CASE OF TURTURICA AND CASIAN v. THE REPUBLIC OF MOLDOVA AND RUSSIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property) (Russia);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations) (the Republic of Moldova);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicants were born in 1962 and 1951 respectively and live in Lunga and Corjova, in the Transdniestrian region of Moldova.

The background to the case, including the Transdniestrian armed conflict of 1991-1992 and the subsequent events, is set out in Ilaşcu and Others v. Moldova and Russia ([GC], no. 48787/99, §§ 28-185, ECHR 2004VII), and in Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 8-42, ECHR 2012).

The present case concerns the confiscation and/or fining of the applicants for their failure to observe customs rules imposed by the authorities of the self-proclaimed “Moldavian Republic of Transdniestria” (the “MRT”).

Both applicants used cars registered with the authorities of the Republic of Moldova and had Moldovan registration plates. Like many other inhabitants of the “MRT”, the applicants refused to use registration plates issued by the “MRT” authorities, which are not recognised by any country and which means that cars registered with them cannot leave the territory of Moldova. In November 2004, the “MRT” authorities adopted new rules, according to which any car with non-MRT registration plates could only enter the territory of the “MRT” after the payment of customs duties for temporary entry into the “MRT”. Failure to observe the new rules was punished with a fine which could be as high as the full value of the car.

On 27 January 2005 the applicant was driving a car (the first car) from his village to the right bank of the Dniester river when he was stopped by a customs officer of the “MRT”, who seized his car on the grounds that such a car with Moldovan plates had not been registered with the “MRT” customs authorities and no customs duties had been paid for its temporary use on the territory of the “MRT”. By a decision of 9 February 2005 by the chief of the Dubasari (“MRT”) customs office, the applicant was ordered to pay a fine of 2,725 Transdniestrian roubles, equal to twenty percent of the value of the car, in order to be able to recover it.

On an unspecified date, the applicant borrowed a car from a friend (the second car), which also had Moldovan number plates, and registered it with the “MRT” customs authorities by paying customs duties. The registration was due to expire on 30 August 2005. On the day of the expiry, since the applicant was ill, he sent his son to prolong the car’s registration period with the “MRT” customs authorities. However, registration of the car was refused on the grounds that the applicant had to be present in person. The applicant went the next day, only to have his car seized for failure to register it within the allocated time-limit. By a decision of 12 October 2005 of the Dubasari customs office the applicant was ordered to pay 4,275 Transdniestrian roubles, an amount which was equal to fifty percent of the value of the car, in order to be able to recover it.

The applicant challenged the decision of 9 February 2005 before the courts of the “MRT” and argued, inter alia, that he had been going through the customs check-point since 2002 and that nobody had informed him about the need to pay any customs duties. Moreover, the last time he had crossed the customs check-point had only been two days prior to the confiscation of his car.

By a decision of 8 December 2005 the Dubasari district court rejected the first applicant’s challenge to the decision of the Dubasari customs office of 9 February 2005 concerning his first car. As a result, the applicant decided not to challenge the decision of 12 October 2005 in the “MRT” courts.

The applicant also complained to the Moldovan authorities, which initiated criminal proceedings in respect of the unlawful seizure of his car. According to the materials submitted by the Moldovan Government, the criminal investigation was suspended on 14 December 2009 because the perpetrators could not be identified.

It appears from the case file that the applicant never recovered his cars from the “MRT” authorities.

The applicant had his car seized on 28 February 2007 on the grounds that he had failed to leave the territory of Transdniestria before the registration with the “MRT” customs authorities had expired. He was obliged to pay the equivalent of some 30 euros (EUR) in order to be able to recover his car. The applicant paid the money and had his car returned on 30 March 2007. He did not contest the decision of the “MRT” customs authorities before the “MRT” courts.

The applicant also complained to the authorities of Moldova. It appears that on 6 March 2007 the Dubasari chief police officer addressed a letter to the co-chair of the Joint Control Commission (“the JCC”) (see paragraph 18 below), informing him about the incident of 28 February 2007, and that the Moldovan initiative to examine the matter of the second applicant’s car had been ignored by the other members of the JCC, including the Russian representative.

