the municipality to cover the legal costs borne by the applicant and her husband in the amount of PLN 4,496. 21. The defendant municipality appealed. Its appeal was rejected on 9 September 2004 by the Szczecin Regional Court for having been lodged out of time. 22. On 17 March 2005 the applicant and her husband paid PLN 6,519 to the municipality, the amount being the difference between the price of PLN 11,015 as determined by the judgment and PLN 4,496, the amount of court costs they had borne in the connection with the civil proceedings. 23. In 2005 and 2006 the applicant and her husband, referring to this judgment, called the municipality to sell the property to them, but to no avail. 24. By a judgment of 14 May 2007 the Szczecin District Court held that the statutory conjugal property of the applicant and her husband created ex lege by their marriage on 6 January 1979 had been replaced by a separate marital property regime as from 1 January 2004. 25. On 29 February 2008 the applicant and her husband lodged a civil action against the Szczecin Municipality with the civil court requesting that steps be taken by that court to put right the discrepancies between the entry in the land register and the actual ownership of the plot (powództwo o uzgodnienie ksiçgi wieczystej z rzeczywistym stanem prawnym). They referred to the judgment of the Regional Court, summarised in paragraphs 19 and 20 above and requested that the State Treasury be listed as owner of the land concerned. 26. The applicants also submitted an alternative claim asking the court to order the State Treasury represented by the Mayor of Szczecin to sell the property to them. The Mayor was invited to participate in the proceedings. 27. The municipality argued before the court that it did not own the land. As the land was owned by the State Treasury, the municipality could not sell it. 28. On 15 September 2008 the Szczecin District Court dismissed the claim. Subsequently, on 27 March 2009 the Regional Court quashed this judgment on formal grounds and ordered that the case should be re-examined. 29. On 30 July 2009 the Szczecin District Court dismissed the claim against the State Treasury – the Mayor of Szczecin (pko Skarbowi Państwa – Prezydentowi Miasta Szczecina) and against the municipality of Szczecin (pko Gminie Miasto Szczecin). It noted that the relevant land register listed the State Treasury as the owner of the plot. The land register could only be amended on the basis of an administrative decision issued by the Governor on the basis of section 18(1) of the Local Self-Government Act of 10 May 1990 ("the 1990 Act") confirming the ex lege transfer of ownership from the State Treasury to the local municipality on the basis of that Act (see paragraph 36 below). The Governor had never given a relevant administrative decision. The civil court had no jurisdiction to order administrative bodies to issue administrative decisions. In the absence of such a decision the ex lege transfer of ownership to the municipality provided for by law could not become operative. In the absence of such a transfer certified by a decision, the State Treasury remained the land’s owner. It was therefore impossible for the court to order the municipality to sell the plot to the claimant or to amend the land register in such a manner as to list the municipality as the owner. The judgment given in 2004 was not res iudicata towards the State Treasury as it was the municipality who had been the defendant in these proceedings. 30. The claimants appealed. They argued that they had already specified before the first-instance court that the claim was directed against both the State Treasury and the municipality of Szczecin. 31. During the hearing before the appeal court the lawyer representing the applicant and her husband stated that he had corrected the content of the alternative claim (as regards the entity who was supposed to make a declaration of intent) already during the proceedings before the court of first instance. 32. The applicant’s appeal was dismissed on 4 March 2010 by the Szczecin Regional Court. The court shared the conclusions of the lower court. It was of the view that the claimants had not made it sufficiently clear that the alternative claim had been directed against both the State Treasury and the municipality. Despite the fact that the plaintiffs had pointed out the mistake in their statement of claim which had been addressed against the State Treasury, the court could not rectify that mistake ex officio. 33. The Supreme Court refused to entertain the cassation appeal against this judgment by a decision of 23 February 2011.	1
test	001-145703	ENG	BIH	COMMITTEE	2,014	CASE OF BOKAN AND OTHERS v. BOSNIA AND HERZEGOVINA	4	Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)	Nona Tsotsoria;Päivi Hirvelä	5. The applicants live in Bosnia and Herzegovina. 6. By five judgments of the Banja Luka Court of First Instance of 30 March 2009, 5 February 2001, 19 November 2001, 3 May 2000 and 13 December 2000 which became final on 12 November 2009, 23 August 2004, 26 October 2004, 26 April 2005 and 26 December 2001, respectively, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, the following amounts in convertible marks (BAM) in respect of war damage with default interest at the statutory rate: BAM 5,500 in respect of non-pecuniary damage and BAM 1,039 in respect of legal costs to Mr Draško Bokan; BAM 23,000 in respect of non-pecuniary damage and BAM 1,500 in respect of pecuniary damage to the Jovešs; BAM 20,500 in respect of non-pecuniary damage and BAM 847 in respect of legal costs to Mr Dragoslav Banjac; BAM 28,000 in respect of non-pecuniary damage, BAM 2,000 in respect of pecuniary damage and BAM 1,669 in respect of legal costs to the Tutićs; and BAM 17,000 in respect of non-pecuniary damage, BAM 1,300 in respect of pecuniary damage and BAM 1,666 in respect of legal costs to the Kovačevićs. 7. The Banja Luka Court of First Instance issued writs of execution (rješenje o izvršenju) on 24 December 2009, 22 October 2004, 27 May 2005, 6 September 2006 and 5 April 2002, respectively. 8. The applicants, except for Mr Dragoslav Banjac and the Tutićs, complained of non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On different dates the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in the cases of Mr Draško Bokan, the Jovešs and the Kovačevićs. The applicants did not claim compensation, but even if they had done so, their claim would most likely have been refused (see, for example, the Constitutional Court’s decisions AP 774/04 of 20 December 2005, § 438; AP 557/05 of 12 April 2006, § 195; AP 1211/06 of 13 December 2007, § 79; AP 224/08 of December 2010, § 37). 9. After an extensive information campaign explaining the available options for the settlement of the Republika Srpska’s public debt (including its debt arising from domestic judgments), between 25 March 2008 and 19 March 2013 the applicants informed the authorities that they agreed to be paid only the legal costs in cash and the principal debt and default interest in bonds. Government bonds were then issued on the following dates: on 31 May 2012 to Mr Draško Bokan; on 31 May 2012 to the Jovešs; on 31 May 2012 to Mr Dragoslav Banjac; on 15 June 2010 to Ms Nada Tutić and Mr Borislav Tutić, on 1 July 2010 to Ms Dragana Tutić, on 31 May 2012 to Ms Dušanka Tutić; on 15 December 2008 to Ms Radmila Kovačević and Ms Jelena Kovačević and on 24 December 2012 to Ms Nikolina Kovačević. 10. Ms Smiljana Joveš, Mr Dragoslav Banjac, the Tutićs, and the Kovačevićs have already sold some or all of their bonds on the Stock Exchange.	1
test	001-174617	ENG	LTU	CHAMBER	2,017	CASE OF JANKAUSKAS v. LITHUANIA (No. 2)	3	No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)	Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano	5. The applicant was born in 1972 and lives in Pakruojis. 6. In 1996 the applicant graduated from the Lithuanian Police Academy with a degree in law. He worked as an investigator at Šiauliai city police headquarters. 7. On 3 October 2000 the Šiauliai Regional Court established that from 1995 to 1996, when he had been working as an investigator, the applicant had several times solicited and sometimes succeeded in getting bribes for discontinuing criminal proceedings. The victims of the applicant’s crimes, who were suspects in criminal proceedings or their relatives, had been threatened and sometimes harassed sexually by the applicant. He would tell them that “the case would end badly (blogai baigsis)” if they did not meet his demands. The Šiauliai Regional Court found that such actions amounted to the intentional crimes of abuse of office (Article 285 of the Criminal Code) and bribery (Article 282 of the Criminal Code). The court also noted that the applicant had not acknowledged his guilt, but had instead tried to justify his criminal acts and avoid taking responsibility for them in any way possible. The trial court sentenced him to eight years’ deprivation of liberty in a correctional labour colony under a strict regime, ordered the confiscation of all his property, and prohibited him from working in law enforcement or the justice system for five years. 8. The applicant’s conviction was upheld by the Court of Appeal on 29 June 2001 and by the Supreme Court on 18 December 2001. 9. In 2003, upon entry into force of the new Criminal Code, the Šiauliai Regional Court requalified the applicant’s sentence to four years and seven months’ deprivation of liberty. The applicant was released from prison on 8 September 2003 after serving his sentence. 10. By a ruling of 17 June 2005 the Šiauliai Regional Court expunged the applicant’s conviction from his criminal record. The court noted that the applicant had served his sentence. He had been convicted of crimes of medium severity. The court also took account of the fact that the applicant had not committed any violations of administrative law, had been bringing up a child alone, had been described in positive terms by people at his place of residence and at his workplace, had drawn the right conclusions from the crimes he had committed, and had promised not to commit any crimes in the future. The ruling was not appealed against and became enforceable. 11. According to the applicant’s curriculum vitae, which he later submitted to the Bar Association, from May 2004 he worked as in-house lawyer and loan administrator in various private companies. 12. On 12 January 2007 the applicant wrote to the Lithuanian Bar Association, which regulates advocates (lawyers admitted to the Bar, advokatas), requesting to be admitted as a trainee advocate. He asked that an advocate V.S.B. be appointed as his supervisor in his work practice. The applicant also confirmed in writing that “none of the grounds listed in the Law on the Bar prevented him from being put on the list of trainee advocates”. The applicant also submitted a written application (advokato įskaitos lapas) where he listed his former places of employment, stating that from 22 July 1991 until 15 March 1999 he had worked in the police and from 19 March 2004 in the private sector. There was no explanation about the period between 1999 and 2004. 13. The Bar Association placed the applicant’s name on the list of trainee advocates on 25 January 2007 and advocate V.S.B. was appointed as his supervisor. 14. On 13 June 2007 the Bar Association received a letter from a private person, L.G., informing it that the applicant had withheld information from the Bar Association that he had been previously convicted. 15. On 20 June 2007 the Bar Association held that by failing to inform it of the conviction, the applicant had withheld information relevant to assessing his reputation, and that therefore he had shown that his attitude towards the standing of the Lithuanian Bar and towards becoming a trainee advocate was not honest and respectful. The Bar Association considered that the applicant had breached points 1.3, 12.1 and 13.2 of the Lithuanian Code of Professional Ethics for Advocates (see paragraph 37 below – hereinafter, “the Code of Ethics”), and disciplinary proceedings against him were therefore justified. The Bar Association also considered that the applicant’s supervisor, V.S.B., had likewise breached the Code of Ethics but that he would not face disciplinary proceedings owing to his long and positive professional record. 16. On 10 July 2007 the Disciplinary Committee of the Bar Association held that the applicant had committed a disciplinary violation by withholding information about his conviction by Šiauliai Regional Court on 3 October 2000 (see paragraph 7 above). The committee emphasised the fact that the applicant had not mentioned the conviction or his “long prison sentence” in his application to be admitted as a trainee advocate, his curriculum vitae or in the other documents submitted in support. Information about the conviction had been relevant for assessing his reputation. By withholding such information the applicant had acted dishonestly and disrespectfully, and had not protected the prestige of the Lithuanian Bar. The applicant had thus breached points 1.3, 12.1 and 13.2 of the Code of Ethics, which set out the necessary requirements for candidates to become trainee advocates (see paragraph 37 below). The case therefore had to be decided by the Court of Honour of Advocates (hereinafter – “the Court of Honour”). 17. In a letter of 4 September 2007 to the Bar Association the chief prosecutor of Šiauliai Region wrote that the applicant lived in the city of Šiauliai and that in the course of his work as a trainee advocate he had interaction with the same investigators, prosecutors and judges with whom he had worked before committing his crimes and with those who had later investigated his crimes or examined his case in court. Even though the applicant had served his sentence, communication with those investigators, prosecutors and judges caused some strains at work in Šiauliai. The chief prosecutor stated that it would be better if the applicant could be prevented from practising law in the city or region of Šiauliai, even though the Law on the Bar did not provide for the possibility to restrict an advocate’s activity within or outside a certain area. 18. By a letter of 4 September 2007 the Court of Honour informed the applicant about the forthcoming hearing in his case, and invited him to participate in person or have an advocate represent his interests in those disciplinary proceedings. The applicant was present at the hearing, and explained that he had not hidden his conviction. The only reason he had not informed the Bar Association about it was because in his view there had been no requirement to do so. He also asked for the removal of the president of the Court of Honour, J.K., stating that the manner in which the latter had put certain questions to him showed he was biased. The request was refused as unfounded. 19. The Court of Honour, composed of the presiding advocate, J.K., and two other advocates, A.P. and G.P., met on 25 September and 25 October 2007. They postponed the hearing to a later date on each occasion. 20. On 23 November 2007 the Court of Honour rejected a request by the applicant to remove J.K. as unsubstantiated, while A.P. was replaced by another advocate, J.M. 21. The Court of Honour also held on the same day that the applicant had breached the Code of Ethics and imposed the disciplinary measure of ordering his removal from the list of trainee advocates, on the basis of Articles 13 § 1 and 54 § 2 of the Law on the Bar (see paragraph 34 below). In setting out its reasons the Court of Honour had regard to the crimes committed by the applicant and noted that during the criminal court proceedings he had expressed no remorse (see paragraph 7 above). For the Court of Honour, even though the law did not directly require that a person disclose a prior conviction when submitting a request to become a trainee advocate, such an obligation stemmed from Article 8 (4) of the Law of the Bar, which required candidates to be of high moral character (nepriekaištinga reputacija). Similarly, point 13.2 of the Code of Ethics set out that an advocate had to act honestly and ethically, even if certain acts or behaviour that did not meet the requirements of the Law on the Bar or the Code of Ethics were not described specifically in that Code (see paragraph 37 below). The Court of Honour considered that the crimes which the applicant had committed whilst working in law enforcement had been cynical and had shown great disrespect towards society. Moreover, he had committed those crimes while working in the legal field. In the light of such considerations, the Court of Honour was convinced that the applicant, who had a university degree and had previously had a law-related job, had deliberately withheld information about his prior conviction, because he had been aware that, if information not only about his crimes but also about the manner in which he had committed them had come to light, then the Bar Association would have rejected his application to become a trainee advocate. Lastly, the Court of Honour noted that the profession of advocate was defined not only by legal acts, but also by certain ethical rules, historic practices and society’s legitimate expectations as to the assistance an advocate was to provide as part of his or her role. An advocate should therefore always adhere to the moral and legal standards and obligations, protect the professional honour and dignity of advocates and do nothing that would discredit the good name of the profession, the advocate’s oath, or the notion of justice. 22. The applicant challenged the above decision before the Vilnius Regional Court. He argued, inter alia, that there had been procedural beaches and that the Court of Honour had not been impartial. He also maintained that the concept of high moral character applied to advocates was too strict when compared with the requirements for bailiffs or civil servants. 23. On 24 October 2008 the Vilnius Regional Court dismissed the applicant’s appeal as unfounded. It dealt with the applicant’s allegations about procedural violations by the Court of Honour by noting that that court had merely postponed the case on 25 September and 25 October 2007, without examining it on the merits (see paragraph 19 above). The applicant’s suggestion that the Court of Honour had issued a ruling on either of those dates that the applicant had not committed a disciplinary violation was therefore unfounded. Furthermore, J.K., the advocate who had been the president of the Court of Honour, had been questioned as a witness by the Vilnius Regional Court and had testified that he had not been biased against the applicant; he had only had an opinion about the particular actions performed by the applicant. Moreover, the applicant’s allegation about a lack of impartiality on the part of J.K. had also been dismissed as unfounded by the Court of Honour. Lastly, the change in the composition of that court when the case had been decided on 23 November 2007, removing A.P., a member said by the applicant to have been favourable to him (see paragraph 20 above), had not been a decisive factor because the court had been unanimous in its finding against the applicant. The Vilnius Regional Court thus dismissed the applicant’s request to summon for questioning advocate A.P., who, according to the applicant, had participated in the hearing when his case had gone before the Court of Honour. On the basis of the written evidence, the first-instance court established that A.P. had not taken part in the disciplinary proceedings against the applicant. 24. As to the question of the applicant’s reputation, the Vilnius Regional Court had particular regard to the crimes of which he had been convicted (see paragraph 7 above). While observing that the conviction had expired, the court noted that the crimes had been committed when the applicant had been working in law enforcement. The manner in which those crimes had been committed and their scale did not allow for the assertion that the applicant had automatically regained the status of being of high moral character immediately after the conviction had been expunged. Were it otherwise, society’s expectations as to the morals and ethics of representatives of the advocate’s profession would not be met. Only people of high moral character could be trusted to work in the process of the implementation of justice. In other words, the applicant’s actions had to be looked at to see not only if they had been in accordance with applicable laws, but also whether they had adhered to the requirements of professional ethics. That stemmed, inter alia, from Article 8 (4) and other provisions of the Law on the Bar, which provided that an advocate was liable to disciplinary sanctions, including disbarment, for breaches of professional ethics (see paragraph 34 below), and was something that had also been confirmed by the Supreme Court (see paragraph 43 below). 25. The Vilnius Regional Court concurred with the Court of Honour that the applicant had had a moral obligation to disclose important information such as a prior conviction to the Bar Association when submitting an application to become a trainee advocate, even though that requirement had not been explicitly stated on the application form (see paragraph 12 above, advokato įskaitos lapas). The fact that, according to the applicant, his supervising advocate, several other advocates in Šiauliai and some members of the Bar Association Council had known about his prior conviction, did not absolve him from the obligation to provide information that was as comprehensive as possible when applying to the Bar, so that it would be possible to assess his reputation objectively and comprehensively. The Court of Honour had also been correct in holding that the applicant had consciously withheld that information because he had understood that the nature of his criminal acts would not have permitted him to be considered as a person of high moral character. In any case, if the applicant had had any doubts about whether the information about his prior conviction was relevant, he could have asked the Bar Association. Consequently, it had been legitimate for the Court of Honour to impose a disciplinary measure on the applicant by removing him from the list of trainee advocates. 26. The applicant appealed, arguing, inter alia, that the rules of the Code of Ethics had not applied to him at the time when he had requested to become a trainee advocate, given that they applied only to people who were already advocates and trainee advocates. According to the applicant, the president of the Court of Honour had clearly acknowledged to the Vilnius Regional Court that anyone who had disclosed a prior conviction had been admitted to the Bar and that the applicant would also have been admitted if he had done the same. The applicant also relied on Article 5 § 1 (2) of the Law on Bailiffs and Article 9 § 3 (1) of the Law on Civil Service (see paragraphs 41 and 42 below), implying that the definition of high moral character had been interpreted too broadly by the Court of Honour. The Bar Association asked that the applicant’s appeal be dismissed. 27. By a ruling of 7 April 2009 the Court of Appeal upheld the Vilnius Regional Court’s arguments and dismissed the applicant’s appeal. It found that no violations had been committed under Article 6 §§ 1 and 3 of the Convention as regards the fairness of the disciplinary proceedings. The rules regulating disciplinary proceedings did not prohibit postponing examination of a case. Moreover, the applicant had not challenged J.M.’s participation in the disciplinary proceedings. It would also have been irrelevant to summon A.P. as she had not sat in the Court of Honour when it had decided on the applicant’s case on 23 November 2007. 28. As to the merits of the complaint, the Vilnius Regional Court had been correct in its interpretation of the Law on the Bar and of established court practice in looking at the applicant’s crimes, their manner and scale not only in the light of the Law on the Bar, but also taking into account the rules for advocates’ professional ethics. There had been no arguments in the applicant’s appeal to refute the first-instance court’s view of his crimes and behaviour in the light of those ethical requirements. Contrary to the applicant’s submission, the first-instance court had relied on Article 8 (4) of the Law on the Bar and on the Code of Ethics, not on Article 8 (1) of the Law on the Bar. The applicant’s argument that the first-instance court had applied Article 8 (1) of the amended Law on the Bar (see paragraph 35 below) retroactively was therefore unfounded. 29. Lastly, the Court of Appeal rejected the applicant’s argument that he had had no obligation to inform the Bar Association about his prior conviction. The Court of Honour had been correct in finding that such an obligation stemmed from the Law on the Bar and the Code of Ethics, which also applied to the applicant. The Court of Honour’s conclusion had been supported by point 12.1 of the Code of Ethics, which set out that the relationship between an advocate and the Bar was based on mutual respect and good-will assistance, and by point 13.2, which stated that an advocate must also adhere to the traditions and customs which corresponded to the common principles of ethics and decency (see paragraph 37 below). As a result, the Court of Honour had had grounds to impose a disciplinary penalty on the applicant and to strike his name off the list of trainee advocates on the basis of Articles 7 § 1 (4), 8 (4), 13 § 1 (1) and 35 of the Law on the Bar. 30. The applicant lodged an appeal on points of law. He submitted, inter alia, that the prohibition on him practising law was in breach of his rights under Articles 8 and 14 of the Convention. He also argued that an expired conviction should not be an obstacle for him to become an advocate. He mentioned that the stricter requirements on reputation under the amendments to Article 8 (1) of the Law on the Bar of 15 April 2008 (see paragraph 35 below), should not have been applied to him retroactively. For the applicant, it was also wrong to apply the Code of Ethics to actions he had committed before becoming a trainee advocate. Lastly, he was also dissatisfied by how his case had been handled by the Court of Honour, relying on Article 6 § 1 of the Convention. He argued that all such considerations meant his case merited review by the Supreme Court because the uniform interpretation of the law was at stake. 31. On 13 May 2009 the Supreme Court rejected the appeal. It restated its settled case-law (see paragraphs 43 to 47 below) that advocates and trainee advocates were part of the justice system, and were therefore not only bound by laws, but also had to protect the spirit of the law and the ideals of justice and lawfulness. Ignorance of requirements of laws discredited the advocate’s profession and undermined its prestige. An advocate or trainee advocate who had breached imperative legal norms could not excuse that failing by alleging that he or she did not know the law or that the law was not sufficiently precise, because that person was bound to know the law and ethical requirements as part of his or her job. The activity of advocate was not only regulated by standards applicable to the general public, but also by special requirements set out in the laws regulating the advocate’s profession and by professional ethics. The requirements for the applicant’s behaviour, which were set out in the rules for professional ethics, were objectively necessary: only a person whose professional behaviour was beyond reproach could be entrusted to take part in the process of the implementation of justice. The notion of the implementation of justice would be discredited if any and every person was allowed to take part in that process, irrespective of his or her behaviour. The applicant’s case therefore did not give grounds for cassation appeal because it followed established case-law and was not relevant for developing it. 32. On 25 June 2009 the applicant attempted to submit another appeal on points of law. He drew the Supreme Court’s attention to the Šiauliai Regional Court’s ruling of 17 June 2005 to expunge his conviction (see paragraph 10 above). 33. On 10 July 2009 the Supreme Court found the appeal to be essentially identical to the earlier one and refused to admit it for examination.	0
test	001-140657	ENG	EST	ADMISSIBILITY	2,014	PUUSEP v. ESTONIA	4	Inadmissible	Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković	1. The applicant, Mr Christian Peter Puusep, is an Estonian and Australian national, who was born in 1956 and lives in Mentone, Australia. He is represented before the Court by Mr C. Ginter, a lawyer practising in Tallinn. 2. The Estonian Government (“the Government”) are represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1991 Y., the applicant’s father, claimed restitution of his family’s property, an apartment building in Tallinn, which had been unlawfully expropriated in the 1940s. His property restitution claim, filed in the context of the ownership reform process taking place in Estonia at that time, gave rise to a number of administrative and court proceedings. The main issues in the proceedings, in brief, were the following: on which grounds Y.’s father, M., had left Estonia in 1941; whether he had already received compensation for the property left in Estonia and unlawfully expropriated by the Soviet authorities; and what the legal implications of these facts were. 5. By a judgment of 28 December 2006 (case no. 3-02-18) the Tallinn Administrative Court found for Y. in his complaint against a decision of 5 December 2005 of the Tallinn City Committee for the Return of and Compensation for Unlawfully Expropriated Property (Õigusvastaselt võõrandatud vara tagastamise ja kompenseerimise Tallinna linnakomisjon). 6. On 9 March 2007 Y. died and the applicant pursued the proceedings as his successor. 7. Following an appeal by the Committee, on 19 December 2008 the Tallinn Court of Appeal quashed the Administrative Court’s judgment. It annulled the decision of the Committee on the ground that pertinent evidence had not been assessed and ordered the Committee to re-examine Y.’s claim for the return of the property. The Court of Appeal noted in its judgment that it did not instruct the Committee to reach any particular outcome in resolving the matter. The Committee appealed. On 19 February 2009 the Supreme Court declined to examine the Committee’s appeal and the Court of Appeal’s judgment became final. 8. On 3 June 2009 the applicant, dissatisfied with the Committee’s delayed examination of his claim, requested that the Tallinn Administrative Court impose a fine on the Committee for its failure to comply with the judgment of 19 December 2008. 9. On 9 February 2010 the Committee decided to postpone the examination of Y.’s claim pending the receipt of information from the German archives on whether Y.’s father had received compensation for the property in question from Germany. 10. On 9 March 2010 the Tallinn Administrative Court fined the Committee 100,000 kroons (EEK) (approximately 6,391 euros) for its failure to resolve the matter. It noted that the Committee had taken certain measures in order to gather the information required to reach a decision, but found that the delay was unjustified. 11. On 19 May 2010 the Tallinn Court of Appeal dismissed the Committee’s appeal against that decision. The Committee appealed to the Supreme Court, which declined to examine the appeal on 12 August 2010. 12. In the meantime, on 9 June 2010, the Committee issued a decision by which it declared that the property in question was subject to the ownership reform process and that Y.’s successors (that is, the applicant) were “legally entitled subjects” (õigustatud subjektid) in respect of the property. The decision contained a summary of the prior proceedings including, inter alia, reference to the Tallinn Court of Appeal’s judgment of 19 December 2008, by which the Committee had been ordered to reexamine Y.’s claim for the return of the property. 13. On 31 August 2010, having, in the meantime, received information from the German archives, according to which Y.’s father had received compensation in the 1960s from the Federal Republic of Germany for his property left in Estonia, the Committee invalidated its decision of 9 June 2010 and dismissed Y.’s request for the return of the property. The decision also contained a summary of the prior proceedings, similar to the decision of 9 June 2010 (see paragraph 12 above). 14. On 29 October 2010 the applicant challenged the Committee’s decision of 31 August 2010 before the Tallinn Administrative Court. 15. On 4 March 2011 the Administrative Court annulled the Committee’s decision of 31 August 2010. 16. The Tallinn City Government, the Committee’s legal successor, appealed. 17. On 15 June 2011 the Tallinn Court of Appeal quashed the Administrative Court’s judgment and dismissed the applicant’s complaint against the Committee’s impugned decision. The Court of Appeal upheld the Committee’s finding that Y.’s father had already received compensation for the property concerned from Germany. It also found that the Committee had been entitled to re-examine the case after the new facts had arisen and to take a new decision. The applicant did not appeal. 18. On 19 December 2011 the Supreme Court declined to examine an appeal lodged by P., another claimant in the proceedings alongside the applicant. 19. In the meantime, and parallel to the above-mentioned administrative court proceedings, the parties were involved in civil litigation. Following the annulment of certain administrative decisions, as a result of which Y. had acquired title to the property in question, the City of Tallinn brought an action against Y., later succeeded by the applicant. The City of Tallinn claimed title to the property. 20. On 14 June 2004 the Harju County Court found for the City of Tallinn and recognised their title. Y. appealed. 21. On 7 March 2007 the Tallinn Court of Appeal suspended the proceedings pending the outcome of the administrative court proceedings in case no. 3-02-18. On 25 June 2009 the examination of the case was resumed. 22. On 10 November 2009 the Tallinn Court of Appeal dismissed the appeal and upheld the County Court’s judgment. It took note of the applicant’s argument that the question of the return of the property had not been finally resolved in the context of the ownership reform and that the administrative courts had ordered the City of Tallinn to re-examine the matter. Nevertheless, the court found that it was not within its jurisdiction to resolve administrative matters and that it was still for the City of Tallinn to decide in administrative proceedings whether the property was to be returned to the applicant.	0
test	001-167824	ENG	NLD	ADMISSIBILITY	2,016	VAN BEUKERING AND HET PAROOL B.V. v. THE NETHERLANDS	4	Inadmissible	Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova	1. The first applicant, Ms Barbara van Beukering, is a Netherlands national born in 1966 and resident in Amsterdam. She was, at the relevant time, the chief editor of the newspaper Het Parool. 2. The second applicant, Het Parool B.V., is a limited liability company under Netherlands law with its seat in Amsterdam. It publishes the newspaper Het Parool. 3. Het Parool is a newspaper focusing on news relevant to the Amsterdam region. Its readership is likewise to be found mostly in the Amsterdam region, although nationwide circulation is claimed for it. 4. The applicants were represented before the Court by Mr J.P. van den Brink, a lawyer practising in Amsterdam. 6. In 2007 the public-service television broadcaster NPS aired a series of five television documentaries entitled Vrije Radicalen (Free Radicals), each episode being devoted to a young person who had made radical choices that set them apart from mainstream society. One episode focused on R.P., a young man born in 1988. It mentioned his lifestyle as an active member of a street gang and as a performer of rap music and his troubled relationship with his mother. R.P. himself was shown recognisably and his name was mentioned. The episode was broadcast twice, in November 2007 and June 2008, and was available for downloading from the internet free of charge until late 2009. 7. In 2009 a video clip was published on YouTube that showed R.P. performing rap music in memory of a fellow rapper who had been killed in a fight. This video clip was, apparently, removed on an unknown date. 8. In 2009 R.P. was admitted to a shelter for the homeless in Amsterdam. On 15 June 2009 R.P. was warned that he would have to leave because of his aggressive behaviour. He drew a knife and stabbed three staff members, killing one and inflicting serious injury on the two others. 9. On 19 September 2009, shortly before the trial of R.P. was to open, Het Parool published an article with the heading “Rap artist with a short temper” (Rapper met een kort lontje) announcing that R.P. was due to appear in court on charges related to the above-mentioned stabbing. The article described R.P.’s personal circumstances and background. The information was taken from the documentary described above. The article, which did not state R.P.’s full surname, was accompanied by a portrait image of R.P., a still picture likewise taken from the documentary. The picture was taken at an angle, showing a prominent scar – stated in the article to have resulted from a fight – next to one of R.P.’s eyes. The article and the portrait image were published both in the newspaper itself and on its internet web site. 10. The portrait image was removed from the newspaper’s web site on 30 December 2009. The text of the article remains online to this day. 11. On 12 June 2012 R.P. was convicted on appeal of manslaughter and attempted manslaughter and of lesser additional crimes. He was sentenced to twelve years’ imprisonment and placed at the disposal of the Government (terbeschikkingstelling, “TBS order”) with confinement in a custodial clinic (bevel tot verpleging van overheidswege). 12. The trial was covered by other newspapers, television news broadcasters and internet web sites. Some included a drawing stated to be of R.P. in court; others used still pictures copied from the documentary before it was taken offline. 13. On 28 December 2009 R.P., through his lawyer, wrote to the first applicant demanding removal of the portrait image from the newspaper’s web site and payment of 5,000 euros (EUR). Relying on section 21 of the Copyright Act (Auteurswet; see below), he stated that his reasonable interests were affected by the publication: he was recognised in the remand prison where he was being held and feared that he would not be able to find a job after his release. 14. R.P. summoned the applicants before the Amsterdam Regional Court (rechtbank), seeking a declaration that the publication of his portrait image in the newspaper on 19 September 2009 and on the newspaper’s web site from 19 September 2009 until 30 December 2009 was unlawful; an order requiring the applicants to ensure that the portrait image no longer be available on the internet at all; and compensation for non-pecuniary damage in an amount of EUR 10,000. 15. On 29 December 2010 the Regional Court gave judgment dismissing R.P.’s claims. It held that since the portrait image was appropriate to the newspaper article and had been published in a television documentary in which R.P. had cooperated of his own volition, there was no unlawful interference with R.P.’s rights. R.P. appealed. 16. On 20 March 2012 the Amsterdam Court of Appeal (gerechtshof) overturned the judgment of the Regional Court and held in favour of R.P. The Court of Appeal recognised that the case raised questions under both Article 8 of the Convention, in that it concerned R.P.’s right to respect for his private life, and Article 10, in that it concerned the applicants’ freedom of journalistic expression. Its reasoning included the following: “3.10 Although it can be conceded to [the applicants] that the image does not contain details of [R.P.’s] private life [English in the original], strengthens the expressive power of the article and is relevant in itself, the Court of Appeal considers that publication of the image of his face with the article constitutes an interference with R.P.’s private life. It should be remembered in this connection that it appears from the article that R.P. is suspected of a (very serious) crime. The next question that needs an answer is whether, taking into account [the applicants’] freedom of expression, this interference constitutes an unlawful act vis-à-vis R.P. 3.11 The Court of Appeal takes the view that this is the case. It takes the view that R.P. is not required to suffer publication of the recognisable portrait with the article. It would have been possible for [the applicants] to publish a less recognisable portrait of R.P. without significantly detracting from the expressiveness of the article, for example by placing a black rectangle over the eyes. [The applicants] have argued in this connection that it has been held in other cases that this measure has an even more criminalising effect, but that does not apply in this case, because the article concerned the suspicion of a crime of violence and the impending trial thereof by a criminal court. The Court of Appeal takes the view that in publishing portraits of persons suspected of criminal acts reticence is, in principle, appropriate. 3.12 The circumstance that in 2007 R.P. gave his active cooperation to a documentary that was broadcast on television in 2007 and 2009 and could be viewed on the internet until the end of 2009 does not justify publishing a recognisable portrait together with the article about that documentary and the impending trial. R.P. has not, by cooperating in that documentary (and the rap clip published on YouTube), become a public figure to the extent that he must for that reason suffer his recognisable portrait to be published in the newspaper with nationwide coverage Het Parool and on the website www.hetparool.nl, the less so because he is thereby recognisably connected to a (very serious) crime. As held above, a less recognisable portrait could have limited the interference with his private life without doing any real harm to the expressiveness of the article. It makes no difference that portraits of R.P. (derived from the documentary and the rap clip) can still be found in the internet. What is important is that [the applicants] at the time published an image in the newspaper, which – unlike in the case of use of the internet – can be seen in one glance and without any further manipulations. The freedom [the applicants] have, in principle, to determine in accordance with their own views in what way they will inform the public of a newsworthy fact does not go so far that in the specific circumstances of the present case they were at liberty to publish a recognisable portrait of R.P. with the article. 3.13 Taking all circumstances into account, the Court of Appeal therefore finds that R.P.’s right to respect of his privacy outweighs [the applicants’] freedom of expression. The wrongful nature of [the applicants’] acts vis-à-vis R.P. is therefore established. ...” The applicants were held jointly and severally liable and ordered to pay EUR 1,500 to R.P. in respect of non-pecuniary damage. 17. The applicants lodged an appeal on points of law (cassatie) with the Supreme Court (Hoge Raad), arguing, as relevant to the case, that the Court of Appeal had overlooked R.P.’s own responsibility through having cooperated with the documentary and the rap clip, combined with his having stabbed one staff member of the homeless shelter to death and severely wounded two others, from which it followed, in their submission, that R.P. could not claim the same protection of his private life to which he would otherwise have been entitled. They submitted in addition that the Court of Appeal’s position was tantamount to an absolute prohibition of publication of a recognisable photograph of any criminal suspect who was not a public figure. 18. The Supreme Court gave judgment on 4 October 2013 dismissing the appeal. Its reasoning included the following: “3.3.2 ... The Court of Appeal has rightly taken as its starting point that the question whether R.P.’s right to respect for his private life should weigh more heavily in the balance than [the applicants’’s judgment of 5 October 2012, ECLI:NL:HR:2012:BW9230, Netherlands Law Reports (Nederlandse Jurisprudentie) 2012/571).In the light of this standard, it does not reflect an incorrect understanding of the law that the Court of Appeal has held that publication of a recognisable portrait, taken from [the 2007 documentary], is not justified by the circumstance that R.P. has cooperated with the documentary about his person and the rap clip. Nor is the finding of the Court of Appeal that publication was wrongful vis-à-vis R.P. based on incomprehensible reasoning. As is shown by paragraph 3.12 of its judgment, the Court of Appeal has in so finding taken into account the nature and content of that documentary and the circumstance that it was made before the crimes were committed of which R.P. was suspected at the time the portrait was published. The Court of Appeal has, furthermore, taken into account that [the applicants] had other means at their disposal than complete recognisable publication of the image, which would not have harmed the expressiveness of the publication and would have constituted a lesser interference with R.P.’s right to respect for his private life. The Court of Appeal has thus expressed the view that publishing the unmodified image was neithernor proportionate to the aim pursued, namely informing the public. This finding does not amount to an absolute prohibition as suggested in the ground of appeal.” 19. Section 21 of the Copyright Act provides as follows: “If a portrait has been made without having been commissioned by the person portrayed or for that person’s benefit, then the person to whom the copyright to that portrait belongs shall not be allowed to publish it in so far as a reasonable interest of the person portrayed, or after that person’s death, one of that person’s surviving kin weighs against publication.” 20. In its judgment of 5 October 2012, ECLI:NL:HR:2012:BW9230, Netherlands Law Reports 2012/571 (Peter R. de Vries/Koos H.), the Supreme Court, citing Axel Springer AG v. Germany [GC], no. 39954/08, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, ECHR 2012, gave its approval to reasoning of the Amsterdam Court of Appeal summarised in the following terms: ’s portrait.” 21. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers’ Deputies) contains the following principle of particular interest to the present case: “The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”	0
test	001-184484	ENG	ROU	COMMITTEE	2,018	CASE OF HANYECZ AND OTHERS v. ROMANIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)	Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. In application no. 47367/16, the applicant also raised another complaint under Article 3 of the Convention.	1
test	001-178347	ENG	RUS	COMMITTEE	2,017	CASE OF KOVALEVY v. RUSSIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)	Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova	4. The applicants were born in 1957, 1961 and 1980 respectively and live in Svetlograd, Stavropol Region. The first and second applicants are husband and wife. The third applicant is their son. 5. According to the first applicant, on 8 August 2003, at approximately 11.30 p.m., a police patrol car approached his car on a dark village road. A police officer, using a loudspeaker, ordered the first applicant to pull over. The first applicant replied that he would stop at the nearest road police post. The officer repeated his order, noting that he needed to borrow gasoline for the police car. The first applicant kept driving. Near Svetlograd the police officers blocked the road. When the first applicant stopped the car, one of the five policemen pulled him out of the car and hit him in the face. The police officers threw him against the hood of his car, kicked him in the shins and hit him with a butt of a machine gun. The first applicant fell down and fainted. After he regained consciousness and stood up, the police officers claimed that he was drunk and told him to take a breath test which showed that the first applicant was sober. The police officers checked his documents, searched his car and left. The first applicant got into his car and drove away in the same direction. Having driven approximately 500 metres, he saw that the police car had stopped and that the police officers had gathered around it. The first applicant approached the officers. The officer in charge identified himself as Ye. and apologised for the excessive force his subordinates had used towards the first applicant. 6. The first applicant arrived home at approximately 2.30 a.m. on 9 August 2003. On the same day the first and third applicants filed a complaint about the incident with the local police station. 7. At 9 a.m. on the same date the first applicant visited the second applicant who underwent a medical treatment in hospital. According to the second applicant, her husband told her about the altercation with the police. He also had visible bruising on his face. At 10.30 a.m. the first applicant underwent a medical examination at the same hospital. Having been diagnosed with multiple injuries, he was admitted for in-patient treatment. An extract from a medical record drawn up in the hospital indicated that the first applicant had injuries on the right cheek, the left shin and the lower back and the swelling of soft tissues. 8. On 13 August 2003 the first applicant was admitted to the Stavropol Regional Hospital where he was diagnosed with “a multisystem trauma; closed craniocerebral injury; a light brain contusion; an injury of the soft tissues of the right temporal region; a closed uncomplicated stable vertebra medullispinal injury, a compression fracture of the Th. VII vertebra; an intramuscular haematoma of the right side of the lumbar region; a neurologic form of the lumbar plexitis.” Ten days later he was released from hospital on conditions of bed rest and subsequent supervision by a neurologist and orthopaedist. 9. On 11 August 2003 investigator G. questioned the police officers who denied the first applicant’s allegations. They claimed that they had ordered the first applicant to pull over because they had suspected that he had been driving under the influence of alcohol. The first applicant had refused to comply and had verbally insulted them demonstrating obscene hand gestures. After having searched the first applicant and his car, they had let him go. 10. On the same date the investigator ordered a forensic medical examination of the first applicant. Having examined the first applicant, the forensic expert documented multiple injuries on the right cheek and the lumbar region, multiple bruises all over the body and swelling of the soft tissues. The expert considered that those injuries could have resulted from the impact of solid blunt objects or from the fall. 11. On 20 August 2003 the investigator refused to institute criminal proceedings against the police officers. It appears that his decision was quashed on a later date. 12. On 9 September 2003 the first applicant underwent another forensic medical examination. The expert documented the first applicant’s injuries considering that they might have resulted from the impact of solid blunt objects. 13. According to the first applicant, on 20 September 2003 an investigator of the district prosecutor’s office refused to institute criminal proceedings against the police officers. On 3 October 2003 the district prosecutor dismissed the first applicant’s complaint against the investigator’s decision. Ten days later, the Petrovskiy District Court of the Stavropol Region quashed the prosecutor’s decision and authorised a new round of inquiry. 14. On 28 October 2003 the police issued a report on the inquiry conducted in response to the first applicant’s complaint. Having examined the forensic medical documents and the statements made by the police officers, the first applicant and the witnesses, the police investigator concluded that the first applicant might have sustained injuries as a result of the force used by the police officers in response to his unlawful actions. 15. On 21 December 2003 investigator G. ordered a new forensic medical examination of the first applicant in order to reconcile inconsistencies in the experts’ findings. 16. It appears that the first applicant’s complaint about the police brutality was dismissed by the authorities on another six occasions. Each time a superior prosecutor or a court quashed those decisions considering the investigator’s findings incomplete and unsubstantiated and ordering further inquiry into the first applicant’s allegations. 17. On 22 July 2005 the district prosecutor opened a criminal investigation into the first applicant’s allegations of ill-treatment by unidentified police officers. 18. On 22 December 2005 the investigator V. stayed the criminal proceedings, holding that it was impossible to establish the alleged perpetrators who had assaulted the first applicant. 19. On 2 February 2006 the first deputy of the regional prosecutor quashed decision of 22 December 2005 noting that the investigation had not been completed and reopened the proceedings. 20. On 6 March 2006 the investigator concluded that there was no evidence showing that the first applicant’s injuries had been caused by the police officers and that he was unable to establish the real perpetrator. The first applicant appealed. 21. On 3 April 2006 the district prosecutor partly accepted the first applicant’s complaint and resumed the investigation. At the same time the prosecutor endorsed the investigator’s reasoning that there was no evidence showing that the offence had been committed by the police officers. A week later the proceedings were again stayed because the perpetrator of the offence remained unknown. 22. On 6 June 2006 investigator D. again discontinued the criminal investigation. The investigator established that, when searching the first applicant and his car, one of the police officers had punched him on the right cheek and hit him in the back twice with a blunt solid object. The investigator also accepted that, as of the morning of 9 August 2003, the first applicant had bruises on the right cheek, the back and the left shin. He further noted that the forensic medical experts had not ruled out a possibility that the first applicant might have sustained those injuries as a result of the altercation with the police, as alleged by him. The investigator dismissed the first applicant’s allegations referring to his prior criminal record. He also noted that a number of the first applicant’s neighbours had not confirmed that the latter had had any injuries on him on 9 August 2003. As regards the statements made to the contrary by the other neighbours, the investigator found them to be unsubstantiated. Lastly, the investigator took into account that all the police officers denied the first applicant’s accusations. However, it was impossible for the investigator to establish the alleged perpetrator for lack of relevant evidence. 23. It appears that the decision of 6 June 2006 was quashed and the case was re-opened. 24. On 17 July 2006 investigator D. discontinued the criminal investigation reproducing verbatim his earlier decision of 6 June 2006. He also considered that the first applicant had willfully made false accusations against the police officers and should be held liable for his actions. The investigator forwarded the relevant material to the prosecutor’s office. 25. On 14 January 2011 the deputy head of the supervision unit of the Investigative committee considered the decision of 17 July 2006 unlawful and unsubstantiated, quashed it and remitted the matter for further investigation. He noted, inter alia, that the investigator had failed (1) to establish what each of the police officers had done once they had pulled over the first applicant’s car; (2) to check whether any of the police officers had had a machine gun as claimed by the first applicant; and (3) to establish the reasons why the witnesses who had initially claimed that they had seen the police officers beating the first applicant had revoked their statements. 26. On 1 March 2011 the senior investigator with the district investigative committee dismissed the first applicant’s accusations against the police officers duplicating the findings summed up in the earlier decisions on the matter. Nevertheless, he allowed that the first applicant’s injuries could have resulted from the beatings and that a criminal investigation should be opened on charges of battery. He transmitted the materials to the head of the district investigative committee. The parties did not inform about the outcome of the proceedings. 27. On 30 September 2004, at approximately 11.00 p.m., the applicants, suspecting that their neighbour had committed a number of thefts and intended to steal their property, beat him up, broke into his car, took the documents for the car and refused to return them until the arrival of a police patrol car. 28. On 15 June 2005 the Petrovskiy District Court found the applicants guilty of vigilantism and sentenced each of them to two and half years’ imprisonment. The sentence was suspended on eighteen months’ probation. On 4 August 2005 the Stavropol Regional Court upheld the applicants’ conviction on appeal.	1
test	001-170153	ENG	ROU	COMMITTEE	2,017	CASE OF DĂSCĂLESCU v. ROMANIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)	Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque	5. The applicant was born in 1966 and lives in Valea Călugărească. 6. In 1993 the applicant was sentenced to twenty years’ imprisonment for homicide. Between 24 November 2004 and 12 November 2008 he was serving his sentence in Arad Prison. 7. The applicant alleged that, between 24 November 2004 and 2 October 2008, while he had been under a closed prison regime in Arad Prison, he had been taking his daily three hours of exercise in outside yards which lacked access to toilets or running water. At certain times there were as many as fifty prisoners in one recreation yard. Especially during the hot days of summer the situation could have been described as inhuman and humiliating, because he had been forced to satisfy his physiological needs together with other prisoners along the fences of the yard, in the same place where they were supposed to walk and breathe fresh air. 8. The applicant alleged that he had on numerous occasions asked the Arad Prison administration to provide sanitary facilities and running water in the recreation yards. His requests had been consistently ignored or had received the reply that renovation works were planned for the future. 9. On 4 June 2008, the applicant lodged a new complaint asking the prison authorities to equip the recreation yards with running water and toilets. The prison authorities noted on the applicant’s request that in fact he had been allowed to take water with him during his daily exercise and he had also been able to go to his cell in order to satisfy his physiological needs during this time. They further noted “At the moment renovation works are under way in the yards.” 10. On 16 July 2008 the post-sentencing judge in Arad Prison rejected a complaint on the same matter lodged by the applicant. The judge held that Law no. 276/2006 on the execution of sentences did not provide for the right to have access to sanitary facilities and water during the prisoners’ daily outside exercise. 11. Relying on the provisions concerning the prisoners’ right to daily exercise set forth by Law no. 276/2006 as well as the provisions of Article 3 of the Convention, the applicant made a complaint against the above-mentioned decision before the Arad District Court. He also sought compensation for non-pecuniary damage in respect of the inhuman treatment he had been suffering during his daily exercise since 24 November 2004 in Arad Prison. The Arad Prison administration maintained before the court that the law did not provide for an obligation to equip the recreation yards with sanitary facilities. 12. In a final judgment of 28 October 2008 the Arad District Court found that the applicant had indeed been deprived of access to a toilet and drinking water during daily exercise, and that this was in breach of Article 48 of Law 275/2006, which regulates prisoners’ right to daily exercise. The court based its decision on witness statements as well as on information submitted by the prison authorities. In view of the evidence before it, the court allowed the applicant’s complaint and ordered the Arad Prison authorities to ensure the applicant’s right to daily exercise in a yard provided with sanitary facilities and drinking water. The applicant’s request for damages was rejected as out of time, since it had not first been raised before the post-sentencing judge. 13. In the meantime, on 23 October 2008 the post-sentencing judge in Arad Prison had studied another complaint lodged by the applicant in respect of another alleged breach of his rights. In this context the post-sentencing judge held that he was not competent in law to deal with the applicant’s request for compensation for non-pecuniary damage. 14. On 2 October 2008 the applicant was placed under a semi-open detention regime, because his prison term was approaching its end. He was moved to a different prison wing, where the recreation yard was provided with both toilets and drinking water. 15. On 12 November 2008 the applicant was conditionally released from prison. 16. In a letter dated 2 June 2014, submitted by the Government, the National Administration of Prisons mentioned that the recreation yards of Arad Prison could not technically be equipped with sanitary facilities because the prison lacked a sewage collection and disposal system. At the time the letter was sent, running water had been made available in all yards.	1
test	001-170651	ENG	UKR	COMMITTEE	2,017	CASE OF PARYZKYY AND OTHERS v. UKRAINE	4	Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)	Erik Møse;Mārtiņš Mits;Yonko Grozev	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. In application no. 58058/13, the applicant also raised other complaints under the provisions of the Convention.	1
test	001-159071	ENG	CZE	CHAMBER	2,015	CASE OF REGNER v. THE CZECH REPUBLIC	3	No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)	Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano	5. The applicant was born in 1962 and lives in Prague. 6. On 19 July 2005 the National Security Authority (hereinafter “the Authority”) issued the applicant with a certificate, valid until 18 July 2010, confirming that he had access to State classified information in the “secret” category (hereinafter “security clearance”). That clearance was a precondition for holding the post he then occupied as deputy to a vice-minister of Defence. 7. On 7 October 2005 the Authority received confidential information, classified as “restricted”, on the applicant from an intelligence service. 8. Following an internal investigation, the Authority decided on 5 September 2006 to revoke the applicant’s security clearance. According to that decision, the applicant posed a national security risk, inter alia on the grounds provided for in section 14(3)(d) of the Protection of State Classified Information Act (Law no. 412/2005). The decision stated that the facts established in respect of his conduct, as documented and substantiated by information received by the Authority on 7 October 2005, cast doubt on his trustworthiness and his ability not to be influenced and not to disclose secret information (preconditions for issuing him with security clearance). It was noted that as the information was classified as “restricted”, section 122(3) of the Act precluded any mention thereof in the decision or any disclosure of the Authority’s reasoning regarding its assessment of the facts in question. 9. According to information supplied by the Government, on 4 October 2006 the applicant asked the Minister of Defence to discharge him, on health grounds, from his post as deputy to the vice-minister. His request was granted on the same day. The ministerial decree discharging him from his duties specified that this did not terminate the applicant’s employment contract. That contract did not end until 31 January 2007, following an agreement by mutual consent signed by the parties on 20 October 2006. 10. In the meantime the applicant challenged the decision of 5 September 2006 before the director of the Authority, who confirmed the decision on 18 December 2006 regarding the risk referred to in section 14(3)(d) of the Protection of State Classified Information Act. That risk, which had been unknown on 19 July 2005, had transpired from the results of an investigation carried out by the Authority. Those results constituted “restricted” information and the decision could only refer to them and not mention their content. 11. On 19 January 2007, relying on section 133(1) of the Protection of State Classified Information Act, the applicant lodged a request with the Prague Municipal Court for judicial review of the decision of 18 December 2006. In his submission, that decision had deprived him of acquired rights in that he had been obliged to give up his post as deputy to the vice-minister of the Defence whereas he had adapted his activities within the public service and within the sphere of his private life. Accordingly, he asked the court to assess the lawfulness of that decision which was based exclusively on undisclosed classified information. 12. On 16 April 2007 the Authority sent the applicant’s file to the Municipal Court, including the documents classified as “restricted”, which in its opinion could not be exempted from the obligation of confidentiality laid down in section 133(3) of Law no. 412/2005. It also submitted its comments on the applicant’s request. These were sent to the applicant for his reply. In his reply of 14 May 2007 the applicant commented on, inter alia, the necessity alleged by the Authority of protecting the confidentiality of the documents in question. 13. Subsequently, the applicant and his lawyer were permitted to study the file, except the confidential parts. 14. At the hearing on 1 September 2009 the applicant was given the opportunity to submit his arguments and to state what he thought were the reasons for revoking his security clearance. He observed that, in his view, the information in question had been provided by a military intelligence service which had sought to punish him for his refusal to co-operate. 15. Pursuant to section 133(3) of the Protection of State Classified Information Act, the Municipal Court refused the applicant access to the section of the legal file containing the classified information from the Authority’s file and in a judgment of 1 September 2009 dismissed his request for judicial review. Referring to section 122(3) of the Protection of State Classified Information Act, the court held that the Authority, which had disclosed to the applicant the source of the classified information and the general conclusions that it had drawn from that information but not the content thereof, had acted neither arbitrarily nor unlawfully. Furthermore, the fact that the impugned decision was amenable to judicial review had enabled the court to examine the information in question and rule on whether it justified the conclusion that the applicant posed a security risk, which was the case here. The court also observed that there was no fundamental individual right to hold a post in the civil service, that the State was authorised to restrict the access of individuals to such posts and that it could also determine the conditions in which those individuals could have access to confidential information necessary for the performance of their duties. The applicant had not satisfied those conditions in the present case. According to that rationale, an individual could not have knowledge of the confidential information on the basis of which his right of access to confidential information had been refused. The court considered, lastly, that the confidentiality of the information that had led to the applicant’s security clearance being revoked prevented it from examining his submission that the information in question had concerned his refusal to co-operate, beyond his statutory obligations, with the military intelligence service. In any event that submission was deemed to be speculative because unsupported by verifiable documents. 16. The applicant appealed on points of law against the Municipal Court’s judgment, complaining first about his inability to gain access to the relevant part of the legal file. He submitted that the disclosure of information in the “restricted” category (which was the lowest level of confidentiality) could not constitute a serious threat to the activities of the intelligence services within the meaning of section 133(3) of the Protection of State Classified Information Act. He stated that he was convinced that the revocation of his security clearance was connected with his refusal to co-operate with the military intelligence service, of which he had no written proof. However, as he had no knowledge of the content of the information in question he could not refute its accuracy. 17. In a judgment of 15 July 2010 the Supreme Administrative Court dismissed the applicant’s appeal on points of law as unfounded. It observed that the possibility, provided for in section 133(3) of the Protection of State Classified Information Act, of prohibiting access to part of the file was not limited to a specific category of confidential information. In the present case the conditions for prohibiting access were met because communication of the information in question to the applicant could have led to the disclosure of the intelligence service’s working methods, the disclosure of its sources of information or attempts on the applicant’s part to influence possible witnesses. Referring to the judgment of the Constitutional Court no. II. ÚS 377/04, the Supreme Administrative Court held that the applicant’s complaints of unfairness of the proceedings were unfounded because, having regard to the special nature of the proceedings on account of the nature of the confidential information in question, not all the applicant’s procedural rights could be guaranteed. Whilst the executive did indeed, in certain circumstances, have the right not to inform the individual concerned of the reasons for not issuing him or her with security clearance, that restriction was counterbalanced by the guarantee of having that decision examined by the administrative courts, which had unlimited access to the documents contained in the administrative file. In the present case the Supreme Administrative Court observed that the confidential document emanating from the intelligence service contained specific, comprehensive and detailed information concerning the conduct and lifestyle of the applicant on the basis of which the court was satisfied in the present case as to its relevance for determining whether the applicant posed a national security risk. It observed, further, that the information did not in any way concern the applicant’s refusal to co-operate with the military intelligence service. 18. On 25 October 2010 the applicant lodged a constitutional complaint. He complained of the unfairness of the proceedings in his case. He argued, in particular, that the parties had not been treated equally because he had not been allowed to have knowledge of the sole evidence on which the decision against him had been taken and which had resulted in his being declared unsuitable for public office. He also expressed his firm conviction that he should have been able to consult the relevant part of the file. 19. In a decision of 18 November 2010, which was served on the applicant’s lawyer on 26 November 2010, the Constitutional Court dismissed the applicant’s complaint as manifestly ill-founded. Referring to its judgment no. Pl. ÚS 11/2000, it observed that, having regard to the special nature and the importance of decisions adopted in connection with confidential information where there was a clear national security interest, it was not always possible to apply all the procedural guarantees of fairness in such proceedings. In the present case the Constitutional Court held that in so far as the courts’ conduct was duly justified and the reasoning in their decisions comprehensible and in conformity with the Constitution and they had not departed from procedural standards and constitutional principles to an inordinate degree, the Constitutional Court was not required to intervene in their decision-making process. 20. In their observations of 30 April 2014 the Government submitted to the Court a bill of indictment of 16 March 2011 in which the applicant and some fifty co-defendants were formally charged with participating in an organised criminal group between 2005 and 2007 with a view to illegally influencing public tender procedures in the Ministry of Defence. This document shows that investigative measures had been carried out from May 2006. In a judgment of 25 March 2014, which was not final as at 17 July 2014, the applicant was sentenced to three years’ imprisonment and ordered to pay a fine. 21. The Government also submitted a letter from the Authority dated 24 March 2014 in which it confirmed that the document in question was still classified “restricted” because disclosure of the information contained in it was liable to disrupt the work of the intelligence service, reveal its methods and sources of information and adversely affect the legitimate interests of third parties. In that context the Authority referred to the above-mentioned criminal proceedings against the applicant.	0
test	001-155359	ENG	TUR	CHAMBER	2,015	CASE OF SELAHATTİN DEMİRTAŞ v. TURKEY	3	Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)	András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano	9. The applicant was born in 1973 and lives in Diyarbakır. At the time of the events giving rise to the present application, the applicant was a member of the DTP (Party for a Democratic Society), a pro-Kurdish political party whose dissolution was ordered by the Constitutional Court in 2009, and a member of the Parliament of Turkey. The applicant is currently the co-chair of the HDP (People’s Democratic Party). 10. In 11 October 2007 an article entitled “Turk, here is your enemy” (Türk, işte karşında düşmanın) was published in a Bolu local newspaper, the Bolu Express. The article in question was also published on the newspaper’s website. In it, the author, Mr I.E., made the following statements: Here are some newspaper titles from the last few days: - A landmine exploded in Diyarbakır. One non-commissioned officer was martyred and three privates were injured. - Twelve village guards were killed while returning to their village in Beytüşşebap. - Attack on a military unit with a rocket-propelled grenade in the Başkale district of Van. A soldier was martyred. - A landmine exploded in the region of Namaz mountain, in Şırnak. A specialist sergeant was martyred. - Ambush in the region of Gabar mountain, in Şırnak. 13 soldiers were martyred. These are news articles which we have come across by chance over the last week or ten days. I would not be surprised if, after research, we found other similar news stories. For almost 25 years, you have deceived us with statements such as ‘they will be avenged’, ‘we are more determined than ever’ or ‘we will eradicate it’. We have had enough of your lies and fairy tales. Civilians and the military, are you fooling children? Or are you mocking the nation? Can there be a State or an army which cannot defeat three to five thousand ‘looters’? Shame on you, since you cannot defeat them. If you are a State, be a State. If you are the Legislature, act as one. If you are the Government, govern. If you are the Judiciary, do what you have to do. It is enough. This has been the last straw! We went crazy when we heard that thirteen soldiers from the Bolu Commando Brigade had been killed last Sunday. How can one preserve one’s sanity? While the instigators of the terrorists who kill our soldiers, policemen, civilians and our protectors without hesitation are under the roof of the Grand National Assembly of Turkey, While there are DTP mayors and provincial and district administrators who call these terrorist murderers ‘my brothers/my sisters’ and who wash the carcasses of terrorists who die like dogs, Is it right to chase those who are in the mountains? Are the hit men the real murderers? Do you know who the real murderers are? The real murderers are those who use yellow, green and red, the colours of the PKK, in their political party’s flag. They are those who back the bullets of the members of the PKK, murdering bastards, and who call them their brothers and sisters. The real murderers are those who instigate murder. They are: the President of the DTP (Party for a Democratic Society) A.T; the DTP’s Members of Parliament, namely A.A.A., B.Y., M.N.K., A.B., Selahattin Demirtaş, G.K., A.T., P.B., S.T., E.A., S.S., M.N.Y., O.Ö., İ.B., S.B., H.K., Ş.H., F.K., Ö.Ü.; the members of the DTP’s executive council ... and all DTP mayors and presidents of DTP provincial and district branches. Great Turkish Nation, here is your enemy. These persons will be the target of ‘civilian patriots’ as the enemies of Turks, if they do not state that the PKK is a separatist terrorist organisation and that its members are traitors. Instead of chasing the terrorists in the mountains, a few microbes should be ‘wiped out’ and the question should be put to them – ‘one from us, five from you: do you still wish to continue?’ Of course, there will be patriots who will be able to do this. This is society’s intense desire. It is now the majority’s wish that for every security officer who is killed, one of these people should share the same fate. It is time to cut out those organs which suffer from necrosis. ... May God rest the souls of our martyrs and give patience to their families. We sincerely share their pain. We also offer our condolences to the Bolu Commando Brigade. Tomorrow is the sacred Eid. Could you celebrate if you were the parents or siblings of one of the thirteen brave soldiers who lost their lives for their country in the region of Gabar mountain, in Şırnak? Think about it. May your Eid be blessed although it is sad and painful.” 11. On 2 November 2007 the applicant’s lawyer filed a petition with the Bolu public prosecutor’s office, requesting that a criminal investigation be initiated and that Mr I.E. be punished for incitement to commit a crime and incitement to disrespect the law, and for insulting his client. The lawyer also noted that Mr I.E. had committed these offences through the press. In his petition, the applicant’s lawyer stressed that two recent murders (those of Andrea Santoro, a Catholic priest, and Hrant Dink, the editor-in-chief of AGOS, a bilingual Turkish-Armenian newspaper published in Istanbul) had been committed subsequent to publication of articles on the Internet. He stated that the content of the article openly incited society to kill the persons listed in it, including the applicant, and that by using the expression “murderer” in respect of the applicant, the author had insulted him. 12. On an unspecified date Mr I.E. sent a petition to the Bolu public prosecutor containing his defence submissions. He maintained at the outset that he had defended the Turkish Republic and the Turkish military forces throughout his life. He further contended that, had he committed an offence in his article as alleged by the complainant, then he had committed it under severe provocation. He submitted that the complainant had never condemned the PKK’s activities and that he had referred to PKK members as “brothers and sisters”. Mr I.E. noted that he had been demonstrating solidarity with the families of the martyrs killed by the terrorists and that, were his solidarity to be regarded as an offence, then as a Turkish nationalist he was proud of committing the offence in question. He also claimed that he had criticised the DTP’s ideology and activities in his article and had intended to inform society. He contended that a case had been brought before the Constitutional Court for the DTP’s dissolution, and that the content of his article had been similar to the indictment brought by the Chief Public Prosecutor at the Court of Cassation in that case. He had not used the word “Kurdish” in his article, since he accepted all citizens of Turkey as Turkish. Until the complainant stated “How happy is he who says ‘I am a Turk’”, he would struggle against him. He also maintained that in view of the hundreds of cases brought against DTP members on charges of separatism, aiding and abetting the PKK and hostility towards the State, the complainant had been shameless in daring to file a complaint against him. He further noted that he had targeted those who were terrorists, that is, PKK members, and if the complainant considered himself the subject of the article, then he (Mr I.E.) had been right to identify him as a target. Mr I.E. maintained that nobody had been hurt as a result of his article, but that many people had died as a result of terrorism. At the end of his submissions, he again noted that the applicant had been unable to say “How happy is he who says ‘I am a Turk’” and that, therefore, the applicant’s Turkishness was open to doubt. 13. On 7 December 2007 the Bolu public prosecutor decided not to bring criminal proceedings against Mr I.E. In his decision, the public prosecutor stated that the article had been drafted as a reaction to the PKK, an organisation recognised internationally as a terrorist organisation, which had carried out acts of terrorism and killed both civilians and soldiers. According to the public prosecutor, after listing the killings committed by the PKK, the author had stated his opinion as to why society and the State should act together against the killings committed by the PKK and had articulated public reaction and anger in the face of those killings. The author had even criticised the State’s activities in relation to acts of terrorism. The Bolu public prosecutor held that Mr I.E. had severely criticised the DTP, which had not condemned the PKK’s illegal activities and which was considered to have failed to act side by side with society and the State. The public prosecutor considered that the article expressed the author’s opinions and offered a number of proposals with a view to eradicating the terrorist organisation in issue. 14. The Bolu public prosecutor further noted that the PKK’s supporters had described the organisation’s so-called political aims in the press and elsewhere, although its activities had created great anger and hatred in society. The public prosecutor maintained that articles had also appeared in the press expressing society’s anger and hatred. In spite of all these publications, there had been no armed conflict between different ethnic groups in Turkey, due to the culture of tolerance, respect and understanding which existed in the country. The Bolu public prosecutor stated that in the light of the aforementioned sociological and political background in Turkey, the article should be considered as using freedom to disseminate information, to criticise and to comment within the context of freedom of the media, given that it contained somewhat exaggerated criticism of a political party, its members and activities. 15. In his decision, the public prosecutor considered that the case was comparable to another case. According to the judgment in that case, which contained a reference to the Court’s judgment in Prager and Oberschlick v. Austria (26 April 1995, Series A no. 313), in cases concerning defamation, if a factual basis existed, then certain expressions could not be regarded as extreme. Considering that freedom of the media included the expression of social reactions and opinions using strong language, and referring to the above-mentioned domestic judgment, the public prosecutor concluded that there was no reason to bring a case against Mr I.E. 16. On 30 July 2008 the applicant’s lawyer objected to the decision of 7 December 2007. In his pleadings, the lawyer reiterated the arguments contained in the submissions of 2 November 2007. He further maintained that the content of Mr I.E.’s article had been alarming and that the DTP members who were named in the article had been marked as targets on account of their adherence to a political opinion. He also noted that the applicant had not been alone in being affected by the article’s content; it posed a further threat to society as a whole. Lastly, the applicant’s lawyer contended that the public prosecutor’s finding that there had been a factual basis for the author’s expressions in the article demonstrated that he had taken the applicant’s political identity into account in issuing his decision. 17. On 21 August 2008 the Düzce Assize Court dismissed the applicant’s objection, holding that the decision of 7 December 2007 had been correct. On 18 September 2008 this decision was served on the applicant’s lawyer. 18. In October 2008 a number of news reports were published in the national press and on the Internet, according to which Mr Mehmet Ali Şahin, Minister of Justice at the relevant time, had set out his position with regard to the investigation into Mr I.E. Mr Şahin stated that, in his view, the content of the article in issue should not have been protected within the scope of the right to freedom of thought and expression. The Ministry of Justice would therefore apply to the Court of Cassation and request that the decision of 21 August 2008 be quashed. 19. On 15 October 2008, through the public prosecutor’s office at the Court of Cassation, the Ministry of Justice applied to the Court of Cassation. 20. On 30 September 2009 the Court of Cassation issued its decision on the Ministry’s request. It noted that the applicant had lodged his objection to the decision of 7 December 2007 outside the relevant time-limit and that the Düzce Assize Court had incorrectly examined the decision on the merits. Considering that the Düzce Assize Court’s decision had nevertheless brought about the correct result, namely dismissal of the objection, the Court of Cassation dismissed the Ministry’s request.	0
test	001-148269	ENG	LTU	CHAMBER	2,014	CASE OF ROMANKEVIČ v. LITHUANIA	4	No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)	András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić	6. In 1998 the applicant’s property rights to a previously nationalised part of his late father’s land near Vilnius were restored. On 5 June 2002 the Vilnius Region Administration restored his rights – restitution in natura – to the remainder of the land measuring 0.53 hectares, situated in the village of Gineitiškės. This plot of land was then entered in the land registry in the applicant’s name. 7. In January 2005, having discovered that the decision of 5 June 2002 was based on erroneous data prepared by a State-hired land surveyor and had possibly breached the rights of other former landowners, the General Prosecutor’s Office instituted administrative proceedings to have the applicant’s title to the plot annulled. The applicant was a third party to those proceedings and argued that the restoration process had been lawful, without, however, raising the question of an adequate compensation in the event that his title to the plot was extinguished. Shortly before the initiation of the case, the Vilnius Region Administration had admitted that its decision had been unlawful and had informed the applicant that it needed to rectify the error; however, it appears that the latter had disagreed. 8. On 8 September 2005 the Vilnius Regional Administrative Court dismissed the prosecutor’s complaint. However, on 12 December 2005 the Supreme Administrative Court remitted the case for re-examination. 9. On 20 April 2006 the Vilnius Regional Administrative Court granted the claim and annulled the decision of 5 June 2002. Finally, on 15 January 2007 the Supreme Administrative Court upheld the decision of the lower court. The courts established that the original plot of land to which the applicant had ownership rights was actually situated in another, albeit nearby, area of Gilužiai village. Thus, the return of the plot in 2002 was declared unlawful as it breached the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property. 10. Following the courts’ decisions, the plot of land was taken away from the applicant and returned to the State. No compensation was awarded to the applicant. However, he reserved the right to have his ownership rights restored. 11. By a decision of 2 February 2009 the Vilnius Region Administration restored the applicant’s ownership rights in natura by granting a new plot of land measuring 0.53 hectares in Gilužiai village.	0
