Remainder inadmissible;No violation of Art. 6-1+6-3-c;No violation of Art. 6-1+6-3-d;Violations of Art. 6-1+6-3-d;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant, Mr Lulzim Caka, was born in 1970 and is currently serving a prison sentence in Tirana, Albania.

On 21 July 1997 P. was murdered. On an unspecified date in 1997 a criminal investigation was opened against the applicant. During the criminal investigation, the victim's sister, A., even though she had not been present at the crime scene, stated that the applicant had killed her brother. She based her testimony on the account of three eyewitnesses, B., C. and D., who, it would appear, were questioned on an unspecified date.

On 6 October 1998 the judicial police, the body responsible for the conduct of the criminal investigation and the identification of the perpetrator, recommended that the criminal investigation be suspended, as the perpetrator of the crime could not be identified. However, on 15 October 1998 the prosecutor filed an indictment against the applicant with the Berat District Court (see paragraph 17 below).

In 1997 Albania was hit by civil unrest as a result of the fall of pyramid schemes. Army depots were looted and a very considerable number of weapons were in civilian hands. The gradual restoration of ordre public necessitated frequent police checkpoints. Consequently, on 18 March 1998 the Berat police forces set up checkpoints to conduct searches of people for illegal possession of firearms. In the early afternoon of the same day, police officers on duty at a checkpoint situated on the main road between the cities of Berat and Fier shot the applicant and X., another person riding a motorcycle with him. As a result, X. died and the applicant was seriously wounded.

According to the police report on the incident, two persons riding a motorcycle (identified later as the applicant and X.), did not stop when ordered to do so by the police at the first checkpoint. The police at the second checkpoint reported that the applicant, who had been driving the motorcycle, had fired at the police officers with both an automatic gun and a revolver simultaneously. The police had returned fire and shot X., the pillion passenger, dead. Notwithstanding the fact that the applicant was wounded, he had continued to shoot until he surrendered. The police reported having collected from the scene two Kalashnikov automatic guns (automatikë kallashnikov), two pistols (pistoletë), bullets and cartridges, the motorcycle, a mask, a hat, a pair of sneakers, and other things allegedly used by the applicant and X. It appears that the automatic weapons, pistols, bullets and cartridges were sent for ballistics examination.

On 18 March 1998 the applicant and another suspect, E., were arrested in relation to the above event (see paragraph 9-10 above).

The applicant was taken to hospital, where he stayed for a couple of hours for medical treatment as he had been wounded. After release from the hospital on the same day, he was remanded in custody in Berat. On 19 March 1998 the applicant was examined by a doctor, who found that his overall state of health was satisfactory. It was concluded that the injuries the applicant had sustained fell under the category of light bodily injuries requiring no more than nine days' rest.

On 19 March 1998 the prosecutor charged the applicant with attempted murder in collusion with others and illegal possession of firearms. During questioning the same day, the applicant did not provide any information regarding the charges levelled against him. The applicant requested the presence of his lawyer, F.

On 20 March 1998 the lawfulness of the applicant's arrest was confirmed by the Berat District Court.

On 8 April 1998 the prosecutor decided to discontinue the criminal investigation against E., finding that he had not committed any criminal offence.

On 9 June 1998, 22 September 1998 and 15 October 1998, when questioned by the prosecutor, the applicant was defended and represented by G., another lawyer of his own choosing.

On 15 October 1998 the Berat prosecutor filed a bill of indictment with the Berat District Court, accusing the applicant of the intentional murder of P. and attempted murder of police officers on 18 March 1998. It would appear that both criminal proceedings against the applicant were joined.

The Berat District Court commenced the trial against the applicant on 17 November 1998. Thirteen hearings were held between 17 November 1998 and 13 April 1999, on which date the proceedings were transferred to the Fier District Court (see “Transfer of proceedings” section below). Seven hearings had been adjourned owing to the absence of the prosecutor, the applicant or his lawyer. In the remaining six hearings, the applicant was represented by his lawyer, G.

The applicant contested the facts as submitted by the prosecution. He stated that he had been riding the motorcycle unarmed when the police officers at the second checkpoint had opened fire, without ordering him to stop. He also asked the court to summon witnesses who, at the time of the incident, had been driving on the same road.

At the hearings of 23 December 1998 and 6 January 1999, four witnesses, who had been driving on the same road and had seen the applicant while he was riding the motorcycle, testified that the applicant had not been carrying any weapons.

On 15 February 1999 the prosecutor submitted a request to the Supreme Court for the transfer of the criminal proceedings against the applicant from the Berat District Court. He argued that the state of insecurity in Berat made witnesses hesitant to testify before the court. He also mentioned the existence of “pressure of various forms, even threats to the life of the prosecutor concerning the outcome of the proceedings”.

On 5 March 1999 the Supreme Court granted leave to transfer the proceedings from the Berat District Court to the Fier District Court, in accordance with Article 94 of the Code of Criminal Procedure (“the CCP”).

Pursuant to Article 97 § 3 of the CCP, the Fier District Court was required to take a decision as regards the validity of the actions carried out by the Berat District Court. No such decision was contained in the case file. The Government submitted that the case file and acts carried out by the Berat District Court were considered valid on the strength of a certificate of 9 March 2005 issued by the Fier District Court's registrar.

On 25 May 1999 the applicant appointed another lawyer of his own choosing, H.

On 26 May 1999 the Fier District Court commenced the trial of the applicant. Twenty-four hearings were conducted between 26 May 1999 and 11 May 2000, the date on which the applicant was found guilty of the offences and sentenced to imprisonment.

From 26 May to 27 November 1999 ten hearings were scheduled, but adjourned owing to the absence of the applicant or his representative. No witnesses were heard and no other procedural measures were taken. On 9 November 1999 the court informed the applicant that he could appoint another counsel given the repeated absence of his lawyer H.

On 8 December 1999 the applicant revoked H.'s power of attorney. From 8 December 1999 to 7 February 2000, during which time five hearings were held, the applicant represented himself. No witnesses appeared or were questioned at those hearings, as a result of which they were adjourned. On 7 February 2000 the prosecutor read out witness statements which had been taken during the criminal investigation. The applicant contested the statements of witnesses B. and D. On the same day the applicant reappointed his previous lawyer H. The court decided to examine witness A. at the next hearing on 21 February 2000 in the presence of the applicant's lawyer.

On 21 February 2000 the court heard the testimony of A., who stated that the applicant was the murderer of her brother P. She relied on the evidence of witnesses B., C. and D. She had not been a witness at the crime scene. Neither the applicant nor his lawyer, H., questioned A. Further to the applicant's request, the Fier District Court issued several summons for the appearance of B., C. and D. However, the witnesses never appeared before the court.

At the hearing of 23 February 2000 the applicant appointed I. to act as his lawyer alongside H. Three police officers K., L. and M. gave evidence at the trial. In light of the discrepancies in M.'s testimony at the investigation stage and the trial proceedings, the prosecutor requested leave to challenge the testimony pursuant to Article 362 of the CCP by reading out his statement made during the criminal investigation.

While the applicant and lawyer I. did not initially question M., they requested that he be cross-examined after the reading of his statement. The District Court rejected their request as they had initially waived their right to question the witness.

On 1 March 2000 the applicant's lawyer I. requested the court to summon M. for cross-examination. He repeated the request at the hearing of 6 March. On the same date the court rejected the request as ill-founded. It however granted the lawyer's request to summon four other police officers N., O., Q. and S.

On 15 and 21 March the applicant's lawyer repeated his request to summon and cross-examine M. On 21 March the court rejected the requests as ill-founded. It reasoned that M. had attended a hearing in which the accused and his lawyer had had the opportunity to put questions to him. On the same date, the court heard police officer N. The applicant was represented by his lawyer I. Witnesses O., Q. and S. never appeared and were questioned before the court, despite repeated summons and information sent by the court to the respective authorities, for example the Ministry of Justice, the Ministry of Interior and the Police General Directorate.

On 18 April 2000 the applicant's lawyer I. withdrew from representing the applicant. The applicant's other lawyer H. was absent. The court decided to adjourn the proceedings until 3 May 2000.

On 26 April 2000 the applicant's lawyer H. withdrew from representing the applicant. His reasons related to his involvement in the defence of other criminal cases. He also mentioned procedural irregularities committed by the Fier District Court, which had not served him with written summons to appear at hearings. He alleged that the court lacked impartiality. He requested the court to proceed in accordance with section 49 § 5 of the CCP.

On 3 May 2000 the applicant appointed another lawyer of his own choosing, J. The court decided to adjourn the proceedings until 11 May 2000.

On 11 May 2000 the court read a fax received from the applicant's lawyer J., whose involvement in other business did not enable him to defend the applicant. J. stated that he had not received any request to represent the applicant. The record of the hearing stated that the applicant wished to defend himself. The applicant stated that he had not been in possession of any weapons on 18 March 1998. He agreed to the reading out of statements of witnesses Q., R. and S. taken during the criminal investigation and waived his right to have witness O. questioned. The prosecutor proceeded with the reading out of the above-mentioned witnesses' statements. He then concluded with his final submissions. The applicant subsequently stated that he did not accept the charges as he had neither killed P., nor shot at the police officers.