In a letter dated 13 March 2007, the Reintegration Minister of the Republic of Moldova informed the second applicant about the refusal of the Transdniestrian and Russian members of the JCC, to examine the incident relating to the seizure of his car. The second applicant was also informed that the Ministry of Reintegration had brought the applicant’s case to the attention of the United States, European Union and Ukrainian ambassadors to Chisinau. A general issue concerning respect for human rights in Transdniestria was raised by the Moldovan representative to the OSCE on 8 March 2007.

In a letter dated 7 March 2007, the applicant was informed by the Prosecutor’s Office of the Republic of Moldova that it did not have the necessary means to solve the problem of the seizure of his car by the “MRT” authorities.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1954 and is currently detained in Giurgiu Prison.

On 19 May 2010 the applicant was placed in pre-trial detention on suspicion of having committed drug-related crimes. He was convicted on 6 May 2011 by the Bucharest County Court and sentenced to eighteen years’ imprisonment. The decision became final on 5 June 2012.

The applicant was held in the pre-trial detention facilities of the Bucharest Direction of Criminal Investigations until 16 November 2010. On that date he was transferred to Rahova Prison, where he remained until 13 August 2012.

He described the overall conditions of detention as follows: overcrowded cells, lack of natural light and lack of fresh air. In particular he described cells that measured about 19 sq. m and were 2.2 m high; each cell containing eight beds constantly occupied at full capacity; there was no natural light, only artificial light provided by one 40 W bulb which was insufficient; he had no access to fresh air. There was no refrigerator to store food in proper conditions. He shared cells with individuals arrested for violent crimes and there had been no means of summoning the guards, even though several violent incidents had taken place between the detainees.

According to the official prison records adduced by the Government, in the police detention facilities the applicant had been placed in cells situated in the basement (demisol), the first measuring 9 sq. m and containing four beds and the second measuring 13.5 sq. m and having six beds. The cells were occupied at full capacity. The cells had a table and chairs as well as a squat toilet, sink and shower separated from the living space by a curtain. The detainees had access to running water, and the cells were heated during winter. There was access to natural light, as each cell was provided with a window, but also to artificial light provided by a lamp placed in each cell, above the door, and protected by an iron grille. Personal hygiene was effected by means of products provided by the prison or acquired by the detainees themselves.

According to the same official information, in Rahova Prison the applicant had been held in different cells, all measuring 21 sq. m and containing eight beds (except for one cell where there were only six beds), a table, chairs and a support for a TV set. Adjacent to the cell there was a bathroom equipped with a toilet, sinks and a shower. Cold water was available continuously and hot water was available twice a week. The cell was heated to 18oC during the winter. The applicant was allowed to exercise for two hours daily in the interior courtyard and had access to outdoor and indoor sport facilities.


CASE OF MAXIAN AND MAXIANOVÁ v. SLOVAKIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Ján Šikuta;Luis López Guerra;Nona Tsotsoria

The applicants are spouses. They were born in 1949 and 1965 respectively and live in Vienna, Austria.

On 13 April 2005 the applicants brought an action seeking dissolution of joint ownership of a real estate before the Dunajská Streda District Court (file no. 9C 70/2005).

On 6 September 2006, at its fifth hearing, the District Court delivered a judgment. The defendant appealed. The applicants requested the District Court to give a supplementary judgment. On 9 November 2006 the case file was submitted to the Trnava Regional Court.

On 20 March 2007 the Regional Court returned the case file to the first-instance court as incomplete. On 11 September 2007 the District Court gave a supplementary judgment and on 11 January 2008 the case file was again submitted to the Regional Court.

In 2008 the Regional Court stayed the proceedings for two months pending the outcome of inheritance proceedings after the defendant had died.

On 31 March 2009 the Regional Court quashed the first-instance judgment and remitted the case to the District Court for a new determination.

On 20 August 2010 the applicants complained before the Constitutional Court about the length of the proceedings before the District Court.

On 4 October 2010 the District Court approved the friendly settlement of the case reached between the parties. This decision became final on 30 October 2010.

On 24 November 2010 the Constitutional Court declared the applicants’ complaint inadmissible as being manifestly ill-founded (case no. I. ÚS 455/2010). It held that there had been no significant delays in the proceedings before the District Court in breach of Article 6 § 1 of the Convention and its constitutional equivalent.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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 their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1965 and lived until his arrest in the village of Sushzavod, in the Novosibirsk Region. He is serving a sentence in a correctional colony in the town of Raisino, in the Novosibirsk Region.