test	001-160618	ENG	DEU	CHAMBER	2,016	CASE OF BLÜHDORN v. GERMANY	3	No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - After conviction)	Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary	5. The applicant was born in 1943 and is currently detained in Riedstadt Psychiatric Hospital. 6. The applicant has previous convictions for rape dating from 1968 and for indecent assault combined with causing bodily harm by dangerous means dating from 1990. 7. On 14 January 2002 the Darmstadt Regional Court convicted the applicant of rape combined with the infliction of bodily injury. The judge incorporated a prison term arising from a previous conviction and sentenced him to a total of four years and six months’ imprisonment. Simultaneously, the court ordered the applicant’s placement in a psychiatric hospital pursuant to Article 63 of the Criminal Code (see paragraph 31 below). It held that the applicant was suffering from a disturbance in his sexual preference taking the form of sadism and found that the commission of further crimes was to be expected. The verdict of the Regional Court was based mainly on the conclusions of a psychiatric expert opinion but also took into account the applicant’s previous conviction for indecent assault in 1990. It also observed that the applicant had tried to subjugate several prostitutes whom he had been seeing in recent years. The Regional Court found that this indicated an evolution in his behaviour. It noted that the applicant had refused psychiatric therapy so far and shared the expert’s opinion that the applicant would not be able to resist his urge to humiliate and abuse women in order to satisfy his sexual drive. The Regional Court concluded that similar crimes were to be expected and the applicant therefore represented a danger to the public. 8. The applicant was arrested on the same day and placed in the Haina Clinic for Forensic Psychiatry. 9. The applicant’s detention in psychiatric hospitals has been reviewed at regular intervals (compare Articles 67d and 67e of the Criminal Code, see paragraphs 32 and 33, below) and has been extended annually. In the course of the respective proceedings, the courts have requested annual forensicpsychiatric expert opinions on the necessity of his detention in hospital. All expert opinions concluded that the applicant was likely to reoffend. 10. On 2 April 2003 the Haina Clinic for Forensic Psychiatry delivered an initial expert opinion, affirming the diagnosis of antisocial behaviour as an adult and abuse of alcohol. However, the expert opinion did not diagnose sexual sadism. Referring to the Diagnostic and Statistical Manual of Mental Disorders ‒ which is published by the American Psychiatric Association and offers a common language and standard criteria for the classification of mental disorders ‒ it found that the necessary criteria were not met. It concluded that this diagnosis seemed rather unlikely but could not be absolutely excluded without an extensive and credible sexual anamnesis. 11. On 13 May 2004 the applicant was transferred to the Hanau Clinic for Forensic Psychiatry. 12. On 21 November 2005 the applicant was examined by an external psychological expert who criticised in detail the diagnosis of sexual sadism during the trial, in particular the lack of information about the applicant’s inner experiences during the onset of the disorder, its further development, and the failure to evaluate his previous offences. The expert concluded that it remained doubtful whether a diagnosis of sexual sadism could be made (“Es bleibt also weiterhin fraglich, inwieweit ein sexueller Sadismus wirklich vorliegt”). 13. On 11 December 2006 the Hanau Clinic for Forensic Psychiatry delivered a further expert opinion. Although it mentioned the presumptive diagnosis of sexual sadism, it found that this presumption was not tenable in view of the history and the personality structure of the applicant. Even assuming that the applicant might have a sadistic sexual disposition, he experienced this without suffering and had no desire to change. According to the verdict of the trial court, the applicant had probably fulfilled his sexual inclinations with prostitutes in order to avoid being charged with an offence. Neither the files nor his statements revealed the development of an addiction or of a pressing perverted imagination or of pathologic impulsiveness. There was no call for therapy as the applicant neither suffered from his behaviour nor desired to change it. The clinic therefore concluded that the applicant’s committal to hospital had been erroneous. 14. On 3 September 2007, on 20 August 2008 and on 18 August 2009 similar forensic psychiatric expert opinions were delivered by the Hanau Clinic for Forensic Psychiatry. Although all of them also mentioned the presumptive diagnosis of sexual sadism, they confirmed the previous findings. All the expert opinions concluded that there were no indications for the diagnosis of sexual sadism apart from the facts contained in the verdict of the trial court. In each expert opinion the applicant was described as a classic instance of an erroneous hospital treatment order. 15. On 29 December 2009 the applicant refused to be examined by an external psychiatric expert. 16. On 26 January 2010 the applicant was transferred to the Haina Forensic-Psychiatric Hospital. 17. On 30 September 2008 the Frankfurt am Main Court of Appeal allowed the re-opening of the criminal proceedings which had been terminated by the judgment of the Darmstadt Regional Court dated 14 January 2002. 18. In 2010 the Kassel Regional Court appointed a new external psychiatric expert. The expert concluded that the applicant was suffering from sexual sadism, subject to the reservation that he had not examined the applicant in person but had based his evaluation on the medical files only. The Kassel Regional Court subsequently dismissed the request to reopen the criminal proceedings. The applicant’s appeal against this dismissal was dismissed. 19. On 17 September 2013 the Federal Constitutional Court declined to consider the applicant’s related constitutional complaint without providing reasons (file no. 2 BvR 1364/12). 20. On 15 March 2011 the Haina Clinic for Forensic Psychiatry, where the applicant was detained, delivered an expert opinion on the necessity of the applicant’s further detention in hospital. It made the diagnosis of a dissocial personality disorder, alcohol abuse and a presumptive diagnosis of sexual sadism. Although it found a high risk that the applicant would reoffend, it confirmed the prior assessment that the applicant represented a classic instance of an erroneous hospital treatment order. This conclusion was drawn from the fact that the applicant’s behaviour during treatment never gave any grounds for diagnosing a mental disorder such as would have been expected from a person suffering from a psychiatric disorder. 21. On 24 May 2011 the Darmstadt Regional Court asked the applicant to inform the court whether he agreed to being examined by the external expert Dr. Egg. 22. On 29 May 2011 the applicant wrote to the Regional Court and refused a medical examination. 23. On 26 July 2011 the Regional Court heard the applicant and his counsel in person as well as a psychological expert from the Haina Clinic for Forensic Psychiatry. 24. On 28 July 2011 the Regional Court declined to terminate the applicant’s placement in hospital and refused to release him on probation as the requirements of Article 67 d §§ 2 and 6 of the Criminal Code were not met (see paragraph 32, below). It explained that detention in a psychiatric hospital could be terminated on the grounds of an erroneous treatment order only if it was established with certainty that the applicant was not suffering from a mental illness warranting his detention under Article 63 of the Criminal Code owing to a diminished criminal responsibility from the very beginning. In this context the Regional Court observed that neither the statement by the psychological expert at the hearing nor the current and prior expert opinions had excluded the possibility that the applicant was suffering from sexual sadism, although this diagnosis had been found to be rather unlikely (see paragraphs 10 to 14, above). Furthermore, the court took into account that the applicant had refused to provide credible and full information about his sexual history and had thus rendered a certain diagnosis impossible. It therefore held that a committal to hospital by mistake had not been established beyond doubt. For this reason alone, therefore, the conditions for application of Article 67 d § 6 of the Criminal Code were not met. Lastly, the Regional Court noted, but explicitly without basing its decision on this fact, that the expert opinion which had been delivered in the course of the re-opening proceedings of the criminal trial had confirmed the diagnosis of sadism. 25. In conclusion, the Regional Court found that the applicant could not be released on probation as he had refused investigation of his problems relating to sexuality and violence. The evolution of the applicant’s detention and his lack of awareness regarding his crimes rendered it very probable that he would re-offend. 26. On 29 September 2011 the Frankfurt am Main Court of Appeal upheld the decision of the Regional Court. It observed that, for exceptional reasons, an examination of the applicant by an external psychiatric expert was not necessary. Such an expert report would have to be based on the files only, since the applicant had announced his refusal of any examination. Under these circumstances the Court of Appeal found that no new conclusions could be expected from such an external expert opinion. Moreover, it found that the applicant’s condition and dangerousness had not changed since his last examination as he had refused to undergo any therapy. The Court of Appeal further rejected the applicant’s allegation that the Regional Court had reproached him for failing to undergo therapy, while the hospital considered him to be an erroneous admission. It held that in any event the root cause of the applicant’s serious sexual crimes should be reappraised through therapy. In its view that would have been a requirement even if the applicant had been sentenced to imprisonment. The applicant himself had to bear the consequences of his refusal to participate in any therapy as the hospital offered therapy in order to reappraise the causes of crime even for patients who had been placed in hospital erroneously. 27. On 16 August 2012 the Federal Constitutional Court (file no. 2 BvR 2679/11) refused to admit the applicant’s constitutional complaint for its consideration without giving any further reasons. 28. On 23 April 2014 the Darmstadt Regional Court decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation after obtaining an external expert opinion dated 22 February 2014 and having heard the expert and the applicant’s counsel. The expert, who had not examined the applicant in person due to his refusal to permit such examination, found that the applicant was suffering from a disturbance of his sexual preference in the form of sadism and that the commission of further crimes was to be expected. The applicant’s appeal in this respect was dismissed by the Court of Appeal. The proceedings before the Federal Constitutional Court are still pending. 29. On 19 January 2015 the Darmstadt Regional Court again decided not to suspend the order for the applicant’s placement in a psychiatric hospital and not to grant probation after obtaining a written opinion from the Haina Forensic-Psychiatric clinic in which the applicant has been detained and after hearing the applicant. The applicant’s appeal in this respect was dismissed by the Court of Appeal.	0
test	001-183128	ENG	UKR	CHAMBER	2,018	CASE OF ZELENCHUK AND TSYTSYURA v. UKRAINE	3	Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Respondent State to take measures of a general character (Article 46-2 - General measures);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)	Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani	6. The first applicant was born in 1947 and lives in Dolyna, a city in the Ivano-Frankivsk Region. In December 1996 her mother obtained a share of land in the village of Kopytkove in the Zdolbunivsky district of the Rivne region (see paragraphs 11 to 14 below concerning the nature of shares of land and their subsequent conversion into plots). Following her mother’s death in November 1999, the first applicant inherited that share and obtained a certificate confirming that she had become its new owner on 25 May 2000. On 10 January 2006 the Zdolbuniv District State Administration allocated a plot of land to her measuring 2.5917 hectares, zoned for use as an individual smallholding (особисте селянське господарство, see paragraph 18 below for a description of zoning categories of agricultural land under Ukrainian law). The applicant obtained a property certificate in respect of that land on 13 August 2007. She rented out 2.0917 hectares to a company under a lease registered on 30 May 2015 and due to expire on 10 November 2021, and 0.5 hectares to another company under a fifteen-year lease registered on 10 August 2016. According to the applicant, she receives rent in kind, either in grain or sunflower oil, depending on the crops grown on the land in a given year. 7. The second applicant was born in 1939 and lives in Ternopil. On an unspecified date his mother obtained the right to a share of land in the village of Rakovets in the Zbarazh district of the Ternopil region. In November 2004 he inherited it from her. On 27 March 2008 the Zbarazh District State Administration allocated 3.41 hectares of agricultural land to him, zoned for commercial agricultural production (товарне сілськогосподарське виробництво). He obtained a property certificate on 22 July 2008. The land is rented by a limited liability company. Since 2010 the second applicant has received rent in the following amounts: 8. The applicants’ land is subject to legislative restrictions on alienation and change of designated use, which are described in “Relevant domestic material” and, as regards their current state, in paragraph 22 below.	1
test	001-159780	ENG	HUN	COMMITTEE	2,016	CASE OF BÓDAY AND OTHERS v. HUNGARY	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)	Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer	3. The list of applicants, their representatives and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention and of the lack of any effective remedy in domestic law.	1
test	001-169463	ENG	EST	ADMISSIBILITY	2,016	SAVISAAR v. ESTONIA	4	Inadmissible	Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani	1. The applicant, Mr Edgar Savisaar, is an Estonian national who was born in 1950 and lives in Lääne-Virumaa. He is represented before the Court by Mr Oliver Nääs, a lawyer practising in Tallinn. 3. The applicant, who had been the mayor of Tallinn since 9 April 2007, was re-elected to the Tallinn city council on 20 October 2013 and on 14 November 2013 the city council re-elected him as mayor. On the same date the city council confirmed the appointment to office of the members of the municipal government, thereby giving the applicant the authority to exercise his mayoral powers. 4. On 22 September 2015 the applicant was arrested on suspicion of accepting substantial bribes. On 23 September 2015 the applicant was prohibited from leaving his place of residence as a preventive measure. It does not appear from the materials before the Court how long those measures were in force. 5. On 23 September 2015 the State Prosecutor’s Office petitioned the Harju County Court to suspend him from office as a precautionary measure. The petition detailed numerous acts which had been investigated and which were deemed to constitute a criminal offence. It was noted in the petition that all the acts in question related to the applicant’s service as mayor of Tallinn and the issuing of instructions to persons employed by the Tallinn city government in abuse of his office. The State Prosecutor’s Office found that there was reasonable suspicion that he had committed a criminal offence and that if he continued to serve as mayor he might i) destroy or conceal documentary evidence, or ii) create new evidence seeking to justify the said acts, or iii) influence officials of the Tallinn municipal government to give witness testimony that would be favourable to him. 6. On 23 September 2015 a hearing was held in Harju County Court to ensure the applicant’s rights of defence. This hearing was postponed to 24 September 2015 in order to allow the State Prosecutor’s Office to provide the applicant with a copy of its petition. 7. On 30 September 2015 the Harju County Court adopted a decision suspending the applicant from the office of mayor of Tallinn for the duration of the criminal proceedings. The first-instance court determined that there was sufficient evidence to warrant reasonable suspicion that the applicant had committed the crime of repeatedly accepting bribes for his own benefit and also for the benefit of his political party. In arriving at this conclusion, the court examined all the evidence in the case as provided by the State Prosecutor’s Office. This body of evidence consisted of surveillance reports and extracts from bank statements. The first-instance court did not agree that there was a risk that the applicant might destroy or conceal documentary evidence, as all such evidence had been seized by the authorities during the search of his home and his cars. Nor did it agree that the applicant might create new evidence to justify the said acts. The court did agree, however, that there was a risk that the applicant might influence municipal officials to give favourable witness testimony if he were to continue to serve as mayor. The court found this suspicion substantiated by surveillance reports providing evidence of the applicant issuing instructions to municipal officials to engineer favourable resolutions to the problems of people who had promised him certain benefits. In the light of the specific nature of the alleged crimes and the manner in which the crimes were committed, the court held that there was reason to believe that the applicant might commit offences impeding the administration of justice and thus hamper the effective conduct of proceedings. Given the importance of preventing any such obstruction of justice, the court deemed this risk sufficient to justify the applicant’s suspension from office. 8. The applicant’s suspension from office entailed the temporary loss of his remuneration as mayor. 9. On 12 October 2015 the applicant filed an appeal against the decision of the Harju County Court, requesting that the decision of the firstinstance court be quashed. The applicant argued that the decision did not contain sufficient reasons explaining how he could influence witnesses if he were to continue to serve as mayor. He further argued that the suspension from office was a disproportionate measure for the purposes of achieving the State Prosecutor’s Office’s objective. 10. On 22 October 2015 an oral hearing was held in the Tallinn Court of Appeal. The State Prosecutor’s Office submitted to the appellate court all gathered evidence forming the basis for a reasonable suspicion of a criminal offence. At the hearing the applicant’s defence counsel submitted a request for permission to examine this evidence, since in his opinion the Convention guaranteed defence counsel the right to examine such material. The Court of Appeal noted that in his appeal the applicant had not challenged the existence of reasonable suspicion and held that this request was therefore beyond the scope of the appeal. The defence counsel further stated that he wanted to examine the evidence forming the basis for the prosecutor’s belief that the applicant would influence witnesses. The prosecutor argued that the defence counsel had not made any such request in the firstinstance court, even though the latter was aware that the firstinstance court had also examined all the evidence gathered in the case. The request was therefore not admissible in the appeal proceedings. The prosecutor also argued that the defence counsel’s right to examine evidence could be restricted in these proceedings, which concerned only the applicant’s suspension from the office of mayor. He further submitted that the court’s task was to determine whether sufficient evidence had been gathered in support of his suspension from office. 11. The court of appeal dismissed as premature the request for access to all the evidence on the grounds that it was not until the end of the investigation in the criminal case that the applicant was legally entitled to be acquainted with all the evidence gathered in the case. It also held that the applicant’s counsel was in a position to defend him in the proceedings concerning his suspension from office. 12. On 23 October 2015 the Tallinn Court of Appeal upheld the firstinstance court’s decision to suspend the applicant from office. The appeal court noted that the first-instance court had based its assessment of the risk that the applicant might influence witnesses on the evidence presented in the surveillance reports. It had also considered the substantial power and influence that the office of mayor gave him over his subordinates, the specific nature of the offences, and the manner in which they had allegedly been committed. This included evidence of the applicant issuing instructions to certain witnesses to secure the benefits promised to various individuals in return for bribes. The appellate court noted that it was not possible to give a detailed account of the circumstances described in the surveillance reports as this might prejudice the criminal proceedings. The appellate court found that, based on the information in those reports, the suspect might have influenced witnesses and the testimony they were going to give in court. The Court of Appeal also stated that it had examined the evidence contained in the surveillance reports and agreed with the firstinstance court’s assessment that the evidence was indicative of the applicant’s behaviour in the past and thus allowed the applicant’s future behaviour to be predicted. It concluded that the risk that the applicant would prejudice the proceedings and continue to commit offences against the administration of justice had been sufficiently demonstrated and that suspension from office was a proportionate measure. 13. On 2 November 2015 the applicant filed an appeal with the Supreme Court against the decision of the Tallinn Court of Appeal. In addition to the arguments in the first appeal, the applicant argued that the proceedings to suspend him from office had not been adversarial and fair, thereby breaching the civil limb of Article 6 § 1 of the Convention. The applicant had asked the Court of Appeal to allow him to examine the evidence forming the basis for the belief that the applicant might influence witnesses, but that request had been rejected. 14. On 1 December 2015 the Supreme Court declined to examine the appeal. 15. At the time of submission of the present application the pre-trial proceedings were still ongoing. 16. Under section 28 (3) of the Local Government Organisation Act a city or rural municipality mayor acquires the authority prescribed by law and in the by-laws of the respective rural municipality or city with effect from the date on which the appointment of the government to office is confirmed. 17. Article 141 (1) of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) provides: “(1) A suspect or accused shall be suspended from office at the request of a prosecutor’s office and on the basis of an order of a preliminary investigation judge or on the basis of a court order if: 1) he or she may continue to commit criminal offences if he or she remains in office; 2) his or her remaining in office may prejudice the criminal proceedings.” 18. Article 1412 of the Code of Criminal Procedure provides in its relevant parts: “(1) A suspect or accused or his or her counsel may, upon the expiry of four months from the suspension from office or application of a temporary restraining order, submit a request to a preliminary investigation judge or court to review the reasons for the suspension from office or application of a temporary restraining order or to amend the conditions of application of such a temporary restraining order. A new request may be submitted four months after the review of a previous request. ... (2) A preliminary investigation judge or court shall review such a request within five days of the receipt thereof. The prosecutor, suspect or accused and, at the request of the suspect or accused, his or her counsel shall be summoned before the preliminary investigation judge or court. ... ... (3) Such a request shall be adjudicated by a court ruling. A ruling made in the context of reviewing such a request is not amenable to appeal ...” 19. In its judgment of 15 January 2016 in constitutional review case no. 3-4-1-30-15 the Supreme Court ruled that a city or rural municipality mayor who has been suspended from office continues to be the holder of the office of mayor during the period of suspension but is not authorised to exercise any mayoral powers.	0
test	001-180286	ENG	SVN	CHAMBER	2,018	CASE OF ČEFERIN v. SLOVENIA	3	Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)	Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Georges Ravarani	6. The applicant, a practising defence lawyer, represented ‒ initially before the Ljubljana District Court and subsequently before the appellate courts ‒ a defendant, I.P., who had been charged with three murders committed on 15 August 2002. The offence carried a thirty-year prison sentence. During the first-instance criminal proceedings, three certified sworn-in experts were appointed. A psychologist, J.R., and a psychiatrist, V.R., were asked to assess the accountability of the defendant and the probability that he had committed the criminal offences of which he had been accused. An expert in forensic medicine, J.B., was asked to prepare a report and testify, among other things, about the time of death of the victims, which was an important element in the accusation against the applicant’s client. In his written and oral submissions the applicant continuously protested his client’s innocence, pointing to what in his view was unreliable expert evidence, and requesting the exclusion of all evidence obtained by alleged violations of his client’s human rights. It would also appear that at some point in the proceedings the applicant asked to be given the results of a lie-detector test performed during the police investigation, but his request was refused. 7. At the final hearing held on 12 March 2004 V.R. replied to questions put by the applicant and the public prosecutor. Subsequently, the applicant requested that a new expert psychiatrist be appointed and that he should be assisted by a psychologist specialising in psychodiagnosis. Under the rules of the Criminal Procedure Act, a new expert witness should not be appointed unless there are contradictions or deficiencies in the available expert opinion or if reasonable doubt arises with regard to its correctness – the applicant therefore pointed out what he considered to be such deficiencies with respect to V.R. and J.R. In his oral submissions, the applicant argued that J.R. was known to be inclined towards psychodynamics which, in the applicant’s opinion, meant that “he was not familiar with top-level means of diagnosis, which were to be used in the process of psychosocial diagnosis”. He also stated that the psychodynamic psychotherapy used by the expert was not a scientific method and did not produce reliable data. The applicant further maintained in his speech that the results of the test used on his client were wholly contradictory and as such invalid. He gave examples from the expert opinion, such as its finding that the accused had little sense of reality but, at the same time, good general knowledge, and that while he was mentally rigid he was of above-average intelligence. The applicant continued by saying: “That this was just senseless extensive talking without any meaning, full of contradictions, is supported by the fact that the expert did not link his mental constructs with any concrete mental disorder, not least with the personality disorder in which he had proclaimed himself to be the expert.” 8. The applicant then went on to say that none of the tests could lead to a finding of the narcissist characteristics mentioned by expert J.R. and that, in any case, narcissism was not part of the valid method of diagnosis. He then stated: “The opinions of both the psychiatrist and psychologist indicate the sad truth that in their professional weakness, both experts resorted to methods that did not form part of their professional practice. The psychiatrist used psychological methods which he absolutely did not understand and applied them only mechanically; the psychologist applied outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts and thereby failed to obtain any useful results, therefore he resorted to the field of medicine ...” 9. The applicant concluded by saying that the proposed new expert opinions would have proven that his client could not have committed the crimes with which he had been charged. 10. The court rejected the applicant’s proposal to appoint new experts and concluded the evidence-taking procedure. 11. On 16 March 2004 the applicant’s client, I.P., was convicted of three counts of murder and sentenced to thirty years’ imprisonment. On 22 June 2004 the applicant lodged an appeal with the Ljubljana Higher Court. He supplemented it with further written submissions and on 16 December 2004 attended a session and a hearing before the court. The applicant argued, inter alia, that the date of the murder could not have been 15 August 2002 as established by expert, J.B. (see paragraph 6 above), which meant that his client could have not committed it; that the public prosecutor had not submitted the results of the lie-detector test which would have allegedly exculpated his client and the court had refused to obtain them from the Croatian authorities; and that his client had not been psychologically capable of committing the alleged crime. In his written and oral submissions before the Ljubljana Higher Court, the applicant strongly criticised the work of the experts, public prosecutor and the court and used a number of expressions which the Higher Court found amounted to contempt of court (see paragraph 19 below). 12. On 19 March 2004 the Ljubljana District Court issued a decision, fining the applicant 150,000 Slovenian tolars (SIT – approximately 625 euros (EUR)) for contempt of court for his statements given at the hearing of 12 March 2004 regarding the expert witnesses, namely for making the following remarks, the translation of which has not been disputed by the parties: “senseless talking” (neosmišljeno nakladanje), “mental constructs” (umotvori), “professional weakness” (strokovna šibkost) of the experts and saying that “the psychiatrist used psychological methods which he absolutely did not understand” (psihiater si je pomagal s psihološkimi metodami, ki jih absolutno ne razume) and that “the psychologist [applied] outdated psychological methods from the stone age of psychology and unscientific psychodynamic concepts” (psiholog z zastarelimi psihološkimi metodami iz kamene psihološke dobe ter neznanstvenim psihodinamskim konceptom) (see paragraphs 7 to 9 above). The court took the view that the applicant had expressed insulting value judgments with regard to the expert witnesses’ professional qualifications. Moreover, it considered that the professional competence of certified experts approved by the Ministry of Justice was not open to doubt. As regards the level of the fine imposed on the applicant, the court noted that it reflected the nature and seriousness of the offensive statements and the fact that he was a lawyer with many years’ experience of representation in court proceedings. 13. The applicant appealed on 8 July 2004. He argued that he had not intended to insult anyone, and had only wanted to draw attention to the unacceptable way by which the opinions that could result in a potential thirty-year prison sentence had been prepared. He maintained that the impugned allegations were substantiated by the criticism expressed in the appeal. He pointed out that he did not have the required knowledge to substantiate the criticism but had been warned about the serious errors committed by the two experts by those from the “psychiatric and psychological profession”. According to the applicant, the courts had to reflect on their practice of punishing lawyers, which was used by some judges to “cover up” their own unprofessional and incompetent work. He alleged that the punishment of defence counsels often had a chilling effect and thereby interfered with freedom of expression. 14. On 3 February 2005 the Ljubljana Higher Court dismissed the applicant’s appeal as unfounded, finding that his remarks “constituted insulting value judgments which were damaging to the honour and reputation of both experts, since they expressed contempt and disrespect for the human dignity of other people and were as such unworthy of the profession practised by a lawyer”. The court considered that it was obliged to protect its authority and the personal dignity of other participants in the criminal proceedings and pointed out that the applicant could have expressed his criticism in a number of legally acceptable ways. It also held that punishing a defence counsel did not constitute a serious interference with the constitutional right of freedom of expression, nor did it limit the constitutional right of defence. The court concluded that the lower court’s decision was correct and did not restrict the rights of the defence “as alleged by the appellant who obviously, lacking any self-criticism, still maintains that the allegations laid against the experts were justified”. 15. On 31 March 2005 the applicant lodged a constitutional appeal, in which he complained of a violation of Article 10 of the Convention and Article 39 of the Constitution, which guarantees freedom of expression. He argued that he had expressed the impugned opinions with the aim of providing the best possible defence to his client and that his punishment had not been necessary in a democratic society. Relying on the case of Nikula v. Finland (no. 31611/96, ECHR 2002-II), he argued that the critical comments had been directed solely at the unprofessional and inadequate work of the experts and had not insulted the court in any way. His criticism of the two experts “was fully justified and based on scientific fact”. Furthermore, alternative less severe measures were available, such as a private prosecution for slander. 16. On 15 May 2008 the Constitutional Court dismissed the applicant’s constitutional complaint. The most relevant parts of its decision are as follows (as translated in the English version provided on the Constitutional Court’s website): “9. ... Certainly it has to be taken into account that the freedom of expression of a lawyer in his capacity as defence counsel in criminal proceedings serves the purpose of the defendant’s right to a defence ... The circumstance that a defence counsel in judicial proceedings exercises his right to freedom of expression because and only because he represents a client is of primary importance for the review of the admissibility of the interference with the right of a defence counsel determined in the first paragraph of Article 39 of the Constitution [freedom of expression], but this cannot entail that because of this circumstance the Constitutional Court would not review whether the courts’ decisions on punishing the defence counsel violated his right to freedom of expression. 10. In accordance with the first paragraph of Article 39 of the Constitution, freedom of ... expression [is] guaranteed. The ECHR protects the freedom of expression in the first paragraph of Article 10... ... 12. The duty of the courts in general and the court deciding on the merits of the case is to direct proceedings in such a manner so as to ensure the proper conduct of the parties and above all the fairness of the trial – rather than to examine in a subsequent trial the appropriateness of the party’s statements in the courtroom However, this does not entail that the defence counsel’s freedom of expression in criminal proceedings should be unlimited. Due to the fact that a defence counsel takes part in judicial proceedings and that his right to freedom of expression is intended for the protection of the rights of others, it is limited to a greater extent than the right to freedom of expression of any other individual in a public space may be limited. A defence counsel is namely limited by the fact that he participates in proceedings that are [formalised] and as such conducted in a rational manner, as well as by his professional ethics. A defence counsel may express strong and sharp criticism, however his argumentation in protecting the interests of his clients must remain within the range of reasonable argumentation, and there is no room for insults charged with emotion. It is understandable that in cases of defending a defendant charged with a grave criminal offence for which a severe penalty is prescribed, the tolerance threshold which may be allowed by the courts may be higher than in other cases, however, the defence counsel may not cross the outer boundaries of this tolerance. If he does cross them, it is proper that the court protects other values, i.e. confidence in the judiciary and the good reputation and authority of the judiciary, which ensures that the public respects the courts and has confidence that the courts are able to perform the role they have in a state governed by the rule of law. Protecting the authority of the judiciary includes the notion that the courts are the proper forum for the settlement of legal disputes and for the determination of a person’s guilt or innocence regarding a criminal charge, whereby it is important that the public at large have respect for and confidence in the courts’ capacity to fulfil that function. The above-mentioned is a constitutionally admissible reason to limit the defence counsel’s right to freedom of expression. The Constitutional Court has already [emphasised] in Decision No. U-I-145/03 that the institution of a punishment for insulting submissions is not the primary way to ensure the good reputation and authority of the judiciary, it is, however, an additional (and subordinate) tool which ensures the protection of the good reputation of the courts in situations in which confidence in the work of the judiciary is undermined by degrading criticism and [generalised], and from the viewpoint of the protection of rights in an individual case, unnecessary attacks on the work of the courts. 13. The complainant used the expressions mentioned in the first paragraph of the reasoning of this decision while defending a defendant who was charged with murder, for which the prescribed sentence is thirty years of imprisonment. The expressions entailed criticism of the expert witnesses who provided expert opinions in the criminal proceedings as permanently sworn-in experts. On the basis of [section] 248 of the Criminal Procedure Act, expert witnesses are engaged when the determination or assessment of a material fact call for the findings and opinion of a specialist possessing the necessary expertise for the task. The Constitutional Court in Decision No. U-I-132/95, dated 8 January 1998 (Official Gazette RS, No. 11/98 and OdlUS VII,1), [emphasised] that expert testimony is not only evidence, that is, a source for learning of relevant facts, but that an expert witness is an assistant to the court in exercising its function. The requirement that expert witnesses must be impartial follows from this, as otherwise parties to criminal proceedings would not be in an equal position. In view of the position that expert witnesses have as assistants to the courts in exercising their function, their authority must be protected in the same manner as the authority of the judiciary. This is a constitutionally admissible aim for which it was admissible to limit the complainant’s right to freedom of expression. Therefore, the Constitutional Court cannot accept the complainant’s view that a situation in which he directs insulting expressions towards the court is different than a situation in which such expressions are directed towards expert witness. 14. The courts’ assessment that the complainant expressed contemptuous criticism towards the expert witnesses is supported by reasons and is not unsound. The complainant did not merely express sharp criticism of the expert opinions, but his insulting remarks entailed personal disparagement of the expert witnesses as experts. The expressed contemptuous criticism is beyond the reasonable argumentation by which the defence counsel could justify his motion that new expert witnesses be called. Therefore, it cannot be accepted that such criticism could be justified for the purpose of exercising the defendant’s right to a defence as determined in Article 29 of the Constitution. Contemptuous criticism of an expert witness as a person who has been called to provide an expert opinion could even threaten a fair trial in criminal proceedings. The Constitutional Court has already [emphasised] in Decision No. U-I-145/03 that it is of exceptional importance that parties to proceedings [realise] that insulting sharp speech before the court does not prove that the defence counsel has provided quality representation. The quality defence provided by a defence counsel can also not be based on expressing contemptuous criticism which shows contempt for expert witnesses, instead, the defence must be directed towards a criticism of their opinions provided in the individual proceedings, and supported by arguments and reason. Therefore, it cannot be expected from the courts that they should, within the boundaries of tolerance, also allow insults for which the courts reasonably assessed that they showed contempt for the expert witnesses in their capacity as expert assistants to the court. Therefore, the interference with the complainant’s right to freedom of expression which the court made by punishing the defence counsel for the expressed insults with a fine, is not disproportional. 15. ...The Constitutional Court did not have to address the question whether by using the above-mentioned expressions the complainant had fulfilled all the statutorily determined elements of the criminal offence determined in Article 169 of the Penal Code, as this was not the subject of the challenged judicial decisions. ... In Decision No. 145/03, the Constitutional Court already [emphasised] that the possibility of independent criminal protection is not an appropriate substitute and cannot serve the purpose for which the legislature enacted the possibility that insulting submissions be punished. The Constitutional Court reiterates that the protection which the legislature defined in the first paragraph of [section] 78 of the Criminal Procedure Act is not intended to protect individual expert witnesses but to protect the good reputation and authority of the judiciary as a whole. The reasons why also the good reputation and authority of expert witnesses as impartial assistants to courts is a part of the protected value has been outlined in paragraph 13 of the reasoning of this decision. 16. ...Therefore, the constitutional complaint is not substantiated and the Constitutional Court had to dismiss it.” 17. The Constitutional Court reached the above decision by six votes to one. Judge J.Z. wrote a separate concurring opinion. Judge C.R., who voted against, wrote an extensive dissenting opinion. He argued that the applicant’s conduct had been judged too harshly by the majority, who had not approached the case correctly. In particular, the Constitutional Court had supported the finding of no violation by the fact that the impugned statements had been given during court proceedings, although ‒ in his view ‒ this should have weighed in favour of the applicant. Furthermore, proper attention had not been given in the reasoning to the nature of the proceedings, which had been criminal not civil, the target, which had been the experts and not the court, and the seriousness of the criminal offence the client had been risking – an offence carrying a potential thirty-year prison sentence. In this connection, the dissenting judge argued that the Constitutional Court should have taken account of the principles arising in Kyprianou v. Cyprus ([GC], no. 73797/01, ECHR 2005-XIII), especially those relating to the role of defence lawyers in criminal trials. He pointed out that a public prosecutor could not be fined for contempt of court and that less invasive measures were available to the court which were applicable to both defence lawyers and public prosecutors. In his opinion, such measures might constitute interruption of the speech in question, a formal warning, and the informing of the appropriate professional association or body. Lastly, he pointed to the danger that the decision in the present case might have a discouraging effect on other defence lawyers, particularly given that the penalising of expressions such as “professional weakness” had been considered justified by the Constitutional Court. 18. According to a letter by the Ljubljana District Court of 30 March 2017, prepared for the purposes of the present proceedings, the applicant paid the first fine (see paragraph 12 above) on 1 April 2005. 19. On 3 February 2005 the Ljubljana Higher Court issued a decision fining the applicant SIT 400,000 (approximately EUR 1,670) for contempt of court for his statements in the appeal proceedings regarding the expert witnesses, the State Prosecutor and the first-instance court (see paragraph 11 above). The court found that the following remarks of the applicant, the translation of which has not been disputed by the parties, amounted to contempt of court (taken from the decision): “As regards the State Prosecutor: ‘... it can be concluded that someone – a person who was aware of the exculpatory nature of this documentation for the defendant – hid this documentation ...’ ‘... it is permissible for a prosecutor to hide crucial evidence which could release the defendant from his liability ... As regards the expert psychologist ... [J.R.] ... : ‘... he had intentionally overlooked any information pointing to another possibility...’ ‘... on the other hand, I, as a layman, consider this to be a reflection of possible narcissism on the part of the expert himself ...’ As regards the forensic expert psychiatrist ... [V.R] ... : ‘... from the perspective of forensic ethics, by which the forensic expert is bound, such a way of working represents an intentional violation of those ethics, giving statements without any scientifically based value ...’ ‘... could be seen from the qualified (ab)use ((zlo)rabe) of the experiments, which the expert ...’ ‘... as he cannot have the slightest idea (ne more imeti najmanjšega pojma) as to how far normality extends and when pathology starts ...’ ‘... commenting on or describing handwriting analysis amounts to quackery (je na nivoju šarlatanstva) ...’ ‘... the psychiatrist either does not know all this or he is narcissistically ignoring it ...’ ‘... in this case we can talk of a typical abuse of a test, most likely a pirate version. In view of the fact that this abuse of the test took place in proceedings before a court – a judicial institution – this is almost grotesque ...’ ‘... the conclusion is almost dilettantish ...’ ‘... The expert did not show the slightest scientific doubt (niti trohe prisotnosti znanstvenega dvoma), but instead focused all his energy on defending his own infallibility, which is extremely inappropriate for any expert, and for one who is “accepting” the expert skills (“sprejemnika”izvedenske veščine) it is dangerous ...’ As regards the forensic expert ... [J.B.], the head of the forensic medicine institute: ‘... and when such negligence (malomarnost) by experts in preparing their opinions, resulting in a [thirty]-year prison sentence, justifiably upsets me ...’ ‘... that the negligence (šlamparija) of this expert is immense ...’ As regards the court: ‘... the judicial farce referred to is of course not over ...’” Of the above, the second of the statements referring to the public prosecutor and the statements referring to expert J.B. were expressed orally at the Ljubljana Higher Court’s session; the remainder were given in writing. 20. In providing its reasoning for the decision, the Ljubljana Higher Court found that the applicant had expressed insulting value judgments which had shown contempt for the participants in the proceedings and the court and had had nothing to do with freedom of expression. The court also noted that the applicant had previously been offensive within the same set of proceedings and that therefore, even from a subjective perspective, the offensive statements had to have been made intentionally. As regards the level of the fine imposed on the applicant, the court noted that it reflected the nature and seriousness of the offensive statements, the fact that he was a lawyer with many years’ experience of representation in court proceedings and the fact that he had previously made similar offensive statements during the first-instance proceedings. Lastly, the court decided to inform the Bar Association of the outcome of the proceedings. 21. The applicant appealed against this decision on 17 March 2005. He argued that his statements had not been offensive, given their context. As regards the criticism expressed against the public prosecutor and the court, he referred to the arguments of the defence concerning the undisclosed results of the lie-detector test. Among other things, he stated that “such a way of evidence taking [was] mystic and [had] no connection with the modern trial”. As regards expert J.R., the applicant stated that he had “directed all his intellectual abilities at defending his unprofessional opinion”. The applicant further referred to the objections made by the defence, which had allegedly been ignored by J.R., and stated that he, “as a layman, [could not] consider such conduct to be anything else than a reflection of possible narcissism on the part of the expert himself”. Regarding the criticism of expert V.R., the applicant referred to the examination of this expert during the trial, to the statements he had given and which, in the applicant’s view, showed that V.R. had been using methods which had not been within his competence, and had claimed to have been using a particular test “without ever seeing the original ... in his life”. The applicant also argued that V.R. had not shown “the slightest scientific doubt but had focused all his energy on defending his own infallibility”. As to expert J.B., the applicant stressed that his comments had related to J.B.’s assessment of the time of death – the air temperature at the time of the victims’ death had been an important, but disregarded, factor. In the applicant’s opinion, the assessment of the time of death had been done carelessly by J.B., who had kept changing his mind on the issue. The applicant pointed out that the time of death had been a crucial element in the trial and could have led to an acquittal if assessed properly. He concluded that “such expert opinions [were] a catastrophe for the Slovenian judiciary and very dangerous for its citizens”. 22. On 19 January 2006 the Supreme Court ‒ sitting as a panel of five judges, one of whom was B.Z. ‒ dismissed the applicant’s appeal. The Supreme Court noted that the courts were under obligation to protect their authority and the dignity of the participants in the proceedings. While section 78 of the Criminal Procedure Act provided for disciplinary sanctions, it could not be interpreted as allowing sanctioning of every inappropriate expression. Instead, the courts were called to take into account all the circumstances and decide whether, on balance, the insult had been such as to require a disciplinary sanction. The Supreme Court stressed that the courts had to show particular restraint and caution in deciding on a disciplinary sanction against a defence counsel, because in such cases not only was his or her right to freedom of expression at stake but also his or her role in defending the accused person in criminal proceedings. It noted that a defence counsel might, therefore, be critical of the State prosecutor and other participants in the proceedings, including the court, but even this rule did not apply in absolute terms. If a defence counsel conducted his defence in criminal proceedings by insulting or humiliating other participants, by accusing them of personal dishonesty or bias or of lacking the essential professional capacities, personal qualities or similar, or if he or she was also insulting to the court, his or her conduct was deemed unacceptable and therefore had to be subject to a sanction by a fine pursuant to section 78 of the Criminal Procedure Act. The Supreme Court concurred with the Higher Court that the case at hand involved insulting value judgments and expressions of contempt and disrespect for other participants in the proceedings and the court. The Supreme Court referred to the applicant’s statements and examined their semantic meanings and upheld the view that he “had expressed contempt for the court experts, not only regarding their professional abilities but also by attributing to them negative personal characteristics, thereby expressing insulting value judgments”. The Supreme Court also pointed out that the applicant had had the right to challenge the correctness of the court’s procedural decisions, but should have done so in a legally acceptable manner. The Supreme Court also found that the Higher Court had provided reasonable grounds for the amount of the fine imposed. 23. On 16 March 2006 the applicant lodged a constitutional appeal in which he complained of a violation of Article 10 of the Convention and Article 39 of the Constitution, which guarantees freedom of expression. He argued that his criticism had been essentially directed against the experts and the public prosecutor and not against the court. Although the participants in question might have preferred not to hear his opinion, he had had to express it for the benefit of the defendant. In the applicant’s view, the court had to take into account the importance of freedom of expression in the process of a criminal trial, which was one of the most important mechanisms of State repression. He also argued that he had expressed acceptable criticism which, though presented in a slightly illustrative manner, had not been insulting to the experts but instead had challenged the credibility of their opinions. He argued that he had expressed the impugned opinions with the aim of providing the best possible defence to his client and that his punishment had not been necessary in a democratic society. Relying on Nikula (cited above), he argued that the critical comments had been directed solely at the unprofessional and inappropriate work of the experts and had not insulted the court in any way. 24. On 31 March 2008, at an administrative session, the Constitutional Court decided that Judge J.Z. (who was not present) would not sit it the cases concerning the Supreme Court’s decisions in which he had taken part, or those in which his wife, Judge B.Z., had taken part. 25. On 2 April 2008 an order was issued by the secretary general of the Constitutional Court for Judge J.Z.’s removal from the “consideration and decision-making” in the applicant’s case. 26. On 3 December 2008 a panel of three judges of the Constitutional Court issued a decision refusing to accept the applicant’s constitutional complaint for consideration on the merits as, in its view, it did not meet the criteria set out in paragraph 2 of section 55b of the Constitutional Court Act. Two judges, Judge E.P. and Judge J.P., voted in favour of the dismissal while Judge C.R. voted against it. It was also noted that as the panel had not been unanimous, the decision had been submitted to the remaining Constitutional Court judges pursuant to section 55c of the Constitutional Court Act. However, as the three votes in favour of examination had nevertheless not been obtained, the constitutional complaint was rejected. 27. On 5 December 2016 the Constitutional Court sent to the applicant a corrigendum of its decision of 3 December 2008, noting that Judge J.Z. had not been submitted a decision as he had withdrawn from the case. The explanation to the corrigendum noted that after being requested by the State Attorney to send information for the purposes of the proceedings before this Court, the Constitutional Court upon looking into the file had discovered a clerical error, namely the omission to indicate in the decision sent to the applicant that Judge J.Z. had not taken part in the proceedings in question. 28. According to a letter by the Ljubljana District Court of 30 March 2017, prepared for the purposes of the present proceedings, there was no record of the applicant having paid the second fine of SIT 400,000 (equal to approximately EUR 1,670 – see paragraph 19 above).	1
test	001-183353	ENG	TUR	CHAMBER	2,018	CASE OF AMERKHANOV v. TURKEY	4	Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Kazakhstan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5+5-5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) (Article 5 - Right to liberty and security;Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)	Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström	6. The applicant was born in 1989 and is detained in Atyrau, Kazakhstan. 7. According to the applicant’s submissions, he lived in Atyrau, Kazakhstan until 2010. Between January and November 2010 the applicant was constantly harassed by the police, taken into police custody and ill-treated. In January 2010 he was asked to go to a police station as a friend of his had informed the police that the applicant had witnessed a fight between him and another friend of the applicant. On that day a statement was taken from him by the police. The next day he was once again invited to the police station, where, this time, he was beaten by the police. Subsequently, he was also accused of forcing a girl to worship in the Muslim manner and of raping her. He was eventually released from police custody. The applicant considered that he had been subjected to ill-treatment because he was a practising Muslim who worshipped and who wore a beard. On 27 November 2010 the applicant left Kazakhstan and arrived in Turkey. He then went to Syria twice and also to Georgia. On 21 May 2011 the applicant re-entered Turkey on a tourist visa. 8. On 9 June 2011 with a view to requesting a residence permit in Turkey, the applicant went to the Istanbul police headquarters, where he was arrested. The Government submitted that (i) subsequent to his arrival in Turkey 21 May 2011, an entry ban was issued in respect of the applicant, as he was considered to constitute a threat to national security, and (ii) he was detained with a view to his deportation. 9. On the same day the applicant was transferred to the Kumkapı Foreigners’ Removal Centre. 10. On unspecified dates the applicant applied to the national authorities and to the United Nations High Commissioner for Refugees (UNHCR), asking to be recognised as a refugee. 11. On 15 June 2011 a police officer conducted an interview with the applicant in the context of his application to be granted asylum. 12. On 28 June 2011 the applicant was notified by the police that his asylum application had been rejected. 13. On 29 June 2011 the UNHCR issued an asylum-seeker certificate to the applicant. 14. On 5 July 2011 one of the applicant’s representatives, Mr A. Yılmaz, lodged an objection to the decision to reject the applicant’s asylum application with the police department responsible for foreigners, borders and asylum attached to the Istanbul police headquarters. The lawyer asked the authorities to review their decision and to conduct a second interview with the applicant. 15. On 11 July 2011 Mr A. Yılmaz lodged an application with the Istanbul Magistrates’ Court for his client’s release. The applicant’s lawyer also stressed that the applicant was being kept in poor detention conditions. He received no response to his application. 16. On 16 August 2011 the police conducted a second interview with the applicant, during which he claimed that he would be exposed to a real risk of death and duress at the hands of the police if deported to Kazakhstan. In his statement, the applicant claimed that he had already been ill-treated by the police in Kazakhstan and that the authorities had imprisoned religious people like him on false accusations. 17. On 22 and 25 August 2011 Mr A. Yılmaz lodged two further applications with the police for his client to be released. He submitted that the applicant was being sought for by the Kazakhstan authorities for political reasons and that he would be persecuted on the basis of his religious convictions and subjected to torture and ill-treatment if deported to his country. In support of his petition dated 22 August 2011, the applicant’s lawyer submitted a document showing that the applicant was being sought for by the public authorities in Atyrau on suspicion of having committed the offence of “hooliganism”, proscribed by Article 257 § 3 of the Kazakhstan Criminal Code, as in force at the material time. He also submitted a copy of a page of a newspaper published in Kazakhstan in April 2011 according to which an arrest warrant had been issued in respect of the applicant. 18. On 13 September 2011 the applicant was released from the Kumkapı Foreigners’ Removal Centre. The applicant was ordered to go and live in the province of Sakarya pending the determination of his asylum application. 19. On 29 September 2011 the applicant went to Sakarya, where he lived until 15 March 2012. 20. On 24 October 2011 the applicant was granted a residence permit, valid until 20 May 2012. 21. On 3 November 2011 the InterpolEuropol Department attached to the General Police Headquarters requested the Foreigners, Borders and Asylum Department (also attached to the General Police Headquarters) to provide information regarding the applicant, noting that he was sought for by the prosecuting authorities and the Interpol bureau of Kazakhstan as he was suspected of having committed an offence in that country. On 1 December 2011 the deputy head of the Foreigners, Borders and Asylum Department informed the InterpolEuropol Department that the applicant had requested asylum and was residing in Sakarya and that on 24 October 2011 a further entry ban had been issued in respect of him after the applicant had been prosecuted for “hooliganism”. The Foreigners, Borders and Asylum Department requested the InterpolEuropol department not to provide any information to the Kazakhstan authorities, in the interests of the safety of the applicant and his family members in Kazakhstan. 22. On 15 March 2012 the applicant was served with a document informing him that his asylum application had been rejected on 2 March 2012 and that he could not benefit from subsidiary protection either. The document informed him that he was banned from entering Turkish territory and that if he attempted to enter Turkish territory, he would be deported. On the same day the applicant was detained. 23. On 16 and 19 March 2012 Mr A. Yılmaz lodged two applications with the Ministry of the Interior requesting that his client be released. The lawyer noted that he had received a phone call from the applicant, who had stated that he would be deported to Kazakhstan, where he would be subjected to torture. 24. On 19 March 2012 the applicant was deported to Kazakhstan. 25. In a letter dated 27 May 2013, Mr Yılmaz submitted that the applicant had been transferred to the custody of Kazakhstan’s security forces upon his return to Kazakhstan and had then been remanded in custody in Atyrau Prison. The lawyer stated that he did not have information supported by any document as to whether the applicant had been subjected to ill-treatment in Kazakhstan. 26. On 22 March 2012 Mr A. Yılmaz lodged an application with the Ankara Administrative Court for the annulment of the decisions of the Ministry rejecting the applicant’s asylum application and to deport the applicant from Turkey. He requested a stay of execution of the decision to deport the applicant, pending the proceedings before the Ankara Administrative Court. In support of his petition, the applicant’s lawyer submitted a number of documents to the Ankara Administrative Court, including a document downloaded from the Atyrau police department website, according to which an arrest warrant had been issued in respect of the applicant. The document, which was also submitted to the Court, contained the applicant’s name, photograph and the charge brought against him (“hooliganism”, under Article 257 § 3 of the Kazakhstan Criminal Code). He also submitted the newspaper page (see paragraph 17 above), which he had already submitted to the police on 22 August 2011 and according to which an arrest warrant had been issued in respect of the applicant. 27. On 11 May 2012 the Ankara Administrative Court rejected the request for a stay of execution in respect of the applicant’s deportation. 28. On 13 February 2013 the Ankara Administrative Court dismissed the application lodged by the applicant on 22 March 2012. In its judgment, the administrative court noted that according to information obtained from the National Intelligence Organisation (Milli İstihbarat Teşkilatı), the applicant was involved in international terrorism and had carried out terrorist activities when he had been in Turkey. The Ankara Administrative Court further noted that the applicant’s asylum application had been rejected as the administrative authorities had found that there had not been any basis for the applicant’s fear of persecution and that he had not met the conditions for being considered a refugee. On the basis of the documents in the case file, the Administrative Court concluded that the administrative decision to reject the applicant’s asylum application and to deport the applicant from Turkey had been lawful. 29. Following an appeal by the applicant, on 27 April 2016 the Supreme Administrative Court upheld the judgment of 13 February 2013. 30. Between 9 June and 13 September 2011 the applicant was detained at the Kumkapı Foreigners’ Removal Centre. The applicant claimed that the centre had been overcrowded at the time of his detention. He had not been allowed exercise outdoor or any other type of social activity throughout his detention. The applicant further alleged that there had been hygiene problems at the centre and that the quantity of the food provided had also been poor. 31. The Government submitted that the Kumkapı Foreigners’ Removal Centre where the applicant had been held had a capacity of 300 persons and that a total of between 100 and 150 persons had been held during the period between 9 June and 13 September 2011. Detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were four dormitory rooms on the first floor, measuring 50, 58, 76 and 84 sq. m. On the second floor there were five dormitories measuring 50, 58, 69, 76 and 84 sq. m. There was a total of 120 bunk beds in the ten rooms reserved for male detainees and all rooms received natural light. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69 sq. m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise if the physical conditions and the number of staff available allowed. A doctor was present on the premises every week and the detainees also had access to medical care in cases of emergency. As for the hygiene in the facility, there were six cleaning staff working full time and cleaning products, such as soap, were provided on a regular basis.	1
test	001-160062	ENG	POL	ADMISSIBILITY	2,015	WOŹNY v. POLAND	4	Inadmissible	András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer	1. The applicant, Mr Zdzisław Woźny, is a Polish national who was born in 1949 and lives in Elbląg. He is represented before the Court by Ms M. Szereda, a lawyer practising in Łódź. 3. The application concerns national bonds issued by the State Treasury in 1936. The bonds were to have been redeemed by 1982. However, the State failed to undertake any steps to redeem them or to pay interest to the holders of those bonds. 4. On 14 November 2005 the applicant instituted civil proceedings for payment against the State Treasury, represented by the Ministry of Finance. He claimed 550,823.19 Polish zlotys (PLN) (approximately 137,700 euros (EUR)). 5. On 19 December 2006 the Warsaw Regional Court dismissed the applicant’s claim, finding that it had become time-barred and that, moreover, its value would in any event approach zero zlotys after the application of all due indexation methods. 6. The applicant appealed against that judgment. 7. On 6 August 2008 the Warsaw Court of Appeal quashed the firstinstance judgment and remitted the case to the Regional Court. It considered, inter alia, that finding the applicant’s claim time-barred had been contrary to the principles of community life (sprzeczna z zasadami współżycia społecznego). The Court of Appeal found that the Regional Court should have examined the applicant’s claim on the merits. 8. On 18 December 2008 the Warsaw Regional Court found part of the claim well founded, awarded the applicant PLN 216,647 (approximately EUR 54,160) and dismissed the remainder of the claim. 9. On 2 February 2009 the Ministry of Finance lodged an appeal against that judgment. 10. On 30 June 2009 the Warsaw Court of Appeal asked the Supreme Court for an explanation of a legal question concerning the applicability to the present case of the indexation clause contained in Article 3581§ 3 of the Civil Code. In particular, the Court of Appeal had doubts as to whether the indexation clause should be applied if a significant change in the value of a claim had resulted from legislative changes. 11. On 22 October 2009 the Supreme Court, in reply to the Court of Appeal’s request, ruled that the Court of Appeal had failed to meet the requirements which would have allowed it to turn to the Supreme Court for interpretation; instead, it stated that the Court of Appeal should decide independently on the present case. 12. On 15 January 2010 the Warsaw Court of Appeal amended the challenged judgment and dismissed the applicant’s claim. The court found, inter alia, that the national bonds had lost their real value because of the 1949 Decree (see paragraph 14) and the 1950 Act (see paragraph 18). Relying on the judgment of the Constitutional Court of 24 April 2007 (see paragraph 27), it ruled that the indexation of the value of the applicant’s claim by way of judicial decision was inadmissible because the change in the value of the claim had been caused by the lawmaker and had not been a result of external, unpredictable causes. 13. The applicant lodged a cassation appeal with the Supreme Court. 14. On 24 March 2011 the Supreme Court dismissed the applicant’s cassation appeal. The Supreme Court endorsed the reasoning of the judgment given by the Court of Appeal and confirmed that the applicant’s claim had indeed lost its economic value as a result of legislative changes enacted in 1949 and 1950. 15. Article 4 provides: “The payment of dues resulting from pecuniary obligations arising from any title of a private or public nature before the entry into force of the present decree and not redeemed until that day may only be effected in the Polish currency.” 16. At the relevant time, Article 5, subsequently repealed, provided: “(1) The change in the purchasing power of money during the time between the creation of an obligation and its payment date or performance does not constitute a basis for a change in the amount of the obligation or in the means of the execution of the contract or dissolution of the contract. (2) Payment of an obligation, specified in Polish currency on the basis of this decree, shall be made in banknotes of the Polish National Bank according to their nominal value, which is equal to the nominal value of banknotes or other means of payment, which were expressed in zlotys and which were in circulation on the territory of Poland or a part thereof before the introduction of the National Polish Bank’s banknotes into circulation. (3) For the establishment of the value of pecuniary obligations referred to in the present Decree and expressed in the Polish currency, it is irrelevant what means of payment was in circulation at the time of the creation of the obligation.” 17. Article 6 § 2 provides: “The amount of obligations expressed in zlotys in gold is calculated at 1 zloty for 1 zloty in gold.” (Wysokość należności z zobowiązań pieniężnych wyrażonych w złotych w złocie liczy się jeden złoty za jednego złotego w złocie) 18. The Change of Monetary System Act of 28 October 1950 (o zmianie systemu pieniężnego) provided that all public and private obligations expressed in zlotys, irrespective of the time at which they came into existence, were to be recalculated with effect from 30 October 1950 according to the following ratio: 100 “old” Polish zlotys equals 3 Zloty. 19. Under section 9 of this Act, all amounts expressed in “old” zlotys and mentioned in legal provisions binding on the day of the entry into force of this Act were recalculated, by virtue of law, according to the following ratio: 100 “old” zlotys = 3 zloty. 20. The Polish Zloty Denomination Act of 7 July 1994 Act (ustawa o denominacji złotego) introduced a new payment unit: with effect from 1 January 1995 the new unit of PLN 1 was to be worth 10,000 “old” Polish zlotys. 21. Article 32 of the Constitution reads: 1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2. No one shall be discriminated against in political, social or economic life for any reason. 22. Article 64 of the Constitution reads, in so far as relevant, as follows: 1. Everyone shall have the right to ownership, other property rights and the right of succession. 2. Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession ... 23. Article 3581 § 3 of the Civil Code provides: “In the case of an essential change of the purchasing power of money after an obligation falls due the court may, after considering the interest of the parties and in accordance with the principles of community life, change the amount or the mode of payment, even if these were fixed in a decision or a contract.” 24. On 24 April 2007 the Constitutional Court gave a judgment (SK 49/05) in which it held that section 12(1) of the Act of 28 July 1990 amending the Civil Code, in so far as it limited the possibility of judicial indexation referred to in Article 3581 § 3 of the Civil Code as regards pecuniary obligations which had come into existence before 30 October 1950 as a result of bonds emitted by the State Treasury, was inconsistent with Article 64 §§ 1 and 3 in conjunction with Article 32 § 1 of the Constitution. 25. In the part named “effects of the judgment” the Constitutional Court noted: “Taking into consideration the effects of this judgment and the impossibility of claiming the full value of claims arising from national bonds issued before 1939, the matter of possibility and scope and, in particular, the amount of just satisfaction for persons holding such bonds should be resolved by the lawmaker. As stressed on many occasions in its case-law, the Constitutional Court should not replace the lawmaker. The finding by the Constitutional Court that section 12(1) of the Act of 28 July 1990 amending the Civil Code was inconsistent with the Constitution ... will enable the holders of national bonds to access the indexation of their claims guaranteed by Article 3581 § 3 of the Civil Code. However, in practice, the expiry of limitation periods may effectively deprive claimants of a chance to achieve a positive outcome in the relevant proceedings. If [the Parliament] does not enact new provisions before section 12 (1) of the Act of 28 July 1990 expires, holders of national bonds, who have been patiently waiting for the settlement of their claims, will be able to lodge [with civil courts] their claims for payment in an amount which will be calculated with the application of the indexation clause. However, the present judgment of the Constitutional Court does not indicate to the courts the scope, direction or scale of the indexation.” 26. The provisions which had been found unconstitutional were subsequently repealed, which opened the way for applicants to lodge their claims before the courts and to demand that the value of their claims be increased by judicial order.	0
test	001-177230	ENG	RUS	COMMITTEE	2,017	CASE OF GANEYEVA v. RUSSIA	4	Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)	Dmitry Dedov;Luis López Guerra	4. The applicant was born in 1986 and lives in Ufa. 5. On 26 December 2006 a new block of flats was commissioned by the Town of Ufa at 66/2, Ulitsa Kommunarov, Ufa. 6. According to the documents submitted by U. to state registration authorities, on 19 July 2010 the Ordzhonikidzevskiy District Court of Ufa recognised his title to the flat at 66/2-39, Ulitsa Kommunarov, Ufa. The state registration authorities registered U.’s title. 7. On 30 October 2010 U. sold the flat to M. On 22 November 2010 the state registration authorities registered the said transaction and M.’s title to the flat. 8. On 12 February 2011 Z., acting on M.’s behalf by virtue of the power of attorney, and the applicant signed a contract according to which A. sold the flat to the applicant. Z. and the applicant submitted the documents for the registration of the transaction and the transfer of the title to the flat to the applicant. 9. According to the applicant, she paid the amount due under the contract to Z. and moved into the flat while her application for the registration of the transfer of the title to the flat to her was still pending. 10. On an unspecified date a third party brought a civil action challenging U.’s sale of the flat to M. and the latter’s title to the flat. 11. On 28 February 2011 the Ordzhonikidzevskiy District Court of Ufa issued an injunction in respect of the transactions with the flat. 12. On 3 March 2011 the state registration authorities informed the applicant that her application for the registration of the transfer of the title to the flat could not be granted pending the outcome of the civil proceedings concerning the title to the flat. 13. On 24 December 2012 the Supreme Court of the Republic of Bashkortostan dismissed the third party’s claims in respect of the flat in full. 14. On an unspecified date the Housing Foundation of the Republic of Bashkortostan brought a civil claim seeking, inter alia, the invalidation of M.’s title to the flat and the applicant’s eviction. 15. On 23 August 2013 the District Court granted the claims in full. It invalidated the purchase of the flat by M. and ordered the applicant’s eviction. The court considered that the applicant had not acquired the title to the flat and had no legal basis for moving into the flat and residing there. 16. On 7 November 2013 the Supreme Court of Republic of Bashkortostan upheld the judgment of 23 August 2013 on appeal. 17. On 12 May 2014 the Supreme Court rejected the applicant’s cassation appeal. 18. On 28 August 2014 the Supreme Court of the Russian Federation rejected the applicant’s second cassation appeal. 19. On an unspecified date the applicant asked the District Court to stay the eviction proceedings. She submitted that the flat had been her only place of residence and that, in view of her financial situation, she was unable to buy or rent another flat. On 24 March 2014 the District Court stayed the eviction proceedings for three months. 20. On 24 February 2015 the applicant was evicted.	1
test	001-147044	ENG	RUS	CHAMBER	2,014	CASE OF ADEISHVILI (MAZMISHVILI) v. RUSSIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional)	Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković	5. The applicant was born in 1975 and lives in the Ivanovo Region. 6. According to the applicant, in 1991, at the age of fifteen, he moved to Russia from Georgia with his parents. In 1998 he settled in Shuya, Ivanovo Region, whereas his parents moved back to Georgia. 7. On 18 November 1999 the Shuya Town Court of the Ivanovo Region found the applicant guilty of extortion and theft of a passport, and sentenced him to three years and one month’s imprisonment. According to the applicant, in order to spare his mother’s feelings, he told the prosecuting authorities that his name was Shermandin Goderziyevich Mazmishvili. On 4 June 2001 the applicant was released on parole. Upon release he was issued with an ID card in the name of Shermandin Goderziyevich Mazmishvili. 8. On 26 April 2005 the Town Court found the applicant guilty of theft and sentenced him to three years’ imprisonment. Again he claimed that his name was Shermandin Goderziyevich Mazmishvili and presented the relevant ID card. On 1 June 2007 the applicant was released on parole. 9. The applicant was in a relationship with Ms K. On 29 February 2008 Ms K. gave birth to a girl. On 21 September 2009 the applicant was recognised as the girl’s father. On 22 September 2009 the applicant and K. got married. On 20 December 2011 Ms K. gave birth to the couple’s second daughter. According to the Government, Ms K. and her two daughters are Russian nationals. 10. According to the Government, on 19 June 2007 the applicant was found administratively liable for failing to have his residency in Russia duly authorised. 11. On 26 June 2007 the applicant was registered as a migrant under the name of Mazmishvili. The registration remained valid until 26 October 2007. 12. It appears that on an unspecified date the applicant asked the Russian migration authorities to issue him with a Russian passport indicating that his name was Shota Petrovich Adeishvili. Following their refusal, the applicant lodged a claim with the Digora District Court of the Northern Osetiya and Alaniya Republic, asking the court to confirm that he had been residing permanently in Russia since 1991. 13. On 30 October 2007 the District Court granted the applicant’s request. The court based its findings on the applicant’s birth certificate in the name of Shota Petrovich Adeishvili submitted by him, a certificate issued by the Digora municipal authorities and the testimony of Ms G., stating that the applicant had been renting a flat from her since 1991. 14. On 8 July 2008 the applicant received a Russian passport in the name of Shota Petrovich Adeishvili. 15. On 10 February 2010 the regional migration service asked the District Court to quash the judgment of 30 October 2007 and remit the matter for new consideration. 16. On 17 March 2010 the District Court quashed the judgment of 30 October 2007, noting that the certificate confirming the applicant’s residence in Digora had not in fact been issued by the town administration. The matter was remitted for fresh consideration. 17. On 31 March 2010 the District Court noted that the applicant, who had been duly notified of the date and time of the court hearing, had failed to appear in court on two occasions. The Court left the matter without consideration on the merits and discontinued the proceedings. The applicant did not appeal. 18. On 18 April 2010 the migration service terminated the applicant’s Russian citizenship and invalidated his passport. According to the applicant, the migration services transmitted the case file to the prosecuting authorities for further inquiry. He did not inform the Court of the inquiry’s outcome. 19. On 8 July 2010 the applicant was arrested and taken to a police station where he spent the whole day. His passport was confiscated. On the same day an expert from the regional department of the interior confirmed that the applicant’s fingerprints corresponded to those belonging to Shermandin Goderziyevich Mazmishvili. 20. In the evening of 8 July 2010 the applicant was taken to the Shuya Town Court, which started the hearing at 11 p.m. The applicant was represented by a State-appointed lawyer. The Town Court considered that the applicant was Shermandin Goderziyevich Mazmishvili. It found that, as a person without citizenship, he had failed to have his residency in Russia duly authorised. It therefore imposed a fine on him and ordered his expulsion from Russia to Georgia. The court also held that the applicant should be remanded in custody pending expulsion until 8 September 2010. In particular, the court noted as follows: “When deciding whether to expel Sh. G. Mazmishvili and taking into account that the defendant has a family and a minor child, the court sees no reason not to expel [him] in view of the offences he has committed in Russia, his unlawful acquisition of a Russian passport and his lack of employment.” 21. The applicant appealed against the judgment of 8 July 2010 alleging, inter alia, that the State-appointed lawyer had not carried out his defence effectively, and that the court had failed to provide him with a copy of the decision of 17 March 2010 or a record of his own questioning of 14 September 1999. 22. On 26 July 2010 the Ivanovo Regional Court upheld the judgment of 8 July 2010 on appeal. The applicant was represented by counsel of his own choosing. 23. On 18 August 2010 the police sent the documents concerning the applicant’s expulsion to the Georgian authorities. 24. On 30 August 2010 the President of the Regional Court upheld the judgments of 8 and 26 July 2010. 25. It appears that the regional migration service could not prepare the documents necessary to expel the applicant to Georgia and asked the Town Court to extend the applicant’s detention pending expulsion. 26. On 6 September 2010 the Town Court extended the applicant’s detention until 7 October 2010. The court noted that the Georgian authorities had not yet prepared the documents necessary for the applicant’s expulsion to Georgia. The court considered that the applicant, if released, might abscond or fail to comply with the expulsion order. The applicant’s detention was repeatedly extended by the Town Court. 27. On 3 January 2011 the Georgian authorities informed the regional migration service that a real Shermandin Goderziyevich Mazmishvili was residing in Georgia and it was not possible to issue the requested documents in that name for the applicant’s expulsion to Georgia. 28. On 7 February 2011 the Town Court ordered the applicant’s release. Referring to the information supplied by the Georgian authorities, the court considered that it was not possible to expel the applicant under the name of Mazmishvili. 29. According to the Government, the applicant has not been expelled. He has no document confirming his ID, and the Russian authorities have not established his identity. 30. According to the applicant, the Town Court, when deciding to detain him pending expulsion, took into account a certificate prepared by police captain P. on which it was noted that the applicant “had been involved in car thefts, belonged to the Shuya organised criminal group ... [and] was a drug dealer.” 31. Despite a complaint lodged by the applicant that P. had knowingly disseminated false information about him, on 18 August 2010 the prosecutor’s office refused to institute criminal proceedings against P. 32. From 9 July 2010 to 7 February 2011 the applicant was held in a special detention centre in Ivanovo. 33. According to the Government, all the inmates detained with a view to expulsion were held in cells nos. 2, 3 and 4. During the period of the applicant’s detention, the cell population varied from three to sixteen persons in all three cells. On average, the number of persons detained in a cell was four to five. 34. Each detainee was provided with a mattress, a pillow, sheets and a blanket. The sheets were changed on the days the applicant was allowed to take a shower. According to the relevant ledger, the applicant took showers on 9, 21 and 29 July, 4, 14, 24 and 30 August, 7, 13, 27 and 30 September, 1, 12, 15, 22 and 29 November, 6, 13, 20 and 27 December 2010, and on 13, 19 and 25 January and 1 February 2011. 35. Each cell had a window opening onto a hallway. The window was covered with a metal grill. The light coming from the hallway was sufficient for reading. The window was periodically kept open to ensure proper ventilation of the cell. There was a table and a bench with seating for four persons in each cell. Both the table and the bench were fixed onto the floor. 36. The cells where the applicant was detained from 9 July to 30 September 2010 were not equipped with a toilet. The detainees were taken out of the cell at least twice a day to use the toilet in the building. During the nighttime the inmates had to use buckets placed in the cells. The buckets were emptied and disinfected daily. In September 2010 toilets and wash sinks were installed in all cells of the special detention centre. They became operational in October 2010. 37. Food was provided three times a day. Breakfast consisted of hot tea, sugar and a pastry; lunch comprised of soup, meat or fish with a side dish, and tea with sugar or a fruit drink. The applicant also received food parcels from his family and friends. 38. According to the applicant’s file, he declared a hunger strike twice. Each time he was examined by a paramedic. On a number of occasions ambulance doctors attended to the applicant. 39. The special detention centre had an exercise area measuring 4.66 m by 3.7 m covered with a metal grill. The detainees had one hour’s outdoor exercise daily. 40. The applicant was allowed to telephone his family on several occasions. The internal regulations did not provide for the right to a family visit. 41. The applicant provided the following information as regards his detention in the special detention centre: 42. Prior to the refurbishment of the special detention centre, there had been no toilets or wash sinks in the cell. The inmates had had to use a bucket placed in the cell. It had been emptied twice a day. The inmates had been allowed to use toilets outside the cell twice a day. The toilets had offered no privacy. Six to eight inmates had been taken simultaneously to the lavatory and had had to use the toilet in front of the others waiting for their turn. 43. The toilets installed in the cells offered no privacy either. Only cell no. 8 had a one-metre high partition separating the toilet from the living area of the cell. 44. The applicant did not contest the Government’s submissions as regards the frequency of the showers he had been allowed to take. According to him, the hot water had run out after the first ten minutes. Each time the inmates had had from fifteen to twenty-five minutes to take a shower and to do their laundry. They could use only cold water for the laundry. The sheets, which were old and ragged, had been changed every two weeks. 45. The windows in the cell were covered by two sets of metal bars on both sides. Access to daylight was insufficient. The table and the bench allowed for two persons to eat. The rest of the inmates had to eat sitting on their beds. In cell no. 3 the applicant was given a mattress that was infested with lice. 46. Cell no. 9, which was unofficially called “a disciplinary cell”, had no windows. During the four days the applicant spent in that cell, he was not taken out for outdoor exercise. 47. The daily outdoor exercise lasted thirty minutes and took place in a yard measuring 12 square metres. 48. The applicant had nothing to do while detained at the special detention centre. There was no library, television or radio. He was not allowed to subscribe to a newspaper or a magazine. 49. Breakfast was served at 7 a.m., lunch was served at 3 p.m. and dinner, if any, was served at 5 p.m. Breakfast consisted of a piece of white bread, a mug of hot water and a piece of sugar. No spoon was provided. For lunch inmates received soup with an unpleasant odour and taste, a minced meat cutlet and a piece of rye bread. For dinner they were given a burger and cabbage. The meals were the same every day. Because of the applicant’s condition, he could not eat any of the food served. Drinking water was not provided at all. The foodstuff sent by the applicant’s family quickly perished as no fridge was provided and the applicant had to store the food under his bed.	1
test	001-177655	ENG	RUS	COMMITTEE	2,017	CASE OF GACHMA v. RUSSIA	4	Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)	Alena Poláčková;Helen Keller;Pere Pastor Vilanova	5. The applicant was born in 1955 and lives in Budenovsk, the Stavropol Region of the Russian Federation. He is a former military officer. 6. On an unspecified date the applicant sued his former employer military unit. 7. On 3 May 2001 the Military Court of the Pyatigorsk Garrison (“the military court”) ordered, inter alia, the head of the respondent military unit to re-calculate the period of the applicant’s service, applying the favourable terms of such calculation for the time when the applicant had participated in a military operation. The military court obliged the head of the military unit to issue the relevant orders, to calculate and to pay the applicant some additional payments and field allowance for the periods specified in the judgment. The judgment contained information on the indexes and other parameters that should be applied for the awarded amounts to be calculated. 8. On 14 May 2001 the judgment came into force. 9. In March 2002 the applicant obtained the writ of execution and submitted it to the Department of the Federal Treasury in Budenovsk. 10. On 19 March 2002 the Department of the Federal Treasury returned the writ of execution to the applicant on the ground that the military unit did not have an account there, and the judgment contained no specific amounts awarded to the applicant. 11. On 21 March 2002 the applicant submitted the writ of execution to the bailiffs’ service. On the same day the enforcement proceedings were initiated. 12. On 19 February 2003 the enforcement proceedings were terminated and the writ was returned to the applicant without enforcement following his request to withdraw the writ. 13. In 2004-2005 the applicant applied to the domestic courts for clarification of the initial judgment with the view to establish the specific amounts due to him. The applicant’s requests were dismissed as being lodged out of time. The courts noted that, in any case, the matter concerning the awarded amounts should have been resolved by way of an additional decision rather than clarification of a final judgment, and informed that an application for an additional decision should have been lodged before the entry into force of the main judgment. 14. It is not disputed between the parties that the judgment of 3 May 2001 remained unenforced in the part concerning the payment to the applicant of the second salary and the field allowances for the periods specified in the judgment. 15. On 24 March 2016, after communication of the present case, the Ministry of Finance of Russia calculated the amount due to the applicant under the judgment of 3 May 2001. According to this calculation, the main debt amounted to 80,220.74 Russian roubles.	1
test	001-177419	ENG	UKR	COMMITTEE	2,017	CASE OF SEMYRODA AND OTHERS v. UKRAINE	4	Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Civil proceedings;Right to a fair trial;Article 6-1 - Reasonable time);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)	Nona Tsotsoria;Gabriele Kucsko-Stadlmayer	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. The applicant in application no. 45879/07 also raised another complaint under the provisions of the Convention.	1
