Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant, Mr Māris Kostjučenkovs, is a Latvian national who was born in 1979. At the time of submitting his complaint he was serving a prison sentence in Daugavpils prison. The Latvian Government (“the Government”) were represented by their Agent, Mrs Inga Reine.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 1 October 2003 the Saldus District Court found the applicant guilty of burglary and sentenced him to six years and six months’ imprisonment. On 6 February 2004 the judgment came into force.

According to the applicant, immediately after his arrival at Liepāja prison he met “enemies” who threatened to subject him to ill-treatment throughout his stay at the prison. Without providing further details in his letter sent on 20 August 2004 and received by the Court on 24 August 2004, the applicant alleged that the threats had been carried out on 11 October 2003 when, inter alia, he had refused to cooperate with police investigators.

It appears that on 29 December 2003 he complained to the Specialized Public Prosecutor’s Office (“the prosecutor’s office”) and asked to be transferred to special detention facilities in Matīsa prison.

The prosecutor’s office forwarded the aforementioned complaint to the Prison Administration, which on 21 January 2004 and 4 February 2004 informed the applicant that his transfer to another prison would be examined after the entry into force of a final judgment in his criminal case. It appears that on 9 February 2004 the applicant received this decision.

At a later date the applicant asked the Prison Administration to transfer him to Jelgava prison, and on 22 February 2004 the applicant was transferred there.

In response to the Court’s request to specify his complaint concerning ill-treatment in Liepāja prison, on 3 December 2004 the applicant informed the Court, without providing any further details, that in Liepāja prison he had been ill-treated in June 2003, but that he had not retained any documents relating to the matter. He asked the Court to examine only his complaints under Article 6 of the Convention. In a letter received by the Court on 7 March 2005 the applicant alleged, without substantiating his allegations, that he had been ill-treated in Liepāja temporary detention centre, and that on 14 February 2004 his complaint in that regard had been dismissed by the prosecutor’s office.

On an unspecified date in cell no. 103 of Jelgava prison the inmates had threatened to sexually assault the applicant because he had cooperated in the past with law-enforcement authorities. He had accordingly been moved to another cell.

On 31 August 2004 he had been transferred to a cell which his fellow inmates had refused to share with him. They had asked him to leave. Accordingly, the applicant had refused to stay in the cell, for which he had received a warning from the prison staff, and had been moved to another cell.

At a later stage, he had been put into yet another cell, where he had had a dispute with a prison guard. For that incident, he had been punished on 10 February 2005 with fifteen days of solitary confinement.

After being punished, the applicant had been moved to another cell which the inmates had refused to share with him. He had then been moved to another cell.

In March 2005 he had been transferred to a cell in another part of the prison (division 5). In that cell, another inmate, S., had beaten up the applicant. On 30 March 2005 S. had been punished for that with solitary confinement. The applicant alleged that after having finished his time in solitary confinement, S. had again been put in the same cell as him.

On 5 April 2005 the applicant had been on duty in the cell. Other inmates had refused to comply with legitimate requests made by the applicant and had made him leave the cell. The prison officers had refused to transfer him to another cell, even in the event that they had accepted that the other inmates had “attempted to subject him to psychological and physical ill-treatment”. On the same day, the applicant had been punished with solitary confinement for bullying a cellmate.

After having been punished in the manner noted above, the applicant had been transferred to cell no. 211 in division 7, where the inmates had allegedly humiliated him and had taken his jacket and shoes.

On 10 February 2005 in a complaint to the Office of the Prosecutor the applicant alleged that he had refused to cooperate with investigators, and that one of the officers, K., in Jelgava prison had placed him in cells where the other inmates had physically ill-treated and bullied him.

On an unspecified date the applicant complained to the Prison Administration of the fact that he had never been transferred to cells with a peaceful environment. He also complained that he had been continuously transferred from one cell to another without any explanation or justification.

In February 2005 a prosecutor visited the applicant and asked the director of the Jelgava Prison to comment on the matter. The director had stated that he had never threatened the applicant, who had himself created problems by attempting to sexually assault fellow inmates. On 17 February 2005 the prosecutor dismissed the applicant’s complaint, noting that the allegations had not been proved and that there had not been any threats to the applicant’s life and health. The decision was subject to appeal. The letter also informed the applicant that the Office of the Prosecutor was not empowered to decide on issues concerning the transfer of prisoners from one prison to another, and that that issue was within the competence of the Prison Administration.

On 11 April 2005, after having examined the applicant’s personal file, the director of the Jelgava prison established that the applicant had had conflicts with other inmates “due to illegal activities”, for which it had not been possible to place the applicant either in a cell or in common premises. Accordingly, he proposed that the Prison Administration to transfer the applicant to another prison for safety reasons.

On 21 April 2005 the applicant was transferred to Daugavpils prison to serve his prison sentence there.

On 27 June 2005, while serving his prison sentence in Daugavpils prison, the applicant complained to the Prison Administration about the warning he had been given by way of administrative punishment on 31 August 2004 in Jelgava prison (see paragraph 10 above).

On 5 July and 17 August 2005 the Prison Administration informed the applicant that the administration of Jelgava prison had not violated either any provisions of domestic law or the internal rules of the prison. As to the applicant’s complaint of stolen belongings, the Prison Administration had obtained information from Jelgava prison to the effect that in April 2005, after the applicant’s release from solitary confinement, his belongings had been returned to him, that this had been certified by his signature, and that the applicant had not raised any complaints in that regard.

During the applicant’s stay in Jelgava prison, he had violated prison rules five times and he had been punished for having damaged prison property, insulting a prison officer and bullying other prisoners. The applicant had been transferred to another cell seven times.

While in Daugavpils prison, the applicant had been transferred several times at the request of his cellmates from one cell to another, as he had been constantly creating conflicts by trying to dominate his cellmates.

In September and October 2006 the applicant asked the Prison Administration to transfer him to serve his prison sentence in either of Liepāja or Pārlielupe prisons, arguing that that would allow him to receive visits from his underage daughter more easily and to avoid physical and verbal ill-treatment from other inmates.

On 24 October 2006 the request was granted by the Prison Administration and the applicant was transferred to Pārlielupe prison. The decision to transfer referred to the applicant’s conflicts with other inmates and to the fact that he had not been able to receive visits from his relatives.

Since 1987 the applicant had been regularly assessed by a psychiatrist owing to minor learning difficulties (viegla garīga atpalicība). In 1995 a forensic medical expert determined that the applicant was legally responsible. He was also excluded from the register of persons suffering from mental diseases. It appears that in prison the applicant was assessed by a psychiatrist and, when necessary, received psychiatric treatment.

Per a medical report from Jelgava prison, it appears that on 10 February 2005, before being placed in solitary confinement, the applicant was examined by a doctor at the request of prison officers. The doctor did not observe any injuries to the applicant. The applicant did not require medical assistance whilst in Jelgava prison on any other occasions.

On 25 April 2005, after having arrived at Daugavpils prison, the applicant was examined by a prison doctor, who observed that the applicant presented no health complaints or bodily injuries.

On 23 September 2006 the applicant asked for medical assistance as he had sustained bodily injuries – namely, two hematomas, which did not in the end require medical treatment. The applicant did not request medical assistance whilst in Daugavpils prison on any other occasions.

In October and November 2006 the applicant requested medical assistance whilst in the Central and Pārlielupe prisons, as he had been beaten by other inmates and as a result had sustained facial bruises.

The report to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 5 to 12 May 2004 notes the following:

“42. ... As was the case in 2002, a number of allegations were heard in both establishments [Daugavpils Prison and Rīga Central Prison] that prisoners had been threatened by members of the establishments’ Security Departments that they would be placed in cells with inmates prone to violence, if they refused to co-operate with the Security Department (i.e. to act as an informant or to confess to a criminal offence). In the CPT’s view, such practices can easily be described as psychological ill-treatment (see also paragraphs 48 to 50).

No allegations of physical/psychological ill-treatment or verbal abuse by staff were heard at Jelgava Prison.”

The relevant provisions of the Code of Criminal Procedure (Latvijas Kriminālprocesa Kodekss), applicable at the material time (in force until 1 October 2005), Criminal Law (Krimināllikums) and Law on the Prosecutor’s Office (Prokuratūras likums) are found in Bazjaks v. Latvia (no. 71572/01, §§ 40-42, 19 October 2010).


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant, Mr Constantin Timciuc, is a Romanian national who was born in 1956 and lives in Satu Mare.

The present application consists of complaints lodged at different times by the applicant, each complaint concerning individual sets of domestic proceedings in respect of which he addressed the Court.