Arrested in August 2007 on suspicion of aggravated robbery, the applicant was convicted on 28 January 2008 and sentenced to nine years and three months’ imprisonment. On 23 November 2011 the applicant was also convicted of aggravated fraud and sentenced to another three years.

On 7 February 2011 a blood test revealed that the applicant had contracted HIV. Tests conducted on previous occasions, in particular in 2009 and 2010 when the applicant was transferred to correctional colony no. 13, medical penal facility no. 10 and a temporary detention facility in the town of Barnaul, were all negative.

Believing that he had contracted the virus during medical procedures in detention facilities, the applicant lodged an action with the Berdsk Town Court, seeking compensation from the detention facility authorities for causing him to become HIV-positive.

On 16 June 2011 the Novosibirsk Regional Court, acting as a court of final instance, disallowed the action, having found that the applicant had not complied with the procedural requirements for lodging it. He did not name a public official who could have been responsible for his having contracted the virus, he did not indicate his home address, he did not pay a court fee, and so on.

The applicant sent a complaint to the Investigations Department of the Novosibirsk Region, asking for criminal proceedings to be instituted against detention facility personnel. He argued that he had become HIV-positive as a result of negligence on the part of the prison medical staff.

On 5 July 2011 a deputy head of the Department readdressed the complaint to the Novosibirsk Regional Prosecutor.

On 13 July 2011 the first deputy prosecutor of the Novosibirsk Region returned the applicant’s complaint to the Investigations Department of the Novosibirsk Region, informing it that there were indications of a possible criminal offence and that a thorough inquiry into the matter should be conducted.

Ten days later the Investigations Department redirected the applicant’s complaint to the head of the Novosibirsk regional police department, seeking an inquiry into the circumstances causing the applicant to become HIV-positive.

In March 2012 the applicant received a letter from a Berdsk deputy prosecutor, informing him that his request for institution of criminal proceedings against detention officers had been examined and refused on 18 June 2011. The applicant lodged a claim with the Berdsk Town Court, complaining that the investigating authorities had failed to look closely into what had caused him to contract the virus. On 2 October 2012 the Town Court discontinued the examination of the complaint, noting that on 2 October 2012 the decision of 18 June 2011 had been overturned by the investigation authorities as premature and a new inquiry had commenced. The outcome of those proceedings is unknown.

In December 2012 specialists from the Hygiene and Epidemics Centre of the Federal Service for Execution of Sentences conducted an inquiry for the purpose of establishing the transmission mode of the applicant’s HIV infection. They studied the applicant’s medical record and interviewed him. Having observed that the applicant had never travelled abroad, had not been a blood, tissue, organ or sperm donor or recipient, had not used drugs, had not had any sexual contacts in detention, and had not suffered from any sexually transmitted diseases apart from the HIV infection, the specialists stated that it was impossible to establish the exact way in which the applicant had contracted the virus. At the same time, they noted that in February 2009 and in 2010 the applicant had undergone invasive medical procedures in penal facilities. Those procedures were performed in response to the applicant’s self-harming. In addition, the large number of tattoos on the applicant’s body did not escape the attention of the specialists. They described the tattoos as “home-made”, and stated that the most recent one had been done in 2008.

The applicant submitted that after he had been diagnosed as HIV-positive his treatment had been extremely erratic and insufficient. His antiretroviral therapy included two drugs, Combivir and Stocrin. When the treatment was amended with another drug the applicant’s condition deteriorated; he began to experience loss of consciousness, dizziness and nausea. The applicant submitted that the change in the treatment had been authorised by physicians from colony no. 10. An infectious diseases specialist had not been consulted. When he was transferred to colony no. 13 the applicant asked for his previous chemotherapy regime to be reinstated, given the extremely serious side effects he was experiencing following the change in the treatment regime; CD4 cell counts were showing rapid growth in the viral load.

The Government provided the Court with a copy of the applicant’s medical record drawn up after his detention at the police station in the town of Cherepanovo on 16 August 2007. On the following day a blood test taken for HIV infection was negative. HIV tests on 24 August and 14 December 2007, 25 September 2008 and 26 February 2009 all produced the same result. Each test was preceded by a consultation with a prison doctor. A report was drawn up as a result. The reports showed that the applicant had denied using drugs, having sexual relations, including homosexual sexual contacts, and had had no blood transfusions.

