Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1968 and is currently serving a prison sentence in Sokal Prison no. 47 in the Lviv region.

In February 2000 the applicant was detained on suspicion of several counts of robbery and a murder. He claimed that he had been beaten by the police.

On 13 September 2000 the Zaporizhzhya Regional Court (“the Zaporizhzhya Court”), sitting as a court of first instance, found the applicant guilty as charged. It sentenced him to life imprisonment for murder and considered that the prison terms for the other crimes were absorbed by the life sentence. The court dismissed the applicant’s allegation of ill-treatment as unsubstantiated.

On 21 December 2000 the Supreme Court of Ukraine upheld the judgment.

On 30 October 2009 the Supreme Court reviewed the applicant’s case under an extraordinary procedure and commuted his sentence to fifteen years’ imprisonment. It reasoned that life imprisonment had not been listed as a possible penalty in the Criminal Code on the date when the murder for which the applicant had been sentenced had been committed.

On 6 December 2001 the applicant was transferred to Vinnytsya Prison no. 1, which had a section for life prisoners, to serve his sentence. That prison is located some 700 kilometres from Zaporizhzhya, where the applicant had been living before his detention and where his mother lived. The train journey from Zaporizhzhya to Vinnytsya takes from twelve to sixteen hours.

On numerous occasions the applicant and his mother, Mrs Kapiton, who acted on his behalf as his representative under a power of attorney, asked the State Department of Ukraine for the Enforcement of Sentences (“the Prison Department”) to transfer the applicant to a prison closer to his home to make it easier for her to visit him. They drew attention, in particular, to the long travel time from Zaporizhzhya to Vinnytsya by public transport, which was very burdensome for Mrs Kapiton given her advanced age (born in 1938) and poor health (she had been officially certified “second-degree” (medium) disabled).

On 10 June and 15 September 2004 the Prison Department replied to the applicant’s mother that her request had been rejected, since “in accordance with the legislation in force, convicted prisoners must serve their entire sentence in the same prison”.

On 29 October 2004 Mrs Kapiton arrived at Vinnytsya Prison to visit the applicant. During the visit she fainted and was provided with medical assistance for low blood pressure. Her meeting with the applicant was not resumed once she had recovered, on the recommendation of a medical professional.

On many subsequent occasions Mrs Kapiton continued to contact various authorities on her own and the applicant’s behalf, requesting his transfer to a prison closer to his home to enable her to visit him. She always enclosed with her requests the medical certificate confirming her disability and her doctor’s advice not to travel outside the Zaporizhzhya region.

All Mrs Kapiton’s requests were rejected. On numerous occasions (on 2, 12 and 18 November 2004, and on 12 February, 21 and 24 March 2005) the Prison Department repeated its previous reasoning, referring to the legal requirement that prisoners must serve their entire prison term in the same establishment.

On 17 March 2006 the Prison Department informed the applicant’s mother that her request could not be granted because no places were available for life prisoners in establishments closer to Zaporizhzhya.

On 3 May 2006 the Prison Department wrote to the applicant’s mother again, informing her that the applicant was supposed to serve his entire sentence in the same prison and that, in any event, there were no places available in prisons closer to his home.

On 7 August 2006 the Prison Department further notified the applicant that, in accordance with unspecified regulations, persons convicted of aggravated murder were usually detained in prisons located outside the region in which the crime had been committed.

On 16 November 2006, 8 August 2007 and 24 March 2009 the Prison Department reiterated, in reply to the repeated requests of the applicant’s mother for his transfer, that “under the legislation in force, convicted prisoners must serve their entire sentence in the same prison”.

On 1 December 2009, following a review of the applicant’s sentence (see paragraph 9 above), the Prison Department’s regional commission on prisoner distribution, allocation and transfers examined his case. It decided that he would be held in a maximum-security prison, in ordinary accommodation. Pursuant to that decision, on 10 December 2009 he was transferred to Sokal Prison no. 47 (a maximum-security prison) located in the Lviv region, around 1,000 kilometres from Zaporizhzhya. The train journey from Zaporizhzhya to Lviv takes from nineteen to twenty-three hours.

On an unspecified date Mrs Kapiton complained to the Prison Department that that transfer was unfair, as Sokal Prison was even further away from the applicant’s home address.

On 17 February 2010 the administrative commission of Sokal Prison examined the applicant’s request that the level of security of his prison regime be reduced from high to medium security. It was noted that, under the Code on the Enforcement of Sentences, a prisoner could be transferred from a high to a medium-security prison if he had already served more than half of his sentence and if he had been manifesting good behaviour as an indication of his willingness to improve. However, the applicant had been disciplined eleven times and was not therefore eligible for such a transfer. Accordingly, his request was rejected. It remained open for him to challenge that decision before the regional commission of the Prison Department.

On 17 April 2010 the Prison Department’s regional commission on prisoner distribution, allocation and transfers rejected the applicant’s request for transfer to a prison in the Zaporizhzhya region. As noted in the minutes of its meeting, the applicant had been disciplined twelve times.

On 26 April 2010 the Prison Department further informed Mrs Kapiton that its appeal board had rejected the applicant’s request for transfer to a medium-security prison in the Zaporizhzhya region, and that decision would be reviewed only if his conduct improved.

The applicant’s mother then requested the applicant’s transfer to a prison in the Donetsk or Lugansk region (neighbouring the Zaporizhzhya region).

On 17 November 2010 the Prison Department appeal board rejected her request. As noted in its meeting report, the applicant had been disciplined fifteen times and had received no incentives.

The applicant suffers from ingrowing eyelashes of the left eye, which have to be removed periodically. His mother made a general allegation, without providing any factual details, that he had been hit in his left eye following his arrival at Vinnytsya Prison. No further information is available as to the duration and origin of the above-mentioned condition.

As regards the medical treatment for the ingrowing eyelashes, the applicant’s submissions to the Court were limited to his mother’s general statement, which she had made on two occasions, in November 2005 and April 2010, that the responsibility for the condition lay with the authorities and that, although the ingrowing eyelashes were regularly removed, the applicant felt pain and discomfort in his left eye.

On an unspecified date in 2005 the applicant’s mother complained to the prosecutor’s office that the applicant’s eye problem was connected to his alleged beating by prison guards following his arrival at the prison in 2001.

On 5 and 25 April 2005 the Vinnytsya Prosecutor’s Office responded that there was no basis for launching a criminal inquiry into that complaint. In particular, the applicant had not requested a medical examination or assistance on account of any injuries inflicted on him. Furthermore, according to the testimony of other prisoners who had arrived at the prison together with the applicant, they had not experienced or witnessed any beatings. The prosecutor also noted that the applicant’s condition was under constant medical supervision. In particular, he had his ingrowing eyelashes removed by a qualified ophthalmologist on a regular basis. No other health-related complaints had been recorded.

According to extracts from the applicant’s medical file provided by the Government, the applicant had had his ingrowing eyelashes removed on 21 January, 26 March, 9 July and 13 December 2004, as well as on 1 August 2005 and 4 January 2008. Furthermore, on 30 June 2010 and 6 April 2012 he had refused medical examinations and treatment.

The applicant and his mother, acting on his behalf, complained to the prosecution authorities and the Prison Department about the routine monitoring of his correspondence by the prison administration.

The prosecutor’s response was that the applicant’s correspondence was subject to monitoring under the legislation in force; however, there had been no instances of withholding letters or seizing objects which the prisoners were allowed to keep.

On 7 July 2003 the Vinnytsya Regional Prison Department wrote to the applicant’s mother, in reply to her complaint regarding, in particular, the interference with his correspondence, that on 11, 16 and 23 April 2003 the prison administration had “withheld some letters written by [the applicant], because their content did not comply with the requirements of the Instruction on Review of Prisoners’ Correspondence”.

On 3 October 2006 the Prison Department informed the applicant’s mother that no correspondence had been withheld from the applicant and that since the beginning of the year he had sent fifty-one letters and had received twenty-four recommended letters and thirty-eight standard letters. There had been no complaints from the applicant himself regarding his correspondence.

On 14 November 2006 the applicant made a written statement that he had no complaints against the prison administration.