From 31 October 1996 the applicant occupied the post of director of the Administration of Markets in Satu Mare, an administrative body under the authority of the mayor. At that time the mayor of Satu Mare was H.A. The applicant was also working as a part-time legal advisor for the Satu Mare Town Hall. After his arrest (see paragraph 7 below), he was released from his duties as director by a decision of the Local Council of 24 April 2003 and was dismissed from the post of legal advisor by a decision of the Mayor's Office of 9 May 2003.

From 2002, a series of articles was published in Gazeta de Nord Vest (“GNV”), a local daily newspaper, in which the applicant and the mayor were accused of having accepted bribes in their professional capacity.

On 13 January 2003 at 6 a.m. two police officers paid the applicant a visit and invited him to the police station in order to make a statement. On the same day he was taken from Satu Mare to Bucharest along with other individuals and questioned through the night, concerning alleged acts of corruption. The mayor was also under investigation.

On 14 January 2003 in the morning the prosecutor issued an arrest warrant in connection with the crimes of accepting bribes over a period of time and abuse of office (“luare de mită în formă continuată” and “abuz în seviciu în dauna intereselor publice”).

The applicant was released on 17 November 2003 by an order of the Oradea Court of Appeal.

Throughout the criminal investigations, several articles were published in GNV concerning the mayor's and the applicant's alleged acts of corruption. Most of the articles appeared in the gossip column entitled Gura Târgului, where petty facts about local public figures were published without mention of the author. The director of GNV explained to the courts dealing with the defamation claims brought by the applicant against the newspaper that those articles were the creation of all the editors, thus could not be attributed to a particular individual.

On 23 and 24 February 2005 the newspaper published a “note” claiming that it was as a result of its whistle blowing that the mayor and the applicant had been arrested.

On 22 September 2003 the Prosecutor's Office against Corruption (Parchetul Naţional Anticorupţie) decided to close the criminal proceedings concerning certain counts of bribery while nevertheless continuing them on other counts.

On 17 October 2003 the prosecutor committed the applicant, the former mayor and five other persons to trial on several counts of corruption during the mayor's mandate. The applicant was indicted for abuse of office and giving bribes (dare de mită).

The prosecutor noted that the applicant had occupied the post of director without the legal formalities - competition for the post, decision of the Local Council confirming the nomination - having been completed. It also noted that the post of legal advisor did not appear in the Town Hall's organisational chart, and that nobody in the local administration knew that the applicant was occupying it.

Furthermore, in 1999 the applicant and the mayor had agreed that the former would get his law degree in 2000 and that the latter would keep a legal advisor post blocked for him until then. In exchange, the applicant promised H.A. that he would convince his mother and uncle to sell the mayor a plot of land. On 14 March 2003 the mayor bought that land for a small price, which he never paid.

The prosecutor also noted that the applicant had leased a booth in the market to a company administered by him and owned by his son and another person, and paid for the repair of the booth from the local budget.

The Alba County Court examined the case and rendered its 79-page long decision on 28 February 2008.

The court dismissed as unfounded the accusations that the applicant had occupied his two posts in the local administration unlawfully. The court also considered unfounded the allegations concerning the sale of land to the mayor; it found that the price paid corresponded to the quality of the land and to the prices in the area, and noted that the applicant had never owned the plot in question therefore could never have offered it as a bribe; it reiterated that as the applicant had occupied his posts in the administration lawfully there was no causal link between them and the impugned sale.

Lastly, the court considered that the applicant had not broken any regulations when attributing the space in the market to his son's company.

The applicant and the co-defendants were acquitted on all counts.

The judgment was upheld, by a decision of 5 March 2009 of the Alba Iulia Court of Appeal, and by a final decision of 19 November 2009 of the High Court of Cassation and Justice (the latter decision was rendered upon an appeal on points of law lodged by the applicant and the codefendants).

I.C. published an article in the 20-26 August 2002 issue of the satirical weekly magazine Academia Caţavencu. The article mainly concerned the mayor's alleged dubious business practices, and in this context it touched upon the relationship between the mayor and the applicant.

The applicant complained about a statement in that article which read that he “was made chief of the Administration of Markets, from where meat, eggs, milk and wool rain on him every month” and that the mayor sold some booths in the market at double their value and shared the money with the applicant and another individual.

On 15 March 2004 the Satu Mare District Court acquitted the journalist and dismissed the applicant's claim for damages.

It found that the article had been written in the habitual style of a satirical paper and that the fact that the applicant had been arrested and committed to trial afterwards was a good indication for the journalists that he might have committed the alleged offences. On this point, it noted that the applicant had been arrested based on the evidence in the prosecution's file, and not exclusively on that article, as he had argued in his complaint.

Lastly, the court considered that the author of the article, through journalistic means, had aimed to make public certain negative aspects of the work of civil servants, and not to defame the applicant.

The journalist did not participate in the proceedings, despite several summonses being delivered to him by the police with an order to appear in court (mandat de aducere).

In a final decision of 11 June 2004 the Satu Mare County Court upheld the judgment. It endorsed the first-instance court's reasoning and found, in addition, that the journalist had based his article on previously published material and on a press release issued by the Prosecutor's Office concerning the mayor and the applicant.

The applicant lodged his complaint with the Court on 20 September 2004.

On 27 November 2002 an article was published in GNV about the mayor's personal real estate acquisitions during his mandate, including the construction of a villa on land bought from the applicant.

The latter lodged a criminal complaint against V.M., the director of GNV.

V.M. did not participate in the trial.

On 13 December 2004 the Satu Mare District Court dismissed the criminal complaint and the civil claim for damages. It considered that even if the mayor had in fact bought that land from the applicant's mother, and not from the applicant himself, as the evidence proved, there was nothing defamatory in the impugned statement.

In a final decision of 1 April 2005 the Satu Mare County Court upheld the judgment. It endorsed the District Court's reasoning and added that the fact that V.M. had not participated in the trial and that he had refused to publish the applicant's comments (“dreptul la replică”) had no bearing on the case. It also dismissed the applicant's arguments of a violation of his right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, as it noted that in the case under examination he had not been accused of any criminal act.

The applicant lodged his complaint with the Court on 17 May 2005.

On 13 December 2002 F.C. published an article in GNV reporting on the sale of land by the applicant's mother to the mayor, which he described as a present from the applicant to the mayor in return for the applicant's post of director.

On 16 December 2002 the applicant made a criminal complaint against the journalist.

On 20 October 2005 the Satu Mare District Court acquitted F.C. and dismissed the civil claim for damages. On 20 January 2006 the Satu Mare County Court upheld the judgment, while nevertheless giving its own interpretation of the facts and evidence in the file. In particular, it noted that all the statements of fact made in the article were proven by the evidence in the file and that not even the applicant contested them. It considered that the following value judgments had been made: that the mayor had wanted a trustworthy person on his side; and that the applicant had paid the favour back by selling the plot of land to him. The court noted that F.C. had reported on matters of public interest and that a certain degree of exaggeration was acceptable. It also noted that he had acted in good faith and had not intended to defame the applicant. Lastly, the court pointed out that the applicant had in fact been sent to trial for acts of corruption concerning the sale of that plot of land.

For all these reasons it acquitted the journalist. The court also rejected the civil claims for damages, as it considered that the applicant had not suffered any prejudice as a result of the publication.

The decision was final.

The applicant complained to the Court on 28 June 2006.

On 9 January 2003 an article appeared in the “Gura târgului” column in GNV. The relevant parts read as follows:

“Gura Târgului says that Timciuc would like to offer [the place in the market] to a favoured trader who would give him, probably as many others do, a present-fee (taxă tip cadou) of 500 euros. We do not know how this sum will appear in the balance sheets and we do not even think this will happen, but we would like to know for how much longer the traders in the market will keep the silence.”

The applicant lodged a criminal complaint against M.V. and D.C., director and editor-in-chief respectively of GNV at that time.

On 25 March 2004 the Satu Mare District Court considered that the information published was based on reliable sources and concerned acts presumably committed by the applicant; the information had been verified by the journalists before publication and their investigation was likely to have convinced them of its veracity. It also noted that shortly after, the applicant was arrested under the same suspicions.

The court also considered that information on the applicant's activity was of interest to the public at the time. The journalists' intention had not been to defame the applicant but to bring those facts to public attention. It concluded that the journalists had not acted in bad faith.

In a final decision of 28 June 2004 the Satu Mare County Court upheld the judgment. It endorsed the first-instance court's arguments and added that the fact that the applicant had later been released from custody and committed to trial only on certain counts did not have an incidence on the alleged offence of defamation committed though the publication of that article.

The applicant lodged his complaint with the Court on 20 September 2004.

On 6 January 2004 another article was published in GNV that the applicant found defamatory. On 27 September 2004 he lodged a criminal complaint against the director and the editor-in-chief of the newspaper.