On the same day the Fier District Court delivered its judgment, finding the applicant guilty as charged, and sentenced him to twenty-five years' imprisonment.

In relation to the charge of attempted murder of police officers, the Fier District Court based its judgment on the testimonies of four police officers K., L., M. and N. given at the hearings of 23 February and 6 March 2000 (see paragraphs 29 and 31 above) and on the statements of two witnesses made during the criminal investigation. The court took note of the crime scene investigation report, the applicant's arrest report and the ballistics report.

In that connection, the court also found the applicant guilty of illegal possession of firearms on the strength of the ballistics report, adding that the cartridges found at the crime scene had been fired from the weapons found close to the accused. However, there was no mention in the judgment as to whether the weapons had been in the actual possession of the applicant.

In relation to the murder of P. on 21 July 1997, the Fier District Court based its reasoning on the testimony of A. given before the trial and the statements of witnesses B., C., and D. given during the criminal investigation (see paragraphs 7, 27 and 28 above).

On 16 May 2000 the applicant appealed against his conviction and sentence to the Vlora Court of Appeal, alleging a violation of the right to a fair trial. In particular, he argued that the lack of legal assistance during the trial and the fact that the court of first instance had admitted witness statements without the possibility of cross-examination of the deponents constituted a breach of the right to adversarial proceedings. Furthermore, he had been deprived of the right to cross-examine witness M. who had testified at the hearing of 23 February 2000. He also maintained that, during the stage in which the parties had made their final submissions, he had not been assisted by defence counsel. The applicant was represented before the Court of Appeal by I., who had previously withdrawn from the case on 18 April 2000 (see paragraph 32 above).

On 20 October 2000 the Vlora Court of Appeal dismissed the applicant's appeal and upheld the Fier District Court's judgment. In so far as the appeal was directed against the District Court's refusal to allow the applicant to cross-examine witness M., the Court of Appeal noted that at the hearing of 23 February 2000 the applicant's counsel had stated that he had no questions to ask. The applicant had addressed only one question to the witness, which was answered. The Court of Appeal rejected the applicant's complaint about the lack of legal assistance at the final hearing, relying on his statement that he wished to defend himself.

On 6 March 2001 the applicant appealed to the Supreme Court relying on the same grounds of appeal as before the Court of Appeal. He added that the record of the hearing of 11 May 2000 had been forged by the Fier District Court in so far as his request to be defended by a lawyer had been distorted to read that he wished to defend himself.

On 16 October 2001 the Supreme Court declared his appeal inadmissible as “its grounds fell outside the scope of Article 432 of the CCP”.

On 22 October 2003 the applicant lodged a complaint with the Constitutional Court about the unfairness of the proceedings. He complained about the length of his pre-trial detention and relied on Article 6 § 3 (b) and (c) and (d) of the Convention.

On 18 November 2003 the Constitutional Court, sitting as a bench of three judges, declared the complaint inadmissible. It held that the applicant's complaint did not raise any fair trial issues, but mainly concerned the assessment of evidence which was the function of the lower courts.

On 6 June 2003 the applicant lodged with the Court a notarised statement by B.H., the judge who had presided over the bench of the Berat District Court in the criminal proceedings. According to B.H., the proceedings had been transferred to the Fier District Court, to the applicant's detriment, at a point when the Berat District Court had been nearing the end of the examination of the case and had been likely to conclude that there was insufficient evidence against him. Furthermore, B.H. maintained that the Fier District Court had admitted witness statements obtained at the police station rather than those obtained during the trial before the Berat District Court. He also maintained that the Fier District Court had not considered a ballistics report submitted during the trial before the Berat District Court, from which it transpired that the automatic guns allegedly used by the applicant belonged in fact to the Berat Police Force. Moreover, he stated that the applicant's lawyers had withdrawn from defending him during the trial before the Fier District Court as a consequence of threats to their own lives and those of their families.

The applicant also submitted four notarised statements made by eyewitnesses who had been present some minutes before the incident and had seen the applicant riding the motorcycle unarmed and had then heard the police shooting. The same eyewitnesses gave testimony before the Berat District Court on 23 December 1998 and 6 January 1999 (see paragraph 20 above).

On 28 April 2008 the Court requested the Government to provide a copy of the entire investigation file and legible records of all hearings before the District Courts. On 31 July 2008 the Government provided records of all the hearings held before the District Courts. No documents from the investigation file were provided.

Article 31

During criminal proceedings, everyone has the right:

a. to be notified immediately and in detail of the charges brought against him, of his rights, and to have the possibility to notify his family or relatives;

b. to have sufficient time and facilities to prepare his defence;

c. to have the assistance of a translator free of charge, when he does not speak or understand the Albanian language;

ç. to present his own case or defend himself through the assistance of counsel of his own choosing; to communicate freely and privately with him, as well as to be provided free legal counsel when he does not have sufficient means;

d. to examine witnesses who are present and to request the appearance of witnesses, experts and other persons who can clarify the facts.

Article 32

No one shall be obliged to testify against himself or his family or to confess his guilt.

No one shall be declared guilty on the basis of evidence collected unlawfully.

Article 33

Everyone has the right to be heard before being judged.

A person who is seeking to evade justice may not avail himself of this right.

“In the protection of his constitutional and legal rights, freedoms and interests, or in defending a criminal charge, everyone has the right to a fair and public hearing, within a reasonable time, by an independent and impartial court established by law.”

“The Constitutional Court shall decide: ...

(f) in a ruling that shall be final, complaints by individuals alleging a violation of their constitutional rights to a fair hearing, after all legal remedies for the protection of those rights have been exhausted.”

Article 49 § 5 of the CCP provides that the presence of a defence lawyer shall be required when the appointed lawyer has not been provided, has not appeared or has abandoned the defence. In such circumstances the court or the prosecutor shall appoint another lawyer as substitute, who shall exercise the rights and assume the obligations of the defence lawyer.

Articles 94-97 govern the transfer of proceedings. According to the wording of Article 94, as in force at the material time, “at any stage and instance during the trial, when public safety or the free will of the persons participating in the trial are impaired by serious local events which may affect the conduct of the trial and which may not be avoided by other means, the Supreme Court, further to a reasoned request by the prosecutor or the defendant, may transfer the case to another court.”

Article 97 provides that the Supreme Court decides in private. A decision to grant a request for the case to be transferred shall be notified to the court in which the proceedings have been conducted and the court to which the proceedings are to be transferred. The court which had previously conducted the proceedings shall immediately transfer the procedural documents to the designated court and shall order the notification of the decision of the Supreme Court to the prosecutor, defendant and private parties. Article 97 § 3 states that “the court designated by the Supreme Court shall give a decision as to whether the actions already carried out are valid and the extent of their validity”.

Under Article 362 § 1, as in force at the material time, “in order to challenge, entirely or partly, the content of the testimony or when the witness refuses to testify, the parties may use the statements previously made by the witness before the prosecutor or the judicial police and which are in the case file, but only after the witness has testified to the facts and circumstances which can be contested”. Article 362 § 2 stipulated that “these statements do not constitute evidence for the facts found therein, but they can be examined by the court in order to determine the reliability of the person in question and are a constituent part of the case file”.

Article 425 establishes the scope of the examination of the appeal by the Court of Appeal. It provides that the examination of the case by the Court of Appeal is not limited to the grounds of appeal but extends to the whole case.

Under Article 427, at the party's request, the Court of Appeal shall be empowered to directly re-examine previous evidence and additional new materials, if it considers necessary.

Article 428 establishes which decisions may be taken by the Court of Appeal. It provides that the Court of Appeal may decide to dismiss the appeal and uphold the judgment, to amend the judgment, to quash the judgment and terminate the criminal proceedings, or to quash the judgment and remit the case for a fresh trial.

The Court of Appeal's judgments may be appealed to the Supreme Court in compliance with one of the following requirements of Article 432: a) the criminal law has not been respected or has been erroneously applied; b) there have been breaches which result in the court's judgment being declared invalid in accordance with Article 128 of this Code; c) there have been breaches of procedural rules that have affected the adoption of the judgment.

Article 434 provides that the Supreme Court examines the appeal in so far as points of law have been raised therein.


Preliminary objection rejected (non-exhaustion of domestic remedies);No violation of Art. 5-4

Mr Paul Navarra, a farmer, lives in Bastia, Upper Corsica. On 22 November 1985 he was remanded in custody on a charge of armed robbery. During his detention on remand in Nice prison, he filed six applications for release.

An investigating judge of the Nice tribunal de grande instance dismissed the first two applications, lodged on 28 November and 30 December 1985, by orders of 2 December 1985 and 3 January 1986. No appeal was filed from the first order; the second was confirmed by the Indictment Division of the Aix-en-Provence Court of Appeal on 29 January 1986.

On 24 March 1986 the investigating judge also dismissed the third application, which had been made on 19 March.

On 23 April 1986 the Indictment Division found inadmissible the appeal filed by the applicant on 25 March against that decision, which it declared void inasmuch as it had been made in respect of an application which did not comply with procedural requirements, not having been filed in the manner prescribed in the Code of Criminal Procedure.