test	001-181862	ENG	TUR	CHAMBER	2,018	CASE OF MEHMET HASAN ALTAN v. TURKEY	3	Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano	11. The applicant was born in 1953. He is currently detained in Istanbul. 12. The applicant is an economics professor and a journalist in Turkey. Prior to the attempted military coup of 15 July 2016, he presented a political discussion programme on Can Erzincan TV, a television channel that was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016 in connection with the state of emergency (see paragraphs 14-18 below). 13. In the years leading up to the attempted coup, the applicant had been known for his critical views on the serving government’s policies. 14. During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey. 15. During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured. 16. The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation. 17. On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President, most recently with effect from 19 January 2018. 18. On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15. 19. On an unspecified date, the Istanbul public prosecutor initiated a criminal investigation in respect of suspected members of FETÖ/PDY. In addition, on the basis of Article 3 § 1 (l) of Legislative Decree no. 668, he ordered restrictions on the right of the suspects’ lawyers to inspect the contents of the investigation file or to obtain copies of documents in the file. In the course of the criminal investigation, the applicant was arrested at his home on 10 September 2016 and taken into police custody on suspicion of having links to the media wing of the organisation in question. 20. On the same day, the applicant’s home was searched by police officers without his lawyers being present, as they had been prevented from attending the search on account of the state of emergency. 21. Later that day, the applicant lodged an objection challenging his detention in police custody and seeking his release. On 12 September 2016 the Istanbul magistrate’s court dismissed the objection. 22. The applicant remained in police custody for twelve days at the Istanbul police anti-terrorist branch. During his first five days in custody, he was not permitted to speak to his lawyers. 23. On 20 September 2016, while at the police station, the applicant stated that he was asserting his right to remain silent. 24. On 21 September 2016 he was questioned by the Istanbul public prosecutor on suspicion of attempting to overthrow the government or to prevent it from discharging its duties (Article 312 of the Criminal Code – (“the CC”) and of being a member of the FETÖ/PDY terrorist organisation (Article 314 of the CC). 25. The records of the questioning indicate that the applicant was accused of: (i) attempting to discredit an investigation into an alleged coup (the “Balyoz” case); (ii) making certain statements serving the interests of FETÖ/PDY, in particular during a television programme broadcast on Can Erzincan TV on 14 July 2016, in the course of which, according to the public prosecutor, the terrorist organisation had sought to prepare the public for a military coup; (iii) holding an account with Bank Asya, a bank with alleged links to FETÖ/PDY; (iv) avoiding a criminal investigation through the assistance of members of the national police suspected of belonging to FETÖ/PDY; (v) visiting Fetullah Gülen at his home in Pennsylvania and kissing his hand; and (vi) having in his possession a United States one-dollar bill with an “F” serial number (denoting the initial of the forename Fetullah). In reply, the applicant stated that he did not know any Turkish army officers and had no links to the attempted coup. The comments he had made during the television programme in question had been intended as warnings to prevent future military coups. Regarding the bank account, some years previously he had taught for three months at a private university, which had asked him to open an account at the bank in question for payment of his wages. He added that he had not been aware of having avoided a criminal investigation through the assistance of certain suspected members of an illegal organisation, and that this was a matter to be taken up with the police officers allegedly responsible. Furthermore, he had visited Fetullah Gülen as a member of a group of journalists, for purely professional reasons linked to his role as a journalist, and had never kissed anyone’s hand. Lastly, the one-dollar bill was of no special significance. 26. On 22 September 2016 the applicant appeared before the Istanbul 10th Magistrate’s Court and was questioned about his alleged acts and the accusations against him. At the end of the hearing, the magistrate ordered the applicant’s pre-trial detention, having taken the following factors into consideration: the strong suspicions against him; the nature of the alleged offences and the fact that they were among the offences listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences”, for which a suspect’s pre-trial detention was deemed justified in the event of strong suspicion; the risk of absconding; and the risk that alternative measures to detention might be insufficient to ensure the applicant’s participation in the criminal proceedings. In the reasons for his decision, the magistrate noted the following: during the attempted military coup, members of FETÖ/PDY had used heavy weapons; since February 2012 the organisation in question had been explicitly waging a campaign against the political authorities; the members of FETÖ/PDY had attempted to force the government’s resignation by discrediting it in public opinion, especially through judicial operations carried out between 17 and 25 December 2013; and the organisation had taken control of several media outlets with a view to achieving its aim. The magistrate further noted that during the television broadcast on 14 July 2016, the applicant had said: “Within the State of the Republic of Turkey, there is probably another structure, whose components outside Turkey are closely observing and documenting all these events. It is not clear exactly when [it] will pull its hand out of the bag or how [it] will do so” (“Türkiye Devleti içinde de muhtemelen bütün bu gelişmeleri dış dünyada daha fazla belgeleyen, izleyen bir başka da yapı var. Onun ne zaman torbadan elini çıkaracağı, nasıl elini çıkaracağı belli değil”). The magistrate concluded that there were suspicions that the contents of the applicant’s statements about the political authorities had been intended to prepare the ground for a military coup and were not covered by freedom of the press. 27. On 28 September 2016 the applicant lodged an objection against the order for his pre-trial detention. In a decision of 10 October 2016 the Istanbul 2nd Magistrate’s Court dismissed the objection. 28. On 14 October 2016 the applicant lodged a fresh application for his release. In a decision of 26 October 2016 the Istanbul 3rd Magistrate’s Court rejected the application. 29. On various dates the applicant lodged further applications seeking his release pending trial. According to the documents produced by the parties, the applications were all rejected by the competent magistrates’ courts, for example on 10 and 24 November 2016 and 8 December 2016. 30. On 14 April 2017 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court in respect of several individuals, including the applicant, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the CC, of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it. The public prosecutor presented the following items of evidence against the applicant: two articles written by him; his comments during the television broadcast on 14 July 2016; the fact that he had an account with Bank Asya; and the seizure at his home of a United States one-dollar bill with an “F” serial number. He sought the imposition of three aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the applicant. 31. On an unspecified date, the public prosecutor filed his submissions on the merits (esas hakkında mütalaa). He sought the applicant’s conviction for the offences with which he was charged. Besides the evidence he had already submitted when the bill of indictment had been filed, the public prosecutor also produced messages sent by other suspected members of FETÖ/PDY via ByLock, an encrypted messaging service allegedly used by members of that organisation. 32. During the criminal proceedings, the applicant denied having committed any criminal offence. 33. In a summary judgment of 16 February 2018 the Istanbul 26th Assize Court sentenced the applicant to aggravated life imprisonment, in accordance with Article 309 of the CC, for attempting to overthrow the constitutional order. The criminal proceedings are still ongoing in the national courts. 34. On 8 November 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been placed in pre-trial detention on account of his articles and statements and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press. He also submitted that he had been arrested and detained for reasons other than those provided for by the Constitution. In addition, he complained that his detention in police custody had been unlawful and excessively lengthy, that he had had no access to the investigation file in order to challenge his pre-trial detention, that the magistrates ordering his detention had not been independent or impartial, that no hearings had been held following his applications challenging his continued pre-trial detention, and that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment. 35. On 11 January 2018 the Constitutional Court gave a judgment (no. 2016/23672) in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press. 36. With regard to the applicant’s complaint that his pre-trial detention was unlawful, the Constitutional Court noted firstly that the evidence forming the basis for his detention had included: (i) an article entitled “The meaning of Sledgehammer” (“Balyoz’un Anlamı”), published in the Star newspaper in 2010; (ii) his statements during the television programme broadcast on Can Erzincan TV on 14 July 2016; and (iii) an article entitled “Turbulence” (“Türbülans”), published on his own website on 20 July 2016. After examining the substance of these items of evidence, the Constitutional Court held that the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FETÖ/PDY or with the purpose of preparing the ground for a possible military coup. The Constitutional Court observed that, as well as having published the above-mentioned articles and made the statements in question, the applicant was accused of holding an account with Bank Asya, having avoided a criminal investigation through the connivance of members of the national police suspected of belonging to FETÖ/PDY, and having in his possession a United States one-dollar bill with an “F” serial number. Addressing those allegations, the Constitutional Court held, having regard to the applicant’s testimony and line of defence, that no specific facts had been established that could refute his explanations, which were “consistent with the normal course of life”. Similarly, regarding the contents of the messages exchanged by other individuals via ByLock, the Constitutional Court held that the messages could not in themselves be regarded as significant indications that the applicant had committed an offence. Accordingly, it concluded that “strong evidence that an offence had been committed” had not been sufficiently established in the applicant’s case. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article 15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency). On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless. Accordingly, it held that the applicant’s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 § 3 of the Constitution, had been breached. 37. However, having regard to the length of the applicant’s detention and the documents available to it, the Constitutional Court held that his complaint that he had been detained for political purposes, on grounds other than those provided for by the Constitution, lacked a sufficient basis. 38. With regard to the complaint concerning freedom of expression and of the press, the Constitutional Court observed that the applicant’s initial and continued pre-trial detention on account of his articles and statements amounted to interference with the exercise of that right. Taking into account his arguments regarding the lawfulness of his pre-trial detention, the Constitutional Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant’s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant’s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles and statements (see paragraph 235 of the Constitutional Court’s judgment). Regarding the application of Article 15 of the Constitution, it referred to its findings concerning the lawfulness of his pre-trial detention (as set out in paragraphs 155-57 of its judgment – see paragraph 36 above) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution. 39. With regard to the complaints concerning the lawfulness and duration of the applicant’s detention in police custody, the Constitutional Court held that he should have brought an action under Article 141 § 1 (a) of the CCP but had refrained from doing so. Furthermore, it noted that there was no information in the application or the appended material as to whether the applicant had lodged an objection under Article 91 § 5 of the CCP against his detention in police custody. Accordingly, it declared these complaints inadmissible for failure to exhaust the appropriate remedies. 40. As to the complaint of a lack of independence and impartiality on the part of the magistrates who had ordered the applicant’s pre-trial detention, the Constitutional Court dismissed it as being manifestly ill-founded, on the grounds that the magistrates were appointed by the High Council of Judges and Prosecutors and were entitled to the same constitutional safeguards as other judges. 41. Concerning the applicant’s complaint that he had had no access to the investigation file, the Constitutional Court held that he had had sufficient means available to prepare his defence to the charges against him and challenge his pre-trial detention, in view of the contents of the detailed questions put to him during questioning by the public prosecutor and the magistrate, and the overall duration of the restriction on access to the case file. Accordingly, it declared this complaint inadmissible as being manifestly ill-founded. 42. With regard to the complaint that no hearing had been held during the examination of the applicant’s applications challenging his pre-trial detention, the Constitutional Court found that there was no obligation to hold a hearing on each and every objection to pre-trial detention orders and their extension, and that where a person had been able to appear before the first-instance court considering the issue of detention, the fact that there was no hearing on a subsequent appeal did not in itself contravene the Constitution since it did not breach the principle of equality of arms. The Constitutional Court noted that the applicant and his lawyer had been present at the hearing on 22 September 2016, following which the applicant had been placed in pre-trial detention. It observed that he had lodged an objection against his detention on 28 September 2016, that the objection had been dismissed on 10 October 2016 and that eighteen days had thus elapsed between his previous appearance in court and the dismissal of his objection. Taking this period into account, the Constitutional Court considered that there had been no obligation to hold a hearing during the examination of his objection, and accordingly declared this complaint likewise inadmissible as being manifestly ill-founded. 43. Lastly, with regard to the applicant’s complaint that the conditions of his detention were incompatible with the prohibition of inhuman and degrading treatment, the Constitutional Court observed that he had not raised this issue with the enforcement judge. Accordingly, it declared the complaint inadmissible for failure to exhaust the appropriate remedies. 44. Having regard to its findings of violations, the Constitutional Court held that the applicant was to be awarded 20,000 Turkish liras (TRY – approximately 4,500 euros (EUR)) in respect of non-pecuniary damage and TRY 2,219.50 (approximately EUR 500) in respect of costs and expenses. 45. As the applicant was still in pre-trial detention on the date of delivery of its judgment, the Constitutional Court decided to transmit the judgment to the Istanbul 26th Assize Court so that it could take “the necessary action”. 46. On 11 January 2018 the applicant’s lawyer applied to the Istanbul 26th Assize Court for his client’s release. 47. On the same day, the Istanbul 26th Assize Court rejected the application by two votes to one, on the grounds that it had not yet received official notification of the Constitutional Court’s judgment. It held in addition that the summary judgment submitted by the applicant’s lawyer did not contain any indication by the Constitutional Court of a measure relating to the applicant’s release. 48. In his opinion the dissenting judge stated that, in accordance with Article 153 § 6 of the Constitution, the Constitutional Court’s judgments were binding on the legislative, executive and judicial organs, the administrative authorities and natural and legal persons. Accordingly, where a violation had been found on account of a judicial decision, the relevant court was required to take the necessary action to redress the effects of the violation, pursuant to section 50(2) of Law no. 6216 on the establishment and rules of procedure of the Constitutional Court (“Law no. 6216”). In his view, the only way of satisfying this requirement in the applicant’s case was to order his release. 49. On 12 January 2018 the applicant lodged an objection with a view to securing his release, submitting a copy of the Constitutional Court’s judgment of 11 January 2018 as published on the court’s website. 50. In a decision delivered on 15 January 2018 the Istanbul 27th Assize Court, by two votes to one, dismissed the applicant’s objection and ordered the continuation of his pre-trial detention. In reaching that finding, it observed that the Constitutional Court’s judgment had not been published in the Official Gazette as required by Article 153 § 6 of the Constitution. 51. In his dissenting opinion, the judge in the minority expressed the view that, since the Constitutional Court’s judgments were binding and not subject to appeal, the applicant should be released pending trial without waiting for the judgment in question to be published in the Official Gazette. 52. On 19 January 2018 the Constitutional Court’s judgment on the individual application lodged by the applicant was published in Official Gazette no. 20306. 53. On the same day, the Istanbul 26th Assize Court examined of its own motion the question of the applicant’s continued detention. Noting firstly that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation, and secondly that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. On that account, the Constitutional Court’s judgment no. 2016/23672 was not in compliance with the law. The Assize Court added that ordering the applicant’s release as an automatic consequence of the judgment in question would run counter to the general principles of law, the independence of the courts, the principle that no authority could give orders or instructions to the courts, and the “natural judge” principle. Lastly, by two votes to one, it ordered the continuation of the applicant’s pre-trial detention. In so holding, it took the following into account: the evidence before it; the large scale of the attempted military coup; the risk of the applicant’s absconding; the current state of the case file; and the severity of the potential sentence in the event of a conviction. 54. The judge who had voted in favour of the applicant’s release stated in a dissenting opinion that the Constitutional Court’s judgments were binding and that the Assize Court was thus required to comply with judgment no. 2016/23672. He pointed out that the only possible way for it to do so was to order the applicant’s release. 55. On 30 January 2018 the applicant lodged a further individual application with the Constitutional Court. Relying on Articles 5, 6 and 18 of the Convention, he complained mainly that he had been kept in pre-trial detention despite the Constitutional Court’s judgment of 11 January 2018.	1
test	001-153769	ENG	ROU	CHAMBER	2,015	CASE OF TORAN AND SCHYMIK v. ROMANIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)	Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra	I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are German nationals born in 1979 and 1978 respectively. They are currently serving prison sentences in Germany, following their conviction by the Romanian authorities for drug trafficking, as described below. A. Criminal proceedings against the applicants 6. At the time of the impugned events, S.R.B., one of the applicants’ acquaintances, was in police custody accused of drug-related offences. In the context of a covert operation, S.R.B. agreed to contact the applicants by phone in order to arrange a drug transaction. It appears that following several phone conversations between S.R.B. and the first applicant, the latter agreed to deliver 5,000 Ecstasy pills to Romania. 7. On 9 November 2007 the prosecutor in charge of investigating S.R.B.’s case issued an order (ordonanta) in which he authorised the intervention of three undercover agents, namely D.D., N.A. and L.C., who were mandated to purchase 6,000 Ecstasy pills with the assistance of S.R.B. The justification given for such an intervention was that, based on S.R.B.’s statements, there existed a strong indication that individuals as yet unknown to the police intended to commit the offence of drug trafficking. The undercover agents were necessary in the operation because the individuals in question “belonged to a drug-dealing network which acted very cautiously, taking a lot of precautions in their activities and relying exclusively on highly trustworthy persons”. On the same date, the prosecutor authorised the undercover agents N.A. and L.C. to be provided with 35,000 euros (EUR), to be taken from the special funds of the police, with the purpose of using it to purchase the drugs. 8. On the night of 9 to 10 November 2007 the applicants entered Romania and met S.R.B. in a petrol station in Timişoara. Subsequently, they requested to be directed to a mechanical workshop, where they asked to be left alone. S.R.B. was asked to wait for their phone call before returning to the garage with the money for the drugs. 9. The applicants’ activity of removing the drugs from hidden compartments under the front passenger seat of the vehicle was video recorded by the investigators, based on an authorisation issued by the court on 25 October 2007. After more than an hour, the applicants called S.R.B. to return to the garage together with the buyers, who were the undercover agents. One of them, N.A., handed over EUR 35,000, and the second applicant verified the authenticity of some of the bank notes with a special pencil. At the same time, the applicants presented the drugs, packed in zip-locked plastic bags, to the undercover agents. The investigators then intervened in order to ensure that the applicants were caught in flagrante delicto. 10. On the same day the applicants were placed in custody in the detention facility of the Timiş police station, in connection with drug-trafficking charges. 11. In his statement given before the prosecutor on 10 November 2007, the first applicant declared that he and the second applicant had come to Romania for personal reasons, namely to visit relatives. He claimed that they had intended to spend the night at the home of S.R.B., a friend of theirs, and that they had no knowledge of the content of the plastic bags found in the garage. The second applicant refused to give any statements, claiming that he was overwhelmed by the situation. On 5 December 2007 the first applicant specified before the prosecutor that when they had been in the garage, the two individuals who had entered with S.R.B. had taken some plastic bags out of another car that was parked in the garage, and had placed them on a table. A third person who had come in later had taken out some money and asked him and the second applicant to count it, without indicating why. 12. In his statement given before the prosecutor on 10 November 2007 in the presence of his lawyer, S.R.B. admitted that he had agreed to cooperate with the police in order to benefit from the provisions of Law no. 143/2000 granting certain benefits to those who contributed to or facilitated the identification of perpetrators of crime; he had therefore told the police that he had knowledge of a group of people who was involved in the international trafficking of Ecstasy pills. With the permission of the prosecutor, he then contacted the first applicant on the phone; the latter agreed to bring to Romania 5,000 Ecstasy pills for the price of 40,000 EUR. Several other phone calls were made in order to arrange the details of the transaction, which took place on the night of 9 to 10 November. S.R.B. confirmed that the phone calls and his being taken out of custody for the operation had been approved by the prosecutor. 13. On 6 March 2008 the applicants and S.R.B., were charged with drug-related offences. 14. During the proceedings before the first-instance court, namely until the hearing of 4 February 2009 (see paragraph 16 below), the applicants pleaded not guilty, claiming that they had had no knowledge of the plastic bags, which they believed had been placed in the garage by the three persons who had accompanied S.R.B., in order to set them up. Up until the same hearing, S.R.B., legally assisted by Mr Fanu Moca Adrian and his substitute lawyer, Mr S.D., maintained the statements he had given before the investigating authorities. 15. At the hearing of 16 October 2008 the court watched the video recordings made on the night of 9 to 10 November 2007, in the presence of the applicants, S.R.B. and their respective lawyers. The recordings were not contested and their authenticity was not questioned. 16. At the hearing of 4 February 2009, the applicants, then represented by lawyer S.D., changed their plea and claimed that they had been pushed to commit the offence by the investigators, who had acted as agents provocateurs. They invoked in their defence the Court’s case-law in relation to police entrapment, namely Teixeira de Castro v. Portugal (9 June 1998, Reports of Judgments and Decisions 1998-IV) and Ramanauskas v. Lithuania ([GC], no. 74420/01, ECHR 2008). The applicants contended that they had first declined S.R.B.’s proposal, but had finally agreed to deliver the drugs to Romania in order to help S.R.B., who had claimed that he had been facing financial difficulties. The first applicant stated that he had been called by S.R.B. on a daily basis for one month. Each time he had refused S.R.B.’s proposal, and each time the latter had increased his offer, namely from 3 euros per pill initially to the final price of 8 euros per pill. At the same hearing, S.R.B. also changed his statement and alleged that he had been coerced by the police to act as he had. He stated that during the telephone negotiations, the investigating authorities had asked him to increase both the quantity of pills requested and their price so that the first applicant would accept the transaction. He claimed that he had known the applicants as drug consumers, but not as drug dealers. He mentioned that some of the conversations he had had with the first applicant on a mobile phone had been recorded. 17. On 19 March 2009 the Timiş District Court sentenced the applicants to fifteen years’ imprisonment for drug trafficking. In its ruling, the court relied on the video recordings made on the day on which the applicants had been caught red-handed by Timiş police officers, as well as on the statements given by witnesses, including S.R.B. and the undercover agents. The court ruled that the procedure used by the applicants to conceal the drugs showed that they were experienced in international trafficking of narcotic drugs and had sought to make a significant profit, while the operation to catch them red-handed could not be considered as entrapment. The court found that the method used by the applicants to hide the drugs in the cavities of the front passenger seat of the vehicle and the large quantity of drugs that they managed to transport across several borders showed that they were not unfamiliar with drug trafficking. The court held that S.R.B.’s change of testimony could not be taken into account, as there was no other evidence to corroborate it and it contradicted his previous testimonies. 18. The applicants appealed against that judgment. 19. On 18 June 2009 the Timişoara Court of Appeal heard the applicants and S.R.B. They all maintained their previous statements according to which S.R.B., coerced by the police, had incited the applicants to commit the crime. 20. At the hearing, the applicants also submitted a request that the prosecution make available the recordings of the telephone conversations between S.R.B. and the first applicant, or at least a list of those conversations and of the telephones used. The applicants argued that the recordings proved on the one hand that S.R.B. had been coerced to cooperate with the police and on the other hand that there had been a high degree of incitement in the negotiations in order to persuade them to accept the deal. The court allowed the request. On 14 July 2009 the prosecutor’s office attached to the High Court of Cassation and Justice submitted that such recordings did not exist because the court had not been requested to authorise the recording of the phone conversations. Furthermore, according to the indictment, it was S.R.B. who had asked to be allowed to contact the applicants, under the supervision of the prosecutor, in order to take advantage of the lenient conditions prescribed in section 16 of Law no. 143/2000. 21. By its judgment of 21 October 2009, the appellate court upheld the lower court’s judgment. The court stated that the authorities had been legally entitled to bring to the attention of S.R.B. the benefits of cooperating with the police by virtue of section 16 of Law 143/2000, a reduction of his sentence. The applicants’ allegation that they had been entrapped was refuted by the court, which noted that the international case-law they had invoked was not applicable. In the case of Teixeira, the undercover agent and the collaborator had dealt with the applicant in person, while in Ramanauskas the applicant had been contacted by the agent claiming to be an acquaintance of the collaborator, whereas in the present case the applicants had never been contacted by the undercover agents, since S.R.B. had taken the initiative to ask to be allowed to make contact with the applicants in order to benefit from section 16 of Law no. 143/2000. Furthermore, in the present case the applicants had freely chosen to travel to Romania with the drugs. Nothing had prevented them from refusing S.R.B.’s proposal. 22. The applicants further appealed against that judgment. They maintained before the High Court of Cassation and Justice that they had been entrapped, having been incited to sell drugs by S.R.B. He in turn had been forced to incite them to do so by the investigators, who had promised him a reduction in his sentence. The applicants also denounced the use of the undercover officer N.A., who had sought, through S.R.B., to purchase the drugs. 23. By a judgment of 28 January 2010, the High Court of Cassation and Justice, taking into account as a mitigating factor the applicants’ lack of a previous criminal record, partly allowed the appeal and reduced their sentences to seven years’ imprisonment. The High Court upheld the lower courts’ reasoning in dismissing the entrapment pleas. It held that S.R.B., interested in the reduction of his sentence, had collaborated with the police and contacted the applicants in order to buy drugs; however, the applicants had had the opportunity to refuse the transaction proposed by him. Therefore, the court considered that the applicants’ pleas of entrapment were unfounded. B. Conditions of detention 24. As from 10 November 2007, the applicants were remanded in custody in the Timiş police station detention facility. According to the Government, the applicants were placed in separate cells measuring 12 square metres, which they shared with five other inmates. On 11 March 2008 the applicants were transferred to Timişoara Prison. The Government submitted that the cells in which the applicants had been placed measured 21 square metres, and were shared by a total of nine inmates. On 7 December 2009 the applicants were transferred to Rahova Prison, where they were placed in cells measuring 19.58 square metres with ten beds. On 29 July 2010 the applicants were transferred to Giurgiu Prison, where they remained until 28 July 2011 (the first applicant) and 17 August 2011 (the second applicant), when they were transferred to the Giurgiu Police Inspectorate in order to be transferred to serve the remainder of their sentence in Germany. The Government pointed out that the applicants had had access to clean sanitary facilities as well as to hot and cold water, in accordance with a specific schedule.	1
test	001-165372	ENG	RUS	COMMITTEE	2,016	CASE OF SHAMRAYEV AND OTHERS v. RUSSIA	4	Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)	Branko Lubarda;Dmitry Dedov;Helena Jäderblom	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. They also argued that they did not have an effective domestic remedy to complain about the poor detention conditions.	1
test	001-161004	ENG	RUS	CHAMBER	2,016	CASE OF ANDREY LAVROV v. RUSSIA	3	Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra	6. The applicant was born in 1967 and lives in Chelyabinsk. 7. In 2012 the applicant, while serving a prison sentence, was diagnosed with lymphoma. He was admitted to prison hospital no. 3 of the Chelyabinsk Region and underwent two courses of chemotherapy. 8. In December 2012 a court authorised the applicant’s early release on health grounds. He was then monitored by an oncologist in a civil hospital, having continued with chemotherapy. The Government submitted that in May 2013 the applicant had undergone an in-depth examination in the oncology department of the Chelyabinsk regional hospital, where he was diagnosed with lymphoproliferative disorder affecting the cervical, axillary, mediastinal and retroperitoneal lymph nodes. The applicant did not complete the medical examinations or treatment, including chemotherapy. He was arrested on 10 September 2013. 9. By judgments of 30 September 2013, 22 November 2013, and 16 December 2013 the applicant was convicted of fraud, robbery and theft respectively. He was sent to serve his sentence in detention facility no. 3. On 3 March 2014 he was transferred to the prison tuberculosis hospital. 10. On 13 March 2014 a medical panel, comprising the deputy head of the prison tuberculosis hospital and doctors from the same hospital, examined the applicant and diagnosed him with progressive non-Hodgkin lymphoma in acute III B stage, with lesions of the cervical, axillary and abdominal lymph nodes. The panel concluded that the applicant was eligible for early release as he suffered from malignant formations of lymphatic and haematogenous tissues, a disease included in the List of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation of 6 February 2004 (hereinafter “the List”). 11. On 10 April 2014, with reference to the conclusions of the medical panel, the applicant made an application for early release. On 26 May 2014 the Metallurgicheskiy District Court of Chelyabinsk dismissed the application. Having accepted that the applicant’s illness was included in the List, and describing his condition as “stable [but] serious”, the court, nevertheless, found that the drugs necessary for his treatment were available in the prison tuberculosis hospital, and that the applicant was undergoing the necessary medical procedures. The court further pointed out that it was not clear who would take care of the applicant in the event of his release from prison. The applicant did not appeal against the decision. 12. On 30 June 2014 the applicant’s sister gave a written undertaking to take care of the applicant should he be released. 13. According to a certificate issued by the prison tuberculosis hospital at the request of the applicant’s lawyer, the drugs necessary for the applicant’s chemotherapy were unavailable at the hospital. 14. On 1 July 2014 the medical panel from the prison tuberculosis hospital again examined the applicant. The diagnosis was that the applicant had progressive non-Hodgkin lymphoma in acute IV B stage with lesions of the abdominal lymph nodes. It was once again noted that the applicant was eligible for release on health grounds. 15. The applicant made another application for release at the end of July 2014. He submitted that his disease had progressed to its final stage and that he had relatives who could take care of him. 16. On 12 September 2014 the Metallurgicheskiy District Court held a hearing. B., a doctor from the prison tuberculosis hospital, testified that the applicant needed chemotherapy and radiation therapy, but was unable to receive such treatment in detention since the necessary equipment was unavailable at the hospital. On the same date the District Court dismissed the application for release once again, noting that the applicant had a tendency to reoffend and concluding that he was receiving adequate medical care in detention. 17. The applicant appealed. 18. In October 2014 the applicant asked the Court to apply Rule 39 of the Rules of Court and to authorise his immediate release from detention as an interim measure. The applicant claimed that he was not receiving the necessary medical assistance and treatment in detention, despite his suffering from a life-threatening and rapidly progressing illness. He relied on a certificate from the prison hospital confirming the absence of drugs for his chemotherapy (see paragraph 13 above). 19. On 16 October 2014 the Court decided to indicate to the Russian Government, under Rule 39, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts, including an oncologist, independent from the prison system with a view to determining: (1) whether the treatment he was receiving in detention was adequate for his condition; (2) whether his current state of health was compatible with detention in the conditions of a correctional colony or prison hospital; and (3) whether his current condition required his placement in a specialised hospital or release. The Russian Government were also asked to ensure the applicant’s immediate transfer to a specialised hospital if the medical experts concluded that the applicant required placement in such a hospital. 20. On 7 November 2014 the Government responded to the Court’s letter of 17 October 2014, submitting the following documents: - a handwritten copy of the applicant’s medical history drawn up during his detention. The history included a form for consent to treatment, signed by the applicant. It also contained a detailed schedule showing the daily intake of drugs by the applicant. As appears from that document, he received basic analgesic and anti-inflammatory drugs, antihistamines, sleeping pills, antidepressants, antiemetics and neuroleptics. - certificates issued by the acting head of the prison tuberculosis hospital, indicating that the applicant had not been provided with chemotherapy for his lymphoma as he had not consented to that treatment when it had been offered to him, in March and June 2014. According to the acting head of the hospital, the applicant had refused to make a written statement to that effect. The certificate also indicated that an oncologist had examined the applicant four times, once in March and September 2014 and twice in October 2014. At the end of October 2014 the applicant’s condition was considered to be serious: he was suffering severe pain and increasing asthenia, had coughed blood, and his lymph nodes continued to grow. In another certificate, the acting head of the hospital stressed that the applicant was suffering from a life-threatening oncological disease, particularly taking into account the advanced stage of his illness. In addition, in a separate certificate, the acting head of the hospital noted that the prison tuberculosis hospital where the applicant was detained employed an oncologist and had the necessary medicines for the applicant’s treatment. - copies of the applicant’s complaints to various Russian officials, including the Chelyabinsk regional ombudsman, the Prosecutor General’s office, the regional department for the execution of sentences and the acting head of the prison tuberculosis hospital, about the poor quality of his medical care in detention. The complaints also contained a request for a medical examination and for his early release on health grounds. 21. The Government also answered the three questions which, in its letter of 17 October 2014, the Court had asked them to refer to independent medical experts. In particular, in their answer to the first question concerning the adequacy of the applicant’s treatment, the Government stressed that the applicant had regularly undergone in-patient treatment and examinations in relation to his oncological illness. They noted that the applicant’s condition was considered to be moderately serious and stressed that in March and June 2014 he had failed to consent to the cancer treatment. They further directed the Court to the documents enclosed with their reply (see paragraph 20 above). 22. In their response to the second question about the compatibility of the applicant’s state of health with the conditions of the correctional colony and prison hospital, the Government emphasised that the applicant’s hospital employed the necessary specialists, and had the necessary equipment and drugs to treat him. They further noted that the applicant was in pain and was weak, that he occasionally coughed blood and that his lymph nodes continued to grow. The Government continued by indicating that he would be provided with chemotherapy as soon as the general blood test results allowed and the applicant consented. 23. In replying to the third question as to whether the applicant needed to be transferred to a specialised hospital or be released, the Government observed that the applicant’s oncological illness was incurable and could lead to his death. They relied on the two reports issued by the doctors from the prison tuberculosis hospital on 13 March and 1 July 2014, according to which the applicant was suffering from a condition included in the list of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation. However, the Russian courts had refused to release the applicant on health grounds. Another examination of the applicant by the hospital medical panel had been scheduled for November 2014. 24. The applicant informed the Court that on 28 November 2014, acting upon his appeal, the Chelyabinsk Regional Court had quashed the decision of 12 September 2014 and ordered his release. With reference to B.’s testimony, the Regional Court held that the District Court’s findings as to the adequacy of the treatment received by the applicant in the hospital were not in accordance with the established facts. It also pointed to the District Court’s failure to comment on the undertaking by the applicant’s sister to take care of the applicant after his release. 25. On an unspecified date after 28 November 2014 the applicant was released.	1
test	001-181841	ENG	RUS	COMMITTEE	2,018	CASE OF NICHEPORUK AND OTHERS v. RUSSIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)	Dmitry Dedov;Luis López Guerra	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention, which were incompatible with their disabilities. In application no. 35782/12 the applicant also raised other complaints under the Convention, including under Article 13 of the Convention that he did not have an effective remedy to complain about the poor conditions of his detention.	1
test	001-160217	ENG	MKD	CHAMBER	2,016	CASE OF NEŠKOSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"	3	No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)	Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano	5. The applicant was born in 1964 and lives in Skopje. 6. As established in the criminal proceedings described below (see paragraphs 8-18 below), on 6 June 2011 at about 12.20 a.m., I.S., a member of the Special Police Forces Unit (Единица за специјални задачи) of the Ministry of the Interior (“the Ministry”), killed M.N. at the central square in Skopje during a public celebration of the results of the parliamentary elections that coincided with a local cultural event. The killing occurred after M.N. attempted to climb onto a podium in order to approach certain high-ranking politicians. After I.S. warned him to desist, M.N. ran away. I.S. followed him and hit M.N. on the back of his neck. As a result, M.N. fell over. I.S. continued punching and kicking M.N., despite M.N. shouting for I.S. to stop beating him. As established in a post-mortem report of 6 June 2011 drawn up by the Forensic Institute (Институт за Судска Медицина), M.N. sustained numerous severe bodily injuries. According to the report, the cause of death was a brain haemorrhage. M.N. died at 12.30 a.m. The courts established (contrary to I.S.’s testimony) that at the relevant time I.S. had not been on duty, but had attended the ceremony in a private capacity. 7. According to the applicant, after Ministry officials had issued a number of conflicting statements regarding M.N.’s death, hundreds of people gathered at the main square during the night of 6 June 2011 in order to protest. After the Ministry’s spokesperson announced on 7 June 2011 that a police officer was suspected of having caused M.N.’s death, thousands of people took to the streets of Skopje to protest. Those protests lasted for forty days and turned into a movement called “Stop Police Brutality” (Стоп на полициската бруталност). On 14 June 2011 over six thousand people signed a petition containing several demands, namely that the relevant authorities establish the truth regarding M.N.’s death and punish those responsible, and that they introduce legislative, structural and other measures concerning the operation, employment and accountability of the Ministry’s officials. 8. On 8 June 2011 the public prosecutor asked an investigating judge to open an investigation in respect of I.S. related to the death of M.N. 9. In the course of this investigation, A.N. (M.N.’s brother) requested the Professional Standards Inspectorate (“the PSI”) of the Ministry of the Interior to investigate the circumstances surrounding M.N.’s death and the actions of the police officers concerned alleging that unidentified police officers had committed the crimes of “assisting an offender after the commission of a crime” and “failure to report an offence or perpetrator”, punishable under Articles 364 and 365 of the Criminal Code. 10. On 28 June 2011 the PSI replied as follows: “... a police officer I.S., member of the Special Unit within the Ministry of the Interior, was on duty on 5 June 2011 between 8 a.m. and midnight on the basis of an operative plan prepared before. After the activities in the Special Unit had ended, at 12.10 a.m. [I.S.] left the Unit and went, in plain clothes and in a private car, to the centre of the city, where (a cultural event) and post-election celebrations were taking place. At around 4 a.m. there was a verbal fight at the square ‘Macedonia’ between the suspect I.S. and M.N. After that, M.N. started to run ... after M.N. had fallen to the ground, I.S. punched and kicked him in the head and body. M.N. lost consciousness; I.S. pulled him up and placed him in a sitting position on a nearby bench. He took a bottle of water ... and poured it over [M.N.’s] head in order to resuscitate him. After that, I.S., together with other persons, pulled [M.N.] up and placed him in the greenery of the car park ... where again they were helping him, tried to revive him and in the meantime they informed the emergency unit. Soon after two uniformed police officers, who were employed to secure the celebration, arrived on the scene. I.S. left for an unknown destination ... (Police) inspectors from the police crime department (Одделение за крвни, сексуални и сообраќајни деликти) were informed about the event. After they had arrived on the scene, they informed a public prosecutor and an investigating judge of the incident. They (both) did not arrive on the scene, but delegated to the police investigation department (Одделение за истрага) responsibility for conducting an on-site inspection. The police investigation department conducted the on-site inspection for which report was drawn up and photos were taken. On the basis of an order by the investigating judge M.N.’s corpse was handed over to the Forensic Institute in order to establish the reasons for the death. After the (post mortem) examination had confirmed that M.N.’s death had been violent, the police crime department took measures to establish the facts, including interviewing eyewitnesses. At around 2.30 p.m. on 7 June 2011 the suspect I.S. handed himself in to a police station (in Skopje). After an interview had been held, the investigating judge ordered that an identity parade with eyewitnesses be organised in the presence of the public prosecutor. The police crime department submitted a criminal complaint of murder against I.S... The investigating judge remanded him in custody ... On 9 June 2011 the Ministry established the identity of one of the persons who together with I.S. had moved M.N.’s corpse from the bench into the greenery of the car park for which a Special report was communicated to the public prosecutor. ... On 15 June 2011 the Minister of the Interior terminated I.S.’s employment.” 11. In a letter to A.N. of 15 September 2011 the Ombudsman noted that he had asked the relevant authorities to undertake immediate measures to establish the relevant facts and stated that the incident “was a result and a consequence of irresponsible and unprofessional conduct on the part of the police, which [the Ombudsman] had repeatedly pointed out.” 12. On 3 October 2011 the public prosecutor brought an indictment against I.S., charging him with murder. In the indictment, the prosecutor requested that the trial judge examine I.S., the applicant, twenty-seven witnesses and four experts, and admit considerable material evidence. 13. The trial against I.S. commenced in the Skopje Court of First Instance (“the trial court”). The trial court heard over thirty witnesses, and examined evidence and records of the identity parade; the evidence produced by medical experts; other expert evidence; photographs; and other documentary evidence. 14. Z.J. and P.K., the uniformed police officers who had arrived at the scene after M.N.’s death, stated, in particular, that before the incident, I.S. had introduced himself as a member of the Prime Minister’s security service and had told them to keep an eye on M.N., who had attempted to climb onto the podium. Soon afterwards, they had seen I.S. chasing M.N. and had heard people calling for police assistance. When they had arrived at the scene, they had seen M.N. lying on a bench unconscious. I.S. and others had been trying to resuscitate him with water. I.S. had told them that M.N. had fallen ill (му се слошило) and had asked that they call the emergency services. Soon afterwards, a third person, whom they did not know, had arrived. Z.J. had ordered that M.N.’s corpse be removed in order to enable the ambulance to access the scene more easily. I.S. and a person in plain clothes had pulled M.N. up from the bench and had placed him among nearby greenery. Then I.S. had left the scene and the person in plain clothes had remained until the ambulance came. Z.J. accepted that he should have identified that person. He had not realized that M.N. had been beaten, as he had not noticed any visible injuries on him. 15. V.B., employed in a State-owned public utility (electricity) company, who witnessed the incident, confirmed, in particular, that I.S. had pursued M.N. and had hit him in the back, as a result of which M.N. had fallen to the ground, hitting the back of his head upon impact. I.S. had punched M.N. twice in the stomach; M.N. had lost consciousness. I.S. had pulled M.N. up, placed him on a bench and tried to resuscitate him. After the police officers had arrived, V.B. and I.S. had pulled M.N. up from the bench and moved him so that the ambulance would have easier access to the scene. He had stayed next to M.N. until the ambulance came. He said that there had been no visible injuries on M.N. 16. That M.N. had no visible injuries immediately after the incident was confirmed by L.K. and V.C. (the doctor and nurse respectively), who arrived at the scene in the ambulance soon after the incident. 17. On 16 January 2012 the trial court delivered a judgment (of forty-three pages) in which it found I.S. guilty of murder and sentenced him to fourteen years’ imprisonment. The court further advised the applicant (who had joined the prosecution as the legal representative of the late M.N.) to pursue a compensation claim by means of a separate civil action for damages. 18. On 9 July 2012, the Skopje Court of Appeal upheld the facts established by the lower court and I.S.’s conviction and sentence. On 7 May 2013 the Supreme Court dismissed a request by I.S. for an extraordinary review of the final judgment (барање за вонредно преиспитување на правосилна пресуда) and upheld the lower courts’ judgments. 19. On 12 October 2011, while the criminal investigation concerning I.S. was underway, the applicant submitted a criminal complaint against Z.J., P.K., V.B. and an unidentified police officer. She alleged that Z.J. and P.K. had failed to determine the identity of I.S. and – instead of apprehending him – had allowed him to leave the scene. As regards V.B., the applicant alleged that he had known that I.S. had murdered her son, but that he had attempted to cover up the crime by moving M.N.’s corpse to the nearby greenery and not reporting I.S. as the perpetrator of the offence. The applicant alleged that the unidentified police officer (who was later identified as D.I.) had wrongly told the public prosecutor and an investigating judge that M.N. had died as the result of a drug overdose. As a consequence, neither the prosecutor nor the investigating judge had made an on-site inspection after the incident. The applicant alleged an abuse of office in relation to the alleged crime of “assisting a perpetrator after the commission of a crime” (Article 365 of the Criminal Code). 20. On 29 December 2011 the public prosecutor rejected the applicant’s complaint, finding no grounds to suggest that Z.J., P.K., V.B. and D.I. had committed the alleged crimes. The prosecutor found that, on the basis of all available evidence (including the available material in the case file against I.S.), Z.J. and P.K. had not been present when I.S. had hit M.N. They had arrived at the scene later and had not determined the identity of I.S., who had told them that M.N. was feeling sick. They had called the emergency services and had notified the relevant police station. V.B. and I.S. had moved M.N. to the nearby greenery in order to enable the ambulance to access the scene more easily. I.S. had left the scene, and Z.J., P.K. and V.B. had stayed at the scene until the ambulance arrived. A report (no. 025084 of 6 June 2011) by the medical staff who had responded to the emergency call noted that the staff had established M.N.’s death and had noticed no visible signs of violence on him. 21. The prosecutor found that the failure of Z.J. and P.K. to determine the identity of I.S. was an unintentional error caused by the urgency of the need to save the life of M.N. They had arrived at the scene after the incident and they had not known that a crime had been committed. As regards V.B., the prosecutor found that although he had witnessed the incident, he had not been aware that a criminal offence had been committed. Consequently, it could not be established that he had intentionally assisted I.S. after the latter had committed the murder. The removal of M.N. from the scene of the crime and his being placed amongst the nearby greenery had been aimed at facilitating the access of the ambulance. The police officers had called the emergency services and D.I. had informed the police control centre, as suggested by the medical staff, that the cause of death could not be established (незнаена смрт), but that it was possible that M.N. had been a drug addict. Given the circumstances, the prosecutor established that there was no evidence that the accused officers had taken any actions with the intention of obstructing the investigation or preventing the identity of the perpetrator from being discovered, or that they had concealed any evidence. On the contrary, they had taken all necessary measures to facilitate the determination of the perpetrator’s identity. The incident had been reported to the local police station and the police control centre. The inspection unit of the Ministry of the Interior (увидна група) had arrived at the scene. 22. On 12 March 2012 the higher public prosecutor’s office found that this decision had been lawful and correct and based on all available material. 23. In the meantime, on 18 January 2012, the applicant took over the prosecution as a subsidiary prosecutor and lodged an indictment against Z.J., P.K., V.B. and D.I. before the trial court on the same counts (abuse of office, assisting a perpetrator after the commission of a crime and failure to report a crime or the offender). 24. At a hearing held in private on 10 May 2012, a three-judge panel of the trial court accepted a recommendation of 20 April 2012 by the president of an adjudicating panel of the trial court that the applicant’s subsidiary prosecution should not be allowed to go ahead. Accordingly, the three-judge panel rejected the applicant’s complaint, finding no grounds to depart from the public prosecutor’s decision of 29 December 2011. 25. The applicant appealed against that decision, arguing that no procedural steps or hearing had taken place before the panel. On 10 September 2012 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision. The applicant was served with this decision on 20 March 2013. 26. On 15 June 2015 the applicant submitted in evidence a CD-ROM with audio material and a transcript (in English) of taped telephone conversations which involved, allegedly, high-ranking public officials. The material concerned conversations regarding the possible direct perpetrator, which apparently took place soon after the incident. As stated by the applicant, on 5 May 2015 the audio material was revealed in public by the political opposition in the respondent State and was also made available on-line.	0
test	001-170839	ENG	MKD	CHAMBER	2,017	CASE OF SELMANI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"	3	Preliminary objection joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Public hearing);Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Non-pecuniary damage - award (Article 41 - Just satisfaction)	Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano	5. The applicants were accredited journalists who were authorised to report from the national Parliament. On 24 December 2012 parliamentary proceedings were held on the Budget Act for 2013. The applicants, together with other journalists, were reporting from the Parliament gallery, which was situated above the plenary hall (“the chamber”) where members of parliament (MPs) were seated. The debate on the approval of the State budget attracted considerable public and media attention, owing to the conflict between opposition and ruling party MPs as to whether or not statutory procedure had been complied with. During the proceedings, opposition MPs approached the President of Parliament (“the Speaker”) and started creating noise by, inter alia, slapping his table. Soon thereafter, Parliament security officers entered the chamber. They pulled the Speaker out of the chamber and started forcibly removing the opposition MPs. At the same time, other security officers (four officers, according to the Government) entered the gallery and started removing the applicants and other journalists. The Government stated that the security officers had informed those in the gallery that they had to leave for security reasons. The applicants denied that the reasons for their removal had been explained to them. Whereas some journalists complied with those orders, the applicants refused to leave, as the situation in the chamber was escalating and they felt that the public had the right to be kept informed as to what was going on. However, the security officers forcibly removed the applicants from the gallery. 6. The Government submitted that according to official records (a copy of which was not provided) on that occasion the first applicant had forcibly removed the identification badge from one security officer and had injured him in his chest and leg. The applicants denied that they had injured any officer and submitted that no official document had been drawn up regarding the identity of the officer in question, the nature and severity of the injury or the alleged assailant. The Government further alleged that the applicants had been allowed to follow the events in the parliamentary chamber via a live broadcast in the Parliament’s press room and the adjacent hall. The applicants contested that there had been live stream while the ejection of the opposition MPs had been ongoing, given that the cameras had allegedly been turned against the walls. 7. At the same time, two opposing groups congregated in front of the Parliament building. According to the Government, several people were injured in those protests. No further information was provided. 8. In a letter of 26 December 2012 addressed to the media, the Speaker stated, inter alia: “Having regard to the announcements (најави) that the opposition would not allow the Budget Act to be adopted and that there would be protests and incidents, I requested, under section 43 of the Parliament Act, that the Parliament security service ensure proper work at the session. I would like to underline that the Parliament security service arranges and implements necessary measures to be taken ... having regard to the fact that the gallery is part of the plenary hall, the Parliament security service considered (донело оценка) that the gallery should be vacated in order to avoid an incident of a larger scale. As Speaker, I regret that such a measure regarding the journalists was taken ...” 9. On 26 December 2012 the Association of Journalists (represented by its president, the first applicant) sent a letter to the DCPS claiming that the forcible removal of the journalists had violated their rights under Article 10 of the Convention. In the letter, the journalists pushed for proceedings to be brought against those responsible for authorising and carrying out their removal from the gallery. 10. In a letter dated 6 January 2013, the DCPS informed the applicants that a group of MPs had surrounded the Speaker during the incident of 24 December 2012, and had attempted to physically confront him. They had also insulted and threatened him, whilst at the same time damaging technical equipment. Owing to the security risk, the Speaker had been removed to a place of safety. However, the disturbance in the chamber had continued. In the circumstances, the Speaker had requested, under section 43 of the Parliament Act (“the Act”, see paragraph 17 below), that the Parliament’s security service restore order so that the discussions could continue. Journalists had been asked to leave the gallery until order was restored. The letter further stated: “An MP who had been involved in the disturbance in the chamber and other people who could have disturbed the journalists in the performance of their tasks were in the gallery. In the meantime, there was information that the protests [in front of the Parliament building] could escalate and that police cordons could be violently broken. All that threatened the security in the Parliament. For these reasons, the journalists were asked to leave the gallery and to continue following the events from the press room, at a designated area. Most of the journalists understood the seriousness of the situation and complied with that request. A smaller group of people in the gallery, including [the applicants], confronted the security officers, disregarded their orders and resisted actively and passively. As a result, a [security] officer sustained an injury to his leg.” 11. The DCPS concluded that the law enforcement powers employed had not gone beyond the limit of what was acceptable, and that excessive force had not been used. 12. On 14 June 2013 the President of the State set up an ad hoc commission of inquiry regarding the events in the national Parliament of 24 December 2012. It was composed of five national members, two of whom were MPs. It further included two non-national observers appointed by the European Union. On 26 August 2013 the commission drew up a report, the relevant part of which reads as follows: ... 5. The absence of appropriate guidelines on dealing with such situations, including the absence of a strategy to deal with media in crisis, led to a situation in which journalists were removed from the Parliament gallery, which violated their rights to freedom of public information (слобода на јавно информирање) and publicity in the work of Parliament. Parliament should be particularly attentive and open with respect to the freedom of the press to report and to apply the best European practices in this matter ...” 13. The applicants lodged a constitutional complaint with the Constitutional Court in which they alleged a violation of their rights under Article 10 of the Convention. They submitted that the parliamentary debate and the related events regarding the approval of the State budget had been of particular public interest. The intervention of the Parliament security officers and the removal of the applicants from the gallery had been neither “lawful” nor “necessary in a democratic society”. With regard to the lawfulness of the measures taken, the applicants argued that section 43 of the Act could not be interpreted as allowing the forcible removal of journalists from the gallery by Parliament security officers. In any event, that provision had not been sufficiently foreseeable. As to the necessity of the measures, they argued that at the critical time, they had been in the gallery and had had no contact with the Speaker or MPs. Accordingly, they had not and could not have contributed to the disturbance in the chamber. Furthermore, they contested the DCPS’s arguments that there had been unauthorised people in the gallery and that the protests in front of the Parliament building had justified their forcible removal (see paragraph 10 above). They urged the court to hold a public hearing (јавна расправа) in accordance with Article 55 of the Rules of the Constitutional Court (see paragraph 24 below) and to find a violation of Article 16 of the Constitution (see paragraph 16 below) and Article 10 of the Convention. 14. At a hearing held on 16 April 2014 in the absence of the parties, the Constitutional Court dismissed the applicants’ complaint. The relevant parts of the decision read as follows: “On the basis of evidence submitted with the constitutional complaint and the reply of the Parliament of the Republic of Macedonia, the court has established the following facts: ... There was an increased interest on the part of the public and the media in (the parliamentary proceedings) given the importance of the State budget and the fact that before the proceedings, namely in November and December, there had been long, intense and sometimes tense discussions between opposition and ruling party MPs regarding the draft Budget ... On 24 December 2012 ... before the plenary debate of Parliament started, there was a disturbance by a group of MPs who started destroying technical equipment in the chamber. They prevented access to the podium, surrounded the Speaker, preventing him from carrying out his duties, whilst at the same time insulting and threatening him. Due to the security risk, the Speaker was taken out of the chamber by security personnel. The disturbance in the chamber continued. Under section 43 of the Parliament Act, the Speaker ordered police officers responsible for parliamentary security to restore order in the chamber and enable the debate to start in an orderly manner. The security personnel considered it necessary to vacate the gallery, in order to ensure the safety of those in the gallery and in the chamber. All those in the gallery, including [the applicants], were asked to leave for security reasons and to follow the events from the press centre. Most of the journalists complied with that instruction. A smaller group of people, including [the applicants], confronted the security officers, disregarded their orders, and resisted actively and passively. As a result, a [security] officer sustained an injury to his leg. [The applicants] and other journalists, after having been removed from the gallery, remained in the Parliament building and were able to follow the live broadcast of the debate from other premises [the press centre, in a hall adjacent to the gallery]. At the same time, in front of the Parliament building, two opposing groups of people gathered. Several people were injured. The plenary debate of the Parliament of 24 December 2012 was public and it was entirely broadcast live on national television and streamed on the Parliament website. When the debate was over, the video material was made available to the public on that website ... ... The above provisions of the Parliament Act [see paragraph 17 below] and the Rules of Parliament [see paragraph 23 below] ... provide that the Speaker is responsible for maintaining order in the Parliament. In the event of disorder, he or she can take several measures (warning, denial of the right to speak, exclusion of MPs). Provisions regarding order during parliamentary proceedings concern all those participating in the session. The court considers that the removal of [the applicants] from the gallery amounted to an interference with their freedom to carry out their professional duties and to inform the public about events that were of considerable interest for the citizens of the Republic of Macedonia – the events in Parliament regarding the approval of the State budget for 2013, in which the public had significant interest in following and being informed about. ... The legal ground for the impugned measure was section 43 of the Parliament Act, which specified who was responsible for keeping order in the Parliament building – a special security unit, and which authorised the Speaker to decide and take measures in the event of disturbance of that order by MPs and other external persons participating in the work of Parliament. As to the necessity of the measure ... it has to be examined in the light of the the events that took place inside the Parliament building, namely in the chamber, as well as the disorder outside the Parliament building. The strained atmosphere in the chamber, which prevented a regular and normal start of the proceedings, has to be taken into account. In this connection it is to be noted ... that a larger group of MPs assaulted the Speaker, who was immediately removed from the chamber by security officers. There were a number of incidents, including damage to furniture, which culminated in objects being thrown in the chamber – some in the direction of the gallery. In such circumstances, the Parliament security service considered that in order to protect the journalists in the gallery, they should be moved to a safer place where they would not be in danger. Such an assessment should not be viewed as conflicting with the journalists’ right to attend parliamentary proceedings and report on events that they witnessed. In fact, the journalists – most of them on the same day – submitted and published their reports in the evening editions of their newspapers, which implies that there was no violation of their freedom of expression. The actions of the security officers constitute standard practice for these and similar situations in case of endangerment, i.e. protection of media representatives while reporting from places of crises, demonstrations and other potentially dangerous events ... The fact that the journalists had been present within and outside the Parliament building since the morning of 24 December 2012, and were reporting on the events as they occurred, confirms that, notwithstanding the indications and expectations that discussion about the approval of the Budget would be tense, they were allowed access to the Parliament building and the gallery in order to carry out their function and inform the public about the debate. Accordingly, there was no preconceived idea to prevent the journalists from reporting on the debate. After they left the gallery, [the applicants] and other media representatives were allowed to remain in the parliamentary press centre ... from where they could have followed the live broadcast on the Parliament website and on the dedicated TV channel. ... The physical removal of journalists from the gallery required by the concrete escalation of chaos and disorder aimed to protect them and ensure order in the chamber, and not to restrict their freedom of expression or to prevent them from carrying out their function, i.e. to inform the public.” 15. In a dissenting opinion, Judge N.G.D. of the Constitutional Court stated, inter alia, the following: “... My dissenting opinion mainly concerns the inability objectively to decide the case ... I consider that the written information, facts and evidence available to the court were insufficient ... The decision [of the Constitutional Court] contains contradictory reasons given that it ... establishes that the removal of journalists amounted to an interference with their right to carry out their function and to inform the public about an event of indisputable public interest, but it finds that such an intervention was justified ... without there being a solid factual basis in support of that finding. ... I think that it is of crucial importance that the Constitutional Court clarifies and explains the reasonableness of the assessment of the situation and the reason for which the journalists were removed from the gallery ... In order to establish the facts and assess the need for [their] removal ... it was necessary to determine the reason which prompted the security officers to remove them, despite the undisputed fact that all the incidents and disorder in the Parliament chamber were physically and clearly isolated and distant from [the gallery]. It is absurd that [such a removal] was carried out ‘for the safety of journalists’, when it is clear that they were in their seats and were completely passive; they did not participate in the events at all, but only observed ... It is a fact that the journalists did not contribute to the conflictual situation in any respect [not disputed by Parliament]; they did not disturb order in the Parliament building; they were in direct contact neither with the Speaker or the MPs, nor with the events outside the Parliament building ... Besides, it is clear that the journalists themselves did not feel threatened; so they did not seek and expect any protection.”	1
test	001-148521	ENG	SWE	ADMISSIBILITY	2,014	ÅBERG v. SWEDEN	4	Inadmissible	Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano	1. The applicant, Mr Lars Åberg, is a Swedish national, who was born in 1947 and lives in Landskrona. He was represented before the Court by Mr O. Lekander, a lawyer practising in Limhamn. 2. The Swedish Government (“the Government”) were represented by their Agents, Ms I. Kalmerborn, Ms H. Kristiansson and Mr. A. Rönquist, Ministry for Foreign Affairs. 3. By decisions of 4 October 2002 and 7 October 2004 the Tax Agency (Skatteverket) reviewed the applicant’s taxation for income received in the years 2000, 2001 and 2002 (i.e. the taxation years 2001, 2002 and 2003) and found that payments made by Swedish county councils and health care districts to a company registered in Gibraltar and 90% owned by the applicant should be considered as salary for work performed as a medical doctor for which he was liable to pay income tax in Sweden. His income was revised upwards by approximately 1.9 million, 2.8 million and 3.7 million Swedish kronor (SEK), respectively, for the three years. Furthermore, as the applicant had failed to account for the amounts in question in his annual tax returns and had thus supplied the Tax Agency with incorrect information, the Agency ordered him to pay tax surcharges (skattetillägg), amounting to 40% of the increased tax liability. 4. Following the applicant’s appeals, the Tax Agency made obligatory reviews of its decisions but did not change them. 5. By judgments of 11 November 2004 and 27 April 2006 the County Administrative Court (länsrätten) in Skåne upheld the Tax Agency’s decisions. 6. It is not clear whether the applicant appealed against the judgment of 11 November 2004, but he did so against the judgment of 27 April 2006 which concerned income received in 2001 and 2002. 7. On 26 February 2008 the Administrative Court of Appeal (kammar-rätten) in Gothenburg agreed with the principal considerations in the Tax Agency’s decision but lowered the amounts in question – following new information obtained by the Agency – to approximately 1.8 million and 1.2 millon SEK for the two years (in total about 330,000 euros (EUR)). 8. By a decision of 3 November 2008 the Supreme Administrative Court (Regeringsrätten) refused leave to appeal. 9. It appears that the Tax Agency and, upon appeal, the administrative courts have made similar tax revisions for income received in 2003 and 2004. 10. Criminal proceedings were initiated against the applicant on 11 February 2008 in regard to the above conduct. 11. By a judgment of 30 September 2008 the Lund District Court (tingsrätt) convicted the applicant of an aggravated tax offence (grovt skattebrott) and sentenced him to two years and six months in prison. The conviction concerned the period 2000-2004, corresponding to all the five years which had been subject to tax revisions, and thus including the three years – 2000-2002 – which are relevant in the present case before the Court. The court found that the applicant had systematically and intentionally given the Tax Agency misleading information as to where he lived and worked. Although he had lived and worked in Sweden during the years in question, he had incorrectly claimed that he had left the country and worked abroad. The total undeclared income amounted to more than 6 million SEK and the evaded income tax came to approximately 2.9 million SEK. In sentencing the applicant, the court took into account that a long time had passed since the offences had been committed. 12. On 28 April 2009 the Court of Appeal (hovrätt) of Skåne and Blekinge upheld the District Court’s judgment. While the appellate court did not find that the time between the commission of the offences and the indictment gave reason to reduce the length of the prison sentence, it found that the considerable tax surcharges imposed on the applicant constituted such a reason. The court did not, however, give any details as to how much the sentence was reduced due to the surcharges. In conclusion, it upheld the sentence passed by the District Court. 13. The Supreme Court (Högsta domstolen) granted leave to appeal with respect to the question whether, pursuant to Article 4 of Protocol No. 7 to the Convention, the imposition of tax surcharges barred the criminal trial or conviction of the applicant. 14. By a decision of 31 March 2010 the Supreme Court found, by a majority of 3 votes to 2, that there was no reason generally to invalidate the Swedish system with double proceedings by virtue of Article 4 of Protocol No. 7 (published in Nytt juridiskt arkiv (NJA) 2010, p. 168). The court considered that, following the judgment in Sergey Zolotukhin v. RussiaIf the later proceedings concerned identical or essentially the same facts as the earlier proceedings, it was a matter of proceedings concerning the same offence. However, the Supreme Court noted that the Strasbourg case-law left some room for several punishments for the same offence that could be decided by separate organs at different times and mentioned by way of example, inter alia, the conviction for a traffic offence and the resultant withdrawal of the offender’s driving licence. The Supreme Court further found that the invalidation of a Swedish system regulated by domestic law with reference to the Convention required that either the Convention itself or the Court’s jurisprudence provided clear support for that conclusion and considered that neither Article 4 of Protocol No. 7 nor the jurisprudence provided such support in the matter at hand. There were no other grounds for finding that Article 4 of Protocol No. 7 prevented the trial or conviction of the applicant because of the fact that tax surcharges had been imposed on him. In these circumstances, there was no reason to grant leave to appeal in regard to the applicant’s conviction and sentence. The Court of Appeal’s judgment was accordingly upheld. 15. The applicant started to serve his prison sentence on 28 April 2011. He was released on probation on 17 January 2013. 16. On 23 October 2013 the Supreme Court, at the applicant’s request, decided to re-open the criminal proceedings in so far as they concerned the applicant’s liability for tax offences in the years 2000-2002 (corresponding to the taxation years 2001-2003) and the sentence fixed by the Court of Appeal. In those respects, the case was referred back to the appellate court for a new examination. Referring to Article 4 of Protocol No. 7 and to its decisions of 11 June and 16 July 2013 (see further paragraphs 26 and 27 below), the Supreme Court noted that the applicant had been convicted by the Court of Appeal after the Sergey Zolotukhin judgment of 10 February 2009 and that the tax surcharges previously imposed on him concerned the same conduct as the criminal indictment. However, the court rejected the petition for a re-opening of the criminal case to the extent that it concerned offences committed in 2003 and 2004 as, in those respects, the conviction had occurred before the Tax Agency’s decisions on surcharges. 17. On 1 July 2014 the Court of Appeal quashed its judgment of 28 April 2009 in so far as it concerned the part that had been re-opened by the Supreme Court (that is, the years 2000-2002) and dismissed the indictment in that respect. The sentence for the remaining tax offences, committed in 2003 and 2004, was fixed at eight months’ imprisonment. 18. The applicant has appealed to the Supreme Court against the sentence fixed by the Court of Appeal. Thus, his appeal does not concern the years relevant in the present case. The appeal is presently pending. 19. On 17 September 2013 the applicant instituted proceedings for damages against the State before the Stockholm District Court. He claimed SEK 347,500 (approximately EUR 38,000) for suffering due to his having been imprisoned following dual proceedings that allegedly violated Article 4 of Protocol No. 7. The claimed amount was calculated in accordance with the practice of the Chancellor of Justice (Justitiekanslern) (see further paragraph 33 below). The compensation proceedings have been adjourned pending the outcome of the re-opened criminal proceedings. 20. The rules on taxes and tax surcharges relevant to the present case were primarily laid down in, as far as income tax was concerned, the Tax Assessment Act (Taxeringslagen, 1990:324) and, with respect to VAT, the Tax Payment Act (Skattebetalningslagen, 1997:483). Both laws have since been replaced by the Tax Procedure Act (Skatteförfarandelagen; 2011:1244). 21. A tax surcharge could – and still can – be imposed on a taxpayer in two situations: if he or she, in a tax return or in any other written statement, has submitted information of relevance to the tax assessment which is found to be incorrect (Chapter 5, section 1 of the Tax Assessment Act, and Chapter 15, section 1 of the Tax Payment Act) or if, following a discretionary assessment, the Tax Agency decides not to rely on the tax return (Chapter 5, section 2, and Chapter 15, section 2, respectively). It is not only express statements that may lead to the imposition of a surcharge; concealment, in whole or in part, of relevant facts may also be regarded as incorrect information. A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the Tax Agency cannot base its tax assessment on it or if he or she has not filed a tax return despite the obligation to do so. In certain circumstances, the tax surcharges may be exempted. 22. A person who intentionally furnishes incorrect information to an authority or fails to file a tax return or other required information, thereby causing a risk that taxes will be withheld from the public treasury or wrongly credited or repaid to him or her, is criminally liable under sections 2-4 of the Tax Offences Act (Skattebrottslagen, 1971:69). The possible sentence ranges from a fine for a tax misdemeanour (skatteförseelse) to imprisonment for a maximum of six years for an aggravated tax offence. Section 5 provides that a person who is not considered to have furnished incorrect information with intent but to have been grossly negligent in doing so (vårdslös skatteuppgift) may be sentenced to a fine or a maximum of one year in prison. The term “incorrect information” in the Tax Offences Act is considered to have the same meaning as in the above provisions on tax surcharges (Government Bill 2010/11:165, p. 1110). 23. In a judgment of 29 November 2000 the Supreme Court considered whether a person could be convicted of a tax offence in criminal proceedings following the imposition of a tax surcharge in tax proceedings (NJA 2000, p. 622). Having noted that, under internal Swedish law, a surcharge is not considered a criminal penalty and does not prevent trial and conviction for a tax offence relating to the same act, the Supreme Court went on to examine the matter under the Convention. It first considered, in the light of the Court’s case-law, that there were weighty arguments for regarding Article 6 as being applicable under its criminal head to proceedings involving a tax surcharge. Even assuming this to be the case, it held, however, that the principle of ne bis in idem, as set forth in Article 4 of Protocol No. 7 to the Convention presupposed that the initial conviction or acquittal had been delivered in accordance with the penal procedure of the State. Therefore the principle did not prevent criminal proceedings from being brought against someone for an act in respect of which a surcharge had already been levied. This view was confirmed in later judgments delivered by the Supreme Court. 24. On 17 September 2009 the Supreme Administrative Court examined the reverse situation, that is, where the question of imposition of tax surcharges arose after a criminal conviction for a tax offence (judgment published in Regeringsrättens årsbok (RÅ) 2009, ref. 94). In assessing whether there was a violation of the prohibition on double punishment under Article 4 of Protocol No. 7 to the Convention, the court referred to the fact that the relevant Swedish provisions aimed at ensuring that the combined sanctions – criminal conviction and imposition of tax surcharges – were in reasonable proportion to the conduct for which the individual had been found liable. It further noted that the Swedish legal system contained the special feature of separate general courts and administrative courts. In the court’s opinion, Article 4 of Protocol No. 7 had to be interpreted in the light of such special features in the national legal systems. While acknowledging that the Court’s recent judgments in Sergey Zolotukhin v. Russia (cited above) and Ruotsalainen v. Finland (no. 13079/03, judgment of 16 June 2009) suggested a change in the Strasbourg case-law, the Supreme Administrative Court noted that they did not relate to the Swedish legal system and concluded that this system, allowing for both a conviction for a tax offence and an imposition of tax surcharges, was in conformity with the Convention. 25. On 31 March 2010, in its decision concerning the present case, the Supreme Court examined the issue anew and again found that there was no reason generally to invalidate the Swedish system with double proceedings by virtue of Article 4 of Protocol No. 7 (see further paragraph 14 above). 26. By a plenary decision of 11 June 2013 (NJA 2013, p. 502) the Supreme Court overturned its previous conclusions. In line with its 2010 decision, the court held that the imposition of tax surcharges and the conviction for a tax offence based on the same information supplied in a tax return are founded on identical factual circumstances and the relevant proceedings thus concern the same offence within the meaning of Article 4 of Protocol No. 7. However, where the court in 2010 had found that the invalidation of the Swedish system required clear support in the Convention itself or in Strasbourg case-law, the court now noted that the judgment of the European Court of Justice in the case of Åkerberg Fransson (26 February 2013, case no. C-617/10) already prohibited double proceedings and punishments with respect to VAT. As the Swedish system had thereby been partially invalidated, the legal and practical consequences of further changes were not so radical as to require the intervention of the legislature. The court also took into account that no legislative amendments had been made despite the developments in Strasbourg case-law since 2009 and that it would be inexpedient and difficult to apply different rules on similar contraventions within a system meant to be coherent. Consequently, the court held that there was sufficient support for concluding that the Swedish system of tax surcharges and tax offences was incompatible with Article 4 of Protocol No. 7. This conclusion applied not only to VAT, but also to income tax, employer’s contributions and similar payments. The Supreme Court further found that the protection under Swedish law against double proceedings and punishments was valid also in cases where the state exacted personal liability on an individual for tax surcharges imposed on a legal person. Having regard to the strong and systematic connection in Swedish law between the principles of res judicata and lis pendens, the court also held, although the Court’s jurisprudence was unclear on this point, that ongoing, not finalised proceedings on tax surcharges precluded a criminal indictment concerning the same factual circumstances. The procedural hindrance against an indictment materialised when the Tax Agency took its decision to impose surcharges. However, whereas the imposition of tax surcharges and the conviction for a tax offence based on the same factual circumstances concerned the same offence and were thus prohibited, the situation was different when the criminal conviction concerned a bookkeeping offence. According to the Supreme Court, which had regard to the case-law of the Court, the concrete factual circumstances forming the basis of a bookkeeping offence could normally not be considered inextricably linked to the factual circumstances leading to the imposition of tax surcharges. In addition to the breach of bookkeeping obligations under the Accountancy Act, the imposition of a tax surcharge involved a further factual element, namely the submission of incorrect information in a tax return. In the case at hand, which involved the imposition of tax surcharges against an individual in November 2009 and the criminal indictment of him in June 2010 for, inter alia, aggravated tax offences and an aggravated bookkeeping offence, the Supreme Court quashed the appealed judgment of the Court of Appeal in so far as it concerned the tax offence relating to his personal income tax and dismissed the indictment in that respect. However, nothing prevented the examination of the bookkeeping offence or the tax offences concerning VAT and employer’s contributions. In the latter respect, the conclusion was due to the tax surcharges relating to VAT and employer’s contributions having been imposed on the appellant’s limited liability company and not on him personally. 27. In a further decision, taken on 16 July 2013 (NJA 2013, p. 746), the Supreme Court examined the question whether a former defendant could be granted a re-opening of criminal proceedings (resning) under Chapter 58, section 2 of the Code of Judicial Procedure (Rättegångsbalken) if he or she had been convicted of an offence under the Tax Offences Act in a manner incompatible with Article 4 of Protocol No. 7, as interpreted by the decision of 11 June 2013. The court concluded that, on the basis of the Convention, in particular Article 13, a Swedish court may decide, in certain situations, that a case is to be re-opened notwithstanding the special conditions specified in Chapter 58, section 2. The court also took the position that the incompatibility of Swedish legislation regarding sanctions for tax-related offences with Article 4 of Protocol No. 7 had arisen by virtue of the Sergey Zolotukhin judgment (cited above), thus on 10 February 2009. The Supreme Court’s decision led to criminal proceedings being re-opened in respect of an individual’s conviction for an offence under the Tax Offences Act. As a result, the possibility of being granted a re-opening of criminal proceedings applies retroactively to judgments having been delivered in criminal proceedings as from 10 February 2009. 28. On 25 July 2013 the Supreme Court took another decision of relevance (NJA 2013, p. 780). It stated therein that, if criminal proceedings have commenced before the Tax Agency has decided to impose tax surcharges, the prohibition against ne bis in idem cannot result in a criminal judgment that has become final being re-opened and quashed. Instead, it is the second set of proceedings to be commenced – the tax proceedings involving surcharges – that are contrary to the law. The violation of the right not to be tried or punished twice for the same offence is therefore in this situation a matter for the administrative courts. 29. By a plenary judgment of 29 October 2013 (HFD 2013 ref. 71), the Supreme Administrative Court (now Högsta förvaltningsdomstolen) reversed the position taken in its judgment of 17 September 2009 and confirmed in a judgment of 21 December 2010 (RÅ 2010 ref. 117). Agreeing with the conclusions drawn by the Supreme Court, the Supreme Administrative Court found that the same principles should apply when the order of the tax and criminal proceedings is different, that is, when the tax proceedings are commenced later. Accordingly, a criminal indictment constitutes a procedural hindrance against imposing tax surcharges based on the same submission of incorrect information. In the case at hand, where the individual had been indicted in February 2005 and surcharges had been imposed by the Tax Agency in April 2005, the Supreme Administrative Court concluded that the latter decision violated Article 4 of Protocol No. 7. The appeal made against the appellate court’s judgment on tax surcharges was accordingly granted and the surcharges set aside. 30. The Supreme Administrative Court has since examined several petitions for the re-opening of tax proceedings in which tax surcharges had been imposed. In a decision of 2 December 2013 (cases nos. 5850-13 and 5851-13) it rejected the petition, stating that the earlier criminal proceedings had not led to an indictment of the individual but to a decision by the prosecutor to discontinue the preliminary investigation and that, accordingly, no violation of the prohibition against double proceedings had occurred. In a judgment of 5 June 2014 (cases nos. 1112-14 and 1113-14) it granted a re-opening, noting that, pursuant to the Supreme Court’s decision of 16 July 2013, the applicant would have had a right of re-opening of the criminal proceedings if the tax surcharge decision had preceded the indictment and finding that the situation at hand, which was the reverse, should not be treated differently. The Supreme Administrative Court accordingly re-opened the tax proceedings and quashed the tax surcharges in question. The latter case had already been examined by the Supreme Administrative Court as part of the original tax proceedings in December 2010 – prior to the recent developments in Swedish case-law – and had then been considered not to involve a breach of Article 4 of Protocol No. 7. 31. In a judgment of 19 June 2014 (cases nos. 7110-13 and 7111-13) the Supreme Administrative Court examined a different situation where tax surcharges had been imposed on a person by a decision of the Tax Agency in May 2011, upheld by the County Administrative Court in February 2012. During the subsequent examination before the Administrative Court of Appeal, the person in question was, in separate criminal proceedings, indicted for a tax offence but acquitted thereof by a judgment of the District Court in April 2013 which soon afterwards acquired legal force. As a consequence, the Administrative Court of Appeal, in September 2013, quashed the surcharges that had been imposed. The Supreme Administrative Court agreed with this course of action, noting that the Court had established in several judgments (including Nykänen v. Finland, no. 11828/11, 20 May 2014) that, in the event that one of two concurrent sets of proceedings becomes final, Article 4 of Protocol No. 7 required that the other set of proceedings be discontinued. The Supreme Administrative Court’s judgment was delivered in ordinary proceedings which had not involved any re-opening. Furthermore, all the decisions and judgments in the case were delivered after the Sergey Zolotukhin judgment. 32. Following the above judicial changes, the Prosecutor-General (Riksåklagaren) and the Economic Crime Authority (Ekobrotts-myndigheten) decided to examine all tax cases where there may have been double punishments in accordance with the conclusions by the two supreme courts. Whenever the conditions were met, the prosecutor would file a petition for the criminal proceedings to be re-opened, provided that the individual agreed to this course of action and had not already sought a re-opening him- or herself. The undertaking, expected to be finalised by mid-March 2014, was to cover all cases ending with a judgment, an order of summary punishment (strafföreläggande) or a decision not to prosecute (åtalsunderlåtelse) since 10 February 2009. On 25 April 2014 the Swedish newspaper Dagens Nyheter, basing itself on information provided by the Economic Crime Authority, reported that close to 3,000 cases concerning tax offences had been examined. Out of more than 110 individuals who were serving prison sentences, 42 had been released. Those who had not been released had been convicted also for other crimes than tax offences. A further number of persons who were about to start serving prison sentences did not have to do so. 800 individuals who had already served their sentences had been asked whether they wished assistance in filing petitions for re-opening of proceedings and, so far, 541 of them had accepted and 128 cases had been re-opened. In some re-opened cases the convictions had been quashed in their entirety; in others, involving several offences, the proceedings had to be repeated. 33. Section 4 of the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövande och andra tvångsåtgärder; 1998:714) stipulates that a person who has served a prison sentence is entitled to compensation if, following an appeal or a re-opening of proceedings, he or she is acquitted or given a less severe sentence or the judgment containing the conviction is quashed. Under section 7 of that Act, compensation is awarded for costs, loss of income, interference in business activities and suffering. Normally, in accordance with the practice of the Chancellor of Justice, compensation for suffering is set at a rate of SEK 30,000 (approximately EUR 3,300) for the first month, SEK 20,000 (EUR 2,200) for each additional month up to and including the sixth month and SEK 15,000 (EUR 1,600) per month after that. Certain circumstances can lead to a higher rate of compensation. This is primarily the case if the suspicions have concerned a particularly serious crime or if the matter has attracted extensive media attention. 34. An action for damages can also be based on the Tort Liability Act (Skadeståndslagen, 1972:207). Under Chapter 3, section 2 of that Act, compensation is awarded for damage caused by fault or negligence on the part of a public authority. Requests can be lodged with the Chancellor of Justice. If dissatisfied with the Chancellor’s decision, the individual has the option of bringing an action for damages against the State in the general courts. He or she may also institute such proceedings directly without having made a request to the Chancellor. 35. In addition, the Supreme Court has developed case-law which provides that, in order to provide redress for victims of Convention violations, compensation may be awarded without direct support in Swedish law. Based on this case-law, the Chancellor of Justice has awarded compensation in many cases following requests from individuals. The Court has had regard to this development and has concluded that, following a Supreme Court judgment of 3 December 2009 (NJA 2009 N 70), there is an accessible and effective remedy of general applicability, capable of affording redress in respect of alleged violations of the Convention (see, for example, Eriksson v. Sweden, no. 60437/08, §§ 48-52, 12 April 2012, and Marinkovic v. Sweden (dec.), no. 43570/10, § 43, 10 December 2013, and – in regard to the domestic case-law developments – the latter decision, §§ 21-31).	0