On 13 December 2004 the Satu Mare District Court noted that the applicant had not respected the time-limit set by the Code of Criminal Procedure for lodging his complaint. It therefore ended the criminal proceedings.

In a final decision of 1 April 2005 the Satu Mare County Court upheld the judgment.

On 3 February 2004 the “Gura Târgului” column in GNV carried an article entitled “Murgul mânat de Costică” (“Murgul led by Costică”) in which it was alleged that the applicant had advised someone from the Administration of Markets on how to undermine the authority of the new director who had replaced the applicant in that function, and that the applicant himself was interested in undermining the new director. The applicant lodged a criminal complaint against the director of the newspaper.

On 13 May 2005 the Satu Mare District Court dismissed the complaint and the claim for damages. The court considered that it did not need to hear the defendant, who refused to participate in the trial. On the merits it found that the imputations were not serious enough to expose the applicant to a criminal sanction or to public contempt. It relied on the Court's case-law on Article 10, notably in order to ascertain the degree of exaggeration allowed to journalists. As the applicant's public image had not been damaged, the court dismissed the civil claims for damages.

In a final decision of 7 October 2005, the Satu Mare County Court dismissed the applicant's appeal.

The applicant lodged his complaint with the Court on 28 November 2005.

On 24 July 2004, another article was published in the “Gura Târgului” column in GNV, entitled “One more mogul to go” (“Cu un baron în plus”).

The following remarks were made about the applicant:

“Former chief of markets arrested and then released, having dirtied his hands with some 'dough' (fost pieţar şef arestat şi apoi eliberat... s-a murdărit pe mâini cu oareşce verzişori) ... complains that he is being politically persecuted. He crows wherever he can that all barons are free, but he is not. So, our man thinks he is so important that he acts as if he really were in the shoes of a mogul.”

The applicant lodged a criminal complaint against the director and the editor-in-chief of GNV.

On 16 December 2004 the Satu Mare District Court considered that the remarks in the article were not capable of defaming the applicant and the mention of his arrest and subsequent release did not expose him to any criminal consequence.

On 26 April 2005 the Satu Mare County Court upheld the judgment. It endorsed the District Court's reasoning and it added that the mere fact that the applicant had not been sent to trial for some of the crimes he was arrested in connection with was not enough to prove bad faith on the part of the journalists. It also noted that “Gura Târgului” was a satirical column in the newspaper where pieces were published concerning public figures from the county. The decision was final.

The applicant lodged his complaint with the Court on 15 August 2005.

On 14 November 2005 the applicant lodged a criminal complaint against G.N., who had declared in the context of a criminal trial involving the mayor and the journalist V.M. that he had heard that the applicant had requested bribes from the traders in the market. G.N. had repeated those affirmations to the press and on national TV. The applicant considered the remarks defamatory.

On 16 October 2006 the Satu Mare District Court noted that the offence of defamation had been decriminalised by Law no. 278/2006 amending the Criminal Code and acquitted G.N. Consequently, it did not decide on the civil claims for damages.

On 12 October 2006 the applicant sent a letter to the President of the District Court, asking him to order that the civil claims be decided. He considered that in choosing not to examine the civil claims, the court had denied him access to court, in violation of Article 6 of the Convention.

His letter was considered to be an appeal against the judgment and was therefore sent to the county court for examination.

On 15 December 2006 the Satu Mare County Court upheld the judgment and noted that while the criminal court was not competent to examine the civil claims, the applicant could lodge them with the civil courts.

It appears from the documents in the file that the applicant did not do so. However, after the Constitutional Court's decision nr. 62/2007 (see paragraph 97 from the “Relevant domestic law” part below), the applicant again brought an action for defamation against N.G. and sought damages. It seems that on 13 November 2006 the Satu Mare District Court acquitted G.N. because the act complained of was not punishable by the criminal law and the judgment was upheld on 12 January 2007 by the County Court. The applicant did not submit copies of those decisions to this Court.

It appears that the applicant did not lodge a complaint with the civil courts.

The applicant submitted his complaint to the Court on 8 January 2007.

On 15 May 2006 the applicant filed a criminal complaint for defamation against the same G.N., whom he accused of having called him “dumb” (tâmpit) in his address to the court in a criminal trial where G.N. appeared as a witness.

On 13 November 2006 the Satu Mare District Court acquitted the defendant as the facts were no longer punishable by the criminal law. Accordingly it did not decide on the civil claims. The judgment was upheld on 26 January 2007 by the Satu Mare County Court.

The applicant did not provide the full text of those decisions. It appears, however, that he did not seek damages with the civil courts.

On 15 February 2007 the applicant lodged his complaint with the Court.

The applicant complained in 2004 about several articles published in GNV which he found defamatory. He lodged his complaint against C.D., the director of the newspaper at that time.

On 16 October 2006 the Satu Mare District Court noted that defamation had been decriminalised by Law no. 278/2006 and therefore acquitted C.D. and left the civil claims unresolved.

On 15 December 2006 the Satu Mare County Court upheld the judgment and noted that the applicant could have pursued the civil claims before a civil court, which he chose not to do. The decision was final.

On 8 January 2007 the applicant brought the complaint to the Court.

On 10 October 2002 the applicant lodged a criminal complaint against an expert accountant who had been appointed by the court in the criminal trial against the applicant to assess some investments made by the local authorities.

On an unspecified date the prosecutor dismissed the complaint. The applicant objected, but the courts upheld the prosecutor's decision. The final decision in the case was that of 1 October 2004 by the Satu Mare County Court.

The applicant did not provide information on whether he sought civil damages in the proceedings.

He lodged his complaint with the Court on 17 November 2004.

The applicant filed a criminal complaint against S.T., the current director of the Administration of Markets in Satu Mare, accusing him of several illegalities in his activity. On 27 February 2007 the Chief Prosecutor attached to the Satu Mare District Court upheld the prosecutor's decision not to prosecute S.T. The applicant complained to the courts, but his complaint was dismissed on 15 June 2007 by the Satu Mare District Court as out of time. The appeal was also rejected on 9 August 2007 by the County Court (final decision).

The applicant lodged his complaint with the Court on 15 September 2007.

G.N. and S.I. were witnesses in the criminal trial against the applicant. In the proceedings before the courts they withdrew the initial statements they had made to the prosecutor, which were unfavourable to the applicant.

In the autumn of 2003, the applicant filed a criminal complaint of false testimony against them.

It appears that on 7 February 2006 the prosecutor attached to the Satu Mare County Court decided not to prosecute and that his decision was upheld by the Prahova County Court in a final decision of 29 October 2007. The applicant did not submit copies of the court decisions delivered in the case.

He lodged his complaint with the Court on 15 January 2008.

On 10 October 2005 the applicant lodged a criminal complaint against three judges from the Satu Mare County Court. He accused them of having arrested him and extended his detention unlawfully and of having behaved abusively towards him, in the knowledge that he had not committed any crime.

On 21 February 2008 the prosecutor attached to the High Court of Cassation and Justice decided not to prosecute as he considered that the judges had not committed any of the alleged crimes.

The applicant objected and brought his case before the courts.

On 19 September 2008 the Oradea Court of Appeal upheld the prosecutor's decision, and on 12 December 2008 the High Court upheld the judgment (final decision).

The applicant lodged his complaint with the Court on 11 May 2009.

The applicant lodged a criminal complaint against V.M., who had allegedly threatened him with “physical correction” during a court hearing on 10 February 2005. The applicant claimed that he had understood this remark to be a threat that V.M. would beat him up. There is no indication in the file as to whether the applicant sought civil damages from V.M.

On 6 May 2005 the Negreşti Oaş District Court dismissed the complaint, as it considered that the deed committed by V.M. was not severe enough to create in the applicant a “legitimate and serious fear”, the element required in order for the deed to constitute the offence of threatening behaviour. It also noted that there was a preexisting conflict between the applicant and V.M. caused by the numerous criminal proceedings they were both involved in.

In a final decision delivered on 7 October 2005 the Satu Mare County Court upheld the judgment.

On 28 November 2005 the applicant lodged his complaint with the Court.

On an unspecified date, the applicant filed an action against the Mayor's Office, seeking reinstatement to his former positions: part-time legal advisor at the Town Hall and Director of the Administration of Markets, and payment of his salary for 13 January 2003 to 30 January 2006.

On 31 May 2006 the Satu Mare County Court noted that the administrative decision ordering the applicant's dismissal from the post of legal advisor was null and void as it had not been issued in conformity with the legal requirements.