On 24 February 2009 the applicant complained to a prison surgeon of severe stomach pain. He explained that on 28 December 2008 he had swallowed a long nail. An X-ray examination of the applicant’s abdominal area showed two metal nails 11.6 and 8 centimetres long respectively. He was immediately admitted to the surgical department of the prison hospital. Subsequent examinations showed no urgent need for surgery; the applicant also refused surgical treatment. After examination and treatment in the hospital the applicant was released on 18 March 2009 with one nail remaining in his body. He was to stay under supervision in the colony medical unit.

The applicant underwent clinical blood tests in October 2009. No HIV test was carried out on that occasion.

In January 2010 the applicant broke his arm and was treated in the colony medical unit with the assistance of a surgeon from the Ubinsk hospital.

On 16 March 2010 the applicant refused to have an HIV test.

In early February 2011 the applicant applied for medical assistance, complaining of coughing blood, stomach pain and dizziness. He explained that he had swallowed a ten-centimetre-long metal wire as a way of protesting against the internal rules of the colony. The applicant received treatment and was seen by a surgeon from the Iskitima town central hospital. An X-ray performed several days later showed that the wire had exited the applicant’s body. The applicant nevertheless stayed in the hospital for almost a month. A test performed in the hospital on 7 February 2011 showed that the applicant was HIV-positive. Another test on 18 February 2011 confirmed that result.

Following the tests the applicant consulted a psychiatrist, who explained to him the nature of the HIV infection and the methods for treating it, and warned him that knowingly transmitting it was a criminal offence. He was also told about the necessity to adhere to the antiretroviral treatment which he had not yet started receiving, and was informed of the negative consequences of stopping the treatment. The doctor also questioned the applicant about how he might have been infected with the virus. The applicant denied having sexual relations and using drugs. The doctor noted the large number of tattoos on his body. The final diagnosis given to the applicant on his release from the hospital on 15 March 2011 was HIV infection in the third stage and sub-clinical form. The doctor recommended clinical blood and urine tests, biochemical blood analysis, CD4 and CD6 cell counts, consultations with an infectious diseases specialist, and close medical outpatient supervision.

On 20 April 2011 the applicant cut his left forearm. A prison nurse treated the wound and made an entry in the applicant’s medical record noting her suspicion that the applicant had actually bitten his forearm and had broken the vein with his teeth. The applicant continued receiving treatment in the medical unit until the beginning of May 2011.

On 30 June 2011 the applicant was seen by a prison doctor, who repeated the recommendations given on 15 March 2011.

On 20 July 2011 another blood test confirmed the HIV infection. The applicant also tested positive for hepatitis C.

Between July and December 2011 the applicant was seen six times by a prison doctor following complaints of severe headaches, dizziness and nausea. He was treated for arterial hypertension.

In December 2011 the applicant was subjected to a number of immunological tests, including a CD4 cell count which showed slightly over 320 cells/mm3. On 21 December 2011 an infectious diseases specialist examined the applicant. Noting a decrease in the CD4 cell count and rapid growth of the viral load, the doctor recommended commencing antiretroviral therapy with Combivir, a fixed-dose combination of the drugs zidovudin (Retrovir), lamivudine (Epivir), and Stocrin (Ephavirenz). Another round of immunological testing was to be performed in a month. The doctor gave extensive information on the treatment, its schedule and its side effects. The applicant was again reminded about the negative consequences of stopping the treatment. The applicant signed a statement recording the main details of that consultation.

On 21 December 2011 the applicant started antiretroviral treatment. An immunological test performed on 12 January 2012 showed an increase in the viral load. The Government provided a record of the daily schedule showing the medicines taken by the applicant under the supervision of the prison nurses.

In January and February 2012 the applicant was seen at least once every few days by a prison doctor or nurse. In the months that followed regular medical consultations were continued.

Between 5 October and 28 November 2012 the applicant was in the clinical treatment ward of the prison hospital. He was given clinical blood and urine tests, visual examinations, biochemical blood analysis, chest X-rays and an electrocardiogram. He continued his chemotherapy regime, comprising antiretroviral drugs, hepatoprotectors, vitamins and antispasmodics. He was released from the hospital under active supervision by doctors from the colony medical unit. Recommendations also included the addition of two drugs, Kaletara and Fosfogliv, to the antiretroviral treatment, and immunological testing every six months.