test	001-147678	ENG	GBR	CHAMBER	2,014	CASE OF DILLON v. THE UNITED KINGDOM	4	No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)	George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney	5. The applicant was born in 1955 and is currently detained in HMP Whatton. 6. On 25 April 2007 he received an indeterminate sentence for public protection (“IPP sentence”) following his conviction of the sexual assault of a fifteen-year old girl. The offence had been committed while the applicant was on licence in the community following his release from a sentence for indecent assault against girls under the age of sixteen and while he was undertaking the Sex Offender Treatment Programme (“SOTP”) in the community. A minimum term (“tariff”) of four years was fixed. 7. The applicant was initially detained in HMP Armley. It was recommended in 2007 that he complete the SOTP. 8. In June 2008 he was transferred to HMP Rye Hill. He completed an Enhanced Thinking Skills (“ETS”) course in 2008 and the core SOTP on 8 March 2009. On an unknown date, he completed an Alcohol Awareness course. 9. In August 2009 a Structured Assessment of Risk and Need (“SARN”) report identified that further work was required to reduce the applicant’s risk of reoffending. It was recommended that he complete the extended SOTP and, possibly, a Better Lives Booster (“BLB”) programme. The extended SOTP consisted of seventy-four interactive sessions plus some individual work and generally lasted for around six months. 10. At a Parole Board review on 7 September 2009 the Panel said that much offending work still had to be done in order to reduce the applicant’s risk and that he should therefore remain in closed conditions. 11. In September 2009 the applicant was transferred to HMP Acklington. He claims that he had been informed that the extended SOTP was available at that prison. 12. A memo dated 24 August 2010 from the Programmes Department of HMP Acklington confirmed that the applicant had been assessed as suitable to attend the extended SOTP and that he would have to be transferred to another establishment to complete the course as it was not offered at HMP Acklington. 13. On 27 August 2010 the applicant completed the Thinking Skills Programme (“TSP”) at HMP Acklington. 14. In January 2011 a pre-tariff-expiry paper Parole Board review took place. By letter dated 24 February 2011 the applicant was informed that the Parole Board had not recommended his release. His request for an oral hearing was refused. 15. The letter explained: “... The [Intensive Case Management] decision provides a detailed account of the index offence and your previous offending record ... You are given credit for the offence related work you have undertaken but further work in the form of an Extended SOTP (and possible a BLB programme thereafter) is considered necessary to further address your risk factors ... It is clear that significant risk reducing work is required in closed conditions before you can progress further.” 16. By letter dated 6 April 2011 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. She considered that a number of risk factors were outstanding, namely sexual offending, feelings of grievance, distorted thinking, alcohol misuse and outbursts of anger. She was of the view that the extended SOTP was necessary to reduce the applicant’s risk level. She also indicated that an assessment for the BLB programme was necessary following completion of the extended SOTP and recommended that the applicant continue addressing his alcohol misuse. The letter expressed the expectation that the relevant interventions, or other equivalent risk reduction work, would be completed prior to the next Parole Board review. It clarified, however, that the Secretary of State could not guarantee to place the applicant on the courses identified as there were limits on the availability of resources. 17. The review period was set at twenty-one months and was made up the following: transfer to an establishment to undertake the extended SOTP; participation in the extended SOTP; participation in post-course reviews; consolidate and test the skills learned; continued development and practice of appropriate risk strategies; assessment for the BLB programme; continued monitoring of alcohol misuse and relapse prevention work if necessary. The review was scheduled to commence in March 2012 and conclude in November 2012, with an oral hearing in September. 18. On 26 April 2011 the applicant’s tariff period expired. 19. The applicant sought advice on possible judicial review proceedings in respect of the delay in providing access to the extended SOTP. A letter was sent to HMP Acklington by his solicitors. On 22 September 2011 he was transferred to HMP Whatton. 20. On 10 October 2011 the applicant requested information from HMP Whatton as to when he would begin the extended SOTP. He was informed in reply that he would be contacted to arrange an assessment as soon as possible. 21. Meanwhile, the applicant’s solicitors wrote to HMP Whatton seeking information on when he would be allowed to participate in the extended SOTP. By reply dated 28 October 2011, the deputy extended SOTP treatment manager explained: “In order that we can be responsive to the needs of Mr Dillon, it is essential that we allow him a period of settling in at HMP Whatton before an assessment for the Extended SOTP can take place. Assessments and placements are prioritised on a number of factors including tariff expiry, risk level and treatment readiness. However, please be assured that an assessment will take place as soon as practically possible. We anticipate delivering 4 Extended Programmes in 2012 and Mr Dillon will be considered for one of these programmes, if he is found suitable. The extended programme lasts 5 months. A SARN report will then have to be completed within 26 weeks of treatment being completed. The SARN report will identify any further treatment that is necessary.” 22. On 12 November 2011 the applicant indicated to HMP Whatton his concern that he might not be adequately prioritised for the extended SOTP, referring to the expectation that the course would be completed by his next Parole Board review. He requested confirmation that he would be prioritised for the extended SOTP. 23. By reply dated 18 November 2011 he was informed that HMP Whatton made “every attempt to ensure prisoners are treated fairly and have access to offending behaviour programmes”. However, the letter noted that there were limited resources and that there was a large number of IPP prisoners and life sentence prisoners at HMP Whatton whose tariffs had expired. 24. On 6 January 2012 the applicant’s solicitors wrote to the Governor of HMP Whatton to notify him of the fact that judicial review proceedings were being contemplated. They sought an undertaking that the applicant would be given access to an extended SOTP scheduled to begin in April 2012. 25. On 19 January and 6 February 2012 the applicant was reassessed for participation in the extended SOTP. In a report dated 6 February 2012 he was found not to be sufficiently motivated to undertake the course. The report noted that the second meeting had had to be terminated on account of the applicant’s use of abusive and disrespectful language and his loud and aggressive tone. It explained that while, given the applicant’s tariff expiry date, he would have been prioritised for the April 2012 extended SOTP course, it was considered that he was not ready for secondary treatment at that time. It was recommended that the applicant complete individual work with his offender supervisor to consider, inter alia, the costs and benefits of engaging in the extended SOTP and to address his outstanding treatment needs. Further assessment would take place in June/July 2012. 26. The applicant subsequently pursued a request for a place on an extended SOTP scheduled to commence in August 2012. 27. On 13 June 2012 the Parole Board notified the applicant of its decision on the papers not to direct his release or to recommend his transfer to open conditions. The Parole Board set out the details of the index offence and noted that the applicant had committed the offence while on a three-year extended licence following another conviction for sexual offences (see paragraph 6 above). It considered that he had breached the trust placed in him and expressed concern that this might not bode well for the applicant’s likely compliance with licence conditions. The Parole Board reiterated the applicant’s risk factors and turned to examine the evidence of any change during sentence. It explained: “You completed the Core SOTP in 2009 and the Thinking Skills Programme in 2010. It was then recommended that you complete the Extended SOTP. Once this has been completed you will be assessed for other programmes such as the Better Lives Booster Programme and the Healthy Sexual Functioning Programme. You are reported to have attended for a programme assessment for the ESOTP at HMP Whatton but prison records state that this was a challenging meeting and that you were not sufficiently motivated to commence the group. You do not agree with this assessment. You will be offered the opportunity to attend for suitability assessment in the future. You have also been put forward for the CALM programme due to the violent offences on your record and difficulties in managing your emotions.” 28. The Parole Board agreed that the applicant posed a high risk of harm to children. It commended the applicant on his completion of the ETS and core SOTP. However, it concluded: “... [T]here is a considerable amount of accredited offending behaviour work still recommended for you to complete to reduce your risks to a level that can be safely managed in less secure conditions. In the first instance it is recommended that you complete the Extended SOTP and CALM and that following the SARN you may need to be assessed for the Better Lives Booster Programme and Health Sexual Functioning Programme. Clearly this will take some considerable time and whilst core areas of risk remain unaddressed there is no merit in an oral hearing being held ...” 29. The applicant was reassessed for the extended SOTP in July 2012. He was found to be suitable to participate. 30. In late July 2012 the applicant was informed that he was being considered for a place on an extended SOTP commencing in October 2012. 31. The applicant completed the extended SOTP in March 2013. He was advised that a SARN report would be completed within the next six months to identify any further work that needed to be done. The SARN report was completed in March 2014.	0
test	001-147269	ENG	TUR	CHAMBER	2,014	CASE OF MUSAEV v. TURKEY	4	Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on charge;Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)	Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano	4. The applicant was born in 1981 and, according to the latest information available to the Court, lives in Aksaray. 5. On 2 April 2011 the applicant, who had been living in Turkey since 2008, was taken into custody in the context of an investigation into murder by a person or persons unknown. He was placed in the Yedikule Security Directorate in Istanbul. 6. On 4 April 2011 the applicant delivered his witness statement before a criminal court in relation to the aforementioned investigation. However, he was not released after delivering the statement; instead he continued to be detained in the Yedikule Security Directorate for having outstayed his visa. 7. On 5 April 2011 the applicant was transferred to Şehit Tevfik Fikret Erciyes police station in Fatih, Istanbul (“Fatih police station”), where he was placed in a custodial cell for the next five days. 8. On 10 April 2011 the applicant was sent to Kumkapı Removal Centre with a view to being deported. According to the applicant’s account, Kumkapı Removal Centre was severely overcrowded at the time of his detention. He had to share a dormitory measuring approximately 3035 sq. m with twenty-four to forty-five other people and the overcrowding of the centre resulted in hygiene problems. The building was infested with insects and the quality and quantity of the food provided was also fairly poor. Moreover, there was no provision for outdoor exercise. 9. On 12 April 2011 the applicant lodged an application with the United Nations High Commissioner for Refugees (UNHCR) for refugee status. 10. On 27 April 2011 he claimed asylum from the Ministry of the Interior. 11. On 29 April 2011 the applicant was granted a temporary residence permit in the province of Aksaray as an asylum seeker and he was released from Kumkapı Removal Centre on the same day. It appears that the applicant was subsequently permitted to reside in Konya. 12. According to the latest information provided to the Court, the applicant’s applications for asylum and refugee status are still pending before the domestic authorities and the UNHCR respectively.	1
test	001-179819	ENG	LTU	CHAMBER	2,018	CASE OF BRITANIŠKINA v. LITHUANIA	4	No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)	Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Paulo Pinto De Albuquerque;Georges Ravarani	4. The applicant was born in 1930 and lives in Vilnius. 5. On 29 December 2001 the applicant’s husband asked the national authorities to restore his property rights to a house and a plot of land in Vilnius which had belonged to his grandfather before nationalisation. On 28 February 2002 the applicant’s husband specified his initial request and asked to have the plot of land restored in natura to him if possible, or to provide him with another plot of land in Vilnius. 6. The property rights of the applicant’s husband were restored to some premises (a storehouse) in Vilnius in 2003 and it was decided to pay him monetary compensation for the other premises that had not been returned to him in natura. 7. On 10 April 2003 the Vilnius County Administration informed the Vilnius Municipality that the property rights of the applicant’s husband would be restored to 0.1638 hectares of land for residential purposes. 8. On 11 June 2003 the Vilnius Municipality informed the Vilnius County Administration that a plot of land of 0.1007 hectares had been formed near the buildings owned by the applicant’s husband. 9. In November 2003 the Vilnius City First District Court established as a legal fact that the grandmother of the applicant’s husband had owned a plot of land in Vilnius measuring 362 square “fathoms” (sieksnis – 1 fathom equals 1.82 m). 10. On 12 March 2004 the Vilnius County Administration informed the Vilnius Municipality that the property rights of the applicant’s husband would be restored and that he was a candidate to receive a plot of land measuring 0.1638 hectares in natura. In July 2004 the Vilnius County Administration issued a document stating that the applicant’s husband had a right to a plot of land of 0.1638 hectares. 11. In August 2006 the authorities replied to the applicant husband’s letter asking why only a plot of land of 0.1007 hectares instead of 0.1638 hectares had been formed near the house, and stated that the plot of land 0.1007 hectares where the premises had been situated, would be divided for several co-owners of the premises and the rest of the land would be returned to the applicant’s husband by the means he chose. 12. On 16 May 2007 the applicant’s husband died and the applicant became his heir. 13. On 27 March 2009 the applicant’s son, as the representative of the applicant, asked the authorities to restore the property rights of his father to the plot of land of 0.1171 hectares by paying compensation in securities. 14. On 9 April 2009 the property rights of the applicant’s husband were restored in natura to 0.0467 hectares of land and it was provided that compensation of approximately 1,642 euros (EUR) would be paid in securities for the remaining 0.1181 hectares of land. On 24 July 2009 this decision was changed and it was decided to restore the applicant’s husband’s property rights to a plot of land of 0.0362 hectares in natura and to pay compensation in securities for the plot of land of 0.1286 hectares, amounting to approximately EUR 1,788. 15. In October 2009 the applicant lodged a complaint with the Vilnius Regional Administrative Court, claiming that the compensation in securities, established by the national authorities, was unjust, and asking to have the value of the plot of land measuring 0.1286 hectares recalculated. In February 2010 the applicant applied to have the administrative proceedings suspended and to have the matter of calculation of compensation referred to the Constitutional Court. 16. On 10 February 2010 the Vilnius Regional Administrative Court held that the Vilnius County Administration had calculated the compensation in accordance with the methodology approved by the Government (see paragraph 33 below). However, the calculation of the municipality provided that the market value of the plot was approximately EUR 786,029 and the market value of the plot as calculated by the Centre of Registers was approximately EUR 750,313. The court stated that in comparison with these numbers, the value of the plot of land provided by the Vilnius County Administration (see paragraph 14 above) was 327.5 times lower, and it could not conform to the principle of equal value. Moreover, in accordance with the methodology approved by the Government, the calculation was the same for plots of land in the city centre and outside the city. The court thus decided to suspend the administrative proceedings and to refer the matter to the Constitutional Court. 17. In April 2013 the National Land Service informed the applicant that the relevant laws had been changed and that she could change the form of restoration of the property rights to 0.1286 hectares of land. Instead of securities she could choose one of the following: to be assigned a new plot of land of equivalent value to the one held previously; to have the liabilities to the State legally voided; to be assigned a new plot of land for individual construction; to receive monetary compensation. It appears that the applicant did not reply to this letter. 18. On 30 September 2013 the applicant was included on the list of persons to receive a plot of land for construction of an individual house. 19. After the matter had been resolved by the Constitutional Court (see paragraph 35 below), the Vilnius Regional Administrative Court rejected the applicant’s claim on 4 November 2013. The court analysed the domestic regulation regarding the calculation of the value of the land and observed that this matter had been referred to the Constitutional Court, which held that the methodology approved by the Government setting down the principles of calculation of the value of the land was in accordance with the law. The Vilnius Regional Administrative Court also held that the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property had been changed and persons could, before 1 July 2013, choose other means to restore their property rights than by payment of securities. If no other means were chosen, the property rights had to be restored by paying monetary compensation. The court further observed that the authorities had suggested the applicant choose other means to have her property rights restored (see paragraph 17 above), and that in September 2013 it had been decided to include the applicant on the list of persons to receive a plot of land for construction of an individual house. The decision the applicant complained of, that is to say the calculation of the compensation to be paid in securities, had not been of legal importance to the applicant because the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property had been changed and it had become impossible to restore the property rights in securities. The decision to restore the applicant’s property rights by paying her compensation in securities had to be changed to monetary compensation. Because the applicant had been included on the list of persons to receive a new plot of land for individual construction, she could use another way to restore her property rights. 20. The applicant appealed. On 29 May 2014 the Supreme Administrative Court upheld the first-instance decision. The court also emphasised the argument of the Constitutional Court that, in calculating the compensation, it was justified to pay heed not only to the market value of the property but also to its value at the time of nationalisation and to the changes in the quality and the value of property. The Supreme Administrative Court also held that the applicant had complained about the length of the court proceedings. The court held that the applicant had lodged the complaint on 4 November 2009; it had been accepted by the Vilnius Regional Administrative Court on 17 November 2009. On 10 February 2010 the Vilnius Regional Administrative Court had decided to apply to the Constitutional Court, which had adopted its decision on 11 September 2013. The proceedings in the administrative case had recommenced on 16 September 2013 and the decision had been adopted on 4 November 2013. Given the complexity of the case and referral of the matter to the Constitutional Court, the length of proceedings had not breached the reasonable time requirement. 21. On 11 November 2014 the National Land Service informed the applicant’s son, as the applicant’s representative, that on 1 November 2014 it had become possible to restore the property rights by receiving a plot of forest of equal value. The applicant was asked to express her wish before 1 March 2015. It appears that she never replied to this letter.	0
test	001-158195	ENG	ALB	ADMISSIBILITY	2,015	BEJKO v. ALBANIA	4	Inadmissible	George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev	1. The applicant, Mr Astrit Bejko, was an Albanian national, who was born in 1950. He was represented before the Court by Mr. S. Puto, a lawyer practising in Tirana. 2. On 29 December 2014 the applicant’s lawyer informed the Court of the applicant’s death and of the wish of his heirs, namely his spouse, Ms Ornela Kotherja, and his children, Mr Etis Bejko and Ms Lorena Bejko, to pursue the application. For practical reasons, use will however continue to be made of the initial applicant for the purpose of this decision, although his heirs are now to be regarded as having that status (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999VI and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, §§ 97-101, ECHR 2013).. 3. The Albanian Government (“the Government”) were represented by their then Agent, Ms E. Hajro of the State Advocate’s Office. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In 1988 the applicant sought to obtain housing from the State. At the time, housing units were owned and managed by the State. They were allocated to households by the local authorities. 6. On 18 April 1990 his spouse was issued with an occupancy authorisation for a two-bedroom flat by the Neighbourhood People’s Council in Tirana (autorizim nga Këshilli Popullor i Lagjes Tiranë). The authorisation also indicated the address of the flat. As a result, on 22 May 1990 a tenancy agreement (kontratë qiraje) for a State-owned flat was concluded between the applicant’s wife and the State-owned housing maintenance authority (Ndërmarrja Komunale Banesa). 7. On 11 August 1990 the applicant concluded an agreement (akt marrëveshje) with the local authority to vacate the flat and exchange it for another two-bedroom flat which was in the process of being constructed by the State-owned Forest Service (ndërmarrja pyjore) at an indicated address. 8. On 12 May 1991 the applicant’s spouse was issued with another occupancy authorisation for a two-bedroom flat. The authorisation also indicated the address of the flat and the fact that, if a contract were not concluded within ten days, the authorisation would cease to have effect. On 17 February 1992 a provisional tenancy agreement was concluded. It would appear that the applicant never occupied the flat. 9. On 24 February 1994, further to a decision of the municipality of Tirana (“the Municipality”), the applicant was issued with an occupancy authorisation for a two-bedroom flat that had been constructed by the Forest Service. The authorisation also indicated the address of the flat. However, the applicant was unable to occupy the flat and conclude a privatisation agreement in the light of a Municipality’s letter of 18 April 1994, which stated as follows: “No action should be taken for the privatisation of Astrit Bejko’s flat [address indicated] until further notice (të mos veprohet për privatizimin e apartamentit të Astrit Bejkos ... deri në një urdhër të dytë). 10. On 10 May 1994 the Municipality revoked its decision of 24 February 1994, no reason having been given. 11. On 17 September 1996 the National Housing Agency (“NHA”), pursuant to an agreement it had concluded with a State-owned company, Petrolimpeks, for the construction of a block of flats through the aid of its funding, requested the Municipality and the municipal council (Këshilli Bashkiak) not to allocate, amongst others, flats nos. 7 and 8 to anyone on their list of homeless households, because those flats would be made available to employees of the State-owned company (see paragraph 20 and 25 below). 12. In the meantime, on 10 September 1996 an inspection report by the Ministry of Public Works and Territorial Planning found that Petrolimpeks’ funds had been erroneously used for the construction of a block of flats belonging to the Ministry of Defence. Pursuant to a Government decision the block of flats had been made available to the municipal council, which was responsible for the allocation of flats to homeless households. 13. On 10 October 1996 the municipal council decided to include the applicant’s name on the list of households to be provided with an occupancy authorisation in respect of flat no. 8. The relevant part of the decision reads as follows: “...the council...decided to provide the following citizen[s] with authorisation: ... 7. Astrit Bejko in respect of flat no. 8 (a two-bedroom flat)”. 14. On 15 October 1996 the applicant was issued with a fresh occupancy authorisation for a two-bedroom flat. The authorisation, in so far as relevant, read as follows: “Pursuant to council’s decision of ... 10 October 19996 Mr Astrit Bejko is allocated a two-bedroom flat located at [address indicated] flat no. 8.” 15. Confronted with pressing housing needs, the applicant occupied flat no. 8 immediately, no tenancy agreement having been concluded. A third party, R.B, occupied the neighbouring flat on the strength of an occupancy authorisation for a two-bedroom flat. However, upon entering the flat, the applicant found that the construction company, on instructions from the NHA, had amended the layout of the flats so that the flat occupied by the applicant had only one bedroom. The neighbouring flat, occupied by R.B, had been modified to a three-bedroom flat contrary to his occupancy authorisation for a two-bedroom flat. The applicant and R.B, following the Municipality’s approval, then converted the flats into two two-bedroom housing units. 16. By a letter of 6 February 1997 the municipal council was asked to transfer the applicant’s authorisation to another flat located at a difference address, because flat no. 8 had already been allocated to other households (see paragraph 20 and 25 below). Consequently, on 15 May 1997 the municipal council decided to amend the applicant’s occupancy authorisation of 15 October 1996 by allocating the applicant another flat whose construction had not yet started. The decision reads, in so far as relevant, as follows: “The council, [which was] convened on 15 May 1997, (...) decided: 1. The authorisation issued in respect of apartment[s] ... 8 [address indicated] pursuant to the decision ... of 10 October 1996 should be transferred to [address indicated] whose construction will commence [shortly] (autorizimet e dhëna për apartamentet nr ... 8 sipas vendimit ... dt 10.10.1996 ... të transferohen në seksionin ... që do të fillojë së ndërtuari). (...) 3. The decision enters into force immediately.” 17. On an unspecified date the applicant instituted legal proceedings seeking the nullity of the municipal council’s decision of 15 May 1997. These proceedings, which continued until 27 January 2003 at various levels of jurisdiction, ended with the dismissal of the applicant’s claims. 18. On an unspecified date in May 2001 the applicant began a hunger strike to protest against the injustices he believed he had suffered. He submitted newspaper clips as evidence of this. 19. On 4 September 2001 the applicant was informed of the municipal council’s decision of 20 July 2001, which had decided to allocate the applicant the flat indicated in its decision of 10 October 1996 and the authorisation of 15 October 1996. The relevant parts of the decision read as follows: “The council, [which was] convened on 20 July 2001, ... decided: 1. The authorisations issued by way of the council’s decision ... of 15 May 1997 should be transferred to apartment[s] nos. ... 8 at [address indicated] (autorizimet e dhëna me Vendim të Këshillit Bashkiak nr ... dt. 15.05.1997 të transferohen në apartamentet nr. ... 8 në seksionin ...).” 20. In the meantime, on 28 January 1997 R.S, who was an employee of the State-owned company Petrolimpeks, was issued with an occupancy authorisation for a one-bedroom apartment in respect of flat no. 8. On 30 January 1997 R.S concluded a provisional contract with the NHA for the sale of the flat, while the final contract of sale by way of payment of instalments (kontratë për shitje apartamenti me pagesë me këste) was concluded on 24 February 1997. 21. On 25 September 1997 R.S initiated legal proceedings against the applicant requesting him to vacate the flat, which the applicant had allegedly occupied unlawfully since 15 October 1996. R.S relied on the authorisation granted to him and the provisional and final sale contracts of 30 January and 24 February 1997. 22. The domestic proceedings continued before various levels of jurisdiction. On 21 November 2002 the Supreme Court finally found that R.S had acquired property rights over the flat by virtue of the sale contract of 24 February 1997 and the payment of the sale price. The applicant could not be regarded as a lawful occupant, because the occupancy authorisation of 1996 had been revoked in 1997. Furthermore, the domestic courts had ruled against the applicant in the proceedings he had instituted in relation to the nullity of the municipal council’s decision 1997 (see paragraph 17 above). 23. In October 2001 the applicant was forcibly evicted from his flat by the police. In 2002 he left the country for Italy. 24. In September 2002 the applicant instituted legal proceedings against R.S alleging that the sale contract between R.S and the NHA was null. The proceedings were concluded on 9 December 2004 in favour of R.S. 25. On an unspecified date either in 1995 or 1996 F.D, who was an employee of the State-owned company Petrolimpeks, was issued an occupancy authorisation for a three-bedroom apartment in respect of flat no. 7. On 6 August 1996 F.D concluded a provisional contract with the NHA for the sale of the flat, while the final contract was concluded on 11 March 1997. 26. On 20 January 1998 F.D instituted legal proceedings against the applicant and R.B. He requested that the applicant vacate and restore him the room he had occupied as a result of the modification to the layout of the flat (see paragraph 15 above). 27. On 10 December 2002 the Supreme Court held that the municipal council should not have allocated flats, which had been constructed with the funding of State-owned companies, to homeless households found on its lists. F.D, being an employee of the State-owned company Petrolimpeks, was entitled to the allocation of flat no. 7. The Supreme Court considered that the sale contract was lawful and stated that the flat had also been registered in the immovable property register. It further held that the municipal council had annulled its authorisation of 1996. As regards the nature of the authorisation, it stated as follows: “The authorisation to a flat merely serves planning purposes; as long as no consequences have derived therefrom, it may be revoked, as in the instant case, by the authority that adopted it (autorizimi për banesë është thjesht një akt planifikimi dhe deri sa nuk ka sjellë pasoja mund të revokohet nga vetë organi që e ka dhënë si kundër është vepruar edhe në rastin konkret). 28. The applicant’s constitutional complaint, a copy of which was not submitted to this Court, was dismissed by the Constitutional Court on 3 February 2005 as follows: “The only ground of appeal related to F.D’s lack of standing, which was rejected by the ordinary courts, including the Supreme Court. The Constitutional Court considers that the claim raises no legal argument so as to examine the complaint.” 29. The relevant part of Chapter V of the Constitution, which is entitled “Social Objectives”, reads as follows: Article 59 “The State, within its constitutional powers and the means available to it, and in the fulfilment of the private initiative and responsibility, aims at: ... b. the fulfilment of the housing needs of its citizens. ...” 30. The 1992 Act established the organisation of local government in the country. Three administrative units were established: the commune (komunë), the municipality (bashkia) and the district (rreth). The organs of the municipality were the mayor and the municipal council. One of the responsibilities of the municipal council was to take measures to provide employment and housing (section 14 § 14). It had power to issue orders (urdhëresa) and decisions (vendime) (section 14 § 21). 31. The 2000 Act, which repealed the 1992 Act, introduced two administrative units in addition to the commune and municipality: the region (qarku) and the sub-division (nëndarja). Section 10 recognises the municipality’s responsibility for urban planning, land-management and housing as provided for in the relevant legislation. 32. This Act aimed at privatising State-owned housing units and creating a free housing market, empowering tenants to become owners. It enabled individuals residing, by virtue of a tenancy agreement, in flats owned by the State to transfer their flat into their private ownership, upon compliance with a set procedure, payment of the full privatisation price and registration of the property at the mortgage registry. 33. Under Council of Ministers’ ordinance no. 1 of 7 July 1989, one of the spouses or another adult member of the household had the right to lodge a housing request with the Neighbourhood People’s Council (Këshilli Popullor i Lagjes – sections 1, 4 and 7) or the City People’s Council, which had authority to provide that person with an occupancy authorisation (autorizim). The authorisation indicated the number of the flat as well as its location. 34. State companies or institutions, which had contributed by way of their funding to the construction of a block of flats, could issue an occupancy authorisation to their homeless employees (sections 9-11). A commission for the allocation of housing units was established for this purpose (komisioni i shpërndarjes së banesave në qendrën e punës – “the Commission”). The local government councils had the right to withhold approval of the Commission’s decisions if they were considered unjust (section 12). 35. A tenancy agreement was to be concluded, within ten days from the date of the authorisation, between the tenant and the State-owned housing maintenance authority (Ndërmarrja Komunale Banesa). Failing the conclusion of the tenancy agreement within the prescribed time-limit, the authorisation became invalid. 36. The decision provided for the establishment of the NHA, which was responsible for financing, constructing and administering housing units (banesa) in the country. Some of its responsibilities included the conclusion of contracts for the construction, completion and sale of flats and cooperation with local authorities in fulfilling their housing obligations. The NHA’s funds consisted of allocations by the State and local budgets, loans by domestic and international financial institutions, donations and revenues resulting from privatisation of State-owned housing units. 37. The decision determined the criteria for the classification of homeless citizens. The commune or city councils were tasked to draw up local lists of homeless citizens. The lists would be deposited with the NHA. 38. The decision provided that State companies and institutions could use their profits to construct flats to accommodate the housing needs of their homeless employees (punonjësit e pastrehë). The funding would be transferred to the NHA, which constructed housing units in accordance with the domestic legislation. The allocation of flats by way of an authorisation was carried out by the Commission set up within the State company or institution, according to a list of homeless employees. The list of beneficiaries was deposited with the local authority. The NHA was responsible for concluding sale contracts with the homeless employees who had been provided with an authorisation. 39. The decision provided that the NHA would conclude a sale contract with a homeless citizen, who was required to make a down payment, the remaining amount to be paid in instalments over a twenty-five-year period with zero interest rate. The upfront payment of the entire sale price resulted in a reduction of the total price. 40. The decision provided that the NHA would conclude a provisional sale contract with a homeless citizen within one month from the commencement of construction works. At the time of the conclusion of the provisional sale contract, the homeless citizen was required to make a down payment. Failure to make the down payment would result in the loss of use of the authorisation. A final sale contract would be concluded at the completion of the construction works. 41. The decision reiterated that the lists of homeless citizens were drawn up by local authorities and were deposited with the NHA. State companies and institutions would transfer their funding to the NHA for the construction of blocks of flats. State companies and institutions would draw up lists of homeless citizens to be housed in these blocks of flats. The lists would be deposited with the NHA, which would conclude sale contracts with those citizens.	0
test	001-153476	ENG	SRB	CHAMBER	2,015	CASE OF RAGUŽ v. SERBIA	4	Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)	Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra	6. The applicant was born in 1940 and lives in Dubrovnik. 7. On 18 February 2003 the Municipal Court (Opštinski sud) in Gornji Milanovac ordered V.T. (“the debtor”) to pay to the applicant 2,500 Euros (“EUR”) plus statutory interest on account of debt and 187,750 Serbian dinars (“RSD”), which was approximately EUR 3,028 at the time of the delivery of the judgment, for the costs of the civil proceedings. 8. On 23 August 2003 the District Court (Okružni sud) in Čačak, on appeal, reduced the award in respect of costs to RSD 97,250 (approximately EUR 1,568) and upheld the first-instance judgment for the remainder. 9. The judgment of 18 February 2003, as amended on 23 August 2003, became final on 5 September 2003. 10. On 23 October 2003, at the applicant’s request, the Municipal Court ordered the enforcement of the judgment by seizure and sale of the debtor’s movable assets. 11. Following three failed attempts at seizure of the debtor’s movable assets, on 21 December 2004 the Municipal Court informed the applicant that the enforcement by seizure and sale of the judgment debtor’s property was impossible due to the debtor’s indigence. 12. On 13 July 2005 the Municipal Court terminated the enforcement proceedings. This decision was quashed on appeal on 24 October 2005 by the Municipal Court. 13. Following a further attempt at seizure of the debtor’s movable assets, on 11 October 2007 the Municipal Court stayed the enforcement proceedings (prekida se postupak izvršenja) because of the debtor’s death in the meantime. 14. On 3 June 2008 the applicant proposed that the enforcement proceedings be continued by seizure and sale of the deceased debtor’s movable and immovable estate. In support of his request, the applicant submitted a court decision of 2 October 2001 by which the debtor and two other persons had previously inherited a house with a plot of land. He also requested the court to appoint a temporary representative for the debtor’s heirs in accordance with Article 32 of the Enforcement Procedure Act. On 20 June 2008 the Municipal Court rejected the applicant’s request. This decision was quashed on appeal on 27 March 2009 by the Municipal Court. 15. On 16 April 2009 the Municipal Court invited the applicant to provide the names and the addresses of proposed debtors, indicate the debtor’s heirs, propose the means of enforcement and details and proof of ownership concerning immovable assets, all within three days, failing which his request would be rejected. It was further specified that no appeal was allowed against this decision. In the reasoning, the court found that the names and the addresses of the debtor’s potential heirs were available from the decision of 2 October 2001, and that therefore, there was no need for the appointment of a temporary representative. On 8 June 2009, however, the Municipal Court instructed the applicant to advance the costs for a temporary representative within eight days. It was also specified that no appeal was allowed against this decision. 16. On 27 August 2009 the Municipal Court rejected the applicant’s request for continuation of the enforcement proceedings because of his failure to abide by the orders of 16 April and 8 June 2009. This decision was upheld on appeal on 13 October 2009. 17. According to the Government, there are eight heirs of the deceased debtor, the names and addresses of which have been known.	1
test	001-180835	ENG	TUR	COMMITTEE	2,018	CASE OF ZENGİN AND ÇAKIR v. TURKEY	4	Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)	Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić	4. The applicants were born in 1987 and 1986 and live in Gümüşhane and Erzincan respectively. 5. On 18 May 2007 the applicants participated in reading out a press statement in commemoration of İbrahim Kaypakkaya, the leader of the TKP/ML (Turkish Communist Party – Marxist/Leninist), who had died in 1973, allegedly under torture in police custody. 6. On 7 January 2008 the Erzurum public prosecutor initiated criminal proceedings against fifteen people, including the applicants, charging them with disseminating propaganda in favour of the TKP/ML, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, during the gathering, the second applicant had read out a press declaration containing statements praising the TKP/ML and İbrahim Kaypakkaya, and the following slogans had been chanted by the demonstrators: “İbrahim is our leader”, “Our struggle continues and shall continue”, “İbrahim Kaypakkaya is immortal”, “Down with the USA” and “We will drown fascism in the blood it has shed”. The group had also carried a banner which read “İbrahim Kaypakkaya is immortal – Partizan”. 7. On 31 March 2009 the Erzurum Assize Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment pursuant to section 7(2) of Law no. 3713. In its judgment, the assize court held that the applicants had disseminated propaganda in favour of the TKP/ML, given that the second applicant had read out the press statement and the first applicant had chanted slogans. The court based its judgment on a report prepared by an expert regarding a police video-recording of the public gathering in question. 8. Taking into account the applicants’ good behaviour during the trial and the fact that they had no previous criminal convictions, the court suspended pronouncement of the applicants’ conviction on the condition that they did not commit another intentional offence for a period of five years, under Article 231 of the Code of Criminal Procedure (hükmün açıklanmasının geri bırakılması). 9. The applicants filed an objection against the decision of 31 March 2009. In their petition, they stated that the first-instance court had erred in interpreting the facts and the law, and they asked to be acquitted of the charges against them. They further stated that their prosecution had constituted a breach of Article 10 of the Convention. 10. On 20 July 2009 the Diyarbakır Assize Court held that the application of Article 231 of the Code of Criminal Procedure in the case was in line with the domestic law, and rejected the applicants’ objection without examining the merits of the case. That decision was served on the applicants on 5 August 2009.	1
test	001-170858	ENG	RUS	CHAMBER	2,017	CASE OF BUBON v. RUSSIA	3	No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom to receive information)	Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra	6. The applicant is a lawyer who also writes articles for various Russian law journals and online legal information databases and networks. 7. According to the applicant, his work usually requires extensive scientific research, including in the field of law enforcement in the Khabarovsk Region. He supported his assertion with copies of contracts with well-known Russian publishing houses and owners of a number of legal magazines, including one supervised by the Secretariat of the President of the Russian Federation. Under the contracts he undertook the task of writing articles on specific topics of legal and social interest. 8. Having received an assignment to write an article on prostitution and the fight against it in the Khabarovsk Region, on 12 May 2009 the applicant wrote to the head of the Khabarovsk Region police department by registered letter, asking for statistical data for his research. The relevant parts read: “[I am] interested in [receiving] information for the period between 2000 and 2009, in particular: [information on] the number of people found administratively liable under Article 6.11 of the ... Code of Administrative Offences (prostitution), with a breakdown by sex, residence (residents of the Khabarovsk Region or visitors), nationality (nationals of the Russian Federation, foreigners or stateless persons) and the year [of the offence]; [information on] the number of criminal cases instituted during the abovementioned period under Articles 241, 242, 242.1 [and] 127.1 (cases related to sexual exploitation) of the ... Criminal Code, with a breakdown of the specific Articles ... and the year [the case was opened]; [information on] the number of individuals found criminally liable under Articles 241, 242, 242.1 [and] 127.1 ... of the ... Criminal Code, with a breakdown by sex, age, educational background, permanent residence (residents of the Khabarovsk Region or visitors), nationality and period [in which the crime was committed]; general information on sentences imposed on individuals found criminally liable under Articles 241, 242, 242.1 [and] 127.1 ... of the ... Criminal Code the types of sentences and in how many cases they were imposed, and the years [they were imposed]. ... [I] stress that I do not need any specific personal information about individuals found administratively or criminally liable; [I only need] general statistical information for writing a scientific article.” 9. It appears from an acknowledgement of receipt that the letter reached the Khabarovsk Region police department on 25 May 2009. 10. Under Russian law, State officials must provide a reply to letters from individuals within thirty days. In the absence of any response, on 26 June 2009 the applicant lodged a claim with the Tsentralniy District Court of Khabarovsk (“the District Court”), complaining that the police authorities had failed to provide him with the information he had requested and requesting for access. Relying on the Information Act (see below) and Article 10 of the Convention, he argued that the officials’ implied refusal to provide him with the information had been unlawful as he had not asked for access to any confidential personal information, State secrets or information related to internal police working methods. He claimed that his request had related purely to statistical data of a general nature collected by the Information Centre of the Khabarovsk Region police department (hereinafter “the Information Centre”). 11. On 18 July 2009 the applicant received a letter from the head of the Information Centre, notifying him that information as specific as he had asked for could only be collected on production of a written order issued by a deputy Minister of Internal Affairs, a head of a regional or municipal police department or their divisions or a prosecutor or investigator from a prosecutor’s office. The Information Centre did not collect such information at the request of private individuals. General statistical data summarised by the Information Centre was provided to the Federal Service of State Statistics and in particular its regional office for the Khabarovsk Region, to whom the applicant could apply for the statistical data. 12. On 19 July 2009 the applicant wrote to the Khabarovsk Region Service of State Statistics (hereinafter “the Statistics Service”) by registered letter, asking for the statistical data for his research. 13. On 23 July 2009 the head of the Statistics Service replied, stating that specific statistical information on the fight against prostitution had never been provided by the Khabarovsk Regional police department. 14. The applicant filed copies of his letters from the Information Centre and Statistics Service with the District Court. 15. On 4 August 2009 it dismissed the applicant’s claim on the grounds that the Information Centre was not authorised to process data requests from private individuals. Under domestic law, the Statistics Service was tasked with dissemination of official statistical data on a broad variety of subjects, including those falling within the applicant’s field of interest. It also noted that the applicant had failed to obtain the information sought from open sources, such as libraries, archives and the Internet. The District Court also stressed that the information requested did not touch upon the applicant’s rights and legitimate interests, so the authorities’ refusal to grant him access to such information had been lawful and well-founded under section 8(2) of the Information Act. 16. The applicant appealed, arguing, among other things, that the police authorities had exclusive possession of the information sought by him and that he had no other means, including through assistance from the Statistics Service, of obtaining the necessary data. In addition, he submitted that the fact that his rights and legitimate interests were not affected by the requested information had no bearing on the case as under Russian law, it was not only those directly concerned who were granted access to public information. 17. On 16 September 2009 the Khabarovsk Regional Court upheld the judgment of 4 August 2009. Relying on section 8(2) of the Information Act, it concluded that the authorities were not obliged to provide the applicant with the information as it did not touch upon his rights and legitimate interests.	0
test	001-162855	ENG	GBR	CHAMBER	2,016	CASE OF J.N. v. THE UNITED KINGDOM	3	Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano	4. The applicant was born in 1971 and lives in Barking. 5. The applicant arrived in the United Kingdom on 7 January 2003. He claimed asylum on 15 January 2003 but his claim was refused by the Secretary of State for the Home Department on 15 March 2003 and his appeal against that decision was refused on 1 October 2003. 6. On 13 February 2004 the applicant was convicted of indecent assault in relation to an incident involving two fifteen-year old girls and was sentenced to twelve months’ imprisonment. He was released on licence on 7 September 2004 but his licence was revoked on 24 September that year because he failed to comply with the terms of the licence. 7. The applicant was re-arrested on 16 January 2005. 8. On 31 March 2005 the applicant was served with the decision to make a deportation order. On the same day he was detained pursuant to the Secretary of State’s powers under paragraph 2(3) of Schedule 2 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The deportation order was signed on 4 August 2005 and served on him on 12 August 2005. 9. On 5 September 2005 the applicant indicated that he wished to return to Iran. One month later an application was submitted to the Iranian authorities for an emergency travel document to enable him to travel there. However, the application was rejected by the Iranian authorities on 22 November 2005. 10. The applicant was subsequently interviewed at the Iranian Embassy on 15 September 2006. However, two days later the Embassy informed his solicitors that they could not issue a travel document as no formal identification of the applicant had been provided. On 17 October 2006 the Home Office was informed that the Iranian Embassy required a birth certificate before any travel documents could be issued. It appears that the Home Office thereafter proposed to submit copy documents. The Iranian Embassy initially agreed to this proposal, but later refused. 11. On 13 September 2007 the applicant commenced judicial review proceedings challenging his continued detention. 12. On 6 November 2007 the Iranian Embassy agreed to issue a travel document provided that the applicant was prepared to sign a “disclaimer” consenting to his return. 13. On 11 December 2007 the Administrative Court ordered the applicant’s release from detention subject to a number of conditions, including that he be subject to a curfew; that he remain at a fixed address; that he report on a weekly basis to the nearest Border and Immigration Agency office; and that he take the steps necessary to obtain travel documents. 14. The applicant refused to sign a “disclaimer” on 14 December 2007. Although he was released on 17 December 2007, four days later the matter was brought back to the Administrative Court and a different judge discharged the previous order on account of his failure to comply with the conditions for release (namely, that he take the steps necessary to obtain travel documents). As a consequence, the applicant was once again liable to detention. 15. On 27 December 2007 Group 4 Securicor reported that they had on two occasions attempted to visit the applicant at his nominated address to install the equipment required for electronic tagging. Both visits took place during the hours of curfew. Very shortly afterwards the applicant reported a different address to the immigration authorities so that they could continue to communicate with him. 16. On 8 January 2008 an authority was issued for the applicant’s detention and on 14 January he was detained while reporting to the immigration authorities. 17. By February 2008 the authorities had been alerted to the fact that the applicant was showing some signs of psychological disturbance, had been diagnosed with “reactive depression” and was receiving medication for his psychological symptoms. 18. On 26 February 2008 the claim for judicial review launched on 13 September 2007 was dismissed. 19. The applicant attended at the Iranian Embassy on 7 April 2008 but no travel document was issued. On 4 June 2008 he again refused to sign a disclaimer. 20. On 25 July 2008 the applicant was alleged to have displayed “inappropriate behaviour” to a female member of immigration staff at a detention centre. His behaviour was also alleged to have been disruptive. 21. In or around September 2008 the immigration authorities discussed the possibility of prosecuting the applicant under section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 for failing without reasonable excuse to comply with the Secretary of State’s requirement to take specified action to enable a travel document to be obtained. However, no prosecution was ever mounted. 22. On 13 October 2008 the applicant wrote to the United Kingdom Border Agency, indicating that he would be willing to return to Iran if he were to be compensated for the periods of detention which he had undergone. However, the Border and Immigration Agency refused to agree to any such request. 23. On 6 January 2009, 6 February 2009, March 2009, May 2009, June 2009 and September 2009 the authorities made further attempts to engage the applicant in a voluntary return. However, on each occasion he indicated that he was not willing to co-operate or sign a disclaimer. 24. On 17 March 2009, 9 June 2009 and 7 October 2009 the applicant made three applications for bail to the Asylum and Immigration Tribunal. On each occasion the application was dismissed. The reasons given for the dismissal of the applications included the fact that the applicant could end his own detention by signing the disclaimer. 25. The applicant’s solicitors wrote a letter before action on 21 October 2009 and proceedings were issued on 6 November. On 4 December 2009 the High Court granted the applicant permission to apply for judicial review and the Home Office was ordered to release him on bail within forty-eight hours. 26. At the hearing counsel for the applicant argued that both periods of the applicant’s detention could properly be looked at as being unlawful, although he focused his attention on the second period. Counsel for the Secretary of State for the Home Department argued – and the court appears to have accepted – that the first period could not be in question legally, since the applicant had been released for one month pursuant to a court order and the order enforcing release had been discharged. However, he conceded that when considering the lawfulness of the second period of detention, the first period of detention would have to be taken into account. 27. In considering the lawfulness of the second period of detention, the Administrative Court judge recalled that the authorities should be free to make strenuous efforts to obtain the assent of a person they proposed to deport. If they were unsuccessful, they could and should seek any way around his consent, for example by persuading the country of origin to issue a travel document without a disclaimer. However, the judge noted that the law did not permit the indefinite detention of someone who was never going to consent to deportation. 28. Bearing that in mind, the judge considered the history of the applicant’s second period of detention. He observed that during this period there had been no change in approach to the applicant, no prosecution had been brought under section 35 of the 2004 Act, and there had been no further approach to the Iranian authorities to see if they would change their position. 29. The judge then had regard to the relevant principles of domestic law set out in R v. The Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and in the guidance given by the Court of Appeal in both R (A) v. Secretary of State for the Home Department [2007] EWCA Civ 804 and WL (Congo) v. Secretary of State for the Home Department [2010] EWCA Civ 111 (see paragraphs 35-36 below). Applying those principles and the relevant guidance, the judge noted that the most important factor justifying detention was the applicant’s refusal to sign the relevant disclaimer. He further noted that lengthy detention could be justified by the applicant’s offending, by the realistic fear that he would further offend and by the genuine and reasonable concern that he might abscond. However, even given those factors, the judge found that there had to come a time when such a sterile tactic as merely sitting and waiting while repeatedly urging the applicant to change his mind, in full expectation that he would not, ceased to be detention genuinely for the purpose of deportation. The judge therefore concluded that “the woeful lack of energy and impetus” applied to this case from at least the middle of 2008 meant that it could not possibly be said that the Secretary of State on this occasion had complied with the obligation in Hardial Singh to act with “reasonable diligence and expedition”. He therefore held that the applicant’s detention had been unlawful from 14 September 2009. 30. With regard to the question of whether there should be guidance on how long it might be appropriate to detain an individual, the judge made the following observations: “It cannot be right for the Secretary of State to be led to believe, by looking at a digest of the range of decisions that have been taken, that it is safe to detain for X months or X years. Equally, it cannot be right for those who are in the positon of being detained for considerable periods, stubbornly refusing to comply with the authority’s requests to facilitate voluntary repatriation, to be put in a position of saying, ‘If I hold on another year, or two years, or three years, then I am all right’. A tariff is repugnant and wrong, and it seems to me that it would be wise for those preparing legally for such cases to abandon the attempt to ask the courts to set such a tariff by a review of the different periods established in different cases.” 31. In a decision dated 13 May 2011 the applicant was awarded GBP 6,150 in damages. 32. The applicant sought permission to appeal. On 31 October 2011 permission to appeal was refused. However, on 7 November 2012 the applicant renewed his application for permission to appeal and on 10 February 2012 he was granted permission to appeal only in respect of the quantum of damages awarded. The outcome of that appeal is unknown.	1
test	001-147273	ENG	TUR	CHAMBER	2,014	CASE OF ALIEV v. TURKEY	4	Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)	Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano	6. The applicant was born in 1974. According to the latest information available to the Court, he lives in Istanbul. 7. The applicant arrived in Turkey in 2006. The parties are in dispute as to whether he entered the country legally at the time. 8. On 4 or 6 November 2009 the applicant was apprehended in Edirne while trying to flee to Greece illegally. Following brief periods of detention at İpsala Gendarmerie Command and Tunca Foreigners’ Admission and Accommodation Centre (“Tunca Accommodation Centre”), he was transferred to Gaziosmanpaşa Foreigners’ Admission and Accommodation Centre (“Gaziosmanpaşa Accommodation Centre”) in Kırklareli, with a view to being deported. The exact date of his transfer is unknown to the Court; while the applicant claimed that he had been transferred on 9 November 2009, the Government maintained that the transfer had taken place on 11 November 2009 without, however, presenting any documents in support of their submission. 9. It appears that throughout his stay at Gaziosmanpaşa Accommodation Centre, the applicant made numerous attempts to seek asylum, all of which were allegedly ignored by the national authorities, until he was able to get in touch with a lawyer. On 27 July 2010 he lodged a new asylum request through his lawyer, which was admitted by the domestic authorities for processing. 10. On 1 September 2010 the lawyer requested the applicant’s immediate release from Gaziosmanpaşa Accommodation Centre in two separate letters sent to the Kırklareli Governor’s Office and the Ministry of the Interior, claiming thqsat his detention in prison-like conditions had no basis in domestic law and also contravened Article 5 of the Convention. 11. On 24 September 2010 the applicant was granted asylum seeker status by the Ministry of the Interior, along with a temporary residence permit in Kırklareli, valid until the completion of the asylum procedure. 12. On 27 September 2010 he was released from Gaziosmanpaşa Accommodation Centre. 13. Following his release, on 30 September 2010 the applicant went to Istanbul instead of staying in Kırklareli as ordered. On 1 October 2010 he was arrested on suspicion of attempted burglary and placed in police custody at Şehit Tevfik Fikret Erciyes district police station in Fatih, Istanbul (“Fatih police station”). On the same day, he was interrogated by the Fatih public prosecutor and the Fatih Magistrates’ Court, which ordered his release. The relevant decision was not made available to the Court. 14. Despite the court order for his release, the applicant was taken back to Fatih police station, where he was placed in a holding cell in the basement. 15. On 4 October 2010 the applicant’s lawyer visited him at the station and requested his release. He was, however, informed that this would not be possible as there was an order for his deportation. 16. On 7 October 2010 his lawyer went to Fatih police station once again, to visit the applicant and to inspect the conditions of his detention. According to the lawyer’s notes, there were two cells with iron bars in the basement of the station where the applicant was being held, both of which measured approximately 2 x 4 m. On the day of his visit, the applicant was sharing a cell with approximately ten other foreigners, all of whom were sitting on the floor with their backs against the wall and sharing three blankets between them. There were similarly ten to twelve people in the other cell. There was a small vent in the wall measuring approximately 30 x 50 cm, which let in very little light. There was also a pile of rubbish outside it. During their meeting, the applicant also gave a detailed account of his detention conditions, which the lawyer noted as follows. The number of detainees in the cell varied between seven and fifteen. There were no beds, and there was no room for more than three people to lie down at the same time. They were only provided with three blankets and four small pillows to share, and there was no heating. The cell, which also lacked natural light and sufficient ventilation, was always cold and there was no provision for outdoor exercise. The food provided was also insufficient; they had to pay to receive more. It appears that the lawyer brought the applicant and some of the other detainees sandwiches after the meeting, as they had complained of being hungry. 17. On 9 October 2010 the applicant was transferred to Kumkapı Removal Centre pending his deportation, apparently because the basement of Fatih police station was flooded. 18. On 12 October 2010 Fatih police station was inspected by the Fatih public prosecutor, who found the detention facility to be in compliance with the standards set out in the relevant regulations without, however, going into any details about the specific conditions in his brief report. 19. On 19 October 2010 the applicant was conditionally released from Kumkapı Removal Centre and instructed to go to Kırklareli, after it became apparent that he had already been granted a temporary permit to reside there in September 2010. 20. It appears that following his release from Kumkapı Removal Centre, the applicant went to Edirne instead of going to Kırklareli as instructed. On 12 November 2010 he was apprehended in Edirne close to the Greek border while attempting to flee to Greece once again. He was placed back in Gaziosmanpaşa Accommodation Centre. 21. During a headcount conducted on 1 December 2010, officers at Gaziosmanpaşa Accommodation Centre noticed that the applicant was intoxicated and behaving rowdily. He was therefore separated from the other detainees and escorted to the management office. According to the Government, as one of the officers was unlocking the door to the management office, the applicant collapsed unexpectedly in the corridor and hit his face on a radiator. The impact caused heavy bleeding in his left eye, and he started throwing up, in a semi-conscious state. According to the applicant, however, he did not fall but was forcefully pushed by one of the officers against the radiator and was severely beaten up once he landed on the floor. 22. The applicant was then taken to the Kırklareli State Hospital, where it appears he was diagnosed with alcohol poisoning. Following some initial medical treatment, on 3 December 2010 he was admitted to the ophthalmology department of the Trakya University Hospital, where he underwent an operation on his left eye, as well as various related treatments. He was discharged on 23 December 2010. The medical report drawn up on the day of his discharge indicated that he had been admitted to the ophthalmology department with symptoms of pain, reduced vision and exophthalmos in the left eye, which he had stated had been caused by a blow to his eye. He was diagnosed with widespread corneal erosion and a retrobulbar haemorrhage. He was also found to have an orbital floor fracture caused by the blunt trauma to his eye, for which he underwent an operation. 23. In the meantime, the Kırklareli public prosecutor had initiated an investigation into the incident of 1 December 2010 of his own motion. According to the documents in the case file, on 2 December 2010 he took a statement from a caretaker working at Gaziosmanpaşa Accommodation Centre, who had witnessed the applicant suddenly collapse while the two officers escorting him had been unlocking the door. 24. Moreover, on an unspecified date, the police took a statement from the applicant in hospital, who at the time alleged that he had lost his balance because he had been pushed by an officer. 25. Following his discharge from hospital, the applicant was taken to Şehit Hayrettin Yeşin police station in Kırklareli on 23 December 2010 to give a statement, in the presence of his lawyer, regarding the injury he had sustained on 1 December 2010. The applicant stated that he had no complaints of ill-treatment and that he had lost his balance and fallen over because he had been intoxicated at the time. He was subsequently told he was free to leave, but was ordered to stay in Kırklareli in accordance with his residence permit. 26. On 21 January 2011 the Kırklareli public prosecutor decided not to bring any charges in relation to the applicant’s injury in the light of his statement of 23 December 2010. 27. In the meantime, the applicant went to Istanbul after being released from detention on 23 December 2010, despite being specifically ordered to remain in Kırklareli. On 28 December 2010 he lodged a criminal complaint with the Fatih public prosecutor against the police officers who had allegedly illtreated him at Gaziosmanpaşa Accommodation Centre. He argued, in particular, that following the headcount on the evening of 1 December 2010 he had been taken to the management office, where one of the officers had grabbed him by the collar and tossed him against the wall, as a result of which he had hit his eye on the radiator and passed out. He claimed that he had not told the truth at Şehit Hayrettin Yeşin police station, as he had been warned by an officer that his detention would be prolonged if he pressed charges. 28. When the public prosecutor subsequently summoned him to make a statement, the applicant stated that he had previously misrepresented the facts as he had been scared, without giving any more details as to why. He added that he had also been severely beaten up by the officers after he had collapsed onto the floor, and admitted that he had been drinking kolonya (citrus cologne), mixed with a soft drink, prior to the incident. 29. On 31 January 2011 the Fatih public prosecutor issued a decision to the effect that he had no jurisdiction (görevsizlik kararı) in respect of the applicant’s complaints, and referred the matter to the Kırklareli public prosecutor. 30. On 8 April 2011 the Kırklareli public prosecutor took statements from two of the suspected police officers and three witnesses, also police officers. The two suspects denied the applicant’s allegation that they had attacked him. All of the witnesses corroborated that the applicant had been very drunk on the relevant day, and one of them, who had been at the scene of the incident, stated that the applicant had fallen over without anyone having pushed him. 31. On 9 September 2011 the Kırklareli public prosecutor issued a decision not to prosecute because of insufficient evidence. Referring to the inconsistency between the applicant’s statements, the public prosecutor stressed that although the applicant had stated that he had been scared to tell the truth at Şehit Hayrettin Yeşin police station on 23 December 2010, there had been no reason for him to be scared, particularly because he had made his statement in the presence of his lawyer. 32. The applicant did not object to the decision of the Kırklareli public prosecutor, despite being entitled to do so before the Edirne Assize Court. 33. On 18 May 2011 the applicant’s request for asylum was rejected by the Ministry of the Interior, as he had failed to comply with the requirements to be granted asylum seeker status as set out in the 1951 Convention relating to the Status of Refugees (“the Geneva Convention”) and the Turkish Asylum Regulation.	1
test	001-163357	ENG	MKD	CHAMBER	2,016	CASE OF MITROV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"	3	Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Reopening of case (Article 41 - Just satisfaction)	Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano	6. The applicant was born in 1974 and lives in Strumica. 7. At the time when the criminal proceedings (see paragraphs 11-32 below) were initiated, there were four judges working in the criminal section of the Strumica Court of First Instance (“the trial court”): Judges M.A., C.K., T.D. and G.M. In addition, Judge B.B. was an investigating judge in the trial court, Judge V.D. worked on cases concerning minor offences, and Judge S.D. was on sick leave. 8. From 2002 Judge C.K. was a clerk (стручен соработник) at the trial court. From 2004 she worked with Judge M.A. and two other judges. She was appointed as a judge in February 2005. 9. In 2004 Judge M.A. became president of the criminal section of the trial court. 10. On 26 November 2006 the applicant was involved, as the driver of a car, in a traffic accident in which the eighteen-year-old daughter of Judge M.A. was killed. 11. On 19 January 2007, after examining the applicant in the presence of his lawyer, Judge B.B. opened an investigation against him. 12. Between 25 January and 7 February 2007 Judge B.B. heard evidence from five eyewitnesses, two experts and the victims’ representative. The applicant’s representative was only present when two of the eyewitnesses gave their statements. 13. On 8 February 2007, Judge B.B. commissioned an expert report, to be prepared by the Forensic Bureau (Биро за судски вештачења) (“the Bureau”), regarding the reasons for the accident, the speed at which the applicant had been driving at the relevant time, whether the accident could have been avoided, and other relevant matters. 14. On 14 March 2007 a mechanical engineer from the Bureau drew up an expert report (“the first expert report”), relying partly on the statements given by the witnesses before Judge B.B. 15. On 20 April 2007 the public prosecutor charged the applicant with “severe crimes against the safety of people and property in traffic” (тешки дела против безбедноста на луѓето и имотот во сообраќајот). On 15 May 2007 a three-judge panel of the trial court, presided over by Judge T.D., dismissed an objection (приговор) by the applicant to the indictment. 16. In June 2007 an alternative expert report was drawn up, at the applicant’s request, by a private expert agency (“the second expert report”). 17. On 12 July 2007 the applicant asked the president of the trial court to exclude the trial court judges who acted in the criminal proceedings, namely Judge C.K. and the other judge on the trial court panel which were acting in the applicant’s case, as well as Judges G.M., S.D. and T.D., given that the case concerned a traffic accident in which the daughter of a judge in the criminal section of the court had been killed. He further complained that the investigation had been unfair, and alleged that Judge B.B. had been partial. Finally, he stated that he hoped that the president of the trial court would ask the President of the Štip Court of Appeal (“the appellate court”) to assign the case to another first-instance court. 18. On the same day Judges C.K. and T.D., who had been appointed as members of the panel in the applicant’s case, gave written statements that the fact that their colleague’s daughter had died in the accident would not influence their adjudication. The president of the trial court referred to those statements, and dismissed the application for exclusion in respect of Judges C.K. and T.D., finding that the conditions of section 36(2) of the Criminal Proceedings Act (see paragraph 33 below) had not been fulfilled. The president of the trial court further rejected as inadmissible the application concerning Judges G.M. and S.D., given that under section 38(4) of the Criminal Proceedings Act an application for exclusion could only be lodged in respect of an individual judge who was acting in a particular case (see paragraph 33 below). 19. The trial continued, and on the same day the applicant lodged a fresh application for exclusion of Judge T.D., given that he had presided over the three-judge panel which had dismissed the applicant’s objection to the indictment (see paragraph 15 above). 20. On 13 July 2007 the president of the trial court upheld the latest application for the exclusion of Judge T.D. 21. At a hearing held on 26 September 2007 the trial court (Judge C.K. presiding, and including Judge S.D. and three lay judges) admitted in evidence the second expert report (see paragraph 16 above) submitted by the applicant. The applicant asked the trial court to examine the experts who had prepared both reports, in order to clarify their findings, which he described as contradictory. 22. At a hearing held on 19 October 2007 the composition of the trial court panel was changed to Judge C.K. (as president of the panel), Judge V.D., and three lay judges. At that hearing the trial court commissioned a fresh expert report (вештачењето да се обнови со други вештаци) to be prepared by three experts from the Bureau, not those who had drawn up the report of 14 March 2007 (see paragraph 14 above). 23. On 31 January 2008 a fresh expert report was issued by the Bureau (“the third expert report”). 24. On 4 March 2008 one of the experts who had drawn up the third expert report was examined at the trial. 25. On 5 March 2008 the applicant’s lawyer, in his closing remarks, submitted that the trial court was adjudicating a case concerning an incident in which their colleague’s daughter had died. He argued that the practice in similar cases was that the judges withdrew in order not to cast doubt on the court’s impartiality. 26. On the same day the trial court convicted the applicant and sentenced him to four years and six months’ imprisonment. It found that the applicant had been driving at excessive speed and under the influence of alcohol. It dismissed the applicant’s arguments that the victim in the accident had ignored a “Stop” sign and was not wearing a seat belt. It based its findings on the third expert report and the oral evidence. It did not give any weight to the second expert report. Finally, the trial court upheld the compensation claim lodged by Judge M.A., her husband and her other daughter against the applicant’s insurance company, which had acknowledged the claim (го призна барањето). 27. On 4 April 2008 the applicant appealed against the judgment, arguing, inter alia, that the case should have been assigned to another court, and that Judge C.K. had previously worked as a court clerk delegated to Judge M.A. for several years. In this connection he submitted that there had already been such transfers in cases concerning criminal proceedings against a public prosecutor and a president of a court. There had been grounds for exclusion under section 36(2) of the Criminal Proceedings Act. The trial court had not provided any reasoning in respect of the second expert report, and had not admitted evidence proposed by the applicant. The third expert report was identical to the first and contradictory to the second, as regards the speed at which the applicant had been driving at the time of the accident. The applicant further requested that the case be remitted and heard either before a different panel of the trial court or before a different court. 28. On 24 September 2008 the appellate court dismissed the applicant’s appeal, upheld the prosecutor’s appeal, and increased the sentence to six years’ imprisonment. The part of its judgment concerning the alleged lack of impartiality reads as follows: “The complaints about a violation of section 36(2) of the [Criminal Proceedings Act] are groundless ... [the applicant’s] defence lawyer applied for exclusion of [Judges C.K, G.M., S.D. and T.D.]. According to the statements given by the Judges, the President of the Court of First Instance took a decision ... by which he dismissed the application for exclusion, for reasons stated in the decision.” 29. The appellate court further held that the second expert report had not been ordered by the court, that the experts had not been warned of their duties and had not taken an oath, that the court had not established which matters should have been addressed by the report, and that it was for the trial court to decide whether it would accept the report. As regards the applicant’s complaint that evidence proposed by him had not been admitted at the trial, the appellate court held that this did not amount to a violation of the applicant’s right to defence, as the trial court was not obliged to accept all proposed evidence. 30. On 11 November 2008 the applicant lodged a request for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда), arguing that the trial court had refused his request for an additional expert report (супервештачење) to be commissioned from an independent institution. Citing Articles 6 and 8 of the Convention, the applicant complained that Judge C.K., the clerk of the victim’s mother (Judge M.A.), had adjudicated the case, and that Judge M.A. was the president of the criminal section of the trial court. He further complained about the refusal to assign the case to another competent court. 31. On 13 January 2009 the Supreme Court dismissed the applicant’s request and confirmed the lower courts’ judgments. It endorsed the lower courts’ findings and reasoning, without providing further reasoning in respect of the applicant’s complaint concerning the judges’ alleged bias. 32. On 21 September 2010 and 29 March 2011 the Supreme Court dismissed two requests by the applicant for extraordinary mitigation of his sentence (барање за вонредно ублажување на казната).	1
test	001-167828	ENG	HUN	GRANDCHAMBER	2,016	CASE OF MAGYAR HELSINKI BIZOTTSÁG v. HUNGARY	1	Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)	Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Egidijus Kūris;Ganna Yudkivska;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Kristina Pardalos;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Mahoney;Robert Spano;Ksenija Turković	10. The applicant, Magyar Helsinki Bizottság (Hungarian Helsinki Committee), is a non-governmental organisation (NGO) that was founded in 1989. It monitors the implementation of international human-rights standards in Hungary, provides legal representation to victims of alleged human-rights abuses and promotes legal education and training both in Hungary and abroad. Its main areas of activity are protecting the rights of asylum seekers and foreigners in need of international protection, and monitoring the human-rights performance of law-enforcement agencies and the judicial system. In particular, it focuses on access to justice, conditions of detention, and the effective enforcement of the right to defence. 11. Between 2005 and 2007 the applicant NGO conducted a project “Model Legal Aid Board Programme” aimed at developing and testing a model to overcome shortcomings in the system for the ex officio appointment of defence counsel. The study summarising the outcome of the project was published in 2007 under the title “Without Defence”, suggesting that there should be a standard set of criteria developed to assess the quality of defence counsel’s work. 12. In 2008, as a follow-up to its 2005-2007 survey, the applicant NGO launched a new project entitled “The Right to Effective Defence and the Reform of the ex-Officio Appointment System”. Together with the Ministry of Justice and Law Enforcement and various bar associations, the applicant NGO developed a questionnaire aimed at evaluating the performance of defence counsel. It also assessed the quality of legal representation provided by ex officio appointed and retained defence counsel, by examining the case files in 150 closed criminal cases. In parallel, the applicant NGO made a contribution in respect of Hungary to the comparative research project “Effective Defence Rights in the European Union and Access to Justice: Investigating and Promoting Best Practices” carried out in nine European countries and funded by the European Commission and the Open Society Justice Initiative. The results of the two projects were presented at a conference in April 2009, the conclusions of which were summarised in the report “In the Shadow of Suspicion: A critical account of enforcing the right to an effective defence”. 13. In addition, the applicant NGO carried out continuous advocacy activities for reform of the ex officio appointments system; in cooperation with the Budapest Bar Association, it also drew up recommendations for a proposed code of professional ethics for ex officio defence counsel. 14. In the applicant NGO’s assessment, its research showed that the system of ex officio appointed defenders did not operate adequately, essentially because the investigative authorities, in particular the police, were free to choose defence counsel from a list compiled by the relevant bar associations. This gave rise to distrust on the part of defendants. Furthermore, according to the applicant NGO’s findings, many police departments had recourse to the same lawyers or law firms in the majority of cases, resulting in defence counsels’ dependency on ex officio appointments to earn their living. The applicant NGO also concluded that the selection system lacked transparency. 15. In 2009, in the framework of the project “Steps Towards a Transparent Appointment System in Criminal Legal Aid”, an experimental method was put in place, in cooperation with the applicant NGO, the county bar associations and certain county police departments. A key facet of this method was replacement of the existing system of discretionary appointments by a randomised computer-generated one. 16. As a feature of the project, the applicant NGO requested the names of the public defenders selected in 2008 and the number of assignments given to each lawyer from a total of twenty-eight police departments, situated in the seven Hungarian regions. The aim of the data request was to demonstrate whether there existed discrepancies in police departments’ practice in appointing defence counsel from the lists provided by the bar associations. These requests were made under section 20 (1) of Act no. LXIII of 1992 (“the Data Act”). The applicant NGO maintained that the number of defence counsel appointments was public-interest data (közérdekű adat) and that thus the names of defence counsel were data subject to disclosure in the public interest (közérdekből nyilvános adat). 17. Seventeen police departments complied with the request; a further five police departments disclosed the requested information following a successful legal challenge by the applicant NGO. 18. On 18 August 2009 the applicant NGO addressed the same request to the Hajdú-Bihar County Police Department, seeking access to information concerning the names of defence counsel appointed in the police department’s area of jurisdiction and the number of appointments given to each defence counsel. 19. In its response of 26 August 2009 the Hajdú-Bihar County Police Department refused the applicant NGO’s request, stating that “the names of the defence counsel are not public-interest data nor information subject to disclosure in the public interest under section 19(4) of the Data Act, since defence counsel are not members of a body performing State, municipal or public duties. Thus their names constitute private data, which are not to be disclosed under the law”. The police department also referred to the disproportionate burden the provision of the data would impose on it. 20. A similar request by the applicant NGO was rejected by the Debrecen Police Department on 27 August 2009. 21. On 25 September 2009 the applicant NGO brought an action against these two police departments, arguing that ex officio defence counsel performed a duty in the interest of the public which was financed from public funds. Data concerning them thus qualified as information subject to disclosure in the public interest. 22. In its counter-claim, the Hajdú-Bihar County Police Department maintained its view that the names of defence counsel constituted personal data rather than information subject to disclosure in the public interest, since they neither carried out their tasks within the scope of the duties and competences of the police departments, nor were they members of those bodies. It further maintained that processing the data requested by the applicant NGO would entail a prohibitive workload. 23. The Debrecen Police Department requested the discontinuation of the proceedings. 24. The Debrecen District Court joined the two cases. On 21 October 2009 the District Court found for the applicant NGO, ordering the respondents to release the relevant information within 60 days. 25. The court found that although defence counsel did not qualify as persons performing public duties, they were also not employees or agents of the respondent police departments, and the question whether defence was an activity of a public-interest nature was a matter which should be assessed with reference to its aim and role. Referring to Article 46 of the Code of Criminal Procedure on mandatory defence and to Article 48 of the same Code on the investigative authorities’ duty to appoint defence counsel under certain conditions, the court observed that the duties of the investigative authorities also included giving effect to the constitutional right to defence. The court concluded that measures concerning the exercise of mandatory defence qualified as public-interest activities, and any related data were of great importance for society and were not to be considered as a matter of personality rights or subject to the protection of private interests. The names of defence counsel and the number of their respective appointments did not therefore constitute information of a private nature, in relation to which disclosure would only be possible with the approval of the person concerned. The court went on to state that, given the public-interest nature of mandatory defence, the interest in informing society seemed to be stronger than the need to protect privacy, which in any case was not infringed since the role of defence counsel was public from the moment of indictment. The court ordered the respondents to surrender the information requested. 26. Both police departments appealed, reiterating in essence their argument that the names and number of appointments of defence counsel did not represent information subject to disclosure in the public interest, but personal data, since those persons did not perform State, municipal or public duties. They also maintained that the transfer of the requested information would cause an undue burden. 27. In its judgment of 23 February 2010, the Hajdú-Bihar County Regional Court, acting as a second-instance court, overturned the firstinstance judgment and dismissed the applicant NGO’s claim in its entirety. The court rejected the applicant NGO’s argument that ex officio defence counsel exercised public functions within the meaning of the Data Act. In the court’s view, the provisions of the Code of Criminal Procedure relied on by the applicant NGO provided for equal recognition before the law and for the right to defence and imposed a duty on the State to ensure these rights. However, the provisions did not prescribe that the activities of ex officio defence counsel were public duties, irrespective of the fact that they were financed by the State. The court held that the duty of the police to appoint defence counsel in certain cases was to be distinguished from the latter’s activities. It noted that personal data could only be processed under section 5(1) of the Data Act for a well-defined purpose in the exercise of a right or in fulfilment of an obligation, and that personal data processed by the police departments could only be transferred with the permission of the person concerned. 28. The applicant NGO sought review of the second-instance judgment, maintaining that although the names of the defence counsel and the number of their respective appointments were personal data, this was nevertheless information subject to disclosure in the public interest as being related to the public duties carried out by ex officio defence counsel. 29. The Supreme Court dismissed the applicant NGO’s petition for review on 15 September 2010. It upheld the Regional Court’s judgment in substance, partly modifying its reasoning. 30. The Supreme Court held as follows: “... [W]hat needs to be examined is whether defence counsel are to be considered ‘other persons performing public duties’. The Supreme Court considers, in compliance with Recommendation no. 1234/H/2006 of the Parliamentary Commissioner for Data Protection, that the question of whether an individual was a person performing public duties has to be determined solely on the basis of the provisions of the Data Act. Only a person vested with independent powers and competences is to be considered a person performing public duties. In answering this question [of interpretation of the notion of ‘persons performing public duties’], the applicant’s argument concerning Article 137(2) of the Criminal Code is irrelevant, since that provision only prescribes that defence counsel were to be regarded as persons performing public duties for the purposes of the Criminal Code itself, but not for the purposes of the Data Act or for any other legal relationship. Under Article 57 § 3 of the Constitution, the State has a duty to secure the right to defence. The courts, the prosecution services and the investigative authorities perform this task by, in particular, ensuring the right to defence (Article 5 § 3 of the Code of Criminal Procedure) and by appointing defence counsel when required under Articles 46 and 48 of the Code of Criminal Procedure. In so doing, these bodies accomplish their public duties, which are thus terminated with the appointment of defence counsel. Following his or her appointment, a defence counsel’s activities constitute private activities although they are performed in pursuance of a public goal. The court has thus found that defence counsel cannot be regarded as ‘other persons performing public duties’, since no powers or competences defined by law are vested in them. The mere fact that procedural laws specify rights and obligations in respect of persons performing the task of defence counsel in criminal proceedings cannot be interpreted as constituting powers and competences defined by law. In respect of the right to defence, the Code of Criminal Procedure prescribes obligations only for authorities, not for defence counsel. The wording of Article 1 of the Code of Criminal Procedure, which states that prosecution, defence and adjudication are separate tasks, also supports this view. Thus, the names and number of appointments of defence counsel constitute personal data under section 2(1) of the Data Act. Accordingly, under section 19(4) of the Data Act, the respondent police departments cannot be obliged to surrender such personal data. It follows that the second-instance court was right to dismiss the applicant’s action.”	1