On 28 May 1986 the applicant appealed to the Court of Cassation, which received the file on 19 June. On 13 September 1986 it quashed the contested decision and remitted the case to the Indictment Division of the Montpellier Court of Appeal.

The file reached the registry on 1 October 1986. On 9 October the principal public prosecutor at the Montpellier Court of Appeal notified the applicant that the hearing had been set down for 21 October.

In a memorial of 17 October 1986 Mr Navarra’s lawyer complained of the failure to comply with the time-limit within which, according to Article 194 of the Code of Criminal Procedure (see paragraph 18 below), the appeal of 25 March 1986 should have been examined. He also maintained that the matter had not been decided "speedily", as required by Article 5 para. 4 (art. 5-4) of the Convention.

On 24 October 1986 the Montpellier Indictment Division declared the appeal of 25 March 1986 ill-founded and confirmed the order made on 24 March dismissing the application for release of 19 March. It noted as follows:

The proceedings followed a normal course and in these circumstances it does not appear that there was a failure to comply with the provisions of Article 194 of the Code of Criminal Procedure, as is claimed by Paul Navarra’s lawyer in his memorial.

On 19 November 1986 the applicant appealed to the Court of Cassation, alleging that the Indictment Division had not replied to the submission based on Article 5 para. 4 (art. 5-4) of the Convention.

The Court of Cassation dismissed this appeal on 24 February 1987, on the following grounds:

"... the Indictment Division, which found, moreover correctly, that the judgment quashed had been given within the time-limit laid down in Article 194 of the Code of Criminal Procedure, replied sufficiently, albeit implicitly, to the submission in the memorial before it complaining of a failure to comply with the time-limit, and was not open to the criticism levelled in the second limb of the submission, which must accordingly be dismissed;

On 20 March and 18 May 1987 the applicant lodged his fourth and fifth applications for release. The investigating judge of the Nice tribunal de grande instance dismissed them by orders of 25 March and 22 May, which were upheld by the Indictment Division of the Aix-en-Provence Court of Appeal on 21 April and 17 June 1987.

On the other hand, on 27 November 1987 the investigating judge allowed the sixth and last application, which had been lodged two days earlier.

On 17 December 1987 the investigating judge made an order finding that Mr Navarra had no case to answer.

On 17 March 1988, pursuant to Article 149 of the Code of Criminal Procedure, the applicant sought 400,000 French francs in compensation for the detention on remand that he had undergone from 22 November 1985 to 27 November 1987. On 26 May 1989 the Compensation Board of the Court of Cassation declared the claim admissible but ill-founded.

As applicable at the material time, the relevant provisions of the Code of Criminal Procedure are as follows:

"Whatever the classification of the offence, the accused or his lawyer may lodge at any time with the investigating judge an application for release ...

The investigating judge shall immediately communicate the file to the public prosecutor for his submissions. He shall at the same time, by whatever means, inform any party seeking damages, who may submit observations ...

The investigating judge shall rule, by an order giving specific grounds ..., not later than five days after the communication of the file to the public prosecutor.

When an order is made releasing the accused it may be accompanied by an order placing him under court supervision.

The Law of 6 July 1989 added to the third paragraph a sentence, which is worded as follows:

"However, where a decision has not yet been made on a previous application for release or on the appeal from a previous order refusing release, the five-day prescribed period begins to run with effect from the decision given by the investigating authority."

"Any court called upon to rule ... on an application for release shall give its decision after hearing the prosecution and the accused or his counsel. Where the accused is not in custody, he and his counsel shall be summoned by registered letter at least forty-eight hours before the date of the hearing.

The court hearing the application shall give its decision within ten days of receipt of the application at first instance or within twenty days of the appeal at second instance; ... where no decision is forthcoming on expiry of the above time-limits, the detention on remand shall be terminated and the accused, if not detained in connection with other matters, shall automatically be released.

The [first instance] court’s decision shall be immediately enforceable notwithstanding any appeal; where the accused remains in detention, the Court of Appeal shall give its decision within twenty days of the appeal, failing which, if he is not detained in connection with other matters, the accused shall automatically be released."

"... a person who has been held in detention on remand during proceedings which have been terminated in so far as he is concerned by a finding that he has no case to answer (non-lieu) that has become final or by an acquittal that has become final shall be entitled to compensation where such detention has caused him damage of a clearly exceptional and particularly serious nature."

"The principal public prosecutor [at the Court of Appeal] shall prepare the case file for hearing within forty-eight hours of receiving the documents for questions relating to detention on remand, and within ten days in all other cases, and shall forward it, together with his submissions, to the Indictment Division.

The Indictment Division shall, when dealing with questions relating to detention on remand, give its decision as speedily as possible and not later than thirty days after the appeal provided for in Article 186, failing which the accused shall automatically be released, except where verifications concerning his application have been ordered or where unforeseeable and insurmountable circumstances prevent the matter being decided within the time-limit laid down in the present Article."

A Law of 30 December 1987, which came into force on 1 October 1988, reduced the time-limit from thirty to fifteen days.

"The criminal division hearing an appeal on points of law against the decision of the Indictment Division concerning detention on remand shall rule within three months of the file’s receipt at the Court of Cassation, failing which the accused shall automatically be released.


The applicant, Mr D.H., is a Slovakian national, who was born in 1966 and lives in H. He was represented before the Court by Ms Z. Dlugošová, a lawyer practising in Bratislava.

On 7 December 1999 the car driven by the applicant collided with a different car at a road crossing in Trnava. No one was injured and the police found no alcohol on the drivers’ breath. The police withheld the driving licence from the applicant on the spot.

On 9 December 1999 the District Road Traffic Inspectorate in Trnava decided that the driving licence would not be restored to the applicant prior to a final decision on the case. The decision stated that the applicant had not respected a red traffic light and that it could be reasonably expected that a court or other competent authority would prohibit him from driving motor vehicles. Reference was made to Section 66(1)(a) of the Road Traffic Act.

On 14 December 1999 the applicant appealed. He alleged that the decision was based on the false statement of the other driver. The applicant argued that a witness had confirmed that the traffic light had been green when he had entered the crossing.

On 4 January 2000 the Regional Road Traffic Inspectorate in Trnava upheld the decision of 9 December 1999. The Regional Inspectorate held that it was irrelevant for the purpose of the decision on withdrawal of the driving licence how the matter was qualified from the point of view of the criminal law or minor offences law. The Regional Inspectorate had regard to the facts of the case as established at that time. The reasons invoked by the applicant were irrelevant in the context of deciding on the withdrawal of the driving licence. The applicant had to submit his objections or proofs in the context of the proceedings on the minor offence which was imputed to him.

On 25 January 2000 the District Road Traffic Inspectorate in Trnava found that the applicant had not complied with the Road Traffic Act thereby committing a minor offence under Section 22(1)(b) of the Minor Offences Act of 1990. A fine of 3,000 Slovakian korunas (SKK) was imposed on the applicant and he was prohibited from driving motor vehicles for ten months. The period from 7 December 1999 when the police had withheld the applicant’s driving licence was to be deducted from the above period of ten months. The police authority established that the applicant had failed to respect a red traffic light and had thereby caused the accident.

On 7 February 2000 the applicant appealed and argued that the investigation had been flawed.

On 6 March 2000 the Regional Road Traffic Inspectorate in Trnava quashed the first instance decision for procedural shortcomings. It ordered the District Inspectorate to obtain an expert opinion and to take further evidence with a view to establishing the relevant facts.

On 24 March 2000 the applicant requested that his driving licence should be restored to him.

On 30 March 2000 the District Road Traffic Inspectorate in Trnava informed the applicant that the reasons for withdrawal of his driving licence as set out in the decision of 9 December 1999 still existed.

On 30 March 2000 the District Inspectorate stayed the proceedings concerning the minor offence of which the applicant was accused on the ground that an expert opinion had to be obtained. On the same day an expert was appointed.

On 9 June 2000 the applicant requested the Regional Inspectorate in Trnava to determine the case as the length of the proceedings was excessive.

On 4 July 2000 the District Road Traffic Inspectorate informed the applicant that the case could not be proceeded with as the expert had failed to submit his opinion.

On 6 July 2000 the applicant asked the Presidium of the Police Corps to quash the above decision of 4 January 2000 relating to the withdrawal of his driving licence.

The expert submitted his opinion on 25 August 2000.

On 7 September 2000 the District Road Traffic Inspectorate informed the applicant that the case could not be dealt with as the file had been submitted to institutions to which the applicant had complained about shortcomings in the proceedings.

On 16 October 2000 the District Inspectorate returned the driving licence to the applicant. The relevant police note states that the reasons for withholding the driving licence had ceased to exist on 8 October 2000. Reference was made to the decision of 25 January 2000 under which the applicant had been prohibited from driving motor vehicles for ten months. The document further reads as follows:

“For this reason, and even in the event that [the applicant] were again to be examined in respect of the minor offence in question, he could be prohibited from driving for the said ten months. This period expired on 8 October 2000. For this reason the driving licence will be returned to [the applicant] which does not mean that the case is closed.”

On 3 November 2000 the District Prosecutor’s Office in Trnava found, in reply to the applicant’s complaint, that the District Inspectorate in Trnava had acted erroneously in that it had stayed the proceedings pending the submission of an expert opinion and that it had not used all available means with a view to obtaining the expert opinion without unjustified delay. The administrative authority had not displayed due diligence when proceeding with the case. The public prosecutor therefore asked the District Road Traffic Inspectorate in Trnava to remedy the shortcomings found.