However, it noted that during his preventive detention he was not entitled to receive a salary, and that for the damage allegedly suffered during that time he could lodge an action against the State for unlawful detention. Therefore he was not entitled to payment of his salary for that period.

The court also considered that from 17 November 2003, when he was released from detention, until 30 January 2006, when he lodged his present action, the applicant had been inactive and had not returned to work. Therefore, he was not entitled to payment of salary for that period.

Lastly, the court noted that the applicant had been released from the post of director by a decision of the Local Council of 24 April 2003 and that it was therefore for the administrative court to deal with that part of the request.

In sum, the court ordered the Mayor's Office to reinstate the applicant as legal advisor and to pay his salary from 30 January 2006 until effective reinstatement and sent his complaint seeking to be reinstated to his former position as director to the administrative section of the Satu Mare County Court.

On 11 October 2006 the Oradea Court of Appeal upheld the judgment, on appeals lodged by both parties.

On 7 November 2006 the applicant was reinstated as legal advisor by order of the Mayor's Office.

On 4 December 2006 the Oradea Court of Appeal ordered the Ministry of Finances to pay the applicant 500,000 Romanian Lei for illegal arrest and noted that the period spent in detention would count as time spent in work for the purposes of calculating the applicant's pension.

On 8 January 2007 the applicant lodged his complaint with the Court. He submitted no further information on the outcome of the case before the administrative courts.

On 20 July 2007 the applicant lodged a criminal complaint against I.I., the current mayor of Satu Mare, for abuse of office, accusing him of not having complied with the decisions ordering the applicant's reinstatement and payment of salary.

On 14 March 2007 the prosecutor attached to the Satu Mare District Court decided not to prosecute, noting that the mayor had appealed against the 31 May 2006 judgment ordering the reinstatement and that on 11 August 2006 the Oradea Court of Appeal had suspended the enforcement until the appeal had been examined. Therefore, I.I. had been right not to enforce the decisions.

On 27 April 2007 the chief prosecutor upheld the prosecutor's decision. The prosecutor's decisions were upheld by the District Court on 16 November 2007 and by the County Court in a final decision of 11 January 2008, with the same reasoning as that set out in the prosecutor's initial decision. The County Court also noted that on 7 November 2006, after the appeal proceedings had ended, the applicant had been reinstated.

The applicant lodged his complaint with the Court on 15 January 2008.

The relevant provisions of the Civil and Criminal Codes concerning insult and defamation and liability for paying damages in force at the material time are described in Barb v. Romania, no. 5945/03, §§ 19-20, 7 October 2008.

The Criminal Code has been amended repeatedly and in 2006 the Articles on insult and defamation were repealed (Law no. 278/2006; for details, see Cuc Pascu v. Romania, no. 36157/02, §§ 12-14, 16 September 2008).

However, in decision no. 62 of 18 January 2007 the Constitutional Court declared unconstitutional the removal of the Articles on insult and defamation from the Criminal Code.


The applicant is a Greek citizen born in 1921. He is an honorary vice-president of the State Audit Council (Ελεγκτικό Συνέδριο) and resides in Athens.

The facts of the case as submitted by the parties may be summarised as follows.

On 1 July 1984 the post of vice-president of the State Audit Court was declared vacant. At that time the applicant was the senior judge. The post remained vacant for three years and was filled by the applicant on 30 July 1987.

On 28 November 1988 the applicant brought an action for pecuniary and non-pecuniary damages against the State before the First Instance Administrative Court of Athens. In particular, the applicant claimed that he should have been promoted soon after the post was declared vacant and that the delay of the Administration to promote him to the post of vice-president of the State Audit Court caused him pecuniary damage and raised suspicions as to his abilities.

On 6 October 1989 the Court granted the applicant’s claim insofar as it concerned non-pecuniary damage. The Court dismissed the remainder of the applicant’s action on the ground that he had no enforceable claim to the vacant post.

On 24 November and 29 December 1989 respectively the applicant and the State appealed against this decision.

On 17 May 1990 the Athens Administrative Court of Appeal rejected the applicant’s appeal and annulled the decision of the First Instance Administrative Court. The Court of Appeal referred in particular to the discretionary powers by which the competent administrative authorities organised their activity.

On 15 July 1990 the applicant appealed to the Council of State.

On 23 January 1995 the First Chamber of the Council of State composed of five judges decided to refer the case to a Chamber composed of seven judges.

On 27 November 1995 the First Chamber of the Council of State composed of seven judges decided to refer the case to the Plenary because of the important issues it raised.

On 17 October 1997 the Council of State sitting in Plenary rejected the applicant’s appeal. In particular the Council of State held that it was beyond the competence of the Court of Appeal to decide whether the decision to promote the applicant should be backdated. Therefore the Court of Appeal was right in rejecting the applicant’s appeal. The applicant obtained a copy of that decision in January 1998.


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza

The applicant, Mr David Lloyd, is a British national who was born in 1938 and lives in Wirral. He was represented before the Court by Mr Stephen Cussack, Wirral Citizens Advice Bureau. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant’s wife died on 9 September 1987, leaving two children born in 1975 and 1981. His claim for widows’ benefits was made in November 2002 and was rejected on 26 August 2003 on the ground that he was not entitled to widows’ benefits because he was not a woman. The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under United Kingdom law.

The applicant was not in receipt of child benefit at the time of his claim.

The domestic law relevant to this application is set out in Willis v. the United Kingdom, no. 36042/97, §§ 1426, ECHR 2002-IV and Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


Preliminary objection joined to merits and dismissed (exhaustion of domestic remedies);Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Remainder inadmissible;Non-pecuniary damage - award

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1974 and lived in Zhytomyr.

At about 11 p.m. on 6 September 2002 two police officers, responding to a call from the applicant's girlfriend's sister, brought the applicant to the Zhytomyr Detoxification Centre for treatment of severe alcohol intoxication. A medical employee who examined him recorded that the applicant had several abrasions on his buttocks.

At 7.58 a.m. on 7 September 2002 the applicant was released.

Later that day he was arrested and detained by the police on a charge of disobeying a police officer. Two records of his arrest were drawn up by two different police officers, both indicating the time of the arrest as 6 p.m. At an unspecified time on the same date a doctor certified that the applicant had no bodily injuries.

On the same date an ambulance was called to the police station in connection with the deterioration of the applicant's health and apparent loss of consciousness. The ambulance records note that the call was registered at 4.05 p.m. Upon arriving at the police station, the ambulance team found the applicant conscious but in a very agitated state and trembling. In addition, he had haematomas on his buttocks. He was diagnosed as suffering from alcohol withdrawal, given medication and left in the police station.

On 9 September 2002 the Korolyovsky District Court of Zhytomyr convicted the applicant of disobeying a police officer and ordered his detention for ten days. At an unspecified time during his detention the applicant was questioned as a witness concerning the murder of a Mr K., whose body had been found on 7 September 2002 in the vicinity of the applicant's house. On 9 September 2002 he confessed to the murder.

On 10 September 2002 the applicant, who had still not been officially charged, participated as a witness in a reconstruction of the crime scene. In the course of the reconstruction he showed in detail how he had killed Mr K.

On the same date an ambulance was called again and the applicant was transferred to the detoxification centre, where he was diagnosed as suffering from “psychotic and behavioural disorders, [a] state of delirious withdrawal from alcohol, [and] hallucinations”. In addition, he was found to have sustained haemorrhages on his shoulders, legs and buttocks. On 13 September 2002 the applicant was returned to the police station.

By 20 September 2002 the applicant had obtained a lawyer in connection with possible murder charges against him, had retracted his confession – alleging that it had been given under duress – and had denied any involvement in the killing of Mr K.

At 6 p.m. on 20 September 2002 the applicant was released following the expiration of the term of his detention.

At 8.10 p.m. on the same day the applicant was arrested again on a charge of having committed a breach of the peace (in particular, for urinating in public and swearing) and, pursuant to a court order issued on 23 September 2002, was again remanded in custody for eight days starting from the date of his arrest.

On 28 September 2002 he was released.

On 1 October 2002 the applicant underwent a medical assessment in the course of which he was found to be suffering from two surface wounds (on the left shoulder and the left buttock) which qualified as minor bodily injuries.

On 2 October 2002, following complaints by his girlfriend about his aggressive behaviour, the applicant was arrested for the third time on a charge of disobeying a police officer and remanded in custody for ten days by a court order issued on 3 October 2002. On 12 October 2002 the applicant was released.

On 15 October 2002 the applicant was admitted to hospital on account of his complaints of general weakness, vertigo, pain in the legs and chest, unpleasant sensations inside his anus, constipation and coughing. Based on his complaints, he was diagnosed as suffering from a combination of haemorrhoids, ulcers, several other digestive disorders, pyelonephritis, asthenia and the after-effects of bodily contusions. The applicant remained in hospital until 23 October 2002.

