The applicant was born in 1937 and currently lives in the village of Veshenskaya, Sholokhovskiy District, Rostov Region.

On 13 June 2000 the Moskovskiy district prosecutor's office of St Petersburg brought criminal proceedings against the applicant on suspicion of the attempted murder of N. on 7 April 2000.

On 31 January 2002 the Moskovskiy District Court of St Petersburg examined the case in an open hearing in the presence of the applicant, his counsel and a public prosecutor. It convicted the applicant of intentionally inflicting grievous bodily harm on N. and sentenced him to two years' imprisonment. Under an amnesty law enacted on 26 May 2000, the court ordered that the applicant be discharged. It further ordered that he should pay pecuniary and non-pecuniary damages to the victim.

The court established the facts as follows. On 7 April 2000 at about 8 p.m., in the course of a quarrel with N., the applicant attacked N., knocked him off his feet, sat on him, grabbed his head and hit it several times against the asphalt pavement. As a result of the applicant's actions N. sustained head injuries including fractures to both parietal bones and a haematoma and a graze in the right parietooccipital region (fractures to the calvarium), a brain contusion, a haematoma in the region of the left eye and grazes to the face. The fractures to both parietal bones and the haematoma and the graze in the right parietooccipital region were assessed as severe injuries and the remaining injuries as moderately severe.

The applicant's version of events was as follows. He had been out walking with his one-year-old grandson when a man (N.) and a woman (B., N.'s wife), previously unknown to him, had approached them and rebuked him for not looking after the child properly. In the course of the quarrel which broke out between them N., who was in a state of inebriation, had insulted him and attempted to kick him. The applicant had managed to grab N.'s leg. N. had fallen and the applicant had fallen on top of him, resulting in N.'s head injuries. He had not hit N.'s head against the pavement.

It is clear from the judgment that the court based its findings on statements by the victim N. and his wife B., the record of a confrontation between the applicant and B. during the preliminary investigation, statements by witnesses E. and K., and the conclusions of the forensic medical examination.

Thus, N. stated before the court that when out walking with his wife he had seen a child and had called out, saying that the child could hurt himself. The applicant had then attacked him from behind. He did not remember what had happened next.

B. asserted at the hearing that she and her husband N. had seen the child and tried to attract someone's attention to the situation. They had then been approached by the applicant who was in a drunken state. He had insulted them using abusive language and had tried to hit her husband. They had carried on walking. The applicant had then attacked her husband, knocked him off his feet, sat on him, grabbed his head and hit it about five times against the pavement. He had then jumped to his feet and run away. An ambulance had been called and her husband had been taken quickly to hospital.

On 2 October 2000 during the preliminary investigation the applicant confronted B. In the course of the confrontation B. insisted that it was the applicant who had brought about the conflict and that he had knocked her husband off his feet, sat on him, grabbed his head and hit it about five times against the pavement.

Witness E., who was summoned to the court, failed to appear. On 23 January 2001 she wrote to the court as follows:

“I am writing to inform you that I cannot appear in court in the case [of Andandonskiy] because of my state of health and my age. My statements in the case and my passport details are with a district police officer from police station no. 68 who recorded statements made by me. I confirm those statements again.”

Her letter was received by the court on 29 January 2001.

According to the record of the hearing before the Moskovskiy District Court on 10 October 2001, submitted by the Government, the applicant and his lawyer did not object to the court's examination of the case (судебное следствие) being started in the absence of witness E., who had not yet been examined at the trial. When, at the end of that hearing, they were asked by the judge about the possibility of concluding the examination of the case in the absence of E., who was not able to attend for health reasons, and N., who had failed to appear due to his illness and authorised his wife to represent him at the trial, they replied:

“[We leave this decision] to the discretion of the court.”

Having then heard evidence from the victim B. and the prosecutor, the court ordered that the case be adjourned and that the victim N. should submit for the next hearing a written request for examination of the case in his absence.

According to the record of the hearing before the Moskovskiy District Court on 19 November 2001, submitted by the Government, the applicant and his lawyer did not object to the court's examination of the case being started in the absence of witness E. The record also shows that at that hearing the court read out, in accordance with Article 286 of the Code of Criminal Procedure, the statements which E. had given on 6 July 2000 during the preliminary investigation, as she was unable to attend the hearing for health reasons. No questions or additions followed from the applicant or his lawyer. In reply to a question by the judge, the applicant and his lawyer then expressly stated that they did not object to the examination of the case being concluded in E.'s absence. Having heard evidence from the victim B. and the prosecutor, the court ordered that the examination of evidence be concluded. The applicant and his lawyer made no comments in response. The court then proceeded to the pleadings.

In her statements made on 6 July 2000 during the preliminary investigation, which the court read out at the hearing on 19 November 2001, E. stated that she had seen the applicant knock the victim N. off his feet, hit his head at least five times against the pavement and run away. Being a doctor, she had examined the victim. She had seen that he was becoming unconscious and had explained what had happened to some people who were at a meeting of the residents of an adjacent block of flats. An ambulance had then been called.

The court heard evidence from witness K., who stated that she had been at a meeting of the residents of a block of flats when E. had run in and said that the applicant had killed a man. Everyone had run out into the street and seen a man (N.) sitting on a bench. There was blood on his head. She had not noticed whether he was in a state of inebriation. He had been taken quickly to hospital in an ambulance. She had learned from E. that the applicant had hit the victim's head against the pavement.

According to the report drawn up following the forensic medical examination which established the victim's head injuries, the blunt injury to the head (the fractures to the calvarium) “could have been caused by blows from the hand and/or by being hit against the pavement”.

The court considered that the applicant had denied beating the victim's head against the pavement in an attempt to mitigate his responsibility.

The court examined the medical expert's conclusion to the effect that the possibility of N.'s having sustained the injury in the parietooccipital region as a result of falling down onto the pavement could not be ruled out. In assessing that conclusion the court stated as follows:

“...the court takes into account that this conclusion was made on the basis of the statements by the defendant Andandonskiy, the assessment of which the court has already made above. Furthermore, the victim also had other head injuries which could not have been caused solely by falling from a standing position (see case file, pp. ...). Therefore, the aforesaid expert conclusion (see case file, p. ...) did not refute the statements by the victims [N.] and [B.] and the witness [E.].”

The court also examined statements by three witnesses, who testified that the fight between the applicant and the victim and his wife had been brought about by the latter who, being drunk, had behaved offensively, and that the applicant had not beaten the victim's head against the pavement. Two further witnesses stated that the victim and his wife had been in an inebriated state. The court considered that the above statements were aimed at helping the applicant to avoid responsibility for what he had done. Another witness, a member of the ambulance team who had examined the victim at the scene of the accident and taken him to hospital, testified that the victim N. had appeared to be in a state of inebriation. The court found that those statements were unreliable as there was no other corroborating evidence, for example blood-test results.

The Moskovskiy District Court of St Petersburg held:

“...in view of the nature of the defendant's actions – intentional beating of the victim's head against the pavement – and in view of the gravity of the injuries received by N., the court considers it necessary to classify the defendant Andandonskiy's actions as intentional infliction of grievous bodily harm, causing danger to human life, under Article 111 § 1 of the Criminal Code of the Russian Federation.”

The applicant appealed against the judgment on the ground, inter alia, that it had been based on statements by witness E., who had not been examined at the trial. He claimed that he had acted in self-defence and in defence of the child.

On 19 March 2002 the St Petersburg City Court upheld the judgment on appeal. It heard submissions from the applicant and his counsel, the victim's wife B. and the prosecutor. It stated, in particular, that the statements by witness E., who was born in 1920, had been read out at the trial in accordance with Article 286 of the Code of Criminal Procedure, since the trial court had lawfully found, on the basis of witness E.'s letter in which she referred to her age and poor health, that her appearance at the trial had been impossible. The trial court had taken account of the fact that B. and E., previously unknown to each other, had consistently asserted that the defendant had beaten the victim's head against the pavement more than once. Their statements had been corroborated by the conclusions of the forensic medical examination, and the fact that the victim N. had injuries to his face which, as the expert report confirmed, could not have been caused solely by falling and could have occurred before the fracture of the parietal bones. The City Court held that in those circumstances the judgment had been correctly based on the statements by B. and E., which were corroborated by the expert's conclusions.

Subsequent applications lodged by the applicant for supervisory review proceedings to be initiated were unsuccessful.

Pursuant to Article 240 of the 1960 Code of Criminal Procedure, in force at the material time, a first-instance court, in considering a case, must directly examine the evidence. In particular, it must question defendants, victims, witnesses and experts.

Under Article 286 of the Code, reading out at trial statements made by a witness at the preliminary investigation stage is allowed if the witness is absent from the hearing for reasons which make his or her appearance in court impossible.

Pursuant to Article 301 of the Code, the court must base its judgment only on the evidence which has been examined at the court hearing.

Article 264 of the Code regulates the keeping of a trial record in the first instance court. It does not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record exists, it is not attached to the official trial record. A party to the proceedings may challenge the accuracy of the official record within three days after having received a copy of it.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion;Article 8-1 - Respect for family life) (Conditional)

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The first applicant arrived in Germany in 1998, where he obtained a forged passport and a birth certificate stating a false identity indicating that he was a Portuguese national named Jose Joao Olas Pinto, born on 1 March 1969.