On 17 November 2000 the District Road Traffic Inspectorate again found that the applicant had committed a minor offence under Section 22(1)(b) of the Minor Offences Act of 1990. A fine of SKK 3,000 was imposed on the applicant and he was prohibited from driving motor vehicles for ten months including the period during which the driving licence had been withdrawn from him. The decision stated that an appeal with suspensive effect could be filed against it.

On 30 November 2000 the applicant appealed.

On 13 December 2000 the Regional Road Traffic Inspectorate in Trnava discontinued the proceedings. The decision referred to Section 76(1)(f) of the Minor Offence Act of 1990 and it stated that the liability for the minor offence in question had lapsed as one year had passed since the date when it had been committed. Since the applicant could no longer be held liable for any minor offence arising out of the above accident, the reason for proceeding with the case had fallen away.

The applicant submits that he cannot claim compensation for damage which he suffered as a result of the accident of 7 December 1999 as a claim for compensation on the basis of the compulsory insurance of motor vehicles is dependent on the result of the police investigation. He further submits that he learned, on 26 January 2000, that the insurance company had informed the other driver involved in the accident that it had arranged for him to be compensated from the applicant’s insurance having regard to the outcome of the examination of the accident.

Section 66(1)(a) entitles the police to withhold a driving licence from a driver who grossly violates the Road Traffic Act or other generally binding rule relating to it and thereby directly threatens the security or disturbs the smooth flow of road traffic or causes a road traffic accident.

Section 66(4) provides that a District Road Traffic Inspectorate is to deliver a decision, within fifteen days, on the withdrawal of a person’s driving licence where the reasons for withholding the licence continue or where it can be reasonably expected that a court or a different competent authority will prohibit its holder from driving motor vehicles. Otherwise the driving licence is to be restored to the person concerned without delay.

Under paragraph 6 of Section 66, the authorities dealing with the case have to examine at all stages of the proceedings whether the reasons for withholding a person’s driving licence still exist. When such reasons fall away, the driving licence is to be restored to its owner without delay.

Section 124(6)(d) excludes the application of the general rules on administrative proceedings to decisions under Section 66(1) relating to the withdrawal of a driving licence.

Section 20 provides that a minor offence cannot be examined, inter alia, after the lapse of one year from the moment when it was committed.

Section 22(1)(b) governs minor offences against road traffic security. It extends to cases where a person violates the relevant regulations and thereby puts in danger the security of road traffic, disturbs its smooth flow or causes an accident. Paragraph 2 provides that a person who committed such a minor offence can be fined up to SKK 5,000 and he or she can be prohibited from driving motor vehicles for a period up to one year.

Pursuant to Section 76(1)(f) an administrative authority discontinues proceedings relating to a minor offence where the liability for such minor offence has ceased to exist.

Under Section 83(2) and (3), participants in administrative proceedings can seek a judicial review of the decision on a minor offence after the exhaustion of the ordinary remedies in the context of administrative proceedings.


No violation of Art. 3;No violation of Art. 5;Violation of Art. 10;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of a violation sufficient

David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in 1947 and currently lives in Nicosia.

At the material time she was living alone in her family house in the village of Ayia Triada, Yialloussa, in the Karpas region of northern Cyprus. She was a teacher at the Greek-Cypriot elementary school in that village.

The parties disagree as to the facts of the case.

In December 1994 the applicant went to spend the Christmas holidays with members of her family in southern Cyprus. On 13 January 1995 she was transported by a Red Cross bus with other “enclaved” Greek-Cypriots to the Ledra Palace crossing point in Nicosia. From there they were due to be taken to Ayia Triada by a bus driven by a Turkish settler.

At the barricade, which was guarded by Turkish and/or “Turkish Republic of Northern Cyprus” (“TRNC”) police and customs officers, the applicant and the other five or six enclaved Greek-Cypriot women who were on the bus with her were searched. When the customs officers asked to search the applicant again, she refused, claiming that she had already been searched and nothing had been found. She was then taken to a small room near the barricade and was told that she would be searched by police officers. The applicant continued to refuse to submit to another search. The officials then tried to force the applicant into a small private car. She resisted and started shouting. The officials covered her mouth with their hands and started hitting her on her arms and feet in order to force her into the car. They pushed her in the car headfirst and then took hold of her legs. They managed to put her in the car with her legs upwards and feet pointing towards the roof.

She was subsequently taken to a building that appeared to be a police station. There her bag was thoroughly searched and whenever she tried to see what the officers were doing she was hit on the head and shoulders by a person whom she was able to identify from the discussions held among the officials present as a member of the Turkish secret service. She was then taken to an adjacent room where she was interrogated and mocked. When the interrogation was over, the bag was returned to her empty. The officers also kept part of her money – 120 Cyprus pounds (CYP) of the CYP 300 she had on her.

Afterwards, the officers took her in the same car to the bus that would have taken her to Ayia Triada. As she did not feel well, she asked to be allowed to return to southern Cyprus. However, the officers started to hit her once again and forced her into the bus. One of the women on the bus told them to “let her go or you will kill her”.

Upon her return to Ayia Triada, the applicant asked to be taken to a female Turkish-Cypriot doctor in nearby Yialoussa but her request was refused. The next day a Greek-Cypriot took the applicant to the above-mentioned doctor. The doctor offered her medical treatment but refused to certify the existence of bruises on her body.

During the nights that followed stones were thrown at her house.

On 18 January 1995 the applicant was visited at the school of Ayia Triada by representatives of Doctors of the World, to whom she showed the bruises she had on her legs, hands and head. In its relevant parts, the report of Doctors of the World reads as follows:

“Although [Eleni Foka] knew we were coming and had agreed to meet us, nevertheless when she first saw us she became very nervous. Her respiration increased, and she seemed to have trouble breathing. We reassured her that we had come from ... Doctors of the World but it still took her about 10 minutes to be able to speak normally. The first thing she did, somewhat frantically, was to show us the bruises up and down her legs which she received, she says, as a result of being beaten by the police. At the time of our visit, she said the beating had occurred over one week ago. She also said the police were from the neighbouring town of Jalousa, only two kilometres away from Sipahi. She claims that the reason she was beaten is that she had tried to bring across the border some textbooks for the children and some religious crosses, after having visited relatives [on] the Greek side of Cyprus over the Christmas holidays. She claims she was detained, beaten, interrogated many times, and released approximately 12-18 hours later. She also claims that she is experiencing a lot of pain in the back of her head, her neck and her lower back as a result of this beating. She says that the police came from the station of Jalousa and systematically harass her; they often arrive in the village, and either follow her or simply walk around in what she interprets as an attempt to intimidate her and others who might have rebellious thoughts or want to help her. She claims the police keep her under constant surveillance.”

A week later, a representative of the United Nations Peacekeeping Force in Cyprus (UNFICYP) visited the applicant and reported that she had bruises and blood stains on her shins and thighs. On 20 January 1995 a medical officer of UNFICYP was denied permission to visit the applicant. The officer was eventually granted permission on 30 January 1995. Accordingly, the medical officer visited the applicant and examined her on 31 January 1995. The applicant appended a “note to the file” in this respect by the Humanitarian Branch of the Headquarters of UNFICYP dated 13 February 1995. This note read as follows:

“On 18.1.95 the Humanitarian Branch was informed by the Office of the Presidential Commissioner for Humanitarian Affairs that E.Ph. was ill treated and arrested by TkCyp Police when crossing to the north on 13.1.95 after a week’s stay in the south and that a team of the “Doctors of the World” has visited her in Ay. Trias on 18.1.95 to question her about her mistreatment.

On the same day Hum. O. sector 4 and the interpreter visited E. Ph. in the school as requested by CHO. She stated that she was beaten by hand from TCPE in the office at Ledra ChPt. and another office somewhere in Nicosia on the head, neck and back. She said that on 18.1.95 about 12:00 Hrs a team of 4 persons (2 male doctors, 1 lawyer and one official from a presidential palace not nearer described) has been visiting her. She gave the same statement to them as NWP and showed bruises and blood effusions on shin bones and thighs as she did to NWP. The team of the “doctors of the world” left her after 30 minutes and they used the English language only while speaking to Mrs E. Ph. NWP then proceeded to Yialusha Pol station for further clarification. All TCPE officers however were very reluctant in answering NWP questions and very reserved. On 20 January 1995 afternoon UN Personnel from the LP in Leonarisso has been sent to TCPE Yialusha to inform that SHO accompanied by Medical Officers Sec 4 intends to visit E. Ph. again in order to have her injuries examined. However permission was not granted at that stage. CHO tasked AUSTCIVPOL to investigate and liaise with TKCYP police at NIC HQ in order to get permission for the medical exam. ‘Clearance” was granted on 30.1.95 and the message relayed to Hum Cell Sector 4 to set up the examination on the following day which was then carried out successfully. See Med. Rep. SMO Sec 4 dated 31.1.95 plus attached note of SHO (4).

Investigation on the confiscated items is still ongoing by AUSTCIVPOL.”