In December 2002 the criminal proceedings against the applicant were discontinued for want of evidence of his involvement in the murder of Mr K.

In November 2003 the applicant underwent a fresh medical assessment in respect of his injuries sustained in September 2002. Following an assessment of the medical documents and the applicant's state of health at the material time, the panel of experts conducting the assessment concluded that it was not improbable that on or around 8 September 2002 he had sustained minor bodily injuries (bruises and abrasions on his buttocks, shoulders and legs). However, noting the lack of detail in the relevant records, the experts were unable to assess the means by which the injuries had been inflicted. They further found no objective evidence of any mechanical intrusion into the applicant's anus, no causal connection between the above injuries and other health disorders (including the applicant's haemorrhoids, digestive and kidney problems, which had been found to have probably developed prior to his detention) and noted that the diagnosis of 15 October 2002 concerning the after-effects of bodily contusions had been subjective and unsupported by any evidence.

In January 2004 the applicant was examined by specialists from the State Institute for Rehabilitation of the Disabled, who refused to grant him invalid status. However, the panel of specialists diagnosed him as suffering from a number of chronic physical conditions (including haemorrhoids, ulcers, hepatitis and myocardiopathy) as well as from the “after-effects of a head injury sustained in 2002 in the form of arachnoiditis” (inflammation of a membrane surrounding and protecting the nerves of the central nervous system).

The applicant was subsequently awarded invalidity status on account of the above illnesses.

On 27 October 2007 the applicant died of acute heart and pulmonary failure aggravated by bronchopneumonia.

On 24 September and 9 October 2002 Mrs Kovalchuk complained to the Zhytomyr Regional Prosecutor's Office that between 7 and 9 September 2002 her son had been ill-treated by police officers in order to extract a confession of Mr K.'s murder from him. In particular, they had beaten him, hung him from a pipe while handcuffed and inserted a truncheon into his anus.

On 15 October 2002 the acting chief of the Zhytomyr Department of Interior rejected her complaints as unsubstantiated. He noted, in particular, that the applicant had given a vague and inconsistent account of the purported ill-treatment and was unable to identify the police officers involved or the location in which he had supposedly been ill-treated.

On 25 November 2002 the chief of the Zhytomyr Department of the Interior, having conducted a further investigation following Mrs Kovalchuk's subsequent complaints, discovered that the applicant's and the police officers' respective accounts of events could not be reconciled. In particular, according to the applicant, four unidentified police officers had severely beaten him and stuck objects into his anus, demanding that he confess to the killing. The investigator in Mr K.'s case admitted having questioned the applicant about the killing, but denied that any pressure had been applied to him. The Department transferred the investigation materials to the prosecutor's office for further enquiries.

On several occasions (25 December 2002, 31 March 2003 and 2 September 2003) the Korolyovsky District Prosecutor's Office refused to institute criminal proceedings in respect of the applicant's complaints of illtreatment, having found no evidence of any wrongdoing by the police.

These decisions were subsequently annulled by the supervising prosecutorial authorities (on 14 March, 14 May and 3 September 2003), finding that: the enquiries had been insufficient; various important witnesses had not been questioned; inconsistencies between various testimonies had not been reconciled; medical evidence had not been duly collected and examined; and no plausible explanation for the applicant's injuries had been proposed.

On 11 September 2003 the Korolyovsky District Prosecutor's Office again refused to institute criminal proceedings. The applicant was not informed about this decision.

On 14 October 2004, following enquiries made by Mrs Kovalchuk, she obtained a full copy of the decision of 11 September 2003 and subsequently appealed against it on the applicant's behalf to the Bogunsky District Court of Zhytomyr.

On 9 November 2005 the Bogunsky District Court allowed the applicant's claims and set aside the decision of 11 September 2003. It found, in particular, that the investigation had failed to analyse the conclusions of the medical assessment completed in November 2003 and to question several important witnesses (specifically, the applicant's fellow inmates).

On 27 December 2005 the Korolyovsky District Prosecutor's Office took a fresh decision not to institute criminal proceedings.

On 16 November 2006 the Bogunsky District Court set aside the above decision, having found that its previous instructions had not been properly followed.

On 23 June 2008, having questioned several additional witnesses, the Korolyovsky District Prosecutor's Office decided that the applicant's injuries had been caused by a fall related to an epileptic seizure resulting from the excessive consumption of alcohol.

On 12 August 2008 the Bogunsky District Court set aside this decision, having found that several important witnesses (specifically, the applicant's fellow inmates) had still not been questioned.

On 18 September and 30 November 2008 the prosecutor's office took fresh decisions not to institute criminal proceedings into the applicant's alleged ill-treatment which were set aside by the supervising prosecutors on 30 September and 8 December 2008 respectively, each decision making reference to there having been insufficient investigation of the matter.

On 26 January 2009 a fresh decision not to institute criminal proceedings was taken, relying, in particular, on the impossibility of collecting further evidence because of the death or relocation of numerous witnesses, the inability of the remaining witnesses to recall details and the destruction of relevant documentary records.

On 30 March 2009 the Bogunsky District Court set aside this decision following an appeal by Mrs Kovalchuk. The court noted, in particular, that the case file contained two reports concerning the applicant's arrest on 7 September 2002 which had been made by two different police officers and instructed the investigator to clarify the situation.

On 1 October 2009 the Bogunsky District Court annulled a further decision of the prosecutor's office not to institute criminal proceedings, dated 28 May 2009, having found that the situation relating to the arrest reports had not been clarified and that no determination of why the applicant had been questioned about Mr K.'s murder during his detention and the circumstances in which he had suffered bodily injuries had taken place.

On 26 November 2009 a fresh decision was taken not to institute criminal proceedings. The investigating authorities noted, inter alia, that the applicant's accounts of the relevant events had been inconsistent and that on several occasions he had changed his story. In particular, he had initially alleged that he had been beaten by a rubber truncheon but subsequently insisted that the officers had punched and kicked him. In addition, on 17 March 2003 he had asserted that he had no claims against the police at all and did not share his mother's view about the necessity of an investigation.

On 12 March 2010 the Bogunsky District Court upheld the above decision.

Mrs Kovalchuk appealed, noting, in particular, that in addition to its failure to establish those responsible for her son's injuries, the investigation had failed to reconcile a number of factual inconsistencies. For instance, according to the relevant records, an ambulance was first called to the police station to assist the applicant at 4.05 p.m. on 7 September 2002, whereas according to both the reports concerning the applicant's arrest and the court decision of 9 September 2002, the applicant had not been arrested until 6 p.m. Furthermore, according to statements by Mrs T.I., the applicant's acquaintance, she had already seen the applicant in the police station at noon on 7 September 2002 and had also witnessed an ambulance arriving to help him twice on that day.

On 31 March 2010 the Zhytomyr Regional Court of Appeal quashed the Bogunsky District Court's ruling, set aside the decision of 26 November 2009 and remitted the complaint of ill-treatment for further investigation. The court noted that previous instructions of judicial authorities had not been followed and ordered that the investigation determine, in particular: (i) where, in what circumstances, and by whom bodily injuries had been inflicted on the applicant “having regard to the fact that on 7 September 2002 he had been examined by a doctor who had not recorded any injuries”; (ii) why there were two different reports on the applicant's arrest; (iii) why the applicant had been questioned as a witness about Mr K.'s murder while detained in custody for an unrelated administrative offence; and (iv) why he had confessed to a killing of which he had been innocent. The Court of Appeal also ordered that the statements of Mrs T.I. concerning the circumstances in which she had seen the applicant on 7 September 2002 be re-examined.

According to the case file, the investigation of the applicant's complaint of ill-treatment is currently pending.

The relevant domestic law can be found in the judgment in the case of Kozinets v. Ukraine (no. 75520/01, §§ 39-42, 6 December 2007).


Violation of Art. 8;Violation of Art. 14+8;Violation of Art. 14+P1-1;Non-pecuniary damage - finding of violation sufficient

Alexandra Marckx was born on 16 October 1973 at Wilrijk, near Antwerp; she is the daughter of Paula Marckx, a Belgian national, who is unmarried and a journalist by profession.

Paula Marckx duly reported Alexandra’s birth to the Wilrijk registration officer who informed the District Judge (juge de paix) as is required by Article 57 bis of the Belgian Civil Code ("the Civil Code") in the case of "illegitimate" children.

On 26 October 1973, the District Judge of the first district of Antwerp summoned Paula Marckx to appear before him (Article 405) so as to obtain from her the information required to make arrangements for Alexandra’s guardianship; at the same time, he informed her of the methods available for recognising her daughter and of the consequences in law of any such recognition (see paragraph 14 below). He also drew her attention to certain provisions of the Civil Code, including Article 756 which concerns "exceptional" forms of inheritance (successions "irrégulières").