The second applicant is also of Ghanaian origin. She had arrived in Norway in 1997, at the age of seventeen, with a view to be reunited with her father and three siblings who still live in Norway. The first and second applicants met while she was travelling in Germany. The second applicant invited the first applicant to Norway and soon after they started cohabiting. They live in Oslo.

In 2000 the second applicant obtained Norwegian citizenship.

On 23 December 1999 the first applicant applied for a work- and residence permit as a citizen of the European Economic Area (hereinafter “the EEA”, established in 1994 under an agreement bringing the three member states of the European Free Trade Association (EFTA) – Iceland, Liechtenstein and Norway – and the twenty-seven member states of the European Union (EU) together in a single internal market, without the EFTA members having to join the EU). On the basis of the forged Portuguese passport indicating a false identity, the Norwegian immigration authorities granted him a five-year residence- and work permit from 13 April 2000 to 13 April 2005 as an EEA national.

On 23 September 2001 the couple had a daughter (the third applicant).

In 2003 the first applicant applied for Norwegian citizenship. The application was refused because the duration of his residence in Norway had been insufficient.

On 11 February 2005 the couple married in Ghana. According to the applicants, it was in that connection that the second applicant had become aware of the first applicant’s true identity as he obtained a Ghanaian passport.

The first applicant also used his false identity when he applied for renewal of his residence permit in the spring of 2005.

On 15 July 2005 the first applicant was arrested in the Netherlands while travelling to Canada, as the Dutch authorities discovered that his passport was forged. Subsequently, the first applicant provided his true identity to the Norwegian authorities. After a few months he returned to Norway.

On 12 October 2005 the Directorate of Immigration warned the first applicant about the possibility that he might be expelled from Norway.

On 3 May 2006 the Directorate decided that he should be expelled from Norway under section 29(1)(a) of the Immigration Act 1988 (according to which an alien may be expelled if he or she has committed serious or repeated violations of one or more provisions of the Act). Reference was made to the fact that by having provided false information in connection with his application for work permit on 23 December 1999, he had violated section 44 (cf. section 47(1)(b) of the Act). He had submitted false information regarding his date of birth, identity and nationality. Whilst the first applicant had stated that his name was Jose Joao Olas Pinto, a citizen of Portugal, born on 1 March 1969, his true identity had been Henry Antwi, a citizen of Ghana, born on 9 May 1975. The Directorate found that his expulsion would not be a disproportionate measure vis-à-vis him for the purposes of section 29(2). He was prohibited from re-entry for a period of five years (section 29(4)).

The Directorate also decided that these measures should be entered into the Schengen Information System, with the consequence that the expulsion in principle would apply to the entire Schengen area. He was given until 24 July 2006 to leave Norway.

On the same date as the above decision, the Directorate rejected the first applicant’s application for work-permit and family reunification with the second and third applicants on the ground of his expulsion.

On 4 September 2007 the Immigration Appeals Board rejected the first applicant’s appeal against the Directorate of Immigration’s decision of 3 May 2006. Like the Directorate, it observed that the first applicant had given false information about his identity and in support of this had submitted a forged passport. He had further maintained his false identity in his respective applications for Norwegian citizenship, for renewal of his work permit, and for family reunification. He had accordingly repeatedly committed aggravated violations of the immigration rules.

The Board found that the first applicant’s expulsion would not constitute a disproportionate measure vis-à-vis him, nor vis-à-vis his closest family members. In addition to having obtained a work permit as an EEA citizen on the basis of false information about his identity with the support of a forged passport, the first applicant had failed to comply with the order to leave the country by 24 July 2006. Strong interests of general prevention militated in favour of expulsion.

With reference to Article 8 of the Convention, the Board found that the first applicant’s personal links to Norway carried little weight. He had arrived in Norway at an adult age, had since returned to his home country and had also married the second applicant in Ghana, which suggested that he still had a strong attachment to his country of origin. In light of the gravity of the offences, his family links to his spouse and child could not be decisive in the global assessment. Since his relationship with the second applicant had been established during his residence on the basis of false identity, neither he nor she could entertain any legitimate expectation about being able to continue to live together in Norway if the matter was discovered. No weight could be placed on the fact that the second applicant claimed that she had been ignorant about the first applicant’s actual identity. Reference was made to the fact that she had been aware that he originally had a Ghanaian background and that, in connection with their marriage in Ghana on 11 February 2005, he had obtained a Ghanaian passport.

The Board further noted that the third applicant had been conceived and born while the first applicant resided on the basis of a false identity. Links established under circumstances as described above thus carried less weight. The fact that the applicants were living together as a family and that the first applicant had significant contacts with the third applicant, could not be decisive for the assessment of the case as a whole. Reference was made to the fact that the second applicant was originally of the same nationality as the first applicant and could more easily accompany the first applicant to their country of origin. In view of her young age, the child had the closest attachment to her parents and for this reason could eventually follow them to their home country. Also, the duration of the prohibition on re-entry was limited to five years.

Referring to section 4 of the Immigration Act 1988 (pursuant to which the Act ought to be applied consistently with Norway’s international legal obligations aimed at strengthening the foreigner’s position) and to section 4 of the Human Rights Act, which incorporated the Convention into Norwegian domestic law, the Board found that the first applicant’s expulsion would not be incompatible with Article 8 of the Convention or the United Nations Convention on the Rights of the Child. In this connection the Board had regard to the Court’s case-law, notably Amrollahi v. Denmark, no. 56811/00, § 35, 11 July 2002; Boultif v. Switzerland, no. 54273/00, § 48, ECHR 2001IX; Dalia v. France, 19 February 1998, § 54, Reports of Judgments and Decisions 1998I; Jakupovic v. Austria, no. 36757/97, § 31, 6 February 2003). The Board considered in detail the first applicant’s arguments based on Rodrigues da Silva and Hoogkamer v. the Netherlands (no. 50435/99, ECHR 2006I) and agreed with the Directorate that it was not directly applicable to the present case.

In sum, the Board was of the view that, having regard to the gravity of the first applicant’five years would not be a disproportionate measure either vis-à-vis the first applicant or vis-à-vis his closest family members, for the purposes of section 29(2) of the Immigration Act, Article 8 of the Convention and the UN Convention on the Rights of the Child.

Throughout the above proceedings before the immigration authorities the first applicant was represented by a lawyer.

The first applicant challenged the above decision before the Oslo City Court (tingrett), pending which it was decided in the autumn of 2007 to stay his expulsion.

On 28 March 2008 the Oslo City Court quashed the Immigration Appeals Board’s decision of 4 September 2007 as being invalid. The City Court found it obvious that the conditions for expelling the first applicant set out in section 29(1)(a) had been fulfilled. The first applicant’s offences of the immigration rules were aggravated and his expulsion was warranted by weighty considerations of general deterrence. According to the immigration authorities’ practice, a prohibition on re-entry would normally be made permanent in such cases. The reason why the prohibition on reentry had been limited to a period of five years in the present case was the fact that the first applicant had a six years’ old daughter (the third applicant). The question thus arose whether the expulsion of the first applicant for a period of five years would be a disproportionate measure visà-vis his daughter despite the seriousness of his breaches of the Immigration Act.

In this regard the City Court observed, inter alia, that the third applicant appeared to be an ordinary Norwegian girl and that it was not certain that it would be unproblematic for her to move to Ghana, even though this was her parents’ home country. One would have to take into account possible problems for her in the event of a return to Norway. If the first applicant were to be expelled to Ghana for a period of five years, his daughter would most probably loose the close contact she had with him. To deprive the child of her relationship with her father would be a serious measure and could have disturbing effects on the child’s development. This would be so even if she were to have the opportunity to visit him in his home country. Although considerations of general prevention militated in favour of expulsion, the measure would be disproportionate vis-à-vis the first applicant’s daughter.

The State appealed to the Borgarting High Court (lagmannsrett). At the request of the State, the High Court decided on 14 November 2008 to suspend the proceedings in the first applicant’s case pending the national outcome in a parallel case (Nunez v. Norway, no. 55597/09, 28 June 2011).

In a judgment of 19 January 2010, the High Court, by two votes to one, upheld the Immigration Appeals Board’s decision of 4 September 2007.

The High Court observed that the first applicant’s violation of the Immigration Act ought to be considered as serious. On four different occasions he had submitted false information about his identity to the immigration authorities and had supported this with a forged passport. First he had been issued with a permit - an EEA permit - despite his not being entitled to such a permit. On the second occasion, his application for citizenship had been refused on other grounds, namely the duration of his residence in Norway. On the third and fourth occasions, his application had been rejected because his expulsion had already been decided. False information about one’s identity made it very difficult for the authorities to exercise an effective control of a foreigner’s entry into and residence in Norway. To a large extent the system had to be based on confidence. General preventive measures suggested therefore that breaches of the immigration rules should entail adverse consequences for the person concerned.

As to the question whether, nonetheless, there was such an attachment to Norway as to make the expulsion disproportionate, the High Court observed inter alia as follows.

The first applicant had grown up in Ghana and had his family there. He had lived in Norway since the autumn of 1999. Since his attachment had been established on the basis of a residence permit that he had misled the authorities to grant him, he could not have had any legitimate expectation about being able to remain in Norway. The High Court found it clear that expulsion would not be a disproportionate measure vis-à-vis the first applicant.