The applicant claimed that she had been under constant surveillance by the local police and subjected to further harassment, including threats that she would be forcibly expelled from northern Cyprus or killed.

In a letter dated 10 August 2000 the applicant’s lawyer informed the Court that in May 1997 the applicant had needed to seek urgent medical treatment in southern Cyprus. However, the applicant had then not been allowed by the Turkish military and the “TRNC” authorities to return to her home and property in Ayia Triada and had therefore been living in Nicosia ever since.

On 16 December 1994 the applicant, along with two other teachers from the Karpas elementary school and nine students, crossed over to southern Cyprus via the Ledra Palace checkpoint. Two days later the group flew to Greece on an excursion organised by the Greek-Cypriot and/or Greek authorities for a few days in order to take part in various anti-Turkish campaigns that received considerable publicity.

On 13 January 1995, at about 12.30 p.m., the applicant, who was returning from southern to northern Cyprus, was subjected to routine police and immigration control by Turkish-Cypriot officials at the Ledra Palace checkpoint. When the officers asked the applicant if she had anything to declare she said she did not. When they asked her to give them her handbag for search purposes, she refused to do so, thus preventing the officers from executing their duties and committing an offence under “TRNC” laws (section 177 of the Customs and Excise Law, no. 37 of 1983).

When a female police officer arrived, the applicant continued to resist. She was then requested to accompany the officials to the Lefkoşa police headquarters (Saray Önü) for further examination. She once again resisted and started kicking and shouting that she did not recognise any legal authority in northern Cyprus. Subsequently, she was led to a police car. She refused to get into the car and stated that she wanted to return to southern Cyprus. She was then driven to police headquarters. The Turkish Cypriot police used only force that was reasonable and necessary. The applicant may have caused injury to herself in an effort to resist the body search and efforts to take her to the police station. This was not evident, however, as she was wearing thick dark stockings.

Once at the police headquarters, the applicant continued to act irrationally, resisting the police officers and pushing them away. Eventually, a female police officer searched her handbag. She found six silver necklaces and four gold crosses, items that were subject to customs duty and that the applicant had refused to declare. The applicant agreed to pay the equivalent of 9,000,000 Turkish liras as customs duty and/or fine. Furthermore, various other items were found in her bag, such as books and brochures. It was considered that these contained anti-Turkish, racist and defamatory material liable to incite racial hatred and aggravate inter-communal relations. The authorities then attempted to carry out a body search, which the applicant resisted. The applicant attacked the female customs officer, who called for police assistance. During the body search, radio-cassettes were found hidden inside the applicant’s clothing. The authorities kept all the items for the purposes of further examination. The applicant was detained only for a transitory period to enable completion of the search under more appropriate circumstances and to calm her down. She was not under arrest during this period and was offered refreshments, which she refused to take.

Having paid the fine, the applicant returned to her village on the bus with other Greek Cypriots.

On 15 January 1995 the applicant visited the health centre of Rizokarpasso (Dipkarpaz) and asked for a medical report to certify that she had been beaten. The doctor on duty, not being a private practitioner, offered to examine the applicant if she were intending to lodge a complaint with the police. The doctor would then have examined the applicant and written up her findings on the form supplied by the police. However, the applicant failed to complain to any Turkish-Cypriot authority and did not visit any doctor before or after 15 January 1995. On 31 January 1995 she was examined by a United Nations doctor in the presence of a Turkish-Cypriot doctor at the health centre in Rizokarpasso. The Government appended a UN medical report of a routine interview and examination of the applicant by a UN medical officer in the presence of a local doctor on 31 January 1995. The report identified “scratches on the applicant’s back [and] right calf”.

The four “Doctors of the World”, one US, one Swedish and two French citizens, had entered the “TRNC” as tourists intending to go to Kyrenia but upon entry, contrary to their declaration to the “TRNC” authorities, they had hired a car and apparently visited the area in question.

On 25 January 1995 the books, brochures and photos that had been taken from the applicant on 13 January 1995, were returned to her in the presence of the Greek-Cypriot representative of the village. However, the Turkish-Cypriot authorities kept three cassettes, two paperbacks, a diary and a postcard which they considered as likely to provoke racial hatred and anti-Turkish enmity. The cassettes, which had been recorded in Greece, contained songs and poems dedicated to the so-called Pontus Greeks who allegedly lived in the Black Sea region of Turkey, to the National Organisation of Cypriot Fighters (EOKA) movement and to those killed in terrorist activities carried out against the British. The other articles contained propaganda and a map of Cyprus showing the border area marked in blood.

In March 1997, when the applicant retired from her teaching post, arrangements were made between the Greek-Cypriot and Turkish-Cypriot authorities to replace her as teacher. The applicant has been living in southern Cyprus ever since.

As from 23 April 2003 new measures had been adopted by the “TRNC” authorities regarding crossings from northern to southern Cyprus and vice versa through specified checkpoints. Greek Cypriots now had free access to the north and Turkish Cypriots to the south upon presentation of an identification document.

The Government have produced several documents before the Court. In so far as relevant, their content can be summarised as follows.

In his report, police officer Pervin Gürler stated that the applicant had constantly insulted Turkey and used to bring a Greek flag to school lessons. She was a fanatical nationalist who behaved strangely, pretended to have received death threats and was asocial. She had wanted to enter the territory of “TRNC” without an identification card, passport or other travel document and had tried to avoid the border control. On 29 January 1997 she had been scratched by her cat; the doctors who visited her had diagnosed that she was in good health.

In a statement of 3 May 2007, customs officer Sultan Barbaros stated that on 13 January 1995 he was checking bags and luggage of persons crossing at the Ledra Palace border. The applicant had not allowed him to search her bags and had resisted. She had started swearing loudly at the officers and at Turkish people in general. When the custom officers intervened, the applicant had assaulted them. She had then been brought to a police station where she had been fined for having tried to cross the border without declaring the necklaces and the gold crosses. She had paid cash. Although the police had acted in good faith, the applicant had been constantly aggressive towards them and had used racist expressions.

Police Sergeant Halit Kocanoglu stated that at the relevant time, it was the general practice of the “TRNC” custom officers to check the bags of people crossing the Ledra palace border and to confiscate goods that needed to be declared but were not. The applicant had refused to have her bag checked and had caused trouble. She had been brought to a police station where her bags had been searched. In addition to the undeclared necklaces and gold crosses, books and tape recordings insulting the “TRNC” and Turkish people in general had been found in her possession and confiscated. During her stay at the police station, the applicant had not been ill-treated or harassed; on the contrary, she had caused problems to the officers and refused everything that was offered to her including water.

Police Sergeant Işin Sevindik stated that on 13 January 1995 the applicant had refused to have her bag searched. She had started shouting and had been taken to a police station. After she had paid the fine, she had been taken back to the Ledra Palace entry point. Sergeant Sevindik had not seen the applicant being forced to do anything or being ill-treated. A similar statement was made by Inspector Adem Hasapoglu.


CASE OF JELIČIĆ v. BOSNIA AND HERZEGOVINA

Violation of Art. 6;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

Ján Šikuta;Josep Casadevall;Kristaq Traja;Matti Pellonpää;Nicolas Bratza;Rait Maruste

The applicant was born in 1953 and lives in Banja Luka.

Between 7 January 1977 and 31 January 1983 the applicant deposited in total 70,140 German marks (DEM) in her savings account at the then State-owned Privredna banka Sarajevo Filijala Banja Luka. In Bosnia and Herzegovina, as well as in other successor States of the former Socialist Federal Republic of Yugoslavia (“SFRY”), such savings are commonly referred to as “old” foreign-currency savings, having been deposited prior to the dissolution of the SFRY. The relevant background information on this subject is set out in detail in the Chamber’s decision on the admissibility of the present application (see Jeličić v. Bosnia and Herzegovina (dec.), no. 41183/02, ECHR 2005-XII).

On 31 December 1991 the balance in the applicant’s account, which included accrued interest, was DEM 235,924 (in the former SFRY, foreign-currency deposits earned high interest).

On several occasions in 1992 and 1993, the applicant managed to withdraw in total DEM 9,352, regardless of statutory restrictions which had been introduced in the late 1980s.

On 3 October 1997 the applicant initiated civil proceedings against the Banjalučka banka, the legal successor of the Privredna banka Sarajevo Filijala Banja Luka, seeking the recovery of her entire “old” foreign-currency savings and accrued interest.

On 26 November 1998 the Banja Luka Court of First Instance established that the balance in the applicant’s account indicated above was DEM 295,274, including accrued interest. The court also found that the applicant had DEM 4,896 in another account at the same bank. The Banjalučka banka was ordered to pay the applicant, within 15 days, DEM 300,170 (approximately 153,475 euros (EUR)), default interest on the above amount at the rate applicable in the country of the currency (namely Germany) from 3 October 1997, legal costs in the amount of 9,076 dinars (approximately EUR 290) and default interest on the last-mentioned amount at the statutory rate from the date of the judgment.

On 5 February 1999 the Banja Luka Court of First Instance mistakenly held that the Banjalučka banka had not appealed against the judgment of 26 November 1998 and accordingly issued a writ of execution (rješenje o izvršenju). On 25 February 1999 the Banja Luka Court of First Instance established that an appeal had in fact been submitted. On 4 November 1999 the Banja Luka District Court rejected that appeal and the first-instance judgment of 26 November 1998 therefore became enforceable.