On 29 October 1973, Paula Marckx recognised her child in accordance with Article 334 of the Code. She thereby automatically became Alexandra’s guardian (Article 396 bis); the family council, on which the sister and certain other relatives of Paula Marckx sat under the chairmanship of the District Judge, was empowered to take in Alexandra’s interests various measures provided for by law.

On 30 October 1974, Paula Marckx adopted her daughter pursuant to Article 349 of the Civil Code. The procedure, which was that laid down by Articles 350 to 356, entailed certain enquiries and involved some expenses. It concluded on 18 April 1975 with a judgment confirming the adoption, the effect whereof was retroactive to the date of the instrument of adoption, namely 30 October 1974.

At the time of her application to the Commission, Ms. Paula Marckx’s family included, besides Alexandra, her own mother, Mrs. Victorine Libot, who died in August 1974, and a sister, Mrs. Blanche Marckx.

The applicants complain of the Civil Code provisions on the manner of establishing the maternal affiliation of an "illegitimate" child and on the effects of establishing such affiliation as regards both the extent of the child’s family relationships and the patrimonial rights of the child and of his mother. The applicants also put in issue the necessity for the mother to adopt the child if she wishes to increase his rights.

Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth: whilst the birth certificate recorded at the registry office suffices to prove the maternal affiliation of a married woman’s children (Article 319 of the Civil Code), the maternal affiliation of an "illegitimate" child is established by means either of a voluntary recognition by the mother or of legal proceedings taken for the purpose (action en recherche de maternité).

Nevertheless, an unrecognised "illegitimate" child bears his mother’s name which must appear on the birth certificate (Article 57). The appointment of his guardian is a matter for the family council which is presided over by the District Judge.

Under Article 334, recognition, "if not inserted in the birth certificate, shall be effected by a formal deed". Recognition is declaratory and not attributive: it does not create but records the child’s status and is retroactive to the date of birth. However, it does not necessarily follow that the person effecting recognition is actually the child’s mother; on the contrary, any interested party may claim that the recognition does not correspond to the truth (Article 339). Many unmarried mothers - about 25 % according to the Government, although the applicants consider this an exaggerated figure - do not recognise their child.

Proceedings to establish maternal affiliation (action en recherche de maternité) may be instituted by the child within five years from his attainment of majority or, whilst he is still a minor, by his legal representative with the consent of the family council (Articles 341a-341c of the Civil Code).

The establishment of the maternal affiliation of an "illegitimate" child has limited effects as regards both the extent of his family relationships and the rights of the child and his mother in the matter of inheritance on intestacy and voluntary dispositions.

In the context of the maternal affiliation of an "illegitimate" child, Belgian legislation does not employ the concepts of "family" and "relative". Even once such affiliation has been established, it in principle creates a legal bond with the mother alone. The child does not become a member of his mother’s family. The law excludes it from that family as regards inheritance rights on intestacy (see paragraph 17 below). Furthermore, if the child’s parents are dead or under an incapacity, he cannot marry, before attaining the age of twenty-one, without consent which has to be given by his guardian (Article 159 of the Civil Code) and not, as is the case for a "legitimate" child, by his grandparents (Article 150); the law does not expressly create any maintenance obligations, etc., between the child and his grandparents. However, certain texts make provision for exceptions, for example as regards the impediments to marriage (Articles 161 and 162). According to a judgment of 22 September 1966 of the Belgian Court of Cassation (Pasicrisie I, 1967, pp 78-79), these texts "place the bonds existing between an illegitimate child and his grandparents on a legal footing based on the affection, respect and devotion that are the consequence of consanguinity ... (which) creates an obligation for the ascendants to take an interest in their descendants and, as a corollary, gives them the right, whenever this is not excluded by the law, to know and protect them and exercise over them the influence dictated by affection and devotion". The Court of Cassation deduced from this that grandparents were entitled to a right of access to the child.

A recognised "illegitimate" child’s rights of inheritance on intestacy are less than those of a "legitimate" child. As appears from Articles 338, 724, 756 to 758, 760, 761, 769 to 773 and 913 of the Civil Code, a recognised "illegitimate" child does not have, in the estate of his parent who dies intestate, the status of heir but solely that of "exceptional heir" ("successeur irrégulier"): he has to seek a court order putting him in possession of the estate (envoi en possession). He is the sole beneficiary of his deceased mother’s estate only if she leaves no relatives entitled to inherit (Article 758); otherwise, its maximum entitlement - which arises when his mother leaves no descendants, ascendants, brothers or sisters – is three-quarters of the share which he would have taken if "legitimate" (Article 757). Furthermore, his mother may, during her lifetime, reduce that entitlement by one-half. Finally, Article 756 denies to the "illegitimate" child any rights on intestacy in the estates of his mother’s relatives.

Recognised "illegitimate" children are also at a disadvantage as regards voluntary dispositions, since Article 908 provides that they "may receive by disposition inter vivos or by will no more than their entitlement under the title ‘Inheritance on Intestacy’".

Conversely, the mother of such a child, unless she has no relatives entitled to inherit, may give in her lifetime or bequeath to him only part of her property. On the other hand, if the child’s affiliation has not been established, the mother may so give or bequeath to him the whole of her property, provided that there are no heirs entitled to a reserved portion of her estate (héritiers réservataires). The mother is thus faced with the following alternative: either she recognises the child and loses the possibility of leaving all her estate to him; or she renounces establishing with him a family relationship in the eyes of the law, in order to retain the possibility of leaving all her estate to him just as she might to a stranger.

If the mother of a recognised "illegitimate" child remains unmarried, she has but one means of improving his status, namely, "simple" adoption. In such cases, the age requirements for this form of adoption are eased by Article 345 para. 2, sub-paragraph 2, of the Civil Code. The adopted child acquires over the adopter’s estate the rights of a "legitimate" child but, unlike the latter, has no rights on intestacy in the estates of his mother’s relatives (Article 365).

Only legitimation (Articles 331-333) and legitimation by adoption (Articles 368-370) place an "illegitimate" child on exactly the same footing as a "legitimate" child; both of these measures presuppose the mother’s marriage.

Belgium has signed, but not yet ratified, the Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children, which was prepared by the International Commission on Civil Status and entered into force on 23 April 1964. Neither has Belgium yet ratified, nor even signed, the Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock, which was concluded within the Council of Europe and entered into force on 11 August 1978. Both of these instruments are based on the principle "mater semper certa est"; the second of them also regulates such questions as maintenance obligations, parental authority and rights of succession.

However, the Belgian Government submitted to the Senate on 15 February 1978 a Bill to which they referred the Court in their memorial of 3 July 1978 and subsequently at the hearings on 24 October. The official statement of reasons accompanying the Bill, which mentions, inter alia, the Conventions of 1962 and 1975 cited above, states that the Bill "seeks to institute equality in law between all children". In particular, maternal affiliation would be established on the mother’s name being entered on the birth certificate, which would introduce into Belgian law the principle "mater semper certa est". Recognition by an unmarried mother would accordingly no longer be necessary, unless there were no such entry. Furthermore, the Civil Code would confer on children born out of wedlock rights identical to those presently enjoyed by children born in wedlock in the matter of inheritance on intestacy and voluntary dispositions.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Alvina Gyulumyan;Corneliu Bîrsan;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

The applicant was born in 1964 and lives in Liepāja.

On 1 October 1999 the applicant was arrested on suspicion of aggravated robbery.

On 11 April 2002 the Kurzeme Regional Court (Kurzemes apgabaltiesa) convicted the applicant of aggravated robbery and sentenced him to six years and one month’s imprisonment.

On 5 June 2002, on the applicant’s appeal, the Criminal Chamber of the Supreme Court (Augstākās tiesas Krimināllietu lietu palāta) upheld in substance the judgment of the first-instance court.

On 20 September 2002 the Senate of the Supreme Court (Augstākās tiesas Senāts) dismissed the applicant’s appeal on points of law in a preparatory meeting (rīcības sēde).

On 23 August 2004 the Jelgava Court (Jelgavas tiesa) decided to apply a pre-release scheme to the applicant and ordered his release before the end of his sentence.

On 18 May 2000 the applicant’s wife gave birth to their son.

On 16 November 2000 and 20 November 2001 the applicant received two short-term visits from his wife. He also received four short-term visits from his aunt during his pre-trial detention.

The applicant was able to receive long-term visits while serving his sentence, starting from 5 October 2002. Until his release on 23 August 2004 the applicant received six long-term visits from his wife; each of these visits lasted for about sixteen hours.

