Violation of Art. 3 (procedural aspect);Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;Françoise Tulkens;Giorgio Malinverni;Guido Raimondi

The applicant was born in 1972. He is currently serving his sentence in Zabela Prison near Požarevac in Serbia.

On 9 February 2001 a couple were killed.

On 10 February 2001 at about 8 p.m. the applicant was arrested at his home in Grocka. He was taken to Smederevo police station and beaten up by police officers. He then confessed to having participated in the killing.

On 11 February 2001 the applicant was taken to Smederevo Prison.

On 13 February 2001 the applicant was taken to the investigating judge. He met his counsel there, who had meanwhile been appointed by the applicant’s wife, but he was not given the opportunity to talk with him in private. While the applicant confirmed his earlier confession, he complained to the judge that he had been beaten up by the police. The applicant was then examined at Smederevo Hospital. According to the medical report, he had a broken rib and bruises on his chest.

On 14 February 2001 the applicant was taken to the investigating judge again. His counsel was not present. The applicant met his counsel in private for the first time later that day.

On 17 February 2001 the applicant was returned to Smederevo police station and beaten up again. After having collapsed, he was taken to Smederevo Hospital. According to the medical report, he was concussed and had bruises on his head. The investigating judge was informed of the incident.

On 19 February 2001 the applicant appeared before the investigating judge again. His counsel was not present.

When the applicant was taken to the investigating judge for the fourth time on 16 March 2001, his counsel was present and he retracted his confession.

Following a criminal complaint lodged by the applicant’s counsel against unidentified criminal police officers, the public prosecutor obtained a report from Smederevo police station rejecting the applicant’s allegations. The public prosecutor also obtained the medical reports of 13 and 17 February 2001. On 24 September 2001 the public prosecutor decided not to prosecute and informed the applicant’s counsel of the possibility of starting a subsidiary prosecution within eight days. Counsel did not do so.

On 4 November 2002 the Smederevo District Court found the applicant and S.P. guilty of murder and sentenced each of them to forty years’ imprisonment. On 9 July 2003 the Supreme Court of Serbia quashed that judgment and remitted the case to the first-instance court for a retrial. It instructed the first-instance court to establish whether the applicant had been ill-treated by the police and whether any of his statements were therefore inadmissible.

At a hearing held on 13 May 2004, the applicant described his illtreatment in detail and named the alleged perpetrators for the first time. Counsel for S.P. then applied for the minutes of that hearing to be sent to the public prosecutor with a view to prosecuting the police officers named by the applicant. The public prosecutor, who was present at the hearing, raised an objection. She emphasised that a criminal complaint in that connection had been dismissed on 24 September 2001 and that her office had no intention of dealing with the same case again. Counsel for S.P. then applied for that prosecutor to be excluded from the proceedings. On 17 May 2004 the Smederevo District Chief Public Prosecutor rejected that application, but confirmed that the 2001 decision might be reconsidered in view of the new facts, notably the names of the alleged perpetrators.

On 27 December 2004 the Smederevo District Court found the applicant guilty of murder and S.P. of incitement to murder and sentenced each of them to forty years’ imprisonment. It held that the applicant had indeed been beaten at Smederevo police station. The applicant’s statements made there on 10 and 17 February 2001 were thus declared inadmissible. However, it regarded the statements which the applicant had made before the investigating judge on 13, 14 and 19 February as admissible. The court relied in that regard on an expert report prepared by a team of psychiatrists, stating that the applicant’s fear must have receded by the date of his appearance before the investigating judge.

The applicant appealed against the judgment of 27 December 2004. He maintained, among other grounds of appeal, that the admission of the statements which he had made before the investigating judge in February 2001 should have also been barred. On 13 May 2005 the Supreme Court of Serbia upheld the first-instance judgment.

The applicant appealed against the judgment of 13 May 2005. He repeated that the admission of the statements which he had made before the investigating judge in February 2001 should have also been barred. On 14 April 2006 the Supreme Court of Serbia, in a different formation, upheld the second-instance judgment.

On 3 November 2006 the applicant lodged a criminal complaint with the public prosecutor against six police officers in relation to the events of February 2001. On 18 January 2007 the public prosecutor decided not to prosecute. The reasons for that decision are unknown because the applicant was not informed thereof and the entire file was allegedly destroyed in early 2010 (that is, three years after the decision not to prosecute).

In March 2011 both the applicant and his counsel applied for the reopening of the criminal proceedings described above. On 17 March 2011 the Smederevo Higher Court rejected both applications. On 29 April 2011 the Belgrade Court of Appeal upheld the decision of 17 March 2011.

The Criminal Code 1977 (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force until 31 December 2005. The relevant Articles read as follows:

“(1) Any person acting in an official capacity who uses force or threat ... in order to extort a confession or another statement from an accused, a witness, or another person, shall be punished with imprisonment of between three months and five years.

(2) If extortion is aggravated by serious violence or results in particularly serious consequences for an accused in criminal proceedings, the offender shall be punished with imprisonment of at least three years.”

“Any person acting in an official capacity who ill-treats, insults or humiliates another, shall be punished with imprisonment of between three months and three years.”

The Code of Criminal Procedure 2001 (Official Gazette of the Federal Republic of Yugoslavia nos. 70/01 and 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) entered into force on 28 March 2002. Most criminal offences (including those mentioned above) are subject to public prosecution, but some minor offences are only subject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that a certain individual has committed a criminal offence which is subject to public prosecution. Article 61 of the Code provides that when the public prosecutor decides not to prosecute such an offence because of lack of evidence, the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of that decision.

The Code of Criminal Procedure 1977, which was in force until 28 March 2002, contained similar provisions (see Articles 18 and 60 thereof).

In accordance with Article 414 of the Code of Criminal Procedure 2001, as amended in September 2009, the reopening of a criminal trial may be sought where the Constitutional Court or an international court has found that the convicted person’s rights have been breached in the trial.


The first applicant, Michel Valmont, born in 20 March 1951, is a Seychelloise citizen, currently residing in the Seychelles. The second applicant is his wife, Shirley Valmont, who was born on 30 July 1936 and is a British citizen resident in Cardigan, Wales. The applicants are represented before the Court by Mr Barry J. Gawthorpe, a solicitor practising in Cardigan. The facts of the case, as submitted by the parties, may be summarised as follows.

A.

The first applicant arrived in the United Kingdom on 14 March 1976. When he arrived, he had the status of a citizen of the United Kingdom and the Colonies (CUKC) by virtue of section 14 of the British Nationality Act 1948, because the Seychelles was a British colony at the time of his birth. He was given leave to enter as a work permit holder for a period of 12 months. When the Seychelles became independent on 29 June 1976, he lost his CUKC status and became a citizen of the Seychelles only. However, since the Seychelles remained in the Commonwealth, he continued to hold the status of Commonwealth citizen, which status he retains.

The first applicant met the second applicant, who is British, in 1976. They started to live together as man and wife and on 27 August 1977 their twin children, Roseanne and Michel, were born. On 27 April 1978 the couple married, and on 15 June 1979 the first applicant was granted indefinite leave to remain in the United Kingdom.

On 5 December 1986, the first applicant returned to the Seychelles to attend to family affairs due to his father’s illness. On 2 March 1987 he returned to the United Kingdom and on 12 April 1987 he left for the Seychelles again. On 19 March 1988 he returned to the United Kingdom and on 17 July 1988 went back to the Seychelles.

The first applicant then suffered a series of health and employment problems and found it difficult to save enough money for his flight back to the United Kingdom. He and his wife did, however, keep in contact, and he also kept in contact with his children. The first applicant’s father died in 1993.

On 27 July 1996, the first applicant arrived in the United Kingdom. The second applicant had come to meet him at the airport. The first applicant told the immigration officer who interviewed him that he sought admission as a visitor for three months and that he intended to take employment on a farm owned by a friend. In addition, he told the immigration officer that he had a girlfriend in the Seychelles and to the customs officer he referred to that person as his “wife”. The immigration officer refused him leave to enter as a visitor because he was not satisfied that the first applicant intended to stay for the stated period since he had been unemployed in the Seychelles and he intended to work in the United Kingdom.

Although the first applicant did not seek entry as a returning resident at the time, the immigration officer and the chief immigration officer who authorised the decision to refuse leave to enter considered his application on that basis and concluded that he did not qualify as a returning resident since he had not been resident in the United Kingdom within the last two years. Moreover, according to the Home Office there was no evidence that there had been any intervening devotion between the applicant and his family in the United Kingdom. Arrangements were made for his removal on 24 August 1996.