Meanwhile, the applicant filed an application with the Human Rights Ombudsperson, who referred the application to the Human Rights Chamber (the human rights bodies set up by Annex 6 to the 1995 General Framework Agreement for Peace).

On 12 January 2000 the Human Rights Chamber found a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 arising from a failure to enforce the judgment of 26 November 1998. The Human Rights Chamber held the Republika Srpska responsible and ordered it to ensure full enforcement without further delay.

After the Banjalučka banka had failed to execute the judgment voluntarily, on 22 March 2000 the competent court sent a fresh writ of execution to the Republika Srpska Payment Bureau (Služba za platni promet Republike Srpske).

On 28 July 2000 the Supreme Court of the Republika Srpska rejected an appeal on points of law (revizija) against the judgment of 26 November 1998.

On 8 November 2000 the writ of execution was returned to the competent court, execution having been impossible on account of a statutory prohibition (see paragraph 24 below).

On 30 January 2001 the applicant converted part of her savings (DEM 20,000) into privatisation coupons under the Privatisation of Companies Act 1998. She subsequently sold those coupons on the secondary market, allegedly for DEM 9,000.

On 18 January 2002 the privatisation of the Banjalučka banka was completed and the applicant’s “old” foreign-currency savings became a public debt of the Republika Srpska pursuant to section 20 of the Opening Balance Sheets Act 1998.

On 7 March 2002 and 9 February 2004 the applicant converted a further part of her savings (EUR 20,452 in total) into privatisation coupons as before. She subsequently sold those coupons on the secondary market, allegedly for EUR 8,794 in total.

On 15 April 2006 Bosnia and Herzegovina took over the debt arising from “old” foreign-currency savings from its constituent units pursuant to section 1 of the Old Foreign-Currency Savings Act 2006.

The judgment of 26 November 1998 has not yet been enforced.

Enforcement of such judgments has been prevented in the Republika Srpska since 3 May 1996 in accordance with the relevant instructions of the government of the Republika Srpska (Odluka o obustavljanju isplate “stare” devizne štednje, Official Gazette of the Republika Srpska (“OG RS”) no. 10/96 of 27 May 1996, and Zaključak, OG RS no. 24/99 of 4 October 1999) and the following legislation:

(a) The Foreign-Currency Transactions Act 1996 (Zakon o deviznom poslovanju, OG RS no. 15/96 of 8 July 1996, amendments to which were published in OG RS no. 10/97 of 30 April 1997);

(b) The Postponement of Enforcement Act 2002 (Zakon o odlaganju od izvršenja sudskih odluka na teret sredstava budžeta Republike Srpske po osnovu isplate naknade materijalne i nematerijalne štete nastale uslijed ratnih dejstava i po osnovu isplate stare devizne štednje, OG RS no. 25/02 of 20 May 2002, amendments to which were published in OG RS no. 51/03 of 1 July 2003);

(c) The Foreign-Currency Transactions Act 2003 (Zakon o deviznom poslovanju, OG RS no. 96/03 of 24 November 2003);

(d) The Temporary Postponement of Enforcement Act 2003 (Zakon o privremenom odlaganju od izvršenja potraživanja iz budžeta Republike Srpske, OG RS no. 110/03 of 20 December 2003);

(e) The Settlement of Domestic Debt Act 2004 (Zakon o utvrđivanju i načinu izmirenja unutrašnjeg duga Republike Srpske, OG RS no. 63/04 of 15 July 2004, amendments to which were published in OG RS no. 47/06 of 11 May 2006); and

(f) The Old Foreign-Currency Savings Act 2006 (Zakon o izmirenju obaveza po osnovu stare devizne štednje, Official Gazette of Bosnia and Herzegovina (“OG BH”) no. 28/06 of 14 April 2006 – “the 2006 Act”).

In accordance with section 20 of the Opening Balance Sheets Act 1998 (Zakon o početnom bilansu stanja u postupku privatizacije državnog kapitala u bankama, OG RS no. 24/98 of 15 July 1998, amendments to which were published in OG RS no. 70/01 of 31 December 2001), as amended, liability for any debt arising from “old” foreign-currency savings shifts from the bank in which the savings have been deposited to the Republika Srpska upon the completion of the bank’s privatisation.

On 15 April 2006 Bosnia and Herzegovina took over from its constituent units the debt arising from “old” foreign-currency savings (section 1 of the 2006 Act).

The 2006 Act has been in force since 15 April 2006. The following are its relevant provisions.

“(1) This Act defines the procedure, manner and deadlines for the fulfilment of the obligations of Bosnia and Herzegovina arising from old foreign-currency savings deposited in local banks in the territory of Bosnia and Herzegovina.

(2) While Bosnia and Herzegovina shall be responsible for the fulfilment of obligations arising from old foreign-currency savings, the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District of Bosnia and Herzegovina shall provide the means.

(4) In accordance with the 2001 Agreement on Succession Issues, successor States to the former Socialist Federal Republic of Yugoslavia shall be liable for foreign-currency accounts opened at banks which had their seat in their respective territories. Bosnia and Herzegovina shall provide assistance, within the scope of its international activities, to the holders of such foreign-currency accounts ...

(5) Bosnia and Herzegovina shall fulfil its obligations defined in paragraphs 1 and 2 above following a verification process.”

“(1) Under this Act, old foreign-currency savings are foreign-currency savings in banks located in the territory of Bosnia and Herzegovina as at 31 December 1991, including interest earned until that date, less any payment after that date and any funds transferred to special privatisation accounts.

(2) Old foreign-currency savings defined in paragraph 1 above shall not include foreign-currency savings in branch offices located in the territory of Bosnia and Herzegovina of the Ljubljanska banka, Invest banka or other foreign banks.”

“According to preliminary data ... old foreign-currency savings amount to 1,979,000,000 Bosnian markas. The amount shall be determined in the verification process.”

“Any interest accrued after 1 January 1992 but not paid shall be cancelled. Interest for the period between 1 January 1992 and the entry into force of this Act shall be calculated afresh at an annual rate of 0.5%.”

“The fulfilment of obligations arising from old foreign-currency savings, if not verified in accordance with this Act, can only be requested in court proceedings.”

(2) Following the verification process, each claimant shall be provided with a certificate which identifies him or her and the amount of his or her old foreign-currency savings.

(3) The certificate referred to in paragraph 2 above ... shall include, inter alia, the following:

(c) a statement that the claimant will renounce any legal action following a cash payment;

(5) Following the verification process, a written decision shall be given to each claimant.

(6) It shall be permitted to appeal against a [first-instance] decision to the [competent second-instance body]. It shall be permitted to pursue an administrative dispute before the competent court against a [second-instance] decision.

(7) The legislation concerning administrative procedure of the Entities and District shall apply to the verification process.”

“An application for verification can be submitted by [16 October 2006] and the verification process shall be completed by [15 January 2007].”

(2) Should the claimant accept the amount determined in the verification process, the claimant shall sign a verification certificate. Following the claimant’s waiver of the right to appeal, a maximum of 100 Bosnian markas, or the total amount of savings lower than 100 Bosnian markas, shall be paid ...

(3) Furthermore, by the end of 2007 a maximum of 1,000 Bosnian markas, or the total amount of savings lower than 1,000 Bosnian markas, shall be paid. The remaining amount shall be reimbursed in State bonds in accordance with this Act ...

“... All State bonds shall be issued at the same time ... at the latest by 31 March 2008 on the following conditions:

(a) they shall become due within no more than thirteen years and at the latest by 31 December 2020 ...;

(b) they shall earn interest at an annual rate of 2.5%;

(c) they shall be redeemable before their maturity.”

“(1) Final judicial decisions concerning old foreign-currency savings shall also be subject to verification ...

(2) ... The provisions of this Act concerning the cancellation of interest, cash payments and State bonds shall apply.”

“The competent court shall of its own motion submit any pending case to the verification process in accordance with this Act.”

This Act was in force from 23 July 1998 until 25 May 2006. The following were the relevant provisions:

“A person who has ‘old’ foreign-currency savings in a bank located in the Republika Srpska and who is a citizen of the Republika Srpska at the date of the entry into force of this Act shall be entitled to coupons for the purchase of shares pursuant to this Act.

A person who is entitled to coupons in accordance with this section may decide to convert into coupons his or her entire savings or a part thereof.”

The privatisation coupons acquired in accordance with the above provisions were transferable; this included the possibility of selling them on the secondary market (section 22(2)). Any conversion into privatisation coupons was irrevocable (section 25(3)).

This Act has been in force since 12 November 2004. Section 10(3) provides that “old” foreign-currency savings may be used for the purchase of State-owned business premises and garages on condition that a minimum of 40% of the price is paid in cash.