As regards his wife, the second applicant, the High Court observed that she had originated from Ghana. She knew the culture and spoke the language of the country. Since the age of seventeen she had lived in Norway where she had her closest family, her father and three siblings. She was a Norwegian citizen, spoke Norwegian and was working in Norway. In 1999 she had started co-habiting with the first applicant in the belief that he held lawful residence in Norway as an EEA citizen. She thus had reason to believe that their marriage and his application for family reunification had not been necessary conditions for them to establish a reliable framework around their life together in Norway. She had become aware of her husband’s true identity when they had married in February 2005. Only when the false passport had been revealed in the Netherlands in the summer of 2005 had she become aware that he was not a Portuguese national. Nonetheless, the High Court found that her interests seen on their own could not render the expulsion a disproportionate measure.

The High Court found that a decisive consideration in this case was the interests of the daughter, the third applicant. She was eight and a half years of age and was a Norwegian national. She was in her third school year, active in sport and well established in her local environment. She only spoke Norwegian and a few words of her mother’s language – Twi – and English. Her parents spoke primarily Norwegian at home. It had been submitted that she needed close follow-up in relation to school and that it was the first applicant who assumed this contact, staying at home after having lost his work permit. It was also him who followed up her hobbies.

According to two medical statements dated 5 October 2007 and 18 September 2008, respectively, by the third applicant’s general medical practitioners, since she had been a child she had been suffering from rashes that worsened with heat.

The High Court pointed out that regard for the best interests of the child was a fundamental consideration to be taken into account in the proportionality assessment under section 29 of the Immigration Act.

The High Court found it established that in the event of the first applicant’s expulsion, either the family would be split, meaning that the second and third applicants would continue to live in Norway, or they would move with him to Ghana. This would clearly not be in the best interests of the daughter, who was born and had grown up in Norway and was very attached to her father. Naturally she also had strong bonds to her mother.

It ought to be expected that an expulsion would involve financial, emotional and social strain on established family life. This applied not least when family life was interrupted as a result of the expulsion. Strain of this kind was not in itself a sufficient indicator that expulsion would be a disproportionately severe sanction.

The High Court further pointed to the Supreme Court’s judgment reported in Norsk Retstidende (“Rt.”) 2009-534 (see Nunez, cited above, § 23), in which Norway’s international obligations were also assessed, including the European Court’s judgment in Rodrigues da Silva and Hoogkamer, cited above. In the High Court’s view, the interests of a child who had no special needs for care and who had a remaining parent able to provide satisfactory care should not be a decisive consideration in assessing whether an expulsion measure should be implemented.

According to the High Court, the third applicant was a normal girl for her age – eight years and a half – and had no special care needs. It saw no reason to doubt that her mother would be able to provide her with satisfactory care on her own. Since the child’s mother originated from the same country as the father, and had been on visits there with the daughter on three occasions, the situation was favourable for regular contact or, in the alternative, for the family’s settling in Ghana. Consequently, the expulsion of her father with a prohibition on re-entry for a limited period would not be a disproportionate measure.

As to the duration of that period the High Court was divided.

The majority did not find five years inconsistent with current practice or disproportionate. It observed that the case involved serious violations of the Immigration Act. According to the Supreme Court’s judgment in the Nunez case, an expulsion would only be disproportionate when it resulted in an extraordinary burden (see paragraph 63 of the Supreme Court’s judgment quoted in Nunez, cited above, § 23).

As to the present case, the High Court reiterated its finding above that the child’s mother would be able to provide the child with satisfactory care of her own. Since the child’s mother originated from the same country as the father and had visited the country with the daughter on three occasions, there were favourable conditions for maintaining regular contacts or, in the alternative, for the whole family to settle in Ghana. Thus the family had a better basis for maintaining family life and contact than would have been the case if the parents had not had the same country of origin.

The parents had informed the court that the daughter could not stay in Ghana for extended periods since she suffered from a skin rash that was aggravated by heat. However, it was clear that she had been in Ghana several times, most recently in October 2009. In the majority’s view, the information about the daughter’s rashes had not been sufficiently documented and could not be relied upon.

The minority was of the view that the imposition of a five-year reentry ban would be too severe and disproportionate a measure and that two-year ban would be appropriate, observing inter alia the following.

The gravity of the first applicant’s offences under the Immigration Act had been comparable to those committed by the applicant in the Nunez case, though less aggravated bearing in mind that he had not committed other offences in Norway and had not defied any prohibition on re-entry.

Since birth the daughter had been taken special care of by her father, who had followed her up in her recreational activities and through extensive contacts with her school. For a girl of eight years and a half of age, and for her mother, it would make a considerable difference were reunification of the family to take place in Norway after two to three years as compared to five to six years. Taking into account the normal processing time for a request for family reunification, the daughter would be nearly fifteen years before the family could resume cohabitation in Norway. The years in between would be important years.

Even though there was a possibility for the family to follow the first applicant to Ghana, this prospect was unrealistic. There was nothing to indicate that the family would easily find accommodation, work, etc. in Ghana.

The minority agreed that the evidence submitted in support of the affirmation that the daughter had a skin rash aggravated by heat was weak. Nonetheless, on the basis of the two statements form the daughter’s two general practitioners, it ought to be assumed that she had “a recurrent skin rash. The diagnosis had been somewhat uncertain.” As far as could be understood, one only had the word of the parents to the effect that the rash had been aggravated by heat; the general practitioners’ statements on this point had apparently been based on information provided by the parents.

However, it was unnecessary to further consider this matter since in any event for the third applicant to be interrupted for at least five years’ from her school, friends and hobbies in Norway in order to settle in a country where she neither knew the language nor the culture would be particularly unfortunate for her. Her knowledge of Norwegian would deteriorate and it would have social and educational consequences for her when returning to Norway at the age of fourteen or fifteen.

The minority in addition attached some weight to the second applicant’s interests, notably the fact that she had entered into the relationship, had given birth to a child and had married the first applicant in the belief that it would be possible to continue family life in the country of which she was a national and where most of her remaining family lived. It further had regard to the fact that the first applicant had come to Norway because of his wife and that their cohabitation had been established almost immediately after his arrival in the country.

On 28 April 2010 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg) unanimously refused the first applicant leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by other considerations.

In the above-mentioned judicial proceedings, the first applicant was represented by a lawyer at each judicial level.

Section 29 (1) (a) of the Immigration Act 1988 (Act of 24 June 1988 Nr 64, Lov om utlendingers adgang til riket og deres opphold her – utlendingsloven – applicable at the material time and later replaced by the Immigration Act 2008) read:

“Any foreign national may be expelled

a) when the foreign national has seriously or repeatedly contravened one or more provisions of the present Act or evades the execution of any decision which means that the person concerned shall leave the realm.”

Even when the conditions for expulsion pursuant to section 29 of the Immigration Act were satisfied, expulsion could not take place if it would be a disproportionate measure against the foreign national or the closest members of his or her family. Section 29 § 2 of the Immigration Act 1988 provided:

“Expulsion pursuant to the first paragraph, sub-paragraphs (a), (b), (c), (e) and (f) of this section, shall not be ordered if, having regard to the seriousness of the offence and the foreign national’s links to the realm, this would be a disproportionately severe measure vis-à-vis the foreign national in question or the closest members of this person’s family.”

According to section 29 (4), an expulsion order would be accompanied by a prohibition on re-entry into Norway. However, the person expelled might, on application, be granted leave to enter Norway. Furthermore, according to well-established administrative practice, when considering an application for leave to enter under section 29 (4), the Directorate of Immigration was under an obligation to consider the proportionality of its decision on prohibition on re-entry. The provision read:

“Expulsion is an obstacle to subsequent leave to enter the realm. Prohibition on entry may be made permanent or of limited duration, but as a general rule not for a period of less than two years. On application the person expelled may be granted leave to enter the realm, but as a rule not until two years have elapsed since the date of exit.”

Section 41 (1) provided inter alia:

“Any decision which means that any foreign national must leave the realm is implemented by ordering the foreign national to leave immediately or within a prescribed time limit. If the order is not complied with or it is highly probable that it will not lead to the foreign national’s leaving the realm, the police may escort the foreign national out. ... Any decision which applies to implementation is not considered to be an individual decision, cf. section 2 (1) (b), of the Public Administration Act.”


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria

The applicants were born in 1964, 1969, 1964, 1971, 1961, 1965, 1971, 1975, 1964, 1971 and 1965 respectively, and live in Adıyaman.

On 30 April 1999 the Adıyaman Governor authorised the holding of May Day celebrations in the Adıyaman Amphitheatre, located in the Hasancık District.

On 1 May 1999 a group of people, including the applicants, gathered in the building of the Health Workers’ Trade Union and started to walk towards the amphitheatre for the May Day celebrations. They were stopped by police officers. Stating that they had obtained prior authorisation from the Governor, the group attempted to continue its march. The police then intervened to disperse the group; the applicants were allegedly injured during this incident as a result of the force used by the police. According to the incident report, thirty-eight people, including the applicants, were arrested. The applicants were subsequently taken to the Adıyaman State Hospital, where they were examined by a doctor. The medical reports in respect of Ms Zeynep Saya, Mr Hasan Ölgün, Mr Müslüm Atasoy, Ms Zöhre Taş, Mr Nedim Çifçi and Ms Hediye Kilinç stated that there were no signs of ill-treatment on their bodies. As regards the remaining applicants, the following findings were indicated in the respective medical reports:

– Şeyho Saya: Tenderness on the back of the right leg and on the back.