The first applicant applied to the High Court for leave to apply for judicial review of the decision to refuse leave to enter. In the application the point was raised that he should be considered as someone having the right of abode in the United Kingdom under the Immigration Act 1971 (“the 1971 Act”). However, it was pointed out that under section 2(2) of the 1971 Act, as amended by the British Nationality Act 1981 (“the 1981 Act”), only a female Commonwealth citizen who was married to a British citizen would have the right of abode and that a male commonwealth citizen who was married to a British citizen did not. In addition, it was said that given that the case involved issues arising under Article 8 of the European Convention in conjunction with Article 14, the Secretary of State should have exercised his discretion in favour of protecting the relevant Convention rights.

On 28 August 1996 the court refused leave to apply for judicial review on the grounds that the Secretary of State had exercised his discretion properly.

The first applicant made a renewed application for leave to apply for judicial review to the Court of Appeal, raising the same points. On 4 September 1996 the Court of Appeal refused leave on the grounds that the facts of the case were not such as to suggest that the discretion should have been exercised in favour of the applicant and that the Secretary of State had acted lawfully since he had considered all material factors before him and had exercised his discretion reasonably. In connection with the argument that the Secretary of State had failed properly to exercise his discretion as he had not taken full account of Convention considerations, the Court of Appeal referred to the case of ex parte Brind ([1991] 1 AC 696) and a line of subsequent decisions, including R. v. Ministry of Defence ex parte Smith ([1996] QB 517).

The first applicant was deported to the Seychelles on 7 September 1996.

B. Relevant domestic law

Between 1976 and at least 1980, section 2 of the Immigration Act 1971 was applicable. This section stated (as relevant):

“(1) A person is under this Act to have the right of abode in the United Kingdom if –

[four categories, (a) – (b), none of which applied to the applicant]

(2) A woman is under this Act also to have the right of abode in the United Kingdom if she is a Commonwealth citizen and either –

(a) is the wife of any such citizen of the United Kingdom and Colonies as is mentioned in subsection (1)(a), (b) or (c) above or any such Commonwealth citizen as is mentioned in subsection (1)(d); or

(b) has at any time been the wife –

(i) of a person then being such a citizen of the United Kingdom and Colonies or Commonwealth citizen; ... .”

On 1 January 1983, the British Nationality Act 1981 (“the 1981 Act”) came into force. The 1981 Act replaced the concept of “citizenship of the United Kingdom and Colonies” with various categories of citizenship, including “British citizenship”. It also prospectively removed the distinction between men and women which had been contained in the old section 2(2) of the 1971 Act, whilst, however, retaining the right of abode for those who had obtained it under any provision in the old section 2, including subsection 2(2), which applied only to women. The new section 2, which is still in force, provides, so far as is material:

(a) he is a British citizen; or

(b) he is a Commonwealth citizen who –

(i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and

(ii) has not ceased to be a Commonwealth citizen in the meanwhile.”

A person who does not have the right of abode requires leave to enter the United Kingdom. At all material times, a person who, like the first applicant, had been granted indefinite leave to remain and had then left the United Kingdom could be permitted to return as a “returning resident” provided he was not absent from the United Kingdom for a period of over two continuous years (Statement of Changes in Immigration Rules, HC 395, paragraphs 15 and 18-20).


The applicants, whose particulars appear in the appendix, were represented before the Court by Mr Ľ. Mráz, a lawyer practising in Bratislava.

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

The applicants had originally served in the Police. On termination of their service they became entitled to a special monthly allowance for time served (príspevok za službu) pursuant to section 98 et seq. of the Act on Service in the Federal Police Corps (Law no. 334/1991 Coll., as amended). The allowance was paid to them by the Social Security Agency (“the Agency”) of the Ministry of the Interior (“the Ministry”) and its amount was calculated as a percentage of the applicants' monthly salary at the time of the termination of their service. The percentage depended on the number of the years served. Under section 98 (2) of Law no. 334/1991 Coll. the entitlement to the allowance expired once the officer in question recommenced “service”. The term “service” was understood to include also service in the Slovak Intelligence Service (Slovenská informačná služba - “the SIS”). It was the duty of the officer receiving the allowance to report the recommencement of “service” to the Agency within 8 days.

At various dates in 1995, 1996 and 1997 the individual applicants started to work for the SIS. They were subject to an order of the Director (“the Director”) of the SIS no. 39/1996 which forbade them to report the recommencement of their “service” to the Agency so that their affiliation with the SIS would be concealed.

The applicants thus continued receiving the allowance from the Agency (“the paid allowance”). At the same time they were receiving a salary from the SIS. The SIS was however withholding a part of this salary (“the withheld salary”) in an amount equal to the paid allowance. The applicants understood that the SIS would transfer the withheld salary to the State budget.

At various dates in 1998 the applicants' service in the SIS terminated and the latter reported the termination to the Agency.

The Agency subsequently reclaimed the paid allowance from the applicants on the ground that it had been paid to them without a valid legal title. The applicants unsuccessfully challenged the decision before the Ministry, accepted the debt and commenced paying it in instalments.

The applicants then lodged demands with the SIS for repayment of the withheld salary. As their demands were not met, they lodged a claim with the Bratislava III District Court (Okresný súd) and also sought interest for late payment of the principal amount.

In several separate decisions taken between May and November 2000 the District Court found that it had no jurisdiction to deal with the applicants' claims against the SIS and that the body to determine the matter was the Director. The District Court based its finding on sections 1 (3), 3 and 231 et seq. of the Act on Service in the Police, the SIS, the Corps of the Prison Guards and the Railway Police (Law no. 73/1998 Coll., as amended) and section 22 (b) of the Act on the Slovak Intelligence Service (Law n. 46/1993 Coll., as amended). The District Court thus referred the actions under Article 104 § 1 of the Code of the Civil Procedure to the SIS for a determination by its Director and discontinued the judicial proceedings in their respect. The Bratislava Regional Court (Krajský súd) upheld the decision on appeal.

On numerous occasions between September 2000 and August 2001 the applicants again turned to the SIS claiming repayment of the withheld salary plus penalty interests. Invoking the above judicial decisions the applicants demanded that the Director determine the matter by a formal decision and insisted that the repayment be made directly to them.

In August 2001 the SIS transferred an amount equal to a major part of the withheld salary of the applicant P. G. to his bank account.

At various dates in February and March 2002 the Agency informed the remaining 12 applicants that the SIS had transferred an amount of money equal to the part of their withheld salary to the Agency. In substance this amount was identical to the paid allowance. The Agency further informed these applicants that the part of the paid allowance which they had already repaid in the meantime would be returned to them.

Chapter (Časť) 5 governs the administrative judiciary. In accordance with its provisions administrative tribunals review the lawfulness of decisions taken by public administration authorities on the basis of administrativelaw actions under Section (Hlava) 2 of that Chapter and administrativelaw appeals under Section 3 of that Chapter. From 1 January 2002 the relevant provisions of this Chapter were amended by Law no. 501/2001 Coll. in that administrative tribunals also have the jurisdiction to review the “official conduct” of public administration authorities. Law no. 424/2002 Coll. further amended the provisions of this Chapter by defining detailed rules concerning actions against the inactivity of authorities of public administration. These rules are laid down in a new Section 4 and entered into force on 1 January 2003.

By virtue of Article 244 § 3 the notion of “official conduct” also includes inactivity of the administrative authority concerned.

Pursuant to Article 247 § 2 administrative tribunals are entitled to decide in administrativelaw actions against decisions delivered by administrative authorities where such decisions have become final after the exhaustion of all ordinary remedies.

Under Article 244 § 4 in conjunction with Article 250t any natural or legal person who alleges that an authority of public administration is not pursuing a matter, contrary to law and without a weighty reason may seek an order by an administrative tribunal to the authority concerned to proceed with the matter and to determine it within a fixed timelimit which cannot be longer than three months. Under Article 250u a failure to comply with the order can be sanctioned by a fine of up to 100,000 Slovakian korunas.

In its judgment (rozsudok) of 23 May 2002 (file no. 7 Sž 24/02) the Supreme Court found that the Ministry of Finance had been inactive in a set of administrative proceedings and ordered that the Ministry give a final decision in the matter within 30 days from delivery of its judgment.

In a resolution (uznesenie) of 16 June 2004 (file no. 23 S 102/03) the Banská Bystrica Regional Court found that the Banská Bystrica Land Registry Office wrongfully failed to determine the plaintiff's objections in land adjustment proceedings which were conducted before that office. The Regional Court ordered that the Land Registry Office determine the objections within 60 days and awarded the plaintiff reimbursement of her costs.