According to the Government, the applicant first complained about his dental care on 29 June 2000. A prison doctor prescribed pain relieving medication (Ibuprofen) and advised him to consult a dentist.

On 16 August 2000 the applicant complained of toothache to the prison doctor, who prescribed other pain relieving medication (Analgin) and advised him to consult a dentist.

On 18 August 2000 the applicant saw a dentist, who discovered that he had dental caries in one tooth. During his examination, the dentist noted that the applicant had two missing teeth and the remains of twenty-one damaged teeth. All in all, he had eight just healthy teeth. The applicant refused the recommended treatment.

On 10 August 2001 the applicant again complained of toothache to the prison doctor, who prescribed pain relieving medication (Analgin).

On 19 September 2001 the applicant was examined by a psychiatrist, who considered that the applicant’s complaints of headaches were related to his dental cavity problems. The doctor advised him to consult a dentist.

On 25 October 2001 the applicant saw the dentist, who diagnosed him as suffering from periodontal disease (loose teeth). Subsequently, four teeth were extracted.

On 26 November 2001 the applicant lodged a complaint with the General Inspectorate (Ģenerālinspektora birojs), which at the material time was the institution in charge of organising the execution of criminal sentences and the probation system and was supervised by the Ministry of Justice. His complaint was that he had not been receiving appropriate dental care and that he needed dental prosthetics. The applicant’s complaint was transferred to the Prisons Administration (Ieslodzījuma vietu pārvalde) for examination.

On 11 December 2001 the Prisons Administration informed the applicant that, following his requests, a dentist had made several extractions. This service had been free of charge. It had been established that the applicant had eight teeth left. It was presumed that he had not taken appropriate care of his teeth prior to his detention. The applicant was informed that dental prosthetics could be provided only at his own expense and that the Ministry of Finance did not allocate any funds to the Prisons Administration or prisons for this purpose.

On 27 December 2001 the applicant submitted a complaint to the Chancery of the President of Latvia (Latvijas Valsts prezidenta kanceleja) about his dental care. The applicant’s complaint was transferred to the Ministry of Justice and from there to the General Inspectorate for examination, which transferred the complaint to the Prisons Administration.

On 12 February 2002 the Prisons Administration informed the applicant that he had already received an answer on 11 December 2001 as regards his complaint of 26 November 2001. It reiterated that dental prosthetics could not be provided free of charge in prisons.

Until 14 May 2001 the detention of persons in remand prisons was governed by an instruction, which had been approved by the Minister of the Interior on 30 April 1994.

Rule 26 of that instruction provided that detainees placed in remand prisons were allowed to receive short-term visits upon approval from the authority conducting the criminal proceedings (that is, either from the investigating authorities or the court, depending on the stage reached in the proceedings).

Rule 32 of that instruction stipulated that detainees placed in remand prisons could receive one short-term visit (up to one hour) per month from family members and other persons only with written permission from the person or body dealing with the particular criminal case.

In 2001 the Ministry of Justice took over the supervision of penitentiary institutions from the Ministry of the Interior.

On 9 May 2001 the Minister of Justice issued an order enacting a transitional instruction on the detention of persons in remand prisons. The instruction entered into force on 14 May 2001.

Rule 25 of the transitional instruction provided that detainees could receive one short-term visit per month with written permission from the authority dealing with the particular criminal case.

The transitional instruction of the Minister of Justice remained applicable until 1 May 2003, when Cabinet Regulation no. 211 (2003) took effect. Subsequently, Cabinet Regulation no. 288 (2006) replaced it as of 20 April 2006. Finally, the Law on Custody Procedure (Apcietinājumā turēšanas kārtības likums) took effect on 18 July 2006.

On 19 December 2001 the Constitutional Court (Satversmes tiesa) delivered its judgment in case no. 2001-05-03 on the compliance of the internal regulations on remand prisons (issued under the authority of the transitional instruction of the Minister of Justice) with the Constitution (Satversme). The Constitutional Court found, among other things, that the transitional instruction as well as the internal regulations on remand prisons had not been made public and that they were internal normative acts (iekšējie normatīvie akti). As a result, it concluded that some of the rules contained in the internal regulations on remand prisons were unconstitutional, but not those concerning short-term visits.

On 23 April 2009 the Constitutional Court delivered its judgment in case no. 2008-42-01 on whether the restriction of the duration of short-term visits to one hour for detainees, which emanated from the Law on Custody Procedure (in effect since 18 July 2006), was in compliance with the Constitution.

Having examined the Court’s case-law, the practice of several member States of the Council of Europe, and the European Prison Rules, the Constitutional Court found, on the one hand, that there was no obligation for States to ensure long-term visits for detainees and that the restriction to receive such visits was compatible with the Constitution, namely, with the right to private and family life contained therein. On the other hand, the Constitutional Court held that the blanket one-hour restriction on monthly short-term visits was not proportionate and thus not compatible with the Constitution. The restriction was abrogated as of 1 December 2009 and, since 11 August 2011, the relevant provision reads: “detainees have the right to receive visits lasting at least one hour from their relatives or other persons at least once a month”.

Cabinet Regulation no. 358 (1999), in force at the material time and effective until 28 March 2007, provided as follows:

“2. Convicted persons shall receive the minimum standard of health care free of charge up to the amount established by the Cabinet of Ministers. In addition, the Prisons Administration, within its budgetary means, shall provide the convicted persons with:

2.1. primary, secondary and tertiary (in part) medical care;

2.2. emergency dental care;

2.3. examination of health conditions;

2.4. preventive and anti-epidemic measures;

2.5. medication and injections prescribed by a doctor of the institution;

2.6. medical accessories.

Detained persons shall receive medical care in accordance with Article 2 of these regulations, excluding planned in-patient treatment.... Detained persons shall be sent to receive in-patient treatment only in acute circumstances.”


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants, Ms Mary Green and Mr Ajad Farhat, are Maltese nationals who were born in 1959 and 1948 respectively and currently live in Marsa, Malta. They were represented before the Court by Dr J. Brincat, a lawyer practising in Malta. The Maltese Government (“the Government”) were represented by their Agent, Dr Silvio Camilleri, Attorney General.

The facts of the case, as submitted by the parties, may be summarised as follows.

Background

The first applicant married Mr X, a Maltese citizen, on 19 June 1978 according to the rites of the Catholic Church and in conformity with Maltese law.

In 1980 she went to Libya. She converted to Islam by means of a declaration. As a result of this declaration the first marriage was deemed to be null and void and consequently she was given permission by a Libyan court to marry under the law of Libya.

On 7 August 1980 she married the second applicant, according to the rites of Islam. The applicants settled in Libya where they established their matrimonial domicile and lived there, lawfully married, for twenty years.

In 1994 the first applicant went to the Public Registry in Malta and filled in an application requesting registration of her wish to revert to her maiden name, in accordance with Article 4 of the Civil Code. She did not inform the Public Registry that she had divorced Mr X or that she had obtained an annulment of that marriage. On 19 May 1994 the applicant’s request was granted.

In 2000 the applicants returned to Malta to take care of the first applicant’s father. The first applicant made several attempts to register her new marriage under Article 244 (1) of the Civil Code (see Relevant domestic law) in accordance with the principle of lex loci contractus. This registration would have allowed the second applicant to reside in Malta without the need for a visa. It would have granted him the status of an exempt person under the Immigration Act on the basis that he lived with and was married to a Maltese national.

The first applicant based her requests on a document dated 30 January 2001 and 22 September 2002, issued by the Court of First Instance of South Tripoli. According to this document, her previous marriage had been declared null and void upon her conversion to Islam and her marriage to a Muslim man.

However, the Director of the Public Registry refused to register the marriage. The first applicant had failed to prove that she had legally released herself from the obligations of her first marriage by providing a court decision demonstrating that it had been annulled or that she had divorced and that her second marriage had not been polygamous, and therefore contrary to Maltese public policy. Moreover, she had failed in the alternative to prove that she was domiciled in Libya since she had retained her Maltese citizenship and had indeed returned to Malta after twenty years.

She was informed that it was necessary for her to prove that, before contracting her second marriage, she had been released from her previous marriage in accordance with the provisions of Maltese law regarding capacity to marry (see section 18 (b) of the Marriage Act). She was therefore advised to produce the exequatur of a Maltese court ordering the Director of the Public Registry to register the alleged annulment or divorce obtained, thus allowing him to register her second marriage.

In the meantime the first applicant’s father passed away in 2001. However, the applicants remained in Malta to take care of the first applicant’s mother. Meanwhile, the second applicant’s visa was renewed on a concessionary basis.