– Çetin Taş: Tenderness on the lower left side of the chest and pain while breathing. Tenderness and pain on the right side of the forehead. Possible fracture of the ribs on the left side of the chest.

– Akın Doğan: Scratches on the back.

– Ali Murat Bilgiç: Tenderness and bruises on the left shoulder and the left arm.

– Bahattin Barış Bilgiç: Scratches on the right elbow, the right knee and hyperaemia on the left side of the chest.

The applicants were then taken into custody. They were released the next day.

On different dates in May 1999 the applicants filed criminal complaints with the Adıyaman Public Prosecutor against those police officers who had allegedly used excessive force during their arrest.

On 17 June 1999 the Adıyaman Public Prosecutor transferred the case file to the Adıyaman Provincial Administrative Council, seeking authorisation to bring criminal proceedings against the accused officers, pursuant to the provisions of Law on the prosecution of Civil Servants.

On 16 February 2000 the Adıyaman Provincial Administrative Council found that there was not enough evidence to initiate criminal proceedings against the accused officers and consequently refused to do so. On 1 September 2000 the applicants appealed against this decision. In their appeal petition, they invoked a breach of Article 11 of the Convention, arguing that the police interference had breached their freedom of assembly. On 14 June 2001 the Supreme Administrative Council upheld the decision of the Administrative Council.

In the meantime, on 1 June 1999 the Adıyaman Public Prosecutor, after examining a video recording of the incident, delivered a decision not to prosecute with regard to seventy demonstrators – including the applicants – who had been involved in the incident on 1 May 1999. In reaching his decision, the Public Prosecutor stated that the demonstrators had been stopped by the police, although they had been walking silently along the pavement, without presenting a danger to the public or engaging in any violent activities. It was also indicated in the decision that, pursuant to section 24 of the Assemblies and Marches Act (Law no. 2911), the police were under an obligation to warn the group out loud to disperse; however, it was observed from the recording of the incident that they had failed to do so. In consequence, the public prosecutor held that the accused had not violated Law no. 2911.


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

The applicant, Mrs Diāna van Deilena, is a Latvian national who was born in 1975. According to the information provided by the applicant, she lives in the Valka district.

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

On 31 October 2001 a public prosecutor dismissed a request submitted by B.D.V. to institute criminal proceedings against the applicant, who had allegedly abused her powers as a bailiff.

B.D.V. appealed against the decision to the Prosecutor General. She also complained to the Head of the Clemency Board of the Chancery of the President Member of Parliament and to a member of parliament. The latter subsequently contacted the Prosecutor General, asking him to pay particular attention to the appeal.

On 21 February 2002 a prosecutor of the Prosecutor General’s Office initiated criminal proceedings against the applicant in response to B.D.V’s complaint.

On 24 January 2003 public prosecutor S.G. charged the applicant with abuse of her position as a bailiff.

On 12 November 2003 the same prosecutor finished drafting the bill of indictment (apsūdzības raksts) in the applicant’s case.

On 19 November 2003 the criminal case was transferred to Rīga Ziemeļu District Court for adjudication.

Information concerning the pre-trial investigation in the applicant’s criminal case appeared in a number of articles published in various Latvian newspapers and was broadcast on the radio and television before the first-instance court proceedings. According to the applicant, public statements made by public prosecutor D.K.V. on 26 February 2002, by prosecutors S.G. and D.K.V. on 3 February 2004, and by the judge of the Ziemeļu District Court, N.R., and prosecutor D.K.V. on 6 July 2004 had undermined her right to be presumed innocent.

On 30 September 2004 the applicant was found guilty of having abused her position as a bailiff and of fraud, and sentenced to two years and six months’ imprisonment. She was arrested in the courtroom.

The applicant appealed against the lower court’s judgment and requested, inter alia, that the preventive measure imposed on her pending the appeal proceedings be changed. The applicant indicated that she had suffered from bronchial asthma since childhood and therefore required special medication and adequate nutrition and living conditions, needs which would not be met in detention.

On 11 November 2004 the Rīga Regional Court lifted the detention order pending the outcome of the appeal.

On 19 December 2005 the Rīga Regional Court upheld the judgment of the first-instance court and ordered the applicant’s imprisonment. The court noted that although the applicant’s state of health was to be regarded as a mitigating circumstance, it did not warrant changing the sentence to a more lenient one.

On 22 May 2006 the Criminal Chamber of the Supreme Court dismissed the applicant’s appeal on points of law.

On 28 July 2006 the applicant applied to the Ziemeļu District Court, requesting postponement of the execution of the prison sentence due to her poor state of health.

Between 14 and 25 August 2006 the applicant was hospitalised. She was diagnosed as suffering, inter alia, from persistent bronchial asthma of moderate severity, emphysema and dermatitis. Medical treatment was recommended.

On 16 August 2006 the Ziemeļu District Court established that since 14 August 2006 the applicant has been hospitalised because of the exacerbation of her bronchial asthma, and postponed the execution of the sentence until the applicant’s discharge from hospital.

The applicant appealed against the decision, arguing that her state of health had deteriorated and that it would be necessary to continue rehabilitation and physical therapy even after her discharge from the hospital.

On 8 September 2006 the Rīga Regional Court examined the applicant’s ancillary complaint. The public prosecutor participating in the hearing stated that the applicant had suffered from bronchial asthma since birth, and that, according to him, although the illness could not be completely cured it would be possible to provide the applicant with the recommended inhalation treatment and medication in prison.

The court dismissed the applicant’s complaint, establishing that the applicant had been discharged from hospital on 25 August 2006 and that there was no evidence that her state of health would preclude the execution of the sentence. It also noted that the applicant had not claimed that she could not receive the recommended medication in prison.

On 17 October 2006 the applicant requested that the Ziemeļu District Court postpone the execution of the sentence because of a rehabilitation course she had to undergo between 23 November and 23 December 2006.

On 13 November 2006 the Ziemeļu District Court dismissed the request.

From 23 November to 23 December 2006 the applicant underwent the planned rehabilitation course.

On 11 January 2007 the applicant started serving her sentence in Iļğuciema Prison.

In her initial complaint of 17 November 2006 the applicant alleged that during the period from 30 September 2004 until 11 November 2004 she spent in Iļģuciema Prison pending trial (see paragraphs 10 and 12 above), her state of health had deteriorated due to the poor detention conditions and absence of adequate medical assistance.

From January to May 2007 the applicant was detained in Iļģuciema Prison under a partly closed imprisonment regime.

In her complaint of 26 February 2007 the applicant described her cell as small, insufficiently ventilated and dusty. She alleged that as a result in addition to two types of asthma medication she also had to take other medication on a daily basis, such as painkillers for headaches. Intensive use of her inhaler had had an adverse effect on her already ailing stomach.

As to access to emergency medical assistance, the applicant noted that when another detainee had called for emergency help, it had arrived only after an hour. The applicant was thus not sure whether the same would happen to her.

The applicant further stated that the doctor was available only once a week on appointment.

As to the access to medication, the applicant submitted that she had had to wait two weeks to receive a gel for back pain. Since medication was distributed by the medical personnel twice a day, at 10 a.m. and 6 p.m., and had to be used immediately, the applicant had problems in following the doctor’s recommendations that she take her medication before or after meals. She also complained that she did not have access to physiotherapy, and that she could not follow the principles of ergonomics owing to the lack of appropriate furniture in her cell.

On 29 March 2007, after the applicant’s complaint had been communicated to the Government, the applicant’s husband wrote on behalf of the applicant to inform the Court that the applicant wished to complain about the fact that she had not been separated from her fellow inmates. He also referred to a letter she had sent him in which she mentioned that her back pain and asthma had worsened, but that over the last few weeks the prison medical personnel had been trying to take care of her. In particular, she was visiting the doctor on a weekly basis and had received vitamin injections in order to ease her back pain. She had also received herbal treatment to avoid excessive use of her inhalers, and was receiving additional pills for asthma on a weekly basis.

On 21 December 2007, in reply to the Government’s observations, the applicant submitted further information which, according to her, demonstrated the poor quality of medical assistance in prison. The applicant stated that once a week she could visit the head doctor and a general practitioner, but that the latter had left the office in September 2007. She further contended that the doctors had done nothing to prevent her from increasing the use of inhalers, and that her lungs had only been checked a couple months after her arrival. She admitted having refused to have an x-ray because she had had two before her imprisonment. The applicant also referred to the fact that if she wished to consult a doctor of her choice in Iļģuciema Prison, it would take about two months to arrange.

The applicant admitted that the medical unit of Iļģuciema Prison had some medication and vitamins, and that she received several types of medicine for asthma. She complained, however, that the purchase of medication was a lengthy procedure and therefore she usually purchased hers in advance; however due to the above procedure once she had had to wait several weeks to have a regular injection of vitamin B. She also mentioned that even though the head doctor had authorised the purchase of food supplements in May 2007 she had only obtained them in October 2007, when tests carried out outside the prison showed that she was hepatitis C positive. With respect to the latter condition, the applicant noted that in accordance with the instructions of her doctor, she was taking special medication and refraining from using painkillers.

She also complained that her medical card did not contain complete records of the medication she had received from the nurses of the prison medical unit, such as painkillers and medication for an allergy.

The applicant further contended that she had had to resolve the problem of a worn out bed herself by obtaining a wooden plank from her fellow inmate, and that she did not go on her daily walks because she was afraid of the other inmates who, according to her, considered her as a member of the law-enforcement institutions.