The right to protection of a person's dignity, honour, reputation and good name is guaranteed by Article 11 et seq. of the Civil Code. According to Article 11 any natural person has the right to protection of his or her personal integrity, in particular his or her life and health, civil and human dignity, privacy, name and personal characteristics.

Any natural person has the right to request that any unjustified infringement of his or her personal integrity should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction (Article 13 § 1).

Article 13 § 2 provides that in cases when the satisfaction obtained under Article 13 § 1 is insufficient, in particular because a person's dignity and position in society have been considerably diminished, the injured person is entitled to financial compensation for non-pecuniary damage.


The applicant, Mr Róbert Matulay, is a Slovakian national who was born in 1972 and lives in Bratislava. He is represented before the Court by Mr S. Jakubčík, a lawyer practising in Bratislava.

On 8 March 2002 the applicant was apprehended by the police.

On 9 March 2002 a police investigator accused the applicant and another person of a drugs offence.

On 25 April 2002 the Regional Court in Bratislava dismissed the applicant’s complaint against the decision to remand him in custody.

On 25 June 2002 the Bratislava II District Court dismissed the applicant’s request for release on bail. On 8 August 2002 the Regional Court dismissed the applicant’s complaint against that decision.

On 2 September 2002 the Bratislava II District Court extended the applicant’s detention until 8 March 2003.

On 13 November 2002 the applicant was questioned by the police investigator. He confessed to the offence. The applicant expressed his regret and applied for release.

On 6 March 2003 a public prosecutor informed the applicant that she had filed an indictment against him. In a separate letter of the same date the public prosecutor stated, in reply to the applicant’s complaint, that the police investigator had not submitted to her the applicant’s request for release of 13 November 2002. The public prosecutor notified the Bratislava II District Court thereof.

On 8 April 2003 the Bratislava II District Court returned the case to the public prosecutor as, due to procedural shortcomings, the applicant had not been able to study the case file in an appropriate manner. The District Court further decided that the applicant should remain detained on remand.

The applicant filed a complaint arguing that the District Court had not decided on his request for release of 13 November 2002.

On 1 July 2003 the Regional Court in Bratislava quashed the firstinstance decision of 8 April 2003. The Regional Court found that the District Court had violated several provisions of the Code of Criminal Procedure in that (i) a public prosecutor had attended the court meeting held in camera on 8 April 2003, and (ii) the presiding judge had not been entitled to deal with the applicant’s case as he had earlier decided on his detention. The Regional Court also noted that the District Court had not decided on the applicant’s request for release of 13 November 2002.

On 26 August 2003 the Bratislava II District Court returned the case to the public prosecutor. It also examined the applicant’s request for release and decided that the applicant should remain in custody.

On 16 September 2003 the applicant filed a complaint. He requested that he should be released.

On 18 November 2003 the Regional Court in Bratislava dismissed the applicant’s complaint. It found that the District Court had rightly returned the case to the public prosecutor as the applicant’s procedural rights had been violated at the previous stage of the proceedings. There were justified reasons to fear the applicant’s re-offending in case of his release. In particular, the applicant was unemployed and he could commit drugs offences in order to earn his living.

On 11 February 2004 a new indictment was filed against the applicant.

On 2 March 2004 the District Court ordered that the applicant be released. The evidence available indicated that the applicant had not played an important role in drug dealing. As a result of his detention his contacts with persons involved in such criminal activities had been cut. On 8 March 2004 the applicant was released from detention.

The District Court scheduled the hearing in the case for 18 May and 1 July 2004.

On 22 February 2007 the applicant informed the Court, at the request of its Registry, that the District Court had convicted the applicant of unauthorised production, possession and dealing in drugs on 17 May 2005. The court imposed a two years’ prison sentence on both the applicant and his co-accused. The judgment became final in the applicant’s respect as neither he nor the public prosecutor had appealed.

The co-accused appealed. The court of appeal modified the first-instance judgment in that it imposed a conditional prison sentence on him.

On 23 December 2003 the applicant filed a complaint with the Constitutional Court. He referred to the conduct of the proceedings by the Bratislava II District Court and the Regional Court in Bratislava and alleged a violation of his rights under Article 17 §§ 2 and 5 of the Constitution in that his application for release had not been examined speedily and that the length of his detention was excessive. The applicant invoked Article 48 § 2 of the Constitution with reference to the authorities’ failure to decide on his application for release and to procedural shortcomings in the proceedings at the preliminary stage. Finally, the applicant alleged a violation of Article 6 § 3(b) of the Convention and its constitutional equivalent in that his right to defend himself had not been respected at the pre-trial stage.

On 18 February 2004 the Constitutional Court declared admissible the applicant’s complaint under Article 17 §§ 2 and 5 and Article 48 § 2 of the Constitution related to the examination by the Regional Court in Bratislava of the application for release of 13 November 2002.

The Constitutional Court rejected the remainder of the applicant’s complaint. It held that it could not review the conduct of the proceedings by the District Court as it had been open to the applicant to seek redress in that respect before the Regional Court in Bratislava. As to the alleged violation of the applicant’s right to have adequate time and facilities for the preparation of his defence, the Constitutional Court noted that the case had been returned to the public prosecutor who had been ordered to eliminate the shortcomings complained of.

The decision on admissibility of the applicant’s complaint was served on his representative on 2 March 2004.

On 1 June 2004 the Constitutional Court found that the Regional Court in Bratislava, when dealing with the applicant’s request for release of 13 November 2002, had violated the applicant’s right under Article 17 §§ 2 and 5 of the Constitution.

The decision stated, in particular, that the Regional Court had taken almost two months to deal with the applicant’s complaint against the District Court’s decision of 26 August 2003 to dismiss his request for release filed on 13 November 2002. Such a period was excessively long. The applicant had been prevented from filing fresh requests for release until a final decision on his request of 13 November 2002 had been delivered. In the Constitutional Court’s view, there had been no violation of Article 48 § 2 of the Constitution in that context as the relevant issue, i.e. delays in proceedings on the application for release, was covered by a special provision, namely Article 17 § 2 of the Constitution.

When deciding on the applicant’s request for release on 18 November 2003 the Regional Court had not taken into account numerous and substantial procedural shortcomings which had occurred at the pre-trial stage and in the proceedings before the first-instance court. It had thereby violated the applicant’s right under Article 17 §§ 2 and 5 of the Constitution to be released in case of unlawful detention.

The Constitutional Court quashed the Regional Court’s decision of 18 November 2003 and returned the case to the latter court for further proceedings. It awarded SKK 40,000 (the equivalent of 1,000 euros at that time) to the applicant in respect of the violation of his right to a speedy review of his request for release.

The Constitutional Court held that the finding of a violation of the applicant’s right to be released taken together with its decision to quash the Regional Court’s decision of 18 November 2003 provided appropriate just satisfaction to the applicant. Finally, the Constitutional Court ordered the Regional Court to reimburse the applicant’s costs incurred in the constitutional proceedings.

The following provisions of the Constitution are relevant in the present case.

Article 17 § 2 provides that individuals can only be prosecuted or deprived of liberty for reasons and by means set out in the law. Under paragraph 5 of Article 17, a person can be remanded in custody only upon a decision given by a court, and for reasons and for a period of time set out in the law.

Article 48 is incorporated in the Seventh Section of the Constitution entitled “Right to judicial and other legal protection”. Paragraph 1 of Article 48 provides for the right to a hearing by a judge appointed in accordance with the law. Paragraph 2 of Article 48 guarantees to everyone the right to a hearing without unjustified delay, to have one’s case heard in his or her presence and to comment on the evidence taken.


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The applicant, Mr Victor Salinschi, is a Moldovan national who was born in 1961 and lives in Truşeni. He was represented before the Court by Mr G. Voicu, a lawyer practising in Danceni. The Moldovan Government (“the Government”) were represented by their Agent, Mr V. Grosu.

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

On 16 February 1995 a private company (“T.”) bought from the State an industrial building. The contract was authenticated by a notary on 23 February 1995 and was registered with the Bureau of Technical Inventory (which later became known as the Territorial Cadastral Office (“the TCO”)) on 27 February 1995.

In January 1999 that building was sequestrated by the State Fiscal Inspectorate (“the SFI”) in settlement of debts to the State. It was then offered for auction.

On 2 June 1999 the applicant succeeded in that auction. In accordance with the auction conditions, the applicant paid the price of the building (212,000 Moldovan lei, equivalent to 17,274 euros at the time) and signed the “Contract for the purchase of goods sold at auction” on 2 September 1999. According to clause 1.3 of the contract, the property right over the object sold at the auction was transferred to the buyer from the moment of signing the “act for the transfer of goods”.