When he returned to the colony the applicant complained to a prison doctor about the side effects of the new drugs, and requested in writing to be placed back on the previous treatment regime. A certificate issued by the colony director on 19 December 2012 showed that the treatment had been and was continuing to be maintained without any interruptions. The certificate also indicated that the applicant’s health had improved as a result of the antiretroviral treatment.

It appears from the applicant’s submissions that the most recent CD4 cell count was performed in 2013.


George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr F.Y., is an Iranian national, who was born in 1984. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr Pirkka Lappalainen, a lawyer practising in Tampere.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicant is ethnically a Kurd originating from Gangachin city in Iran, close to Urmia (Orumieh). The applicant had difficulties as a Kurd to enter university in Iran and he was disappointed by the position of Kurds in Iran in general. For that reason he joined The Free Life Party of Kurdistan (PJAK) late in 2004, soon after it was founded. He described himself as a regular but active member of the party. His activism included distributing material and information about the party, recruiting new members and accommodating visiting party members at his house, but not taking part in any armed activities. His family members have also been supporters of the Kurdish cause.

In September 2007 the applicant’s neighbour apparently pretended to want to join the PJAK and managed to obtain important information about the party’s recruitment. Subsequently, he informed the Basij-militia about the applicant’s activities. Since then the Basij has allegedly been looking for the applicant and three other party members. Two of the other party activists were caught and arrested and the other one fled to the mountains to join the PJAK armed group. The applicant managed to escape, with a smuggler’s help, to Turkey and from there through Germany and Sweden to Finland, where his sister is residing permanently.

The applicant claims that if he returns to Iran, he will never be free again since it is possible that the authorities arrest him and he might be killed. He also stated that the Iranian police have taken his father twice for questioning since he left the country but his father has never told him why. The applicant was arrested once during the religious feast of the Shiite Muslims years ago, but has never been formally punished or ill-treated by the Iranian authorities.

The applicant has submitted three documents which were translated from Kurdish or Persian to Finnish in October 2009 by an official translator. The first is entitled “Warning Announcement” in which the applicant is apparently called to appear before the Iranian Islamic Republic’s Court for reasons of his cooperation with the PJAK, causing insecurity in the area and encouraging youngsters in the area to join the Kurdish political parties.

The second document is a certificate from the PJAK representative in Scandinavia, Mr S.B., who confirms that the applicant joined the party in 2004 and that he has been politically active, which puts his health and life at risk. Persecution caused the applicant’s flight from Iran and, if he is returned there, his life will be in danger.

The third document is entitled “Local Certificate”, and it is signed by 15 persons who certify that the applicant has been politically active in Kurdistan by encouraging people to join the party and by distributing PJAK leaflets and material to people. The signatories wish to confirm that the activism of the applicant is known to everyone in the area and also that the security police are after him.

On 24 August 2011 the applicant was married to a Dutch citizen residing in Finland.

The applicant first sought asylum in Finland on 20 December 2007 and claimed to have arrived in the country on the same day. He had also previously sought in Iran a visa to Finland for the period from September 2007 to December 2007 to attend his nephew’s wedding but he had received a negative decision.

On 25 August 2008 the Finnish Immigration Service (Maahan-muuttovirasto, Migrationsverket) rejected the applicant’s asylum application and decided to expel him to Iran. It noted in its decision that the applicant’s story about his journey from Iran to Finland was unclear and contradictory and that this weakened the credibility of his asylum story as a whole. For example, the applicant had stated in the asylum interview that he had left for Turkey directly after having heard about the arrests of two members of his group, while in a subsequent hearing he had claimed to have been in Turkey already when he had heard about the arrests. Also the applicant’s report about the whereabouts of his passport was contradictory and vague. He had stated that he had joined the party in late 2004 and had immediately started to work actively in it but at the same time he had said that he was in the army from December 2004 to July 2006. The Immigration Service considered that the applicant’s account of his alleged party activities was unclear and contradictory as he had spoken about the PJAK’s activities only in a very general way, giving information which could be found on the PJAK’s website, before its closure. The Immigration Service therefore concluded that there were no reasoned grounds to believe that the Iranian authorities would be interested in the applicant.