test	001-170658	ENG	RUS	COMMITTEE	2,017	CASE OF TRETYAKOV v. RUSSIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)	Branko Lubarda;Dmitry Dedov;Helena Jäderblom	3. The relevant details of the application are set out in the appended table. 4. The applicant complained of the inadequate conditions of his detention in two detention facilities in St Petersburg during two separate periods: in facility no. IZ-1 from 10 May 2011 to 25 April 2012 and in facility no. IZ-4 from 25 April 2012 to 24 June 2015. 5. The Government submitted a declaration with a view to resolving the issues raised by the application. In particular, they acknowledged that the conditions of the applicant’s detention in facility no. IZ-1 in St Petersburg from 10 May 2011 to 25 April 2011 violated his right guaranteed by Article 3 of the Convention. They offered to pay the applicant 4,935 euros and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay that amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The Government did not comment on the applicant’s complaint about the conditions of his detention in facility no. IZ-4 from 25 April 2012 to 24 June 2015. The applicant informed the Court that he agreed to the terms of the declaration.	1
test	001-157361	ENG	POL	ADMISSIBILITY	2,015	ZIMA v. POLAND	4	Inadmissible	Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney	1. The applicant, Ms Janina Zima, is a Polish national, who was born in 1960 and lives in Ropczyce. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarized as follows. 4. On 28 November 1997 the applicant filed an application with the Social Security Board (Zakład Ubezpieczeń Społecznych – “the SSB”) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 5. Along with her application for a pension, she submitted, among other documents concerning her son’s health, a medical certificate issued by a specialist doctor on 3 November 1997. The certificate stated that the child (born in 1988) suffered from hypothyroidism (niedoczynność tarczycy) and was in need of the parent’s constant care. 6. On 16 December 1997 the SSB issued a decision granting the applicant the right to an earlyretirement pension in the net amount of 377 Polish zlotys (PLN) per month, starting from 1 November 1997. 7. The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and she continued to receive her pension without interruption until the date of the revocation of the right. 8. On 13 July 2009 the SSB reviewed the applicant’s pension application under section 114 (1a) of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund (Ustawa o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych – “the 1998 Law”). 9. The SSB requested the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 15 July 2009 the doctor stated that, on the basis of the medical documents, the child in question could not be considered as ever having required such care. 10. On 17 July 2009 the SSB simultaneously issued two decisions in respect of the applicant. By virtue of the first decision, the payment of the applicant’s pension was discontinued starting from 1 August 2009. By virtue of the second decision, the Board revoked the initial decision of 16 December 1997 and eventually refused to award the applicant the right to an early-retirement pension under the scheme provided for by the Cabinet’s Ordinance of 15 May 1989 on the right to early retirement of employees raising children who require permanent care (Rozporządzenie Rady Ministrów z dn. 15 maja 1989 w sprawie uprawnień do wcześniejszej emerytury pracowników opiekujących się dziećmi wymagającymi stałej opieki – “the 1989 Ordinance”). 11. The applicant appealed against the above-mentioned decision divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to her original application for a pension. 12. On 2 December 2009 the Rzeszow Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal. On the basis of a report on the state of health of the applicant’s child prepared by an expert in endocrinology the court found that the applicant’s son had not required, as of 28 November 1997, a constant care of his mother. It held that the proceedings had been reopened by the SSB in accordance with section 114 of the 1998 Law and the applicant had been rightfully divested of her right to an EWK pension. 13. On 10 February 2010 the Rzeszów Court of Appeal (Sąd Apelacyjny) dismissed the applicant’s appeal against the first-instance judgment. It agreed with the first-instance courts’ findings of fact. As regards the reopening of the proceedings, it observed that the SSB had acted in accordance with section 114 of the 1998 Law. In that context, it referred, in particular, to paragraph 1a of this provision which explicitly allowed the SSB to reopen the proceedings if it came to light that the submitted evidence had not constituted sufficient grounds for the right to the pension to be established. It also noted that, in the applicant’s case, the proceedings had been reopened because new evidence had been obtained by the authority, namely the documents relating to the course of the child’s medical treatment. 14. The applicant did not lodge a cassation appeal with the Supreme Court (Sąd Najwyższy). 15. Nor did she lodge a request for the reopening of judicial proceedings in her case on the basis of the judgment of the Constitutional Court (Trybunał Konstytucyjny) of 28 February 2012 declaring section 114(1a) of the 1998 Law unconstitutional (see paragraphs 22-27 below). 16. The legal provisions applicable at the material time and questions of practice are set out in the judgments in the case of Moskal v. Poland, no. 10373/05, §§ 3134, 15 September 2009 and Antoni Lewandowski v. Poland, no. 38459/03, §§ 3643, 2 October 2012. 17. By virtue of the law of 20 April 2004 on amendments to the law of 1998 on retirement and disability pensions paid from the Social Insurance Fund and to certain other acts (Ustawa o zmianie ustawy o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych oraz niektórych innych ustaw – “the 2004 Act”), which entered into force on 1 July 2004, a new paragraph 1a was added to section 114 of the law. The amended section 114 of the 1998 Law provided as follows: “1. The right to benefits or the amount of benefits will be re-assessed upon application by the person concerned or, ex officio, if, after the validation of the decision concerning benefits, new evidence is submitted or circumstances, which had existed before issuing the decision and which have an impact on the right to benefits or on their amount, are discovered. 1a. Paragraph 1 applies if after the validation of the decision it comes to light that the submitted evidence did not constitute sufficient grounds for the right to the retirement pension or disability pension or for their amount to be established.” 18. On 5 June 2003, before paragraph 1a was added to section 114 of the 1998 Law, the Supreme Court adopted a resolution in which it held: “A different assessment of the [same] evidence as attached to the application for a retirement or disability pension, carried out by a social security authority after validation of the decision awarding the right to a pension, is not one of the circumstances justifying the ex officio re-opening of the proceedings for a review of the right to a pension in accordance with section 114 of the Law of 17 December 1998 on retirement and disability pensions paid from the Social Insurance Fund.” 19. In a judgment given on 21 September 2010 (case no. III UK 94/09) the Supreme Court held that, when applying section 114(1) of the 1998 Law, the domestic courts should take into account the criteria set out in the Court’s judgment in the Moskal case. They should first establish whether the mistake in granting a social security benefit had been caused by the authorities themselves without any fault of the person concerned. In examining whether the social security authority was allowed to reopen the proceedings, they should also take into account the period of time that had elapsed from the date when the social benefit in question had been granted. When applying the provision of domestic law they should assess the proportionality of the consequences of the interference with an individual’s right to a social benefit. Accordingly, where the mistake had been caused by the authorities themselves and the revocation of the benefit would entail substantial negative consequences for an individual, the relevant decision should not be revoked. 20. In a judgment of 24 March 2011 (case no. I UK 317/10) the Supreme Court reiterated that the revocation of the right to a social security benefit following the reopening of the proceedings under section 114 of the 1998 Law should be assessed in the light of the criteria set out in the Court’s judgment in the Moskal case. In this connection the Supreme Court underlined that the European Convention on Human Rights constituted an integral part of the Polish legal system and that the domestic courts should therefore interpret the provisions of the domestic law in the light of the jurisprudence of the Court. 21. In a judgment of 5 April 2011 (case no. III UK 92/10) the Supreme Court held that section 114(1a) of the 1998 Law should not be interpreted as providing a separate legal basis for reopening of the proceedings concerning the grant of a social security benefit and should be read in conjunction with section 114(1). If this provision was to be understood as allowing the social security authority to reopen the relevant proceedings of its own motion merely on the basis of a new assessment of previously submitted evidence, it would have to be considered incompatible with the principle of the rule of law set forth in Article 2 of the Constitution. The Supreme Court considered that its interpretation of the provisions of the 1998 Law was further supported by the principles set out in the Moskal judgment of the Court. 22. On 10 February 2011 the Ombudsman made an application to the Constitutional Court, asking for section 114(1a) of the 1998 Law to be declared unconstitutional. The Ombudsman argued that the impugned provision was unconstitutional in so far as it expressly allowed for an ex officio reopening of proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of the evidence which had already been submitted before the relevant authority. 23. On 28 February 2012 the Constitutional Court held that section 114(1a) of the 1998 Law was in breach of Article 2 (the principle of the rule of law) and Article 67 § 1 (the right to social security) of the Constitution. It found that, as the provision in question allowed for an unlimited re-assessment of evidence which constituted grounds for the initial decision concerning the entitlement to a social security benefit, it was in breach of the principle of the rule of law as set forth in Article 2 of the Constitution. 24. Furthermore, the Constitutional Court found that the provision in question did not strike a fair balance between the general interest and an individual’s right to social security under Article 67 § 1 of the Constitution. The court considered that an interference with individual rights guaranteed by Article 67, which pursued the aim of correcting the authority’s own mistake, could only be justified under exceptional circumstances. However, on the basis of the impugned provision the social security authority could, at any time and without any limitations, review the decision concerning a social security benefit by means of re-assessment of the evidence before it. 25. In the grounds for the ruling the Constitutional Court also referred to the Court’s Moskal judgment. It noted that this case had likewise concerned a revocation of the right to a social security benefit following the reopening of the social security proceedings, which had been, however, based on section 114(1) of the Law 1998 as section 114(1a) had not been in force at the material time. It further observed that the Court’s judgment had influenced the interpretation of section 114(1) of the 1998 Law by the Supreme Court (see paragraphs 19-21 above). 26. Lastly, with regard to the consequences of its ruling, the Constitutional Court noted that the breach of Constitution should be remedied by restoring the state of conformity with the law (wymaga przywrócenia stanu zgodnego z prawem). In that context, the Constitutional Court explicitly stated that the finding of unconstitutionality of section 114(1a) of the 1998 Law should be a ground for the reopening of proceedings in which final rulings had been based on this provision. 27. On 8 March 2012 the judgment was published in the Journal of Laws of the Republic of Poland (Dziennik Ustaw) and entered into force on that date. 28. Article 190 of the Constitution, in so far as relevant, provides as follows: “1. Judgments of the Constitutional Court shall be universally binding and final. 2. Judgments of the Constitutional Court,... shall be published immediately. 3. A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act... 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final judicial decision, final administrative decision or ruling on other matters was given, shall be a basis for reopening proceedings, or for quashing the impugned decision or ruling in a manner and on principles specified in provisions applicable to the given proceedings.” 29. In accordance with Article 399 read in conjunction with Article 4011 of the Code of Civil Procedure (Kodeks Postępowania Cywilnego) a party to civil proceedings terminated by a final judgment may request that these proceedings be reopened, if the Constitutional Court has found that the normative act on the basis of which this judgment was given was incompatible with the Constitution. 30. Pursuant to Article 407 § 2, a request to that effect shall be lodged within three months from the date on which the judgment of the Constitutional Court has entered into force. Pursuant to Article 408 a request for the reopening of the proceedings must be lodged within five years from the date on which the final judgment has been given, unless the party could not act in the proceedings or was not properly represented. 31. Under Article 412 § 1 of the Code, a reopened case is to be examined within the limits determined by the grounds for the reopening. According to § 2 of this provision, after a fresh examination of the case, the court may either dismiss the request for reopening, or allow it and alter or quash the impugned judgment. If need be, it may reject the claim on formal grounds or discontinue the proceedings.	0
test	001-168383	ENG	RUS	COMMITTEE	2,016	CASE OF DZHAVADOV v. RUSSIA	4	Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)	Branko Lubarda;Dmitry Dedov;Helena Jäderblom	6. The applicant was born in 1976 and is detained in Togliatti, Samara Region. 7. On 19 October 2006 the applicant was arrested on suspicion of drug dealing. 8. On 20 October 2006 the Samarskiy District Court of Samara remanded the applicant in custody. The court held that the applicant was suspected of a serious crime, that he could abscond, commit crimes, destroy evidence, threaten witnesses or in any other way interfere with the investigation. 9. On 18 December 2006 the District Court extended the applicant’s pre-trial detention. The court reproduced the reasoning of the previous detention order. The court also indicated that the applicant had played a leading part in the criminal activities. 10. On 15 February 2007 the District Court extended the applicant’s pretrial detention on the ground that the investigation was still pending and it was necessary to conduct some investigative activities. The court further referred to the same grounds as in the previous detention orders. 11. The Samara Regional Court rejected the applicant’s appeals against the detention orders. 12. On 1 June 2007 the Bolshechernigovskiy District Court of the Samara Region convicted the applicant of drug trafficking and sentenced him to 11 years’ imprisonment and a fine. On 21 August 2007 the Samara Regional Court upheld his conviction on appeal.	1
test	001-177392	ENG	TUR	COMMITTEE	2,017	CASE OF S.S. YENİKÖY KONUT YAPI KOOPERATİFİ v. TURKEY	4	Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)	Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens	4. The applicant, S.S. Yeniköy Konut Yapı Kooperatifi, is a housing construction cooperative under Turkish law operating in İzmir. 5. In 1993, a third party cooperative bought a plot of land measuring 12,000 square metres and the title deed of the land was registered in its name. In 1995, construction works started on the land in question. 6. In 2000, the forest administration initiated proceedings before the Menderes Civil Court of First Instance for the annulment of the title deed to the land, alleging that it was part of the public forest area. In the meantime, the third party cooperative had merged with the applicant cooperative and the land had been registered in the Land Registry in the name of the latter. 7. On 26 December 2002 the Menderes Civil Court of First Instance ordered that 9,322 square metres of the land be registered in the name of the Treasury as it was part of the public forest area. It also ordered that the buildings constructed on this part of the land be demolished. 8. Subsequently, the applicant brought a case before the Menderes Civil Court of First Instance and sought pecuniary damages from the Treasury under Article 1007 of the Civil Code which provided for the State’s responsibility for any damage resulting from the keeping of the land registry records. 9. On 4 February 2005 the Menderes Civil Court of First Instance awarded 138,917,600,000 Turkish Liras (TRL – approximately 81,716 euros (EUR) at the time) to the applicant. 10. On 7 February 2006 the Fourth Civil Division of the Court of Cassation quashed the judgment of the Menderes Civil Court of First Instance on the ground that there was no illegal act or action on the part of the land registry officials that might have had a causal link with the applicant’s loss. 11. On 6 July 2006 the applicant submitted a further petition to the Menderes Civil Court of First Instance and indicated that there was a decision of the First Civil Division of the Court of Cassation which was in contradiction with the decision of the Fourth Civil Division. In this context, the applicant alleged that its case should be accepted according to that decision of the First Civil Division issued on 7 May 2002 and numbered E.2002/3549 K.2002/5807. 12. On 20 October 2006 the Menderes Civil Court of First Instance followed the decision of the Fourth Civil Division of the Court of Cassation and dismissed the applicant’s claim. 13. The applicant appealed. Reiterating its allegations and referring to the decision of the First Civil Division of the Court of Cassation of 7 May 2002, it repeated its compensation request. 14. On 1 May 2007 the applicant’s appeal was rejected by the Fourth Civil Division of the Court of Cassation. This decision became final. 15. In their decisions, neither the Menderes Civil Court of First Instance nor the Fourth Civil Division of the Court of Cassation expressed any reason about why they had reached a different conclusion from the First Civil Division of the Court of Cassation.	1
test	001-148908	ENG	HRV	ADMISSIBILITY	2,014	KRIZMANIĆ v. CROATIA	4	Inadmissible	Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković	1. The applicant, Mr Mladen Krizmanić, is a Croatian national, who was born in 1963 and lives in Tinjan. He was represented before the Court by Mr B. Zustović, a lawyer practising in Pazin. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was employed with the publicly owned Labour Organisation for Road Maintenance and Construction in Pula (Radna organizacija za održavanje cesta Pula; hereinafter “Pula Road Maintenance”). At a meeting of the Central Housing Commission of Pula Road Maintenance held on 7 February 1989 it was decided that one of the two flats which constituted the Tinjan “road-workers’ house” (cestarska kuća u Tinjanu) would be given to the applicant, “since the flat was empty and Mladen Krizmanić did not have a flat”. By an agreement of the same day, the applicant’s employer granted him a specially protected tenancy (stanarsko pravo) for an indefinite duration for the flat at issue, which was publicly owned, and the applicant moved into the flat with his family. The relevant part of that agreement reads: Drawn up between the Labour Organisation for Road Maintenance and Construction in Pula ... represented by its director B.Č. and Mladen Krizmanić from the Tinjan roadworkers’ house as the holder of a specially protected tenancy (hereinafter “the tenant”). The Labour Organisation for Road Maintenance and Construction in Pula ... on the basis of a decision of the Central Housing Commission ... of 7 February 1989 allocates to Mladen Krizmanić from Tinjan a flat for official purposes in ... the Tinjan road-workers’ house on the ground floor. The flat consists of three rooms, a kitchen and a toilet and measures ninety-three square metres. On the basis of the above-mentioned decision of the Central Housing Commission, this agreement fixes the rent at 271dinars ... ... This agreement is concluded for an indefinite period ...” 5. On 3 June 1991 Parliament enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulated the sale of publicly owned flats previously let under specially protected tenancies. 6. Pula Road Maintenance was privatised and part of it became the Pula Road Company while the other part became “Croatian Roads” (Hrvatske ceste). 7. On an unspecified date the applicant asked Croatian Roads, one of the successors of his former employer and the owner of the flat occupied by the applicant, to conclude a contract for the sale of the flat between the owner as the seller and himself as the buyer. On 31 January 1994 the owner declined his request on the grounds that the applicant had not acquired a specially protected tenancy on the flat at issue because it had been designated as a “flat for official purposes”. 8. On 27 May 1994 the applicant brought a civil action in the Pazin Municipal Court (Općinski sud u Pazinu) seeking a judgment in lieu of the contract of sale. He argued that there was another flat in the same house, occupied by the M. family, and that neither flat had been allocated to employees performing road-maintenance functions. Moreover, those flats had never served any “official purpose”; they were simply residential accommodation. 9. On 20 March 1995 the Municipal Court accepted the applicant’s claim and established that he had the right to a specially protected tenancy on the flat at issue. 10. However, that judgment was quashed on 11 September 1995 by the Pula County Court (Županijski sud u Puli) and the case was remitted to the Municipal Court. 11. On August 1996 the Pazin Municipal Court established that the applicant had not acquired a specially protected tenancy on the flat in question. The court found that, even though some of the flats in so-called “road-workers’ houses” had indeed been sold under the Protected Tenancies (Sale to Occupier) Act, the majority had not been sold. The court also established that the flat at issue had not been allocated to the applicant for any “official purpose”. However, it found that the flat had been given to him for temporary occupation only, until he could be allocated another flat. 12. That judgment was upheld on 28 April 1997 by the Pula County Court, which also established that the flat at issue had been designated for “official purposes”. 13. On 23 December 1997 the applicant lodged an appeal on points of law (revizija), to be decided by the Supreme Court. He lodged it with the Pazin Municipal Court, as required under the Civil Procedure Act. It appears that it was not forwarded to the Supreme Court. 14. On 23 February 2005 the applicant lodged a complaint about the length of the civil proceedings with the Constitutional Court. On 17 February 2006 the Constitutional Court declared the complaint inadmissible on the grounds that the proceedings had ended on 28 April 1997. 15. However, on 8 May 2007 the Pazin Municipal Court instituted proceedings with a view to reinstating the applicant’s submission of 23 December 1997. The applicant’s appeal on points of law was subsequently forwarded to the Supreme Court, which dismissed it on 4 December 2007, fully endorsing the reasoning of the lower courts. 16. A subsequent constitutional complaint lodged by the applicant about the merits of the case was dismissed on 9 September 2010. It was served on the applicant’s lawyer on 30 September 2010. 17. The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991 and 91/1992), as in force at the material time, provided that in cases where a first-instance judgment had been upheld by that of the second-instance, it became res judicata when the second-instance court delivered its judgment. An appeal on points of law was regarded as an extraordinary remedy, that is, a remedy which could be lodged only against a res judicata judgment, and which did not, unless successful, affect the validity of that judgment.	0
test	001-160620	ENG	RUS	CHAMBER	2,016	CASE OF YEVDOKIMOV AND OTHERS v. RUSSIA	3	Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra	4. At the material time all the applicants were detained in Russian penal facilities. Where relevant, the dates of their detention are listed in Annex I. 5. While in detention, the applicants Mr Yevdokimov, Mr Rezanov, and Mr Morozov lodged defamation claims against private third parties; the applicants Mr Makhov, Mr Resin, Mr Anikanov, Mr Lebetskiy, Mr Gromovoy, Mr Gordeyev and Mr Vinokhodov brought claims seeking compensation for the allegedly inhuman conditions of their detention; and the applicant Mr Martirosyan lodged a civil claim for compensation, alleging that the criminal proceedings had been instituted unlawfully. 6. None of the applicants were able to attend the hearings at which their claims were examined. The domestic courts refused them the possibility to be present at the hearing, on the ground that there was no domestic legal provision for bringing detainees to courts. In particular, they quoted Article 77.1 of the Code on the Execution of Sentences (see paragraph 11 below) and the relevant provisions of the Code of Civil Procedure. In the other cases, the issue of the applicants’ presence in court was not addressed. 7. The applicants appealed, raising the question of their appearance in court in the appeal statement. Some submitted a separate request seeking leave to appear before the appeal court. The appeal courts either dismissed the applicants’ arguments or concluded that their absence from the court was in line with the legislation and did not contravene the principle of fairness. 8. The applicants’ claims were refused at two levels of jurisdiction. The dates of the final judgments are set out in Annex I.	1
test	001-156062	ENG	RUS	COMMITTEE	2,015	CASE OF BOLOTINY v. RUSSIA	4	Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)	Dmitry Dedov;Erik Møse;Khanlar Hajiyev	4. The first applicant was born in 1953 and the second applicant was born on 1957. They live in Izhevsk. 5. In 1986 the first applicant was called up to take part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result, he suffered from extensive exposure to radioactive emissions. In October 1996 experts established a causal link between the applicant’s disability and his involvement in the Chernobyl events. 6. Under domestic law the first applicant is entitled to monthly payments in compensation for health damage. He brought court proceedings against local authorities claiming adjustment of the monthly payments in line with the increase of a statutory minimum wage for the period between October 1996 and April 2000. 7. On 3 May 2000 the Oktryabrskiy District Court of Izhevsk of the Udmurtia Republic allowed his claim in part and ordered the Pensions and Social Allowances Department of the Oktyabrskiy District of Izhevsk and the Ministry of Social Welfare of the Republic of Udmurtia to pay the applicant a lump sum of 9,823.37 Russian roubles (RUB) in respect of the debt accrued as a result of previous underpayment. The court ordered that the award be paid at the expense of the federal budget. On 15 May 2000 the judgment became final and entered into force. 8. On 13 June 2000 the bailiffs’ office opened the enforcement proceedings. On 10 December 2003 those proceedings were discontinued on account of the respondent authority’s lack of funds. 9. On 24 May 2004 the amount awarded was paid to the first applicant in full. 10. Being a victim of the Chernobyl nuclear disaster, the first applicant is entitled to additional housing. As he was not offered any, he brought an action against the local authorities claiming to provide him with housing. 11. On 15 November 2004 the Oktyabrskiy District Court of Izhevsk found for the first applicant and ordered the Ministry of Architecture, Construction and Housing Policy of the Republic of Udmurtia to grant him a separate room which should meet sanitary and technical requirements and be well-equipped in accordance with the set standards. 12. The judgment was not appealed against and entered into force ten days later. 13. The Ministry of Construction of the Republic of Udmurtia did not execute the judgment due to lack of available housing. 14. On 31 January 2005 the respondent authority informed the first applicant that as of 15 December 2004 the competence to distribute the social housing to the victims of the Chernobyl nuclear disaster had been transferred to the Ministry for Disaster Relief of the Republic of Udmurtia, and since that date the Ministry of Construction had accordingly been unable to execute the judgment in his favour. 15. On 20 April 2005 the first applicant filed a claim to alter the mode of enforcement of the judgment of 15 November 2004 from in-kind provision of the room to monetary compensation for its acquisition. His claim was granted by the Oktyabrskiy District Court of Izhevsk on 11 May 2005 and he was awarded RUB 230,000 to be paid by the Ministry for Disaster Relief of the Republic of Udmurtia at the expense of the federal budget. 16. On 27 July 2006 the Federal Treasury Department at the Ministry of Finance informed the applicant that the debtor had not enforced the judgment and proposed to bring actions against the Ministry for Disaster Relief of the Russian Federation. 17. Since 25 April 2007 the State compensations for acquisition of housing to the victims of the Chernobyl disaster are provided only in form of housing certificates. 18. On 29 August 2008 the Oktyabrskiy District Court of Izhevsk ordered indexation of the awarded amount to RUB 547,400. That decision entered into force on 9 September 2008. 19. The award granted by the judgment of 15 November 2004 as amended by the indexation order of 29 August 2008 has not been paid to date.	1
test	001-175160	ENG	AZE	COMMITTEE	2,017	CASE OF ALISOY AND OTHERS v. AZERBAIJAN	4	Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)	André Potocki;Mārtiņš Mits	4. The applicants’ dates of birth and places of residence are given in the Appendix. 5. The applicants were opposition-oriented activists. At the material time the first applicant was a member of one of the opposition parties, the Popular Front Party of Azerbaijan. He participated in a number of peaceful demonstrations organised by the opposition and on several occasions was arrested and convicted for that. 6. On 12 October 2013 an opposition group İctimai Palata held a demonstration, authorised by the relevant authority, the Baku City Executive Authority (“the BCEA”). The demonstration was held in the Mahsul stadium, a place proposed by the BCEA. It was intended to be peaceful and was conducted in a peaceful manner. The participants were protesting against alleged irregularities and fraud during the presidential elections of 9 October 2013. 7. All three applicants participated in that demonstration. 8. After the end of the demonstration of 12 October 2013 the applicants were arrested at the entrance to a nearby metro station, Inshaatchilar. 9. The circumstances of the applicants’ arrests, their custody and subsequent administrative proceedings against them are similar to those in Huseynli and Others v. Azerbaijan (nos. 67360/11 and 2 others, 11 February 2016) and Huseynov and Others v. Azerbaijan ([Committee] nos. 34262/14 and 5 others, 24 November 2016) (see also Appendix).	1
test	001-184525	ENG	ITA	GRANDCHAMBER	2,018	CASE OF G.I.E.M. S.R.L. AND OTHERS v. ITALY	2	Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Abuse of the right of application;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Conviction;Criminal offence);No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Conviction;Criminal offence);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Just satisfaction reserved (Article 41 - Just satisfaction)	András Sajó;Branko Lubarda;Egidijus Kūris;Erik Møse;Guido Raimondi;Helen Keller;Iulia Motoc;Jon Fridrik Kjølbro;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano;Yonko Grozev	7. The applicant companies have their registered offices respectively in Bari (G.I.E.M. S.r.l.), Rome (Hotel Promotion Bureau S.r.l. and R.I.T.A. Sarda S.r.l.), and Pellaro (Reggio di Calabria) (Falgest S.r.l.). Mr F. Gironda was born in December 1959 and lives in Pellaro. 8. The applicant company owned a plot of land in Bari on the coast at Punta Perotti, with a total area of 10,365 sq. m, adjacent to land belonging at the time to a limited liability company Sud Fondi S.r.l. The land was classified as suitable for building in the general land-use plan (piano regolatore generale) in respect of two plots, the rest being earmarked for use by small businesses according to the plan’s specifications. 9. In By-Law no. 1042 of 11 May 1992 the Bari municipal council approved a site division and development plan (piano di lottizzazione hereinafter “site development plan”) submitted by Sud Fondi S.r.l. The plan provided for the construction of a multi-purpose complex, comprising housing, offices and shops. According to the applicant company, its land was automatically incorporated into the development plan by the municipal council. 10. On 27 October 1992 the Bari municipal authority asked the applicant company if it wished to be party to a site development agreement in order to be able to build on the land. If its response was negative, the authority would have to expropriate the land under Law no. 6 (1979) of the Apulia Region. 11. On 28 October 1992 the applicant company informed the Bari municipal authority that it wished to participate in a site development agreement. The authority did not reply. 12. On 19 October 1995 the Bari municipal authority issued a building permit to Sud Fondi S.r.l. 13. On 14 February 1996 Sud Fondi S.r.l. began the building work, which had mostly been completed by 17 March 1997. 14. On 27 April 1996, following the publication of a newspaper article about the building work carried out near the sea at Punta Perotti, the public prosecutor of Bari opened a criminal investigation. 15. On 17 March 1997 the public prosecutor ordered a temporary measure restraining disposal of property in respect of all the buildings in question. He also added the names of certain individuals to the register of persons prosecuted, including those of the authorised representative of Sud Fondi S.r.l. and the managers and foremen responsible for the building work. In his decision the public prosecutor expressed the view that the locality known as Punta Perotti was a protected natural site and that the building of the complex was therefore illegal. 16. The representatives of Sud Fondi S.r.l. challenged the temporary restraining measure before the Court of Cassation. In a decision of 17 November 1997 that court declared the measure null and void and ordered the return of all the buildings to their owners, on the ground that it was not prohibited to build on the site according to the land-use plan. 17. In a judgment of 10 February 1999 the Bari District Court acknowledged the illegality of the buildings erected at Punta Perotti as they had been built in breach of Law no. 431 of 8 August 1985 (“Law no. 431/1985”), which prohibited the granting of planning permission in respect of sites of natural interest, including coastal areas. However, since in the present case the local authority had issued the building permits, and in view of the lack of coordination between Law no. 431/1985 and the regional legislation, which was incomplete, the court found that no negligence or criminal intent could be imputed to the defendants. All the defendants were thus acquitted on the ground that the mental element of the offence had not been made out (“perché il fatto non costituisce reato”). 18. In the same judgment, finding that the development plans were materially in breach of Law no. 47/1985 and illegal, the Bari District Court ordered, in accordance with section 19 of that Law, the confiscation of all the developed land at Punta Perotti, including that belonging to the applicant company, together with the buildings thereon, and the incorporation of the property, without compensation, into the estate of the municipal authority of Bari. 19. In an order of 30 June 1999 the Heritage Minister (Ministro dei beni culturali) prohibited any building in the coastal area near the city of Bari, including at Punta Perotti, on the ground that it was a site of significant natural interest. That measure was declared null and void by the Regional Administrative Court the following year. 20. The public prosecutor appealed against the judgment of the Bari District Court, calling for the defendants to be convicted. 21. In a judgment of 5 June 2000 the Bari Court of Appeal overturned the decision of the court below. It found that the granting of planning permission had been legal, in the absence of any ban on building at Punta Perotti, and there having been no appearance of illegality in the procedure for the adoption and approval of the site development agreements. 22. The Court of Appeal thus acquitted the defendants on the ground that no material element of an offence had been made out (“perché il fatto non sussiste”) and revoked the confiscation measure in respect of all the buildings and land. On 27 October 2000 the public prosecutor appealed on points of law. 23. In a judgment of 29 January 2001 the Court of Cassation quashed the Court of Appeal’s decision without remitting it. It acknowledged the material illegality of the site development plans on the ground that the land in question was subject to an absolute ban on building and to a landscape protection measure, both provided for by law. In that connection, the court noted that at the time the development plans had been adopted (20 March 1990), Regional Law no. 30/1990 on landscape protection had not yet entered into force. Consequently, the applicable provisions in the present case were those of Regional Law no. 56 of 1980 (on land use and development) and National Law no. 431/1985 (on landscape protection). 24. The Court of Cassation observed that Law no. 56/1980 in fact imposed a prohibition on building within the meaning of section 51owed no derogation, because the site development plans concerned plots of land that were not situated within the city limits. The court added that, at the time when the site development agreements were adopted, the land in question was included in an implementation plan (piano di attuazione) for the general land-use plan which post-dated the entry into force of Regional Law no. 56/1980. 25. The Court of Cassation noted that in March 1990 (see paragraph 23 above), at the time when the site development plans had been approved, no implementation scheme (programma di attuazione) had been in force. In that connection the court referred to its case-law to the effect that an implementation scheme had to be in force at the time of the approval of site development plans (Court of Cassation, Section 3, 21 January 1997, Volpe; 9 June 1997, Varvara; 24 March 1998, Lucifero). The reason for this was again according to the case-law – that once an implementation scheme had expired, a building ban which had been discontinued by the scheme would become effective once again. Consequently, it was necessary to find that the land in question had been subject to a building ban at the time of the approval of the site development plans. 26. The Court of Cassation further referred to the existence of a landscape protection measure, under section 1 of National Law no. 431/1985. In the present case, as the competent authorities had not issued a notice of conformity with the requirements of landscape protection (that is, neither the nulla osta approval issued by the national authorities attesting to such conformity – under section 28 of Law no. 150/1942 – nor the prior approval of the regional authorities under sections 21 and 27 of Law no. 150/1942, nor the approval of the Regional Planning Committee under sections 21 and 27 of Regional Law no. 56/1980). 27. Lastly, the Court of Cassation noted that the site development plans concerned only 41,885 sq. m, whereas, according to the specifications of the general land-use plan for the city of Bari, the minimum area was set at 50,000 sq. m. 28. In the light of those considerations, the Court of Cassation thus found that the site development plans and building permits had been illegal. It acquitted the defendants on the grounds that they could not be found to have negligently or intentionally committed offences and that they had made an “unavoidable and excusable mistake” in the interpretation of the regional legislation, which was “obscure and poorly worded” and interfered with the national law. The Court of Cassation also took into account the conduct of the administrative authorities, and in particular the following facts: on obtaining the building permits, the defendants had been reassured by the director of the relevant municipal office; the site-protection prohibitions with which the construction project was at odds did not appear in the land-use plan; and the competent national authority had not intervened. Lastly, the Court of Cassation found that in the absence of any investigation concerning the reasons for the conduct of the public bodies, it was not possible to speculate on those reasons. 29. In the same judgment the Court of Cassation ordered the confiscation of all the buildings and plots of land, on the ground that, in accordance with its case-law, the application of section 19 of Law no. 47 of 1985 was mandatory in the case of illegal site development, even where the property developers had not been convicted. 30. The judgment was deposited in the court Registry on 26 March 2001. 31. In the meantime, on 1 February 2001 the applicant company had again asked the Bari municipal authority for permission to enter into a site development agreement. 32. On 15 February 2001 the Bari municipal authority informed the applicant company that, following the judgment of the Court of Cassation of 29 January 2001, the ownership of the land at Punta Perotti, including that belonging to the applicant company, had been transferred to the municipality. 33. The criminal proceedings described above gave rise to another application to the Court (see Sud Fondi S.r.l. and Others v. Italy, no. 75909/01, 20 January 2009). 34. On 3 May 2001 the applicant company applied to the Court of Appeal of Bari seeking the return of its land. It alleged that, in line with case-law of the Court of Cassation, the confiscation of property belonging to a third party in relation to criminal proceedings could be ordered only to the extent that the latter had participated in the commission of the offence, in terms of either material or mental elements. 35. In a decision of 27 July 2001 the Court of Appeal upheld the applicant company’s appeal. 36. The public prosecutor appealed on points of law. 37. In a judgment of 9 April 2002 the Court of Cassation quashed the decision of the Bari Court of Appeal and remitted the case to the Bari District Court. 38. The applicant company lodged an interlocutory application for review of the enforcement order, seeking the return of its land. 39. In a decision deposited in the court’s Registry on 18 March 2004, the Bari preliminary investigations judge (giudice per le indagini preliminari) dismissed the applicant company’s application. He first observed that the company’s grievances concerned neither the existence nor the formal lawfulness of the impugned measure, which was a mandatory administrative sanction that the criminal court was also entitled to impose in respect of the property of third parties which had not taken part in the commission of the offence of unlawful site development offence. The judge found that the public imperative of protecting land had to prevail over the individual interests. 40. The applicant company appealed on points of law. It emphasised that no construction work had actually been carried out on its land, which had not been the subject of a building permit. By its very nature, it argued, a confiscation measure should be directed solely against land upon which unlawful construction had taken place. 41. In a judgment of 22 June 2005, deposited in the court’s Registry on 18 January 2006, the Court of Cassation, finding that the Bari preliminary investigations judge had addressed all the points in dispute giving logical and correct reasons, dismissed the applicant company’s appeal on points of law. The court noted that the confiscation of the applicant company’s land had been compliant with its settled case-law whereby the measure provided for in section 19 of Law no. 47 of 1985 was a mandatory administrative sanction imposed by the criminal court on the basis of the incompatibility of the situation of the property in question with the legislation on unlawful site development, even where the defendants had been acquitted. Property owners who were not parties to the criminal proceedings and who claimed to have acted in good faith would be entitled to seek redress before the civil courts. 42. According to the information provided by the parties, in October 2012 the Bari municipal authority, having regard to the principles set out and the violations found by the Court in its Sud Fondi S.r.l. and Others judgments (merits and just satisfaction, no. 75909/01, 10 May 2012), asked the Bari District Court to return the confiscated land to the applicant company. In a decision of 12 March 2013 the preliminary investigations judge of that court revoked the confiscation measure and ordered the return of the land on account of the fact that, first, the Court had found a violation of Article 7 of the Convention in Sud Fondi S.r.l. and Others and, secondly, that the company was to be regarded as a bona fide third party because none of its directors had been found liable for the offence of unlawful site development. The judge’s decision was entered in the land register on 14 June 2013 and the applicant company was thus able to recover its property on 2 December 2013. 43. On 7 April 2005 the applicant company had applied to the Bari District Court, seeking compensation for the damage it had sustained as a result of the conduct of the Bari municipal authority and the consequences for the company’s assets. It reproached the municipal authority for: (1) failing to adopt an alternative to the land-use plan; (2) failing to clarify the existence of the constraints arising as to the authorised use of the areas concerned by the site development at issue; and (3) approving site development procedures which had apparently been lawful but had led to the confiscation of the land and had caused a significant economic loss. According to the information provided by the parties, the proceedings were still pending, as the expert’s report evaluating the damage, estimated at 52 million euros by the applicant company, had not yet been filed. 44. The applicant company R.I.T.A. Sarda S.r.l. was the owner of land suitable for building with an area of 33 hectares at Golfo Aranci. 45. Under the municipal development scheme (programma comunale di fabbricazione) for Golfo Aranci, approved on 21 December 1981, the land in question belonged to zone F – classified as a tourist zone – and was suitable for building within a given volume. It was possible to exceed that volume in the context of hotel or hotel-type development. 46. Wishing to build a hotel-type residential complex for tourists with a number of accommodation units (produttiva alberghiera), R.I.T.A. Sarda S.r.l. submitted a site development plan (piano di lottizzazione) to the competent authorities. 47. On 27 March 1991, under section 13 of Regional Law no. 45 of 1989, the Sardinia Region issued its nulla osta approval for building at a minimum distance of 150 metres from the sea, provided that once erected the buildings would actually be used for tourist accommodation. That obligation had to be recorded in the land register. 48. On 29 November 1991 the Sardinia Region granted the landscape transformation permit, under Law no. 431/1985 and section 7 of Law no. 1497/1939, to R.I.T.A. Sarda S.r.l. (see paragraphs 93-96 below). 49. The municipality of Golfo Aranci approved the site development plan with final effect on 17 December 1991. 50. On 22 April 1992, subject to the regional approval, the municipality of Golfo Aranci authorised the mayor to issue a derogating building permit allowing a greater construction volume than that provided for by its municipal development scheme, for the purposes of a hotel-type structure (opere alberghiere ricettive). The file shows that the site development plan concerned an area of 330,026 sq. m. 51. On 17 July 1992 the Sardinia Region issued its final approval of the plan. 52. In the meantime, on 22 June 1992, Regional Law no. 11/1992 had entered into force. It removed the possibility of derogating from the prohibition on building near the sea and fixed the minimum distance at 2 kilometres for dwellings and 500 metres for hotels. As regards buildings intended for hotel-type use, such as the hotel-type residential complexes for tourists in the present case, they were to be treated as dwellings. Under the same law, the minimum distance of 2 kilometres thus had to be maintained, except in the cases where, before 17 November 1989, a site development agreement had already been signed and the infrastructure work had already begun. 53. On 17 July 1992 the Sardinia Region authorised the mayor to grant a building permit to R.I.T.A. Sarda S.r.l. by way of derogation from the municipal land-use plan. 54. On 13 August 1992 the mayor of Golfo Aranci and R.I.T.A. Sarda S.r.l. entered into a site development agreement. Under Article 10 thereof the buildings erected on the site would continue to be used for tourist-hotel purposes and could not be sold off in separate units for a period of twenty years. The agreement stipulated that the development plan was compliant with section 13 of Regional Law no. 45/1989 and with the other planning regulations; it certified that the applicant company had paid a deposit of an amount equivalent to the total cost of the amenities. That work was to be paid for by the applicant company, which would also be required to assign 30% of the land free of charge to the municipality for the primary infrastructure (urbanizzazione primaria). 55. On 31 August 1992 the municipality of Golfo Aranci issued a permit for the primary infrastructure. On 23 November 1992 the municipality issued the building permit for the construction work. 56. On 19 February 1993, following the entry into force on 22 June 1992 (see paragraph 52 above) of Regional Law no. 11/1992, amending Regional Law no. 45/1989, the regional authority revoked certain permits that had been granted under the previous legislation. The applicant company was not affected. 57. The work began in 1993. In 1997 eighty-eight housing units, less than one third of the total number, had been built. A number of them had been sold to individuals, subject to a clause stipulating that the property had to remain assigned, for a number of years, for tourist-hotel use. 58. On 28 January 1995 R.I.T.A. Sarda S.r.l., which was seeking new partners to optimise the project and share the risks, asked the municipal authority whether the sale of the buildings to third parties was compatible with the development agreement. On 14 February 1995 the municipal authority stated that the agreement had been drafted clearly enough; it therefore did not need clarification. It gave a favourable opinion as to the possibility of selling the buildings, but not in single units and provided the intended use of the properties remained unchanged. 59. On 11 March 1996 the municipal authority, again approached by the applicant company, confirmed the opinion issued on 14 February 1995. 60. At an unknown date, R.I.T.A. Sarda S.r.l. entered into a preliminary contract of sale with Hotel Promotion Bureau S.r.l. concerning part of the land covered by the development agreement and certain buildings erected in the meantime. In addition, on 15 January 1996, Hotel Promotion Bureau S.r.l. entered into an agreement (contratto di appalto) with R.I.T.A. Sarda S.r.l. under which the latter undertook to carry out construction work on the land forming the object of the preliminary contract of sale. 61. With a view to becoming the owner of the land and buildings, on 26 February 1997 Hotel Promotion Bureau S.r.l. also signed agreements with a travel agent for the purpose of renting out units on a weekly basis. 62. On 22 October 1997 R.I.T.A. Sarda S.r.l. sold to Hotel Promotion Bureau S.r.l. 36,859 sq. m of land and the buildings known as “C2”, namely sixteen units for residential-tourist use. In addition to the buildings R.I.T.A. Sarda S.r.l. assigned the construction rights to Hotel Promotion Bureau S.r.l. The price of the transaction was fixed at 7,200,000,000 Italian lire (ITL), equivalent to 3,718,489.67 euros (EUR). 63. In November 1997 R.I.T.A. Sarda S.r.l. was the owner of sixteen housing units and the plots of land covered by the site development plan, with the exception of plot no. 644 and those previously sold to Hotel Promotion Bureau S.r.l., which was the owner of the land it had purchased and of sixteen units. 64. On 26 March 1998 the municipal authority approved the transfer (voltura) of the building permit concerning the land and buildings purchased by Hotel Promotion Bureau S.r.l. 65. On 3 April 2006, further to a request by R.I.T.A. Sarda S.r.l. for a planning certificate in respect of the relevant property for the period 19901997, the municipal authority stated that the development agreement signed with R.I.T.A. Sarda S.r.l. and the permits granted were compatible with the planning regulations in force at the material time, and in particular with Regional Law no. 45/1989, and it therefore considered that the offence of unlawful site development was not made out in the circumstances. 66. In 1997 the public prosecutor of Olbia opened a criminal investigation in respect of Mr M.C. and Mr L.C., the legal representatives of the applicant companies. They were suspected of a number of offences, including that of unlawful site development within the meaning of section 20 of Law no. 47/1985 for building too close to the sea and without planning permission, together with fraud for changing the intended use of the properties in breach of the development agreement. 67. On 20 November 1997 a court order restraining disposal of property was imposed on the land and buildings. 68. In a decision of 17 January 2000 the Sassari District Court returned the land and buildings to their rightful owners. 69. In a judgment of 31 March 2003 the Olbia District Court acquitted M.C. and L.C. on the merits in respect of all the offences, with the exception of that of unlawful site development, the prosecution of which was declared statute-barred. 70. Having regard to the entry into force of Regional Law no. 11 of 1992 (see paragraph 52 above) and the new minimum distance from the sea introduced therein, the District Court took the view that the municipality of Golfo Aranci should never have issued the building permits and that the previously issued authorisations could not legitimise the situation. The building permits were thus in breach of the law or, at least, ineffective (inefficaci). Although erected in accordance with the permits issued by the municipal authority, the constructions were thus incompatible with the statutory provisions and their existence thus constituted unlawful site development. In addition, the sale of the housing units to individuals cast doubt on their continued use for tourist-hotel purposes and this change of purpose also placed the buildings in breach of the law. In conclusion, the District Court ordered the confiscation of the property previously placed under a restraining order and the transfer of ownership to the municipality of Golfo Aranci within the meaning of section 19 of Law no. 47/1985. 71. As regards, in particular, the charge of fraud, the court took the view that the offence was not made out because there had been no financial loss to the municipality, since the cost of the infrastructure work remained the same even if the intended use changed. In addition, the mental element, that is to say the existence of intent to defraud the municipality, had not been proved in view of the fact that the sale had been carried out as a result of the financial difficulties of R.I.T.A. Sarda S.r.l. Moreover, the court pointed out that the municipal authority had issued the company with a favourable opinion as regards the sale of the buildings. 72. In a judgment of 11 October 2004 the Cagliari Court of Appeal upheld the Olbia District Court’s finding of dismissal (non doversi procedere) in respect of the offence which was statute-barred and reiterated that the municipality of Golfo Aranci should not have issued the building permits, which were illegal and in any event ineffective. The constructions erected were de facto incompatible with the regional legislation prohibiting them. In addition, between March 1995 and November 1997 most of the housing units had been sold off, thus changing their intended use. As to the charge of fraud, the Court of Appeal upheld the acquittal of the applicant companies’ legal representatives on the basis of the same considerations, on this point, as those of the District Court. It confirmed the confiscation order. 73. Mr M.C. and Mr L.C. appealed on points of law but their appeal was dismissed by the Court of Cassation in a judgment of 15 February 2007. 74. According to the information provided by the Government, on 29 July 2015 the individual purchasers of the confiscated property still retained full possession. Shortly before that, on 21 May 2015, a resolution of the municipality of Golfo Aranci had acknowledged the genuine interest of the community in keeping the confiscated complex, referring in particular to the possibility of using the housing to cope with situations of urgency in the event that the local authorities should decide to assign the use of the property, directly or indirectly, for rent by persons with low income. 75. The company Falgest S.r.l. and Mr Filippo Gironda were the coowners, each with a 50% interest, of a plot of land at Testa di Cane and Fiumarella di Pellaro (Reggio di Calabria) with a total surface area of 11,870 sq. m. The land-use plan provided solely for the possibility of building hotel-type residential complexes for tourists on that land. 76. On 12 October 1994 the applicants applied for a building permit to erect a tourist residential complex consisting of forty-two houses and sports facilities. 77. On 15 September 1997 the municipality of Reggio di Calabria issued the building permit. 78. After verification by the municipality, a number of variations from the plan were noted. The municipality ordered the suspension of the work on 26 January 1998. 79. On 29 January 1998 the applicants filed an amended plan (variante in corso d’opera), which provided for fewer houses (forty instead of fortytwo) and restricted the construction area. This amended plan sought to regularise the work as already carried out, within the meaning of Law no. 47/1985. 80. On 10 February 1998 the mayor of Reggio di Calabria cancelled the order suspending the work on the ground that the discrepancies in relation to the initial construction project could be regularised by means of the amended plan submitted in respect of ongoing work under section 15 of Law no. 47/1985. 81. On 1 October 1998 the inspector of the municipality of Reggio di Calabria noted that the work was in conformity with the amended plan. The work was pursued. 82. In 2002 the public prosecutor of Reggio di Calabria opened an investigation in respect of Mr Gironda, in his capacity as co-owner of the property, and five others: a director of the company, two signatories to the development project and two foremen. They were all suspected of committing a number of offences, in particular that of unlawful site development within the meaning of section 20 of Law no. 47/1985. 83. In a judgment of 22 January 2007 the Reggio di Calabria District Court acquitted all the defendants on the merits (perché il fatto non sussiste) in respect of all the charges, except for the offence of unlawful site development, the prosecution of which it declared statute-barred. The court noted that the project had provided for the construction of residences for hotel-type tourist accommodation. However, the structural specifications of the buildings (caratteristiche strutturali) and the evidence suggested that the real purpose of the project was the sale of houses to individuals, thus casting doubt on the intended hotel-type tourist use. This change of purpose rendered the site development unlawful. In conclusion, the court ordered the confiscation of the land and buildings and the transfer of the property to the municipality of Reggio di Calabria under section 19 of Law no. 47 of 1985. 84. In a judgment of 28 April 2009 the Reggio di Calabria Court of Appeal acquitted the applicants on the merits (perché il fatto non sussiste) in respect of all the charges, including that of unlawful site development. It revoked the confiscation of the property and ordered its return to the owners. 85. The Court of Appeal took the view, in particular, that the approved project was compatible with the land-use plan and the planning regulations. Given that there had been no preliminary or final contract of sale, there was no evidence of any change in the purpose of the constructions and therefore no unlawful development. 86. In a judgment of 22 April 2010, deposited in the Registry on 27 September 2010, the Court of Cassation quashed the judgment of the Court of Appeal without remitting it, finding that the change in purpose of the constructions was proved by statements made by third parties and by documents in the file. For the Court of Cassation, the offence of unlawful site development (the prosecution of which was statute-barred, entailing the dismissal of the case) had thus indeed been knowingly committed by the defendants. Consequently, the property in question again became subject to the confiscation order made at first instance by the Reggio di Calabria District Court. The acquittals were maintained. 87. According to an expert’s report of 5 May 2015, the expert having been appointed by the applicants, the complex confiscated from the latter was in an advanced state of abandonment and neglect. In the applicants’ submission, the municipal authority, which was the owner of the property, had not carried out any work to keep the open spaces maintained.	1
test	001-147679	ENG	GBR	CHAMBER	2,014	CASE OF DAVID THOMAS v. THE UNITED KINGDOM	4	No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention)	George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney	5. The applicant was born in 1968 and is currently detained in HMP North Sea Camp. 6. On 8 January 2008 he was convicted of attempted kidnapping. He received an indeterminate sentence for public protection (“IPP sentence”). A minimum term (“tariff”) of one year and nineteen days was fixed. 7. In July 2008 it was identified that the applicant was required to complete the Controlling Anger and Learning to Manage it (“CALM”) course to reduce his risk. 8. On 12 December 2008 he was transferred to HMP Stocken in order to participate in the CALM course. 9. The applicant’s tariff expired on 26 January 2009. 10. In March 2009 he commenced the CALM course. He completed it on 28 May 2009. 11. On an unknown date he completed the Alcohol Awareness and assertiveness and decision-making courses. 12. On 17 February 2010 an oral hearing took place before the Parole Board to review the applicant’s detention. On 26 February 2010 the Parole Board notified him that it had decided not to order his transfer to open conditions or release. It concluded that his level of risk remained incompatible with his safe management in open conditions. 13. By letter dated 21 June 2010 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. His review period was set at eighteen months. The review was therefore scheduled to commence in February 2011 with an oral hearing by the Parole Board in August 2011. 14. In September 2010 a sentence plan review took place and identified a further course, the Sex Offenders Treatment Programme (“SOTP”), for completion by the applicant. He had failed to admit before September 2010 that there was potentially a sexual element to his offence. Prior to commencement of the SOTP, a Structured Assessment of Risk and Need (“SARN”) was to be conducted. 15. In October 2010 the applicant complained to the prison requesting information on when the SARN would take place. On 17 November 2010 he was informed that he would have to be transferred to another prison establishment for assessment because of resource issues. 16. On 17 December 2010 he was moved to HMP Acklington for assessment. 17. On 20 January 2011 his solicitors sent a letter before claim to the governor of HMP Acklington and the Secretary of State indicating that judicial review proceedings were being considered in respect of the delay in arranging the assessment for the SOTP. 18. On 25 January 2011 the applicant’s offender supervisor contacted a forensic psychologist in training in order to discuss the applicant’s case. They agreed that an initial SOTP assessment should be completed. 19. By letter dated 8 February 2011 the Ministry of Justice informed the applicant that the assessment of his suitability for the SOTP would be completed by the end of February 2011. He would then be placed on a waiting list for the appropriate course. 20. The SOTP assessment was completed on 6 April 2011 and concluded that the applicant was motivated to engage in sex offender treatment. 21. On 7 April 2011 the forensic psychologist in training sought clinical guidance on the applicant’s case from the Operational Services Intervention Group (OSIG”). The OSIG decided that a Risk Matrix 2000 (“RM2000”) was required as well as a Treatment Needs Analysis (“TNA”) to assess the level of dynamic risk posed by the applicant. 22. On 23 June 2011 a forensic psychologist in training interviewed the applicant and told him that he had been referred for a TNA and RM2000. The applicant was informed that his case would be progressed over the next three months. 23. On 30 July 2011 the Parole Board reviewed the applicant’s case on the papers. By letter dated 18 August 2011 it informed him that it had not directed his release or recommended his transfer to open conditions. It explained: “The panel is satisfied that until you have undertaken the offending behaviour work that will be identified by the forthcoming assessments and ... a full assessment has been completed of your response to treatment it will be difficult to conclude that you have addressed the core factors that caused you to offend.” 24. On 31 August 2011 the TNA was completed. 25. By letter dated 28 September 2011 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. She considered that risk factors, namely sexual offending, thinking skills and behaviour and alcohol misuse, were outstanding. The letter clarified that the Secretary of State could not guarantee to place the applicant on the courses identified as there were limits on the availability of resources. 26. The applicant’s next review was set to commence in August 2012 and be completed by April 2013. The review period was made up of, inter alia, appropriate assessments, completion of sexual offender behaviour work, participation in the post-course review and the preparation of the SARN report. 27. At some point he was transferred to HMP Northumberland. 28. On 9 November 2011 he was told by prison staff that he was on a list of prisoners being considered for the next SOTP. 29. On 24 November 2011 the TNA and Treatment Pathway reports were completed. The applicant was deemed suitable for the SOTP. The reports were disclosed to him on 2 December 2011. 30. On 22 December 2011 his solicitors wrote to the governor of HMP Northumberland requesting that immediate steps be taken to place the applicant on the next SOTP. They expressed the view that there had been no progress since the April 2011 assessment. 31. On 3 May 2012 the applicant commenced the SOTP. He completed the course in November 2012. 32. A new target date of June 2013 was set to assess whether an oral Parole Board hearing ought to be held in his case. The outcome of the review is not known 33. A SARN report was produced on 3 April 2013. 34. On 4 October 2013 the Secretary of State accepted the applicant’s request for an exceptional transfer to open conditions. He was transferred on 5 November 2013.	0
test	001-153960	ENG	LUX	CHAMBER	2,015	CASE OF A.T. v. LUXEMBOURG	3	Remainder inadmissible;Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - claim dismissed	Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Mark Villiger	9. The applicant was born in 1973 and was detained in London at the time he lodged his application. 10. On 9 October 2009 the Public Prosecutor ordered an investigation against the applicant on charges of rape and indecent assault on a girl under the age of sixteen, with the aggravating circumstance that the perpetrator held a position of authority over her. 11. On 4 December 2009 the applicant was arrested in the United Kingdom under a European Arrest Warrant. The Government indicated that the applicant was presented with the European arrest warrant, which contained a statement in English of the facts and of the nature of the offences with which he was charged. The applicant submitted that he had been placed in “detention pending extradition” in a British prison, and that it did not transpire from the criminal file that the European arrest warrant had been served on him at that precise time. 12. On 17 December 2009 the applicant was surrendered to the Luxembourg authorities. At 2.45 p.m. he was officially served with the European arrest warrant on his arrival at Luxembourg airport, and at 3.20 p.m. he was questioned at the police station in the presence of an interpreter. It transpires from the police report of 17 December 2009 that “[the applicant] initially refused to make any statement. With repeated reference to British legislation, he claimed his right to legal assistance. After having received the requisite explanations regarding the procedure to be followed in cases such as his, he agreed to take part in the questioning”. The applicant was informed of the victim’s statements and the suspicions against him, and was questioned on the facts. He stated his version of events and contested all the charges against him, denying any guilt. At the end of the interrogation he requested legal assistance for the following day’s interrogation before the investigating judge. At 7.15 p.m. he was transferred to Luxembourg Prison. 13. On the morning of 18 December 2009 he was questioned by the investigating judge in the presence of an interpreter. In that connection, the minutes of the interrogation read as follows: at 9.02 a.m. the investigating judge checked the identity of the applicant – who now held accused (Beschuldigter) status – and informed him that a criminal investigation (Untersuchungsverfahren) had been initiated against him concerning the offences with which he had been charged. The applicant was then informed of his right to choose a defence lawyer from among the members of the Bar Association or to obtain the assistance of an officially appointed lawyer. The applicant availed himself of that right, and was assigned Mr W. as his officially appointed lawyer. The applicant was questioned in the presence of his lawyer and an interpreter; he made statements on the facts and confirmed his statements to the police. The interrogation ended at 10.53 a.m. 14. It transpires from the case file that the applicant, who had been remanded in custody, was released on 10 March 2010 by the Luxembourg District Court subject to his remaining in Luxembourg, reporting regularly to the police and refraining from contacting his victim. 15. By a judgment of 31 March 2011 the criminal division of the District Court sentenced the applicant to a seven-year prison term accompanied by a three-year partial probation period. The judges reiterated the statements from the victim, the witnesses and the applicant during the judicial and police investigations and during the court hearing. They mentioned the fact that the applicant had constantly changed his “version of events”, and pointed out that according to a credibility analysis none of the evidence gathered had cast any legitimate doubts on the truthfulness of the victim’s statements. 16. On 7 February 2012 the criminal division of the Court of Appeal upheld the first-instance judgment. 17. The judges observed that the applicant had contested the charges against him throughout the proceedings and that he was maintaining his objections before the Court of Appeal. They held that the district court had provided a detailed and exhaustive list of the statements by the victim, the applicant and the various witnesses and experts questioned. 18. They pointed out that the applicant’s lawyer had complained about the fact that after the applicant’s extradition from the United Kingdom had had been heard by the police on his arrival in Luxembourg without the benefit of legal assistance, which he had requested but been denied; the judges therefore concluded as follows: “As regards the failure to provide for the assistance of a lawyer during the question by police, it transpires from police report SPJ/JEUN/2009/6926-5/COES of 17 December 2009 that the accused had initially requested the assistance of a lawyer during the questioning which was to take place in the police station, but that after the applicable procedure had been explained to him he had agreed to give statements without the assistance of counsel.” 19. In their analysis of the charges against the applicant, the judges noted, among other things, that the latter had not always been consistent in his statements. With particular regard to one of the episodes in issue, they referred to the difference between the statements which he had made during the police questioning and his depositions during the first-instance and appeal hearings. 20. On 22 November 2012 the Court of Cassation dismissed the applicant’s appeal on points of law. In particular, it declared ill-founded a submission under Article 6 § 3 of the Convention, on the following grounds: “Whereas it transpires from the discussion of the submission that the [applicant] complains that the Court of Appeal merely found a violation of the rights of the defence without drawing the requisite conclusions from that finding; Whereas, however, the Court of Appeal held that ... [see quotation in paragraph 18]; That, in reaching such a decision the Appeal did not find a violation of the rights of the defence as alleged by the appellant but, on the contrary, concluded that there had been no violation of the rights of the defence inasmuch as the accused had recorded his agreement to making statements in the absence of counsel; It follows that the impugned judgment did not violate Article 6 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as alleged by the applicant; ...” 21. The applicant left Luxembourg for the United Kingdom (at an unspecified date), and on 20 December 2012 the prosecution issued a European arrest warrant for the purposes of executing the 7 February 2012 judgment. 22. On 12 June 2013, in response to a request from the British authorities (the Extradition Unit of the Crown Prosecution Service) dated 29 May 2013, a representative of the Principal State Prosecutor provided those authorities with information on judicial procedures in Luxembourg. As regards the hearing of 17 December 2009, the representative stated in particular that it had transpired from the police report that the applicant, whose statements had been translated by the interpreter, had neither been assisted by a lawyer or been offered legal assistance. As regards the interrogation of 18 December 2009, the representative explained that a lawyer officially appointed by the investigating judge had assisted the applicant during the interrogation and for the duration of the ensuing domestic proceedings. She added that anyone asking to consult his or her officially appointed or freely chosen lawyer, before an interrogation, was allowed to do so; contrary to his assertions, the applicant’s access to his lawyer before the interrogation of 18 December 2009 had not been restricted. 23. On 19 August 2013 the British court authorised the applicant’s surrender to the Luxembourg authorities in order to serve his sentence in Luxembourg; the applicant’s appeal against that decision was dismissed on 20 December 2013. According to the case file, the applicant is currently incarcerated in Luxembourg Prison.	1
test	001-159070	ENG	FRA	CHAMBER	2,015	CASE OF EBRAHIMIAN v. FRANCE	1	No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief)	Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano	5. The applicant was born in 1951 and lives in Paris. 6. The applicant was recruited on a three-month fixed-term contract, from 1 October to 31 December 1999, extended for one year from 1 January to 31 December 2000, as a contracted employee of the hospital civil service, to carry out the duties of a social assistant in the psychiatric unit of Nanterre Hospital and Social Care Centre (“CASH”) a public health establishment administered by the City of Paris. 7. On 11 December 2000 the Director of Human Resources informed the applicant that her contract would not be renewed with effect from 31 December 2000. The reason given for the decision – which had been taken following complaints by certain patients being treated at the Centre – was that the applicant refused to stop wearing her head covering. 8. On 28 December 2000, in response to a letter from the applicant alleging the illegality of the refusal to renew her contract in that it was motivated by her convictions and her affiliation to the Muslim faith, the Director of Human Resources indicated that at the meeting of 30 November 2000 which had preceded the administration’s decision, she had not been criticised for her religious beliefs, but merely reminded of the rights and duties of public employees, namely the ban on manifesting such beliefs. He continued: “I emphasised that I had been required to have a meeting with you following complaints made to Ms M., manager of the welfare and education unit, both by patients who were refusing to meet you on account of this display [of your beliefs] and by social assistants for whom it was becoming increasingly difficult to operate in this very delicate situation. It should be noted that Ms M. raised these difficulties with you and tried to persuade you not to manifest your religious beliefs, even before the complaints reached the HRD. Indeed, it was only shortly before the meeting with you on 30 November that the unit managers were officially informed of the problem created by the fact of your head covering. With regard to your head covering at the time of recruitment: as you are aware, the recruitment interview lasts, at the most, one hour. Individuals attend wearing ordinary “street” clothes, and do not necessarily have to remove their coats or scarves. The fact that your head was covered during that interview was not interpreted as a possible sign of [religious] affiliation, but simply as a form of attire. The termination of your contract has a legal basis, and does not result from a discriminatory situation.” The Director of Human Resources further reminded the applicant in this letter of the Opinion issued by the Conseil d’État on 3 May 2000. That Opinion stated that the principle of freedom of conscience, the principle of State secularism and the principle that all public services must be neutral prevented employees in the public sector from enjoying the right to manifest their religious beliefs; lastly, it pointed out that the wearing of a symbol intended to indicate their religious affiliation constituted a breach by employees of their obligations (see paragraph 26 below). 9. By an application registered on 7 February 2001, the applicant asked the Paris Administrative Court to set aside the decision of 11 December 2000. 10. By letters of 15 and 28 February 2001, the applicant was informed of the decision of the Director of Human Resources at the CASH to include her on the list of candidates for a recruitment test for social assistants and to permit her to take part. This decision was taken on the basis of the decree of 26 March 1993 granting special status to social assistants employed by State hospitals. That text stated that the social assistant’s task was to assist patients and their families who were experiencing difficulties in their dealings with the social services, by helping to draw up and implement the relevant programme in the establishment to which they were attached and also other social and educational programmes, in coordination, inter alia, with other institutions or the social services. The applicant did not take part in the recruitment test. 11. By a judgment of 17 October 2002, the Administrative Court held that the decision not to renew the contract had been compatible with the principles of secularism and the neutrality of public services: “... In view of Law no. 83-634 of 13 July 1983 [laying down the rights and duties of civil servants, see paragraph 25 below]... Although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly in terms of access to positions, career progress and the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle, which is intended to protect the users of the service from any risk of influence or of interference with their own freedom of conscience, concerns all public services and not only the education service; this obligation must be applied with particular stringency in those public services where the users are in a fragile or dependent state;...” It dismissed the applicant’s action, pointing out that the decision not to renew her contract had been taken on account of her refusal to remove her veil “following complaints submitted by certain patients in the care centre and in spite of repeated warnings by her line managers and friendly advice from her colleagues”. The court considered that on the basis of the above-mentioned principles concerning the expression of religious opinions within the public services, the administrative authorities had not committed an error of assessment in refusing to renew the contract on the implied grounds of her wearing of “attire manifesting, in an ostensible manner, allegiance to a religion”. It concluded “thus, even though the applicant’s employer tolerated the wearing of this veil for several months and [her] conduct cannot be considered as deliberately provocative or proselytising, the hospital has not acted illegally in deciding not to renew the contract following her refusal to stop wearing the veil.” 12. By a judgment of 2 February 2004, the Paris Administrative Court of Appeal held that the contested decision was disciplinary in nature, in that “it transpires from both the letter of 28 December from the Centre’s Director of Human Resources and the hospital’s defence pleadings that [the decision] was taken on account of [the applicant’s] persistence in wearing a veil for religious reasons during her working hours...”. It therefore quashed the decision on procedural grounds, given that the applicant had not been informed of the reasons for the envisaged measure prior to its adoption, nor given an opportunity to consult her case file. 13. In execution of the court of appeal’s judgment, the Director of the CASH invited the applicant to inspect the case file. By a reasoned judgment of 13 May 2005, he confirmed that her contract would not be renewed: “As a result of the judgment of the Paris Administrative Court of Appeal dated 2 February 2004, which held that the non-renewal of your fixed-term contract which expired on 31 December 2000 had been disciplinary in nature, we invited you again to inspect your administrative file on 10 May 2005, in order to bring the procedure into line with the regulations. As required in execution of the same judicial decision, we hereby inform you that the disciplinary basis for the non-renewal of your contract is your refusal to remove your veil, in that it ostensibly manifests your religious affiliation. In application of the principles of the secular nature of the State and the neutrality of public services, which underlie the duty of discretion imposed on every State employee, even those employed under contract, your refusal to remove your head covering when carrying out your duties effectively amounts to a breach of your obligations, thus exposing you to a legitimate disciplinary sanction, as the Conseil d’État held, with regard to the principle, in its Opinion concerning Ms Marteaux, dated 3 May 2000. Our decision not to renew the contract is all the more justified in the present case in that you were required to be in contact with patients when carrying out your duties.” 14. By a letter of 29 June 2005, the administrative court of appeal informed the applicant that the CASH had taken the measures required by the judgment of 2 February 2004. It advised her that where a decision was set aside on procedural grounds, the administrative body could legally take new decisions that were identical to those that had been set aside, provided that they complied with the relevant procedure, and that the new decision of 13 May 2005 could be challenged before the administrative court. 15. In January 2006 the applicant asked the Versailles Administrative Court to set aside the decision of 13 May 2005. She argued, in particular, that the Conseil d’État’s Opinion of 3 May 2000, relied upon by her employer, was intended to apply only to teachers. 16. By a judgment of 26 October 2007, the court dismissed her request, basing its decision on the principles of State secularism and the neutrality of public services: “... However, while the Conseil d’État’s Opinion of 3 May 2000 specifically concerns the case of an employee in the public education service, it also clearly states that the constitutional and legislative texts show that the principles of freedom of conscience, State secularism and the neutrality of public services apply to the public services in their entirety; although civil-service employees, like all citizens, enjoy the freedom of conscience and of religion laid down in the constitutional, legislative and convention texts, which prohibit any discrimination based on their religious beliefs or their atheism, particularly with regard to access to positions, career progress and also the disciplinary system, the principles of the secular nature of the State and the bodies to which its powers are delegated and of neutrality in public services preclude those employees, in the exercise of their duties, from being entitled to manifest their religious belief, especially through external sartorial expression; this principle is intended to protect the users of the service from any risk of influence being exerted or of interference with their own freedom of conscience. In view of the above-mentioned principles concerning the manifestation of religious opinions within the public service, the administrative body did not act illegally in refusing to renew the [applicant’s] contract on the implied grounds of her wearing attire manifesting, in an ostensible manner, allegiance to a religion.” 17. The applicant lodged an appeal against that judgment. 18. By a judgment of 26 November 2009, the Versailles Administrative Court of Appeal upheld the judgment, reiterating the reasons given by the lower courts. 19. The applicant appealed on points of law to the Conseil d’État. In her submissions, she emphasised that the administrative court of appeal had deprived its judgment of any legal basis in that it had failed to specify the nature of the item of attire worn by her which had justified the sanction. She referred to the disproportionate nature of that sanction, and alleged that it had been incompatible with Article 9 of the Convention. 20. By a judgment of 9 May 2011, the Conseil d’État declared the appeal inadmissible.	0