The parties also signed the minutes of the auction, which provided, in section (4), the obligation of the buyer to register the contract of sale with the Bureau of Technical Inventory (which later became known as the Territorial Cadastral Office (“the TCO”)). In accordance with section (6) of the minutes, the seller undertook to conclude the contract for the sale of the item “in accordance with the law, the auction conditions and the present minutes”.

According to the applicant, in order to observe the requirements of sections (4) and (6) of the auction minutes, the applicant and an SFI representative appeared before a notary in order to have the contract authenticated. The notary refused, however, to authenticate the contract because the seller (the SFI) had not presented documents confirming that the building had belonged to T. and that the SFI had the right to confiscate it. No evidence was submitted to support this claim. However, the applicant submitted a letter from a notary dated 20 March 2006, according to which registration of his property right was impossible in view of certain deficiencies in the contract and the absence of several documents, which had to be produced by the seller.

The applicant requested the SFI to issue the relevant documents and to have the contract authenticated by a notary. On 15 September 1999 the applicant and SFI representatives signed an “act for the transfer of goods”.

On 29 December 1999 T. bought from the Chişinău Municipality a plot of land dependent on the building bought by the applicant at the auction.

The applicant requested the TCO to register his title to the building on the basis of the contract of sale. On 19 January 2000 the TCO refused registration because the contract had not been authenticated by a notary as required by “civil law”.

The applicant claims that he has no access to his building. His request to T. to vacate it and to allow him free possession was allegedly ignored.

On 9 June 2000 the SFI repeatedly sent the TCO a copy of the sequestration order concerning the building belonging to T.

On 25 August 2000 the TCO informed the applicant that no real property was registered as belonging to T. on that date.

On 26 September 2000 the SFI refused to issue the applicant with any additional documents or to participate in the authentication of the contract before a notary, stating that according to the contract of sale, Government Decision no. 685 and Law no. 633-XIII (see below) the applicant had become the owner of the building from the date when he signed the “act for the transfer of goods” (i.e. 15 September 1999). The SFI considered that it had fulfilled its part of the contract and had acted in accordance with the law.

On 19 December 2000 the SFI rejected another request by the applicant, following which he initiated administrative proceedings against it.

On 27 March 2001 the Chişinău Regional Court left the applicant’s claim unexamined because it was not subject to administrative jurisdiction. On 6 June 2001 the Court of Appeal quashed that judgment and ordered a full re-hearing of the case.

On 13 August 2001 the Chişinău Regional Court rejected the applicant’s claims as unfounded. The court found that the SFI had acted in accordance with the law and duly transmitted the rights in the property to the applicant when they both signed the ‘Act for the transfer of goods’ on 15 September 1999. The court added that, according to the law, the applicant’s property right could be registered based on the auction results and the contract concluded with the SFI, without any obligation for further formalities between the parties. It considered the refusal of the TCO to register the applicant’s right to be a separate issue that could be examined in other court proceedings, which the applicant refused to initiate.

On 14 November 2001 the Court of Appeal upheld that judgment, basing itself on essentially the same arguments. It added that the law expressly mentioned the rights of a successful bidder at auction, and that there was no need to register the contract with a notary. The judgment was final.

The applicant requested a review of that judgment. On 29 November 2001 the same panel of judges rejected that request.

In response to a letter from the applicant, the SFI replied on 20 March 2006 that T. had never challenged the SFI’s confiscation of the building which had been sold at the auction.

The relevant provisions of the Civil Code in force at the relevant time read as follows:

“Article 153

The owner may request the removal of any impediment to the enjoyment of his rights even if this impediment is not related to loss of possession.

Article 2402

Contracts for the sale of real estate belonging to natural and legal persons shall be authenticated by a notary and registered within three months with the [Territorial Cadastral Office].”

The relevant provisions of the Law on the real estate register no. 1543XIII (25 February 1998) read as follows:

“Section 29

... (3) The documents submitted for the registration of a title must ..., in the cases provided for by law, be authenticated by a notary and sealed.

... (5) The following shall not be accepted as a basis for registration of a title:

a) documents which do not correspond to the requirements under (2)-(4) above; ...”

The relevant provision of the regulation “Regarding the manner of sequestration and sale of goods”, adopted by Government Decision no. 685 of 23 June 1997 read as follows:

“After the signing of the sales contract the fiscal authority shall obtain the possession of sequestered goods...”.

The relevant provisions of the Law regarding the manner of forced collection of taxes and other payments no. 633-XIII of 10 November 1995 read as follows:

“Section 6(6)

(10) After signing the contract of sale at the auction, the fiscal authority shall transmit the sequestered item to the buyer. The property right passes to the buyer from the moment of signing the act for the transfer of goods.”


CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 2)

Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - award

George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The individual applicants were born in 1938, 1954, 1940, 1932, 1949, 1931, 1948, 1951, 1933, 1952, 1964, 1929 and 1944 and live in Krupnik, Sandanski, Gotse Delchev, Ilindentsi, Katuntsi, Kamena, Petrich and Kolarovo. They are all members of Ilinden’s managing council.

The relevant background circumstances are described in detail in paragraphs 921 of the Court’s judgment in the case of United Macedonian Organisation Ilinden and Others v. Bulgaria (no. 59491/00, 19 January 2006).

On 20 October 2002 a group of one hundred and eleven supporters of Ilinden held a meeting at which they resolved to form a non-profit association. They adopted its articles and elected its bodies, including thirteen members of its managing council.

Clause 6(1) of the articles, which defined the association’s goals, said, inter alia, that Ilinden was “a successor and continuer of the national liberation struggle of the Macedonian nation”, including the “Macedonian fighters who fell victim to Bulgarian state terrorism and genocide”. Clause 6(2) specified that Ilinden “recognise[d] and respect[ed] the territorial integrity of the Republic of Bulgaria and its laws and constitution, but only if they [were] consonant with international law and international agreements on human rights, fundamental freedoms and minorities’ rights”. Clauses 6(4) and 6(5) stated that Ilinden’s goals included “expressing and defending the civil, national, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction), and of the Macedonians who live in Bulgaria” and “requesting cultural autonomy status for Pirin Macedonia in order for the assimilation process to be stopped”.

Clause 7(1) to (6) of the articles provided that to attain its goals Ilinden would propagate Macedonian culture and traditions, hold meetings to commemorate historical dates, “nominate Macedonians for Members of Parliament”, petition the government and various international institutions for the “national rights of the Macedonians”, and organise conferences and seminars.

Clause 32(1) said that the association would be run and represented by a managing council. According to clause 32(3), it would have three to seven members. However, clause 32(5) specified that the first managing council would have three members.

On 21 October 2002 Ilinden applied for registration to the Blagoevgrad Regional Court. In a judgment of 18 November 2002 the court refused to register the association. It gave the following reasons:

“The evidence ... shows ... that the activities of the organisation seeking registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation. This is apparent from the association’s main goals ... and the means for attaining them...

Their wording ... shows their political character. ...The organisation says that it is a successor of and continues the ‘national liberation struggle of the Macedonian nation’, including the ‘Macedonian fighters who fell victim to Bulgarian State terrorism and genocide’[. Its articles of association] specify that [the organisation] will respect the territorial integrity of the Republic of Bulgaria, but only if ‘[it is] consistent with international law and international agreements on human rights, fundamental freedoms and the rights of minorities’; [that the organisation] will ‘express and safeguard the civil, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction) and of the Macedonians who live in Bulgaria’[. The articles also] insist that ‘the process of assimilation in Pirin Macedonia must be stopped’. Obviously, the aim is to distort the historical truth, to ignore the Bulgarian character of certain geographical regions [and] to provoke overt opposition by one part of the population to another. This also threatens the territorial integrity of the country, whereas Article 44 § 2 of [the Constitution] prohibits organisations from engaging in such activities.

Even if, despite [what was found] above, it is assumed that the activities of [Ilinden] do not run counter to [the Constitution], its Article 12 § 2 provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties. The political character of the aims [of Ilinden] is clearly shown by [its articles of association], while the [applicable law] provides that organisations seeking to engage in political, tradeunion or religious activities must be regulated in a separate statute.

All this leads to the conclusion that what is sought is the registration of an association whose aims are illegal. It cannot be accepted that what is at issue is an organisation seeking to preserve the historical traditions and the cultural riches of a specific community. ... The realisation of the true aims [of Ilinden] would no doubt be at the expense of the unity of the Bulgarian nation [and] the sovereignty and the territorial integrity [of the country], which is declared inviolable by Article 2 § 2 of the Constitution.”