The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), also requesting an oral hearing to be held.

On 29 May 2009 the Administrative Court rejected the applicant’s appeal as well as the request for an oral hearing. The court noted that the applicant’s activism had not been very significant but rather low-level. Nor had the applicant ever been arrested in relation to his activities in the PJAK or ill-treated by the Iranian authorities. Furthermore, the court considered that the applicant merely suspected that an arrest warrant for him had been issued but that there was no certainty about it. The court did not find it likely that the Iranian authorities would be interested in the applicant in particular and therefore it considered that the applicant had failed to demonstrate a real risk of ill-treatment if returned to Iran.

On an unspecified date the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen).

On 23 November 2009 the applicant lodged a new asylum application, submitting the above-mentioned documents, two of which he claimed to have received from his family members in Iran, as written evidence supporting his application. As his appeal was already pending before the Supreme Administrative Court, the new application was sent directly there as an addendum to his appeal.

On 20 May 2011 the Supreme Administrative Court refused the applicant leave to appeal.

Apparently the order to deport the applicant to Iran was never executed and thus on 14 October 2011 the applicant lodged his third asylum application, citing the same grounds as before. He argued that his relatives in Iran had informed him that there was a court order against him for causing insecurity in the area and for being a member of the PJAK. He claimed that he would receive a death sentence if returned to Iran. He also relied on his marriage as grounds for a residence permit in Finland.

On 21 February 2012 the Immigration Service rejected his application. It considered that the application was substantially the same as before, containing the same information as had already been submitted to the Supreme Administrative Court in the context of the applicant’s previous asylum applications. The Service therefore dealt with the application in the fast-track procedure. No residence permit could be given to the applicant on the basis of his marriage either, as neither spouse had a job or had provided information about having sufficient means for living. The Service therefore ordered the applicant to be expelled to Iran.

By letter dated 16 March 2012 the applicant appealed to the Administrative Court, requesting that an oral hearing be held. He also requested that an interim order be imposed to stay the expulsion, which was not granted. He argued, in particular, that the Immigration Service had not taken into account the written evidence provided by him as no reasoning to that effect had been given in the decision.

On 29 June 2012 the Administrative Court rejected the applicant’s appeal and his request for an oral hearing. It considered that the Immigration Service had examined the documents submitted by the applicant and that the documents were mentioned in its decision. The Administrative Court considered that the new evidence did not provide grounds to accept the applicant’s appeal.

On an unspecified date the applicant appealed to the Supreme Administrative Court.

On 25 February 2013 the Supreme Administrative Court refused the applicant leave to appeal.

According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity.

According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country.

Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts.

Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation.

According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure.

Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection.

According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area.

Section 147b of the Aliens Act (as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member States, of third-country nationals who are subjects of individual removal orders. The annex to the Decision contains common guidelines on security provisions for joint removals by air including, inter alia, an obligation for the member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air.

According to the Home Office’s Operational Guidance Note on Iran, of October 2012:

“There is no evidence to suggest that an applicant of Kurdish ethnic origin, in the absence of any other risk factor, would on return face a real risk of ill-treatment or persecution to Article 3 level purely on account of his or her ethnic origin. However the government disproportionately targeted minority groups, including Kurds, for arbitrary arrest, prolonged detention and physical abuse.

Applicants who are able to demonstrate that they are known, or suspected, by the government to be members or supporters of the KDPI, Komala, or PJAK, will be at real risk of persecution and a grant of asylum will generally be appropriate.”


Preliminary objections joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-1) Effective domestic remedy;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6-1 - Access to court;Fair hearing;Article 6 - Administrative proceedings;Right to a fair trial);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-2 - Interference;In accordance with the law;Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Prescribed by law;Interference;Article 1 of Protocol No. 1 - Protection of property);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Interference;Article 1 of Protocol No. 1 - Protection of property);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo

On 11 November 2009 two of the applicants, Xhuvi Sharxhi (“the first applicant”) and Xhafer Isufi (“the second applicant”), purchased a plot of land measuring 1,663 square metres from several individuals whose property was recognised and returned in 1995 by a decision of the Commission on Property Restitution and Compensation. The land is situated on the coastline of the city of Vlora in the so-called area of Uji i Ftohtë - Tuneli.