On 21 November 2006 the Vinnytsya Regional Prosecutor’s Office wrote to the applicant’s mother informing her that the applicant had sent fifty-six letters, had received seventy-two letters, and that he had had fifteen paid telephone conversations.

On 12 May 2008 the applicant made a written statement that he had no complaints concerning the work of the prison official in charge of the monitoring of prisoners’ correspondence.

On 19 June 2008 the applicant asked the prison administration to allow him to make a telephone call on 24 June 2008 instead of a short-term private meeting to which he was entitled. According to a hand-written note on the request, apparently added by a prison official, the applicant’s last private meeting had been on 26 December 2007.

On 27 July 2009 the applicant asked the prison administration to allow him to make a telephone call on 3 August 2009. As noted on the request, he had last made a telephone call on 3 May 2009.

According to the official records, during the period from 16 August 2002 to 30 September 2009 the Vinnytsya prison administration dispatched sixty-nine letters from the applicant.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicant was born in 1962 and lives in Podgorica.

On 14 April 2003 a certain Ž. L. (hereinafter “the first debtor”) and S. S. (hereinafter “the second debtor”) were each sentenced to two years’ imprisonment for attempted murder of the applicant in January 2003.

On an unspecified date, the applicant lodged a claim for damages with the Court of First Instance (Osnovni sud) in Nikšić.

On 23 June 2008 the aforementioned court ruled in favour of the applicant and ordered the debtors to pay him, jointly, 45,000 euros (EUR) plus statutory interest on account of the non-pecuniary damage suffered.

On 27 July 2009 the applicant lodged with the Court of First Instance in Podgorica a request for enforcement of the judgment dated 23 June 2008. Following an order, the applicant amended his request for enforcement on 25 February 2010. The enforcement order itself was then adopted on 31 March 2010.

On 24 April 2010 the debtors objected to the enforcement order, but their objections were rejected.

On 21 June 2010, 5 July 2010 and 7 July 2010 the enforcement court ordered the debtors to disclose their immovable property. It appeared that no immovable assets had been registered in the debtors’ names.

On 19 July 2010 the enforcement court requested information from the Ministry of Interior as to whether the debtors owned any motor vehicles. The record showed that the first debtor had had two motor vehicles. However, on 16 February 2011, when a bailiff came to make an inventory, the vehicles had already been sold to a third person.

On 7 September 2011 the enforcement court ordered an inventory of the debtors’ movable assets.

On 11 and 12 April 2012 new inventories of the debtor’s moveable assets were carried out. Between April 2012 and January 2013 the enforcement court dealt with the objections to the inventories raised by the debtors and third parties.

On 9 January 2013 a decision to auction the debtors’ specified movable assets was issued, and the applicant was ordered to deposit EUR 200 for the auction costs. The sale was scheduled for March 2013. However, on 27 February 2013 the second debtor informed the enforcement court that he had donated his movables to a charity. On 12 April 2013 a new inventory of his moveable assets was carried out.

On 15 April 2013 the applicant lodged a criminal complaint against the bailiff.

On an unspecified date in April the second debtor offered to pay the applicant EUR 15,000, but the applicant rejected this offer. The second debtor subsequently made a new offer in the amount of EUR 25,000, but this offer was also rejected by the applicant.

On 6 August 2013 the applicant informed the enforcement court that the second debtor had paid him EUR 31,000 and that he considered the enforcement proceedings in respect of this debtor as final.

On 18 October 2013 the enforcement proceedings in respect of the second debtor were formally terminated.

As regards the first debtor, the enforcement proceedings continued.

In September 2013 the first debtor’s specified movable assets were estimated at EUR 1,285.99 and the enforcement court invited the applicant to take possession of them on 16 September 2013. The applicant failed to do so. He was again invited to take possession of the assets in November 2013 and, once more, in July 2015. However, the applicant again declined to do so on both occasions.

On 20 October 2015 the first debtor’s father informed the enforcement court that he would pay his son’s debt.

In December 2015 the applicant was once again invited to take possession of the movable assets belonging to the first debtor. This time, the applicant explicitly rejected the court’s offer stating that he did not need those “worthless” assets and that they could have instead been given to a charity.

On an unspecified date in December 2015 the applicant notified the enforcement court that he had entered into an agreement with the first debtor and that the first debtor would honor the judgement debt in instalments. However, it appears from the applicant’s later submissions to this Court that the first debtor had in fact not paid him anything since he did not have any “valuable assets”.

Between March 2011 and March 2012 the applicant availed himself of two domestic remedies concerning the length of proceedings, in particular two requests for review of the duration of the proceedings, in order to have them expedited (kontrolni zahtjev) and three actions for fair redress, aimed at obtaining compensation for the excessive duration of the proceedings (tužba za pravično zadovoljenje). The Court of First Instance rejected the applicant’s requests for review on 30 June 2011 and 15 February 2012, respectively. The applicant unsuccessfully appealed to the High Court, which upheld the First Instance Court’s decisions. The High Court in Podgorica also ruled against the applicant’s actions for fair redress on 11 May 2011, 24 November 2011 and 10 May 2012, respectively.


Preliminary objection dismissed (Article 34 - Victim);Preliminary objections dismissed (Article 34 - Actio popularis);Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 14+9 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Manifest religion or belief)

Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Elisabeth Steiner;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Lemmens

The applicant is a French national who was born in 1990 and lives in France.

In the applicant’s submission, she is a devout Muslim and she wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. According to her explanation, the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. The applicant emphasised that neither her husband nor any other member of her family put pressure on her to dress in this manner.

The applicant added that she wore the niqab in public and in private, but not systematically: she might not wear it, for example, when she visited the doctor, when meeting friends in a public place, or when she wanted to socialise in public. She was thus content not to wear the niqab in public places at all times but wished to be able to wear it when she chose to do so, depending in particular on her spiritual feelings. There were certain times (for example, during religious events such as Ramadan) when she believed that she ought to wear it in public in order to express her religious, personal and cultural faith. Her aim was not to annoy others but to feel at inner peace with herself.

The applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports, and she agreed to show her face when requested to do so for necessary identity checks.

Since 11 April 2011, the date of entry into force of Law no. 20101192 of 11 October 2010 throughout France, it has been prohibited for anyone to conceal their face in public places.


CASE OF HANZELKOVI v. THE CZECH REPUBLIC [Extracts]

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicants were born in 1977 and 2007 respectively and live in Svinaře.

The first applicant is the mother of the second applicant. During her pregnancy she had regular check-ups with a doctor and attended ante-natal classes at Hořovice Hospital. Prior to giving birth she had expressed, among other things, her wish to leave the maternity ward as soon as possible provided that there were no complications.

On 24 October 2007 the first applicant contacted a pediatrician, S., who agreed to take charge of her future child and to come and see them both at their home as soon as they were discharged from the maternity ward. She informed the first applicant that she would, however, be away the following weekend. The applicant then told her that she intended to leave the hospital “earlier”, without enlarging on that statement. S. subsequently stated that it had not been her understanding that the applicant wanted to leave the hospital a few hours after the birth.

The second applicant was born on Friday 26 October 2007 at Hořovice Hospital. It was a natural and spontaneous delivery with no complications. The applicants were found to have no health problems, the Apgar score for newborns (recording the pulse rate, respiration, complexion, muscular activity and reflex irritability) was the highest possible, according to the medical team’s assessment. In these circumstances, the first applicant decided to leave the hospital the same day, which she did at about noon despite meeting opposition from the medical team.

According to a statement issued by the hospital on 29 October 2007 following extensive media coverage of the case, the hospital staff had suggested that the applicants remain at the hospital for at least 48 hours and had warned the first applicant of the possible risks to the child’s health, but the first applicant had indicated that a pediatrician would be taking charge of the child. After the applicants had left, the hospital staff informed the police, which was standard practice in situations where a patient left hospital prematurely without the doctor’s consent and this could have repercussions on his or her health. The social welfare authority was not informed until after the pediatrician S. had contacted the hospital (see below). The hospital found it regrettable that the first applicant had not expressed her wish to leave the hospital only hours after the birth during the ante-natal classes. Had she done so, the staff would have recommended that she obtain a personal care plan for the newborn baby and secure written agreement from the pediatrician (who would thus have had proper advance notice), whereupon her decision would have been accepted. The first applicant had accepted, moreover, that the events in question might have arisen as a result of a misunderstanding regarding the care arrangements for her newborn baby.