Ilinden appealed to the Sofia Court of Appeal, arguing, inter alia, that it was not threatening the country’s sovereignty and territorial integrity, nor trying to distort the “historical truth”. The refusal to register it was in breach of Article 38 of the Constitution (see paragraph 18 below), as it was based on the fact that it expressed views which differed from the officially sanctioned ones. It was not proposing to engage in activities characteristic solely of a political party either.

On 11 July 2003 the Sofia Court of Appeal upheld the lower court’s judgment. It held, in so far as relevant:

“The Blagoevgrad Regional Court ... received an application by the managing council of the newly formed non-profit association [Ilinden], requesting it to be registered ... in the special register kept by the court... In [the impugned judgment the Blagoevgrad Regional Court] refused to register the association..., holding that [Ilinden]’s goals and the means for attaining them have a political character and run counter to the spirit of [the 2000 NonProfit Legal Persons Act] and the provisions of the [Constitution]. This court shares those conclusions.

The evidence submitted alongside the application for registration, namely the articles of the nonprofit association [Ilinden], the minutes of its founding meeting, held on 20 October 2002, a list of the founders, thirteen sample signatures of the members of the managing council, notarised and expressly stating that these persons wish to take part in the association’s management and representation, and their criminal records, shows that a founding meeting was held on 20 October 2002. It was attended by 111 individuals, who unanimously resolved to form a nonprofit association named [Ilinden], adopted its articles and elected a managing council consisting of thirteen members. However, the wording of the articles – clauses 6 and 7, [which set out] the association’s goals and the means for attaining them – reveal their political character, which is impermissible for a nonprofit association. This follows from the interpretation of paragraph 2 of [the 2000 NonProfit Legal Persons Act], which provides that organisations intending to carry out political, tradeunion or religious activities must be regulated by separate statutes. For instance, in clause 6(1), (4) [and] (5) of its articles the organisation proclaims itself as being a successor of and continuing the ‘national liberation struggle of the Macedonian nation’, including ‘the Macedonian fighters who fell victim to Bulgarian State terrorism and genocide’, declares that ‘it will express and defend the civil, social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation (jurisdiction) and of the Macedonians living in Bulgaria’, insists that ‘the assimilation process in Pirin Macedonia must stop’, etc. All those goals set by the newly formed organisation are directed towards distorting the historical truth and ignoring the Bulgarian character of certain geographical regions, with a view to stirring overt confrontation between one group of Bulgarian citizens and another, which imperils both the territorial integrity of the country and the unity of the nation. This is in breach of the imperative rule of Article 44 § 2 of [the Constitution] which provides that ‘organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... are prohibited’. Moreover, the political goals and the ways of attaining them, set by the organisation in clause 7(2), (3) and (4) of its articles, are in breach of paragraph 2 of [the 2000 NonProfit Legal Persons Act] and Article 12 § 2 of [the Constitution]. Apart from that, the founders have elected thirteen members of the managing council, in breach of the articles which provide, in clause 32(5), that the first managing council will consist of three members who will manage and represent the association (clause 32(1)). This was equally in breach of section 20(6) and (9) in conjunction with section 18(1)(3) of [the 2000 NonProfit Legal Persons Act], because it engenders uncertainty as to the manner of managing and representing the organisation.

In view of the foregoing, this court finds that the newly formed organisation [Ilinden] has goals, ways of attaining them and representation which run counter to the provisions of [the 2000 NonProfit Legal Persons Act]. For this reason, it should not be entered on the register of non-profit legal persons kept by [the Blagoevgrad Regional Court]. ...”

On 3 November 2003 Ilinden appealed on points of law. It argued, inter alia, that, contrary to the Sofia Court of Appeal’s ruling, its articles, when read properly, showed that it did not intend to participate in political life. Nor was it trying to distort the historical truth – its aim was to promote it. The refusal to register it violated its right to freedom of association, enshrined in Article 44 § 1 of the Constitution, and was in breach of Article 38 of the Constitution (see paragraph 18 below). Ilinden also contested the Sofia Court of Appeal’s findings concerning its managing council.

In a final judgment of 12 May 2004 (реш. № 342 от 12 май 2004 г. по гр. д. № 1992/2003 г., ВКС, търговска колегия) the Supreme Court of Cassation upheld the Sofia Court of Appeal’s judgment in the following terms:

“The Sofia Court of Appeal founded the refusal to register the association on the wording of the articles of association, more specifically clauses 6 and 7, which show that the goals sought to be attained by the association and the means for their attainment are political in character. The [Constitution] guarantees freedom of association, but only in line with the requirements of the law. It is not permissible for a nonprofit association to carry out political, tradeunion or religious activities. The assertion in the appeal that [Ilinden] does not seek to engage in political struggles is not substantiated. As correctly observed by [the Sofia Court of Appeal], an organisation which proclaims itself as being a successor and continuing the ‘national liberation struggle of the Macedonian nation’, and its founders as spiritual successors of ‘the Macedonian fighters who fell victim to Bulgarian State terrorism and genocide’ has a markedly political character. The [lower court] correctly held that an activity consisting in ‘safeguarding the social and economic rights of the Macedonians who live on Macedonian soil under Bulgarian occupation and of the Macedonians living in Bulgaria’ is in breach of Article 44 § 2 of the [Constitution], which prohibits organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, or towards the incitement of racial, national, ethnical or religious enmity. But even if [the court] were to accept the argument in the appeal that the organisation does not seek to attain goals which run counter to the constitutional order, those goals run counter to the [2000 NonProfit Legal Persons Act], as they are characteristic of a political party, not of a nonprofit association. Thus, the alleged violation of Article 38 of the [Constitution] has not been made out.

The argument in the appeal that the articles of association in reality merely mention the minimum number of members of the managing council, without further restrictions, is unfounded. Clause 32(3) of the articles enclosed in the case file says that the managing council consists of three to seven members. Clause 32(5) makes special provision for the first managing council and says that it will consist of three members serving three years. That is, clause 32(5) does not merely set a minimum, as claimed in the appeal. For this reason, [the Sofia Court of Appeal] correctly found that the imperative rule of section 20(6) and (9) in conjunction with section 18(1)(3) of the [2000 NonProfit Legal Persons Act] has not been complied with – the manner of managing and representing the organisation is unclear.

For the foregoing reasons, the court is of the opinion that the grounds of appeal have not been made out and that [the impugned judgment] should be upheld.”

The relevant provisions of the 1991 Constitution read:

“The territorial integrity of the Republic of Bulgaria shall be inviolable.”

“Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties.”

“No one may be persecuted or restricted in his rights because of his views, nor detained or forced to provide information about his or another’s convictions.”

“1. Citizens may freely associate.

Organisations whose activities are directed against the sovereignty [or] the territorial integrity of the country and the unity of the nation, towards the incitement of racial, national, ethnical or religious enmity ... and organisations which seek to achieve their goals through violence are prohibited.

The law shall specify the organisations which are subject to registration, the manner of their dissolution and their relations with the State.”

Under paragraph 2 of the transitional and concluding provisions of the 2000 Non-Profit Legal Persons Act (“Закон за юридическите лица с нестопанска цел”) – the Act which regulates the formation, registration and activities of nonprofit legal persons such as associations – organisations which intend to engage in political, trade union and religious activities were to be regulated by separate statutes.

Section 18 (1)(3) of the Act provides that the names and the offices of the persons who represent the association must be entered in the register. Section 20 (6) and (9) provide that an association’s articles must set out its managing bodies and the manner of its representation.


The applicant is a Lithuanian national, born in 1967. At present he is detained at the Ulonų Prison in the Alytus Region.

He is represented before the Court by Mr R. Girdziušas, a lawyer practising in Kaunas.

A.

On 16 July 1995 the applicant was detained on remand in the context of proceedings for cheating. On 13 September 1996 the Kaunas City District Court convicted the applicant of obtaining property by deception. He was sentenced to six years’ imprisonment and ordered to pay compensation. On 4 March 1997 the Kaunas Regional Court dismissed the applicant’s appeal against the first instance judgment. On 11 September 1997 the Court of Appeal rejected the applicant’s cassation appeal.

By 16 July 1998 the applicant had completed half of his sentence in the Ulonų Prison. As he had been afforded better treatment due to his model behaviour in prison, he requested his conditional release. This was refused, whereupon the applicant brought a successful civil action against the prison administration before the Alytus District Court for a breach of his rights under Article 54-2 of the Criminal Code. On 25 September 1998 the court “required” the prison administration to request a criminal court to order the applicant’s conditional release.