test	001-153772	ENG	ALB	ADMISSIBILITY	2,015	QESKA v. ALBANIA	4	Inadmissible	George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney	1. The applicant, Mr Pëllumb Qeska, is an Albanian national, who was born in 1945 and lives in Korça. He was represented before the Court by Mr A. Tabaku, a lawyer practising in Korça. 2. The Albanian Government (“the Government”) were represented by their then Agents, Ms S. Mëneri and Ms E. Hajro of the State Advocate’s Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was one of the co-owners of two plots of land situated in the city of Korça. The first plot of land (“plot A”) measured approximately 182.7 sq. m and the second plot of land (“plot B”) approximately 84 sq. m. 5. On an unspecified date the applicant initiated civil proceedings with the Korça District Court (“District Court”) seeking the partition of both plots of land in order to determine the shares of each of the co-owners. The co-owners agreed to the request. 6. On 27 July 2001 the District Court ruled in favour of the partition of both plots of land. It found that the applicant’s share consisted of thirty-three thirty-sixths of plot A and eleven twenty-fourths of plot B. That decision became final on an unspecified date in August 2001, no appeal having been lodged against it. 7. On an unspecified date in 2002 the applicant instituted a second set of proceedings for the partition of both plots of land, requesting allocation of both plots of land to him in view of the fact that he was the owner of the majority of shares. The co-owners contested the applicant’s request to have both plots of land allocated to him. 8. On 15 July 2002, having regard to the fact that the applicant was the owner of the largest portion of both combined plots of land upon which a multi-storey building could be erected in accordance with the urban study plans, the District Court allocated him both plots of land. The District Court rejected the other co-owners’ request to have plot B awarded to them. Moreover, the court ordered that the applicant pay compensation to all co-owners, in respect of their property shares, in accordance with an expert’s report. 9. On an unspecified date, V.Q., one of the fifteen co-owners of plot B, lodged an appeal with the Korça Court of Appeal (“Court of Appeal”) challenging the amount of the compensation paid to him as well as the part of the decision which awarded the applicant plot B. He alleged that since the other co-defendants owned thirteen twenty-fourths of plot B, they should have been awarded plot B. No appeal was lodged by the three co-owners of plot A. 10. On an unspecified date the Court of Appeal gave notice of the proceedings to the other fourteen co-owners of plot B who were involved as parties to the proceedings before the District Court. 11. On 9 October 2012 the court adjourned the hearing, none of the parties having shown up. Only the representative of three co-owners, who also had shares in plot A, was present. 12. On 22 October 2002 the court adjourned the hearing, V.Q. being absent on the strength of a (medical) report. According to the record, three co-owners as well as the representative of three co-owners, who also had shares in plot A, were present at the hearing. 13. On 1 November 2002 the court decided to continue the proceedings. Five co-owners as well as the representative of three co-owners, who also had shares in plot A, were present. The court decided to hear the expert and the parties’ lawyers at the next hearing. 14. On 6 November 2002 almost all parties, save one co-owner, were present. The court fined the expert for non-appearance at the hearing. 15. On 10 December 2002 five co-owners as well as the representative of three co-owners, who also had shares in plot A, were present at the hearing. The expert, who was questioned by the parties, stated that the two plots of land were not connected to each other. 16. On the same day the Court of Appeal, having heard the co-owners, dismissed the grounds of appeal of V.Q. in respect of plot B and upheld the District Court’s decision as regards both plots. According to the Court of Appeal V.Q.’s share was so small (2.60 sq. m.) that the award of that property to him would be against its purpose. It pointed to the fact that he had lodged an appeal alone, without being joined by the other co-owners who were parties to the proceedings before the District Court. The relevant parts of the decision read as follows: “All parties consented, on the whole, to the [District Court’s] decision, with the exception of V.Q., who appealed against it only in so far as the first part of the decision is concerned [that is plot B], to which he is a party and has a [legitimate] interest (me këtë vendim të gjykatës, përgjithësisht kanë qenë dakort të gjithë palët përjashto të paditurin V.Q., i cili ka ankimuar vendimin vetëm për pjesën e parë të tij, ku është pale dhe ka interes). ... The remaining defendants did not join their forces to claim the plot of land jointly, not least that the remaining defendants, 14 of them, lodged no appeal (të paditurit nuk i bashkuan pjesët dhe ta kërkonin këtë sipërfaqe të përbashkët, për më tepër të paditurit e tjerë që në numër janë 14 persona, nuk kanë bërë ankim). Out of all defendants, only V.Q. who owns 2.60 sq. m, lodged an appeal (prej tyre është ankuar vetëm i padituri V.Q. që si person ka ... dy metra dhe gjashtëdhjetë centimetra katrorë).” 17. In compliance with the Court of Appeal’s decision, on 26 March 2003 the applicant paid all fifteen co-owners compensation corresponding to their respective shares in plots A and B. He entered his property titles over both plots in the Land Registry on 31 July 2003. 18. On 7 January 2003 V.Q., joined by thirteen co-owners of plot B, appealed to the Supreme Court. One co-owner did not sign the appeal. The appellants argued that, even though they had attended the hearings before the Court of Appeal, this had not been reflected in that court’s judgment. That the appeal was signed only by V.Q. was to be attributed to the lawyer who had lodged the appeal. No appeal was lodged by the three co-owners, in respect of plot A, with the Supreme Court. 19. On 18 March 2004 the Supreme Court, sitting as a bench of five judges, by majority, quashed the Court of Appeal decision in respect of plot B and found, inter alia, as follows: “It follows, as also accepted by the courts, that the defendants have sought to retain this plot of land. Their appeal to the Court of Appeal states that they have the same interest and they jointly claim the plot of land. The appellants own the majority of the plot (thirteen twenty-fourths). Under these circumstances, contrary to the Court of Appeal’s finding, the appellants own the majority of the plot and share the same interest. As they do not seek the partition of that plot, on the basis of the foregoing provision [referring to Article 207 of the Civil Code], the plot should be awarded to the [fifteen] appellants (siç ka rezultuar dhe siç pranojnë dhe vetë gjykatat, të paditurit e kanë kërkuar ta mbajnë këtë sipërfaqe. Edhe në kërkesën ankimore, Gjykatës së Apelit i është parashtruar se ata i kanë interest e njëjta dhe e duan pjesën bashkarisht. Gjithashtu, të gjithë të paditurit zotërojnë në këtë sipërfaqe pjesën më të madhe (13/24 pjesë). Në këto rrethana, kur ndryshe nga sa pranon gjykata e Apelit, të paditurit kanë pjesën më të madhe dhe interest e njëjta si dhe nuk kërkojnë t’u pjesëtohet trualli ... pjesa u duhet lënë këtyrë të fundit).” The Court of Appeal’s reasoning that, since Pëllumb [the applicant] owns the majority of the plot of land measuring 182.7 sq. m, the other plot of land measuring 84 sq. m should be awarded to him for the purpose of constructing a multi-storey building, is erroneous. These plots of land, irrespective of their neighbouring position and of the fact that they have the same owners, should be treated as two separate objects which have been subject to the partition proceedings for the sake of judicial economy (Arsyetimi i gjykatës se paditësi Pëllumb ka në pronësi pjesën më të madhe të truallit me sipërfaqe 182.7 m2 prandaj dhe trualli me siperfaqe 84 m2I duhet lënë atij për t’u përdorur me qëllim ndërtimin e pallateve shumëkatëshe është i gabuar. Këto troje, pavarësisht nga pozicioni kufi me njëri-tjetrin dhe nga fakti se kanë pjesërisht të njëjtët bashkëpronarë, duhen trajtuar si dy sende te veçanta që janë pjesëtuar në të njëjtin gjykim vetëm për ekonomik gjyqësore.)” 20. As regards plot A, the Supreme Court upheld the Court of Appeal decision and found that, “In respect of the other plot [referring to plot A], the court’s decision is just and should be upheld. The applicant obviously owns the majority of the plot, thirty-three thirty-sixths. Even if matters stood differently, any appeal by the other three co-owners [to the Supreme Court] would be time-barred (rënë në dekadencë) as they had not lodged an appeal with the Court of Appeal. In light of the above, plot [A] should be allocated to the applicant.” 21. The Supreme Court held that the appellants in whose favour plot B was allocated were to compensate the applicant in cash for his share. There was no dissenting opinion. 22. On an unspecified date the applicant lodged a constitutional complaint with the Constitutional Court. He complained that he had been deprived of his right to a fair trial, referring to the incoherent reasoning in the Supreme Court’s decision. While the Supreme Court had ruled that any possible action by the three co-owners in respect of plot A would be considered time-barred as they had failed to avail themselves of the appeal to the Court of Appeal, it had not adopted the same approach with respect to the fourteen co-owners as regards plot B, who had not lodged an appeal with the Court of Appeal, but whose appeal before the Supreme Court had been declared admissible and decided in their favour. 23. On 21 December 2004 the Constitutional Court, sitting as a bench of three judges, declared the applicant’s complaint inadmissible. It found that: “the [applicant’s] claims do not concern violations that would render the process unfair. They relate to aspects of proof and the determination of the merits of the case, which fall within the jurisdiction of the lower courts.” 24. On 24 June 2005, the Supreme Court refused a request by the applicant for a review of the same court’s decision of 18 March 2004. 25. Article 161 states that a civil action may be jointly brought by co-claimants against co-defendants provided that they have joint rights and obligations, which have the same basis on points of fact or law. 26. Article 162 reads, in so far as relevant, as follows: “Each party acts on his/her own against the opposing party provided that his/her procedural actions or omissions result in neither damage nor profit to the other parties. If, owing to the nature of the legal relationship in dispute or because of a legal provision, the effect of the decision to be adopted is to be extended onto all parties, the procedural actions which were carried out by one party shall have effect also on other parties who did not appear before the court or did not undertake such actions within the prescribed time-period.” 27. Articles 369-374 of the Code of Civil Procedure regulate the partition of common or inherited property by virtue of a court decision. The first phase of the partition proceedings consists of a court interim decision which determines the identity of the joint owners, the object to be partitioned and the corresponding parts belonging to each owner. In the second phase of the partition proceedings, the court determines the value of the various objects to be partitioned, after having received a prior opinion of experts. Any inequality in the value of the objects included in the shares is to be compensated in money. The court decides on the financial relationship of the parties arising from their joint ownership. 28. The relevant provision of the Civil Code reads as follows: Article 207 “The partition of the co-owned object shall be effected by the agreement of all of the co-owners... When the object is real property, the partition shall be effected by a notarial deed. The partition of the co-owned object corresponds to its division in kind, proportionate to the shares of each co-owner, provided that the partition is possible and does not damage the relevant purpose of the object... ...When some of the co-owners make a request [that the object be allotted exclusively to them], the court may so order, obliging those co-owners to reimburse other co-owners in relation with the partitioned property the cash amount equivalent to the value of their shares. ...” 29. In unifying decision no. 628 of 15 May 2000 the Supreme Court Joint Benches clarified the nature of the interim decision given at the conclusion of the first phase of the partition proceedings. It ruled that, given its sui generis nature, the interim decision concerning the first phase of the partition proceedings was final and could not be revisited by the court deciding on the second phase of the partition proceedings. 30. In decision no. 18 of 18 July 2009 (18/09), relying on Article 162 of the CCP, the Constitutional Court ruled that a civil action contesting the amount of compensation in an expropriation case, lodged by only one co-owner, had effect on all co-owners who did not initially join the co-owner in the first-instance court proceedings or did not carry out procedural acts within prescribed time-limits. In that case, the Court of Appeal accepted a co-owner’s civil action, but rejected the appellants’ action on the ground that it had been lodged out of time. The Constitutional Court, relying on Article 162 of the CCP, found a breach of the appellants’ right to a fair hearing and reasoned, inter alia, that the co-owner’s action should have been regarded as carried out by the appellants, who were the remaining co-owners.	0
test	001-175474	ENG	MNE	COMMITTEE	2,017	CASE OF JOVOVIĆ v. MONTENEGRO	4	Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time)	Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström	5. The applicant was born in 1962 and lives in Podgorica. 6. On 14 April 2003 a certain Ž. L. (hereinafter “the first debtor”) and S. S. (hereinafter “the second debtor”) were each sentenced to two years’ imprisonment for attempted murder of the applicant in January 2003. 7. On an unspecified date, the applicant lodged a claim for damages with the Court of First Instance (Osnovni sud) in Nikšić. 8. On 23 June 2008 the aforementioned court ruled in favour of the applicant and ordered the debtors to pay him, jointly, 45,000 euros (EUR) plus statutory interest on account of the non-pecuniary damage suffered. 9. On 27 July 2009 the applicant lodged with the Court of First Instance in Podgorica a request for enforcement of the judgment dated 23 June 2008. Following an order, the applicant amended his request for enforcement on 25 February 2010. The enforcement order itself was then adopted on 31 March 2010. 10. On 24 April 2010 the debtors objected to the enforcement order, but their objections were rejected. 11. On 21 June 2010, 5 July 2010 and 7 July 2010 the enforcement court ordered the debtors to disclose their immovable property. It appeared that no immovable assets had been registered in the debtors’ names. 12. On 19 July 2010 the enforcement court requested information from the Ministry of Interior as to whether the debtors owned any motor vehicles. The record showed that the first debtor had had two motor vehicles. However, on 16 February 2011, when a bailiff came to make an inventory, the vehicles had already been sold to a third person. 13. On 7 September 2011 the enforcement court ordered an inventory of the debtors’ movable assets. 14. On 11 and 12 April 2012 new inventories of the debtor’s moveable assets were carried out. Between April 2012 and January 2013 the enforcement court dealt with the objections to the inventories raised by the debtors and third parties. 15. On 9 January 2013 a decision to auction the debtors’ specified movable assets was issued, and the applicant was ordered to deposit EUR 200 for the auction costs. The sale was scheduled for March 2013. However, on 27 February 2013 the second debtor informed the enforcement court that he had donated his movables to a charity. On 12 April 2013 a new inventory of his moveable assets was carried out. 16. On 15 April 2013 the applicant lodged a criminal complaint against the bailiff. 17. On an unspecified date in April the second debtor offered to pay the applicant EUR 15,000, but the applicant rejected this offer. The second debtor subsequently made a new offer in the amount of EUR 25,000, but this offer was also rejected by the applicant. 18. On 6 August 2013 the applicant informed the enforcement court that the second debtor had paid him EUR 31,000 and that he considered the enforcement proceedings in respect of this debtor as final. 19. On 18 October 2013 the enforcement proceedings in respect of the second debtor were formally terminated. 20. As regards the first debtor, the enforcement proceedings continued. 21. In September 2013 the first debtor’s specified movable assets were estimated at EUR 1,285.99 and the enforcement court invited the applicant to take possession of them on 16 September 2013. The applicant failed to do so. He was again invited to take possession of the assets in November 2013 and, once more, in July 2015. However, the applicant again declined to do so on both occasions. 22. On 20 October 2015 the first debtor’s father informed the enforcement court that he would pay his son’s debt. 23. In December 2015 the applicant was once again invited to take possession of the movable assets belonging to the first debtor. This time, the applicant explicitly rejected the court’s offer stating that he did not need those “worthless” assets and that they could have instead been given to a charity. 24. On an unspecified date in December 2015 the applicant notified the enforcement court that he had entered into an agreement with the first debtor and that the first debtor would honor the judgement debt in instalments. However, it appears from the applicant’s later submissions to this Court that the first debtor had in fact not paid him anything since he did not have any “valuable assets”. 25. Between March 2011 and March 2012 the applicant availed himself of two domestic remedies concerning the length of proceedings, in particular two requests for review of the duration of the proceedings, in order to have them expedited (kontrolni zahtjev) and three actions for fair redress, aimed at obtaining compensation for the excessive duration of the proceedings (tužba za pravično zadovoljenje). The Court of First Instance rejected the applicant’s requests for review on 30 June 2011 and 15 February 2012, respectively. The applicant unsuccessfully appealed to the High Court, which upheld the First Instance Court’s decisions. The High Court in Podgorica also ruled against the applicant’s actions for fair redress on 11 May 2011, 24 November 2011 and 10 May 2012, respectively.	1
test	001-142189	ENG	ARM	CHAMBER	2,014	CASE OF MINASYAN v. ARMENIA	4	Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)	Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra	5. The applicant was born in 1974 and lives in Yerevan. 6. On 18 December 2007 criminal proceedings were instituted on account of a fight with use of firearms between two groups of people, which had taken place that day. As a result of the fight, one person died and two others were wounded. The applicant went into hiding after having participated in the fight and a search for him was declared. 7. On 22 December 2007 the applicant turned himself in to the police. He surrendered his two guns and stated that he had used them during the fight in defence against an assault by unknown persons. He was arrested and taken into custody. 8. On 25 December 2007 the applicant was charged with aggravated murder, under Article 104 § 2 (6) of the Criminal Code (CC), aggravated infliction of serious injuries, under Article 112 § 2 of the CC, and illegal possession of firearms, under Article 235 § 1 of the CC. 9. On the same day the investigator applied to the Kotayk Regional Court seeking to have the applicant detained for two months. The application stated that on 18 December 2007 the applicant, in a manner dangerous to the life of many, had opened fire from illegally-possessed guns on individuals G.S., R.V. and V.H., as a result of which he had unlawfully and intentionally deprived G.S. of his life and inflicted serious injuries on R.V. and V.H. The application further stated that the applicant had to be detained, inter alia, because he had committed a serious crime. 10. On the same day the Kotayk Regional Court decided to grant the motion and detain the applicant for two months, from 22 December 2007 until 22 February 2008. The court found that the applicant might abscond, obstruct the examination of the case, avoid criminal liability and serving the imposed sentence as well as hinder the execution of the judgment. In so finding, the court took into account the nature and gravity of the imputed offence and the fact that the applicant had committed a serious crime. 11. On 9 January 2008 the applicant lodged an appeal, claiming that his detention was not based on a reasonable suspicion that he had committed an offence and that the Regional Court had not adduced sufficient reasons when finding that his detention was justified. He also alleged that the principle of the presumption of innocence had been breached since the Regional Court had stated in the affirmative that he had committed a grave crime. 12. On 29 January 2008 the Criminal Court of Appeal upheld the decision of the Regional Court. The Court of Appeal found that there was sufficient evidence to raise a reasonable suspicion that the applicant had committed an offence. In this regard, it referred to the applicant’s statements to the investigative bodies and the results of G.S.’s autopsy, according to which he had died from a bullet wound. As to the reasons for detention, the Court of Appeal found that the applicant might obstruct the examination of the case. In so’s statement had to be taken solely as meaning that the offence was imputed. 13. On 25 April 2008 the applicant lodged an appeal on points of law. 14. On 19 May 2008 the Court of Cassation left the appeal unexamined on the ground that it had been lodged outside the prescribed one-month time-limit. 15. On 18 February, 18 April, 16 May 2008 and 17 June 2008 the Kentron and Nork-Marash District Court of Yerevan, on the basis of corresponding motions lodged by the investigator, extended the applicant’s detention, ultimately until 22 July 2008, on the ground that, taking into account the hostility between the applicant and the victim’s friends and relatives which had resulted in the burning of the applicant’s property, the applicant might commit a crime. It further found that, taking into account the nature and gravity of the imputed offence the applicant, if at large, might commit a new crime, abscond, obstruct the examination of the case and avoid criminal liability. 16. The applicant appealed against the decisions of the District Court claiming, inter alia, that the court had provided no relevant and sufficient reasons justifying his detention. 17. On 7 March, 7 May, 6 June and 4 July 2008 the Criminal Court of Appeal upheld the respective decisions of the District Court. It held that the applicant’s continued detention on remand was justified, taking into account the applicant’s personality and the nature and gravity of the imputed offence, punishable by a maximum of life imprisonment, which increased the likelihood of his absconding. 18. The applicant appealed on points of law against the respective decisions of the Court of Appeal. 19. On 19 May 2008 the Court of Cassation decided to leave the applicant’s first appeal unexamined on the ground that it had been lodged outside the prescribed one-month time-limit. On 2 July, 4 August and 5 September 2008 the Court of Cassation declared the applicant’s other appeals inadmissible for lack of merit. 20. On 4 July 2008 the investigator decided to drop some charges against the applicant and modify others. In particular, the charge of illegal arms possession (Article 235 § 1 of the CC) was dropped, while the charges under Article 104 § 2 (6) and Article 112 § 2 (1) were modified and replaced with a charge for two counts of aggravated attempted murder (Article 104 § 2 (1) and (6) in conjunction with Article 34) and a charge for two counts of aggravated hooliganism (Article 258 §§ 3 (1) and (4) respectively). 21. On 11 July 2008 the investigator applied to have the applicant’s detention extended by two more months. 22. On 17 July 2008 the District Court, having examined the materials of the criminal case, decided to grant partially the request and to extend the applicant’s detention for one month, until 22 August 2008, on the same grounds as those invoked in its previous decisions. As a reason for considering that the applicant might avoid responsibility, the court referred to the fact that the applicant had gone into hiding after committing the crime and thus obstructed the examination of the case. 23. On 1 August 2008, upon the applicant’s appeal, the Court of Appeal upheld the decision of the District Court finding that the applicant, if he remained at large, might abscond, obstruct the proceedings or, given the continuing hostility between the two sides, might commit new crimes. 24. On 12 August 2008 the investigator decided to drop or modify the charges against the applicant. In particular, the charge of aggravated hooliganism under Article 258 § 3 (1) was dropped and new charges under Article 104 § 2 (1) and (6) in conjunction with Article 34 of the CC and Article 258 § 4 of the CC were brought. 25. Meanwhile, on 12 August 2008 the investigator applied to have the applicant’s detention extended for two months. 26. On 15 August 2008 the District Court of Yerevan granted the investigator’s request partially and extended the applicant’s detention for one month, until 22 September 2008. 27. On 16 September 2008 the investigator applied again to have the applicant’s detention extended for 15 days. 28. On 17 September 2008 District Court granted the request and extended the applicant’ 29. On 22 September 2008 the applicant lodged an appeal. 30. It appears that, in the meantime, the investigation was completed and, on 1 October 2008, the applicant’s case was referred to the Northern Criminal Court for trial. 31. On 7 October 2008 the Criminal Court of Appeal decided to leave the appeal of 22 September 2008 unexamined on the ground that the scope of judicial control over pre-trial proceedings was limited to the investigation stage. Since the investigation had been completed and the case had been referred to a court, it was now up to that court to examine questions of lawfulness and validity of detention. 32. On 7 November 2008 the applicant lodged an appeal on points of law against the Court of Appeal’s decision of 7 October 2008. However, in finalising his appeal, the applicant requested that his detention be cancelled. 33. On 21 November 2008 the Court of Cassation decided to leave the applicant’s appeal unexamined on the ground that it had been directed against the decision of the District Court of 17 September 2008, which was not subject to an appeal on points of law. In this respect, it referred to the fact that the request contained in the applicant’s appeal on points of law was to cancel his detention as ordered by the decision of the District Court of 17 September 2008. 34. In the meantime, on 15 October 2008 the judge of the Northern Criminal Court decided to take over the examination of the case. In the same decision, the judge imposed detention on the applicant, as a preventive measure. 35. On 27 October 2008 the applicant lodged an appeal against this decision. 36. On 23 December 2008 the Court of Appeal dismissed the applicant’s appeal, finding that his detention was justified because, taking into account the gravity and nature of the imputed offence, there was a high risk that he might abscond or obstruct the examination. 37. On 10 April 2009 the Court of Cassation dismissed the applicant’s appeal on points of law. 38. On an unspecified date the criminal case, in accordance with procedural amendments introduced in the meantime, was transferred to the Kotayk Regional Court for examination. It appears that, during the examination of the case, the prosecutor decided to modify the charges against the applicant by replacing them with a charge of attempted murder in excess of the boundaries of necessary defence (Article 108 in conjunction with Article 34 of the CC) and a charge of aggravated hooliganism (Article 258 § 3 (1) of the CC). 39. On 8 May 2009 the Kotayk Regional Court found the applicant guilty under Article 108 in conjunction with Article 34 and Article 258 § 3 (1) and sentenced him to a total of three years’ imprisonment.	1
test	001-157961	ENG	RUS	CHAMBER	2,015	CASE OF LYUBUSHKIN v. RUSSIA	4	No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)	András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque	6. The applicant was born in 1967 and lives in Khabarovsk. 7. On 6 October 2004 the applicant, who was then a police officer, was arrested on suspicion of extortion. On 8 October 2004 the Khabarovsk Zheleznodorozhniy District Court (“the District Court”) remanded him in custody, finding as follows: “There is a reasonable suspicion in the present criminal case, supported by the enclosed documents: statements by B. [the alleged victim of the extortion]; the crime scene report; the report on the marking and examination of the banknotes; the report on the search of and seizure of money from O. [a co-accused]; minutes of interviews with B., the prime suspect O., and K, a witness. When deciding on the remand matter, the court is not required to evaluate whether the existing evidence is sufficient for a finding of guilt. [The applicant], a police officer, is suspected of having masterminded and supervised the commission of a serious crime by a criminal group which included other police officers. It follows from the statements by B. and K. that, after they had complained to the police about extortion, they continued to receive threats of physical violence from [the applicant], Sh. and Z. In these circumstances, [the applicant] must be remanded in custody because a more lenient restrictive measure cannot be imposed.” 8. On 21 October 2004 the Khabarovsk Regional Court (“the Regional Court”) upheld the decision of 8 October 2004 on appeal. 9. On an unspecified date the applicant was charged with organising and facilitating prostitution. 10. On 3 December 2004 the District Court extended the applicant’s pretrial detention until 6 February 2005. The court noted as follows: “Regard being had to the submissions made by the parties, the case file, and the fact that, as a police officer, [the applicant], if not in custody, might abscond, put pressure on victims and witnesses who identified him as a person who had committed a crime, or otherwise interfere with the administration of justice ... The judge does not consider that the restrictive measure imposed on [the applicant] can be replaced with a more lenient one ...” 11. On 16 December 2004 the Regional Court upheld the decision of 3 December 2004 on appeal. 12. On 4 February 2005 the District Court extended the applicant’s detention until 6 April 2005 indicating as follows: “Having studied the case file and having listened to the parties to the proceedings, the court does not discern circumstances that would justify the replacement of the restrictive measure imposed on [the applicant]. [The applicant] is charged with a serious offence. He has organised a criminal group and has been its leader. If not in custody, he can put pressure on the parties to the proceedings. The above presumption as to the [applicant’s] potential conduct is based on the information about the [applicant’s] character and his modus operandi.” 13. On 5 April 2005 the District Court extended the applicant’s detention until 7 May 2005, noting as follows: “... [The] court takes into account the seriousness of the crime [the applicant] is charged with ... The court considers that, as an active police officer able to use his position, [the] applicant might put pressure on victims and witnesses who directly identified him as an offender, or otherwise interfere with the establishment of the truth. Furthermore, the [applicant’s] assertion that he is suffering from a serious disease ... cannot be taken into account by the court. No medical report has been submitted to show whether [the applicant] was fit or not for detention.” 14. On 5 May 2005, the District Court extended the applicant’s detention until 6 July 2005 arguing as follows: in particular that the criminal investigation is being conducted into a group of persons and that [the applicant] is a police officer, the court concludes that he, if not in custody, might abscond, continue criminal activities, put psychological or physical pressure on the victim or witnesses, destroy evidence or, otherwise interfere with the administration of justice.” 15. On 27 June 2005 the District Court extended the applicant’s pre-trial detention until 28 September 2005, reiterating that the applicant might put pressure on victims and witnesses. On 12 July 2005 the Regional Court upheld this decision on appeal, but only extending the applicant’s detention until 6 September 2005. 16. On 18 August 2005 the District Court extended the applicant’s pretrial detention until 28 September 2005. The court reiterated its previous reasoning that the applicant might put pressure on victims and witnesses. 17. On 5 September 2005 the applicant was charged with organisation of a criminal group, accepting bribes, and abuse of position. It appears that the charges of extortion and of organising and facilitating prostitution were dropped. 18. On 15 September 2005 the prosecution submitted the case against the applicant and three co-defendants to the Regional Court for trial. 19. Following a request from the prosecution, on 23 September 2005 the Regional Court allowed the return of the case file to the prosecutor on the grounds that the defendants had not been able to study it. The court dismissed the defendants’ request to release them on bail finding that “the circumstances underlying their remand in custody [were] still present” and extended their detention until 28 November 2005. On 22 December 2005 the Supreme Court of the Russian Federation upheld the decision of 23 September 2005 on appeal. In response to the applicant’s argument that the maximum statutory period of pre-trial detention had expired and he should therefore be released, the court noted that, pursuant to the applicable rules of criminal procedure, the applicant could be detained for eighteen months pending investigation, owing to the seriousness of the charges against him. 20. On an unspecified date the prosecutor forwarded the case file to the court and on 24 November 2005 the Regional Court again granted the prosecutor’s request and returned the case file to the prosecution for five days on the grounds that the defendants had not studied the case file in its entirety. It also extended the applicant’s and his co-defendants’ detention until 28 December 2005, referring to the earlier particularities justifying the defendants’ remand in custody and to the fact that the case involved anonymous witnesses and victims. On 16 March 2006 the Supreme Court upheld the decision of 24 November 2005 on appeal. 21. On 20 December 2005 the Regional Court received the case file and on 27 December 2005, for a third time, it decided to return the case to the prosecutor at his request, reiterating its earlier reasoning. The court extended the defendants’ detention until 28 March 2006, holding as follows: “Since the period of detention of [the applicant], Z. and Sh. ends on 28 December 2005, this period must be extended by three months so as to remedy a violation of the rights of the defence which resulted from the impossibility for defendants and counsel to study the case-file, as well as to allow the investigator to decide subsequently on the restrictive measure in respect of those individuals.” 22. On 7 March 2006 the case was re-submitted for trial. 23. On 20 March 2006 the Regional Court extended the defendants’ detention until 7 September 2006. The court reasoned as follows: “Having discussed with the parties the issue of the [defendants’] detention, regard being had to the seriousness of the charges against them, the court considers that, if not in custody, the defendants might influence the victims and witnesses, abscond or reoffend. It considers it necessary to extend the earlier imposed detention ...” 24. On 24 March 2006 the Regional Court fixed the trial date for 24 April 2006 and noted that the detention earlier imposed on the defendants should remain unchanged. On 26 May 2006 the Supreme Court upheld the decision of 24 March 2006 on appeal. 25. On 8 June 2006 the Supreme Court upheld the decision of 27 December 2005 on appeal. 26. On 11 August 2006 the Regional Court extended the applicant’s detention until 7 December 2006 reiterating, in substance, its earlier reasoning. 27. On 26 October 2006 the jury delivered a not-guilty verdict in the applicant’s case and on 27 October 2006 the Regional Court issued the relevant judgment and ordered the applicant’s immediate release. 28. On 28 August 2007 the Supreme Court upheld the judgment of 27 October 2006 on appeal. 29. On an unspecified date the applicant brought an action for compensation for pecuniary damage resulting from the criminal prosecution. The applicant’s claims included: lost income, legal fees, his lawyer’s travel expenses in connection with the appeal hearing in Moscow, reimbursement of the cost of food, a television set and a refrigerator his family had sent to him while he had been in detention. On 9 April 2008 the Regional Court granted the applicant’s claims in part and awarded him 285,516 Russian roubles (RUB) for legal fees and his lawyer’s travel expenses and RUB 314,634.64 for loss of income. The applicant did not appeal. 30. On an unspecified date the applicant brought a civil claim seeking compensation for non-pecuniary damage in connection with the criminal prosecution. In particular, he alleged that he had been detained pending criminal proceedings against him in the absence of relevant evidence and sufficient reasoning. The applicant claimed RUB 2,000,000 in this respect. 31. On 8 October 2014 the Khabarovsk Tsentralniy District Court granted the applicant’s claims in part and awarded him RUB 500,000. The court noted, in particular, that an acquittal in the criminal proceedings had been a catalyst for the restoration of his good name and position before the trial (реабилитация, hereinafter “rehabilitation”) “...’s] claims should be granted in part. In the present case, the court takes into consideration that the decisions to detain [the applicant] pending trial were authorised by court orders which were subject to review by superior courts which examined their lawfulness and the underlying reasons and upheld [said decisions] on appeal.” 32. On 14 January 2015 the Regional Court upheld the judgment of 8 October 2014 on appeal.	1
test	001-147074	ENG	SVK	ADMISSIBILITY	2,014	ANDRÁŠIK AND OTHERS v. SLOVAKIA	4	Inadmissible	Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra	1. A list of the applicants is set out in the appendix. 2. 3. Ms C., a student of medicine, was reported missing by her father on 12 July 1976. Prior to her disappearance she had been seen at a dance event in a youth club in Bratislava on 9 July 1976. 4. On 14 July 1976 a female body was found drowned in a river some 20 kilometres from Bratislava. As the circumstances indicated that the woman had been murdered, a criminal investigation was instituted. Ms C. was later identified as the victim. 5. On 21 September 1976 several young men from Piešťany were accused of murdering Ms C. After several months a decision was taken not to prosecute. The proceedings were stayed from 31 March 1977 to 15 June 1981. 6. On 16 June 1981 the applicants and one other person were accused of several offences in the context of the above. 7. The accused were later indicted and, on 22 September 1982, the Bratislava Regional Court convicted them of several criminal offences including the rape and subsequent murder of Ms C. Prison terms of between four and twenty-four years were imposed. On 25 April 1983 the Supreme Court of the Slovak Republic dismissed appeals that had been lodged by the public prosecutor and the applicants. 8. Between 1983 and 1989 the applicants unsuccessfully attempted to have the case re-opened by pointing out shortcomings in the proceedings that had led to their conviction. 9. On 19 October 1990, a complaint in the interest of the law having been lodged by the General Prosecutor of the Czech and Slovak Federal Republic, the Supreme Court of the Czech and Slovak Federal Republic quashed the applicants’ convictions. The case was remitted to the Bratislava Regional Court for a fresh examination. The Federal Supreme Court held that the courts involved had failed to reliably establish all the relevant facts and to thoroughly examine the defence’s arguments. The proceedings leading to the applicants’ convictions were thus seriously flawed. Reference was made to more than twenty specific shortcomings. The trial court was ordered to take evidence and establish the relevant facts in accordance with the law. 10. The Bratislava Regional Court started dealing with the case anew in 1991. In a judgment delivered on 20 January 2004 it convicted Mr Lachmann (the fifth applicant in application no. 32336/11), of aiding rape and the other five applicants of restricting personal freedom, rape and murder. In addition, Mr Andrášik and Mr Čerman were found guilty of violation of privacy. It imposed prison terms ranging between three and thirteen years on the applicants. 11. In its judgment the Regional Court listed the reasons for which the Supreme Court of the Czech and Slovak Federal Republic had quashed the original decision on the case. As the judges composing the chamber of the Regional Court were not the same as those who had tried the accused initially, the whole proceedings had to be carried out anew. It noted that a part of the relevant evidence could no longer be gathered for objective reasons including the time which had lapsed since the offence was committed. Also, the criminal proceedings against the seventh accused had been stayed due to his ongoing mental disorder. His earlier statements could therefore not be used in the criminal proceedings against the applicants. 12. The Regional Court heard the applicants and examined statements they had made in the context of the original proceedings. It also heard more than sixty witnesses, including police investigators and prosecutors who had dealt with the case before, and four experts. With the parties’ consent it read out statements from seventy-three witnesses that had been made in the period leading up to the applicants’ new trial. Statements from three experts and five witnesses who had since died or were unable to attend were also read out. Opinions from experts in psychiatry, sexology, hydrobiology, judicial psychology and odorology were examined. Finally, reference was made to documentary evidence included in the file. In the judgment the description of the relevant facts as established on the basis of the above covered seventy pages. 13. In its judgment the Regional Court found that, after having considered the available evidence in its entirety, there was no reason for it to depart from the conclusions reached in the original set of proceedings. In particular, it relied on the confessions of three of the applicants and the statement of an eyewitness that had been obtained during the initial investigation. With reference to statements by the lawyers of the accused made prior to the main hearing in the original proceedings, and after having heard the investigators and public prosecutors involved at the pre-trial stage, the Regional Court dismissed the applicants’ argument that physical and psychological pressure had been used to elicit false confessions. 14. When addressing witness statements suggesting that the accused had been in a different place at the relevant time, the Regional Court concluded that they were not reliable. It noted that seven other witnesses had confirmed seeing two of the accused at the dance event on 9 July 1976. 15. The Regional Court considered it established that after she had left the dance event, at about 10.30 p.m., Ms C. had been forced to get into the Fiat car of one of the accused. She had then been brought against her will to a house without the knowledge of the owner. She had been forced to drink alcoholic beverages and to undress. The court further held that Ms C. had been tied up and that five of the accused had had sexual intercourse with her notwithstanding her attempts to resist. During the night of 9 July 1976, six of the accused had driven Ms C. to Kráľová pri Senci, where two of the applicants had drowned her in a pond under the supervision of the others. Subsequently three of the accused had dumped the body in a nearby river and it had been found downstream on 14 July 1976. 16. The judgment indicated that the above conclusions were based on confessions by three of the applicants and a witness statement against them assessed in the light of all the evidence obtained. When imposing the penalties, the Regional Court had taken into account the fact that the duration of the criminal proceedings had been excessive. 17. Both the public prosecutor and the applicants appealed. 18. In his appeal the public prosecutor argued that the sentences imposed were lenient. 19. In their appeals – which, including enclosures, comprised more than a thousand pages – the applicants challenged their conviction. 20. Mr F. Čerman and Mr P. Beďač thus submitted a forensic opinion which an expert had drawn up at their request on 25 June 2004. They argued that it cast doubts on the facts as they had been established by the Regional Court and proposed that the expert’s evidence be heard. In particular, they argued that the expert’s opinion undermined the first-instance court’s conclusions as regards the identification of the body found on 14 July 1976 as Ms C. The expert also disagreed with the conclusions as to the alleged rape, the date and manner of death of the victim, and the subsequent disposal of the body. 21. They further submitted that they had learned from witness statements made in the course of the first-instance proceedings that extensive evidence concerning mainly the initial investigation in 1976 and 1977 had been archived by the Ministry of the Interior. Following the firstinstance judgment, the applicants had discovered that the evidence comprised nine boxes containing statements from more than a hundred witnesses. 22. Those documents indicated that the evidence against the accused had been manipulated and that a number of relevant documents had not been included in the court file. Those documents included, for example, statements from two witnesses dated 23 August 1976 indicating that they had seen a young girl being spoken to by three men in a Volkswagen Beetle car, which she had subsequently got into, in the vicinity of the youth club concerned at approximately 10.30 p.m. on 9 July 1976. It also included a complaint by the lawyer of one of the accused indicating that his client’s defence rights had been breached in that the lawyer had not been notified of the interrogation and remanding in custody of his client. The appellants submitted for inclusion in the court file copies of several documents from the Ministry of the Interior archives on which they relied. 23. In their appeals the applicants also argued that further documents gathered by an investigation team from Prague had been stored in the archives of the Ministry of the Interior of the Czech Republic. Their examination by the courts was desirable with a view to establishing the facts of the case. The appellants argued that their right to a fair hearing had been breached as the Regional Court had failed to give relevant and sufficient reasons for its judgment in view of the evidence available and the arguments before it. 24. On 4 December 2006 the Supreme Court dismissed the applicants’ appeals. The judgment stated that the Supreme Court had examined the appeals of the public prosecutor and of the accused, along with the enclosures, and had heard the latter’s counsels’ final submissions, which had lasted several hours. The appeal court held that the principal points in issue were whether (i) the confessions of several applicants at the pre-trial stage had been lawfully obtained; (ii) the witness statements against the applicants were trustworthy; and (iii) there was a need to take further evidence and, in particular, to examine documents which related to the initial investigation and which were held in the Ministry of the Interior archives. 25. The Supreme Court found no evidence demonstrating that the confessions of several of the accused and their statements against their coaccused had been elicited under pressure. It noted, among other things, that the accused parties concerned had admitted the offences in the presence of their defence counsels. The statements contained details which had been unknown to the investigators. One of the accused had maintained his statement at the main hearing before the trial court in the original proceedings, and he had withdrawn his appeal against the judgment leading to his conviction. 26. The witness statements against the accused in the original proceedings had been lawfully obtained. The Regional Court had correctly noted that certain modifications to the statements of those witnesses – to the advantage of the accused – were due to the lapse of time and pressure resulting from media coverage of the case. The file indicated that several witnesses had received anonymous threats pressurising them to abstain from making statements against the accused. 27. As to the statement by the eyewitness Ms B., in the course of the pre-trial investigation she had described in detail the individual involvement of the accused in the crime. The fact that she had later revoked her statements could not affect the position since she was convicted of having made false statements in that connection. 28. The Supreme Court held that the confessions of several of the accused and the evidence corroborating their statements had been obtained lawfully and found no reason to depart from the Regional Court’s conclusion as to the applicants’ guilt. 29. The Supreme Court considered it superfluous to take further evidence as requested by the applicants, including the hearing of witnesses whose statements had been archived by the Ministry of the Interior. The evidence available permitted the relevant facts to be reliably established. It could not be affected by the gathering of additional evidence, which would unduly delay the proceedings. 30. Finally, the Supreme Court held that the first-instance court had erred in reducing the prison terms imposed with reference to the duration of the proceedings because the Constitutional Court had found a breach of the accused persons’ rights and awarded them just satisfaction in that respect. The Supreme Court therefore increased the sentences imposed on three of the applicants, namely from 13 to 15 years for Mr Kocúr and Mr Andrášik, and from 10 to 12 years for Mr Dúbravický. 31. Mr Andrášik lodged an appeal on points of law. He argued that his conviction had resulted from errors of fact in that, among other things, the courts had failed to consider the evidence archived by the Ministry of the Interior and had disregarded the expert opinion of 2004. 32. The five other applicants filed a separate appeal on points of law. They contended that their defence rights had been disregarded and that their conviction had been based on evidence which had not been obtained lawfully. In particular, the applicants contended that the appeal court had disregarded extensive evidence which had been stored in the archives of the Ministry of the Interior, and which had not been included in the court file, as well as the forensic expert opinion submitted by them. 33. The applicants further argued that four of them had voluntarily undergone lie detector tests by a licensed U.S. polygraph examiner with thirty years’ experience. All four tests had concluded that they had not lied when repeatedly replying that they had not raped and killed Ms C. 34. On 1 June 2009 the cassation chamber of the Supreme Court dismissed the applicants’ appeals on points of law. It held that it lacked authority to deal with alleged errors of fact in proceedings at lower instances. The lower courts had duly addressed the argument that the confessions elicited from the accused had been false and the appeal court had explained why it was not necessary to take further evidence as requested by the accused. The polygraph tests could not be used as evidence in the proceedings. 35. Finally, the cassation chamber of the Supreme Court noted that the lower courts had committed errors in law to the advantage of the accused. Those errors could not be redressed in cassation proceedings because the prosecution had not filed an appeal on points of law. 36. On 12 November 2003 the Constitutional Court found that the Bratislava Regional Court had breached the applicants’ right to a hearing within a reasonable time. It ordered the Regional Court to proceed with the case without delay and granted the equivalent of 9,958 euros (EUR) to each of the applicants. 37. On 1 August 2007 the applicants in application no. 32336/11 lodged a complaint against the Supreme Court’s judgment of 4 December 2006. The Constitutional Court rejected it as premature on 24 September 2008. It referred to the fact that proceedings were still pending on the applicants’ appeals on points of law. 38. On 4 August 2009 the applicants lodged a new complaint for which they submitted further reasons on 29 September 2009. They alleged that their rights under Articles 6 §§ 1 and 3 of the Convention, inter alia, had been breached in the proceedings before the Regional Court and on their appeal. 39. In particular, they argued that their conviction had been based on evidence which had not been obtained lawfully. They also submitted that the Supreme Court had refused to examine a number of witness statements and a considerable amount of other evidence which the investigators had gathered – lawfully – between 14 July 1976 and 31 March 1977. Those documents had never been included in the court file despite their requests. The refusal to include those documents in the file and to examine them amounted to a serious breach of the applicants’ defence rights as that evidence had been obtained a relatively short time after the murder of Ms C. 40. The applicants also complained that the ordinary courts had (i) disregarded the conclusions expressed in the Federal Supreme Court’s judgment of 19 October 1990; (ii) failed to give relevant and sufficient reasons for their conclusions; and (iii) disregarded the circumstances under which the accused had been interrogated in the course of the initial investigation. 41. On 14 December 2010 the Constitutional Court dismissed the complaint. It held that the applicants, who had been assisted by lawyers, had not formally directed their complaint against the decision regarding their appeal on points of law. Their arguments concerning a breach of their rights as a result of errors of law allegedly committed by the cassation chamber of the Supreme Court therefore fell outside the purview of the Constitutional Court. 42. The Constitutional Court further held that it lacked authority to examine the proceedings before the Regional Court because the alleged shortcomings in them had been addressed subsequently by the Supreme Court upon appeal by the applicants. As to the appeal proceedings, the Constitutional Court held that in its judgment of 4 December 2006 the Supreme Court had explained in an adequate and acceptable manner why it had not considered it necessary to examine the evidence archived by the Ministry of the Interior. The ordinary courts had reliably established the relevant facts, had duly addressed the substantial arguments of the defence, and had given relevant and sufficient reasons for their conclusions which the Constitutional Court had not considered arbitrary.	0
test	001-166734	ENG	RUS	COMMITTEE	2,016	CASE OF CHERNOYVAN AND OTHERS v. RUSSIA	4	Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)	Branko Lubarda;Dmitry Dedov;Helena Jäderblom	4. The applicants were prosecuted in Russia for various crimes. They were arrested and detained while the crimes were investigated and pending trial. Their detention was ordered and extended by the courts. The detention orders were essentially based on the gravity of the charges, the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice. The detention and extension orders used stereotyped formulae, without addressing specific facts or considering alternative preventive measures. 5. The first applicant was born on 27 April 1961 and lived, prior to his arrest, in Poronaysk, Sakhalin Region. He was arrested on 27 February 2003 on suspicion of sexual assault and was placed in detention. He remained in custody while the crime was investigated and pending trial. On 9 February 2007 the Poronayskiy Town Court of the Sakhalin Region convicted him of sexual assault and sentenced him to six years and nine months’ imprisonment. On 6 June 2007 the Sakhalin Regional Court upheld his conviction on appeal. 6. The second applicant was born on 29 May 1971 and lived, prior to his conviction, in Samara. He was arrested on 13 March 2007 on suspicion of bribery. On 14 March 2007 he was released. On 29 March 2007 he was arrested again and placed in custody. He was released on 12 September 2007. On 20 May 2008 he was convicted of bribery and sentenced to one year and six months’ imprisonment. 7. The third applicant was born on 14 October 1979 and lived, prior to his arrest, in Ulybino, Novosibirsk Region. He was arrested on 15 August 2007 on suspicion of drug dealing. He remained in custody while the crime was investigated and pending trial. On 3 February 2011 the Novosibirsk Regional Court convicted him of drug dealing and abuse of power, and sentenced him to eight years and six months’ imprisonment. On 18 October 2011 the Supreme Court of Russia upheld his conviction on appeal. 8. The fourth applicant was born on 29 November 1986 and lived, prior to his conviction, in Turukhansk, Krasnoyarsk Region. On 23 April 2010 he was arrested on suspicion of murder. On 24 April 2010 a court remanded him in custody. His detention was subsequently extended. On 17 October 2012 he was convicted of aggravated murder and was sentenced to fifteen years’ imprisonment.	1
test	001-154736	ENG	HUN	COMMITTEE	2,015	CASE OF BERKI v. HUNGARY	4	Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)	András Sajó;Helen Keller;Robert Spano	4. The applicant was born in 1966 and lives in Budapest. 5. On 30 March 2004 the applicant was detained on suspicion of misuse of illegal pornographic material. 6. In the ensuing criminal proceedings, the Budapest IV/XV District Court acquitted the applicant on 9 April 2008, after holding three hearings. 7. On appeal, the Budapest Regional Court upheld the acquittal on 17 March 2009.	1
test	001-173100	ENG	SRB	COMMITTEE	2,017	CASE OF IGNJATOVIĆ v. SERBIA	4	Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court)	Branko Lubarda;Dmitry Dedov;Luis López Guerra	5. The applicant was born in 1949 and lives in Donji Milanovac. 6. He was employed by Ðerdap, a company in Kladovo (Ribarsko gazdinstvo “Ðerdap” – hereinafter “the debtor company”). 7. On 28 December 1998 the applicant was reassigned to a lower post by his employer. He was subsequently dismissed on 20 January 2000. These two decisions, taken by the company’s managing director, were upheld by its board of management. 8. On 18 February 1999 the applicant filed a civil claim against the debtor company; on 26 April 2000 he filed a separate claim seeking reinstatement to a suitable position, as well as the outstanding salary payments and social benefits. 9. On 19 June 2003 the Majdanpek Municipal Court (hereinafter “the Municipal Court”) ruled in favour of the applicant and ordered the debtor company to reinstate the applicant to a post which corresponded to his professional qualifications and to pay him specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 23 October 2003. 10. On 16 February 2004, 9 March 2004, 18 and 19 October 2004, respectively upon the applicant’s requests to that effect, the Municipal Court accepted the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs. 11. The Municipal Court provided the National Bank of Serbia (Narodna banka Srbije – “the Central Bank”) with the above-mentioned enforcement orders on 14 April 2004, 20 July 2004 and 11 November 2004, respectively. 12. It would appear that none of the above-mentioned enforcement orders have been enforced to date. 13. On 8 April 2010 the Central Bank informed the Zaječar Commercial Court of the suspension of the debtor company’s accounts for three years. 14. On 13 April 2010 the Commercial Court opened preliminary insolvency proceedings against the debtor company. 15. On 30 June 2010 the Commercial Court opened and closed the insolvency proceedings against the debtor company and that decision became final on 10 August 2010. 16. The debtor company was ultimately struck from the relevant public register on 31 August 2010. 17. The debtor company in the present case had been a socially owned company. In 1991 it was transformed into a limited company which remained mainly socially owned, and remained as such until it was struck off the register (see http://apr.gov.rs/, accessed on 1 December 2016).	1
test	001-180662	ENG	ROU	COMMITTEE	2,018	CASE OF RACOLTEA AND OTHERS v. ROMANIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)	Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.	1
test	001-145773	ENG	DNK	ADMISSIBILITY	2,014	SAEED v. DENMARK	4	Inadmissible	András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano	The applicant, Mr Amer Ihsan Niamik Saeed, is an Iraqi national, who was born in 1967 and lives in Birkerød. He is represented before the Court by Mr Gunnar Homann, a lawyer practising in Copenhagen. 1 2. The applicant and his brother entered Denmark in December 2001 and requested asylum. The applicant was granted asylum in February 2003. 3. On 21 December 2007, pursuant to section 45 b, subsection 1, of the Aliens Act, on the basis of a recommendation from the Minister for Justice, who had received information from the Secret Service, PET (Politiets Efterretningstjeneste), the then Minister for Refugee, Immigration and Integration Affairs (henceforth “the Minister for Integration”), deemed that the applicant was a danger to national security. By virtue of section 45 b, subsection 2, of the Aliens Act, the Minister for Integration decided that the information included in the assessment could not, for security reasons, be disclosed to the applicant or to the then Aliens Service (Udlændingeservice), which had to make a further decision in the case (socalled “closed material”). 4. Before the Aliens Service, the applicant stated that he was an ethnic Turkmen. He was married to an Iraqi national, who had returned to Iraq in 2005. They had divorced in 2008. He spoke Turkmen and Arabic and very little Danish. He had never worked in Denmark. He received public welfare and financial help from his brother, who had also been granted asylum in Denmark. His parents and six siblings lived in Iraq. He also had a brother in Sweden. He had regular telephone contact with his family. 5. On 9 January 2008, the Aliens Service decided to revoke the applicant’s residence permit, to deport him with a permanent ban on his return, and to confiscate his Danish alien’s passport. 6. On 27 March 2008, relying on, among other things, Articles 8 and 13 of the Convention and Article 1 of Protocol No. 7 to the Convention, the applicant appealed against the Aliens Service’s decision to the then Ministry for Refugee, Immigration and Integration Affairs (hereafter the “Ministry of Integration”). The latter upheld the decision on 6 May 2008. 7. The applicant also appealed against the decision to the Refugee Appeals Board (Flygtningenævnet) which by decision of 1 April 2008 found, by virtue of section 31, subsection 1, of the Aliens Act, that there were impediments to the implementation of the deportation order in that the applicant could not be returned to Iraq or to a country where he was not protected against refoulement to Iraq. The said provision set out that “an alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country”. Consequently, the applicant remains in Denmark on a socalled “tolerated stay” (tålt ophold). 8. On 18 March 2009 the applicant initiated proceedings before the City Court of Copenhagen against the Ministry of Integration, requesting the revocation of the decision by the Minister for Integration of 21 December 2007 deeming him a danger to national security, and the decision by the Ministry of 6 May 2008 to deport him with a permanent ban on his return and the confiscation of his alien’s passport. In the alternative, he claimed that the decision of 6 May 2008 should not have been taken without the basis for the decision being disclosed to him. 9. On 16 June 2009 the City Court of Copenhagen referred the case to the High Court of Eastern Denmark (Østre Landsret, hereafter “the High Court”). Due to the decision by the Refugee Appeal Board that the applicant could not be returned to Iraq or a country where he was not protected against refoulement to Iraq, the proceedings before the High Court did not concern the actual deportation of the applicant. The court focused on whether the applicant could be deemed a danger to national security, and whether the deportation order had been justified. 10. The procedure before the High Court was covered by Chapter VII b of the Aliens Act concerning decisions on administrative deportation and so on, inserted by Act no. 487 of 12 June 2009, in force as of 1 July 2009. Consequently, the High Court assigned counsel for the applicant. The court also assigned a special advocate to safeguard the applicant’s interests and exercise a party’s rights on the applicant’s behalf with regard to the closed material falling within section 45 b, subsection 2, of the Aliens Act. The special advocate would be notified of all court hearings in the case and was entitled to attend them and he should be given a copy of all the material included in the case before the High Court. The special advocate was not allowed to discuss the closed material with the applicant or the applicant’s counsel and he could not speak at hearings where the applicant or his counsel were present. However, the applicant and his counsel could communicate in writing with the special advocate about the case at any time. The High Court could decide on its own initiative or upon request from the special advocate that closed material should be transmitted to the applicant and his counsel if the decision of the Minister for Justice under section 45 b, section 2, was not justified by security reasons. The part of the hearing concerning the closed material would be held behind closed doors. That part of the hearing would be attended by the special advocate, but not by the applicant and his counsel. The High Court would decide how hearings held wholly or partly behind closed doors would be conducted. The High Court would adopt a decision once the parties and the special advocate had had an opportunity to make a statement. 11. Before the High Court, various written material was submitted, including a report of 17 September 2009 by PET. It stated that PET, during its regular survellance of militant Islamic persons and networks, had become aware of persons in Denmark with a central role in a network that sent terrorists to Iraq to carry out terrorist activities, notably suicide bomb attacks against coalition troops. The surveillance had shown that the network cooperated with groups and persons in, inter alia, Morocco, Saudi Arabia, Syria and Sweden. During its observation of the network between 2005 and 2007, PET had obtained information that from 2006 to 2007 the applicant had had a central role in this network, which included another known member, MH, who was an Iraqi national living in Denmark. Due to the secret investigation carried out by PET and the material obtained from various foreign secret services and other protected sources, part of PET’s investigation material could not be disclosed (so-called closed material). However, the so-called open material was rather vast and consisted, among other things, of numerous extracts obtained by communication interception, observation of suspected members’ travel activities, reports by foreign police authorities on arrests of suspected members, and convictions abroad of some of the members concerned. Based on this material, PET had made a summary, stating that in their view, between 2006 and 2007, the applicant had constantly been in contact with MH and groups in Morocco. They had used a special code language, which in PET’s view concerned recruitment of terrorists, notably from Ceuta (a Spanish enclave bordering Morocco) or Saudi Arabia, to be sent to Syria, from where they entered Iraq. PET had observed that the applicant had been to Ceuta in December 2006 on a false Spanish passport. PET estimated that from July to December 2006 the network had sent around thirty terrorists to Iraq, mainly from Morocco. They also had information that a number of those persons had been killed in action. In May 2007, MH had entered Syria and been arrested, whereupon the applicant had taken over the coordinating role in Denmark, but he had suspended his activities shortly thereafter. 12. A general report by PET on code language generally used by militant extremists was also submitted before the High Court. It stated that it had been known since 2002 that words generally related to weddings were an integral part of the communication used by terrorists. Thus, for example, a wedding stood for a terrorist attack and a bridegroom referred to a suicide bomber. Moreover, words like “shirt” meant terrorist, “carton” meant suicide bomber, “to be ill” meant to be imprisoned, “hospital” meant prison, and “cloudy” meant to be surveyed. Moreover, in order to avoid interception of mails, so-called draft mails were regularly used, where the receiver knew the access code, and thus was able to read the draft mail by logging on to the sender’s e-mail account, and delete the draft afterwards. That method was used, inter alia, by the perpetrators behind the terrorist attack in Madrid on 11 March 2004. 13. Moreover, a report by PET of 17 June 2010 was submitted concerning four meetings which had taken place between 15 and 29 May 2007 between the applicant and PET. The applicant had explained that the aim of his visit to Ceuta in December 2006 had been to find a wife. He had been shown photographs of various persons who were known officially to be of special interest to PET, but the applicant had not contributed any valuable information. He received 5,000 Danish kroner for his participation in these interviews. 14. Before the High Court, an article from The Daily Telegraph of 25 November 2006 was also submitted, stating that the American intelligence service had assessed that the Moroccan town Touan, situated less than 30 miles from the Spanish enclave of Ceuta, had turned into one of the world’s largest Jihad recruiting areas. In the previous eight months, a group of young men from the same mosque had left their home to become suicide bombers in Iraq and a further twenty-one men had left the area to seek the death of martyrs. 15. The applicant was heard. He maintained that he had nothing to do with terrorist activities. He explained, among other things, that he had never had a job in Denmark. Sometimes, he helped out in a kebab restaurant. In 2005, he had met a man with the initials MH in a Turkmen club in Copenhagen. MH ran a mobile telephone shop. They started working in cooperation: MH had money and the applicant had contacts. The applicant helped MH with trading products with persons in, inter alia, Saudi Arabia, Syria, Turkey and Morocco. He had made some contact via the internet. Confronted with telephone conversations between him and others of 3, 27, 29 and 30 July; 5, 14 and 30 August; 4, 17, 22, 23 September; 26 and 29 December 2006 which had been intercepted, and various internet chat exchanges, he explained that the conversations had nothing to do with recruiting terrorists, but rather concerned trade in different goods from MH’s mobile telephone shop or, for example, jackets. It had been the applicant’s task to find out where the goods were. As to the use in several conversations of words such as: “bridegrooms” or “new bridegrooms”, “we have girls willing to marry”, “either he will marry or he will become ill”, “booklets”, “the two articles”, “they must be ready in a couple of days”, “they will be told when they can leave”, “the men”, “brothers”, “cartons”, “cloudy”, “surveillance” and “illness”, they had nothing to do with recruitment of terrorists. The word “bridegroom” was used a lot in Turkmen for persons who are nicely dressed, but also referred to persons who received products. “Cartons” meant goods but could also refer to persons. He was also in contact with some Moroccan women, who wished to marry. At some time they had changed from using the telephone to using Hotmail when doing business, because MH also sold illegal goods. 16. The applicant submitted, among other things, that even if the disputed procedure and decisions were in compliance with sections 25 and 45 b of the Aliens Act, the procedure had been in breach of the guarantees enshrined in Article 8 as to legality, proportionality and lack of arbitrariness, Article 13 as to an effective remedy, and Article 1 of Protocol No. 7 to the Convention as to discovery. He contended that the Ministry of Integration had failed to prove that he was a central person in an international network and a danger to Danish national security. 17. By judgment of 9 December 2010, the High Court unanimously found against the applicant. At the outset, it found that the open material provided such detailed and sufficient information about the allegations against the applicant that it enabled him to address the danger assessment and the open material submitted against him, and in addition give adequate instructions to his special advocate as to the closed material. In this respect the High Court considered that the proceedings leading to the disputed decisions, and the review proceedings before the High Court, complied with the provisions of the Convention relied on and notably the principles set out in A. and Others v. the United Kingdom ([GC], no. 3455/05, § 220, ECHR 2009). Finally, based on the open material, the High Court found it established that the applicant was a threat to national security, a finding that had been further strengthened by the closed material, to which the special advocate had had full access. Conclusively, the High Court found that the deportation order had been justified and proportionate. 18. The applicant appealed against the judgment to the Supreme Court (Højesteret), before which the procedure was also conducted in an open and a closed part by virtue of section 45 g, section 1, of the Aliens Act. The parties agreed that the review did not concern the deportation of the applicant as such. The parties referred to their previous submissions. In addition, the special advocate submitted that a number of documents should be excluded from the case, as it could not be ruled out with the requisite certainty that the information in those documents had been obtained by the use of torture. In reply, the Ministry of Integration pointed out that the special advocate had failed to submit any concrete information to support such an allegation. 19. By judgment of 24 June 2011 the Supreme Court unanimously found against the applicant with the following reasoning: The danger assessment and deportation (the applicant’s principal claim) The Minister for Integration decided on 21 December 2007, based on a recommendation by the Minister for Justice, that [the applicant] must be deemed a danger to national security pursuant to the then section 45 b, section 1, of the Aliens Act. Thereafter, on 9 January 2008, the Aliens Service decided that [the applicant] shall be deported with a permanent ban on his entry, and that his alien’s passport shall be revoked. That decision was upheld by the Ministry for Integration on 6 May 2008. The decision by the Minister for Integration that [the applicant] must be deemed a danger to the security of the State, is based on accusations against him, which PET in its report of 17 September 2009 – submitted as open material – summarised as follows: From the spring of 2006 [the applicant] was a central person in an international network, which coordinated the installation of terrorists in Iraq. Besides [the applicant] the network consisted of the Iraqi national MH and a number of Iraqi, Moroccan and Swedish nationals. In the period from July to December 2006 the network sent out approximately thirty terrorists to Iraq. A number of those persons died subsequently in connection with actions in Iraq. After the arrest of MH in May 2007, [the applicant] took over the coordinating role in Denmark and decided temporarily to stay the sending out of terrorists. In the said report PET has described in more detail the basis for those accusations against [the applicant]. [The applicant] has claimed that the danger to national security referred to in section 25 (i) of the Aliens Act must concern the Danish State. Thus even if the disputed network had assisted with the installation of persons in Iraq, it could not be concluded that he can be deemed a danger to Danish national security. The Supreme Court notes in this respect that according to the preparatory notes to section 25 (i) of the Aliens Act, the considerations regarding the security of the State relate in particular to those interests covered by chapters 12 and 13 of the Penal Code, and that a provision on deportation in order to protect the security of the State must be viewed as a necessary part of the countries’ preparedness measures when combating international terrorist activities (Folketingstidende 2001/02, L32, tillæg A, p. 772). In the light thereof, the Supreme Court finds that persons in Denmark who are engaged in a network which assists with the installation of terrorists in Iraq, must be deemed a danger to the security of the Danish State under section 25 (i) of the Aliens Act. Due to security reasons, the basis for the danger assessment was not disclosed to [the applicant] in connection with the decision thereon by the Minister for Integration or the deportation order by the Ministry, which is in compliance with the rules in force at the time and today as to discovery and reasoning under section 45 b, subsections 1 and 2 of the Aliens Act. In this case the procedure before the courts is covered by Act no. 487 of 12 June 2009 on the amendment of the Aliens Act, which was inserted in Chapter VII b of the Aliens Act. The Act provides for the possibility to divide the proceedings in an open and a closed part. The confidential material, which has formed the basis for the danger assessment, but which for security reasons cannot be disclosed to the alien, may be submitted under the closed part of the proceedings. Under the open part the alien is assisted by appointed counsel. In order to safeguard the applicant’s interests under the closed part of the proceedings, a special advocate will be appointed, who exercises party rights on behalf of the applicant under this part of the case. The special advocate is not allowed to discuss the closed material available to him with the alien or his counsel, but the alien and his counsel can always make written observations to the special advocate about the case. The purpose of this special procedure before the courts is to create a balance between, on the one hand, the need for confidentiality of information for security reasons and, on the other hand, the need to secure that there is a real possibility of taking care of the alien’s interests in an efficient manner. Thus, pursuant to the preparatory notes to the Act, the alien must have “access to sufficient information about the accusations against him to enable him to give effective instructions to his special advocate”. In the preparatory notes it is specifically mentioned that there may be cases, “where an administrative deportation order and a possible deprivation of liberty cannot be upheld, because the accusations disclosed in the open material are of such a general character, that the alien is not in a position to give effective instructions to his counsel or his special advocate”, and that the courts cannot uphold a deportation order solely by referring to accusations of a general character or to the closed material in the case. In its decision of 18 August 2010 (published in the Danish Weekly Law Reports, Ugeskrift for Retsvæsen, 2010, page 2910), the Supreme Court concluded that the rules set out in Chapter VII b of the Aliens Act must be considered compatible with the Convention on Human Rights, and that it cannot be considered in breach of the Convention that those rules apply to cases that have already been initiated. The Supreme Court finds that the lack of disclosure to [the applicant] of the basis for the administrative danger assessment and the administrative deportation order is not in breach of the Convention or Article 1 of Protocol No. 7 to the Convention. However, the subsequent review by the courts of the danger assessment and the deportation order must live up to the requirements as to discovery etc., set out in the Aliens Act on court proceedings. The question is thus, what has been submitted as material in the case to illustrate whether [the applicant] must be deemed a danger to national security, and whether the accusations against him have been sufficiently and factually substantiated in a way which respects the legal requirements regarding discovery, etc. The accusations on which the Minister for Integration based the decision that [the applicant] must be deemed a danger to national security were based, are in the Supreme Court’s view sufficiently and factually substantiated by the material submitted during the open part of the procedure. In this regard, the Supreme Court has notably accorded weight to the contents of the intercepted telephone conversations, in which, among other things, a code language is used. The Supreme Court has also accorded weight to the contents of the e-mails (draft e-mails) and to the contents of [the applicant’s] chat on the Internet. Furthermore, the Supreme Court has accorded weight to the persons involved in, or mentioned during, the intercepted telephone conversations or in the said e-mails (draft e-mails) and chat on the net. Finally, the Supreme Court has accorded weight to the fact that [the applicant] has provided an entirely unreliable explanation of what the telephone conversations and the internet communication concerned. In the Supreme Court’s opinion, the open material suffices in itself to carry the decision by the Minister for Integration that [the applicant] must be deemed a danger to national security, and no material has been submitted during the closed part which weakens this finding. It should be mentioned in this respect, that during the open part, there has been such specific, concrete and precise information about the basis for the accusations, that [the applicant] has had a real possibility of taking care of his interests in an efficient manner, also during the closed part of the case, including by giving concrete instructions to the special advocate. Since the open material is sufficient to uphold the danger assessment, it is unnecessary to take a stand on the allegation submitted by the special advocate that there might be information obtained by the use of torture among the closed material submitted to support the danger assessment. Hereafter, the Supreme Court has found no reason to revoke the decision by the Minister for Integration, that [the applicant] must be deemed a danger to national security. Accordingly, the Ministry for Refugee, Immigration and Integration Affairs was entitled to deport the applicant with a permanent ban on his return by virtue of section 25(i) of the Aliens Act, compared with section 32, subsection 4, and the Supreme Court endorses that there are no considerations as set out in section 26, subsection 1, which could lead to the annulment of the deportation. In conclusion, the Supreme Court confirms that the Ministry for Refugee, Immigration and Integration Affairs is acquitted in relation to [the applicant’s] principal claim. The claim in the alternative [The applicant’s] claim in the alternative aims to conclude that the decision of 6 May 2008 by the Ministry for Refugee, Immigration and Integration Affairs to deport him with a permanent ban on his return, and to confiscate his alien’s passport, should not have been taken, when the basis for the decision was not disclosed to him. In support of that claim, [the applicant] has submitted that the administrative deportation order was such a serious interference with his personal freedom, that it should not have been taken without disclosure being secured. On this basis, the Supreme Court takes a separate stand on this claim, as it cannot be viewed alone as an argument in support of his principal claim. Nevertheless, referring to the Supreme Court’s finding above as to danger assessment and deportation, [the applicant] did not have a right to disclosure in respect of the administrative decisions thereon. Thus, the Supreme Court confirms that claim in the alternative submitted by the Ministry for Refugee, Immigration and Integration Affairs for acquittal. B. Relevant domestic law and practice 20. The relevant provisions of the Aliens Act (Udlændingeloven), Consolidation Act no. 785 of 10 August 2009 provided: Section 25 An alien may be expelled if: (i) the alien must be deemed a danger to national security; or (ii) the alien must be deemed a serious threat to public order, safety or health. Section 26 (1) In deciding on expulsion, regard must be had to the question whether expulsion must be assumed to be particularly burdensome, in particular because of: (i) the alien’s ties with Danish society; (ii) the alien’s age, health, and other personal circumstances; (iii) the alien’s ties with persons living in Denmark; (iv) the consequences of the expulsion for the alien’s close relatives living in Denmark, including in relation to regard for family unity; (v) the alien’s slight or non-existent ties with his country of origin or any other country in which he may be expected to take up residence; and (vi) the risk that, in cases other than those mentioned in section 7(1) and (2) or section 8(1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence. (2) An alien must be expelled under section 22(1)(iv) to (viii) and section 25 unless the circumstances mentioned in subsection (1) make it conclusively inappropriate. Section 31 (1) An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country. (2) An alien falling within section 7(1) may not be returned to a country where he will risk persecution on the grounds set out in Article 1 A of the Convention relating to the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such a country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in respect of a particularly dangerous crime, the alien must be deemed a danger to society, but see subsection (1). Part VII a Exchange of information between the immigration authorities and the intelligence services and the public prosecutor, etc. Section 45a (1) Without the alien’s consent, the Danish Immigration Service, the Ministry of Refugee, Immigration and Integration Affairs, the Refugee Appeals Board and the regional state administrations, see section 46c, may transmit information from a case under this Act to the intelligence services to the extent such transmission may be of importance to the handling of security tasks by the intelligence services. (2) Without the alien’s consent, the intelligence services may transmit information on an alien to the Danish Immigration Service, the Ministry of Refugee, Immigration and Integration Affairs, the Refugee Appeals Board and the regional state administrations, see section 46c, to the extent that such transmission may be of importance to the examination of a case under this Act by these authorities. (3) Without the alien’s consent, the intelligence services may mutually exchange information as mentioned in subsections (1) and (2). Section 45b (1) For the purpose of the examination of a case under this Act, the Minister for Integration assesses on the basis of a recommendation from the Minister for Justice whether the alien must be deemed a danger to national security. This assessment forms the basis of the determination of the case. (2) The Minister for Justice may decide that the information included in the assessment under subsection (1) may not, for security reasons, be transmitted to the alien assessed. Furthermore, the Minister for Justice may decide that for security reasons information as mentioned in the first sentence hereof may not be transmitted to the immigration authority having to make a decision in the case. Part VII b Court proceedings in certain decisions on administrative expulsion, etc. Section 45d (1) The rules of this Part apply to court proceedings in cases relating to: (i) the review of a danger assessment under section 45b or a decision on expulsion under section 25(i); (ii) the deprivation of liberty of an alien under section 36 for the purpose of ensuring the possibility of expulsion under section 25(i); (iii) an application for a residence permit under section 7 or 8(1) or (2) from an alien expelled under section 25(i). (iv) a decision on the return under section 31 of an alien who has previously held a residence permit under section 7 or 8(1) or (2) and has been expelled under section 25(i); and (v) a decision under section 32b when the alien has been expelled under section 25(i). (2) Cases falling within this Part must be brought before the Copenhagen City Court by the Minister for Justice or the person so authorised by the Minister. For determining the case, 3 judges will sit. The court may decide that 1 judge only will sit for the hearing of a case on deprivation of liberty under section 36, see subsection (1)(ii). The Minister for Justice or the person so authorised by the Minister may allow persons employed with the National Security Service to appear in his place as process agents. (3) Bringing a case before the court suspends enforcement of any decision when the alien is staying in Denmark. Bringing the case before the court does not prevent enforcement and continued deprivation of liberty under section 36, see subsection (1)(ii), unless so decided by the court. (4) Sections 37a to 37e apply correspondingly in cases on deprivation of liberty under section 36, see subsection (1)(ii). Section 45e (1) Parties to the case are deemed to be the alien and the person bringing the case before the court under section 45d(2). (2) The court shall assign counsel to act for the alien. The court shall also assign a special advocate to safeguard the alien’s interests and exercise a party’s rights on the alien’s behalf with regard to information falling within section 45b(2). Concerning legal fees and compensation for outlay to counsel and the special advocate, the same rules apply as in cases where free legal aid has been granted, see Part XXXI of the Administration of Justice Act. (3) The special advocate under subsection (2) must be notified of all court hearings in the case and is entitled to attend them. The special advocate must be made aware of and be given a copy of the material included in the case before the court. The Minister for Justice or the person so authorised by the Minister may decide that a copy will not be given to the special advocate for security reasons. Upon request from the special advocate, such matter must be brought before the court by the person who brought the case before the court under section 45d(2). (4) The court shall decide how an alien who resides abroad and is subject to an entry prohibition, see section 32, see section 25(i), will be given an opportunity to make a statement to the court. Section 45f (1) Information falling within section 45b(2) will be transmitted to the special advocate assigned under section 45e(2). When such information has been transmitted to the special advocate, he may not discuss the case with the alien or the alien’s counsel and may not speak at hearings at which the alien or his counsel is present. The alien and his counsel may make written communications to the special advocate about the case at any time. (2) The court may decide on its own initiative or upon request from the special advocate assigned under section 45e(2) that information applied by the Minister for Justice in his assessment under section 45b(1) will be transmitted to the alien and his counsel if the decision of the Minister for Justice under section 45b(2) is not justified by security reasons. The decision is made by order after the special advocate and the person who brought the case before the court under section 45d(2) have had an opportunity to make a statement. The order may be appealed against by the persons mentioned in the second sentence hereof. Appeal against a decision to transmit information suspends enforcement of the decision. (3) If the court has made a decision under subsection (2), first sentence, the Minister for Justice or the person so authorised by the Minister may decide that the information in question will not be included in the case before the court. (4) A judge may not sit in the case if he has made a decision under subsection (2), first sentence, or has otherwise had access to information falling within such decision and the Minister for Justice or the person so authorised by the Minister has decided under subsection (3) that the information in question will not be included in the case before the court. Section 45g (1) The part of a hearing which concerns or during which information falling within section 45b(2) and not falling within section 45f(2) is produced or considered must be held behind closed doors. This part of a hearing will be attended by the special advocate assigned under section 45e(2), but not by the alien and his counsel. (2) The court decides how hearings held wholly or partly behind closed doors under subsection (1) are to be conducted. Section 45h (1) The court makes its decision after the parties and the special advocate assigned under section 45e(2) have had an opportunity to make a statement. (2) The court’s decision on deprivation of liberty, see section 45d(1)(ii), is made by order. Section 37(3) to (5) applies correspondingly. (3) The court’s decision on expulsion, residence permit and return, see section 45d(1)(i) and (iii) to (v), is made by judgment. If the court decides to uphold the decision on expulsion or to refuse a residence permit under section 7 or 8(1) or (2), or that return will not be contrary to section 31, the decision must stipulate a time-limit for departure according to which the alien is ordered to leave Denmark immediately. (4) For the purpose of the court’s decision under section 45d(1)(iii) to (v), the court requests the Refugee Appeals Board to issue an opinion after the parties and the special advocate assigned under section 45e(2) have had an opportunity to make a statement. 21. Part VII b, above, concerning “Court proceedings in certain decisions on administrative expulsion, etc.” was inserted by Act no. 209 of 28 April 2009 specifically to create a new model for the procedure and court review in cases concerning administrative deportation of aliens deemed a danger to national security, which would comply with the principles and requirements set out in A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 93 and 215, ECHR 2009). As to the background and content of the bill, the preparatory works read, inter alia: ... “The bill proposes to create a new model for the procedure and court review in cases concerning administrative deportation of aliens deemed a danger to national security. The proposed model entails that the Minister of Justice, on the basis of a recommendation by PET, makes an assessment of whether an alien must be deemed a danger to national security, and that thereafter the Ministry for Integration takes a decision on deportation on the basis of the danger assessment made by the Minister of Justice. The proposed model also entails a special access to court review of the danger assessment and the deportation decision, where the evidence will be divided into open and closed material, and where, in a court hearing held behind closed doors, there will be an opportunity to submit the confidential material relied on in the danger assessment made by the Minister of Justice, and where the aliens’ interests will be safeguarded by a special advocate. It is a condition, though, that the alien has access to sufficient information about the accusations against him, enabling him to give effective instructions to the special advocate. Finally, the proposed model entails that the power to deal with asylum legal questions relating to the possibility of deportation in this kind of case, is transferred from the aliens authorities to the courts.” ... “With [this new model] the Government have attempted to achieve a joint overall solution for court review in this kind of case. [As mentioned below] the Court of Human Rights has, in a judgment of 19 February 2009 in the case A. and Others v. United Kingdom, approved a solution concerning court review of the legality of deprivation of liberty, where the evidence is divided into open and closed material, and a special advocate is appointed for the deportee. However, according to the Court it is a condition that the deportee, via the open material, has access to sufficient information about the accusations against him, so that he is capable of giving effective instructions to the special advocate. It should be noted in this connection, that also in cases being dealt with under the new proposed rules, there might be incidents where the courts will find that the administrative deportation and a possible deprivation of liberty cannot be upheld, because the submitted accusations in the open material are of such a general character that the alien at issue is not capable of giving effective instructions to his counsel or the special advocate.” ... “In a series of cases, the Court has further pronounced on the demands which it requires of a court review regarding an administrative deportation and, in that connection, the underlying actual danger assessment. The relevant provisions are Article 8 ..., Article 13 ... and Article 1 of Protocol No. 7... In Al-Nashif v. Bulgaria, judgment of 20 June 2002, concerning the question of court review of an administrative deportation in such cases, the Court stated that there must be some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations due to the classified information. In the same judgment, as to the interpretation of Article 13, the Court stated that the guarantee of an effective remedy under the said provision requires that the competent independent appeals authority must be informed of the reasons justifying the deportation decision, even if such reasons are not publicly available. In this connection the Court emphasised that the appeal authority must be competent to reject the executive’s assertion that there is a threat to national security where it finds it arbitrary or unreasonable. There must be some form of adversarial proceedings, if need be through a special representative after security clearance. Furthermore, the question of whether the impugned measure would interfere with the individual’s right to respect for family life and, if so, whether a fair balance is struck between the public interest involved and the individual’s rights, must be examined. The Court has repeated those statements in subsequent judgments about administrative deportation of aliens deemed a danger to national security, most recently in C.G and Others v. Bulgaria, judgment of 24 April 2008. The Court’s judgments on the interpretation of Article 1 of Protocol No. 7 in cases concerning deportation of such aliens have not resulted in further demands being required of the court review of the administrative deportation decision than already follow from the Court’s jurisprudence under Articles 8 and 13. Pursuant to the bill, the proposed court control of the deportation decision by the Ministry for Integration may result in the annulment of the deportation, for example because the danger assessment is not found sufficiently reasoned, or - even if the danger assessment is found to be reasoned - because the deportation does not to a sufficient degree respect the relevant person’s right to family life under Article 8. The procedural limitation, that the interest of the alien is safeguarded by a special advocate, including through the latter’s access to the closed material and during a court hearing behind closed doors, is necessitated by the classified character of PET’s material. It is the opinion of the Ministry for Integration that the proposed solution hereafter lives up to the requirement under Articles 8 and 13 regarding “some form of adversarial proceedings, if need be through a special representative after security clearance” as established by the Court in the aforementioned case-law on deportation of aliens, deemed a danger to national security. Against this background it is the view of the Ministry for Integration that the proposal to introduce a strengthened court review of both the Minister of Justice’s assessment of whether the alien must be deemed a danger to national security, and the Ministry for Integration’s decision on deportation will comply with Article 8 and 13 of the Convention, and Article 1 of Protocol No. 7.” ... 22. Article 63 of the Constitution read as follows: The courts have authority to adjudge on any matter concerning the limits to the competence of a public authority. However, anyone wishing to raise such matters cannot avoid temporarily complying with orders issued by the public authorities by bringing them before the courts.	0