According to the explanations given by the pediatrician S., on 26 October 2007 at about 2 p.m. she had been informed by the nurse from her surgery, who had received a call from the first applicant, that the latter had given birth that very morning and returned home. As it was an unusual situation, the pediatrician, who had been preparing to leave for the weekend and could not visit the applicants until Monday afternoon, informed the staff at Hořovice Hospital accordingly. D., the hospital doctor, decided to contact the social welfare authority, namely, the Černošice municipal office. In the meantime S. had informed the first applicant by telephone that she would be able to see her and her child until Monday afternoon, which the applicant had accepted. Shortly afterwards the pediatrician was contacted by a social worker. She told her about the situation and gave her the first applicant’s telephone number.

According to the note sent by the Černošice Municipal Office to the Beroun Municipal Office (hereafter “the social welfare authority”), on 26 October 2007 the first applicant had left the hospital at noon on that day without informing the doctors; she had not been living at the address she had given the hospital for three years and the village where she was staying and her telephone number had been provided by the pediatrician contacted by the Černošice authority. The social worker had succeeded in contacting the child’s father on that number. Although he had been informed that an interim measure under Article 76a of the Code of Civil Procedure might be applied, he had stated that the applicants would not return to the hospital and had refused to provide the family’s exact address.

At the request of the social welfare authority, Dr D. drew up a note observing that “given the short period of time since the birth, the health and potentially the actual life of the child [would] be at risk if he [were] deprived of hospital care”.

Also on 26 October 2007 the social welfare authority requested the Beroun District Court to apply an interim measure pursuant to Article 76a of the Code of Civil Procedure, with a view to entrusting the second applicant to the care of the gynaecology-obstetrics department of Hořovice Hospital. The above-mentioned notes drawn up by the Černošice Municipal Office and Dr D. were annexed to the request.

On the same day the court granted the request, reiterating the terms of the note drawn up by Dr D. The decision stated that any interim measure was served on the parties at the time of execution, which had to be immediate.

At 4.30 p.m. on 26 October 2007 a court bailiff and a social worker, accompanied by police officers, went to the applicants’ house. Although they explained to the child’s father that the first applicant could go to the hospital with the second applicant, he refused to take them to there of his own free will. An emergency medical team was therefore summoned. After examining the newborn baby, the doctor present observed that he had no health problems but agreed with the others that for the purposes of implementing the interim measure the mother and child would be taken back to the hospital in the ambulance. The father, police officers, social worker and court bailiff followed the ambulance. Once at the hospital, the second applicant was examined again and found not to have any health problems.

The applicants were made to remain at the hospital for two days and allege that no medical act was carried out during that time. According to the hospital report, the first applicant had refused neonatal screening and vaccination of the second applicant. At the express request of the first applicant, who accordingly signed the form refusing further medical treatment (negativní revers), the applicants were discharged from the hospital on 28 October 2007, approximately 50 hours after the birth.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 2001 and lives in Bucharest. His parents, C.I. and D.D., separated in April 2004 and divorced in September 2004, mainly because of D.D.’s abusive behaviour towards his wife and their son. The applicant remained with his mother. On 27 February 2004 C.I. called the hotline of the Bucharest Child Protection Authority (Direcţia Generală de Asistenţă Socială şi Protecţia Copilului) to report the domestic abuse she and the applicant had been suffering at the hands of D.D. Since then, the case has been monitored by the Authority. On 7 October 2008 the Child Protection Authority certified that since 2004 it had included the applicant in a psychological counselling programme.

The Child protection Authority issued the following statement concerning the monitoring of the applicant’s case (on 29 August 2005 for the purpose of court proceedings):

“Mrs [C.I.] kept contact with our institution, the case being monitored by the Legal Counselling Service (legal counselling concerning eviction from home ...) as well as by the Service concerning emergency relocation and the Centre for Psychological Counselling for Parents.”

On 5 March, 16 April, 7 May and 30 June 2004 C.I. lodged complaints with the Bucharest Police about the alleged violence inflicted by her husband on the applicant. No action was taken on these complaints. On 1 July 2004 C.I. lodged a new complaint with the police concerning the alleged abuse. The police heard evidence from witnesses on behalf of the applicant and obtained information about the applicant’s situation from the centre where he and his mother had been relocated. Based on the evidence gathered, the police sent the file to the prosecutor’s office attached to the Bucharest District Court (“the prosecutor”).

On 1 November 2005 the prosecutor instituted a criminal investigation against D.D. It heard evidence from C.I., D.D. and six witnesses and examined the expert reports concerning the applicant’s and D.D.’s psychological evaluations. It concluded that the applicant had suffered trauma during his early childhood because of his father who had done everything he could to torment him and to make him suffer.

On 27 December 2007 the prosecutor indicted D.D. for abusive behaviour towards his son.

The Bucharest District Court heard evidence from a psychologist who had observed the applicant during therapy, from C.I. and other witnesses, as well as from D.D., the last mentioned denying having hurt his son. C.I. did not request damages on behalf of the applicant. In a decision of 9 June 2008 the court acquitted D.D. on the grounds that his occasionally inappropriate behaviour towards the applicant had not been severe enough to constitute a crime. This decision was upheld by the County Court on 19 February 2009, but on 19 June 2009 the Bucharest Court of Appeal quashed this latter decision and remitted the case to the County Court, as it considered that the lower courts should have heard evidence from the applicant and relied on the psychological reports.

On 14 December 2009 the County Court held a private hearing and interviewed the applicant. He told the judges how D.D. used to hit him, lock him in a small room without lights, throw water on him while he was sleeping and call him names. He stated that D.D. had often fought with his mother and that sometimes he had thrown the applicant’s maternal grandmother and aunt – who were bringing food to the child – out of their apartment. The applicant told the court that he did not want to live with D.D. or even meet him on the street. He was persuaded that D.D. would want to hurt him. He stated that he wished that D.D. would be punished for what he had done to him.

In a decision rendered on 22 December 2009 the County Court convicted D.D. of ill-treatment inflicted on a minor and sentenced him to a suspended penalty of four years’ imprisonment. It considered that the evidence in the prosecution file, in particular the psychological reports and the testimony given by a psychologist, confirmed that the child had suffered trauma as a consequence of his father’s abusive behaviour.

The court also noted that C.I. had not requested damages on behalf of the applicant (see paragraph 9 above). Based on Article 17 of the Code of Criminal Procedure (“the CCP”, see paragraph 24 below), the court, on its own initiative, awarded the applicant 20,000 Romanian lei (RON) in respect of non-pecuniary damage.

Upon an appeal on points of law lodged by D.D., on 7 April 2010 the Bucharest Court of Appeal remitted the case to the County Court and ordered that court to obtain an expert examination of the applicant by the Forensic Medicine Institute.

On 26 April 2012 the County Court rendered a new decision. Based on the evidence before it, notably the expert evaluations, psychologist’s testimony, witness statements, as well as the parents’ and the applicant’s statements, the County Court considered it established that D.D. had physically and verbally abused his child from 2002 to 2004. It stated:

“The County Court notes that the acts perpetrated by [D.D.] cannot be considered as isolated and random acts of physical punishment which parents can administer to their minor children, but became more severe and caused childhood attachment troubles.”

D.D. was convicted of ill-treatment inflicted on a minor. He was given a suspended sentence of one year’s imprisonment; in addition, his right to be elected and his parental rights were suspended during the sentence and for two additional years.

When sentencing D.D., the court took into account the undue length of the criminal proceedings and that there had been significant periods of inactivity by the authorities involved, in particular by the investigators and the Forensic Medicine Institute.

No award of damages was made. The court did not give any explanation in its judgment as to why it decided not to award compensation to the applicant.

All parties appealed on points of law. Relying on Article 17 of the CCP (see paragraph 24 below), the applicant and the prosecutor complained notably about the fact that the County Court had not awarded damages.