In accordance with Article 239 of the Criminal Code 2003 (Krivični zakon Bosne i Hercegovine, OG BH nos. 3/03 of 10 February 2003 and 37/03 of 22 November 2003, amendments to which were published in OG BH nos. 32/03 of 28 October 2003, 54/04 of 8 December 2004, 61/04 of 29 December 2004 and 30/05 of 17 May 2005), non-enforcement of a final and enforceable decision of the former Human Rights Chamber amounts to a criminal offence:

“Any official of the institutions of Bosnia and Herzegovina, of the Entities or of the Brčko District of Bosnia and Herzegovina who refuses to enforce a final and enforceable decision of the Constitutional Court of Bosnia and Herzegovina, of the Court of Bosnia and Herzegovina or of the Human Rights Chamber of Bosnia and Herzegovina, or who prevents the enforcement of any such decision, or who frustrates the enforcement of the decision in some other way, shall be punished by imprisonment for a term between six months and five years.”


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 - Witnesses);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicant was born in 1974 and is serving a sentence in a correctional colony in Kineshemskiy District, Ivanovo Region.

Criminal proceedings were instituted against the applicant in Uzbekistan. The prosecution suspected that in February 1998 he and a Mr A. had robbed and murdered an elderly woman in Tashkent. After the murder they had allegedly packed the victim’s body in a box and given the box to bus drivers at a local market to transport it to a supermarket in another town. The applicant and his accomplice had also allegedly sold the victim’s property, including furniture, carpets, clothes, and household utensils, to a number of individuals in the days following the murder.

According to the Government, after committing the criminal offences the applicant fled Uzbekistan and returned to Russia. On an unspecified date Russian prosecution officials opened a criminal case against the applicant for crimes allegedly committed in Uzbekistan. On 17 November 2003 the applicant was arrested and placed in a detention facility in Ivanovo.

In 2004 the applicant was committed for jury trial.

On 24 April 2004 the Ivanovo Regional Court initiated the jury selection process. Twenty-five people reported for jury duty on that day.

Three potential jurors were excused for personal reasons. The prosecution successfully challenged one potential juror for cause and made two successful peremptory challenges. The defence made two jury challenges for cause and two peremptory challenges, which were accepted.

A jury of twelve was selected and two alternates appointed. It appears from the record of the jurors’ responses to the questions asked by the presiding judge that close relatives of five jurors worked for the police and at the Service for Execution of Sentences. In particular, the husband of juror no. 2 and the son of juror no. 4 worked as traffic police officers. The son-in-law of juror no. 3 was employed by the Service for the Execution of Sentences. The husbands of jurors nos. 11 and 13 worked for the police as telecommunications and radio operators respectively. In addition, two jurors on the panel had been victims of criminal offences. In 2000 juror no. 1 had been attacked by a drunk person, but the matter was subsequently settled out of court. In 1994 the son of juror no. 6 died as a result of a house collapse.

After the jury had been empanelled and sworn in, defence counsel challenged the entire jury venire upon account of partiality. The defence alleged that the fact that certain jurors had been victims of criminal offences could influence their judgment. The challenge for the array was dismissed.

On 24 November 2003 the President of the Ivanovo Regional Court sent a letter to Uzbek law-enforcement officials asking for assistance. The letter, in so far as relevant, read as follows:

“In compliance with the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, 22 January 1993), which came into force for Uzbekistan on 19 March 1994 and for Russia on 10 December 1994, the Ivanovo Regional Court asks competent officials of the Republic of Uzbekistan to provide legal assistance in a criminal case...

According to the case-file materials all the witnesses the court wants to call to testify in the present case live in the Republic of Uzbekistan.

In this respect, [I] ask you to provide legal assistance in ensuring the appearance of the witnesses in the criminal case before the Ivanovo Regional Court... at 10 a.m. on 20 January 2004, by serving the individuals listed below with the enclosed summons and by providing [the Ivanovo Regional] court with documents confirming that the summonses have been served:

[The Ivanovo Regional Court enclosed a list of thirteen witnesses, including their dates of birth and home addresses. All but two of the witnesses, lived in Tashkent. The remaining two were registered in the town of Dzhizak].”

A similar letter was sent on 26 November 2003 by the Russian Ministry of Justice to the Ministry of Justice of the Republic of Uzbekistan.

On 20 February 2004 the Ivanovo Regional Court issued a decision, which read as follows:

“[The applicant] is accused of murdering, on 22 February 1998, together with Mr A., an elderly woman, Ms B., in Tashkent, with the intention of taking her property.

[The prosecution] included Mr A. on the list of those to be heard in court as witnesses for the prosecution... Mr A. [who had already been found guilty of those offences by a court in Uzbekistan and sentenced to eighteen years’ imprisonment] is currently serving his sentence in [a correctional colony] in the town of Almalyk in the Tashkent Region of Uzbekistan.

Having regard to the fact that pursuant to Article 240 of the Russian Code of Criminal Procedure all items of evidence in a case, including statements by witnesses, are to be examined in open court, [I] consider it necessary to take steps to ensure the presence of that witness at a court hearing, in compliance with the requirements of international law.

Paragraph 5 of Article 456 of the Russian Code of Criminal Procedure, which defines how a person who is detained in a foreign State is to be called to a court hearing, refers to paragraph 3 of Article 453 of the Russian Code of Criminal Procedure, by virtue of which a request for legal assistance is to be submitted in accordance with an international agreement between the Russian Federation [and the foreign State]. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, 22 January 1993...)... plays the role of that international agreement in the present case.

Article 78.1 of the Convention provides for the possibility of conveying a person who is serving a sentence (if he agrees) to be questioned as a witness, following a decision by the Prosecutor General of the requesting State.

By virtue of Article 80 of the Convention the actions in question which require authorisation by a prosecutor (a court) are to be carried out by prosecuting authorities within the procedure defined by the Prosecutors General of the two States.”

On the same day the President of the Ivanovo Regional Court, relying on the norms of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”), sent similar letters to the offices of the Prosecutor General of the Russian Federation and that of the Republic of Uzbekistan. The court president asked the prosecuting authorities of the both countries to convey the applicant’s associate, Mr A., to Russia for him to testify in open court in the criminal case against the applicant.

In January 2004 the Ivanovo Regional Court received information regarding attendance by two witnesses from the list. A judge from the Dzhizak Town Court in Uzbekistan informed the Regional Court that the whereabouts of one witness were unknown and that another witness could not travel to Russia in view of his difficult financial situation. The judge also noted that the second witness stood by the statements he had given to the investigating authorities.

On 17 and 19 April 2004 the Regional Court received e-mails from two other witnesses who, in similar wording and citing their difficult family situation and poor health, informed the court that they were unable to attend the trial. The witnesses also gave their full support to the statements made during the pre-trial investigation. A telegram from another witness arrived on 23 April 2003. This witness refused to travel to Russia, citing poor health. The Regional Court did not receive any information pertaining to the remaining witnesses.

On 22 April 2004 the Ivanovo Regional Court held a trial hearing.

The prosecution requested the Regional Court to read out statements made by the prosecution witnesses and the applicant’s associate, Mr A., to the Uzbek authorities, arguing that it was impossible to obtain their attendance. Four witnesses failed to appear for various personal reasons and the remaining witnesses lived in Uzbekistan. The applicant and his counsel objected, relying on the defendant’s right to cross-examine witnesses testifying against him. The applicant noted that during the pre-trial investigation he had repeatedly asked the investigating authorities to hold confrontation interviews with the witnesses. However, his requests had been dismissed without any explanation.

The Regional Court agreed to read out statements by the four prosecution witnesses who had failed to appear for personal reasons, finding those reasons to be valid. As regards statements by the remaining witnesses and Mr A., the Regional Court held as follows:

“During the last six months the court has taken all lawful steps to ensure the witnesses’ presence, and certain witnesses have sent in information which confirmed that they had been summoned properly. Due to the fact that other witnesses live in another State, and taking into account that they confirmed their statements in a court hearing in the Tashkent City Court [during the trial against Mr A.], [the court] considers that the present extraordinary circumstances preclude their attendance [and] decides to read out the statements of the ... witnesses who failed to appear.”

The Regional Court read out statements by the remaining six prosecution witnesses and by Mr A. It also announced the results of photo-identification parades conducted by the Uzbek investigating authorities during which the witnesses had identified the applicant and Mr A.

A copy of the court hearing records presented to the Court by the parties show that in addition to the witnesses’ depositions the Regional Court studied the records of the crime scene examinations of 15 and 20 March 1998, an autopsy report, a document confirming the victim’s identity, a search report, a warrant for the applicant’s arrest and records of pre-trial confrontation interviews between Mr A. and the witnesses whose statements had been read out by the Regional Court. The Court further heard the applicant and his parents, who denied the applicant’s involvement in the robbery and murder and insisted that at the time of the crime he was staying with his family in Russia.

At the same hearing the applicant accused the prosecution of jury tampering and sought the discharge of the entire panel. He claimed that juror no. 1 had tapped the prosecutor on the hand and the prosecutor had responded with a nod of the head. Defence counsel supported the accusation claiming that he had witnessed the incident. The prosecutor denied the incident, stating that he was not acquainted with juror no. 1. Juror no. 1, in response to questions from the presiding judge, stated that he had not known the prosecutor before the trial and that he had never had a conversation with him. The presiding judge, without giving any reasons, dismissed the applicant’s challenge to the empanelled jury.

The parties’ closing arguments followed. The defence argued that there was no material evidence, such as fingerprints, bloodstains and so on, linking the applicant to the criminal offences, and that the applicant had been denied an important right to cross-examine witnesses against him.