On 1 June 2004 the applicants instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. Invoking Articles 8 and 14 of the Convention, they claimed that the refusal to register their marriage amounted to a breach of their rights and that Maltese marriage law discriminated against Islam. They argued that marriages celebrated anywhere according to the rites of the Catholic Church were easily recognised, but not marriages contracted under other religions. Similarly, any annulment of a marriage by the Catholic Church (including the dispensation of the Holy Pontiff and the “Privilegum Paulinum”) was endorsed for Catholics under Maltese law.

On 29 November 2006 the Civil Court dismissed the applicants’ claims for non-exhaustion of ordinary remedies as the first applicant had not brought an action before the Civil Court in accordance with section 33 of the Marriage Act to prove that her first marriage was null and void. However, the court considered the complaints manifestly ill-founded since she had failed to prove her domicile, which was necessary for section 33 of the Marriage Act to apply. She was a citizen of Malta and Maltese law did not recognise divorce on religious grounds. Indeed, under section 24 of the Marriage Act, a decision declaring a Catholic marriage null and void was not automatically registered. In particular, one of the prerequisites was the participation of the spouses during the proceedings. However, in the present case Mr X was totally unaware of any proceedings. Moreover, it was for the national legislation to lay down rules regarding the validity of marriages in pursuance of the State’s public policy, and, therefore, no violation of Article 8 could arise in the present case. Lastly, the court noted that the applicants had failed to prove that they had suffered discrimination vis a vis someone in an analogous situation on one of the grounds mentioned in Article 14 of the Convention.

The applicants appealed. By a judgment of 13 April 2007 the Constitutional Court upheld the appeal in part. While revoking the part of the judgment dismissing the merits, it reaffirmed that the applicants had failed to make use of the ordinary remedy provided by law, namely instituting proceedings before the Civil Court in its ordinary jurisdiction, which could have ordered the registration of the marriage if the requisite criteria had been fulfilled.

On 5 July 2008 Mr X, the applicant’s first husband, passed away. On the basis that there were no longer any impediments to the first applicant’s remarriage the applicants attempted to obtain a marriage licence in Malta in order to remarry there. To proceed with such a licence they allegedly were requested to provide proof of a divorce in respect of their marriage contracted in Libya.

In accordance with Article 244 (1) of the Civil Code, Chapter 16 of the Laws of Malta, any marriage of a citizen of Malta drawn up or registered in a foreign country by a competent authority in that country, may, at the request of any interested person and upon the Director of the Public Registry being satisfied of the authenticity of such act, be registered in the Maltese Islands.

In this respect, Article 242 of the Civil Code reads as follows:

“(1) The Director shall not receive any act which is not written in clear and legible characters, or which contains abbreviations, or which may appear to him to be otherwise defective or irregular.

(2) In any such case, the act shall be presented by the Director to one of the Visitors of notarial acts, who, after hearing, if necessary, the person who had made the act, shall determine the manner in which, according to law, the act is to be drawn up.

(3) The Director may not refuse to receive any act which is countersigned by one of the said Visitors.”

The Marriage Act 1975 (“the Act”), Chapter 255 of the Laws of Malta, applies to all marriages whether contracted in a civil or religious form. The Act, in so far as relevant reads as follows:

Section 11

“(2) A marriage, whether contracted in a civil or in a religious form, shall be valid only if all the provisions of this Act applicable thereto or to marriage generally are satisfied or observed.

Section 18

Section 33

A decision of a foreign court on the status of a married person or affecting such status shall be recognised for all purposes of law in Malta if the decision is given by a competent court of the country in which either of the parties to the proceedings is domiciled or of which either of such parties is a citizen.”

In so far as relevant, the Marriage Act provides as follows:

Section 21

“ (1) A marriage celebrated in Malta after the coming into force of this section, in accordance with the norms and formalities established by Canon Law, shall as from the moment of its celebration, be recognised and have the same civil effects as a marriage celebrated in accordance with the norms and formalities of this Act.

Section 23

(1) A decision which has become executive, given by a tribunal, and declaring the nullity of a Catholic marriage shall, where one of the parties is domiciled in, or a citizen of, Malta, and subject to the provisions of section 24, be recognised and upon its registration in accordance with the said section 24, shall have effect as if it were a decision by a court and which has become res judicata.

Section 24

(1) Registration of a decision as referred to in section 23 shall be effected by the Court of Appeal.

(5) The Court of Appeal registers that decision by giving a decree declaring the decision enforceable in Malta; such decree shall not be given unless the Court of Appeal is satisfied that:

(i) the Tribunal was competent to judge the case of nullity of the marriage insofar as the marriage was a Catholic marriage; and

(ii) during and in the proceedings before the Tribunal there was assured to the parties the right of action and defence in a manner substantially not dissimilar to the principles of the Constitution of Malta; and

(iii) there does not exist a contrary judgment binding the parties pronounced by a court, and which has become res judicata, based on the same grounds of nullity; and

(iv) in the case of a marriage celebrated in Malta after 11 August 1975, there has been delivered or transmitted to the Public Registry the act of marriage laid down by this Act; and ...

Section 25

A decree given by the Roman Pontiff "super matrimonio rato et non consummato", when one of the spouses is domiciled in or is a citizen of Malta, shall, subject to the provisions of section 26, be recognised and upon its registration in accordance with the said section 26, shall have effect as if it were a decision given by a court and which has become res judicata annulling a marriage on the grounds of non-consummation, in accordance with section 19A.

Section 26

(4) (a) Registration shall be effected by an order of the Court of Appeal declaring the decree of the Roman Pontiff enforceable in Malta.

(b) The Court of Appeal shall register the decree if it is satisfied that it refers to a Catholic marriage which was celebrated after the coming into force of this section and either of the spouses is domiciled in or is a citizen of Malta.

Section 28

In the course of an application under sections 24 and 26, the Court of Appeal shall not go into the merits of the case leading to the decision or the decree the registration of which is demanded in the application, but shall limit itself to ascertaining if the requirements of this Act for the registration requested exist.”

Malta is a party to an agreement with the Holy See on the recognition of civil effects in respect of canonical marriages and decisions of ecclesiastical authorities and tribunals on such marriages. The Marriage Act further provides that the Government may enter into such agreements with other churches, religions or denominations. Section 37 of the Marriage Act reads as follows:

Section 37

(1) The Government may enter into agreements with other churches, religions or denominations regarding the recognition of marriages celebrated in accordance with the rules and norms of that church, religion or denomination, and declarations of nullity or annulment of such marriages by the organs of such church, religion or denomination having authority in accordance with its rules.

(2) Such agreements shall conform substantially to the provisions of the Agreement between the Holy See and Malta.”

Article 1143 of the Code of Canon Law, in so far as relevant, reads as follows:

A marriage entered into by two non-baptised persons is dissolved by means of the Pauline Privilege in favour of the faith of the party who has received baptism by the very fact that a new marriage is contracted by the same party, provided that the non-baptized party departs.

The non-baptized party is considered to depart if he or she does not wish to cohabit with the baptised party or to cohabit peacefully without affront to the Creator unless the baptised party, after baptism was received, has given the other a just cause for departing.

In Canon Law this refers to the dissolution of a marriage between two unbaptised parties, one of whom is later baptised and seeks to marry in the church.

Articles 825A to 828 of the Code of Organisation and Civil Procedure (“COCP”), Chapter 12 of the Laws of Malta, deal with the enforcement of judgments of tribunals of countries other than Malta. The provisions read as follows:

Article 825A

“Where regulations of the European Union provide, with regard to the matters under this title, in any manner different than in this title, the said regulations shall prevail, and the provisions of this Title shall only apply where they are not inconsistent with the provisions of such regulations or in matters not falling within the ambit of such regulations.

Article 826

Saving the provisions of the British Judgments (Reciprocal Enforcement) Act, any judgment delivered by a competent court outside Malta and constituting a res judicata may be enforced by the competent court in Malta, in the same manner as judgments delivered in Malta, upon an application containing a demand that the enforcement of such judgment be ordered.

Article 827

(1) The provisions of the last preceding article shall not have effect:

(a) if the judgment sought to be enforced may be set aside on any of the grounds mentioned in article 811 (standard grounds for retrial);

(b) in the case of a judgment by default, if the parties were not contumacious according to foreign law;

(c) if the judgment contains any disposition contrary to public policy or to the internal public law of Malta.

(2) For the purposes of this article, the plea to the jurisdiction of the court by which the judgment was delivered, may be raised in terms of article 811(d), even though that court may have adjudged upon a plea to its jurisdiction, in the case of any action brought against any person not subject to the jurisdiction of that court by reason of domicile or residence, unless such person had voluntarily submitted to the jurisdiction thereof.”