The Bucharest Court of Appeal examined the parties’ submissions in the light of the evidence before it. It reaffirmed that D.D. had physically and verbally abused his child; his sentence was recalculated based on the same criteria, including the reduction as a remedy for the length of the trial. The court accordingly increased the sentence to three years’ imprisonment and suspended it. The additional penalty of restricting D.D.’s right to be elected and his parental rights was maintained.

The court further considered that in so far as both the prosecutor and the applicant had limited their initial appeals to solely the criminal aspects of the District Court’s decision of 9 June 2008, the County Court had been right in not awarding damages on its own initiative. The relevant part of the decision reads as follows:

“In so far as the prosecutor’s office and the injured party argued that the [County Court] should have examined the award of damages on its own initiative because the injured party was a minor, it is to be observed from the content of the decision under review that both the prosecutor’s office and the injured party had expressly limited their appeals to the criminal aspects of the case.

In this situation, the [County Court] was right in limiting its examination strictly to the issues brought before it.”

The Court of Appeal rendered its final decision on 1 November 2012 and rectified the text of the operative part on 22 November 2012.


CASE OF HUSEYNLI AND OTHERS v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The first applicant was born in 1965 and lives in Baku. The second and third applicants were born in 1984 and 1975 respectively and live in Sumgait.

At the material time the applicants were members of the main opposition parties or groups in the country: the Popular Front Party of Azerbaijan (“the PFPA”), the Musavat Party and Ictimai Palata, respectively. The first applicant was a member of the Board of the PFPA. The first and third applicants were candidates in the parliamentary elections of 2010. The first applicant was also a candidate in the parliamentary elections of 2005.

The year 2011 was marked by an increased number of opposition demonstrations in Azerbaijan, mainly in Baku. They were held, inter alia, on 11 and 12 March, 2 and 17 April, 22 May and 19 June 2011. According to the applicants, the relevant authorities were notified about the demonstrations but refused to authorise them. Despite their peaceful character, demonstrations held without authorisation were dispersed by the police.

All three applicants participated in a number of opposition demonstrations. In the course of many of them they were arrested and convicted. In particular, on 12 and 30 April 2010 and 12 March 2011 the second applicant was arrested and convicted of breaching the rules on the organisation and holding of assemblies and failure to obey a lawful order of a police officer. The third applicant was arrested during the demonstration of 12 March 2011 and reprimanded for breaching the rules on the organisation and holding of public assemblies.

According to the applicants, they had intended to attend the demonstration scheduled for 2 April 2011. In addition, the first applicant was involved in the organisation of that demonstration.

Prior notice of the demonstration of 2 April 2011 had been given to the relevant authority, the Baku City Executive Authority (“the BCEA”), on 18 March 2011. On 31 March 2011 the BCEA refused to allow the demonstration to be held at the place indicated by the organisers, and proposed that it be held at another place on the outskirts of Baku. Nevertheless, the organisers decided to hold the demonstration in central Baku, and information about it was disseminated via Facebook and the press.

The first applicant alleged that between approximately 10 a.m. and 11 a.m. on 31 March 2011, after he had taken his child to kindergarten, police officers had stopped his car and requested that he follow them to a police station. He did not oppose the police officers’ demand and was taken to police station no. 20 of the Nasimi District Police Office. At an unspecified time the applicant was informed that he was being detained in connection with the upcoming demonstration of 2 April 2011. At around 2 p.m. he learned that he would not be released from detention. The applicant was then questioned. He was asked, inter alia, about his intention to participate in the demonstration of 2 April 2011 and generally about the politics in the country.

According to the official records, the applicant was arrested for disobeying a lawful order of a police officer. In particular, police officers F.P., S.A. and R.V. stated the following in a report (raport) submitted to a superior police officer:

“... at around 10.30 a.m. on 31 March 2011 on 3rd Alatava street [in Baku] we stopped a [person] who was driving by in his car and requested his identity document because he bore a resemblance to a person who was on a wanted list. But he ignored our lawful demand to produce his identity document. We brought [him] to the police station. There we found out that [he] was [the applicant] ...”

At around 1.20 p.m. on the day of the arrest, an “administrative-offence report” (inzibati xəta haqqında protokol) was issued by police officer T.A. in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 310.1 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences (“the CAO”).

The applicant signed the part of the administrative-offence report acknowledging that he had been familiarised with the report, but left without signature the part with a pre-printed text which stated that “the rights and obligations under Articles 371, 372, 374, 377, 379 and 410.4 of the CAO of the Republic of Azerbaijan were explained”. He made a statement that he had not disobeyed any order given by the police. This statement was included in the report.

According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after his arrest or while in police custody.

The applicant was brought before the Nasimi District Court on the day of his arrest.

According to the applicant, the hearing, which began at 3 p.m., was very brief. He refused the assistance of a State-funded lawyer and insisted on hiring a lawyer of his own choice, but the judge disregarded his request. His representation by that lawyer was ineffective and of a formalistic nature.

The applicant stated before the court that he had been stopped by the police and had been requested to follow them to a police station, that he had complied with that request, and that he was not guilty of disobeying a police officer.

The only witnesses questioned during the court hearing were police officers T.A., F.P. and S.A. Police officer T.A. testified that he had prepared the administrative-offence report in respect of the applicant. Police officers F.P. and S.A. gave testimonies virtually identical to the above-mentioned report they had submitted to a superior police officer.

According to the record of the hearing, the State-funded lawyer stated that the applicant was not guilty and asked the court to terminate the administrative proceedings against him.

The court found that the applicant had committed an administrative offence under Article 310.1 of the CAO and sentenced him to seven days’ “administrative” detention.

The applicant lodged an appeal before the Baku Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that he had been arrested in connection with the demonstration scheduled for 2 April 2011. He also complained that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He urged the Baku Court of Appeal to quash the first-instance court’s decision.

It appears that the applicant was not represented by a lawyer before the Baku Court of Appeal.

On 5 April 2011 the Baku Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.

The second applicant alleged that at around 10.30 a.m. on 31 March 2011, when he was still in bed, three police officers had entered his apartment without an arrest warrant. The applicant’s father had let the police officers in. The police officers took the applicant to police station no. 3 of the Sumgait City Police Office. At an unspecified time the applicant was questioned about his political activities.

According to the official records, the applicant was arrested for minor hooliganism and for disobeying a lawful order of a police officer. In particular, police officer T.R. stated the following in a report submitted to a superior police officer:

“... at around 12.30 p.m. on 31 March 2011 on the territory of the 9th micro-district of Sumgait, I noticed a person who was making noise ... But although I invited him to respect the discipline, he continued his cursing and improper behaviour ... Therefore I brought him to police station no. 3. There we found out that that [person] was [the applicant] ...”

On the day of the arrest, an administrative-offence report was issued by police officer E.S. in respect of the applicant. The report stated that the applicant had committed an administrative offence under Articles 296 (minor hooliganism) and 310.1 of the CAO.

The applicant refused to sign the report.

According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after the arrest or while he was kept in police custody.

According to a statement (ərizə) allegedly signed by the applicant and submitted to the Court by the Government, the applicant had refused legal assistance while in police custody. According to the transcript of the hearing before the Sumgait Court of Appeal, the applicant claimed that he had not signed that statement.

The applicant was brought before the Sumgait City Court on the day of his arrest.

According to the applicant, the hearing, which began at 3.30 p.m., was very brief and he was not given an opportunity to hire a lawyer of his own choice.

According to the transcript of the first-instance court hearing, the applicant refused the assistance of a State-funded lawyer and decided to defend himself in person.

The applicant stated before the court that he had been taken to a police station from his apartment, that it had been his father who had let the police officers in, that at the police station he had been questioned about his political activity, and that he was not guilty of disobeying a police officer or of swearing at the location indicated by the police. According to the transcript of the Sumgait Court of Appeal hearing, the applicant orally requested that the chief of police station no. 3, M.N., be questioned. However, there is no information whether M.N. was questioned.

The only witness questioned during the court hearing was police officer T.R. He testified that the applicant had been swearing without addressing any particular person and had failed to obey his order to stop his illegal behaviour.