On 7 May 2004 the jury, by eight to four votes, found the applicant guilty of aggravated murder and robbery.

On 12 May 2004 the Ivanovo Regional Court accepted the verdict and sentenced the applicant to eighteen years’ imprisonment.

The applicant and his lawyer appealed, arguing that the jury had not been fair and impartial because certain jurors had been victims of criminal offences and the prosecution had tried to exert improper influence on at least one of the jurors. They further alleged a violation of the applicant’s rights, having regard to the fact that at no stage of the proceedings had either he or his lawyer been offered the opportunity to question the prosecution witnesses.

On 8 July 2004 the Supreme Court of the Russian Federation upheld the conviction, finding that the investigating authorities and the Regional Court had not committed any serious violations of the criminal procedural law.

The Russian Code of Criminal Procedure provides that an officer of a court or a judge’s assistant has to compile a list of jury candidates for the trial. The candidates are to be drawn at random from the district or regional list of jurors. The candidates’ names are entered in the list in the order in which their lots were drawn. The list of jury candidates is then served on the parties. The parties have the right to make an unlimited number of challenges for cause and two peremptory challenges to potential jurors. The presiding judge decides on the challenges. After deleting the names of the successfully challenged candidates, the court secretary or the judge’s assistant makes up the list of the remaining jury candidates, whose names are to appear in the same order as in the first list. The twelve candidates whose names appear first on the list form the jury, and the two candidates whose names appear next become substitutes. Before the jury is sworn in, the parties may challenge the entire panel if they argue that due to particular features of a criminal case the panel will be unable to render an objective verdict. The presiding judge is to decide on any such challenge to the empanelled jury (Articles 326–330).

Earlier statements made by a victim or witness may be read out if the parties give their consent to it and if (1) there are substantial discrepancies between the earlier statement and the later statement before the court or (2) the victim or the witness has not appeared before the court (Article 281 § 1).

The court may, without seeking the consent of the parties, read out earlier statements by the defaulted a victim or witness in case of (1) death, (2) serious illness, (3) the refusal to appear by a victim or the witness who is a citizen of another States or (4) natural disaster or other force majeure circumstances (Article 281 § 2).

Chapter 5 of the Code determines steps to be taken when asking foreign authorities for legal assistance. In particular, Article 453 provides that a prosecutor, an investigator or a court, when they need to carry out an interrogation, a search, seizure or any other procedural action in the territory of a foreign State, may ask assistance from investigating or judicial officials of that State to organise/perform that procedural action. Records of procedural actions performed by foreign officials on a request by Russian authorities will have the same evidentiary weight as evidence received by Russian officials in the territory of the Russian Federation (Article 455). Article 456 deals with the issue of summoning witnesses who live outside the Russian Federation to give statements regarding a criminal case pending before Russian authorities.

The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia and Uzbekistan are parties, provides that a witness and a victim who are subjects of one Contracting Party can be summoned, for the purpose of their examination, by a “body of justice” of another Contracting Party. The witness and the victim are entitled to reimbursement of travel, and certain other, costs and expenses incurred in connection with their participation in the criminal proceedings (Section 9).

If a witness or a victim does not obey a summons to appear without a valid reason, they may be brought to a courtroom under escort (Article 113).

Witnesses and victims are entitled to reimbursement of costs and expenses incurred in connection with their participation in criminal proceedings (Article 131).

Witnesses and victims who live abroad may be summoned, with their consent, to criminal proceedings conducted in the Russian Federation (Article 456 § 1).

Article 413 of the Russian Code of Criminal Procedure, setting out the procedure for reopening of criminal cases, reads, in so far as relevant, as follows:

“1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances.

New circumstances are:

(2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to:

(a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

(b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms;

(c) other new circumstances.”


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant, Mr Stanislaw Lis, is a Polish national who was born in 1937 and lives in Sieradz. He was represented before the Court by Mr A. Pieścik, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

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

The applicant was allocated a flat in 1970 in a building owned by the Śródmieście Housing Cooperative in Szczecin. In the 1980s the applicant started experiencing problems with the ventilation system. He complained to the housing cooperative about this and the presence of carbon monoxide in the flat. On 30 March 1994 he sued the cooperative, inter alia, for an order that it repair the ventilation in the flat and for compensation.

On 7 April 1997 the Szczecin District Court ordered the housing cooperative to repair the ventilation system in the applicant’s flat by 31 March 1998. It further awarded the applicant compensation. It found on the basis of expert evidence that the ventilation system was malfunctioning because of a construction defect in the building. On 11 December 1997 the Szczecin Regional Court dismissed an appeal by the applicant. On 2 April 1998 a writ of execution was issued in respect of the judgment of 7 April 1997.

In August 1999 the cooperative concluded a contract with a contractor Jan-Mar concerning repairs to the ventilation duct in the applicant’s building. The works were terminated on 30 September 1999.

On 30 November 1999 the ventilation system was checked by a chimney sweep, who found that it now complied with the relevant norms.

On 4 January 2000 the applicant made an application to the Szczecin District Court for an order requiring the housing cooperative to comply with the judgment of 7 April 1997.

The ventilation system again started to malfunction and so on 1 June 2000 the housing cooperative concluded another contract with a construction company to repair the ventilation duct.

On 18 July 2000 the District Court set a time-limit until 31 August 2000 for the cooperative to comply with the judgment. At the time, it found that the judgment could also be executed by the applicant in the cooperative’s stead and at its expense.

On 4 October 2000 the housing cooperative informed the applicant that the repair works had been completed. However, the applicant was not satisfied with the result and requested the Szczecin Regional Sanitary and Epidemiological Station to take appropriate measures.

Subsequently, he requested an advance on the costs of the necessary works. However, in the subsequent proceedings, the District Court decided on the basis of an expert opinion that the judgment of 7 April 1997 could be executed only by the cooperative itself. According to an expert opinion, in order to repair the ventilation system in the applicant’s flat it was necessary to have access to and carry out works in other flats in the building, which precluded the applicant carrying out the works himself. On 23 April 2002 the District Court set a new time-limit of one month from the date on which its decision had become final for the housing cooperative to repair the ventilation system in the applicant’s flat. The applicant appealed. On 18 February 2003 the Szczecin Regional Court dismissed his appeal.

On 17 September 2001 and 18 February 2002 the ventilation system in the applicant’s building was checked. No technical irregularities were noted.

On an unspecified date in 2004 the housing cooperative instituted proceedings in the District Court against the applicant, claiming that it had complied with the obligations imposed by the judgment of 7 April 1997. On 16 February 2004 the Szczecin District Court imposed a fine of 500 zlotys (PLN) on the president of the housing cooperative or five days’ imprisonment in default for failing to comply with the court’s decision of 23 April 2002. It further ordered the cooperative to comply with the judgment of 7 April 1997 by 31 March 2004. In the event of default, a fine of PLN 700 would be imposed on the president and the deputy president of the housing cooperative. The housing cooperative appealed. It submitted that it had enforced the judgment of 7 April 1997. On 5 August 2004 the Szczecin Regional Court dismissed the appeal.

On 23 February 2005 the Szczecin District Court set a new time-limit of one month from the date on which its decision had become final for the cooperative to comply with the judgment and stated that the president and deputy president would be liable to a fine of 700 PLN in default. On 12 April 2005 the President of the District Court informed the applicant that the repair works specified in the judgment of 7 April 1997 could only be performed by the cooperative. In the event of a continued failure to comply, the applicant could request the imposition of higher fines.

According to official tests carried out in September 2005, the concentration of carbon monoxide in the applicant’s kitchen was over the permissible limit.

Meanwhile, on 4 November 2004 the housing cooperative filed a motion to stay the writ of execution on the grounds that it had complied with the obligations imposed by the judgment of 7 April 1997.

On 28 July 2006 the Szczecin District Court gave judgment in which it deprived the judgment of 7 April 1997 of its enforceability in so far as it had ordered the cooperative to repair the ventilation system in the applicant’s flat. It held that the judgment of 7 April 1997 did not indicate the exact manner in which the ventilation system was to be repaired and that it was not possible for the system to be repaired only in the applicant’s flat, as a more general solution had to be found. Works had been performed by the cooperative in 1999 and 2000 to restore the permeability of the ventilation system. While, according to several measurements that had been taken the level of carbon monoxide in the applicant’s flat was too high, that level also depended on the proper functioning of the ventilation system and the expert opinions indicated that the applicant himself had prevented the proper functioning of the system by sealing off the access of air through the windows. The District Court therefore concluded that the ventilation system in the applicant’s flat had been repaired in accordance with the judgment of 7 April 1997.

The applicant appealed. On 12 April 2007 the Szczecin Regional Court dismissed his appeal. It upheld the first instance judgment and referred to the expert’s opinion confirming that the cooperative had complied with the judgment of 7 April 1997

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are stated in the Court’s decisions in the cases of Charzyński v. Poland (no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V) and Ratajczyk v. Poland (no. 11215/02 (dec.), ECHR 2005-VIII) and judgment in the case of Krasuski v. Poland (no. 61444/00, §§ 34-46, ECHR 2005-V).