On an unspecified date the first and second applicants entered into an agreement with a company for the construction of a five-storey residential and service building, with a penthouse floor and an underground floor containing shops (hereinafter “the Jon Residence” or “the building”) on the above-mentioned plot of land.

On 17 August 2010 the Vlora Municipal Council for Territorial Planning (Këshilli i Rregullimit të Territorit të Bashkisë Vlorë – “the CTP”) issued a building permit to the company and the first and second applicants. The remaining applicants entered into purchase agreements in respect of the flats to be constructed on the plot of land. The first and second applicants, by virtue of their ownership of the plot of land, were to be owners of some of the flats and shops in the Jon Residence. On 27 December 2012 the building was registered with the Immovable Property Registration Office (“the IPRO”).

Upon completion of the construction works in September 2012, it appears that the majority of the flats and shops were furnished, the owners moved into their respective flats, and a pool bar/pizzeria was opened. The adjacent stretch of beach was opened for public use.

It appears from a letter from the Ombudsman dated 13 November 2013 (see paragraph 24 below) that on 30 October 2013 the National Construction and Urban Planning Inspectorate (Inspektoriati Ndërtimor dhe Urbanistik Kombëtar – “the NUCI”) requested support from the Vlora district police for the demolition of illegal constructions along the Vlora coastline, to be carried out the same day. Further demolition work was to continue the next day on other parts of the Vlora coastline.

On 3 November 2013, without prior notice, officials of the NUCI and the Vlora Construction and Urban Planning Inspectorate (Inspektoriati Ndërtimor dhe Urbanistik Vlorë – “the MUCI”), supported by the State Police, surrounded the Jon Residence and cordoned it off with yellow police tape marked “Crime scene – no entry” (Skenë krimi, nuk lejohet kalimi). According to the evidence submitted by the applicants, which were widely published in the media, the residents of the building were told that the authorities were seizing the building. They were prevented from entering their flats and retrieving their valuables. The applicants only learned of the situation through the media or by telephone from the building’s security guards. They were told that the authorities were examining the legality of the building permit and other relevant documents. It appears from the documents submitted that the building was guarded by armed police officers, who were positioned in such a way as to prevent the residents of the building (including some of the applicants) from entering. Furthermore, when one of the residents asked one of the State employees to provide identification or another official document to justify the authorities’ interference with their property rights, the State employee declared that they were not obliged to give any information because they were an official body.

On an unspecified date the NUCI prepared an information report concerning the inspection they had carried out at the Jon Residence on 3 November 2013. According to the report, neither had the members of the CTP, the employees of the Vlora Urban Planning Department nor the inspectors of the MUCI had at no stage carried out the necessary building and planning inspections of the site. With their continuous actions and omissions they had allowed irregularities and unlawfulness throughout the whole period from the very moment the relevant permits had been approved in clear breach of the law, as well as throughout the construction and project implementation process.

On 20 November 2013, according to the evidence submitted by the applicants, the then Deputy Minister of Transport and Infrastructure, in an television interview for national TV Top Channel given in relation to the Jon Residence, stated:

“...The State is entitled to have the land back in its previous state. The demolition of the building is an indisputable consequence. The land should be cleared. If this means that the building should be demolished, then demolition should take place. The demolition is not a purpose per se. It is the result of a series of unlawful acts, a series of flagrant violations of Albanian law...The Immovable Property Registration Office has been involved in this illegality (futet në këtë valle të paligjshmërisë); then there is Vlora Municipal Council, which – in contravention of the urban plan and in respect of land which does not exist – issued a building permit. The Immovable Property Registration Office has registered a building that has zero – nil – value (ndërtim me vlerë zero, nul). There is a 3,000-square-metre construction on a plot of land that only measures 600 square metres ... it’s like a stage set for a show put on by corrupt authorities. We have reached this point in flagrant violation of the law ... Everyone could have been a victim as a result of this series of illegalities. Those that have bought flats in this building are victims. These people cannot be treated the same as those who have flagrantly violated the law. The Government should approve a fund for the full compensation of the people who have bought flats in this building ...”

On 28 November 2013, according to the evidence submitted by the applicants, the Prime Minister publicly declared that the Government intended to realise a project for the construction of Lungomare, a seaside promenade in Vlora, with a view to completion by the summer of 2015. He also declared that the Government would put out a tender for the design of the project.