In May 2007 the applicant was transferred to a more lenient regime in Iļģuciema Prison and in January 2008 she was transferred to the Vecumnieki open prison. It appears that in August 2008, at the latest, she was released from prison.

Relying on the information provided by the Prison Authority, the applicant’s cell, which she shared with another inmate, measured 7.95 sq m. The cell was renovated five years ago, and provided access to daylight, ventilation and toilet facilities. The applicant had an hour of outdoor exercise a day. On 30 May 2007 the applicant was transferred to another regime under which time outside was not limited and she had access to an equipped gym.

Pursuant to the information provided by the Prison Authority, the applicant could make an appointment with any of the prison doctors (two generalists, a gynaecologist, a psychiatrist, an ear, nose and throat specialist and a dentist) once a week. For emergencies the doctors were on call from 8:30 a.m. to 5 p.m., and medical personnel were on duty in the prison twenty-four hours a day.

According to the medical records kept during the applicant’s imprisonment in Iļģuciema Prison (which at the time of submitting the Government’s observations had lasted almost five months) the applicant had been examined by the prison doctors eighteen times; on fifteen of those occasions she was examined at her own request. Throughout her stay the applicant had had all the necessary medication for her bronchial asthma, and had had her own inhaler.

At the Government Agent’s request, on 14 May 2007 the Inspectorate for Quality Control of Medical Care and Working Capability (“the MADEKKI”) assessed the adequacy of the medical assistance in Iļģuciema Prison. The conclusion stated that the inmates could have consultations with various certified medical doctors according to a schedule, and that the assistance of certified medical personnel was available twenty-four hours a day, including a certified nurse specialised in respiratory diseases. In cases of necessity inmates were admitted to a public hospital, and they could receive out-patient medical treatment at the medical unit of the prison. The latter was certified and supplied with the necessary medication.

From 13 May to 1 June 2007 the MADEKKI assessed the adequacy of the applicant’s medical treatment in Iļģuciema Prison. The MADEKKI report noted that the applicant suffered from moderate asthma, the treatment of which did not require permanent medical supervision. It also noted that, if necessary, the applicant could receive medical assistance in the medical unit of the prison, which was supplied with the necessary medication, including for bronchial asthma. The report concluded that the applicant’s medical treatment in Iļģuciema Prison had been adequate, and that treatment had been prescribed according to objective assessment of the applicant’s health. The conclusion of the report was not contested.

In September/October 2007 the applicant had a week’s leave from Iļģuciema Prison during which she underwent various out-patient medical examinations, including a comprehensive blood test and a tomography, and consulted her practitioner and neurologist. A CT analysis showed that the applicant had a spinal disc hernia. She was prescribed various medicines and physiotherapy. She was also diagnosed as hepatitis C positive.

In letters of 5 and 23 February 2007 the applicant asked for the assistance of the Ombudsman’s Office in obtaining a transfer to an open-type prison. The applicant contended that as a former bailiff she was entitled to separation from other inmates, but that in Iļģuciema Prison she could not avoid contact with other prisoners during walks, while shopping at the prison shop, during workshops and doing laundry or other activities.

On the basis of that complaint the Ombudsman’s Office launched an investigation in the framework of which he requested information from Iļģuciema Prison and arranged for a representative from the Office to visit the prison. On 14 August 2007 the Ombudsman informed the applicant that there were sufficient safeguards in place concerning the security of inmates in the prison, and that the applicant’s health and life were not under threat.

Pursuant to section 638(1) of the Law on Criminal Procedure (Kriminālprocesa likums), if deprivation of liberty has been imposed on a convicted person who has fallen ill with a serious condition that hinders the execution of a sentence, a court may suspend it until he or she recovers.

“4. Iļģuciema Prison

The material conditions of sentenced prisoners, who were located in Blocks 1 and 2, could be considered as globally acceptable. The prisoners were accommodated in well-equipped dormitories measuring from 24 to 40 m², holding from 4 to 12 persons each. Access to natural light, artificial lighting, ventilation and heating were adequate. Moreover, as a rule, the dormitories were in a satisfactory state of repair and cleanliness. Prisoners had easy access to outside toilets and showers, and had at their disposal a small kitchenette where they could prepare their own meals. Although of a relatively outdated design and presenting some signs of wear-and-tear, the detention units gave a pleasant - even homely - impression, with many plants and colourful decorations.

The regime of activities varied slightly according to the category to which the prisoners concerned belonged (based on the length of the sentence). Differences consisted essentially in the degree of freedom of movement and access to privileges, such as extended visiting time. However, all prisoners benefited from a wide range of activities - sport in the well-equipped gym, education (tailors vocational school programme, Latvian and English courses, and a computer class), games, TV room, library”.

The report of 15 December 2009 to the Latvian Government on the visit to Latvia carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (“the CPT”) from 27 November to 7 December 2007 notes:

“73. At the outset, the CPT welcomes the fact that the old Prison hospital on the premises of Rīga Central Prison has been withdrawn from service, following the opening of a new Prison hospital at Olaine on 1 August 2007. Further, it wishes to place on record the good quality of the health-care services provided to female prisoners at Iļģuciema Prison (including to mothers and their children)”.


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient

The applicants were born in 1931 and 1930 and live in Ankara and Hatay, respectively.

In 1965 the applicants bought a plot of land in Hatay from the Samandağ Municipality.

On 9 September 1976 the Ministry of Construction and Settlement conducted land consolidation proceedings and defined the coastline in the area where the applicants’ land was located.

On 27 April 1995 the Samandağ Municipality, acting on behalf of the Treasury, requested the Samandağ Court of First Instance in Civil Matters to determine whether the applicants’ plot of land was located within the coastline area. They claimed that, according to the Coastal Law, the land in question could not be owned by individuals and must only be used for public benefit purposes.

On 3 May 1995 a group of experts, composed of a geomorphologist, a cartography engineer and an agricultural engineer, appointed by the court, inspected the applicants’ land and concluded that it was located within the coastline area.

On 3 July 1995 the Samandağ Municipality filed an action before the Samandağ Court of First Instance in Civil Matters, on behalf of the Treasury, requesting the annulment of the record in the title deed registry of the applicants’ ownership. Furthermore, it requested the court to issue an injunction in order to prevent any transfer of that title until the end of the case.

On 19 September 1996 the applicants filed a petition with the court objecting to the expert report of 3 May 1995. They argued that, as the expert report failed to take into consideration the flora of their property as well as the features and age of the surrounding buildings, it could not be taken as a basis for the annulment of the record in the title deed register. Moreover, they maintained that the Municipality had not only disposed of the property as the original owner, but it had also encouraged the construction of buildings in the surrounding area, by implementing a development plan.

The court decided to obtain the opinion of another group of experts. On 28 October 1997, following a second inspection, the experts confirmed the first report. The summary of the report is as follows:

“The first cadastral survey was carried out in the area on 29 March 1948. Thus, the title deed of the plot of land was registered before the coastal law came into force. The plot of land in question is covered by the development plan, approved by the Ministry of Public Works and Settlement. However, at the present time there is no construction on this plot.

The inspection carried out in the surrounding area reveals that the land is situated on the beach which is considered as the prolongation of the sea. The soil has a sandy texture. There is no vegetation on the land, as the soil is not suitable for cultivation.

The land is located within the coastline. Thus the plot of land in question has to be under the authority of the State. It cannot be the subject of private property.”

On 16 December 1999 the Samandağ First Instance Court upheld the request of the Treasury and decided to annul the record in the title deed register. It also ordered the applicants to reimburse the legal expenses of the plaintiff.

The summary of the court’s reasoning in its final decision is as follows:

“At the time when the coastline had been determined, Law no. 6785 on urbanism (9 July 1956) was in force. The definition of the coastline found in Article 105 of Law no. 6785 is similar to the description in the Coastal Law (Law no. 3621). Article 43 of the Constitution provides that the coasts are under the authority of the State. This assertion is also established by Article 641 of the Civil Code, Article 33 of the Land Registry Law and Article 16 of the Cadastral Law. Thus, coasts cannot be subject to private property rights. As it is stated by the Constitutional Court in its decisions dated 25 February 1986 and 18 September 1991, the construction of buildings on these lands and the use of these buildings in good faith cannot provide a derogation from this rule.

In the light of the above, the court decides to annul the record in the title deed registry, which was in the name of the applicants. Furthermore it decides to prolong the interim measure, until the court’s decision becomes final.”

The applicants appealed against this decision, arguing that they had a vested interest on this property that had to be respected by the authorities. Furthermore, they maintained that, according to the cadastral survey which was carried out in 1938, the plot of land was designated as an unrestricted, public area. Since the cadastral planning of a location can only be carried out once, there cannot be any dispute concerning their property rights over the plot of land in question. Additionally, they claimed that the experts had erred in their establishment of the coastline.

On 3 October 2000, in view of the expert reports as well as the established case-law on this matter, the Court of Cassation upheld the decision of the Samandağ Court of First Instance.

On 30 April 2001 the Court of Cassation dismissed the applicants’ request for rectification of the decision as none of the conditions required by Article 440 of the Code on Civil Procedure were present in the case. The applicants were notified of the decision on 5 June 2001.

Article 43 of the Constitution provides:

“The coasts are under the control and at the disposal of the State.

Public interest has priority with regard to the exploitation of the sea coasts, lake shores or river banks and the coastal strip along the sea and lakes.