The court found that the applicant had committed an administrative offence under Articles 296 and 310.1 of the CAO and sentenced him to seven days’ “administrative” detention.

The applicant lodged an appeal before the Sumgait Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that his arrest had been unlawful, that the hearing before the first-instance court had not been fair and that his right to respect for home had been violated by the police. He urged the Sumgait Court of Appeal to quash the first-instance court’s decision.

It appears that the applicant refused legal assistance at the hearing before the Sumgait Court of Appeal.

On 19 April 2011 the Sumgait Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.

According to the third applicant, at around 11 a.m. on 31 March 2011 he went with his lawyer to the Sumgait City Police Office. After a conversation with the chief of police, they left. The applicant, who did not clearly explain the purpose of that visit, alleged that when he had been outside the police office and no longer accompanied by his lawyer, police officers had arrested him without explaining the reasons for doing so, and had taken him to police station no. 4 of the Sumgait City Police Office.

According to the official records, the applicant was arrested for “minor hooliganism”. In a report submitted to a superior police officer, police officer N.M. stated the following:

“... at around 12.30 p.m. on 31 March 2011 on Akhundov street [in Sumgait] [we, the police officers,] noticed a person who was swearing loudly without addressing anyone in particular ... We approached him and ... brought him to police station no. 4. There we found out that that [person] was [the applicant] ...”

Police officers R.S. and A.M. submitted explanatory reports (izahat) to a superior police officer. Those reports were virtually identical to the report submitted by police officer N.M.

On the day of the arrest police officer V.J. issued an administrative-offence report in respect of the applicant. The report stated that the applicant had committed an administrative offence under Article 296 of the CAO.

The applicant refused to sign the administrative-offence report.

According to the applicant, he was never provided with a copy of the administrative-offence report or with other documents in his case file. He was not given access to a lawyer after his arrest or while he was kept in police custody.

According to a decision dated 31 March 2011, police officer V.J. decided to invite a lawyer to represent the applicant, without indicating at what stage the lawyer should join the proceedings.

According to the applicant, he was not given an opportunity to hire a lawyer of his own choice to represent him at the hearing, which began at 4 p.m. He asked the judge to postpone the examination of the case for one hour so that his lawyer could arrive at the court. However, the judge decided to adjourn the hearing for only thirty minutes and to recommence the hearing at 4.30 p.m., which was not enough time for the applicant’s lawyer to arrive.

According to the transcript of the court hearing, the applicant refused the assistance of a State-funded lawyer.

The applicant stated before the court that he was not guilty of breaching public order by swearing at the location indicated by the police, and that he believed that the motive for his arrest had been his participation in the demonstration of 12 March 2011.

The only witnesses questioned during the court hearing were police officers M.N., R.S. and A.M. They testified that the applicant had been swearing without addressing anyone in particular and that they had therefore taken him to a police station.

The court found that the applicant had committed an administrative offence under Article 296 of the CAO and sentenced him to seven days’ “administrative” detention.

The applicant lodged an appeal before the Sumgait Court of Appeal, presenting his version of the facts surrounding the arrest, and arguing that his arrest had been unlawful and that the hearing before the first-instance court had not been fair. He urged the Sumgait Court of Appeal to quash the first-instance court’s decision.

It appears that the applicant prepared his written appeal with the assistance of a lawyer of his own choice. However, he participated in the hearing before the Sumgait Court of Appeal without his lawyer.

On 15 April 2011 the Sumgait Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court, stating that its findings had been correct.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

The applicant was born in 1984. He is currently serving a prison sentence in Valmiera.

On several occasions between 2009 and 2011 the applicant was escorted to court hearings from various detention facilities where he was being held. During these transfers the applicant was subjected to strip-searches. According to the applicant, he was ordered to strip naked in the presence of other inmates and escorting officers, to assume embarrassing positions (squatting), and to submit to a visual inspection of his body.

The strip-searches of the applicant were carried out on 9 December 2009, 8 and 11 June 2010, 22 February and 8 June 2011.

The applicant lodged several applications with the administrative courts concerning the strip-searches. They were all joined in one set of administrative proceedings (no. A420533911).

On 20 June 2012 the Administrative District Court (Administratīvā rajona tiesa) dismissed the applicant’s complaints and terminated the proceedings. It held that the strip-searches had been objectively justified on security grounds and the manner in which they had been conducted had not gone beyond what had been required to ensure the efficacy of those searches. Therefore these searches had not “significantly interfere[d]” with the applicant’s rights and had not constituted an “action of a public authority” (see paragraphs 17 and 18 below). The applicant appealed.

On 13 September 2012 the Administrative Regional Court (Administratīvā apgabaltiesa) dismissed the applicant’s appeal and upheld the ruling of the lower court.

On 5 November 2012 the Senate of the Supreme Court (Augstākās tiesas Senāts) quashed the ruling of the appeal court and remitted the case to the first-instance court. The Senate of the Supreme Court found that the strip-searches had had a legitimate goal, namely ensuring public safety, and had not been carried out in an abusive manner. However, the lower courts had not sufficiently addressed the applicant’s argument that he had been subjected to strip-searches in the presence of other persons.

On 27 February and 11 April 2013 hearings took place before the first-instance court. In order to clarify the facts eleven witnesses – seven escorting officers and four prisoners – were called.

On 13 May 2013 the Administrative District Court dismissed the applicant’s complaints and terminated the proceedings.

As concerns the strip-searches carried out on 9 December 2009, 8 and 11 June 2010, the court, on the basis of witness testimony, found that the applicant had been searched in the presence of one inmate and at least one additional escorting officer. However, taking into account that the applicant had not voiced any concerns in this regard during the first round of proceedings, the court concluded that “the strip-searches ... had not humiliated the applicant in the eyes of others or in his [own] eyes”. Accordingly, the court could not establish a “significant violation” of the human rights guaranteed under Article 95 of the Constitution and Article 3 of the Convention.

As concerns the strip-searches carried out on 22 February and 8 June 2011, the court found that the evidence did not support the applicant’s allegation that he had been searched in the presence of other persons. The court dismissed the applicant’s further allegations (the presence of female officers, being exposed to the court’s staff and passers-by, unsanitary touching of his food) as unsubstantiated.

On 9 July 2013 the Senate of the Supreme Court, by a final decision, dismissed the applicant’s appeal and upheld the ruling of the lower court.


CASE OF HALDIMANN AND OTHERS v. SWITZERLAND

Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants were born in 1953, 1950, 1969 and 1969 and live in Uster, Zürich, Bäretswil and Nussbaumen respectively.

In 2003 the third applicant, an editor on the Kassensturz television programme, prepared a report on practices employed in selling life-insurance products. The report was prompted by the annual reports of the Private Insurance Ombudsman for the Canton of Zürich and by letters which the programme’s editors had received from viewers expressing their dissatisfaction with insurance brokers. Kassensturz was a long-running weekly consumer-protection programme on Swiss German television (SF DRS).

The third applicant agreed with the first applicant (the editor-in-chief of SF DRS) and the second applicant (the editor in charge of the programme) that she would record meetings between customers and brokers, using a hidden camera, to provide evidence of the brokers’ inadequate advice. It was decided that the meetings would be recorded in a private flat and that an insurance expert would then be asked to comment on them.

The fourth applicant, a journalist working for SF DRS, arranged a meeting with an insurance broker from the X company, which took place on 26 February 2003. She pretended to be a customer interested in taking out life insurance. The SF DRS crew installed two hidden cameras (Lipstickkameras) in the room in which the meeting was to take place, transmitting the recording of the conversation to a neighbouring room where the third applicant and the insurance expert had taken up position, together with a camera operator and a technician who had been assigned to film the expert’s views on the meeting.

Once the meeting had finished, the third applicant joined the broker and the fourth applicant in the room, introduced herself as an editor of Kassensturz and explained to the broker that the conversation had been filmed. The broker replied that he had suspected as much (“Das habe ich gedacht”). The third applicant told him that he had made some crucial errors during the meeting and asked him for his views, but he refused to comment.