test	001-173384	ENG	RUS	COMMITTEE	2,017	CASE OF MERZLYACHENKO AND OTHERS v. RUSSIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)	Branko Lubarda;Dmitry Dedov;Luis López Guerra	3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.	1
test	001-153350	ENG	ARM	CHAMBER	2,015	CASE OF DAVTYAN v. ARMENIA	4	Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)	Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra	5. The applicant was born in 1962 and lives in Yerevan. 6. From 1997 to 1999 the applicant worked as the executive director of the Credit Service Bank (hereafter, the Bank). 7. On 19 March 2002 the prosecutor decided to institute criminal proceedings under paragraph 2 of Article 182 of the former Criminal Code (hereafter, the former CC) on account of abuse of official capacity by the former management of the Bank through embezzlement of funds entrusted to it in June 2001 by another company. It appears that at the material time the applicant worked as an advisor to the chamber of control of the Armenian parliament. 8. On 31 March 2003 the applicant was arrested on suspicion of largescale embezzlement, abuse of official capacity and official falsification under paragraph 4 of Article 90, paragraph 1 of Article 182 and Article 187 of the former CC. 9. On 1 April 2003 the applicant was formally charged under paragraph 4 of Article 90, paragraph 1 of Article 182 and Article 187 of the former CC with embezzlement through abuse of his official capacity and official falsification through preparation and use of false accounting documents during his office as the executive director of the Bank from 1997 to 1999, causing damage to the Bank and its clients. It appears that ten other persons were also charged with involvement in these or related crimes. 10. On the same date the Kentron and Nork-Marash District Court of Yerevan granted the investigator’s application to have the applicant placed in pre-trial detention for a period of two months. The applicant alleged that during the hearing his lawyer had requested the court not to impose detention as a preventive measure, due to the applicant’s poor health. The applicant’s detention was subsequently extended by the District Court on two occasions until 31 August 2003. 11. On 2 April 2003 a group of nine members of the Armenian Parliament applied to the Prosecutor General requesting that the applicant’s detention be replaced by another preventive measure in view of, inter alia, the applicant’s poor health. 12. On 10 April 2003 the General Prosecutor’s Office addressed a letter to the Head of Staff of the Parliament, stating that the applicant’s release was not possible since he had committed a grave crime and had refused to return embezzled funds. 13. On 1 August 2003 a new Criminal Code (hereafter, the new CC) entered into force in Armenia. 14. On 11 August 2003 the charges against the applicant were adapted to the new CC and he was formally charged under Article 179 § 3 (1), Article 214 § 1 and Article 325 § 2 of the new CC. 15. On 14 November 2005 the Kentron and Nork-Marash District Court of Yerevan found the applicant guilty under Article 179 § 3 (1) and Article 325 § 1 of the new CC. In particular, the applicant was found to have executed a number of financial operations involving bonds and fixed assets, the proceeds of which he embezzled. The District Court sentenced the applicant to six years’ imprisonment without confiscation of property under Article 179 § 3 (1) and terminated the proceedings under Article 325 § 1 by applying a statute of limitations with reference to Article 35 § 1 (6) of the Code of Criminal Procedure (CCP). 16. On 29 November 2005 the applicant lodged an appeal. 17. On 10 April 2006 the Criminal and Military Court of Appeal decided to uphold the judgment of the District Court. The Court of Appeal found, inter alia, that: “The first instance court, considering [the applicant’s] ... guilt in preparing and using false documents to be substantiated, rightly terminated the proceedings under Article 325 § 1 of [the CC] on the ground envisaged by Article 35 [§ 1] (6) of [the CCP].” 18. On 20 April 2006 the applicant lodged an appeal on points of law. In his appeal he argued, inter alia, that Article 325 of the new CC should not have been applied to his case because documents of commercial organisations could not be considered “official”. He should therefore have been penalised under Article 214 of the new CC instead. 19. On 1 June 2006 the Court of Cassation dismissed the applicant’s appeal. The Court of Cassation found, inter alia, that: “Documents to which public authorities give legal significance are considered official. Official documents may be issued both by public authorities, their officials and bodies of local self-government, and by legal entities, commercial and other types of organisations. Such documents as credit or other financial documents drawn up by commercial banks can also be considered as [official documents], since they also have legal significance...” 20. On 3 April 2003 the applicant was transferred to Nubarashen detention facility. 21. On 4 April 2003 the applicant was examined at the facility’s medical unit and diagnosed as having a throat tumour. He also complained of a sore throat, loss of voice and chest pain. 22. On 28 April 2003 the applicant was examined by an external doctor who recommended that the applicant be examined by an otolaryngology specialist. 23. On 29 April 2003 the applicant was examined by an otolaryngology specialist who confirmed the diagnosis of a throat tumour. In order to determine the nature of the tumour, the doctor recommended: (a) a biopsy to be carried out; (b) computer tomography of the throat; and (c) further examination and treatment. 24. On 8 May 2003 the applicant, apparently in reaction to the medication that he was taking, showed symptoms of anaphylactic shock such as urticaria, coldness of extremities, severe shivering and a drop in blood pressure to 20/40 followed by loss of consciousness. First aid was provided by the detention facility’s medical unit and an ambulance was called. It appears that thereafter the applicant continued to experience symptoms of allergy such as face and body swelling, itching and blood pressure fluctuations. 25. On 20 May 2003 an external allergy specialist was called who diagnosed the applicant as suffering from Quincke’s oedema, pollinosis and an atypical form of bronchial asthma. 26. On 13 June 2003 the applicant’s condition drastically deteriorated. He experienced laboured breathing, facial swelling, drop in blood pressure to 50/20, swelling of extremities and Quincke’s oedema. First aid was provided. 27. On 10 July 2003 the applicant was examined by a psychiatrist. The applicant complained of low spirits, irritability, insomnia and tachycardia, as well as recurring headaches, chest pains and high blood pressure due to frequent emotional stress. From that day on the applicant remained under the psychiatrist’s regular supervision, during which it was found that the applicant was suffering from depression, fits of anger, irritability, insomnia, headaches, chest pains, tension and anxiety. 28. On 5 November 2003 the applicant was examined by prison doctor N., who noted his complaints of haemoptysis, hoarseness and a weakened swallowing reflex. The applicant was also observed to suffer increased pallor and significant weight loss. It appears that these symptoms continued from that day on. 29. On 10 January 2004 the applicant was examined by prison doctor N., who noted his complaints of skin rash and itching and shortness of breath, which were apparently caused by emotional stress. Medication was prescribed. 30. On 20 March 2004 the applicant complained to prison doctor N. of asthenia, hoarseness and a cough which turned into asphyxia. 31. The applicant alleges that on or around 27 April 2004 he was informed that he was going to be transferred from the detention facility’s medical unit to an ordinary cell. The applicant refused to be transferred, referring to his poor health, so he was moved to a punishment cell for three days. On the first night in the punishment cell he was not given blankets or bed linen. On the second night the applicant’s health deteriorated and he experienced laboured breathing, asphyxia attacks and high blood pressure. The applicant asked the guard to call the feldsher (doctor’s assistant). When the feldsher arrived, he was unable to enter the punishment cell because it was locked and the guard did not have the key. It took half an hour to find the key after the feldsher protested. On the morning of the third day the applicant was transferred back to the medical unit. 32. On 20 May 2004 the applicant’s health deteriorated. According to his medical card, his allergy worsened at night and he fell into a collaptoid state. The applicant complained of a cough, itchy skin and nose, shortness of breath, asphyxia attacks, and swelling of the face and lips. 33. On 17 July 2004 a cardiologist was invited to examine the applicant, who complained of severe chest pain, headache and shortness of breath. His blood pressure rose to 180/100. 34. It appears that from August 2004 to January 2005 the applicant continued to show all of the above symptoms at regular medical checkups. 35. On 14 January and 23 February 2005 an ambulance was called as the applicant showed symptoms of stenocardia and hypertension. His blood pressure rose to 160/100. 36. On 27 January 2005 the applicant was examined by a specialist and was advised, inter alia, to undergo an endoscopic examination of the throat and biopsy of the tumour. 37. By a letter of 4 February 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the District Court that the applicant had made numerous complaints about his health, including asthenia, loss of weight, voice hoarsening and haemoptysis. After an examination by specialists of the Ministry of Health, the applicant was diagnosed as having a throat tumour. The applicant therefore needed to be examined in a specialised clinic of the Ministry of Health. 38. On an unspecified date in April 2005 the applicant was examined by an external doctor who noted that, in order to reach a final diagnosis concerning the applicant’s throat tumour, he needed to undergo computer tomography or a magnetic resonance imaging (MRI) scan. 39. On 8 April 2005 prison doctor N. informed the District Court that the applicant was unable to participate in the hearing to take place on that date because he was suffering from Quincke’s oedema. 40. The Government alleged, which the applicant disputed, that in April 2005 the doctor suggested that the applicant be transferred to a specialised establishment for treatment, but the applicant refused. 41. On an unspecified date in May 2005 the applicant experienced a rash, skin and nose itch, cough and laboured breathing followed by asphyxia and loss of consciousness. His face and lips were swollen. An ambulance was called and first aid was provided. The diagnosis of Quincke’s oedema, pollinosis and an atypical form of bronchial asthma was confirmed. 42. On 16 May 2005 the applicant was provided with first aid after showing the following symptoms: severe headaches, dizziness, chest pain, shortness of breath and a disruption in coordination of movements. He further experienced persistent dizziness, facial swelling and excessive sweating. The applicant was diagnosed with hypertensive crisis and an acute disturbance of cerebral blood circulation of the vertebrobasilar area. 43. By a letter of 9 June 2005 the chief of Nubarashen detention facility and the head of its medical unit informed the District Court that the applicant had recently been showing symptoms of hoarseness, haemoptysis and asthenia, and that it was impossible to conduct a proper examination at the detention facility’s medical unit. They requested the court to allow the applicant’s transfer to the Armenia Medical Centre in order to carry out a specialised examination, to clarify the diagnosis and to decide on further treatment. The District Court granted this permission. 44. On 10 June 2005 the applicant was examined by an otolaryngologist at the Armenia Medical Centre. A tumour on the vocal cords was diagnosed and he was advised to undergo surgical treatment and a biopsy of the tumour was recommended. 45. By a letter of 20 December 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the applicant’s lawyer that the applicant had been admitted for in-patient treatment at the detention facility’s medical unit with the following complaints: laboured breathing, asphyxia, haemoptysis, voice hoarsening, headache, dizziness and frequent loss of consciousness. Following a number of examinations the applicant was diagnosed as suffering from a throat tumour of unknown nature, allergy of unknown aetiology, Quincke’s oedema and fits of anaphylactic shock. According to the conclusions reached by the specialists of the Ministry of Health, the applicant needed to undergo specialised instrumental and histological examinations and surgery. Recently the fits of anaphylactic shock and loss of consciousness had become more frequent. The applicant was under permanent medical surveillance and was receiving symptomatic treatment. 46. By a letter of 22 December 2005 the acting chief of Nubarashen detention facility and the head of its medical unit informed the applicant’s lawyer that it was not possible to carry out the required examinations and surgery for the applicant at the detention facility’s medical unit. 47. On 23 December 2005 the applicant’s lawyer filed an application with the Court of Appeal, requesting that the applicant be released for health reasons. Copies of the letters of 20 and 22 December 2005 were attached to this application. The applicant alleges that the Court of Appeal included this application in the case file without ruling on it. 48. At the hearing of 26 January 2006 the applicant’s lawyer filed another application similar to that of 23 December 2005. She further requested the court to summon the applicant’s prison doctor. A copy of the applicant’s medical record was attached to this application. It appears that the Court of Appeal decided to postpone the examination of this application in order to establish “certain essential circumstances”. The court further requested the applicant’s lawyer to submit a certified copy of the applicant’s medical record. 49. At the hearing of 27 January 2006 the applicant announced that he was unable to testify because of his inability to speak and that he would testify in writing. He requested the court to release him because of his poor health. It appears that the Court of Appeal again decided to postpone the examination of this request in order to establish certain essential circumstances. 50. At the hearing of 31 January 2006 prison doctor N. was examined in court. The doctor, at the outset, presented details of the diseases suffered by the applicant and the dynamics of their development. He further submitted that all possible treatment had been prescribed but, despite occasional improvements, the applicant’s condition continued to deteriorate. The antiallergy treatment had yielded no results. The applicant had been examined on numerous occasions by otolaryngology and oncology specialists who had unanimously concluded that the applicant needed examination and treatment in a specialised clinic. There was no possibility to carry out such treatment at the detention facility’s medical unit, so the applicant received symptomatic treatment. Shortness of breath and asphyxia attacks had become more frequent in December 2005 and January 2006 and were accompanied by coughing and haemoptysis leading to loss of consciousness. The applicant had been resuscitated on several occasions but the growth of the tumour could result in respiratory obstruction causing the applicant’s death, which could occur in a matter of 3 to 4 minutes. Doctor N. recommended the applicant’s immediate transfer to a specialised clinic in order to eliminate the risk of death. He further stated that not only Nubarashen detention facility’s medical unit but the entire penitentiary system lacked the necessary specialists and equipment to carry out a fullscale examination and treatment of the applicant. 51. At the same hearing the applicant’s lawyer filed an application requesting the applicant’s release, which was dismissed by the Court of Appeal. She further requested the court to examine the previously filed applications concerning the applicant’s state of health. It appears that the Court of Appeal again decided to postpone the examination of these applications, stating that the information at its disposal was not sufficient to resolve the question of detention. 52. It appears that during that period the applicant refused to be transferred to a specialised clinic. He alleged that his refusal was motivated by the fact that no assurances had been given to him that the required surgery would actually be performed, since another transfer to an outside clinic without such surgery would have been useless and would only have aggravated his condition. 53. On 6 February 2006 the applicant was transferred to the otolaryngology department of the Armenia Medical Centre because of a drastic deterioration in his health. The applicant underwent another examination and was diagnosed with chronic laryngotracheitis and malignisation of the tumour. An urgent in-patient examination and surgical treatment in a specialised clinic were recommended. 54. At the hearing of 8 February 2006 the applicant was unable to finish his testimony because of his inability to speak and the hearing was adjourned. 55. By a letter of 9 February 2006 the chief of Nubarashen detention facility informed the head of the Criminal Executive Department of the Ministry of Justice that, based on the results of the relevant medical examinations, the conclusions of specialists and the progressive nature of the applicant’s disease, he needed to undergo urgent surgery in a specialised clinic, as the tumour was growing and could cause respiratory obstruction. 56. At the hearing of 15 February 2006 the applicant’s lawyer filed another application with the Court of Appeal seeking to have the applicant released because of his poor health. A certified copy of the applicant’s medical record and a copy of the results of the examination of 6 February 2006 were attached to this application. The Court of Appeal dismissed this application on the ground that the examination of the case was in its final stage and there were no relevant documents, such as an expert opinion, justifying the need to carry out the applicant’s urgent examination and treatment in a specialised clinic. 57. By a letter of 27 February 2006 the chief of Nubarashen detention facility and the head of its medical unit informed the Court of Appeal that the applicant had been examined by specialists at the Armenia Medical Centre and it had been established that his throat tumour had grown and that he was in need of urgent surgery. They requested the applicant’s transfer to the Medical Centre for surgery. The Court of Appeal granted this request. 58. On 2 March 2006 the head of the detention facility’s medical unit informed the Court of Appeal that the applicant was unable to participate in the hearing to take place on that date because he was suffering from fits of asphyxia. 59. On 4 March 2006 the applicant was transferred to the Armenia Medical Centre. He was diagnosed as having “a vocal cord tumour (C-R?), first degree stenosis and, as accompanying pathologies, nasal septum deviation and chronic hypertrophic rhinitis”. The applicant was advised to undergo two operations. The first operation was scheduled for 14 March 2006 but was postponed upon the applicant’s request, as he wished to participate in a court hearing in his case. 60. On 18 March 2006 the applicant was examined by a psychiatrist who diagnosed him as suffering from reactive depression accompanied by a phobic syndrome. It appears that the applicant showed symptoms of suicidal thoughts. Administration of tranquillisers was recommended. 61. On 23 March 2006 the applicant underwent his first operation. Partial excision of the mucous membrane of the nasal septum and a doublesided inferior and right-side medial conchotomy were performed. The doctors noted that the applicant’s mental condition prevented the second operation being carried out and advised that it be performed after the applicant’s general condition had stabilised. 62. On 3 April 2006 the applicant was again examined by a psychiatrist, who diagnosed him as suffering from a severe form of depression without mental symptoms. The psychiatrist recommended that treatment be continued and the applicant be kept under strict supervision to prevent possible suicide attempts. 63. On 5 April 2006 the applicant’s lawyer filed an application with the Court of Appeal requesting the applicant’s release on, inter alia, health grounds. The applicant alleges that the Court of Appeal postponed the examination of this request without giving any reasons. 64. On 25 April 2006 the applicant underwent his second operation which involved the removal of polyps on the vocal cords. The operation went smoothly but complications, including inflammation of the vocal cords, adhesions and haemorrhage, occurred in the post-operative period. 65. On 26 May 2006 the applicant’s condition had improved, and he was discharged from the Armenia Medical Centre and transferred back to the detention facility’s medical unit. 66. On 23 June 2006 the applicant was released on parole.	1
test	001-155209	ENG	GRC	CHAMBER	2,015	CASE OF CHITOS v. GREECE	1	Remainder inadmissible;Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-2 - Compulsory labour;Forced labour);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque	5. The applicant was born in 1968 and lives in Thessaloniki. 6. On 15 September 1986 he was admitted to the Corps Officers’ Military Academy (medical section). He was paid a salary and was granted welfare benefits. He pursued academic studies free of charge at the University of Thessaloniki’s Faculty of Medicine, taking the six-year degree course for medical professionals in the national health system. 7. On 3 June 1993, on completion of his studies, he was appointed to the rank of second lieutenant in the army medical corps. 8. In accordance with Article 64 § 1 of Legislative Decree no. 1400/1973 on the status of officers of the armed forces, as applicable at the material time, the applicant had undertaken to serve in the armed forces for a period corresponding to three times the duration of his studies at the military academy – that is, eighteen years. The relevant provision was later amended by section 1 of Law no. 3257/2004 and the period in question was reduced to twice the duration of his studies – that is, twelve years. 9. On 18 January 1996 the Army General Staff organised a competitive examination for the recruitment of medical specialists. Officers in the medical corps, such as the applicant, were invited to apply in order to acquire a specialist qualification. The applicant was attached to the 424 General Military Hospital in Thessaloniki, where he worked as an intern from 26 July 1996 to 30 July 1997. Subsequently, from 30 July 1997 to 27 July 2001, he occupied a paid supernumerary position (by virtue of section 8 of Law no. 123/1975) at the Papanikolaou General Regional Hospital in Thessaloniki as a junior doctor specialising in anaesthesiology. 10. After completing his specialist training, which lasted approximately five years – during which time he was paid his salary as an army officer – the applicant gave an undertaking, in accordance with Article 64 § 7 of Legislative Decree no. 1400/1973, to serve in the army for a further five years. He provided a sworn declaration to that effect as required by Article 67 § 10 of the Legislative Decree. 11. The applicant served in the armed forces until 22 January 2006, when he resigned at the age of 37 as an anaesthetist with the rank of colonel. 12. By a notice of 12 September 2006 the Army General Staff informed the applicant that, pursuant to Article 64 of Decree no. 1400/1973, he was required either to serve in the armed forces for a further nine years, four months and twelve days or to pay the State a fee calculated on the basis of the period remaining to be served. 13. In a decision of 26 May 2007 the accounts department of the Army General Staff assessed the amount of the fee at 106,960 euros (EUR). The decision stated that the applicant could apply to the Court of Audit for judicial review, but that the application would not have suspensive effect as far as the payment procedure was concerned. 14. On 25 June 2007 the applicant applied to the Fifth Division of the Court of Audit for judicial review of the notice of 12 September 2006. He argued that Article 64 of Decree no. 1400/1973 was in breach of Article 22 § 4 of the Constitution (prohibition of all forms of compulsory labour) and Article 4 § 2 of the Convention, read separately and in conjunction with Article 14. On 27 June 2007 the applicant also applied for a stay of execution of the decision of 26 May 2007. 15. On 5 July 2007 a division president of the Court of Audit made an interim order staying the execution of the decision of 26 May 2007. On 29 October 2007 the Fifth Division of the Court of Audit confirmed the stay of execution sought by the applicant. 16. In judgment no. 175/2009 of 13 February 2009 the Fifth Division of the Court of Audit dismissed the applicant’s application for judicial review as ill-founded. It held in particular that the fee to be paid by the applicant did not constitute a menace of a penalty, did not infringe the proportionality principle, had been calculated objectively and was designed to ensure that the State was refunded the expenses it had incurred in training regular members of the armed forces, who were also paid a salary throughout their basic and specialist training. 17. On 3 March 2009 the applicant appealed on points of law to the plenary Court of Audit. On 4 March 2009 he applied to the same court for a stay of execution of the decision of 26 May 2007. 18. On 17 March 2009 the president of the plenary Court of Audit made an interim order staying the execution of the decision in question. On 18 March and 9 April 2009, while those proceedings were ongoing, the Thessaloniki Tax Office ordered the applicant to pay the sum of EUR 106,960, plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund. 19. On 21 October 2009 the plenary Court of Audit confirmed the stay of execution sought by the applicant. 20. On 10 May 2010 the Revenue Department of the Ministry of Finance informed the applicant that because the amount assessed in the decision of 26 May 2007 had not been paid by the end of the previous year, interest of EUR 13,143.24 had been charged for late payment. It also informed him that if he paid the outstanding amount by 31 May 2010, he would be entitled to an 80% discount on the interest. 21. On 26 May 2010 the applicant deposited the sum of EUR 112,155.69 at the Thessaloniki Tax Office. 22. In judgment no. 3230/2011 of 7 December 2011 (served on the applicant on 10 February 2012) the plenary Court of Audit partly allowed the appeal on points of law. 23. It found that the failure to include a period of five years – which had been essential for the applicant to complete his specialist training – as part of his total length of service was in breach of the proportionality principle enshrined in Article 25 of the Constitution. 24. It held that the period during which a medical officer worked towards obtaining a specialist qualification formed part of the officer’s actual military service. Accordingly, it quashed the Fifth Division’s decision as regards the finding that the applicant’s period of specialist training constituted years of study that should not be included in the calculation of his overall period of compulsory service. 25. It dismissed as ill-founded the ground of appeal alleging a violation of the Convention, reasoning as follows: “Paragraph 7 of Article 64 of the Decree ... is compatible with the provisions of the Constitution, the Social Charter and the Convention, in view of the fact that during the period of five years the medical officer serves the armed forces that have trained him or her, and it achieves the aim pursued, namely providing supervisory personnel for the armed forces, without the officer being required to work. As to the fee to be calculated in accordance with paragraph 16 of the same Article, this is a means of offsetting the expenditure incurred by the State in training officers and on no account constitutes a penalty.” 26. The plenary Court of Audit remitted the case to a different bench of the Fifth Division. The only question referred was that of the reassessment of the fee by counting the applicant’s five years of specialist training as part of his overall length of service. 27. In judgment no. 4909/2013 of 12 December 2013 (served on the applicant on 10 January 2014) the Fifth Division of the Court of Audit varied the decision of 26 May 2007 issued by the accounts department of the Army General Staff by reducing the amount payable by the applicant to EUR 49,978.33. 28. In particular, the Court of Audit held firstly that the decision of 26 May 2007 was lawful in that the applicant had left the army before completion of the period of eighteen years’ compulsory service. However, it found that the length of his remaining period of compulsory service was not nine years, four months and twelve days, as the Army General Staff had calculated, but four years, four months and ten days. It pointed out that the period already served by the applicant should have included his specialist training, which had begun on 26 July 1996 and ended on 27 July 2001, since, as judgment no. 3230/2011 had made clear, the period of specialist training was to be counted as part of the actual service performed. 29. On 13 March 2014 the State reimbursed the applicant the sum of EUR 59,749.61, corresponding to the difference between the payment he had already made and the amount determined in judgment no. 4909/2013. 30. According to information supplied by the Government, the applicant is now working in a large private hospital in Thessaloniki. ...	1
test	001-167125	ENG	CZE	CHAMBER	2,016	CASE OF ČERVENKA v. THE CZECH REPUBLIC	3	Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-4 - Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo	5. The applicant was born in 1956 and lives in Prague. 6. In a judgment of 25 January 2005 the Prague 4 District Court (obvodní soud), relying on Article 10 § 1 of the Civil Code, deprived the applicant of legal capacity. Based on an expert opinion and the testimony of the applicant’s father, the court concluded that the applicant was suffering from alcoholic dementia, which was a permanent mental disability, and that he was unable to perform any legal acts on his own. The applicant was represented by a guardian ad litem and was therefore not heard by the court, which found that it appeared from the expert opinion that he was unable to understand the relevance of the proceedings. For the same reason, the court dispensed with the delivery of the judgment to the applicant. 7. In a decision of 21 April 2009, which became final on 21 July 2009, the District Court appointed the Prague 11 Municipality Office (městská část) as the applicant’s public guardian (veřejný opatrovník). 8. The applicant has attempted to regain his legal capacity several times, but his requests have always been refused. On 4 March 2010, refusing another request to restore legal capacity to the applicant, the District Court banned him from lodging further requests for one year because there was no possibility of his condition changing within that period. It relied on an expert opinion of 5 January 2010, which stated, inter alia: “[the applicant] presents a picture of a chronic alcoholic in the terminal stage of alcoholism, with complete loss of control over drinking, complete lack of awareness of his illness, severe and irreversible damage to his health fully or partially caused by alcohol abuse and social and economic downfall which, in addition to his complete lack of awareness, also indicates serious personality changes objectively caused by detected brain atrophy. ... [I]t is a long-lasting disorder which cannot be completely repaired even by treatment that is fully successful. ... [L]oss of control over drinking and complete lack of awareness regarding alcohol abuse and its consequences result in a high probability of the repetition of previous relapses and, therefore, in behaviour which could, for similar reasons, pose a threat to the financial, social and personal stability of the person examined.” 9. In a judgment of 16 October 2012 the District Court, having examined an expert report and heard the expert and the applicant, decided to limit the latter’s legal capacity to act. It restricted his legal capacity so that he was not entitled to dispose of funds and conclude contracts exceeding 500 korunas (CZK) (18 euros (EUR)) per month. The court noted that according to the expert report, the applicant was suffering from mixed organic dementia up to intermediate level and with a continued lack of awareness of his state of health. In addition, he was unable to make more complex legal decisions independently. The applicant lodged appeals on 1 and 13 November 2012. 10. The Prague Municipal Court (městský soud) scheduled a hearing for 4 April 2013 and summoned the applicant. However, his lawyer was not informed about the hearing because his public guardian had refused to sign the power of attorney and so none of the courts recognised the lawyer as the applicant’s legal representative. The court subsequently cancelled the hearing and remitted the case to the District Court, which on 3 June 2013 assigned a new guardian to the applicant. The new guardian granted the power of attorney to a lawyer to represent the applicant in the proceedings on legal capacity. 11. On 8 August 2013 the Municipal Court quashed the judgment of 16 October 2012 and sent the case back to the District Court which in a judgment of 12 June 2014 decided to limit the legal capacity of the applicant, for a period of twelve months, so that he was not entitled to dispose of funds exceeding 1,500 CZK (EUR55) per week. 12. On 30 July 2015 the District Court initiated ex officio the proceedings on legal capacity and guardianship. At the same time, it ordered an expert opinion in psychiatry. It appears that the proceedings are still ongoing. 13. The applicant was admitted to the Prague-Bohnice psychiatric hospital seven times: in 2004 (for two weeks); in 2005 (for two weeks); in 2006 (for four and a half months); in 2007 (for two months); in 2008 and 2009 (for six and a half months); in 2009 (for three weeks); and during 2009 and 2010 (for thirteen months). 14. The applicant’s hospital discharge report of 11 October 2010 stated, inter alia, that he had been suffering from a mental and behavioural disorder caused by alcohol, that he was an alcoholic and that he had repeatedly experienced deliria tremens. 15. In the record of a telephone conversation between the applicant’s public guardian and a neighbour on 11 November 2011 it was noted, inter alia, that complaints about the applicant had been escalating, as he had been causing disturbance at night as a result of his excessive drinking and had been urinating on the stairs. 16. Another record of a telephone conversation between the public guardian and the applicant on 6 December 2010 stated, in particular, that the applicant had confirmed that he had not taken any of the medication prescribed to him by the psychiatrist. 17. During a conversation with the applicant’s public guardian on 10 January 2011 the applicant’s son said that his father had always kept many animals and that his treatment of them was bordering on cruelty because he did not feed them. He also allowed them in his bed, and as a result the bed was drenched and smelled foul. Moreover, the carpets and other furnishings in the flat were dirty and badly damaged. 18. On 17 January 2011 the public guardian urged the applicant not to yell at passers-by. The applicant replied that he was a psychologist and teacher, and practised communication with people in that way. 19. On 19 January 2011 Dr M.P. mentioned that the applicant was suffering from repeated alcohol abuse, alcohol-related cognitive impairment and alcoholic dementia. He was an alcoholic who did not cooperate and was unaware of his alcohol abuse. 20. On 21 January 2011 the applicant’s neighbours complained to the public guardian that the applicant was disturbing them at night, that an unbearable smell was exuding from his flat, that he had been urinating on the stairs and kept falling down when drunk, and that the situation was continuously getting worse. 21. On 31 January 2011 the public guardian received another telephone call from the applicant’s neighbour complaining about the behaviour of the applicant, who had been drunk, towards herself and her child. The neighbour said that she was afraid of him. On the same day, the applicant’s parents visited his public guardian to try to resolve the problematic situation relating to the applicant’s inappropriate behaviour. They expressed the view that the best solution would be their son’s placement in a specialised institution, such as the social care home in Letiny, as other institutions in Terezín or Sýrovice were not available. The social care home in Letiny is a private institution. 22. On the same day, the applicant, in a state of drunkenness, visited his public guardian. From the record of the visit it appears that the applicant was unable to express himself coherently. 23. In his report of 4 February 2011 the treating psychiatrist noted, in particular, that the applicant was suffering from a psychosomatic disorder, namely alcoholic dementia. 24. On 7 February 2011 the applicant’s guardian accompanied the applicant to the social care home in Letiny, a limited liability company. There she signed an agreement on the provision of residential social services to the applicant for an unlimited period of time and the applicant was admitted to the home. 25. The applicant’s guardian noted on the same day that the applicant’s parents could no longer take care of him; his mother had apparently talked to her son about his placement in the institution in advance, and after some hesitation, the applicant had agreed to be transferred there. It was noted, however, that he did not want to go to the institution, but having talked with his guardian about rehabilitation and medical care, he eventually agreed. 26. In a letter of the same date received by the District Court on 10 February 2011, the Municipal Office informed the court about the applicant’s placement in the social care home. They maintained that the placement had been necessary because he had been spending most of his money on alcohol, he had spent most of his time sitting on a bench in front of his house verbally harassing passers-by, he had been unable to dress appropriately and sometimes he had been too drunk to receive his lunch, which had been brought to his door every day. Moreover, he had been making an excessive number of visits to doctors, requesting various examinations of his brain, thumb, knee, eyes and so on. He had also been sending confusing allegations to various institutions, such as courts, ministries and animal rights organisations. 27. The applicant disagreed with his placement and contacted a number of authorities, including his public guardian. On 28 March 2011 he also called an emergency line and contacted the police, who dismissed his complaint, not finding any unlawfulness. 28. On an unspecified date the District Court telephoned the Municipal Office for more information about the applicant’s placement in the social care home. The Municipal Office answered by letter on 2 May 2011, repeating the reasons set out in its submission of 7 February 2011 and informing the District Court that the applicant had been placed there for an indefinite period as he was no longer able to live on his own. 29. On 11 February, 6 May and 1 June 2011 the applicant informed the District Court that he was being held in the social care home against his will and demanded his release. In his application to the court of 5 May 2011 he complained against his public guardian and asked that she be replaced by another person living near his domicile. The District Court did not react to any of his requests. 30. On 19 May 2011 the applicant sent a letter to the director of the social care home and to his public guardian alleging that he had been placed in the social care home involuntarily. The applicant’s guardian did not react to the letter. The director replied that given that the public guardian and the doctor had consented to his placement in the social care home, he had to remain there. 31. On 21 July 2011, after having been contacted by the applicant, a lawyer from the Mental Disability Advocacy Centre (Centrum advokacie duševně postižených) (hereinafter “the MDAC”) in Brno visited him in the social care home. The applicant signed a power of attorney authorising the lawyer to act on his behalf. On 25 July 2011 the lawyer sent a request for the applicant’s immediate release to the director of the social care home and to the public guardian. The director replied on 28 July 2011 that the applicant’s placement was legal as he had been deprived of legal capacity and his guardian had given consent to it. On 3 August 2011 the applicant received a similar answer from his public guardian, who considered the power of attorney signed by the applicant as invalid, given that he had been deprived of his legal capacity. 32. On the same date, the applicant’s lawyer requested the Plzeň-jih District Court (okresní soud) to issue a decision on the lawfulness of his client’s involuntary hospitalisation under Article 191a of the Code of Civil Procedure. As the court did not react, on 16 August 2011 the applicant’s lawyer lodged a request with the Plzeň Regional Court (krajský soud) to set a time-limit for a procedural measure under section 174a of the Courts and Judges Act (no. 6/2002). 33. From 2 to 16 August 2011 the applicant was hospitalised at the Mulačova hospital in Plzeň for planned orthopedic surgery. 34. The public guardian’s records of 17 and 18 August 2011, respectively, indicated the following: “I talked on the phone with [the senior nurse]. She stated that she would try to transfer [the applicant] to a rehabilitation institution but afterwards they do not want to take him back. She informed me about it in order to give us the possibility to look intensively for another institution.” “The director of the [social care] institution ... informed me on the phone that he had been in touch with the legal department about how to cancel the agreement and he had established that it was not possible. He is therefore sending me a letter informing me that [the applicant] is unhappy and that they want to discharge him. He stated that they were worried that [the applicant] might jeopardise the functioning of the whole institution because he lied and verbally attacked employees and constantly annoyed them by sending sms. In answer to the question what the position of the psychiatrist is..., he said that she had not allowed [the applicant] to go for walks without assistance and she considered his state of health poor.” 35. On 23 August 2011 the applicant was transferred to the Horažďovice Convalescent Home – Long-term Care Hospital (Nemocnice následné péče – Léčebna dlouhodobě nemocných). 36. On 23 August 2011 the applicant’s lawyer lodged a request with the Municipal Court through the Prague 4 District Court arguing that the guardianship court, namely the Prague 4 District Court, had been inactive in the matter of his client’s detention and had not initiated guardianship proceedings (opatrovnické řízení) seeking to solve the conflict of interests between the applicant and his public guardian. He argued that the guardianship court should have informed the relevant court, namely the Plzeň-jih District Court, about the applicant’s involuntary hospitalisation so that proceedings on its lawfulness could have been instituted. Furthermore, the guardianship court itself should have instituted proceedings to supervise the applicant’s public guardian under Articles 178 § 1 and 193 § 3 of the Code of Civil Procedure. 37. On the same day, the applicant lodged a constitutional appeal (ústavní stížnost) alleging that his rights to respect for his private life, to liberty, freedom from discrimination and a fair trial had been violated by the procedure pursued by the Municipal Office and the Prague 4 District Court on account of his detention in the social care home. He argued that the Municipal Office had violated those rights by placing him in the social care home without his consent and the District Court by remaining inactive in the face of the situation. He also requested the Constitutional Court (Ústavní soud) to issue an interim order for his release from detention. 38. On 19 September 2011 the Municipal Court decided not to undertake any action on the applicant’s request of 23 August 2011 because the power of attorney submitted by his lawyer was invalid on account of the applicant’s lack of legal capacity to sign it and because his public guardian had informed the court, on 16 September 2011, that she would not join the proceedings. 39. On 27 September 2011 the public guardian terminated the agreement with the social care home. The applicant was not informed about this in advance. The applicant, who was at that time hospitalised in the Horažďovice Convalescent Home – Long-term Care Hospital (see paragraph 35 above), was discharged from the hospital on the same day. The discharge report issued by the hospital also contained information about his mental state: “Current mental state: ... Suspicion – but in his case legitimate – indicated paranoia in respect of his guardian and her behaviour, or family members ... [His] mood reactively depressive, ... Intellect abilities [are] entirely without signs of degradation, humiliation let alone a sign of dementia! ... From the current mental state of the applicant, it does not appear that there is any need to continue limiting him in his fundamental human rights and limiting his capacity to act. Conclusion: Behaviour disorder when using alcohol – psychotic residual disorder and later on ethylic encephalopathy, dementia ... The 55 year old patient, who has a history of behavioural disorders when drinking alcohol, was admitted for rehabilitation after surgery to his right foot. ... As he repeatedly demands a review of his situation and refuses to stay in Letiny, a psychiatric consultation was carried out. The problems were discussed with his guardian ... according to whose recommendation [the applicant] told workers in Letiny, upon [their] information, his discharge is planned with home care, and psychiatric supervision is ensured. ...” 40. On 4 October 2011 the Regional Court rejected the applicant’s request of 16 August 2011, holding that his lawyer had not been authorised to lodge such a request. The applicant’s signature on the power of attorney was invalid as he had been deprived of legal capacity (see also paragraph 32 above). The court added: “Even if there were not those reasons to reject the claim, it would not be possible to grant [it]. ... It is not possible to set a time-limit to carry out an act – the issuance of a decision on the commencement of the proceedings – if that act depends on the discretion of a court which is not obliged to decide on the commencement of proceedings but is doing so on the basis of a motion. ...” 41. On 12 October 2011 the Ombudsman (Veřejný ochránce práv) issued a report in response to a letter from the applicant dated 29 April 2011. The report stated, inter alia: “The applicant was also prescribed psychiatric medication, both regular and in the event of ‘unease’ ... It appears however that the medication ‘in the event of unease’ has not yet been administered to the applicant. In answer to a question concerning medication in general, the applicant stated that before his admission to the institution, he had not taken any medication. In reply to a question as to what would happen if he refused to take the medication, he answered that he had asked this question to a male nurse, who had said that in that case the medication would be administered to him by injection. For this reason the applicant did not refuse the medication. Only on one occasion did he express the wish not to take a certain medicine and the doctor of the institution prescribed him another drug, which he had not taken before either. ... The public guardian ... made a mistake when she ‘placed’ the applicant in the institution without having previously received the approval of the guardianship court. ... If the court does not approve an act as legal, the act is void ab initio. In respect of some acts that have already been carried out, a subsequent ‘disapproval’ by the court could not lead to an effective reparation, and it is evident that [those acts] require the approval of the court before [their accomplishment] ... In my opinion, legal acts connected with the involuntary placement of an incapacitated person in a social care institution are of such character and thus require prior approval, provided that there is enough time. ... Apart from the fact that the provisions of the civil law require that the legal act – the conclusion of the contract on provision of residential social services – be approved by the court, another requirement of generally binding rules, or more precisely the commitments of the Czech Republic under international law, cannot be overlooked, i.e. Article 5 § 4 of the Convention ... ... [In the applicant’s case], in order to comply with the Convention, the Czech Republic ... guarantees ... the right to institute proceedings in which the court would speedily decide on the lawfulness of the deprivation of liberty and order the [applicant’s] release if the deprivation of liberty is unlawful. ... Accordingly, in the case of admission of a person who is deprived of legal capacity to a medical institution, which he is not allowed to leave, the detention procedure should be initiated as provided for by Article 191a of the Code of Civil Procedure, despite the possible approval of the guardian. ...” 42. On 25 October 2011 the Prague 11 Municipal Office, in reaction to the findings of the Ombudsman, requested the District Court to approve the agreement signed by the public guardian on the provision of residential social services of 7 February 2011. 43. In a judgment of 10 November 2011 the District Court approved ex post facto the agreement signed by the public guardian and the termination of the applicant’s confinement in the social care home. The reasoning merely stated that the approval of those legal acts was in accordance with the law and in the interests of the applicant. The decision became final as the guardian ad litem, the Prague 4 Municipal Office, waived its right of appeal. The applicant was not summoned to appear before the court in those proceedings, which lasted only ten minutes; nor was he informed about them. 44. On 28 November 2011 the applicant lodged a second constitutional appeal challenging the decisions of the Prague Municipal Court of 19 September 2011 and the Plzeň Regional Court of 4 October 2011, the procedural measures taken by the Prague 4 District Court and the Plzeň-jih District Court and, lastly, the practice of the Prague 11 Municipal Office. He developed, in the reasoning of the constitutional appeal, his complaints regarding the alleged interference with his rights to respect for his private life, home and correspondence during his stay in the social care home without, however, mentioning them in his final plea (žalobní petit). 45. On 28 March 2012 the Constitutional Court rejected the applicant’s first constitutional appeal. Regarding his request for an interim order, it held that as he was no longer being detained, it had no power to assess the alleged violations because they had already ceased. The same applied in respect of the procedural steps taken by the Prague 11 Municipal Office and by the Prague 4 District Court, as the District Court, in its judgment of 10 November 2011, had approved the agreement concluded with the social care home by the public guardian and the latter’s termination of the agreement. The Constitutional Court referred to a previous decision (no. IV. ÚS 1348/09) in which it had declared manifestly ill-founded a complaint that a court had not carried out a review of lawfulness under Article 191a of the Code of Civil Procedure when a legally incapacitated person had been detained with the consent of his guardian. The Constitutional Court’s decision was notified to the applicant’s lawyers on 30 March 2012. 46. In a report of 4 April 2012 by I.K., the psychiatrist treating the applicant, it is noted, inter alia, that since the applicant’s discharge from the social care home he had not been attending for regular check-ups and had refused to take any medication with the exception of hypnotics. He had been visited by a nurse who had occasionally found him drunk. According to the psychiatrist, the applicant had behaved inappropriately, the neighbours had complained about him because he shouted at them and threatened them, at night he played loud music, he was meeting with the homeless, he soiled the common premises – he poured water on them and urinated there – and he drank alcohol. The psychiatrist concluded that the applicant was dangerous to others and was not able to lead an independent life. 47. On 17 April 2012 the Constitutional Court declared inadmissible also the applicant’s second appeal. It held that the applicant had failed to challenge both decisions addressed in his constitutional appeal by lodging a plea of nullity under Article 229 § 1(c) of the Code of Civil Procedure. It added that as he was no longer detained, it was not appropriate to apply section 75(2) of the Constitutional Court Act by which it could waive the obligation to exhaust other effective remedies if the significance of the appeal extended substantially beyond the personal interests of the appellant. 48. In a letter of 4 December 2012 the Prague 11 Municipal Office, having sumarised the legal situation, stated that: “On the basis of the aforementioned documents, the public guardian considers unsubstantiated your allegation that your rights were violated on 7.2.2011 and, therefore, the filing of an action for protection of your personal rights by a lawyer of your choice ... [is found] irrelevant. For this reason, the public guardian will not conclude a contract on your legal representation in order to introduce the action for protection of your personal rights with an attorney-in-law [Ch.]. [Taking into account the judgment of 16 October 2012] and provided that your agreement with the lawyer ... will not exceed CZK 500 per month you can conclude it on your own. ...” 49. On 13 February 2013, in reply to a letter from the Government Agent, the Municipal Office informed him that the public guardian had talked to the applicant about his placement. She had also informed his family, staff of the Prague-Bohnice psychiatric hospital and his psychiatrist. 50. The Government stated that the regime in the social care home allowed patients to leave the institution either accompanied by a staff member, family member or guardian, or alone on the approval of a psychiatrist. According to the institution’s psychiatrist, the applicant never asked to leave the premises as he had problems with his knee. Visits to patients were not limited. 51. The applicant’s personal belongings were deposited in a lockable cupboard in his room. Since his arrival, he had had a mobile phone, which was repeatedly recharged. A coin-operated phone box was also accessible without any restrictions. Any post was sent to the applicant’s guardian, who always forwarded it to the addressee according to the applicant’s instructions. The applicant received pocket money on request. 52. The social care home provided accommodation, meals and health care, including care provided by specialist doctors, assistance with ordinary self-care, and assistance with personal hygiene or provision of conditions for personal hygiene. It also provided educational, training and stimulation activities, mediation of contact with the social environment, social and therapeutic activities and other services. 53. According to the applicant, the social care home provided residential social services primarily for patients with Alzheimer’s disease and dementia. Most of the patients were elderly and severely physically and mentally disabled. It was a closed institution, which he could not leave. The only possibility for outdoor activities was in a small garden with a high fence. Patients shared rooms. The applicant could not send any correspondence independently, but had to do so through employees of the home who sent some letters to his public guardian instead of to the address indicated by him, based on an assessment of whether it was official or private correspondence. Some letters that the applicant received had been opened. Furthermore, his state of health was allegedly not assessed before admission to the social care home or on his arrival. Once there, he was prescribed medication. When he refused to take it, he was threatened that it would be administered by injection. 54. According to the Government, the medication that had been prescribed to the applicant on his discharge from the Prague-Bohnice psychiatric hospital was modified by the institution’s psychiatrist on the basis of repeated examinations. The applicant’s medical check-ups performed by the psychiatrist took place on 1 March, 5 April and 31 May 2011. Moreover, his psychiatrist was informed about his health on 4 and 24 March, 9 May, 28 June and 29 July 2011. 55. From the information provided by the applicant’s psychiatrist, which was confirmed by the director of the institution, it appears that during his stay in the social care home, the applicant took the medication voluntarily. 56. On 27 March 2012 the applicant lodged a claim for damages against the State under the State Liability Act (no. 82/1998). He alleged that his rights had been violated by his public guardian on account of his unlawful detention. The Ministry of Justice rejected his claim. 57. On 30 March 2012 the applicant lodged a similar claim, arguing that the Plzeň-jih District Court and the Plzeň Regional Court had erred in not instituting proceedings to determine the lawfulness of his detention under Article 191b of the Code of Civil Procedure and that the Prague 4 District Court and the Prague Municipal Court had remained inactive despite his numerous submissions describing his detention. 58. On 27 September 2012 the Ministry of Justice rejected the applicant’s second claim, holding that under the State Liability Act, the State was liable only for damage caused either by a final unlawful decision, which had been later quashed, or by irregular official conduct. Regarding the latter, it held that the alleged shortcomings in the proceedings did not constitute irregular official conduct for which the State could be held responsible because the conduct had resulted in a decision. The former situation did not arise in the present case either, as there had been no final decision that was later quashed as illegal. Furthermore, the Ministry did not find that the applicant had suffered any damage. It considered that his own behaviour had been at the origin of the facts, because of his excessive drinking. It added that in any case the applicant’s lawyer had no right to submit those claims to the Ministry, as the applicant had been deprived of his legal capacity and a guardian had been appointed to act on his behalf. 59. On 28 September 2012, following the rejection of his claim for damages by the Ministry of Justice, the applicant brought an action against the Czech Republic seeking damages for the incorrect procedure followed by the courts. He argued in particular that the courts had refused to institute proceedings following his claims concerning his detention and that the court procedure on guardianship had been erroneous. 60. In letters of 8 April 2013 the Prague 2 District Court informed the applicant’s representatives that given that the applicant had been deprived of his legal capacity, he could not have granted them power of attorney. Accordingly, the court had decided not to accept them as the applicant’s legal representatives. On the same day, the court appointed a guardian ad litem, the Prague 2 Municipal Office, to represent the applicant. 61. In a letter of 28 June 2013 the Prague 2 Municipal Office informed the Prague 2 District Court that as the Prague 4 District Court had approved the agreement with the social care home, they would not join the proceedings for damages. 62. In a decision of 11 July 2013 the District Court discontinued the proceedings for damages on the grounds that, as the applicant was fully legally incapacitated, the power of attorney that he had given to his representatives was null and void, and that in a letter of 28 June 2013 the guardian ad litem had informed the court that it would not join the proceedings. According to the applicant, he was unaware of the court’s decision as his guardian ad litem failed to inform him. Consequently, the statutory period to file an appeal lapsed to no effect, and the decision became final.	1
test	001-158881	ENG	UKR	CHAMBER	2,015	CASE OF BASENKO v. UKRAINE	3	Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano	4. The applicant was born in 1958 and lives in Kyiv. 5. On 24 February 2002 the applicant was travelling on a tram and was approached by Mr G. and Mr S., ticket inspectors employed by the Kyivpastrans municipal enterprise (“the transport company”). As subsequently established by domestic authorities in the indictment and in the judgment convicting S. (see paragraphs 31 and 34 below), there was a disagreement between the applicant and the inspectors as to whether he had a valid ticket. They insisted that the applicant pay a fine for travelling without a ticket, while he insisted that he had broken no rules. The applicant was asked to get off the tram. It was then agreed that the applicant would accompany the inspectors to a tram depot to resolve the dispute. While they were on their way to the depot S. kicked the applicant. In response the applicant sprayed the inspectors with tear gas from a can he had on him. S. then kicked the applicant in the left knee, causing a fracture. A struggle between the applicant and S. ensued. G. and S. then left the scene. The applicant could not stand up or walk following the knee fracture, he was helped to the nearby tram stop by the bystanders who called an ambulance for him. According to the applicant, he has been receiving treatment for his injury until early 2005. 6. On 26 February 2002 the applicant made a statement to the police describing the circumstances of the incident. In particular, he stated that on the day of the incident he had been approached by two ticket inspectors who questioned the validity of his ticket, suggesting that he appeared too old to be using a student ticket. While they insisted that he pay a fine he insisted his ticket was in order. He volunteered to go with them to a police station to resolve the dispute. In response they suggested that they go to the tram depot instead and he agreed. On the way to the depot he was kicked from behind. He turned round and sprayed the inspectors with tear gas, and was kicked in the knee. He stated that he did not know the names of the inspectors but could identify them by sight. 7. On 4 March 2002 a police investigator of the Svyatoshynskyy District Police Department (“the District Police Department”) refused to institute criminal proceedings into the incident. The investigator noted that the ticket inspector on duty on the tram line in question at the relevant time was identified as S. He went on to note that S. could not be contacted for an interview since he was said to be on sick leave from work and was not found at his home address. The investigator also noted that the gravity of the applicant’s injuries could only be evaluated after completion of the applicant’s treatment. 8. On 5 March 2002 a forensic medical expert diagnosed the applicant with a knee fracture and classified this as bodily injuries of medium gravity. 9. On 18 December 2002 the Svyatoshynskyy District Prosecutor’s Office (“the District Prosecutor’s Office”) quashed the decision of 4 March 2002 and instituted criminal proceedings on suspicion of deliberate infliction of bodily injuries of medium gravity. On the same day the District Prosecutor’s Office informed the applicant about this decision, also informing him that disciplinary proceedings had been initiated against the investigator who made the decision of 4 March 2002. According to the applicant, he first learned about the decision of 4 March 2002 from this letter from the District Prosecutor’s Office. 10. On 24 December 2002 another investigator of the District Police Department commenced the investigation. 11. On 28 December 2002 the investigator recognised the applicant as an aggrieved party in the criminal proceedings. On the same day the applicant was interviewed in this capacity. 12. On 4 April 2003 the investigator sent a letter to the transport company enquiring whether S. had been working at the relevant time as a ticket inspector and asking the company to identify who S. had been working with on the day of the incident. In April 2003 the company responded that S. had indeed been working as an inspector at the relevant time, that G. had accompanied him on the day of the incident, and that S. had been dismissed on 16 June 2002 for absenteeism. 13. On 9 April 2003 the applicant, in the course of a photo identification, identified S. as the person who had assaulted him. 14. According to the Government, on 18 April 2003 the investigation was suspended for failure to identify the perpetrator. 15. On 18 September 2003 the investigation was resumed. 16. On 9 October 2003, in the course of a photo identification, the applicant identified G. as the person who, together with S., participated in the incident. 17. On 14 October 2003 the investigation was suspended for failure to identify the perpetrator. 18. On 31 August 2004 the District Police Department informed the applicant that the investigation in his case was pending. 19. On 2 February 2005 the District Prosecutor’s Office quashed the decision of 14 October 2003 to suspend the investigation, finding that possible perpetrators had in fact been identified. 20. On 20 February 2005 the investigation was suspended for failure to identify the perpetrator. 21. On 5 April 2005 the investigator resumed the investigation, initiated criminal proceedings against S. and G., and joined the newly initiated proceedings with the existing case file. 22. On 14 April 2005 the investigator charged S. with infliction of bodily injuries of medium gravity, committed in conspiracy with G. The investigator placed S. and G. on the list of wanted persons, and suspended the investigation as the whereabouts of the accused were unknown. 23. On 20 February and 4 May 2006 the investigator decided to resume the investigation, and on 22 February and 4 May 2006 respectively to suspend it again. 24. On 10 June 2006 the investigation was resumed. 25. On 12 June 2006 a face-to-face confrontation was conducted between G. and the applicant, and the applicant was interviewed separately. The applicant stated that S. had kicked him on the knee. While he was not certain that G. had assaulted him, he was assuming that it was G. who had kicked him in the back on 24 February 2002. 26. On 14 June 2006 the investigator discontinued the criminal proceedings against G. for lack of corpus delicti in his actions. He relied on the testimony of G., who denied assaulting the applicant, and the testimony of the applicant to the effect that it was S. and not G. who had assaulted him. On the same day he suspended the remaining part of the investigation for failure to identify the perpetrator. 27. According to the Government, on 24 September 2007 S. was arrested. On the same day the investigation was resumed and the charges were announced to S. 28. On 25 September 2007 a face-to-face confrontation was conducted between S. as the accused and the applicant as the aggrieved party. 29. On 20 October 2007 the investigator charged S. with infliction of bodily injuries of medium gravity. 30. According to the Government, on an unspecified date, upon completion of the pre-trial investigation in S.’s case, the applicant was offered an opportunity to study the case file but refused it. According to the applicant, he was not informed about the completion of the investigation or any of the subsequent developments in the criminal proceedings. 31. On 29 October 2007 the District Prosecutor’s Office approved the bill of indictment indicting S. for infliction of bodily injuries of medium gravity. 32. On 9 November 2007 the Svyatoshynskyy District Court of Kyiv (“the trial court”) held a preliminary hearing in S.’s case, in which S., his lawyer and a prosecutor participated. The record of the hearing states that the applicant was not present at the hearing. 33. On 20 November 2007 the trial court examined the case on the merits in the presence of S., his lawyer and the prosecutor and in the absence of the applicant. The trial court, after obtaining favourable opinions from all parties present, ruled that the hearing should proceed in the absence of the applicant and witness G. who, the court stated, “had been duly notified about the hearing”. The court further ruled that, should their presence prove necessary, measures would be taken to ensure the applicant’s and G.’s appearance. In the course of the hearing the court heard a statement from S.. S. did not contest the charges and admitted his guilt. The court ruled that in view of S.’s confession and admission of guilt there was no call to examine any other evidence. 34. On the same day the trial court convicted S. as charged and sentenced him to two years’ imprisonment, suspended for two years with probation. In sentencing S. the court took into account that S. had admitted his guilt and expressed remorse, the fact that he had no prior convictions, was employed and had positive references from his then-current place of employment. 35. According to the information submitted by the Government, the domestic case file in S.’s case does not contain any copies of summonses or notices sent to the applicant in the course of examination of the case by the trial court or any documents indicating that such summonses or notices were sent. 36. On 7 February 2005 the applicant lodged a civil claim with the Holosiyivskyy District Court of Kyiv, against the transport company, seeking damages for the unlawful actions of its employees. 37. On 15 November 2005 the court rejected his claim on the ground that he had not proved that he had been injured by the employees of the defendant in the performance of their duties. The court noted that the applicant had failed to explain why the individuals identified by him had not yet been charged or convicted, and that the criminal case in connection with the incident was still under investigation. 38. On 24 January 2006 the Kyiv City Court of Appeal upheld the judgment of the first-instance court. 39. On 30 November 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 15 November 2005 and 24 January 2006.	1
test	001-147329	ENG	DEU	CHAMBER	2,014	CASE OF FURCHT v. GERMANY	4	Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)	Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger	5. The applicant was born in 1961. When lodging his application, he was detained in Hagen Prison. He was released on 12 July 2011. 6. On 18 October 2007 the Aachen District Court authorised criminal investigations against S. and five other persons (not including the applicant) to be conducted by up to five undercover police officers, in accordance with Article 110a § 1 no. 1 and Article 110b § 2 no. 1 of the Code of Criminal Procedure (see paragraphs 24-25 below). Criminal investigation proceedings on suspicion of drug trafficking had previously been instituted against the six suspects. Prior to the District Court’s order, the police’s suspicion against the suspects had been confirmed, in particular, by information obtained via telephone tapping and police surveillance of the suspects. 7. The police decided to attempt to establish contacts between S. and the undercover agents via the applicant, a good friend of S. and business partner for real estate transactions. The applicant, who had no criminal record, was not, at that time, suspected of any involvement in drug trafficking. 8. From 16 November 2007 onwards, two undercover police officers, P. and D., established contacts with the applicant. They visited him in the restaurant he ran and pretended to be interested in purchasing real property for running a club. In the following weeks the applicant made a number of offers of real property to the undercover agents and visited the estates with them. 9. The applicant subsequently established contacts between the two undercover agents and S. for organising an international contraband trade in cigarettes after one of the undercover agents had pretended to have a suitable lorry at hand for transporting the cigarettes abroad. S. refused, however, to communicate directly with undercover agent P. by telephone and proposed to further communicate via the applicant. When undercover agent D. disclosed to the applicant on 23 January 2008 that he considered that the risk of being caught with smuggling cigarettes was too high compared to the possible profits, the applicant disclosed that they (that is, S. and others and himself) would also traffic in cocaine and amphetamine. He stated that he did not want to be involved in the drug trafficking itself, but would only draw commissions. The undercover agents showed interest in transporting and purchasing drugs. 10. However, on 1 February 2008 the applicant, having been telephoned by undercover agent P., explained to P. that he was no longer interested in any business other than the restaurant he ran. 11. On 7 February 2008 the Aachen District Court, having regard to the applicant’s submissions to undercover agent D. on 23 January 2008, extended the court order of 18 October 2007 authorising investigations so as to cover also the applicant. 12. On 8 February 2008 undercover agent P. visited the applicant in his restaurant and dispersed the applicant’s suspicions against the undercover agents as well as his fear of having to serve a prison sentence in case the drug deal was discovered. The applicant thereupon continued arranging two purchases of drugs (cocaine and amphetamine) by the undercover agents from S. on 16 February 2008 (10 kilograms of amphetamine paste and 40 grams of cocaine) and on 12 March 2008 (some 250 kilograms of amphetamine paste). On the latter day, the applicant and S. were arrested after the delivery of the drugs to the undercover agents. The applicant would have received a commission of more than EUR 50,000 from S. for having arranged the second contract between S. and the undercover agents. 13. On 22 October 2008 the Aachen Regional Court convicted the applicant of two counts of drug trafficking and sentenced him to five years’ imprisonment. 14. The Regional Court, having established the facts as described above (see paragraphs 6-12), noted that the applicant had confessed to the offences in the hearing. It had further read out in the hearing the written reports of undercover agents D. and P., drawn up throughout the undercover measure, with the consent of the parties. It noted that the applicant had accepted that these reports were essentially correct. It considered that the applicant’s allegation that it had been undercover agent D. and not himself who had first come up with the possibility of drug trafficking on 23 January 2008, and that he had only responded to that proposal, had not been proven. It noted in that context that the undercover agents had been careful throughout the investigations not to propose illegal business transactions or specific types or amounts of drugs first, but had waited for their respective counterparts to make the first step before becoming more concrete themselves. 15. In fixing the sentence, the Regional Court considered the considerable quantities of drugs trafficked as an aggravating factor. However, there were considerable elements leading to a mitigation of the sentence, which had to be considered as relatively mild in view of the amount of drugs trafficked. The applicant had in essence confessed to the offences and did not have any prior convictions. He had further trafficked mainly amphetamine, which was not a hard drug. In view of the undercover agents’ involvement, there had also not been a risk that the drugs would freely circulate on the market. 16. The Aachen Regional Court further stated that it was a particularly weighty factor mitigating the sentence that the applicant had been incited (verleitet) by a State authority to commit offences. Prior to the undercover measure concerning him, there had not been any suspicion of involvement in drug trafficking against the applicant, who did not have a criminal record. The police had only known that the applicant was a friend of S., against whom there had been strong suspicions of involvement in drug trafficking, and that the applicant had already arranged the sale of real estate together with S. The Regional Court considered that, nevertheless, the applicant had not been instigated (angestiftet) to commit the offences at issue. The undercover agents had waited for the applicant to raise the possibility of arranging an international contraband trade in cigarettes when the arrangement of a real estate transaction had not been successful. The agents had again waited for the applicant to raise the possibility of drug trafficking after the undercover agents had made him understand that they considered that the risk of being caught with smuggling cigarettes was too high compared to the possible profits. 17. Moreover, the Regional Court stressed that the applicant had then renounced any drug business on 1 February 2008 for fear of punishment. However, the undercover agents nevertheless contacted the applicant again on 8 February 2008, when the court order authorising recourse to undercover agents had been extended so as to cover also the applicant, and dispersed his doubts. The Regional Court considered that the way in which the undercover measure had been organised, that is, by contacting the applicant, a person not suspected of an offence, in order to establish contacts with suspect S., had entailed a risk, from the outset, that the applicant became implicated in drug trafficking. 18. The Regional Court further found that the applicant’s involvement in the offences had been less important than that of S., as he had only arranged contacts between S. and the undercover agents and had shielded off S. against them. The applicant obviously did not have any contacts with the drug scene apart from his contacts with S. 19. The applicant subsequently lodged an appeal on points of law against the Regional Court’s judgment. He complained, in particular, that he had been incited by the police to commit the offences he had later been found guilty of. This had breached the rule of law. There was, therefore, a bar to the criminal proceedings against him, which should have been discontinued. 20. On 8 April 2009 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. The decision was served on the applicant’s counsel on 20 April 2009. 21. On 12 May 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court. Relying, inter alia, on Article 6 § 1 of the Convention and on the corresponding provisions of the Basic Law, the applicant complained that he had not had a fair trial. He argued that the undercover agents had incited him to commit drug offences which he would not have committed otherwise. The use of the evidence obtained thereby in the criminal proceedings against him had rendered these proceedings unfair. 22. On 28 May 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the judgment of the Aachen Regional Court and the decision of the Federal Court of Justice without giving reasons (file no. 2 BvR 1029/09). The decision was served on the applicant’s counsel on 3 June 2009. 23. On 16 June 2011 the Aachen Regional Court ordered the applicant’s conditional release on 12 July 2011 after the applicant had served two thirds of his sentence.	1
test	001-180485	ENG	MKD	CHAMBER	2,018	CASE OF ASANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"	4	Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)	Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković	5. The applicants were born in 1979 and 1984. They are currently serving life sentences imposed in the impugned proceedings described below. 6. On 18 May 2006 at 11.45 p.m. several persons arrived by car in front of an Internet café in Skopje and opened fire with machine guns. According to an expert report admitted in the ensuing proceedings, around 70 bullets were fired towards the café. In the incident three children were killed and six people were seriously injured (“the victims”). 7. Following a criminal complaint for murder lodged against unknown perpetrators, on 3 August 2006 the public prosecutor requested that an investigating judge question the victims and a certain B.H. who had allegedly been present at the scene at the time of the shooting. 8. Between 6 and 19 December 2006 the investigating judge heard oral evidence from the victims and other witnesses. None of them identified the applicants as the perpetrators. Some victims, as well as other witnesses who had arrived at the scene immediately after the shooting, stated that there had been no street lighting and that visibility had been considerably impaired. The investigating judge also heard oral evidence from M.M., who had sold the car used in the incident to two people whom he didn’t know and “would not recognise if I (he) were to see them now”. He stated that a certain F. had introduced him to the buyers. 9. During the investigation, there were several unsuccessful attempts by the investigating judge to summons B.H. Assistance from the police was also sought. Having been alerted to the summons and the police inquiry, B.H. appeared in court to testify before the investigating judge. On 27 February and 23 March 2007 he confirmed that he had been present at the scene at the time of the incident and that he had been shot in the upper leg. He had fainted and had spent time recovering in a private hospital outside the respondent State. He stated that there had been four people in the car and that all had fired on the café. He identified a certain Dz. as the driver of the car. He also alleged that he himself had been the most likely target of the attack owing to his alleged involvement in the killing of the applicants’ brother, which had happened at the beginning of 2006. In that context, he had received threats that he would be killed. 10. On 4 May 2007 two people who had been eye-witnesses to the incident gave oral evidence in the presence of the investigating judge and the public prosecutor. They testified as anonymous witnesses (сведок со прикриен идентитет) under the pseudonyms “Korab” and “Vodno”. The latter asked not to have his identity revealed for the following reasons: “the people who committed the crime are violent and have a criminal record and that’s why I’m afraid of their threats; they are armed, convicted, I fear for my life and the life of my family, I fear reprisals.” 11. On photographs shown in evidence, both witnesses identified one of the applicants as having fired on the café and Dz. as the driver of the car. “Vodno” also identified the other applicant as having fired on the café. He stated that three people (including the applicants) had fired weapons in the incident of 18 May 2006. 12. On 11 May 2007 another individual was examined before the investigating judge and the public prosecutor under the pseudonym “Vardar” for the same reasons as the witness “Vodno”. He confirmed that Mr Ramiz Asani (the applicant) had bought the car used in the accident from M.M. He also stated that after the incident Mr Ramiz Asani had told him the following: “what you’ve seen and heard on television about the incident with M.M.’s car – I did it in revenge for the killing of my brother ...” 13. On the same date, the investigating judge opened an investigation against the applicants and Dz. on reasonable suspicion of murder. The applicants, who had in the meantime been arrested, were remanded in prison custody. On a later date the investigating judge suspended the investigation in respect of Dz. as he had proved to be untraceable. 14. In an indictment of 13 August 2007, the public prosecutor accused the applicants − who had no previous record, but had criminal proceedings in relation to other charges pending against them − of having fired machine guns at the Internet café with the intention of killing B.H. The prosecutor requested that the trial judge examine the victims and several witnesses − including B.H. and M.M., and the anonymous witnesses − and to admit other material evidence in evidence, including post-mortem reports and other expert reports. 15. At the trial, the applicants, represented by two lawyers, unsuccessfully requested that evidence produced by the anonymous witnesses be rejected and that the written transcripts of their depositions be excluded from the case file. The trial judge, however, granted their request for witnesses “Korab” and “Vodno” to be questioned at the trial. The examination was carried out at a hearing of 21 January 2008 in the presence of only the trial judge and the public prosecutor, as provided for in the Criminal Procedure Act in force at the time (see paragraph 24 below). Both witnesses repeated the statements they had given before the investigating judge and reiterated their fear of negative repercussions. Their statements were read out at the trial in the presence of the applicants. A written transcript of their depositions was communicated to the applicants who, at their request, obtained a ten-day grace period in which to prepare written questions to be put to these witnesses by the court. The applicants formulated seven questions to be put to each witness. Both witnesses replied, again in the presence of only the trial judge and the public prosecutor. “Korab” stated that only one person had fired, while according to “Vodno” three people had fired at the café. Both witnesses submitted that, despite the impaired visibility, there had been sufficient light to see the applicants. A transcript of their replies was communicated to the applicants. 16. The trial judge further examined M.M., who did not recognise Mr Ramiz Asani as the buyer of the car used in the incident. He also heard oral evidence from three of 25 witnesses proposed by the applicants regarding their whereabouts at the time when the crime was committed. All three witnesses corroborated the applicants’ version of events, namely that they had been in another local café at that time. 17. Since the identity of witness “Vardar” had been disclosed in the proceedings (F.S.), the trial judge granted the applicants’ request for him to be questioned again. At a hearing held on 1 April 2008 in the presence of the applicants, F.S. denied that he had testified as an anonymous witness. He denied that the applicants had bought the car from M.M. He alleged that he had been beaten by the police in order to tell the investigating judge that the applicants had bought the car (see paragraph 12 above). 18. At the same hearing, the trial judge read out B.H.’s pre-trial statement (see paragraph 9 above). The judge did so after having tried on several occasions to secure his attendance at the trial and having inquired with the police about his whereabouts. It was noted that, according to official notes in the case file, B.H. was untraceable. The record of the hearing did not specify that the applicants objected to the reading of the statement. 19. During the proceedings, the trial judge granted the applicants’ request for a face-to-confrontation with the experts who had carried out the ballistic examination. He did not, however, allow an additional ballistic examination and refused to admit further evidence regarding the intensity of the street lighting at the scene at the relevant time (the applicants alleged that the street light had been too low to allow the anonymous witnesses to see the assailants). In their concluding remarks, the applicants claimed that B.H. was in the respondent State and had been involved in incidents relating to the parliamentary elections of 1 June 2008. 20. On 23 June 2008 the trial court delivered a judgment in which it found the applicants guilty of murder and sentenced them to life imprisonment. The applicants’ presence at the scene when the incident happened, as well as the development and dynamics of events, was established on the basis of the testimony of the anonymous witnesses “Korab” and “Vodno”, which the court regarded as credible and consistent despite “small differences which were due to the intensity of the shooting and fear for their lives”. The court also gave weight to the statement given by F.S. in the pre-trial proceedings under the pseudonym “Vardar”. It disregarded his statement of 1 April 2008 (see paragraph 17 above), finding that it had been given under duress and the threat that he or his family would be killed. In this connection it referred to a police report of 24 January 2008 according to which F.S. had been visited several times by unknown people who had threatened him and his family about the testimony given in the pre-trial proceedings. The motive for the crime was established on the basis of the statement given by B.H. in the pre-trial proceedings. That witness had not been examined at the trial since he had been untraceable. In that context, the trial court referred to an official note by the police of 9 January 2008 informing the court that B.H. had fled the respondent State and that an arrest warrant (потерница) had been issued against him. The court did not say anything regarding the applicants’ allegations that B.H. had in fact been in the respondent State and could have been located (see paragraph 19 above). In the court’s view, the evidence produced by the defence witnesses was unreliable and aimed at enabling the accused to avoid criminal responsibility. For this reason it considered it irrelevant to examine the remaining witnesses proposed by the defence. The applicants’ defence that they had been at another location at the relevant time was found to be selfserving. 21. In public hearings held on 10 October 2008 and 25 September 2009 (latter judgment served on the applicant on 5 January 2010) respectively, the Skopje Court of Appeal and the Supreme Court upheld the applicants’ conviction and the sentence imposed on them. They dismissed appeals lodged by the applicants in which they complained inter alia that the trial court had failed to admit evidence proposed by the defence, that their conviction could not be based solely on the statements of the anonymous witnesses, which had been unlawfully obtained, and that the trial court had not examined B.H. notwithstanding their claims that he would have been available for examination. In this connection they argued that it had been an issue of public record that in the election incidents of 1 June 2008 B.H. had been wounded and hospitalised and later detained by the police. 22. The courts held that the evidence produced by the anonymous witnesses had been lawfully obtained and that the applicants’ opportunity to put written questions to them had secured their defence rights. The fact that the witnesses had only produced evidence a year after the incident had been due to their fear. Furthermore, they stated that the applicants’ conviction had not been based solely on the evidence produced by those witnesses. In this connection they found that the trial court had admitted other evidence, both documentary and verbal. As regards the evidence produced by B.H., the courts held that the trial court had tried to secure his attendance at the trial, but he had been unavailable for examination, as described in the police note. The higher courts also endorsed the trial court’s finding regarding the applicants’ motive for committing the crime, as established on the basis of the evidence produced by B.H. That had been confirmed by the pre-trial statement of witness F.S. given under pseudonym “Vardar” (see paragraph 12 above). 23. On 2 December 2010 Dz. was found and detained. In subsequent criminal proceedings, he was convicted of murder and sentenced to fifteen years’ imprisonment.	1