Taking into consideration the purpose of their use, the width of coasts and coastal strips and the conditions in which individuals can make use of these locations shall be determined by law.”


Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in 1944 and lives in Vinnytsya.

On 1 June 2000 the applicant’s son was beaten to death. On 8 June 2000 the prosecutors instituted criminal proceedings against M., D., Z. and C. (“the defendants”) on suspicion of having murdered the applicant’s son. On 29 December 2000 the prosecutors issued a bill of indictment and referred the criminal case to courts.

According to the applicant, on 11 December 2000, in the framework of the criminal proceedings, she introduced a civil claim against the defendants for compensation and on 21 February 2003 she amended her claim by increasing the claimed compensation. Despite the Court’s request, the applicant has failed to provide a copy of her claim. In their observations, the Government submitted a copy of the applicant’s civil claim dated 21 February 2003.

Following the Supreme Court’s two remittals of the case for fresh consideration, on 19 June 2009 the Staromiskyy District Court of Vinnytsya found M. guilty of intentional infliction of grievous bodily injuries on the applicant’s son that led to the latter’s death and sentenced him to ten years’ imprisonment. It further found C., Z. and D. guilty of hooliganism, sentenced them to various terms of restriction of liberty and discharged them because the limitation period had expired. The court also allowed the applicant’s civil claim and ordered M. and C. to pay her certain amounts in compensation for pecuniary and non-pecuniary damage.

On 20 August 2009 the Vinnytsya Regional Court of Appeal upheld the above judgment. There is no information in the case file whether the case was further considered on cassation.

In the course of the proceedings, two forensic expert examinations were carried out, the hearings were 25 times adjourned due to the defendants’ lawyers’ and once due to the witnesses’ failure to attend them. The hearings were also four times adjourned due to the applicant’s and the defendants’ lawyers’ failure to attend them (which delayed the proceedings to two months approximately).


Preliminary objections dismissed (victim, non-exhaustion of domestic remedies, ratione materiae);Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient

András Sajó;Anatoly Kovler;Christos Rozakis;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Giorgio Malinverni;Giovanni Bonello;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Khanlar Hajiyev;Kristaq Traja;Lech Garlicki;Matti Pellonpää;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä;Vladimiro Zagrebelsky;Zdravka Kalaydjieva

The applicant was born in 1929 and lives in Vittoriosa.

The applicant is the brother of Mrs M., who lived in an apartment above Mr F.

On 17 July 1985 Mr F. applied for an injunction to restrain Mrs M. from hanging out clothes to dry over the courtyard of his apartment, thereby allegedly interfering with his property rights. Mr F. relied on the provisions of Article 403 of the Maltese Civil Code in this connection.

On one occasion following a hearing on the injunction, and after Mrs M. and her lawyer, Dr A., had already left the courtroom, the presiding magistrate changed the date of a future hearing, which had already been fixed. As a consequence, Mrs M. was not aware of the new date and was not present at the hearing. In her absence, on 29 November 1985 the presiding magistrate issued the injunction in favour of Mr F.

According to Maltese law as it stood at the time, Mr F. had to institute proceedings in respect of the property claim preserved by the warrant within four days of the issuing of the injunction; otherwise the injunction would cease to have effect. Accordingly, on 5 December 1985, Mr F. lodged a writ of summons to start proceedings.

On 6 March 1992 the relevant court trying the merits of Mr F.’s civil action found against Mrs M. and issued a permanent injunction against her. On 24 March 1992, as no appeal had been lodged, the case became final.

On 6 December 1985 Mrs M. instituted proceedings before the Civil Court (First Hall) in its ordinary jurisdiction, claiming that the injunction had been issued in her absence and without giving her the opportunity to testify (see paragraph 77 below).

By a judgment of 15 October 1990, the Civil Court upheld her claim. It held that the audi alteram partem principle was applicable to the procedure for issuing an injunction. Referring to Article 873 § 2 of the Code of Organisation and Civil Procedure, which stated that an injunction should not be issued unless the court was satisfied that it was necessary in order to preserve any right of the person seeking it (see paragraph 27 below), the Civil Court held that the relevant test was a matter for the court’s discretion. However, if the court found it necessary to hear the parties, they should be duly heard in accordance with the principles of natural justice. In the present case the court held that, through no fault of her own, Mrs M. had been denied her right to be heard and therefore the said warrant was null and void.

Mr F. appealed against the judgment of 15 October 1990. In the first-instance proceedings Mr F. had been assisted by Dr U., while at the appeal stage he had appointed the latter’s son, Dr C. The Court of Appeal was presided over by the Chief Justice, who sat with two other judges. The Chief Justice was Dr U.’s brother and Dr C.’s uncle.

At the appeal hearing of 12 October 1992, the Chief Justice, after asking some questions, alleged that the conduct of Dr A. was unethical, as he had impugned, without justification, the conduct of Mr F’s lawyer. When it was noted that in the first-instance proceedings Mr F. had been represented by the Chief Justice’s brother, the Chief Justice threatened to refer the case to “the competent authorities”. Furthermore, he dictated a note to this effect, which read as follows:

“The court is asking Dr A., who himself is declaring that the date of the hearing at first instance had been changed when he and his client had already left the courtroom, why he insisted that the said change of date occurred consequent to a request by a lawyer. Dr A.’s reply is: ‘I deduce so, as there were two lawyers present: Dr U. and myself.’

... Mrs M.’s lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge, after he and his client had walked out of the courtroom.”

Dr A. said a few words in his own defence, but no oral submissions regarding the merits of the appeal were heard. The Chief Justice suspended the hearing and went to his chambers. A few minutes later the lawyers of both parties were called into the Chief Justice’s chambers. Explanations were heard and no further action appears to have been taken.

By a judgment of 5 February 1993, the Court of Appeal found against Mrs M. and reversed the judgment of the Civil Court. It held that principles of natural justice were not mandatory and could not be invoked in preliminary proceedings that were essentially conditional and of a temporary nature. Moreover, the Court of Appeal did not agree with the issue of fact mentioned in the first-instance judgment, in respect of the change in date leading to Mrs M.’s absence at the hearing. In this respect the judgment repeated in part the note which had been dictated during the hearing – “Mrs M.’s lawyer asserts facts and has no problem hypothesising about the behaviour of another lawyer and the judge, after he and his client had walked out of the courtroom”. The Court of Appeal further ordered the removal from the records of the case of a report which supported Mrs M.’s claim, which had been drawn up by the judicial assistant appointed by the Civil Court.

On 25 March 1993 Mrs M. instituted proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. Relying on Article 6 of the Convention, she alleged that the President of the Court of Appeal (the Chief Justice) lacked objective impartiality and that this had been manifest in the incident of 12 October 1992. Observing that the Court of Appeal had denied facts which had already been proved, she further submitted that her right to a fair trial had been violated.

Mrs M. died on 20 January 2002, before her constitutional claim could be determined. On 22 May 2002 the applicant intervened in the proceedings before the Civil Court in his capacity as brother of the plaintiff.

In a judgment of 29 January 2004, the Civil Court dismissed Mrs M.’s claim as frivolous and vexatious. Although it noted that the plaintiff had failed to request the Chief Justice to withdraw from the case before the pronouncement of the final judgment, it rejected the Government’s plea of non-exhaustion of ordinary remedies and decided to exercise its constitutional jurisdiction. As to the merits, it made a thorough analysis of the notions and rights emanating from Article 6 of the Convention, including equality of arms, but placed particular emphasis on the requirement of impartiality of the Civil Court. However, it was unable to find any link between the incident of 12 October 1992 and the content of the judgment of 5 February 1993. As confirmed by Dr A. himself, the incident had been defused; however, this could not have given Mrs M. or her lawyer any expectation that the Court of Appeal would rule in her favour. Furthermore, the Court of Appeal was composed of two other judges, who had not been involved in the incident, and there had been no doubt that the judgment, which appeared to be well-reasoned, had been delivered by the bench as a whole.

The applicant appealed to the Constitutional Court.

By a judgment of 24 October 2005, the Constitutional Court declared the appeal inadmissible. It reiterated that in accordance with Article 46 § 5 of the Constitution, no appeal lay against a decision dismissing an application as frivolous and vexatious.

Article 403 of the Civil Code reads as follows:

“(1) Tenements at a lower level are subject in regard to tenements at a higher level to receive such waters and materials as flow or fall naturally therefrom without the agency of man.

(2) It shall not be lawful for the owner of the lower tenement to do anything which may prevent such flow or fall.

(3) Nor shall it be lawful for the owner of the higher tenement to do anything whereby the easement of the lower tenement is rendered more burdensome.”

Article 873 of Title VI, Sub-Title V of the Code of Organisation and Civil Procedure, regarding warrants of prohibitory injunction, reads as follows:

“(1) The object of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant.

(2) The court shall not issue any such warrant unless it is satisfied that such warrant is necessary in order to preserve any right of the person suing out the warrant, and that prima facie such person appears to possess such right.”

Under Maltese law, as it stood at the time of the present case, a judge could be challenged or could abstain from hearing a case if one of the parties was represented by the former’s son or daughter, spouse or ascendant. Nothing prevented a judge from sitting in a case if the representative in issue was his or her brother or nephew. The pertinent Articles of the Code of Organisation and Civil Procedure, in so far as relevant, read as follows:

“The judges may not be challenged, nor may they abstain from sitting in any cause brought before the court in which they are appointed to sit, except for any of the reasons hereinafter mentioned.”