The first and second applicants subsequently decided to broadcast part of the filmed meeting during a forthcoming edition of Kassensturz. They suggested that the X company be invited to comment on the conversation and the criticism of the broker’s methods, and assured the company that his face and voice would be disguised and would therefore not be recognisable. Before the programme was broadcast, the applicants proceeded to pixelate the broker’s face so that only his hair and skin colour and his clothes could still be made out. His voice was also distorted.

On 3 March 2003 the broker brought a civil action in the Zürich District Court, seeking an injunction preventing the programme from being broadcast. The action was dismissed in a decision of 24 March 2003.

On 25 March 2003, the day after the application for an injunction to protect the broker’s interests had been rejected, excerpts from the meeting of 26 February were broadcast, with the broker’s face and voice disguised as planned.

On 29 August 2006 the single judge for criminal cases at the Dielsdorf District Court (Canton of Zürich) found the first three applicants not guilty of intercepting and recording conversations of others (offences under Article 179 bis §§ 1 and 2 of the Criminal Code), and the fourth applicant not guilty of unauthorised recording of conversations (Article 179 ter § 1 of the Criminal Code).

Both the Principal Public Prosecutor (Oberstaatsanwalt) of the Canton of Zürich and the broker, as an injured party, appealed against the judgment of 29 August 2006.

In a judgment of 5 November 2007 the Court of Appeal (Obergericht) of the Canton of Zürich found the first three applicants guilty of recording conversations of others (Article 179 bis §§ 1 and 2 of the Criminal Code) and breaching confidentiality or privacy by means of a camera (Article 179 quater §§ 1 and 2 of the Criminal Code). It also found the fourth applicant guilty of unauthorised recording of conversations (Article 179 ter § 1 of the Criminal Code) and breaching confidentiality or privacy by means of a camera (Article 179 quater §§ 1 and 2 of the Criminal Code). The first three applicants were given suspended penalties of fifteen day-fines of 350 Swiss francs (CHF), CHF 200 and CHF 100 respectively, while the fourth applicant received a penalty of five day-fines of CHF 30.

The applicants appealed jointly to the Federal Court against their convictions, relying in particular on the right to freedom of expression under Article 10 of the Convention. They argued that their recourse to the impugned technique had been necessary to achieve the aim pursued.

In a judgment of 7 October 2008, which was served on the applicants’ representative on 15 October 2008, the Federal Court allowed the appeal in so far as it concerned the charge of breaching confidentiality or privacy by means of a camera within the meaning of Article 179 quater of the Criminal Code. It held that there had been a violation of the principle that the trial must relate to the charges brought and a violation of the rights of the defence, and remitted the case to the lower court.

The Federal Court dismissed the remainder of the appeal. It held that the applicants had committed acts falling under Article 179 bis §§ 1 and 2 and Article 179 ter § 1 of the Criminal Code and dismissed their defence of justification. It acknowledged that there was a significant public interest in being informed about practices employed in the insurance field, and that this interest was liable to be weightier than the individual interests at stake. However, it considered that the applicants could have achieved their aims by other means entailing less interference with the broker’s private interests, for example commenting on the Ombudsman’s annual reports or interviewing the Ombudsman’s staff or customers dissatisfied with their broker’s services. It also found that instead of filming the meeting with a hidden camera, the journalist could have drawn up a record of the conversation, although it acknowledged that the probative value of that method would obviously have been less striking. Lastly, it held that the filming of a single case was insufficient to provide reliable evidence of the scale of the alleged problems, since examples of malpractice in this field were widespread and common knowledge. The broadcasting of an isolated example would therefore not enable the public to draw general conclusions about the quality of advice given by insurance companies.

On 24 February 2009 the Court of Appeal of the Canton of Zürich found the applicants guilty of breaching confidentiality or privacy by means of a camera, an offence under Article 179 quater of the Criminal Code. It therefore slightly reduced the penalties previously imposed on them: the first three applicants were given twelve day-fines of CHF 350 (approximately 290 euros (EUR)), CHF 200 (approximately EUR 160) and CHF 100 (approximately EUR 80) respectively, instead of fifteen day-fines, and the fourth applicant was given four day-fines of CHF 30 instead of five day-fines. The penalties were all suspended for a probationary period of two years. The applicants did not appeal against that judgment.


CASE OF BALANDINA AND ANDREYKO v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. In application no. 29432/08, the applicant also raised another complaint under the provisions of the Convention.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicants were born in 1923, 1959 and 1963, respectively, and live in Casteltermini.

The applicants are the joint owners of a plot of land designated as agricultural land in Casteltermini. The land in issue was recorded in the land register as Folio no. 40, Parcel no. 185.

On 13 July 1989 the regional councillor for public works issued a decree authorising the Municipality to take possession, through an expedited procedure and on the basis of a public-interest declaration, of a portion of the applicants’ land in order to begin the construction of a road.

On 4 January 1991 the authorities took physical possession of the land.

By a writ served on 23 June 1998, the applicants brought an action for damages against the Casteltermini Municipality before the Agrigento District Court. They alleged that the occupation of the land was illegal and that the construction work had been completed without there having been a formal expropriation of the land and payment of compensation. They claimed a sum corresponding to the market value of the land and a further sum in damages for the loss of enjoyment of the land during the period of lawful occupation.

On an unspecified date the court ordered an expert valuation of the land. In a report submitted on 17 September 2001 the expert concluded that the occupied land covered a surface area of 124.87 square metres and confirmed that it could be classified as building land. He further concluded that the market value of the land on the date the occupation became unlawful, which he identified as having occurred on 13 July 1994, corresponded to 6.20 euros (EUR) per square metre, for a total of EUR 773.88.

By a judgment delivered on 22 January 2003 and filed with the court registry on 23 January 2003, the Agrigento District Court declared that the possession of the land, which had been initially authorised, had become unlawful as of 4 June 1993. It found that the land had been irreversibly transformed by the public works. As a result, in accordance with the constructive-expropriation rule (occupazione acquisitiva or accessione invertita), the applicants had been deprived of their property, by virtue of its irreversible alteration, on the date on which the possession had ceased to be lawful. In the light of those considerations, the court concluded that the applicants were entitled to compensation in consideration for the loss of ownership caused by the unlawful occupation.

The court drew on the expert valuation to conclude that the land could be classified as agricultural land and that its market value on the date the occupation had become unlawful corresponded to EUR 773.88. However, in contrast with the expert’s finding, the court reiterated that the occupation had become unlawful as of 4 June 1993.

Therefore, the court held that the applicants were entitled to compensation in the sum of EUR 773.88, to be adjusted for inflation, plus statutory interest.

The court further awarded the applicants EUR 37.43 as compensation for the damage occasioned by the unavailability of the land during the period from the beginning of the lawful occupation (13 July 1989) until the date of loss of ownership (4 June 1993).

The judgment became final in March 2004.


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Ms Ebe Gigliola Giorgini, is an Italian national, who was born in 1933 and is under house arrest in Marina di Pietrasanta. She was represented before the Court by Mr D. Ammannato, a lawyer practising in Florence.

summarised as follows.

On 8 April 2008 the applicant was convicted of a number of criminal offences by the Forlì District Court. Such offences included criminal association, aggravated fraud, and ill-treatment.

On an unspecified date she lodged an appeal with the Bologna Court of Appeal.

On 22 June 2010 the Bologna Court of Appeal partly upheld and partly reversed the District Court’s judgment. The conviction for the offence of criminal association was upheld.

On an unspecified date the applicant lodged an appeal on points of law with the Court of Cassation.

She states that on 4 July 2011 the President of Second Criminal Section of the Court of Cassation set the hearing for 15 November 2011.

On 24 October 2011 the National Criminal Lawyers’ Association (Unione Camere Penali italiane) called a five-day strike, scheduled to run from 14 to 18 November 2011.

On 28 October 2011 the applicant filed additional written submissions with the court.

On 7 November 2011 the applicant’s counsel formally adhered to the strike and filed a notice to that effect with the Court of Cassation, having obtained the applicant’s consent in writing. For this reason, he was not present at the hearing of 15 November 2011.

It appears from the hearing record that the Prosecutor General requested that the Court of Cassation refrain from adjourning the hearing on account of the counsel’s absence. The court granted the prosecutor’s request and the hearing was held as scheduled.