test	001-161055	ENG	MDA;RUS	GRANDCHAMBER	2,016	CASE OF MOZER v. THE REPUBLIC OF MOLDOVA AND RUSSIA	1	Preliminary objections dismissed (Article 35-3 - Ratione loci;Ratione personae) (Russia);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies) (the Republic of Moldova);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Russia);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Russia);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) (Russia);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion) (Russia);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment) (Russia);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) (Russia);Violation of Article 13+9-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion) (Russia);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (the Republic of Moldova);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (the Republic of Moldova);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) (the Republic of Moldova);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion) (the Republic of Moldova);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment) (the Republic of Moldova);No violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) (the Republic of Moldova);No violation of Article 13+9-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Freedom of religion) (the Republic of Moldova);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) (Russia);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) (Russia)	Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mark Villiger;Mihai Poalelungi;Nebojša Vučinić;Paul Lemmens;Paul Mahoney;Ksenija Turković	I. THE CIRCUMSTANCES OF THE CASE 8. The applicant is a Moldovan national belonging to the German ethnic minority. He was born in 1978 and lived in Tiraspol until 2010. Since 2011 he has been an asylum seeker in Switzerland. 9. The Moldovan Government submitted that despite all their efforts they had been unable to verify most of the facts of the present case owing to a lack of cooperation on the part of the authorities of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”). They had therefore proceeded, broadly speaking, on the basis of the facts as submitted by the applicant. 10. The Russian Government did not make any submissions in respect of the facts of the case. 11 12. The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004VII) and in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012). A. The applicant’s arrest, detention and release 13. On 24 November 2008 the applicant was detained on suspicion of defrauding the company he worked for and another company belonging to the same group. The companies allegedly claimed initially that the damage had been 40,000 United States dollars (USD) and then increased that amount to USD 85,000. The applicant was asked to confess to the crime, which he claims he did not commit. He signed various confessions, allegedly following threats to him and his relatives. He claimed to have been first detained by his company’s security personnel and subjected to threats if he did not confess to the crime, before being handed over to the investigating authority. 14. On 26 November 2008 the “Tiraspol People’s Court” remanded the applicant in custody for an undetermined period. 15. On 5 December 2008 the “MRT Supreme Court” rejected an appeal by the applicant’s lawyer as unfounded. Neither the applicant nor his lawyer was present at the hearing. 16. On 20 March 2009 the “Tiraspol People’s Court” extended the applicant’s detention for up to five months from the date of his arrest. 17. On 21 May 2009 the “Tiraspol People’s Court” extended the applicant’s detention for up to eight months from the date of his arrest. That decision was upheld by the “MRT Supreme Court” on 29 May 2009. Neither the applicant nor his lawyer was present at the hearing. 18. On 22 July 2009 the “Tiraspol People’s Court” extended the applicant’s detention until 24 September 2009. 19. On 22 September 2009 the “Tiraspol People’s Court” extended the applicant’s detention until 24 November 2009. That decision was upheld by the “MRT Supreme Court” on 2 October 2009. The applicant’s lawyer was present at the hearing. 20. On 4 November 2009 the applicant’s criminal case was submitted to the trial court. 21. On 21 April 2010 the applicant’s detention was extended again until 4 August 2010. 22. On 1 July 2010 the “Tiraspol People’s Court” convicted the applicant under Article 158-1 of the “MRT Criminal Code” of defrauding two companies, and sentenced him to seven years’ imprisonment, suspended for five years. It ordered the confiscation of the money in his and his girlfriend’s bank accounts and of his personal car, in a total amount equivalent to approximately USD 16,000, and additionally ordered him to pay the two companies the equivalent of approximately USD 26,400. It also released him subject to an undertaking not to leave the city. No appeal was lodged against that decision. According to the applicant, in order to pay a part of the damages his parents sold his flat and paid USD 40,000 to the companies. 23. On an unknown date shortly after 1 July 2010 the applicant left for treatment in Chișinău. In 2011 he arrived in Switzerland. 24. On 25 January 2013 the “Tiraspol People’s Court” amended the judgment in the light of certain changes to the “MRT Criminal Code” providing for a more lenient punishment for the crime of which the applicant had been convicted. He was thus sentenced to six years and six months’ imprisonment, suspended for a period of five years. 25. By a final decision of 15 February 2013 the same court replaced the suspended sentence owing to the applicant’s failure to appear before the probation authorities, and ordered that the prison sentence be served in full. 26. Following a request from the applicant’s lawyer of 12 October 2012, on 22 January 2013 the Supreme Court of Justice of the Republic of Moldova quashed the judgment of the “Tiraspol People’s Court” of 1 July 2010. With reference to Articles 114 and 115 of the Constitution and section 1 of the Law on the status of judges (see paragraphs 69 and 70 below), the court found that the courts established in the “MRT” had not been created in accordance with the Moldovan legislation and could not therefore lawfully convict the applicant. It ordered the materials in the criminal file to be forwarded to the prosecutor’s office with a view to prosecuting the persons responsible for the applicant’s detention and also to determining whether the applicant had breached the rights of other persons. 27. On 31 May 2013 the Prosecutor General’s Office of the Republic of Moldova informed the applicant’s lawyer that it had initiated a criminal investigation into his unlawful detention. Within that investigation, “all possible procedural measures and actions [were] planned and carried out”. No further progress could be achieved owing to the impossibility of carrying out procedural steps on the territory of the self-proclaimed “MRT”. B. The applicant’s conditions of detention and medical treatment 28. The applicant’s medical condition (bronchial asthma, an illness which he has had since childhood) worsened while in prison, and he suffered several asthma attacks. He was often moved from one temporary detention facility (IVS) to another (such as the IVS at Tiraspol police headquarters and the IVS in Slobozia, as well as colony no. 3 in Tiraspol and the IVS in Hlinaia), all of which allegedly provided inadequate conditions of detention. 29. The applicant described the conditions at Tiraspol police headquarters as follows. There was high humidity, no working ventilation and a lack of access to natural light (since the detention facility was in the basement of the building), while the windows were covered with metal sheets with small holes in them. The cell was overcrowded (he was held in a 15 sq. m cell together with twelve other people). They had to take turns to sleep on the single large wooden platform, which was not covered. The applicant was allowed fifteen minutes’ daily exercise, spending the remainder of the time in the cell. Many of the detainees smoked in the cell, which contributed to his asthma attacks. The metal truck he was transported in when being brought before the investigator was suffocating, and he was placed in a cell without a toilet for hours on end (while waiting to be interviewed by the investigator) and suffered numerous asthma attacks. Laundry could only be done in the cells, where wet clothes would also be hung out to dry. The food was scarce and inedible. The cells were full of parasites. There were no hygiene products except for those brought in by detainees’ relatives. For several months the applicant was detained in a cell which became very hot in summer, causing him to suffer more asthma attacks. 30. The applicant described in a similar manner the conditions of his detention in the Slobozia detention facility, where he lacked any sort of hygiene products, was transported in a crammed and unventilated truck, and was fully reliant on his parents for any sort of medication. 31. As for colony no. 3 in Tiraspol, the applicant again noted the insufficient medical treatment, overcrowding (with one hour’s exercise per day, the remaining time being spent in the cell) and a lack of ventilation coupled with the heavy smoking of his cellmates. The food was inedible, with worms and rotten produce. In the winter the heating was on for only a few hours a day and, as at the Tiraspol police headquarters, a shower was allowed once a week (all the detainees in his cell had a combined total of twenty minutes in which to take a shower with cold water). 32. In the IVS in Hlinaia the applicant was again placed in an overcrowded cell and received virtually no medical assistance. 33. During his detention the applicant often complained about his medical condition and asked for medical assistance. His parents requested on many occasions that their son be seen by a lung specialist. On 12 March 2009 he was eventually seen and various tests were carried out. He was diagnosed with unstable bronchial asthma and prescribed treatment. 34. In May 2009 the applicant was transferred to the Medical Assistance and Social Rehabilitation Centre of the “MRT Ministry of Justice” (“the Centre”). Doctors there confirmed his previous diagnosis and the fact that he suffered frequent asthma attacks and had second and third degree respiratory insufficiency, and that his medical condition was continuing to worsen. On 7 May 2009 the Centre informed the applicant’s relatives that it had neither a lung specialist nor the required laboratory equipment to treat the applicant properly. The doctors added that he needed to be transferred to the respiratory medicine department of the Republican Clinical Hospital, but that this would be impossible to arrange because the hospital was shortstaffed and had no one to guard the applicant during his stay. 35. On an unknown date in 2009 the applicant’s mother asked for the applicant to be transferred to a specialist hospital, as bronchial asthma was one of the illnesses listed by the “MRT Ministry of the Interior” as a reason warranting a transfer to hospital. In its reply of 1 June 2009 the “MRT Ministry of the Interior” informed her that only convicted prisoners could be transferred to hospital on those grounds. 36. On 21 September 2009 the Centre informed the applicant’s parents that since May 2009 their son had continued to be treated on an in-patient basis, but that his medical condition was continuing to worsen, with no visible improvement as a result of treatment. 37. On 15 February 2010 a medical panel composed of four senior “MRT” doctors established as follows: “Despite the repeated treatment given, the respiratory dysfunction continues to increase and treatment is having no noticeable effect. A continuing downward trend is observed, with an increase in the frequency of asthma attacks and difficulty in stopping them.” In addition to the initial diagnosis of bronchial asthma and respiratory insufficiency, the panel found that the applicant had second degree posttraumatic encephalopathy. It concluded that: “The [applicant’s] life expectancy/prognosis is not favourable. His continued detention in the conditions of [pre-trial detention centres] appears problematic owing to the absence of laboratory equipment and specially qualified medical staff at [the Centre] for the purposes of carrying out the required treatment and its monitoring.” 38. Despite the panel’s findings, the applicant was transferred on the same day to the IVS in Hlinaia, which, as stated by the applicant and not contradicted by the respondent Governments, was less well equipped than the Centre. On 16 February 2010 the applicant’s mother was allowed to see him. He told her about his poor conditions of detention (lack of ventilation, heavy smoking by detainees, overcrowding) and said that he had already had two asthma attacks that day. The applicant’s mother was told by the prison staff that she had to bring her son the medication he required since there was none available in the prison. 39. On 18 February 2010 the applicant’s mother asked the “MRT President” for the applicant to be transferred as a matter of urgency to a specialist hospital and for his release from detention pending trial in order to obtain the treatment he required. On 20 February 2010 she received a reply saying that her complaint had not disclosed any breach of the law. 40. On an unknown date after 18 February 2010 the applicant was transferred to Prison no. 1 in Tiraspol. On 17 March 2010 he was again admitted to the Centre for in-patient treatment. 41. In a letter to the applicant’s lawyer dated 11 June 2010 the Centre’s director stated that in addition to the applicant’s main diagnosis of asthma, he was also found to have terminal respiratory insufficiency, symptoms of a head injury with localised areas of brain damage, the first signs of hypertonic disease, an allergy in his lungs making treatment and the ability to stop his asthma attacks more difficult, post-traumatic encephalopathy, arterial hypertension, toxoplasmosis, giardiasis (a parasite), chronic gastroduodenitis, pancreatitis and pyelonephritis. His prognosis was worsening. 42. In a number of replies to complaints by the applicant’s parents, the “MRT” authorities informed them that the applicant was seen regularly by various doctors. After his transfer from the Centre to the IVS in Hlinaia on 15 February 2010, his state of health had deteriorated and on 17 March 2010 he had been immediately transferred to the Centre for treatment. 43. According to the applicant, his state of health improved after his release and the treatment he received in Chișinău. However, because he feared re-arrest by “MRT militia”, he fled to Switzerland and applied for asylum there (see paragraph 23 above). C. The applicant’s meetings with his parents and his pastor 44. From November 2008 until May 2009 the applicant was not allowed to see his parents, despite repeated requests (for instance on 5 March and 13, 16 and 30 April 2009). The first authorised meeting took place six months after the applicant’s arrest, on 4 May 2009. On 9 December 2009 a judge of the “Tiraspol People’s Court” refused to allow a further meeting because examination of the case was pending. Another request for a meeting was refused on 15 February 2010. On 16 February 2010 a meeting was authorised, but the applicant and his mother had to talk to each other in the presence of a prison guard. They were not allowed to speak their own language (German) and were made to speak Russian or risk the guard calling off the meeting. 45. In June and September 2009 pastor Per Bergene Holm from Norway attempted to visit the applicant at the latter’s request in order to provide him with religious services, including “listening to [the applicant’s] confession and giving him the sacraments”. He was denied access to the applicant, a refusal which he subsequently confirmed in a letter to the Court dated 29 September 2010. On 30 September 2009 an “MRT presidential adviser” acknowledged that there was no reason to refuse the pastor access and that such a refusal was incompatible with the “MRT Constitution and laws”. The pastor was finally allowed to see the applicant on 1 February 2010. As stated by the applicant and not disputed by the Governments, a guard remained in the room throughout the meeting. D. Complaints to various authorities 46. The applicant’s parents made several complaints to the Moldovan authorities and the Russian embassy in Moldova concerning their son’s situation. 47. On 12 October 2009 the Centre for Human Rights of Moldova (the Moldovan Ombudsman) replied that it had no means of monitoring the applicant’s case. 48. On 3 November 2009 the Moldovan Prosecutor General’s Office informed the applicant’s parents that it could not intervene owing to the political situation in the Transdniestrian region since 1992. It also referred to Moldova’s reservations in respect of its ability to ensure observance of the Convention in the Eastern regions of Moldova. 49. A complaint made on an unknown date to the Russian embassy in Moldova was forwarded to the “MRT” prosecutor’s office. The latter replied on 1 February 2010, saying that the applicant’s case was pending before the “MRT courts”, which alone were competent to deal with any complaints after the case had been submitted to the trial court. On 10 February 2010 the Russian embassy forwarded that reply to the applicant’s mother. 50. The applicant also complained to the Joint Control Commission (“the JCC”), a trilateral peacekeeping force operating in a demilitarised buffer zone on the border between Moldova and Transdniestria known as the “Security Area”. For further details, see Ilaşcu and Others v. Moldova and Russia (cited above, § 90). It is unclear whether he obtained any response. 51. After notice of the present application had been given to the respondent Governments, the Moldovan Deputy Prime Minister wrote on 9 March 2010 to the Russian, Ukrainian and US ambassadors to Moldova, as well as to the Council of Europe, the European Union and the Organisation for Security and Cooperation in Europe (OSCE), asking them to assist in securing the applicant’s rights. 52. On 16 July 2010 the applicant asked the Moldovan Prosecutor General’s Office to provide witness protection to him and his parents, since the “MRT militia” had been looking for him at his home in Tiraspol while he was in hospital in Chișinău. On the same day the applicant was officially recognised as a victim. However, on 19 July 2010 the Bender prosecutor’s office refused his request to be provided with witness protection, since it had not been established that his life or health were at risk. 53. On 6 August 2010, following a complaint by the applicant, the investigating judge of the Bender District Court in Moldova set aside the decision of 19 July 2010 on the grounds that the applicant had been unlawfully arrested and convicted and had had his property taken away from him. He ordered the Bender prosecutor’s office to provide witness protection to the applicant and his family. The parties did not inform the Court of any further developments in this regard. E. Information concerning alleged Russian support for the “MRT” 54. The applicant submitted reports from various “MRT” media outlets. According to an article dated 13 April 2007 from Regnum, one of the leading Russian online news agencies at the relevant time, the Russian ambassador to Moldova had given a speech in Tiraspol the previous day in which he declared that Russia would continue its support for the “MRT” and would never give up its interests there. The diplomat added that “Russia has been here for more than a century. Our ancestors’ remains are buried here. A major part of our history is situated here”. 55. On 20 April 2007 the same news agency informed the public of a decision by the Russian Ministry of Finance to give the “MRT” USD 50 million in non-reimbursable aid, as well as USD 150 million in loans secured on “MRT” property. 56. In a news item dated 23 November 2006 the Regnum news agency reported a statement by the “MRT President” to the effect that each “MRT Ministry” was working on harmonising the legislation of the “MRT” with that of Russia, and that a group of representatives of “MRT Ministries” was to travel to Moscow within the next few days to discuss the matter. 57. According to the Moldovan Government, “the last and non-significant” withdrawal of armaments from the “MRT” to Russia took place on 25 March 2004. Almost twenty thousand tonnes of ammunition and military equipment are purportedly still stored on the territory controlled by the “MRT”. On 26 January 2011 Russian and Ukrainian officials were able to visit the Colbasna (Колбасна) arms depot, while Moldovan officials were neither informed of nor invited to participate in the visit. 58. In February 2011 the Russian Ambassador to Moldova declared, inter alia, in public speeches that since 2003, when Moldova had refused to sign a settlement agreement with the “MRT” (the so-called Kozak Memorandum, 2003), Russia had no longer been able to withdraw arms from the “MRT” owing to the latter’s resistance. 59. According to the Moldovan Government, Tiraspol Airport, which was officially closed down by the Russian authorities on 1 December 2005, continues to serve “MRT” military and civilian helicopters and aircraft. Russian military planes and helicopters are still parked there. Between 2004 and 2009 over eighty flights from that airport which were not authorised by the Moldovan authorities were recorded, some of which appear to have been bound for Russia. 60. According to the Moldovan Government, the “MRT” received a total of USD 20.64 million in Russian aid in 2011, in the form of either the waiving of debts for natural gas consumed or of non-refundable loans. During 2010 the “MRT” consumed natural gas from Russia to a value of USD 505 million. It paid the Russian company Gazprom USD 20 million, about 4% of the price for that gas. At the same time, the local population paid the “MRT” authorities approximately USD 163 million for gas in 2010, a sum which remained largely at the disposal of the “MRT”.	1
test	001-178500	ENG	BIH	CHAMBER	2,017	CASE OF SPAHIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA	3	Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)	Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani	5. By five judgments of the Travnik Municipal Court (“the Municipal Court”) of 5 March 2009, 18 January 2012, 31 March 2010, 30 April 2012 and 13 June 2011, which became final on 17 June 2010, 13 February 2012, 1 September 2010, 12 March 2013 and 21 July 2011, respectively, the Central Bosnia Canton (Srednjobosanski kanton, “the CB Canton”; one of the ten cantons of the Federation of Bosnia and Herzegovina) was ordered to pay the applicants various sums in respect of unpaid work-related benefits together with default interest at the statutory rate and legal costs. 6. The writs of execution issued by the Municipal Court on 23 September 2010, 14 June 2012, 4 October 2010, 13 February 2013 and 25 October 2011, respectively, were transferred to the competent bank and were listed among the charges on the debtor’s account. On several occasions thereafter the bank informed the Municipal Court that the enforcement was not possible because the budgetary funds intended for that purpose had already been spent. 7. On 26 February 2013 and 7 January 2014 the Ministry of Finance of the CB Canton (“the Ministry”) informed the bank that no funds for the enforcement of final judgments had been provided in the cantonal budget for 2013 and 2014 and that, accordingly, the final judgments against the canton could not be enforced. 8. However, on 9 January 2015, upon the applicants’ enquiry, the Ministry informed them that in 2013 the canton had designated 620,000 convertible marks (BAM) for the enforcement of judgments and BAM 605,900 in 2014 for the same purpose. 9. The applicants complained of the non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 17 September 2014 (decision no. AP 3438/12) and 26 February 2015 (decision no. AP 4242/14), the Constitutional Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the applicants’ and five other cases, on account of the prolonged non-enforcement of the final judgments in their favour. It ordered the government of the CB Canton to take the necessary steps in order to secure the payment of the cantonal debt arising from the final judgments within a reasonable time. Although some of the applicants submitted a claim for non-pecuniary damages, the Constitutional Court did not award any compensation. The relevant part of the decision of 17 September 2014 reads as follows: “36. ... The court notes that the judgments [in favour of the appellants] have not been enforced due to the lack of funds on the debtor’s bank account. ... 39. The Constitutional Court reiterates that under the Constitution of Bosnia and Herzegovina and Article 1 of the European Convention all levels of government must secure respect for individual human rights, including the right to enforcement of final judgments under Article 6 § 1 of the Convention and the right to property under Article 1 of Protocol No. 1 to the Convention ... The scope of that obligation is not reduced in the present case, notwithstanding the large number of judgments ... [T]he Constitutional Court notes that in Jeličić v. BiH, and again in Čolić and Others v. BiH, the European Court of Human Rights reiterated that ‘it is not open to a State authority to cite lack of funds as an excuse for not honouring a judgment debt. Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1’ ... 40. The Constitutional Court agrees with the position taken by the European Court ... it is nevertheless aware of the effects the global economic crisis had on Bosnia and Herzegovina...The court notes that the federal and the cantonal governments had taken certain steps with the view to enforcement of final court decisions. Section 138 of the Federal Enforcement Procedure Act 2003 provides that the final judgments against the Federation and the cantons shall be enforced within the amount of budgetary funds designated for that purpose ... and that the creditors shall enforce their claims in the order in which they acquired the enforcement titles ... ... 42. The court finds that the crux of the problem in the present case is that the CB Canton did not identify the exact number of unenforced judgments and the aggregate debt ... without which it is impossible to know when all the creditors will realise their claims against this canton. Furthemore, there should exist a centralised and transparent database of all the claims listed in chronological order according to the time the judgments became final. It should include the enforcement time-frame and a list of partial payments, if any. This will also help to avoid abuses of the enforcement procedure. These measure and adequate funds in the annual budget would ensure that all the final judgments are enforced within a reasonable time ... and the CB Canton would ensure the respect of its obligations from Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. ... 44. The court considers that the adoption of section 138 of the Enforcement Procedure Act 2003 had a legitimate aim, because the enforcement of a large number of judgments at the same time would jeopardise the normal functioning of the cantons. However, the limitation of the enforcement in the present case is contrary to the principle of proportionality enshrined in Article 1 of Protocol No. 1 which requires that a fair balance is struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights ... Section 138 places a disproportionate burden on the appellants ... they are placed in a situation of absolute uncertainty as regards the enforcement of their claims ... ... 46. In order to comply with its positive obligation, the government of the CB Canton must, as explained above, calculate the total amount of the aggregate debt arising from the final judgments and prepare a comprehensive and transparent database ... This court will not specify what a reasonable time-limit should be ... but, in any event, it must be in accordance with Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. ... 47. ... The current situation does not give any guarantees to the appellants that their claims against the CB Canton will be enforced within a reasonable time”. 10. The Constitutional Court’s decision of 26 February 2015 follows the same legal reasoning. 11. On 19 January 2016 Mr Jasmin Hodžić and Ms Jasmina Mezildžić concluded out-of-court settlements with the government of the CB Canton pursuant to which part of their principal claims were to be paid within 15 days following the settlement. They renounced the remaining principal claim and default interest. The legal costs were to be settled by a separate agreement. From the information available in the case it transpires that no such agreement has been concluded. 12. As regards the rest of the applicants, the final judgments in their favour have not yet been enforced.	1
test	001-144387	ENG	SVK	ADMISSIBILITY	2,014	CHENTIEV v. SLOVAKIA	4	Inadmissible	Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra	1. The applicant, Mr Anzor Chadidovich Chentiev, is a Russian national of Chechen ethnic origin. He was born in 1983 and is detained in Leopoldov prison. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant arrived illegally in Slovakia from Ukraine in January 2006. He unsuccessfully applied for asylum. The Slovak authorities found that his extradition to the Russian Federation for the purpose of his criminal prosecution there was admissible. 4. On 14 September 2010 the Court declared inadmissible application no. 21022/08 in which the applicant complained that his extradition to the Russian Federation would amount to a breach of his rights under Articles 3 and 6 of the Convention and under Article 1 of Protocol No. 6. 5. On 12 November 2010 the applicant lodged a new application with the same subject-matter as application no. 21022/08 while relying on additional facts. In parallel the applicant filed a fresh asylum request with reference to those facts. 6. On 15 December 2010 the President of the Fourth Section to which the case had been allocated decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not been extradited to the Russian Federation. On 23 November 2010 the Court (Fourth Section) decided to prolong under further notice that interim measure. 7. On 21 February 2012 the Court decided to give notice of the application to the Government of Slovakia and to invite the Government to submit written observations on the complaints that the applicant’s extradition to the Russian Federation would amount to a breach of his rights under Articles 3 and 6 of the Convention. The Chamber declared the remainder of the application inadmissible. 8. As regards the domestic proceedings on his fresh asylum request, the Bratislava Regional Court, in a judgment of 21 November 2013, dismissed the applicant’s action against the decision given by the Ministry of the Interior. 9. The applicant filed an appeal through his legal representative. 10. In two letters of 6 February 2014 the applicant informed the Regional Court that he had terminated the authority of his representative and withdrawn his action for review of the administrative decisions on his asylum request. 11. On 13 March 2014 the Supreme Court discontinued the proceedings on that ground without addressing the merits of the case. 12. In the meantime, on 11 February 2014, the applicant informed the Court that he no longer wished to pursue the application and that he had petitioned for the domestic proceedings to be discontinued. The respondent Government confirmed that information. 13. On 18 March 2014 the Court reconsidered the application in the light of the information submitted by the parties and decided to lift the interim measure under Rule 39 of the Rules of Court previously indicated in respect of the applicant. 14. In a letter which was delivered on 1 April 2014 the applicant informed the Court that he and his family were threatened by Russian authorities in order to make him return to Russia voluntarily. The applicant maintained that he wished to pursue the application.	0
test	001-179404	ENG	RUS	COMMITTEE	2,017	CASE OF M.M. v. RUSSIA	4	Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)	Dmitry Dedov;Luis López Guerra	5. The applicant was born in 1984 and lives in Babushkin, Republic of Buryatiya, Russia. 6. On 6 January 2005 M.D. was arrested and taken to a police station. Allegedly, police officers threatened him with murder and ill-treatment if he refused to make a confession. In the presence of counsel, he made a written statement confessing to a murder. On 7 January 2005 an investigator compiled an arrest record. 7. On 30 September 2005 another investigator issued a formal decision confirming that M.D.’s real name was M.M., the applicant in the present case before the Court. 8. On 12 March 2007 the Verkh-Isetskiy District Court of Yekaterinburg (“the District Court”) convicted the applicant of murder and sentenced him to ten years’ imprisonment. On 6 June 2007 the Sverdlovsk Regional Court (“the Regional Court”) upheld the judgment. 9. In the meantime, on 4 April 2005 the applicant had tested positive for HIV. 10. According to the applicant, on 30 August 2006 (see below) he learnt that in October or November 2005 Z., a deputy district prosecutor, had given G., the sister of the murder victim, access to the file concerning the criminal charges against the applicant. 11. At a hearing on 30 August 2006 the trial court granted G. victim status in the criminal case (see paragraph 36 below). At the same time, the trial court allowed a decision granting G. victim status to be added to the file (a decision apparently taken in late 2005 by an unspecified authority during the criminal investigation – however, see paragraphs 14-15 below). G. was cross-examined at that hearing. She stated that she had had access to the file and had then told D., the applicant’s relative, about his HIV status to prove that the applicant was not a good person. According to the applicant, G. also disclosed his HIV status to some other neighbours. 12. Between September 2006 and 2010 the applicant unsuccessfully sought the institution of criminal proceedings against G. for the disclosure of private information, which was an offence under Article 137 § 1 of the Criminal Code (see paragraph 38 below). It appears that the applicant also sought the institution of criminal proceedings against Z. in relation to the disclosure of private information involving the use of an official position and abuse of power (Article 137 § 2 and Article 286 of the Criminal Code; see also paragraph 15 below). 13. A pre-investigation inquiry was carried out for the offence allegedly committed by G. 14. In December 2006 Z., the deputy district prosecutor, wrote to the applicant indicating that G. had not been granted victim status, and that the investigator in charge of the case had not provided her with access to the file during the preliminary investigation. 15. In December 2006 the regional prosecutor’s office informed the applicant that G. had been granted victim status and had studied the case file in August 2006, she had not applied for victim status before that time, and there were no grounds for any pre-investigation inquiry in respect of Z. It is unclear whether the applicant took any further action as regards his criminal complaint against Z. 16. As a result of the inquiry in respect of G., a refusal to institute criminal proceedings was issued. It was then overruled. Further refusals to prosecute were issued on 1 October and 26 November 2007 and on 9 February 2008. 17. On 25 November 2008 the District Court refused to carry out judicial review of the refusal dated 9 February 2008. The Regional Court then considered that the applicant was entitled to judicial review and ordered the District Court to re-examine the issue. In the resumed proceedings, on 13 February 2009 the District Court noted that the applicant no longer wished to pursue the judicial complaint, and discontinued it. 18. In the meantime, on 23 January 2009 an investigator had issued a new refusal to prosecute with reference to the expiry of the two-year timelimit for prosecution of an offence under Article 137 of the Criminal Code. The investigator heard D., who confirmed that G. had briefly mentioned the applicant’s HIV status. The investigator’s decision indicates that he considered the disclosure of the applicant’s medical data an established fact. 19. On 28 September 2009 the District Court confirmed the refusal to prosecute dated 23 January 2009. The judge noted (apparently with reference to 2007) that for some time the institution of criminal proceedings had been refused because “at the time no written statement could be obtained from [the applicant] in relation to his complaint”. This had prompted the supervising prosecutor to set aside, among other things, the refusals to prosecute dated 1 October and 26 November 2007 and 9 February 2008. The prosecutor had acted promptly by taking decisions on 5 October and 29 December 2007 and on 30 December 2008. Following each decision, law-enforcement officers had taken measures to interview the applicant (apparently by asking staff at his remand centre to interview him), but “no statement had been received from him”. 20. On 17 March 2010 the Regional Court upheld the judgment of 28 September 2009. The appeal court stated that, while the fact of the dissemination of the applicant’s medical data by G. had been established, she could not be prosecuted, owing to the expiry of the time-limit for prosecution. However, those grounds for discontinuing the case were, in a way, in the applicant’s interest, and it remained open to him to bring civil proceedings against her. 21. In May 2010 the applicant brought civil court proceedings against G., seeking compensation for non-pecuniary damage on account of the disclosure of his HIV status to other people. On 13 September 2010 the District Court discontinued the case because the respondent was a foreign national not residing in Russia. Apparently, the applicant did not appeal. 22. The applicant also lodged a claim under the 2010 Compensation Act. A judge rejected it, noting that the Act did not give standing to a criminal complainant with no “victim” status seeking compensation on account of the length of a pre-investigation inquiry. Apparently, the applicant did not appeal. 23. The applicant provided the following account of his conditions of detention. 24. Between 17 January 2005 and July 2007 the applicant was kept in Yekaterinburg Remand Centre no. 66/1. After his arrival he was placed in cell no. 301, which measured 20 square metres and accommodated five people. This cell had no window, and the temperature in the cell was around 2˚C. There was no bed or bedding. The toilet did not work and was not separated from the main area. 25. On 18 January 2005 the applicant was transferred to cell no. 625, which measured 20 square metres and had six beds, but which actually accommodated seventeen people. The toilet was not separated from the main area. 26. From 19 January to 4 April 2005 the applicant was in cell no. 125, which measured 4 or 7 square metres and accommodated four detainees (or up to six people, according to the applicant’s amended description). 27. From 4 April to 18 May 2005 the applicant was kept in cell no. 204, which measured 20 square metres and had six beds, but accommodated twenty-three to twenty-eight people. 28. From 18 May to 2 June 2005 the applicant was in hospital. It appears that the material conditions of his stay there were acceptable. However, between 24 May and 1 June 2005 he was allegedly ill-treated by medical assistants (also people who had been convicted) who, at the instigation of police officers, tried to extract a confession from him. 29. After being returned to the remand centre, the applicant was placed in cell no. 205, which measured 20 square metres and accommodated up to twenty-five people, despite having only sixteen beds. 30. From 11 July 2005 the applicant was in cell no. 117, which measured 4 square metres and accommodated four detainees. 31. Furthermore, the applicant provided a detailed account of the conditions of his detention between July 2005 and July 2007, conditions which were also cramped or unacceptable and where, at times, he was not able to have an individual bed. 32. Between 2005 and 2009 the applicant lodged numerous complaints in relation to his conditions of detention. For instance, on 15 February 2006 the Prisons Department of the Sverdlovsk Region dismissed one of his complaints, whilst indicating that the actual number of detainees in the remand centre exceeded the design capacity of this detention facility. By a letter of 13 March 2006 the administration of the remand centre informed the applicant that the actual capacity of cells was such as to afford each detainee 2.5 square metres of space, which was a temporary measure related to the overpopulation problem. 33. By a letter of 2 October 2008 the Sverdlovsk prosecutor’s office supervising prisons confirmed that the applicant had been afforded between 0.9 and 3.8 square metres of cell space. 34. By a letter of 2 December 2008 the prosecutor’s office of the Sverdlovsk Region informed the applicant that, following an inspection, it could be not confirmed that the cell toilets were not separated from the main area.	1
test	001-164001	ENG	ROU	ADMISSIBILITY	2,016	MUCEA v. ROMANIA	4	Inadmissible	András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer	1. The applicant, Mr Dorinel Mihai Mucea, is a Romanian national, who was born in 1947 and lives in Bucharest. He was represented before the Court by Ms Diana-Elena Dragomir and Ms R. Chiric, lawyers practising in Bucharest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was a high-level civil servant in the Ministry of Economy and Commerce, who at the time of the events was in charge of the privatisation of numerous State-owned strategic companies in the field of energy, oil and natural resources. 5. On 8 June 2006 Romanian Intelligence Service (Serviciul Român de Informaţii - “the SRI”) informed the Department for the Investigation of Organised Crime and Terrorism from the prosecutor’s office attached to the High Court of Cassation and Justice (“the High Court”) that the applicant was part of an organised criminal group which included senior government officials and foreign citizens. The group’s purpose was to help foreign companies to illegally acquire ownership of important Romanian State-owned companies which were in the process of privatisation. These accusations were based on information obtained through intercepting the telephone conversations of the members of the group, including the applicant. 6. The surveillance activity was carried out under Law no. 51/1991 (on the national security of Romania) and started in respect of the applicant on 30 May 2005. This activity had been authorised by a judge of the High Court. 7. On 21 November 2006 the applicant was charged with treason for the disclosure of State secrets and with creating an organised criminal group. 8. The criminal investigation and the surveillance of the applicant continued after the above date and on 18 April 2007 the applicant was indicted for the crimes charged, together with nine co-accused. 9. On 4 September 2007 the applicant’s lawyer sent a letter to the president of the Bucharest Court of Appeal, where his prosecution file had initially been registered, requesting that the transcripts of the intercepted phone conversations for the period between 30 May 2005 and 21 November 2006 should not be accepted as evidence against him since they had been obtained unlawfully. He argued that this part of the surveillance had been conducted before he had been charged with a crime and therefore should not have been accepted as evidence in the proceedings. 10. At a hearing held on 31 January 2013 before the High Court, where the applicant’s case had been sent for examination, the applicant contested the accuracy of the transcripts of the telephone conversations submitted as evidence in the proceedings. He alleged that there were discrepancies between the originals in English and their translated Romanian versions, discrepancies which implied that he had divulged State secrets when in fact that had not been the case. 11. On this occasion, the applicant lodged a written request asking the court to order the prosecutor’s office to submit as evidence the audio tapes of all his phone conversations recorded in the course of the investigation. The applicant explained that only a combined analysis of the entirety of his phone conversations in the period in question would prove his innocence. Relying on the provisions of Article 6 of the Convention the domestic court rejected the request considering that the tapes as well as the transcripts of all the phone conversations used as evidence in the case were already in the case file and no additional transcripts were necessary. 12. At the hearing of 31 October 2013 the High Court also held that the applicant’s allegations concerning the existence of discrepancies in the translation of the phone conversations had been noted and would be taken into consideration in the deliberations. 13. On 3 December 2013 the High Court convicted the applicant of treason for disclosure of State secrets and of creating an organised criminal group, and sentenced him to six years’ imprisonment. 14. The applicant appealed against the decision claiming in principal that the information he had indeed transmitted to the co-accused could not be considered a State secret. Quoting extensively from transcripts of his phone conversations submitted as evidence in his case file, the applicant explained that his actions had been in accordance with the law. As regards the interception of his phone conversations the applicant complained of the transcription and translation errors which had changed the true meaning of the discussions. He mentioned that the content of the intercepted phone conversations had not been sufficient to prove his guilt. 15. At two hearings held before the five-judge panel of the High Court on 17 and 19 December 2014, the applicant’s representatives argued as regards the interception of the applicant’s phone conversations that the transcripts submitted to the case file had discrepancies due to translation errors and that the court of first instance had not quoted them accurately in its judgment. 16. On 23 December 2014 one of the applicant’s two representatives submitted final written pleadings at the registry of the High Court. They included no mention of the interception of the applicant’s phone conversations. 17. On 27 January 2015 the High Court convicted the applicant of the crimes of disclosing secret information and creating an organised criminal group, and sentenced him to four years and six months’ imprisonment. The judgment became final. 18. In a letter to the Court dated 11 March 2008 the applicant complained of the fact that excerpts from his telephone conversations which had been obtained through telephone tapping during criminal surveillance operations had been disclosed to the media by the prosecutors investigating his case during the criminal proceedings against him. 19. The applicant enclosed with the above letter several copies of newspaper articles which had been published in the national media in May, November and December 2006. 20. The transcript of a discussion that one of the co-defendants in the applicant’s case had had with journalists during a television news programme on 29 November 2007 on Realitatea TV, a national channel, was also attached. The transcript read as follows: “[S.]’s network of economic espionage. The network of [S.S.] severely distorted the Romanian market, damaged Romania’s image abroad and even endangered its accession to the European Union ... In the privatisations case, DIICOT [the Department for the Investigation of Organised Crime and Terrorism] opened an investigation against eight people, all accused of blackmail, treason and complicity in these crimes. ...The Bulgarian citizen [S.S.], an international consultant, was considered the key person in the privatisations case. He is accused of espionage and of organising an espionage network.” Half an hour later, on the same channel, [M.S.] [one of the co-suspects in the applicant’s case at the time] stated: “I have not received anything official; I have only heard of the accusations from the media and from you. I am ready to come back to Romania and to contribute to the clarification of the situation, even if these privatisations have been, in my opinion, a success. [M.S.]’s agenda included the minister of economy, Dorinel Mucea, [M.O.] and [S.S.], the other accused in the case.” 21. On 21 July 2008 the applicant also sent to the Court excerpts from a television programme broadcast on 17 July 2008 on Antena 3, a national channel. According to the transcript of the discussions as published on the channel’s internet page, several journalists and political analysts presented their opinions on the case in which the applicant was standing trial at the time. The transcript of the programme reads as follows in its relevant parts: “Daily brief [Sinteza zilei]: The ‘Treason and espionage’ scandal. Is the DNA [the National Anticorruption Department] betraying the President? The DNA’s decision not to open an investigation into the “treason and espionage” scandal, two and a half years after making announcements about the fight against corruption, was the main topic of the programme Daily Brief on Antena 3. In the mentioned investigation, former ministers [Z.N.] and [C.S.], former ministry advisers Dorinel Mucea and [R.D.] and the Bulgarian consultant [S.S.], had been accused of bribe taking. The latter was even imprisoned as a result of the mentioned scandal. The political expert Bogdan Teodorescu stated that it had been proved one more time that ‘human rights are carelessly breached in Romania’. ‘These people have their lives in pieces. Who will repair it for them? If the system wants to destroy you it will ...’ said Teodorescu. Military expert Radu Tudor underlined: ‘DNA prosecutors woke up and understood that they have been used as political lure. There is a report adopted by CSM [the Superior Council of Magistracy] which mentions incredible things. It states that the manner in which investigations are carried out by the DNA is dangerous for the Romanian justice system. DNA prosecutors have brought in some cases charges which could not be found in the criminal code. So, either you are dumb, or you received a political order.’ explained Radu Tudor. ... Referring to the ‘treason and espionage’ scandal, Radu Tudor mentioned that it was all a lie, because ‘one cannot commit political treason to the advantage of a consultancy company engaged by the Romanian State, for which [S]. also worked.’ The analyst Ion Cristoiu ... also condemned the approach adopted by the media who ran with these stories without verifying all the ‘leaks of information’ from the DNA and used them deliberately to mislead the public ...” 22. On 10 January 2014, together with his observations on the admissibility and merits of his application, the applicant submitted additional copies of newspaper articles published between November 2006 and January 2007. 23. The legislation in force at the relevant time concerning telephone tapping and the changes to the law brought into force on 1 January 2004 are described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).	0
test	001-174644	ENG	BGR	CHAMBER	2,017	CASE OF DIMCHO DIMOV v. BULGARIA (No. 2)	4	No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)	André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev	6. The applicant was born in 1968 and is currently detained in Vratsa Prison. 7. In 2012 the applicant was detained in Varna Prison, serving a combined sentence of eighteen years’ imprisonment for aggravated murder, lewd acts, aggravated theft and car theft. 8. He suffers from many chronic medical conditions and a personality disorder which manifested itself in, inter alia, several attempts at self-harm and some suicide threats. 9. In 2007 the applicant was treated on the psychiatric ward of Lovech Prison Hospital. 10. Following his placement in an isolation cell in April 2008, he again threatened to harm himself and for eight days was kept almost constantly immobile by having his hands and feet handcuffed to a bed (see Dimcho Dimov v. Bulgaria, no. 57123/08, 16 December 2014, where the Court found violations of the substantive and procedural limbs of Article 3 of the Convention in that regard). 11. In early 2012 the applicant was part of a prisoner group that included Mr K.I. The latter was serving a combined sentence of six and a half years for aggravated racketeering and numerous instances of threats of murder and aggravated hooliganism. According to a later psychological report, Mr K.I. had previously been admitted many times to the psychiatric ward of Lovech Prison Hospital and he suffered from a mixed personality disorder with elements of dissocial behaviour, paranoia and emotional instability. 12. On the morning of 15 February 2012 the applicant went to the wing for prisoners who were being transferred to fetch a mattress he had allegedly lent to another inmate. When he entered the cell, Mr K.I., with whom he had had a conflict since January that year, began arguing with him, telling him that he had no right to come in and remove items. A guard intervened and took the applicant out of the wing, leaving him in the prison barbershop. According to statements made by the applicant later, Mr K.I. followed him, grabbed him by the collar through the bars separating the barbershop from the corridor, and hit him on the head and nose. In a report drawn up several days later, the social worker in charge of the applicant’s group said that there was no evidence of such an incident as no other inmate had confirmed the applicant’s allegations, and the applicant had not requested a medical examination. 13. Alerted by the guard, the social worker came and talked with the applicant, repeating that he could not go back into that wing. According to her report about the incident, her words upset him and he began arguing with her in a loud voice. That in turn irritated Mr K.I., who began to shout at the applicant. The social worker took Mr K.I. and two other inmates to a cell, where she reminded them of their duties and warned them that any violence would be in breach of prison rules and entail disciplinary measures. They agreed that they had overreacted and undertook to make efforts to put relations in the group right. After that, the social worker had a talk with the applicant, who was in a highly emotional state. She told him of Mr K.I.’s undertaking to calm the conflict. The applicant began shouting and insulting Mr K.I., who heard him and shouted back. To calm things down, the social worker had the applicant isolated in a cell. 14. The next day, the social worker received complaints from five other inmates from the group. They protested against the applicant’s return to the group, saying that he had systematically bullied and assaulted them. The applicant also filed a complaint, saying that he could no longer remain in the same group as Mr K.I. 15. As a result, on 21 February 2012 the social worker recommended that the prison governor move the applicant to another group. She was of the view that his remaining in his old group would worsen relations within it because he would take on inmates who had not taken his side in the conflict with Mr K.I., which would also be bad for his emotional well-being and security. In the meantime, the applicant was provisionally held in a cell on another floor. 16. Six days after the first incident, on 21 February 2012, a guard took the applicant back to his old corridor so that he could fetch his belongings from his locker. According to the guard’s report, filed the same day, the applicant swore at and threatened Mr K.I. when passing him by. The latter, upset, punched the applicant on the jaw. The social worker carried out an enquiry over the following days at the request of the prison governor and obtained statements from eight other inmates, confirming the events. She proposed that Mr K.I. be given a disciplinary warning and that the applicant be kept in his new group to avoid further altercations between the two. As a result of the blow he had received the applicant suffered a fractured jaw, but this was not detected immediately (see paragraphs 18, 25 and 28 below). Three weeks after the incident, on 13 March 2012, the prison governor issued Mr K.I. with a disciplinary warning. 17. The applicant expressed no wish to be given a medical examination after the incident which allegedly took place on 15 February 2012. 18. After the incident on 21 February 2012 he was brought to Varna Prison’s medical centre, where he was seen by the feldsher as the prison’s only doctor was on long-term sick leave at the time (see paragraph 40 below). The applicant told the feldsher that he had been punched next to his right ear and had pain in the ear and the lower jaw. The feldsher noted some redness in his ear, but reported nothing more serious. She also noted that the applicant had no signs of other traumatic injuries to his body. She wrote a note to the prison administration, detailing her findings. According to a statement which he made in the course of the ensuing criminal proceedings against Mr K.I. (see paragraph 35 below), the applicant asked the feldsher to send him for an X-ray, but she refused. 19. On 22 February 2012 the applicant went to the medical centre again and was given vitamins, an anti-inflammatory drug, a muscle relaxant and antibiotics. 20. He visited the centre once more on 24 February 2012 and was given a painkiller. 21. According to a statement by the applicant in the criminal proceedings against Mr K.I. (see paragraph 35 below), he repeatedly asked to be sent to an external medical specialist for an examination. 22. His next visit to the centre was on 7 March 2012, when he complained of a loss of hearing in his right ear. The feldsher decided to refer him to an external specialist. The consultation took place seven weeks later, on 26 April 2012 (see paragraph 25 below). The Government said the delay was because the applicant’s symptoms had not suggested that he had a medical condition that required urgent attention and because it took time to organise a medical examination outside the prison. 23. The applicant went to the prison’s medical centre again on 13 March 2012 and threatened to go on a hunger strike. According to a statement which he made in the course of the criminal proceedings against Mr K.I. (see paragraph 35 below), he made that threat to pressure the prison authorities to send him for a medical examination by an outside specialist. 24. His next visit to the centre was on 23 April 2012, when he obtained a painkiller but apparently did not complain further about his health. 25. On 26 April 2012 the applicant was seen by an external otolaryngologist, who noted that he was experiencing pain in his right temporomandibular joint and ears and had poor hearing. He also noted that the applicant had some redness on his eardrums. He prescribed painkillers and antibiotics, and suggested that the applicant be seen by a maxillofacial surgeon. The prison paid for the consultation. 26. On 27 April and 7 and 10 May 2012 the applicant again visited the prison’s medical centre and obtained antibiotics and analgesics. On 12 May 2012 he was taken out of prison for a consultation with a psychiatrist. 27. On 14 May 2012 the prison’s feldsher told the applicant that she would ask the prison administration to pay for a consultation with a maxillofacial surgeon. The Government explained that that had been necessary because such consultations were not covered by Bulgaria’s health insurance scheme and the prison had to make a special payment for such a consultation. 28. On 19 May 2012 the applicant was examined by a maxillofacial surgeon and given a panoramic X-ray. The surgeon noted that the applicant had a fracture of the right condyloid process that had not healed properly and post-traumatic arthritis of the right temporomandibular joint. He recommended that the applicant have physiotherapy for that joint. The consultation and the X-ray were paid for by the prison administration. 29. On 21 May 2012 the prison feldsher offered to send the applicant to Sofia Prison Hospital for physiotherapy. He refused. 30. On 15 June 2012 the applicant agreed to be sent to Sofia Prison Hospital, and was admitted on 18 July 2012. He was examined and given an X-ray of the skull. It was noted that he had a fracture of the jaw that had already healed and could no longer be operated on, and a deviated nasal septum. He was treated with antipsychotic, anticonvulsant and moodstabilising drugs, and had physiotherapy for his temporomandibular joints. He was in the hospital until 1 August 2012, when he returned to Varna Prison. 31. Between June and October 2012 the applicant visited the prison medical centre on several occasions. He was generally given pain medication and further on request external medical consultations were discussed. 32. The second consultation with an otolaryngologist took place on 27 December 2012. She noted that the applicant complained of poor hearing and pain in the right ear. She found that he had normal eardrums but poor teeth, which caused luxation of the temporomandibular joint, and also had a dysfunction of that joint. She prescribed painkillers. 33. In a medical report drawn up on 11 February 2013, the Varna Prison doctor noted that the applicant had no money to pay for surgery on his jawbone and that the national health insurance scheme did not cover it. In November 2013 the applicant had surgery for the deviated nasal septum in a hospital in Varna. 34. On an unknown date in 2012 the applicant complained to the Varna district prosecutor’s office about the incidents on 15 and 21 February 2012. In June 2012 the prosecutor’s office refused to open criminal proceedings. It found that no prison staff had committed any offences during the incidents. On appeal by the applicant, the Varna regional prosecutor’s office upheld that decision in August 2012. The applicant appealed further and, on 10 October 2012, the Varna appellate prosecutor’s office quashed the refusal to open criminal proceedings against Mr K.I., but upheld the refusal to open proceedings against prison staff. It noted that the internal inquiry had established that the incident involving the two inmates had been promptly dealt with and that there had been no culpable omissions by prison staff. It referred the case back with instructions to the lower prosecutor’s offices to check whether Mr K.I.’s actions had amounted to causing moderate bodily harm. 35. Following a criminal investigation and delays in the resulting trial due to Mr K.I.’s mental health, in February 2015 the Varna District Court found Mr K.I. guilty of causing moderate bodily harm to the applicant by breaking his jaw. It sentenced him to six years’ imprisonment and ordered him to pay the applicant 2,000 Bulgarian levs (BGN) in respect of nonpecuniary damage. The court noted that the fracture had impaired the applicant’s chewing and speech functions for at least four months and had caused him considerable pain and suffering (see прис. № 68 от 12.02.2015 г. по н. о. х. д. № 3419/2013 г., РС-Варна). 36. In March 2016, following an appeal by Mr K.I., the Varna Regional Court fully upheld the lower court’s judgment (see реш. № 61 от 07.03.2016 г. по в. н. о. х. д. № 301/2015 г., ОС-Варна). 37. In September 2014 the applicant brought a claim for damages against the Chief Directorate for the Execution of Punishments at the Ministry of Justice. He alleged that over the previous two months the authorities at Varna Prison had failed to provide him with adequate medical care for pain in the right ear, his fractured jaw and numbness in his left arm. 38. The Varna Administrative Court heard the case on 1 December 2014 and 2 February 2015, when the applicant unexpectedly withdrew his claim and the court discontinued the proceedings.	0
test	001-173266	ENG	HRV	CHAMBER	2,017	CASE OF GOLUBAR v. CROATIA	4	No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Positive obligations) (Substantive aspect)	Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković	5. The applicant was born in 1955. 6. On 26 February 2014 the applicant began to serve a three-year prison sentence. He was placed in Zagreb Prison Hospital (“ZPH”). 7. On 28 February 2014 the applicant applied to a Zagreb County Court judge responsible for the execution of sentences and the head office of the Prisons Administration requesting the suspension of his prison sentence on account of his state of health. He claimed that from 5 to 12 February 2014 he had been hospitalised in Dubrava Hospital in Zagreb because he had suffered a stroke. He also had two brain arteriovenous malformations, one of which had been removed in February 2013 by means of gamma knife radiosurgery, and the three-year high-risk recovery period had not yet ended. He referred to his medical documents, which had established basal ganglia in the ventricular system with a risk of haemorrhage, increased by the stress of the prison conditions. He also claimed that in combination with the epileptic fits from which he suffered, his health issues could be life-threatening. 8. A medical report drawn up by ZPH on 6 March 2014 confirmed the claims put forward by the applicant in his request and concluded: “[The prisoner] presents a permanent high risk to himself and the institution in which he is placed. The expert opinion is that two or three years are needed for his brain condition to stabilise after the gamma knife surgery. We consider his request for a stay of his prison term medically justified.” 9. On 18 April 2014 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request. This decision was based entirely on an opinion given by Dr B., an expert in internal medicine and cardiology. Dr B. concluded that the applicant was not suffering from any acute illness and that during his time in ZPH his chronic illness had not worsened. Dr B. also stated that in the event of a sudden deterioration in the applicant’s state of health, he could easily be transferred to an appropriate medical institution. Lastly, he asserted that the applicant’s current medical problems could be appropriately treated at ZPH. 10. On 25 April 2014 the applicant lodged an appeal, in which he argued that since incarceration his medical condition had been deteriorating constantly, that the ZPH doctors had themselves recommended that his prison sentence be suspended on medical grounds, and that Dr B. could not give a proper opinion on his health since he was not an expert in neurology. 11. On 8 July 2014 a three-judge panel of Zagreb County Court quashed the first-instance decision and instructed the first-instance court to order an expert opinion from a neurologist. 12. On 21 August 2014 the same Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request. The decision was based mainly on the opinion given by Dr M., an expert in neurology. She concluded that the applicant had not been suffering from any acute illness, that his chronic illness had improved, that he had been receiving good medical care at ZPH, and that it had appropriate staff to meet the needs of the applicant as regards the medical care his condition required. 13. On 27 August and 4 September 2014 the applicant lodged appeals, in which he contested the qualifications of Dr M. and the validity of her opinion. He argued that she had not answered the question whether ZPH had adequate staff and could otherwise properly treat his medical condition. He further argued that the judge responsible for the execution of sentences had not addressed the contradictions between the findings the ZPH doctors had expressed in their opinion of 6 March 2014 and the reports of the medical experts commissioned by Zagreb County Court. He also asserted that his medical condition could only be properly treated in a specialist medical institution. 14. Following a suggestion by ZPH that there was no need for the applicant’s further hospitalisation, on 29 September 2014 the head office of the Prisons Administration ordered his transfer to Zagreb Prison. On 2 October 2014 he lodged an appeal, arguing that neither the staff nor equipment at ZPH was satisfactorily suited to carry out proper diagnostic examinations to accurately assess his medical condition. He asked for an urgent transfer to a suitable medical institution where a proper diagnostic examination could be carried out. The applicant’s appeal was dismissed on 14 October 2014 by the Prisons Administration. 15. On 31 October 2014 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the decision of 21 August 2014, endorsing its reasoning. 16. On 19 November 2014, at his request, the applicant was taken to the Sisters of Mercy Hospital in Zagreb so that neurological tests could be carried out. During his transfer in a police van he suffered an epileptic fit and lost consciousness. This was discovered only on arrival at the front entrance of the hospital when officers opened the back door of the van and found him lying on the floor. He spent ten hours at the hospital and was then returned to Zagreb Prison. 17. On an unspecified date the applicant lodged a constitutional complaint against the decisions concerning his request for the suspension of his prison sentence and the decision concerning his transfer to Zagreb Prison. In addition to the complaints put forward in his previous requests and appeals, the applicant also complained that during his eight months at ZPH he had not had proper access to sanitary facilities and had been obliged to ask the guards to let him out of the room each time he needed the toilet, a request which they sometimes had not answered in time. Since there had been no lift at ZPH, in order to have access to fresh air he had had to climb the stairs to his cell on the second floor, which had been a risk to his health. He further reiterated that ZPH had no neurology department or even a neurologist, so his condition could not have been properly treated there. Even though specialists from the two civil hospitals where he had been treated prior to his imprisonment had recommended that check-ups be carried out every month, he had not been given them. 18. The applicant also complained about the conditions in Zagreb Prison. He claimed that he had been placed in a cell with seven other inmates, and that a lack of fresh air in the cell had worsened his condition. There had been a squat toilet in the cell, which had not been completely private and a foul smell had emanated from it. Inmates had had to eat in their cells. There had been no lift, which had prevented him from accessing fresh air. 19. On 31 December 2014 the applicant lodged another application for the suspension of his prison sentence on health grounds, reiterating his previous arguments. He also complained that since 19 October 2014 he had not had any access to daylight and that any access to fresh air had been prevented by construction of a lift in ZPH. 20. On 5, 9, 15 and 17 January 2015 the applicant was taken to Rebro Hospital in Zagreb. A report drawn up there on 15 January indicates that there was no need for any urgent measures. It was also established that the applicant had had a high concentration of tramadol (a painkiller) and its metabolites, benzodiazepine (a class of psychoactive drug) and olanzapine (an atypical antipsychotic drug). 21. The applicant’s constitutional complaint was declared inadmissible by the Constitutional Court on 27 January 2015 on the grounds that the contested judgment had not concerned the merits of his civil rights or obligations or a criminal charge against him, and as such was not amenable to constitutional review. 22. On 18 March 2015 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request of 31 December 2014. The judge relied on previous expert opinions as well as on a further opinion of Dr S., an expert in neuropsychiatry who confirmed that the applicant had not been suffering from any acute illness, that his medical condition had not worsened, and that ZPH had the appropriate capacity for his treatment in all respects. The County Court further relied on ZPH reports dated 20 and 28 January 2015 stating that the applicant had not been following doctors’ orders, had not been taking measures aimed at his treatment and had been deliberately putting his health at risk. There was no comment on the applicant’s complaints concerning lack of access to daylight and fresh air. 23. On 27 March 2015 the applicant lodged an appeal, reiterating his arguments concerning his health but made no mention of his previous complaints about lack of access to daylight and fresh air. This appeal was dismissed by a three-judge panel of the Zagreb County Court on 21 April 2015.	0
test	001-145389	ENG	FRA	CHAMBER	2,014	CASE OF MENNESSON v. FRANCE [Extracts]	1	Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award	Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano	6. The first and second applicants were born in 1965 and 1955 respectively. The third and fourth applicants were born in 2000. They all live in Maisons-Alfort. 7. The first and second applicants are husband and wife. They were unable to have a child of their own because the second applicant is infertile. 8. After a number of unsuccessful attempts to conceive a child using in vitro fertilisation (IVF) with their own gametes, the first and second applicants decided to undergo IVF using the gametes of the first applicant and an egg from a donor with a view to implanting the fertilised embryos in the uterus of another woman. Accordingly, they went to California, where the process is legal, and entered into a gestational surrogacy agreement. The applicants specified that, in accordance with Californian law, the “surrogate mother” was not remunerated but merely received expenses. They added that she and her husband were both high earners and therefore had a much higher income than the applicants and that it had been an act of solidarity on her part. 9. On 1 March 2000 the surrogate mother was found to be carrying twins and, in a judgment of 14 July 2000, the Supreme Court of California, to which the first and second applicants and the surrogate mother and her husband had applied, ruled that the first applicant would be the “genetic father” and the second applicant the “legal mother” of any child to whom the surrogate mother gave birth within the following four months. The judgment specified the particulars that were to be entered in the birth certificate and stated that the first and second applicants should be recorded as the father and mother. 10. Twins – the third and fourth applicants – were born on 25 October 2000 and their birth certificates were drawn up in accordance with the terms stated above. 11. In early November 2000 the first applicant went to the French consulate in Los Angeles to have the particulars of the birth certificates entered in the French register of births, marriages and deaths and the children’s names entered on his passport so that he could return to France with them. 12. The applicants stated that many French couples in their situation had previously succeeded in carrying out that procedure. The consulate rejected the first applicant’s request, however, on the grounds that he could not establish that the second applicant had given birth and, suspecting a surrogacy arrangement, sent the file to the Nantes public prosecutor’s office. 13. As the US Federal Administration had issued US passports for the twins on which the first and second applicants were named as their parents, the four applicants were able to return to France in November 2000. 14. In December 2000 a preliminary investigation was carried out at the request of the public prosecutor’s office. 15. In May 2001 an investigation was commenced against a person or persons unknown for acting as intermediary in a surrogacy arrangement and in respect of the first and second applicants for false representation infringing the civil status of children. 16. On 30 September 2004, in accordance with the submissions of the Créteil public prosecutor, the investigating judge gave a ruling of no case to answer on the ground that the acts had been committed on US territory, where they were not classified as an offence, and therefore did not constitute a punishable offence in France. 17. In the meantime, on 25 November 2002, on the instructions of the public prosecutor’s office, the particulars of the birth certificates of the third and fourth applicants had been recorded in the central register of births, marriages and deaths in Nantes by the French consulate in Los Angeles. 18. However, on 16 May 2003 the Créteil public prosecutor instituted proceedings against the first and second applicants in the Créteil tribunal de grande instance to have the entries annulled and the judgment recorded in the margin of the entries thus invalidated. He observed that an agreement whereby a woman undertook to conceive and bear a child and relinquish it at birth was null and void in accordance with the public-policy principle that the human body and civil status are inalienable. He concluded that, as the judgment of the Supreme Court of California of 14 July 2000 was contrary to the French concept of international public policy and of French public policy, it could not be executed in France and that the validity of civil-status certificates drawn up on the basis of that judgment could not be recognised in France. 19. By a judgment of 13 December 2005, the Créteil tribunal de grande instance declared the action inadmissible. It found that “the entries had been recorded on the sole initiative of the public prosecutor with the purpose, since avowed, of bringing proceedings to have the entries annulled”. It concluded from this that “an action by the public prosecutor on grounds of public policy which he himself ha[d] infringed could not be deemed admissible where the provisions of Article 47 of the Civil Code on which he [relied] allowed him to verify the validity of the certificates in any respect and to reject any request for registration that would render them binding in France”. 20. The public prosecutor’s office appealed to the Paris Court of Appeal, which upheld the lower court’s judgment on 25 October 2007. The Court of Appeal also considered the public prosecutor’s action for annulment of the entries in the Nantes central register of births, marriages and deaths inadmissible as a matter of international public policy. It substituted its own grounds for that decision, however, finding that the contents of the entries were accurate as regards the judgment of the Supreme Court of California of 14 July 2000 and that the public prosecutor’s office was not disputing the fact that the judgment was binding on France or that, under Article 47 of the Civil Code, the certificates drawn up in California in accordance with the usual procedures in that State should be deemed valid. 21. On 17 December 2008 the Court of Cassation (First Civil Division) quashed that judgment on the ground that the public prosecutor’s office had an interest in bringing proceedings for annulment of the entries since, as established by the Court of Appeal, the birth certificates in question could only have been drawn up following a surrogacy arrangement. It remitted the case to the Paris Court of Appeal with a differently constituted bench. 22. By a judgment of 18 March 2010, the Paris Court of Appeal overturned the judgment remitted to it, annulled the entries pertaining to the birth certificates and ordered its judgment to be recorded in the margin of the invalidated birth certificates. 23. Regarding the admissibility of the action brought by the public prosecutor’s office, the court found that it could not be seriously alleged that the prosecution authorities had contravened public policy or disrupted peaceful family relations by requesting that the contents of an entry that they themselves had ordered be annulled, since the purpose was to frustrate the effects of a foreign civil status which they considered contrary to French public policy or to guard against an application to have the entries recorded. 24. The Court of Appeal ruled on the merits as follows: “... The birth certificates were drawn up on the basis of the Supreme Court of California’s judgment of 14 July 2000 which declared [the first applicant] the genetic father and [the second applicant] the legal mother of any child to which [the surrogate mother] gave birth between 15 August and 15 December 2000. The civil-status documents are therefore indissociable from the decision underlying them and the effectiveness of that decision remains conditional on its international lawfulness. Recognition, on national territory, of a decision delivered by a court of a State that is not bound to France by any convention is subject to three conditions: the indirect jurisdiction of the foreign court based on the connection between the court and the case; compliance of the merits and procedure with international public policy; and absence of circumvention of the law. It has been established in the present case that following a surrogacy agreement [the surrogate mother] gave birth to twins who were conceived from the gametes of [the first applicant] and of a third party and were relinquished to [the first and second applicants]. Under Article 16-7 of the Civil Code, whose provisions deriving from Law no. 94653 of 29 July 1994, and not amended by Law no. 2004-800 of 6 August 2004, are a matter of public policy by virtue of Article 16-9 of the same Code, any agreement concerning reproductive or gestational surrogacy is null and void. Accordingly, the judgment of the Californian Supreme Court, which indirectly validated a surrogacy agreement, contravenes the French concept of international public policy. Consequently, without having to ascertain whether the law has been circumvented, the entries in the French central register of births, marriages and deaths of the particulars of the US birth certificates naming [the second applicant] as the mother of the children must be annulled and the present judgment recorded in the margin of the invalidated birth certificates. [The applicants] cannot seriously claim that they have not had a fair hearing; nor do they have justifiable grounds for arguing that this measure contravenes provisions laid down in international conventions and domestic law. The concepts to which they refer, in particular the child’s best interests, cannot allow them – despite the practical difficulties engendered by the situation – to validate ex post facto a process whose illegality, established first in the case-law and subsequently by the French legislature, is currently enshrined in positive law. Furthermore, non-registration does not have the effect of depriving the two children of their US civil status or calling into question their legal parent-child relationship with [the first and second applicants] recognised under Californian law ...” 25. The applicants appealed on points of law, submitting that the children’s best interests – within the meaning of Article 3 § 1 of the International Convention on the Rights of the Child – had been disregarded and complaining of a breach of their right to a stable legal parent-child relationship and, further, of a violation of Article 8 of the Convention taken alone and in conjunction with Article 14. They submitted, further, that the decision of a foreign court recognising the legal parent-child relationship between a child and a couple who had lawfully contracted an agreement with a surrogate mother was not contrary to international public policy, which should not be confused with domestic public policy. 26. At a hearing on 8 March 2011 the advocate-general recommended quashing the judgment. He expressed the view that a right lawfully acquired abroad or a foreign decision lawfully delivered by a foreign court could not be prevented from taking legal effect in France on grounds of international public policy where this would infringe a principle, a freedom or a right guaranteed by an international convention ratified by France. He noted in particular that in Wagner and J.M.W.L. v. Luxembourg (no. 76240/01, 28 June 2007) the Court had taken account, in its examination of the case under Article 8 of the Convention, of an “effective family life” and “de facto family ties” between a single mother and the child she had adopted in Peru, without attaching any importance to the fact that the former had gone abroad in search of a legal system which would allow her to obtain what the law of her country of origin refused her. In the advocate-general’s opinion, if the same rationale were applied in the present case, even where domestic law had been circumvented, a legal relationship lawfully created abroad could not be prevented from producing the relevant legal effects where it concerned an effective family set-up and allowed it to function and evolve in normal conditions from the standpoint of Article 8 of the Convention. He also observed that the third and fourth applicants had been living in France for ten years and “[were being] brought up there by genetic and intended parents in a de facto family unit in which [they were receiving] affection, care, education, and the material welfare necessary to their development” and that this effective and affective family unit – fully lawful in the eyes of the law of the country in which it had originated – [was] “legally clandestine”, “the children having no civil status recognised in France and no parent-child relationship regarded as valid under French law”. As to whether that state of affairs infringed their “right to a normal family life”, the advocate-general replied as follows: “... At this stage two answers are possible: either – somewhat theoretically and largely paradoxically – the refusal to register the birth particulars is inconsequential and does not substantially affect the family’s daily life, which means that registration is a mere formality and it is therefore difficult to see any major obstacle in the circumstances to recording the details of certificates with such minimal legal effect that it is inconceivable that they are capable in themselves of shaking the foundations of our fundamental principles and seriously contravening public policy (since they do not intrinsically contain any mention of the nature of the birth). Alternatively, the refusal to register the birth details permanently and substantially disrupts the family’s life, which is legally split into two in France – the French couple on one side and the foreign children on the other – and the question then arises whether our international public policy – even based upon proximity – can frustrate the right to family life within the meaning of Article 8 [of the Convention] or whether, on the contrary, public policy of that kind, whose effects have to be analysed in practical terms as do those of the foreign rights or decisions that it seeks to exclude, should not be overridden by the obligation to comply with a provision of the Convention. If the second alternative is retained on the grounds that international conventions must take precedence over public policy based on a standard provided for in a legislative provision, this will not necessarily result in the automatic collapse of the barriers erected by the domestic public-policy provision in such circumstances. As long as the European Court has not given a clear ruling on the question of the lawfulness of surrogacy and allows the States to legislate as they deem fit in this area, it can be considered contrary to public policy to validate, on grounds of respect for family life, situations created illegally within the countries which prohibit them. However, where it is merely a question of giving effect on the national territory to situations lawfully established abroad – be this at the cost of deliberately disregarding the strictures of a mandatory law – there is nothing to preclude international public policy – even based upon proximity – from being overridden in order to allow families to lead a life in conformity with the legal conditions in which they were created and the de facto conditions in which they now live. Furthermore, the best interests of the child, envisaged not only under the New York Convention but also under the case-law of the Court of Human Rights which has established this criterion as a component of respect for family life, also militate in favour of this interpretation. At least this is the lesson that I think we can draw from the judgment in Wagner [and J.M.W.L.] ...” 27. However, on 6 April 2011 the Court of Cassation (First Civil Division) gave judgment dismissing the appeal on the following grounds: “ ... the refusal to register the particulars of a birth certificate drawn up in execution of a foreign court decision, based on the incompatibility of that decision with French international public policy, is justified where that decision contains provisions which conflict with essential principles of French law. According to the current position under domestic law, it is contrary to the principle of inalienability of civil status – a fundamental principle of French law – to give effect, in terms of the legal parent-child relationship, to a surrogacy agreement, which, while it may be lawful in another country, is null and void on public-policy grounds under Articles 16-7 and 16-9 of the Civil Code. Accordingly, the Court of Appeal correctly held that, in giving effect to an agreement of this nature, the “American” judgment of 14 July 2000 conflicted with the French concept of international public policy, with the result that registration of the details of the birth certificates in question, which had been drawn up in application of that judgment, should be annulled. This does not deprive the children of the legal parent-child relationship recognised under Californian law and does not prevent them from living with Mr and Mrs Mennesson in France; nor does it infringe the children’s right to respect for their private and family life within the meaning of Article 8 of the Convention ..., or the principle that their best interests are paramount as laid down in Article 3 § 1 of the International Convention on the Rights of the Child ...” 28. On 16 April 2013 the first applicant lodged an application with the Charenton-le-Pont District Court for a certificate of French nationality for the third and fourth applicants. The senior registrar sent him acknowledgement-of-receipt forms dated 31 October 2013 and 13 March 2014, indicating that the request “was still being processed in [his] department pending a reply to the request for authentication sent to the consulate of Los Angeles, California”. ...	1

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