“(1) A judge may be challenged or abstain from sitting in a cause –

(e) if he, or his spouse, is directly or indirectly interested in the event of the suit;

(f) if the advocate or legal procurator pleading before a judge is the son or daughter, spouse or ascendant of the said judge; ...”

The relevant Article of the Code of Organisation and Civil Procedure was amended in 2007 to include another ground:

“(g) if the advocate or legal procurator pleading before a judge is the brother or sister of the said judge; ...”

Article 39 § 2 of the Maltese Constitution, in so far as relevant, reads as follows:

“Any court or other adjudicating authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial; ...”

On the basis of the material available to the Court in respect of the legislation of a relevant number of member States of the Council of Europe, it appears that there is widespread consensus on the applicability of Article 6 safeguards to interim measures, including injunction proceedings. This conclusion is inferred from constitutional texts, codes of civil procedure and domestic case-law. In the majority of States (Albania, Austria, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Estonia, France, Germany, Hungary, Ireland, Italy, The Netherlands, Poland, Russia, San Marino, Serbia, Spain, Sweden, Switzerland and the United Kingdom) legislation suggests that Article 6 procedural safeguards (particularly the impartiality requirement) apply to interim and injunction proceedings either because the legislation makes no distinction as to the stage or type of proceedings to which the safeguards apply (such as the Constitutions of Greece, Italy, Spain and Switzerland), or because specific provisions governing interim measures reflect in some way the main safeguards embedded in Article 6 – as, for example, legislation which specifies that provisions governing proceedings on the merits apply mutatis mutandis to injunction proceedings (such as Poland), or will do so, unless otherwise stipulated (such as Germany). The Belgian courts have explicitly dealt with the issue (see the judgments of the Court of Cassation in the cases of Greenpeace Belgium and Global Action in the Interest of Animals, of 14 January 2005) and held that Article 6 of the Convention was in principle applicable to interim proceedings (référé).

Article 47 of the Charter of Fundamental Rights of the European Union guarantees the right to a fair trial. Unlike Article 6 of the Convention, the provision of the Charter does not confine this right to disputes relating to “civil rights and obligations” or to “any criminal charge” and does not refer to the “determination” of such. In Bernard Denilauler v. SNC Couchet Frères (ECJ, Case C 125/79, 21 May 1980) the European Court of Justice (“the ECJ”) held that provisional measures given ex parte without hearing the defendant could not be recognised according to its case-law. This implies that such safeguards should apply also outside the context of final decisions.


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

On 15 October 1993 a chimney of a heating plant located in P. and belonging to the State Agency of Agricultural Property, adjacent to the applicant's horticultural farm, partly collapsed, causing damage in the farm. Apparently the applicant requested the Agency to pay compensation for damage which he had sustained. As his efforts to obtain compensation for damage failed, on 17 May 1994 he lodged an action against R.B., the administrator of the State-owned farm in P., with the Słupsk District Court, claiming compensation for the damaged vegetables and equipment. The applicant acted on behalf of “A. E.” limited liability company of which he was the sole shareholder.

On 8 June 1994 the Słupsk District Court decided that it lacked jurisdiction to examine the case and ordered that the case be examined by the Słupsk Regional Court. On 26 August 1994 the Słupsk Regional Court decided that the decision of 8 June 1994 was premature in that the District Court had failed to establish whether the defendant had been correctly identified by the applicant and, also, had failed to identify the amount of the compensation sought by the applicant, which was relevant for the determination of a court competent ratione materiae to examine the case. The court transmitted the case to the Commercial Division of the Słupsk District Court.

On 12 September 1994 the applicant lodged an appeal, submitting that the courts had limited themselves to transferring the case-file from one to another, and that there was no hope that any decision on the merits of the case would be taken in a reasonable future. On 16 September 1994 the court ordered the applicant to pay the court fee for the appeal. On 21 September 1994 the applicant requested to be granted exemption from the court fees. On 27 September 1994 the Słupsk Regional Court allowed his request.

On 3 November 1994 the Gdańsk Court of Appeal allowed the applicant's appeal and quashed the decision of 26 August 1994, finding that it was not in conformity with the law in that the Regional Court should have established itself the facts relevant for the decision which court had jurisdiction ratione materiae to consider the case.

On 26 January 1995 a hearing was held before the Słupsk Regional Court. The court decided again that it lacked jurisdiction to entertain the case and on 17 February 1995 transmitted the case to the Commercial Division of the Koszalin Regional Court. On 6 March 1995 the judge of that court ordered that the case be examined by the Civil Division of the Regional Court. On 8 March 1995 the case was registered at the Civil Division of the Koszalin Regional Court.

Subsequently the applicant waited for an unspecified time for this decision to be served on him. On 3 June 1995 he complained to the President of the Gdańsk Court of Appeal about the lack of progress in the proceedings. In reply, by a letter of 20 June 1995, the Judge-Supervisor in Civil Proceedings of the Koszalin Regional Court acknowledged that the proceedings were slow, in particular as there had been no progress since the case had been transferred to the Civil Division of the Regional Court on 8 March 1995. It had been only on 5 June 1995 that the judge had ordered the applicant to pay the court fees. However, there was no confirmation in the case-file that this order had been properly served on the applicant, which prevented the court from proceeding further.

In a reply of 23 June 1995 to the applicant's complaint about the lack of progress in the proceedings, the President of the Koszalin Regional Court informed him that his case was pending before that court. The President further noted that the problems with identifying the court competent to entertain the case had been in part caused by the fact that the applicant had lodged the action against a natural person, whereas his claim originated in fact from acts for which a State entity could be held liable. However, the applicant's complaint was in part justified, as the case-file had been transmitted to the competent court on 17 February 1995 and a period of three months of inexplicable inactivity followed.

On 30 June 1995 the applicant complained to the Minister of Justice about the lack of progress in the proceedings. His complaint was subsequently transmitted for reply to the Koszalin Regional Court. On 16 August 1995 the Judge-Supervisor in Civil Proceedings of the Koszalin Regional Court acknowledged that the proceedings had not been conducted speedily. It was further stated that on 7 June 1995 the applicant had been ordered to pay the court fees. On 14 June 1995 he had requested to be granted exemption from the court fees and subsequently the court ordered him to submit information as to his income. As the applicant had failed to do so, on 21 July 1995 the court ordered that the applicant's income be established on the basis of certain documents to be furnished by the relevant Tax Office. On 11 August 1995 the court requested the Oświęcim Tax Office to issue the relevant information. The Tax Office replied on 15 September 1995. Consequently, the court decided to grant the applicant exemption from the court fees.

At the hearing of 13 November 1995 the defendant's lawyer raised objections as to the applicant's capacity to represent the A.E. company. Consequently, the court requested the applicant to submit, within the seven-days time-limit, documents to prove that he was authorised to represent the company. On 10 January 1996 the court decided to stay the proceedings since the applicant had failed to comply with that order. On 23 May 1996 the applicant submitted the relevant documents to the court. On 27 May 1996 the court resumed the proceedings.

From June 1996 until August 1997 the judge rapporteur was ill. In August 1997 the case was taken over by another judge.

At a hearing on 7 October 1997 both parties presented their oral pleadings and expressed their willingness to reach a friendly settlement. The court stayed the proceedings. On 23 October 1997 the applicant requested the court to resume the proceedings since no friendly settlement had been reached.

On 16 January 1998 the court resumed the proceedings and partly quashed the applicant's exemption from the court fees. Furthermore, the court dismissed the applicant's request to appoint a lawyer paid under the legal aid scheme. On 28 January 1998 the applicant appealed against this decision. On 27 February 1998 the Gdańsk Court of Appeal apparently ordered that the applicant's legal aid request be re-examined by the Koszalin Regional Court.

On 25 June 1998 the Koszalin Regional Court again decided to dismiss the applicant's request to have a lawyer appointed to the case. The applicant appealed and on 2 October 1998 the Gdańsk Court of Appeal decided that the applicant's request be re-examined by the Koszalin Regional Court. On 14 January 1999 the Koszalin Regional Court again decided to dismiss the applicant's request. The applicant appealed and on 14 April 1999 the Gdańsk Court of Appeal dismissed his appeal.

A hearing on the merits of the case was held on 13 September 1999. At this hearing the court ordered that further evidence concerning the damage should be submitted by the applicant. On 29 September 1999 the applicant submitted the additional evidence. At the hearing held on 16 November 1999 the court decided to appoint an expert on agriculture in order to estimate the sum of compensation for destroyed plants. On 2 February the expert's opinion was submitted to the court. On 15 March 2000 the court held the hearing in the case and questioned the expert.

On 13 April 2000 the Koszalin Regional Court gave a decision awarding the applicant compensation in the amount of 7,506 PLN.


Preliminary objection allowed (non-exhaustion of domestic remedies);No violation of Art. 3;Violation of Art. 13+3;Remainder inadmissible;Damage - financial award;Costs and expenses partial award - Convention proceedings

On 3 October 1999 an individual was found bleeding in front of a discotheque with a broken jawbone. The applicant had previously had a confrontation with that person in the discotheque and both had been seen leaving at approximately the same time.

The victim's father filed a complaint with the police on an unspecified date naming the applicant as one of the perpetrators of the beating.