This was done on 28 September 1998 and on 23 October 1998 the Alytus District Court ordered the applicant’s conditional release because of his model behaviour in prison. A prosecutor and a prison representative took part at the hearing of 23 October 1998. The District Court stated that the order for conditional release could be appealed within five days. On 26 October 1998 the applicant was released from the prison.

From 30 October 1998, several major newspapers printed articles criticising the law enforcement authorities for releasing the applicant on licence. The media alleged inter alia that the applicant had not paid the compensation ordered by the trial courts.

On 2 November 1998 the Chief Prosecutor of the Kaunas Region applied to the Alytus District Court for leave to appeal out of time against the applicant’s conditional release. The prosecutor asserted that the five-day time-limit had not been observed for important reasons. He stated that the prosecutor who had been present before the court on 23 October 1998 had not informed the Regional Prosecutor’s Office about the applicant’s conditional release, and that on 28 October 1998 the Chief Prosecutor of the Alytus District had been in Vilnius on mission; therefore no appeal could be lodged in time.

On 2 November 1998 the Alytus District Court reinstated the time-limit by reference to Article 120 of the Code of Criminal Procedure, finding that the prosecution had missed the time-limit for “important reasons”. The court also stressed that the reinstatement of the time-limit “was not contrary to the law”.

On the same date the Chief Prosecutor of the Kaunas Region lodged with the Kaunas Regional Court an appeal against the applicant’s conditional release, asserting inter alia that he had not paid the 1,944,000 Lithuanian litai (LTL) in compensation following his conviction, and that he belonged to a Kaunas criminal organisation.

On 3 November 1998 the prosecutor requested the court to suspend the execution of the order for conditional release. On the same date the Kaunas Regional Court, pursuant to Article 415-1 § 4 of the Code of Criminal Procedure, accepted the prosecutor’s request without hearing the parties. The applicant was arrested in the evening of 3 November 1998.

On 4 November 1998 the Kaunas Regional Court held a hearing on the prosecution’s appeal against the applicant’s conditional release in the presence of the applicant and his counsel. The applicant requested the court to adjourn the hearing and release him. He also challenged the participation of two of the appeal judges. The court dismissed his applications.

On the same date the Kaunas Regional Court upheld the prosecution’s appeal and quashed the conditional release order on the basis of Article 415-1 of the Code of Criminal Procedure. The Regional Court found inter alia that the applicant had not paid the 1,944,000 LTL in damages ordered at his trial. The court noted that the prosecutor, who had been present before the District Court on 23 October 1998, had not submitted this information, thereby misleading the first instance court. The appellate court held that domestic law did not oblige the prison administration to recommend the conditional release of a detainee. The decision of 4 November 1998 was final.

On 12 November 1998 a civil chamber of the Kaunas Regional Court, upon a cassation petition of the Acting President of the Supreme Court, quashed the decision of 25 September 1998, finding that the District Court could not “require” the prison administration to request the applicant’s release on licence. The Regional Court held in this connection that Article 54-2 of the Criminal Code gave a discretionary power to the prison administration as to whether or not to request the conditional release of a detainee.

B. Relevant domestic law

Article 54-2 of the Criminal Code and Article 67 of the Prison Code allows the release on licence of a convicted person before the expiry of the term of imprisonment. The right to order conditional release rests with a court, upon the request of the prison administration. Release on licence of a person sentenced to up to ten years’ imprisonment can be ordered after completion of half of the sentence.

Article 415-1 § 3 of the Code of Criminal Procedure lays down a period of five days to appeal against a court order granting or refusing conditional release. Paragraph 4 of this provision provides for the suspension of that order should such an appeal be lodged. Paragraph 9 of the provision permits no further appeal against the decision of the appellate court.

Pursuant to Article 120 § 1 of the Code of Criminal Procedure, a time-limit that was missed for an important reason can be reinstated by a court. Paragraph 2 of this provision provides that, in cases where a decision was appealed out of time, a court on the request of the person lodging the appeal can suspend its execution.


The applicants, Mr Žarko Simić (“the first applicant”), Mr Vid Malešević (“the second applicant”) and Ms Smiljka Malešević (“the third applicant”) are all Serbian citizens who were born in 1958, 1935 and 1938, respectively. The first applicant lives in Kragujevac and was represented before the Court by Mr M. Ribarić, a lawyer practising in the same town. The other two applicants live in Paris and were represented before the Court by Mr W. Bourdon, a lawyer practising in the same town. The Government of Serbia (“the Government”) were represented by their Agent, Mr S. Carić.

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

Following the financial collapse of numerous banks in Serbia, in 1998 and 2002 the respondent State adopted specific legislation accepting to convert the foreign currency deposits in these banks, including the banks here at issue, into a public debt and then went on to set the time-frame (2016) and the amounts, including interest, to be paid back to their former clients. This legislation, inter alia, also explicitly provided that Serbian citizens living abroad, i.e. those living outside of the territory of the former Socialist Federal Republic of Yugoslavia, were also entitled to benefit from it.

On 1 March 1987 the applicant’s father deposited an unspecified amount of German Marks for a fixed period of time with the Jugobanka - Kragujevac, the interest rate having been stipulated at 7.25% annually.

It would appear that by 1 April 1992 the applicant’s father had a total of 41,900 German Marks on the account in question.

After the expiration of the fixed-period deposit contract, in 1993 the bank appears to have refused to release his funds or even to apply the interest rate initially stipulated.

On an unspecified date thereafter, the applicant’s father died and the applicant became his sole successor.

Just like his father, however, the applicant was unable to withdraw or otherwise freely use his foreign currency savings.

On 16 June 2003 the applicant had 26,887.49 Euros converted into Government bonds, having in the meantime been paid back a total of 3,978 Euros in accordance with the said legislation.

There is no information that the applicant had received any payments thereafter.

By the late 1990s the second applicant had a total of 143,000 Swiss Francs, 53,000 German Marks, and 39,000 French Francs deposited for a fixed period of time with the Privredna Bank Beograd AD, the interest rate having initially been stipulated at 11% annually. By the same time, the third applicant had deposited a total of 42,000 French Francs for a fixed period of time with the Privredna Bank Beograd AD, the interest rate having initially been stipulated at 12.5% annually.

On an unspecified date thereafter the bank in question refused to release the applicants’ funds or even to apply the interest rate stipulated.

It would appear that, following the adoption of the relevant legislation, the first applicant converted his foreign currency savings deposited in two other banks into public debt in August 2003. However, none of the applicants requested the conversion of the foreign currency savings deposited with the Privredna Bank Beograd AD.

The relevant domestic law is set out in the Court’s decision of Šekerović v. Serbia (dec.), no. 32472/03, 4 January 2006, at sections B.1 and B.2.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Non-pecuniary damage - award;Pecuniary damage - reserved (Article 41 - Pecuniary damage)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in 1933 and lives in Warsaw.

The applicant is a veteran of the Polish Resistance during the Second World War and a former professional officer of the Polish Army. His veteran status on the grounds of his involvement in the underground Scouts movement during that war was recognised by an administrative decision given on an unspecified date by the Director of the Veterans’ Office.

For the last fifty years the applicant collected antique arms and weapons from the period of the Second World War and earlier.

On 7 and 8 July 2008 the police searched the applicant’s home and summer cottage. They confiscated the applicant’s collection which at that time numbered 199 pieces.

On 16 July 2008 the Director of the Warsaw Uprising Museum (“the Museum”) in Warsaw issued a statement for the purposes of an investigation against the applicant which had been instituted immediately after the search and seizure. He stated that the applicant had been cooperating with the Museum as a specialist in old weaponry and that on a number of occasions he had lent certain pieces of his collection for the purposes of their being exhibited at the Museum. He stated that the applicant’s expertise was highly valued by the Museum.

On 8 July and 29 August 2008 the prosecuting authorities ordered that an expert opinion be prepared as to whether the confiscated pieces were to be regarded as arms within the meaning of the legislation governing the licensing of possession of arms.

On 18 October 2010 the Director of the Veterans’ Office sent a letter to the Warszawa Wola District Court. He stated that the applicant’s integrity and the fact that he was a law-abiding citizen were wellknown. He had been decorated on a number of occasions for his involvement in the Polish Resistance during the Second World War. By accumulating a unique collection of historical weapons, uniforms and military equipment he had rendered outstanding services in the dissemination of knowledge about the history of Poland. He had financed this collection himself, at considerable personal sacrifice. The fact that criminal proceedings had been instituted against him had met with general disbelief. It had been universally considered among persons interested in military history that his collection could not possibly be regarded as posing any threat to public order. On the contrary, it had played a significant role in teaching younger generations about the history of Poland and about the fight for the country’s independence. The applicant’s services not only merited recognition but should also be taken into consideration by the court in the assessment of his guilt and any sentence to be imposed on him.