In a judgment of 15 November 2011 the Court of Cassation dismissed the applicant’s appeal.

On 9 June 2010 the Pistoia preliminary investigations judge ordered that the applicant be placed in pre-trial detention on suspicion that she had committed further offences. These included the offence of criminal association, of which the applicant was suspected of being the leader, promoter and organizer. The applicant was also suspected of having committed the offence of unauthorized practice of medicine. Specifically, she was suspected of providing medical advice and treatment, as well as prescribing drugs to adults and minors, and using her home as an unauthorized medical clinic. She was further suspected of fraud, aggravated by a number of factors including the exploitation of vulnerable individuals’ pain and suffering, and the generation of ill-founded fears from which she profited. The preliminary investigations judge emphasised that the applicant had been previously convicted of similar offences.

It appears from the material in the case file that pre-trial detention had been requested on a number of grounds, namely the strong evidence against her, the seriousness of the suspected offences, and the significant risk that she might reoffend.

The applicant states that she was transferred to the Sollicciano correctional facility in Florence on 11 June 2010.

On 21 July 2010 the applicant’s counsel lodged a request with the Pistoia preliminary investigations judge, seeking the replacement of the applicant’s detention with a more lenient custodial measure, such as house arrest. He argued that both her advanced age and allegedly critical state of health were incompatible with detention in prison.

On an unspecified date the judge ordered that she be examined by an independent medical expert with a view to determining whether this was the case.

In an order of 30 July 2010 the judge confirmed that the applicant would remain in custody, as the independent medical expert’s report had stated that her state of health was compatible with detention.

On 7 August 2010 the applicant lodged an appeal with the Florence District Court on two main grounds. She contended that while under Article 275 § 4 of the Code of Criminal Procedure (see paragraph 37 below) the detention on remand of persons aged over seventy was only allowed if exceptional reasons warranting such a measure existed, in her case no such reasons could be detected. She further reiterated the argument that her advanced age and critical state of health were incompatible with detention in prison, contending that she suffered from life-threatening medical conditions she identified as cardiovascular disease, acute osteoporosis and diabetes. She also highlighted that she had undergone major surgical procedures in the past, including a gastrectomy, mastectomy, and hysterectomy, and suffered from anxiety disorder and glucose intolerance.

The Florence District Court, sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty (tribunale della libertà e del riesame), dismissed the applicant’s appeal on 1 October 2010. It found that the exceptional grounds for her to be detained on remand, as listed in the preliminary investigation judge’s order of 9 June 2010, still existed. It further pointed out that she had in the past been convicted of analogous offences and had, as soon as she had been released, resumed her criminal activity. As to the applicant’s health, the court drew on the expert medical report requested by the preliminary investigations judge to conclude that there was no incompatibility between it and her detention in a correctional facility. Referring to extracts from the report, the court observed that there was no evidence of an imminent risk of congestive heart failure or other life-threatening conditions, contrary to her contentions. It went on to acknowledge the expert’s finding that she had undergone several major surgical procedures in the past, but that these had allowed for the treatment of serious medical conditions, thus leading to an improvement in her clinical situation. Drawing on the report, it further concluded that the provision of special meals to meet her nutritional needs and the necessary drug therapy could be adequately taken care of in a correctional facility. It appears from the order that the court also examined medical reports submitted by the prosecutor and applicant’s counsel and took the latter into account when reaching its conclusions.

On 10 October 2010 the applicant lodged an appeal on points of law with the Court of Cassation.

On 1 December 2010 she was committed for trial and the first hearing before the Pistoia District Court was scheduled for 22 March 2011. She was formally charged with all the suspected offences including criminal association, the unlawful practice of medicine, and aggravated fraud (see paragraph 7 above).

On 16 February 2011 the Court of Cassation declared the appeal inadmissible.

On 4 May 2011 the applicant’s counsel submitted a further request seeking the replacement of the applicant’s detention with house arrest, reiterating the argument that both her advanced age and state of health were incompatible with detention in prison. He relied, inter alia, on a medical certificate issued by the prison doctor on 5 April 2011, in which her clinical condition was described as “complex and multifaceted” and “difficult to manage” in a regular correctional facility.

On an unspecified date the Pistoia District Court ordered a new medical examination with a view to assessing the compatibility of her state of health with detention.

On 5 May 2011 it dismissed the request for house arrest, having regard to the persistent danger that the applicant might reoffend. However, the court ordered that she be transferred to a correctional hospital (centro clinico penitenziario) in Pisa with a view to ensuring increased medical supervision and the provision of any necessary treatment, and preventing a further deterioration in her health. The court reached its conclusions by relying on a number of findings by the expert, who found that the gastrectomy performed in 1967 had left her with some long-term side effects, including insufficient absorption of calcium and vitamin D. He also noted with some concern that she had experienced height and weight loss and that her osteoporosis had worsened during the months spent in detention. In order to manage her condition effectively and prevent its deterioration, the expert noted that she would require small, frequent meals, a special diet enriched by dietary supplements, and some form of exercise. Finally, he pointed out a slight cerebral atrophy, coupled with a mild anxiety-depressive disorder.

On 10 May 2011 the applicant lodged an appeal, reiterating the incompatibility of her age and state of health with any form of detention, even in a correctional hospital.

On 20 June 2011 the Florence District Court, sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty, placed the applicant under house arrest. It relied on the medical report submitted by the expert to the Pistoia District Court to conclude that an “incompatibility in substance” with detention existed in her case and that a less restrictive measure, such as house arrest, was preferable under the circumstances.

It ordered the applicant’s immediate release and set out the specific conditions of her house arrest, including the requirement that she stay in her home at all times, leave only with the authorities’ prior permission, and refrain from contacting or interacting with anyone except her authorised cohabitees and medical staff.

On 23 June 2011 the public prosecutor lodged an appeal on points of law with the Court of Cassation.

On 19 October 2011 the Court of Cassation declared the appeal inadmissible.

On 4 June 2012 the public prosecutor requested that the house arrest be substituted with detention on remand, as the applicant had breached its conditions. He provided evidence that, amongst other things, she had been in contact with several unauthorised individuals including co-defendants in the ongoing criminal proceedings and a number of her “followers” and “admirers”.

On an unspecified date the Pistoia District Court ordered a new medical examination with a view to determining whether her state of health was compatible with detention.

On 6 July 2012 the Pistoia District Court granted the prosecutor’s request and remanded the applicant in custody, ordering that she be transferred at once to the correctional hospital in Pisa. It found that she had violated the terms of her house arrest, and that the situation which had arisen was conducive to her re-establishing the network which had supported her criminal activity. As to her health, the court drew on the medical report it had requested which stated that adequate monitoring and treatment of her medical conditions, as well as the provision of adequate nutrition in compliance with her special dietary needs, could be carried out in a correctional hospital. In particular, the expert noted that treatment of the applicant’s osteoporosis to prevent future damage to her bone structure would not in any way be hindered by her detention in such a facility. He added that while under house arrest, she had experienced three fractures, suggesting that the monitoring of her condition in a correctional hospital could be in no way considered inferior.

On 22 October 2012 the Pisa correctional hospital issued a medical certificate concerning the applicant’s state of health. It described her medical history and the outcome of various specialist consultations she had undergone in the facility in previous months. An orthopaedic specialist had confirmed her advanced osteoporosis and prescribed treatment, a cardiologist had reported good cardiac function, while an ophthalmologist had recommended that she undergo surgery for a cataract in her left eye. The report further contained a recommendation that the applicant undergo a colonoscopy. Concerns were raised regarding the difficulties encountered in the management of treatment and diagnostic tests which had required transporting her to external facilities. Both her cataract surgery and the colonoscopy had to be rescheduled due to the unavailability of police officers who should have escorted her to the external facilities. The doctors concluded that the continued detention of the applicant, albeit in a correctional hospital, could have resulted in the deterioration in her health.

On 18 December 2012 the applicant’s counsel submitted a request to the Florence Court of Appeal, seeking the substitution of the detention on remand with house arrest. He reiterated all the arguments raised at first instance and referred to extracts from the report issued by the correctional hospital on 22 October 2012.