On 5 October 1999 a police enquiry or a preliminary investigation was opened into the incident. In a decision of the same day, the Slivnitsa Prosecutor's Office brought charges against the applicant and another individual for median bodily injury (Article 129 of the Criminal Code) and ordered their arrest. A police report of the same day considered them to have absconded as they had not been found at their known addresses. The applicant claimed, however, that the police never visited his official residence nor sent him a notice inviting him to appear for questioning. Thus, he claimed not to have been informed of the proceedings or that the authorities were looking for him.

On 22 November 1999 the applicant was placed on the national mostwanted list.

The applicant claimed, which the Government did not expressly challenge, that during this period he presented himself to the authorities and was charged with offences stemming from two other preliminary investigations which were being conducted against him at the time. In spite of being on the national most-wanted list, the authorities did not arrest him.

In a decision of 30 May 2000 the Slivnitsa Prosecutor's Office suspended the criminal proceedings until the arrest of the applicant.

The applicant claimed that after he found out that criminal proceedings for median bodily injury had been initiated against him he presented himself voluntarily at the Slivnitsa police station on 26 June 2000, accompanied by his attorney. He was detained immediately, separated from his attorney and, soon thereafter, transferred to the Slivnitsa Investigation detention facility. The fact that the applicant had presented himself to the police on his own accord was reflected in a police report of the same day. The applicant was not allowed further access to his attorney on that day.

On the next day, 27 June 2000, the applicant was charged with median bodily injury.

While in detention, the applicant was questioned on two occasions without his attorney, even though he requested her presence. He refused to give any statements to the authorities.

On unspecified dates, two witnesses were questioned by the authorities of which the applicant was not informed.

The preliminary investigation against the applicant was concluded on 16 May 2002. The resulting report of the investigator, which proposed that the criminal proceedings be discontinued due to insufficient evidence that the applicant was the perpetrator, was presented to the latter on 18 August 2002.

On the next day, 19 August 2002, the Slivnitsa Prosecutor's Office terminated the criminal proceedings against the applicant on the grounds that the accusation was not proven (Article 237, § 1 (2) of the Code of Criminal Procedure).

The applicant filed an appeal against his detention on the day he was detained – 26 June 2000. He claimed that there was no risk that he would abscond because he lived together with his family at a known registered address and had voluntarily presented himself to the authorities. The applicant also challenged the lawfulness of the order for his arrest and detention, because it had been issued solely on the basis of the complaint of the victim and he had never been invited to present himself to the authorities for questioning.

The applicant's appeal was examined on the next day, 27 June 2000. In a decision of the same day the Slivnitsa District Court dismissed the applicant's appeal on the basis that he had absconded and had been placed on the national most-wanted list as a result. From the minutes of the hearing it becomes apparent that there was some degree of confusion on the part of the parties as to whether the applicant had already been placed in pre-trial detention or was still being held in preliminary twenty-four hours police detention. The applicant claimed, which the Government did not expressly challenge, that the police report evidencing that he had presented himself voluntarily to the authorities on 26 June 2000 had not been presented for consideration by the court. In addition, he claimed that the examination of his appeal had been transferred to a new formation at the very last minute and that the presiding judge had previously ruled against him in a different set of criminal proceedings whereby he had imposed on him an administrative sanction.

Following the hearing on 27 June 2000, the applicant's attorney filed four petitions with the court seeking, inter alia, (1) to be allowed access to the investigation file, (2) a correction to the minutes of the hearing so that they reflected the applicant's assertions that he had voluntarily presented himself to the authorities, and (3) a copy of said minutes. Only the last request was granted.

The applicant appealed against the decision of the Slivnitsa District Court on 28 June 2000.

The appeal was examined and dismissed in a decision of 3 July 2000 by the Sofia Regional Court. During the hearing the prosecution presented the domestic court with a list of pending criminal investigations against the applicant which allegedly supported their argument that he might re-offend or abscond. His lawyer, however, challenged that assertion and noted that in some of those cases the applicant had presented himself to the authorities during the period when he was allegedly in hiding (see paragraph 10 above). In any event, the court found, in spite of the fact that the applicant had voluntarily presented himself to the authorities, that there was sufficient evidence that he might abscond or re-offend considering that he had already absconded in the context of the proceedings, had been placed on the national most-wanted list, had a prior conviction and there were other criminal proceedings opened against him. The court also considered that there was sufficient evidence that the applicant had perpetrated the offence with which he had been charged.

The applicant filed a second appeal against his detention on 13 July 2000, which was examined on 14 July 2000. In a decision of the same day the Slivnitsa District Court found in favour of the applicant and ordered his release on bail, which was to be paid within five days.

The applicant was released on 19 July 2000 after he deposited the bail amount.

The applicant was held at the Slivnitsa Investigation detention facility from 26 June to 19 July 2000.

The applicant contended, which the Government challenged, that (1) for the duration he was detained together with another three individuals in the same cell, (2) the cell had an area of six sq.m., (3) there were no windows or lighting, the cell being illuminated only from the light in the corridor, and (4) there were no beds, but just wooden racks on which to sleep and that the bed covers were lice-ridden.

The relevant provisions of the Code of Criminal Procedure (the “CCP”) and the Bulgarian courts' practice before 1 January 2000 are summarised in the Court's judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII (extracts)).

As of 1 January 2000 the legal regime of detention under the CCP was amended with the aim to ensure compliance with the Convention (TR 1-02 Supreme Court of Cassation). The effected amendments and the resulting practice of the Bulgarian courts are summarised in the Court's judgments in the cases of Dobrev v. Bulgaria (no. 55389/00, §§ 32-35, 10 August 2006) and Yordanov v. Bulgaria (no. 56856/00, §§ 21-24, 10 August 2006).

The State and Municipalities Responsibility for Damage Act of 1988 (the “SMRDA” : title changed in 2006) provided, as in force at the relevant time, that the State was liable for damage caused to private persons by (a) the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) the organs of the investigation, the prosecution and the courts in specific, exhaustively listed situations (sections 1-2).

In respect of conditions of detention, the relevant domestic law and practice under the SMRDA at the relevant time has been summarised in the cases of Iovchev v. Bulgaria (no. 41211/98, §§ 7680, 2 February 2006) and Yordanov (cited above, §§ 29-30).

In respect of the regime of detention, section 2 of the SMRDA provides, as relevant:

“The State shall be liable for damage caused to [private persons] by the organs of ... the investigation, the prosecution, the courts ... for [an] unlawful:

pre-trial detention..., if [the detention order] has been set aside for lack of lawful grounds;

indictment for a criminal offence if... the opened criminal proceedings have been terminated [on the ground] that the act was not perpetrated by the [accused] person...”

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС).

The reported case-law of the Supreme Court of Cassation under section 2, item 1 of the SMRDA prior to 2005 suggested that the term “lack of lawful grounds” referred to unlawfulness under domestic law (решение № 859/2001 г. от 10 септември 2001 г. г.д. № 2017/2000 г. на ВКС, решение № 978/2001 г. от 10 юли 2001 г. по г.д. № 1036/2001 г. на ВКС).

At the same time, the reported case-law during the same period under section 2, item 2 of the SMRDA excluded its applicability to instances when the criminal proceedings were discontinued at the pretrial stage on the grounds that the accusation was not proven (решение № 1085/2001 г. от 26 юли 2001 г. по г.д. № 2263/2000 г. на ВКС ІV г.о.).

On 22 April 2005 the General Assembly of the Civil Chambers of the Supreme Court of Cassation (the “Supreme Court of Cassation”) adopted Interpretative decision no. 3/2004 (Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС), which is binding on the domestic courts. It decreed the following under item 7 of the said decision:

“The respective organ [of the investigation, the prosecution or the courts] is also liable in the instances when the criminal proceedings have been terminated on the grounds that the accusation was not proven. The grounds for discontinuing [criminal proceedings] under Article 237, § 1 (2) of the Code of Criminal Procedure corresponds to the basis for seeking damage under section 2, item 2, alternative 3 of the SMRDA, namely '...that the act was not perpetrated by the [accused] person'”.

The Supreme Court of Cassation also decreed the following under item 13 of the said decision:

“The pre-trial detention is unlawful when it does not adhere to the requirements of [the Code of Criminal Procedure].

The State is liable under section 2, item 1 of the SMRDA when the pre-trial detention has been revoked as unlawful, irrespective of the [subsequent] development of the pre-trial and court proceedings. In such case, the compensation is determined separately.

If the person has been acquitted or the opened criminal proceedings have been terminated, the State is liable under section 2, item 2 of the SMRDA. In such case, the compensation for non-pecuniary damages includes the damage [stemming] from the unlawful pre-trial detention. If pecuniary damages have been suffered, the compensation for them is not included, but is awarded separately taking into account the particulars of each given case”.

The statute of limitations for actions for damage under the SMRDA is five years. In respect of persons seeking redress for criminal proceedings opened against them that are later terminated on the grounds that the act was not perpetrated by him or her, the time limit begins to run from the date of the decision for termination of the proceedings (section 110 of the Obligations and Contracts Act in connection with paragraph 1 of the Final Provision of the SMRDA and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС).

The CPT visited Bulgaria in 1995, 1999, 2002, 2003 and 2006. All but its most recent visit report have since been made public.

The Slivnitsa Investigation detention facility was visited in 2006, but the CPT report of that visit has not been made public.

There are general observations about the problems in all investigation service establishments in the 1995, 1999 and 2002 reports, which are summarised in the Court's judgment in the case of Dobrev (cited above, §§ 44-48 and §§ 52-55).