On 16 July 2010 the prosecution ordered that 24 pieces of the collection should be returned to the applicant, relying on an expert opinion prepared for the purposes of the investigation. The expert concluded that these items were only parts of weapons and therefore a licence to possess them was not necessary. On 20 July 2010 a bill of indictment against the applicant on charges of illegal possession of arms was filed with the Warszawa Wola District Court.

On 18 November 2010 the Warszawa Wola District Court discontinued the criminal proceedings against the applicant concerning charges of illegal possession of arms, contrary to Article 263 § 2 of the Criminal Code.

The court first listed 171 pieces of the applicant’s collection, the oldest of them produced in 1889.

The court noted that the applicant had explained that he had been collecting old arms, mostly memorabilia of the Second World War as well as other older pieces, for almost fifty years. He had previously on numerous occasions made parts of his collection available on loan to various museums. He had been collaborating as an expert in old weaponry with the Warsaw Uprising Museum. The court noted that the applicant had explained that in order to prevent unauthorised third parties from having access to the collection he had kept it in his apartment which was secured with three locks and equipped with an alarm. He had also taken the necessary technical measures to make it impossible to use most of the weapons in his possession as arms. He declared his willingness to take such measures also in respect of the remaining pieces.

The court acknowledged that no criminal intent to use the arms to anyone’s detriment could reasonably be ascribed to the applicant. However, he must have known that the possession of arms without a permit was unlawful. He had not availed himself of the possibility of legalising his collection by having recourse to the 2005 Arms Legalisation Act, devised specifically with a view to making it possible for Second World War veterans and other persons having fought for the independence of Poland to regularise arms acquired in the past and in connection with their involvement in the Polish Resistance.

The court acknowledged that there had been no evidence whatsoever that the applicant had ever used the arms with any criminal intent. It emphasised that the applicant was, at that time, 77 years old, a war veteran who had fought in the Warsaw Uprising and who was a retired professional officer of the Polish Army with no criminal record. He was a lawabiding citizen.

The court observed that the applicant’s submissions as to the part of the collection which had been put out of action had been partly confirmed by the experts. The experts had found that it was impossible to use most of the pieces as weapons, but that some of them could be made to work again (“ze znacznej większości egzemplarzy broni nie było możliwe oddanie strzalu, niemniej jednak z części egzemplarzy broni możliwym było oddanie strzału, jak również możliwym było przywrócenie cech użytkowych broni”).

The court concluded that the offence was minor in nature and discontinued the criminal proceedings against the applicant, referring to Article 17 paragraph 1 (3) of the Criminal Code. At the same time, the court decided to apply Article 100 of the Criminal Code in conjunction with its Article 39 and to confiscate 171 pieces of the collection.

The court, explaining why it decided to avail itself of its discretionary power to confiscate the entire collection, stated that dividing up the collection by returning to the applicant those pieces which had already been put out of action would seriously diminish its value. It noted that the collection should, because of its historical interest, be handed over to an institution capable of securing appropriate storage and display conditions for it.

The applicant and the prosecution appealed. The applicant essentially challenged the confiscation measure.

By a decision of 22 February 2011 the Warsaw Regional Court upheld the first-instance decision. It fully endorsed the reasoning of the lower court. It further noted that the confiscation of the collection should not lead to its destruction. The State authorities should be well aware of the historical value of the collection (“organy państwa winny zdawać sobie sprawę z ... wartości historycznej zabezpieczonych przedmiotów”).

On 16 March 2011 the Warszawa Wola District Court invited the Warsaw Uprising Museum to indicate whether they would be interested in the applicant’s collection. On 28 June 2011 the Director of the Museum replied, indicating that the Museum wished to take certain pieces selected by P.B., the Museum’s expert. On 16 September 2011 the court authorised the transfer of these pieces to the Museum and on 17 October 2011 they were transferred.

On 16 September 2011 the same court requested the Office for the Protection of Monuments in Warsaw, the Regional Curator for Monuments (Urząd Ochrony Zabytków w Warszawie, Mazowiecki Wojewódzki Konserwator Zabytków), to indicate the name of a cultural institution which would accept the remainder of the collection. A number of cultural institutions expressed their interest, including the Warsaw Uprising Museum. The Warsaw Uprising Museum also expressed interest in the remainder of the collection covered by the forfeiture decision. The Regional Curator for Monuments gave a positive opinion in this regard. This part of the collection is currently being transferred to the Museum.

“1. The Republic of Poland shall protect property and a right to inherit.

Expropriation is allowed only in the public interest and against payment of just compensation.”

Article 31of the Constitution reads:

“Freedom of the person shall be legally protected.

Everyone shall respect the freedoms and rights of others. No one shall be compelled to do anything which is not required by law.

Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 79 § 1 of the Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

Under its settled case-law, the Constitutional Court has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999).

Article 17 paragraph 1(3) of the Code of Criminal Procedure provides that criminal proceedings shall be discontinued if the seriousness of a criminal offence is negligible.

Article 100 of the Criminal Code provides that where the seriousness of a criminal offence is negligible, the court may order confiscation, within the meaning of Article 39 of that Code, of objects connected with the offence.

Article 263 paragraph 2 of the Criminal Code penalises possession of weapons or ammunition without a licence.


CASE OF GUILLEMIN v. FRANCE (ARTICLE 50)

Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

In a judgment of 26 May 1997 the Evry tribunal de grande instance ruled as follows:

The application against Saint-Michel-sur-Orge Town Council

The town council was certainly the instigator of the expropriation – subsequently declared unlawful – that gave rise to the damage sustained by the plaintiffs, and it has already been held to be liable in the judgment of 23 October 1995.

The amount of this damage must therefore now be assessed and the town council ordered to pay the resulting sums.

As regards the value of the building and the damage resulting from loss of enjoyment, it should be remembered that as all damage is to be assessed as at the date on which the assessment is made, the value of the building must be assessed as at the date of this judgment.

But the interference with enjoyment must be assessed in relation to the income that the property would have brought in from the date of dispossession to the present day, and that presupposes that the land in question should also be valued at the date of dispossession, that is to say in July 1983.

The total value of the property, including the repurchase allowance, is therefore FRF 1,038,043; this figure was arrived at by the expert in September 1996 but, in the absence of any significant [change] since then, it will be adopted as being still valid at the date of this judgment.

The plaintiffs should therefore be awarded the sum of FRF 1,038,043 in respect of the value of the property of which they have been dispossessed.

The damage resulting from the loss of this property will be assessed on the basis of 6.5% – the average rate of return – of the value of the property in 1983, with annual indexation, as the expert recommended, that method of calculation and rate corresponding to the reality of the situation as it has developed since 1983.

And the damage resulting from interference with enjoyment will thus be assessed at FRF 415,883 in all.

Apart from the foregoing damage, the plaintiffs have indisputably sustained damage distinct from the pecuniary or material damage through being deprived of a property that they were entitled to wish to keep and on account of the endless difficulties they encountered [over] many years in seeking compensation whose principle could not be in doubt.

This non-pecuniary damage will be compensated by the award of a sum of FRF 150,000, an assessment which cannot be in any way affected by the judgment of the European Court of Human Rights.

Interest shall be payable on the totality of the foregoing sums from the date of this judgment, having regard to their compensatory nature.

Furthermore, regard being had to the length of time the case has lasted and the plaintiffs’ indisputable right to be compensated, this judgment shall be immediately enforceable notwithstanding any appeal, as is moreover appropriate to the nature of the case.

In so deciding, the court adopted the assessment made in the court-appointed expert’s report that was filed on 29 July 1996.

On 4 November 1997 the President of the Paris Court of Appeal, ruling on the application for an interim order by Saint-Michel-sur-Orge Town Council and the Evry New Town Development Corporation, refused the council’s and corporation’s requests for a stay of execution of the judgment of the Evry tribunal de grande instance.

His order read as follows:

The general principle of law that property belonging to public bodies is exempt from execution, thus making it impossible to have recourse to the execution procedures of private law, has no bearing on the present case, as the execution of judgments by public bodies is governed by the special rules laid down in Law no. 80-539 of 16 July 1980.

Nor is the considerable sum of damages awarded a sufficient ground in itself for staying immediate execution, and in any event the defendants did not claim that immediate payment of the sums in question would have manifestly unconscionable consequences for them within the meaning of Article 524 of the New Code of Civil Procedure.