The request was granted on the same day and the applicant was placed under house arrest.

According to the material in the case file, she is currently under house arrest, as the criminal proceedings against her are pending before the Court of Cassation.

Article 274 provides that a person may be detained pending trial:

“(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence and based on matters of fact which must, on pain of nullity, be expressly set out in the decision, which the judicial authority may take of its own motion...;

(b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years;

(c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused...”


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1986. He died on 3 November 2015. Ms N. Zīmele, the applicant’s grandmother, informed the Court of her wish to pursue the proceedings on his behalf.

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

In July and August 2011 the police opened four criminal investigations into three incidents of theft and an incident of robbery. On 29 August 2011 these investigations were joined.

On 12 August 2011 the police arrested the applicant on suspicion of robbery. He was held in custody on this basis until 14 August 2011, when he was placed under arrest on suspicion of theft.

On 15 August 2011 the police lodged an application with the Ludza District Court (Ludzas rajona tiesa) for the applicant’s pre-trial detention in relation to the theft investigation.

On 16 August 2011 an investigating judge granted the application. With regard to the suspicion of theft, he reasoned as follows:

“there are reasons to suspect that [the applicant] has committed the crime under section 175(3) of the Criminal Law (Krimināllikums) [theft] ... These suspicions are confirmed by the evidence gathered in the criminal case.”

On 18 August 2011 the applicant appealed against that decision.

On 2 September 2011 the Latgale Regional Court (Latgales apgabaltiesa) dismissed the appeal. With regard to the suspicion of theft, the judge stated:

“The ... suspicion that [the applicant] has committed the crime ... is confirmed by the information contained in the file.”

No appeal lay against the aforementioned decision.

On 19 September 2011 the public prosecutor charged the applicant with robbery, theft, involving a minor in theft and petty theft on the basis of the facts as alleged.

On 26 September 2011 the applicant familiarised himself with the case material.

On 28 September 2011 the prosecutor transferred the case to the Ludza District Court for adjudication. She set out the case against the applicant and detailed the evidence upon which the prosecution intended to rely.

On 17 October 2011 the investigating judge decided to keep the applicant in detention. He gave the following reasoning:

“the accusation against [the applicant] of the crimes under sections 175(3) [theft], 176(2) [robbery], 180(2) [petty theft] and 172 [involving a minor in theft] of the Criminal Law ... is confirmed by the evidence gathered in the criminal case.”

On 28 December 2011 and 23 April 2012 the applicant’s detention was extended. The judge stated as follows:

“[the applicant’s] detention is based on the suspicion that he has committed the crime under section 175(3) of the Criminal Law [theft]... in other criminal proceedings [he] has been declared a suspect in relation to crimes under sections 180(1) [petty theft] and 176(2) [robbery] ...

There has been no change in the reasons noted in the detention order of 16 August 2011 ... which had been re-examined in [the subsequent decisions]...”

On 3 February, 19 June and 6 August 2012, the applicant complained to the Ludza District Court that it had failed to assess his detention in relation to the alleged robbery.

On 6 August and 2 November 2012, and on 25 January 2013 the judge decided to continue the applicant’s detention, using largely the same wording as in the previous decisions. In addition, she noted that the twenty-four-month period allowed by section 277(7) of the Criminal Procedure Law (Kriminālprocesa likums) for detention had been observed because the applicant had also been accused of an especially serious offence, robbery, under section 176(2) of the Criminal Law.

The aforementioned decisions were not subject to appeal.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law.


Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Mr Mladen Krizmanić, is a Croatian national, who was born in 1963 and lives in Tinjan. He was represented before the Court by Mr B. Zustović, a lawyer practising in Pazin.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

The applicant was employed with the publicly owned Labour Organisation for Road Maintenance and Construction in Pula (Radna organizacija za održavanje cesta Pula; hereinafter “Pula Road Maintenance”). At a meeting of the Central Housing Commission of Pula Road Maintenance held on 7 February 1989 it was decided that one of the two flats which constituted the Tinjan “road-workers’ house” (cestarska kuća u Tinjanu) would be given to the applicant, “since the flat was empty and Mladen Krizmanić did not have a flat”. By an agreement of the same day, the applicant’s employer granted him a specially protected tenancy (stanarsko pravo) for an indefinite duration for the flat at issue, which was publicly owned, and the applicant moved into the flat with his family. The relevant part of that agreement reads:

Drawn up between the Labour Organisation for Road Maintenance and Construction in Pula ... represented by its director B.Č. and Mladen Krizmanić from the Tinjan roadworkers’ house as the holder of a specially protected tenancy (hereinafter “the tenant”).

The Labour Organisation for Road Maintenance and Construction in Pula ... on the basis of a decision of the Central Housing Commission ... of 7 February 1989 allocates to Mladen Krizmanić from Tinjan a flat for official purposes in ... the Tinjan road-workers’ house on the ground floor.

The flat consists of three rooms, a kitchen and a toilet and measures ninety-three square metres.

On the basis of the above-mentioned decision of the Central Housing Commission, this agreement fixes the rent at 271dinars ...

This agreement is concluded for an indefinite period ...”

On 3 June 1991 Parliament enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which regulated the sale of publicly owned flats previously let under specially protected tenancies.

Pula Road Maintenance was privatised and part of it became the Pula Road Company while the other part became “Croatian Roads” (Hrvatske ceste).

On an unspecified date the applicant asked Croatian Roads, one of the successors of his former employer and the owner of the flat occupied by the applicant, to conclude a contract for the sale of the flat between the owner as the seller and himself as the buyer. On 31 January 1994 the owner declined his request on the grounds that the applicant had not acquired a specially protected tenancy on the flat at issue because it had been designated as a “flat for official purposes”.

On 27 May 1994 the applicant brought a civil action in the Pazin Municipal Court (Općinski sud u Pazinu) seeking a judgment in lieu of the contract of sale. He argued that there was another flat in the same house, occupied by the M. family, and that neither flat had been allocated to employees performing road-maintenance functions. Moreover, those flats had never served any “official purpose”; they were simply residential accommodation.

On 20 March 1995 the Municipal Court accepted the applicant’s claim and established that he had the right to a specially protected tenancy on the flat at issue.

However, that judgment was quashed on 11 September 1995 by the Pula County Court (Županijski sud u Puli) and the case was remitted to the Municipal Court.

On August 1996 the Pazin Municipal Court established that the applicant had not acquired a specially protected tenancy on the flat in question. The court found that, even though some of the flats in so-called “road-workers’ houses” had indeed been sold under the Protected Tenancies (Sale to Occupier) Act, the majority had not been sold. The court also established that the flat at issue had not been allocated to the applicant for any “official purpose”. However, it found that the flat had been given to him for temporary occupation only, until he could be allocated another flat.

That judgment was upheld on 28 April 1997 by the Pula County Court, which also established that the flat at issue had been designated for “official purposes”.

On 23 December 1997 the applicant lodged an appeal on points of law (revizija), to be decided by the Supreme Court. He lodged it with the Pazin Municipal Court, as required under the Civil Procedure Act. It appears that it was not forwarded to the Supreme Court.

On 23 February 2005 the applicant lodged a complaint about the length of the civil proceedings with the Constitutional Court. On 17 February 2006 the Constitutional Court declared the complaint inadmissible on the grounds that the proceedings had ended on 28 April 1997.

However, on 8 May 2007 the Pazin Municipal Court instituted proceedings with a view to reinstating the applicant’s submission of 23 December 1997. The applicant’s appeal on points of law was subsequently forwarded to the Supreme Court, which dismissed it on 4 December 2007, fully endorsing the reasoning of the lower courts.

A subsequent constitutional complaint lodged by the applicant about the merits of the case was dismissed on 9 September 2010. It was served on the applicant’s lawyer on 30 September 2010.

The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991 and 91/1992), as in force at the material time, provided that in cases where a first-instance judgment had been upheld by that of the second-instance, it became res judicata when the second-instance court delivered its judgment. An appeal on points of law was regarded as an extraordinary remedy, that is, a remedy which could be lodged only against a res judicata judgment, and which did not, unless successful, affect the validity of that judgment.