Furthermore, they did not in any way establish that Mrs Guillemin and Mrs Grandjean had not provided sufficient security to satisfy any order for restitution in the event of the decision’s being set aside by the Court of Appeal.

It follows that the applications by St-Michel-sur-Orge Town Council and EPEVRY must be dismissed in their entirety.

On 13 March 1998 the Paris Court of Appeal delivered its judgment on the appeal by Saint-Michel-sur-Orge Town Council against the judgment of the Evry tribunal de grande instance. It reduced the amounts awarded by that court on the following grounds:

The value of the real property

The land cannot be valued on the day of compensation by indexing the price per sq. m in 1982 in line with the building cost index, which is inappropriate in the instant case. In order to arrive at the present-day value of the property, regard will be had to the fluctuations in property prices in the sector concerned for comparable properties, which gives a round figure of 500,000 francs, whence a repurchase allowance of … 105,000 francs and a total sum of 500,000 francs + 105,000 francs = 605,000 francs.

The expert has made an expert assessment of the value of the improvements (buildings, gardens and swing), valuing them at 38,200 francs (1983 value). The present-day value may be assessed, as it was by the court below, at 55,518 francs.

In consequence, Mrs Guillemin and Mrs Grandjean will receive in respect of the loss of the value of the property total compensation of 660,518 francs.

Loss of enjoyment

The damage resulting from the loss of this property since 1 July 1983 will be assessed at 300,000 francs, regard being had to the average return to be expected from such a property.

Non-pecuniary damage

The sum of 50,000 francs will be awarded to Mrs Guillemin and Mrs Grandjean in respect of the non-pecuniary damage resulting from the unjustified dispossession of their property and the trouble caused by the reluctance of Saint-Michel-sur-Orge Town Council to compensate them for the damage arising from their unlawful eviction from their property in 1983.

On 2 April 1998 Saint-Michel-sur-Orge Town Council transferred to the CARPA account of Mr Horta, Mrs Guillemin’s counsel in the proceedings before the national courts, the sum awarded her by the Evry tribunal de grande instance.

According to the applicant, the town council was going to seek restitution of the difference between the sum it had paid and the one awarded by the Paris Court of Appeal.

On 5 June 1998 Mrs Guillemin appealed on points of law against the Court of Appeal’s judgment.

In her submissions on the application of Article 50 the applicant requested the Court:

“To order France to pay the applicant, pursuant to Article 50 of the Convention, the sum of FRF 3,735,000 in respect of the violation of Article 1 of Protocol No. 1, together with statutory interest from the date of the judgment.

In the alternative:

To reserve the question of the application of Article 50 pending the judgment of the Court of Cassation.

In any event:

To order France to pay Mrs Guillemin the sum of FRF 30,000 in respect of costs of representation, together with statutory interest from the date of the judgment.”

The Government considered that the “payment by [the] town council of the sums awarded to Mrs Guillemin as compensation for her pecuniary damage [made] it possible to envisage closing the case…”


The applicant, born in 1968, presently resides in Karlskrona, Sweden. In his application form, he states that he has Croatian nationality.

On 23 March 1994 the applicant arrived in Sweden and requested asylum. He stated that he was a Bosnian Catholic with Bosnian citizenship. Before leaving for Sweden, he had been living in Kraljeva Sutjeska. He held also a Croatian passport but this was to be considered as a travel document only. In 1992, while serving as a policeman in Utravnic, he refused to join the Muslim forces and, as a consequence, he was accused of having stolen 40 rifles from the police station. Later, he was placed in a special unit from which he could not resign. Resenting police attacks on Muslims and being unable to handle the mental and physical stress, he later deserted from that unit. Further, in June 1993 Kraljeva Sutjeska was occupied by Muslim troops. Along with other residents, the applicant participated in the defence of the village. Later, he was forced to leave the village and, on 15 March 1994, he arrived in Croatia with his parents and siblings. Allegedly, if returned to Croatia, he would risk being sent to Bosnia-Hercegovina where he could be sentenced to 20 years in prison for refusing to bear arms.

On 30 September 1994 the National Immigration Board (Statens invandrarverk) rejected the applicant’s request and ordered his deportation to Croatia. The Board called into question the credibility of the applicant’s statements concerning his military and police activities as he had changed the statements during the course of the investigation. Finding that the applicant held both Bosnian and Croatian citizenship, the Board referred to a decision concerning asylum seekers with such double nationality taken by the Swedish Government on 26 May 1994. According to the decision, the prevailing situation in Bosnia-Hercegovina rendered deportations to that country impossible. Consequently, in assessing applications from these asylum seekers, the crucial question was whether they could be afforded protection in Croatia. The Board noted that, according to available information, persons in the applicant’s situation did not risk to be sent from Croatia to Bosnia-Hercegovina against their will. Moreover, no acts of warfare had taken place on Croatian territory for some time and a cease-fire had been agreed upon by the contending parties. Thus, there was no apparent risk that Croatian citizens in general would be forced to take part in armed conflict. Further, the applicant had failed to show that he personally faced such a risk.

The applicant appealed to the Aliens Appeals Board (Utlänningsnämnden). On 29 March 1995 the Appeals Board, sharing the opinion of the Immigration Board, rejected the appeal.

The applicant later requested a temporary residence permit in Sweden. By a decision of 20 June 1995 the Appeals Board granted the applicant such a permit until 1 December 1995 and quashed the deportation order. In so doing, the Board referred to a Government decision of 5 May 1995 according to which the worsened situation in Croatia constituted an impediment to the deportation of asylum seekers to that country.

On 20 November 1995 the applicant submitted a new application for a residence permit. He referred to his previous statements. Further, in a final statement of 23 March 1997 he claimed that he should be granted a residence permit on humanitarian grounds on account of the time he had spent in Sweden.

On 27 March 1997 the Immigration Board rejected the applicant’s new application and ordered his deportation to Croatia. The Board had regard to a guiding decision taken by the Swedish Government on 28 November 1996. In that decision the Government stated, inter alia, the following:

(Translation)

“As regards the situation in Croatia and the region, the ongoing peace process, based on a general agreement on peace in Bosnia-Hercegovina, has lead to stabilisation. The relations between Croatia and the Federal Republic of Yugoslavia have improved. Croatia has been admitted into the Council of Europe. Acts of warfare have not occurred on Croatian territory since August 1995. The risk of further conflicts appears unlikely. The general situation in Croatia has improved in such a way since the Government’s previous assessment in May 1995 that nowadays Croatian citizens can generally be afforded protection in Croatia.”

The Immigration Board noted that the Swedish Government’s view had been confirmed by the United Nations High Commissioner for Refugees (UNHCR) and the Croatian Government. As in the previous decisions taken concerning the applicant, the Board found that he could not be sent back to Bosnia-Hercegovina. With regard to the possible deportation to Croatia, the Board noted that no new circumstances had been invoked by the applicant. Consequently, the Immigration Board shared the opinions expressed in its decision of 30 September 1994 and the decision taken by the Aliens Appeals Board on 29 March 1995. Furthermore, the Immigration Board found that there were no reasons of a humanitarian nature to grant the applicant a residence permit.

Following the applicant’s appeal, the Appeals Board, on 2 June 1997, quashed the Immigration Board’s decision and referred the case back for re-examination. The Appeals Board found that no oral hearing had been held by the Immigration Board, as required by law.

The Immigration Board held an oral hearing in the case on 11 June 1997 during which the applicant stated that, despite the fact that he held a Croatian passport, he did not possess the full rights of a Croatian citizen. Moreover, his parents and one of his brothers lived in Croatia where they had difficulties to support themselves. In Croatia nothing in particular would happen to the applicant but it would be hard for him to find work and a place to live.

In a decision of 30 June 1997 the Immigration Board rejected the applicant’s new application on the same grounds as those expressed in the quashed decision. On 17 April 1998 the Appeals Board rejected the applicant’s appeal. The Appeals Board noted that the applicant is an ethnic Croat and, as such, would be at risk in his Bosnian home district, dominated by Muslims. However, the applicant’s statements did not indicate that he would face ill-treatment in Croatia.

In medical certificates issued by the psychiatric clinic at the hospital in Karlskrona on 30 November 1998 and 19 January 1999 chief physician G.S. and therapist I.S. stated that the applicant had undergone treatment for some time at the clinic for a post-traumatic stress syndrome. Allegedly, the enforcement of the deportation order would seriously impair his mental state and could lead to a suicide attempt. The clinic submitted the first certificate to the Aliens Appeals Board and requested that the enforcement be suspended.

By a decision of 9 December 1998 the Appeals Board suspended the enforcement of the deportation order for an unspecified period of time.