The Jon Residence was demolished with explosives between 4 December 2013 and 8 December 2013.

On 4 November 2013 eleven residents, including nine of the applicants (E. Durolli, A. Deromemaj, V. Kacorri, P. Rakipaj, G. Calliku, V. Calliku, B. Rakipaj, Xh. Sharxhi and E. Ballanca) lodged a claim with the Vlora Administrative District Court (“the District Court”) against the NUCI and MUCI, requesting an “acknowledgment of the unlawfulness of the administrative actions carried out on 3 November 2013, which had resulted in a violation of their property rights, and the obligation of administrative authorities, the NUCI and MUCI to refrain from taking any further administrative action, necessary for the protection of the applicants’ property rights” (konstatimi i paligjshmërisë së veprimit administrativ të kryer nga pala e paditur i datës 3 Nëntor 2013, që kanë sjellë cënimin e të drejtave të pronësisë së paditësave; detyrimi i organit administrativ INUK dhe INUV Vlorë për të ndaluar kryerjen e një veprimi tjetër administrativ, të nevojshëm për mbrojtjen e të drejtave të paditësave).

It appears from the District Court’s decision dated 7 November 2013 (see paragraph 19 below) that during the proceedings the applicants argued that the actions taken by the NUCI and MUCI had been arbitrary because the construction had been lawful and in accordance with urban planning regulations. They claimed that police officers and representatives of the MUCI and NUCI had refused to allow them to enter the building by surrounding the building with crime scene tape. The cordoning off of the building had been done with a view to its demolition because the authorities had already proceeded in the same manner with other buildings, a fact which made it ever more apparent that there was a risk of adverse consequences for the applicants. The actions taken, namely the surrounding of the building with a view to its demolition without conducting a detailed analysis of whether the documentation was unlawful, and without the situation being examined by a court, had resulted in an extreme interference with the applicants’ property rights.

During those proceedings the applicants further requested the District Court to issue an interim order for the necessary measures to stay the implementation of the above-mentioned administrative action and for the removal of the obstacles which had made the seizure of the building possible and had made it impossible for them to use their properties, as well as a stay of all administrative decisions already issued or which were in the process of being issued related to the demolition of a lawful construction.

On 7 November 2013 the District Court, under Articles 202 et seq. of the Code of Civil Procedure (“CCP”) and Articles 28, 29 and 30 of the Administrative Disputes Act (see “Relevant domestic law and practice” below), in its operative provisions ordered: “the issuance of an interim order staying the administrative actions of any public authority that can interfere with the peaceful enjoyment by the applicants of their respective properties...the interim order is to remain in place until a decision is given on the merits, provided that the applicants themselves institute proceedings on the merits within ten days of the interim order to challenge the administrative actions or any administrative decision that will be adopted in respect of their properties”. The decision, in so far as relevant, is reasoned as follows:

“...it is proved that the applicants – owners of the flats in the Jon Residence have not been allowed to enter their respective properties, thus impeding them in the exercise of their property rights to a property which they have acquired legally in accordance with domestic law...the court considers that the request for the interim order should be accepted because the applicants submitted evidence which proves...that in the event that a civil claim on the merits is allowed, the execution of that decision would be difficult or impossible, thus creating a situation where the legal interest or subjective right recognised by a final judicial decision remains ineffective ... in the present case the interim order requested by the applicants represents their right to access the court with the purpose of prohibiting any further action by the administrative authority...in this way protecting their fundamental constitutional and legal rights until the examination of the merits of their claims...the court considers that the NUCI and MUCI have not documented their administrative decision in the form required by law...under administrative law this [undocumented administrative action] is also considered an administrative decision...this does not affect the actual consequences of the execution of the decision, consequences which may bring about irreparable damage to the legal interest and subjective rights of the applicants...The District Court considers that it is the duty of the administrative authority to issue an administrative decision in the written form required by law, in this way there is compliance with the principle of good governance of the public administration authorities as well as effective compliance with the rights of the party against which the administrative decision has been issued, so that that party is able to institute judicial proceedings and always in respect of the principle of the right to a fair trial...the principle of proportionality during the administrative procedure followed by the authorities in the present case is similar to the constitutional principles of proportionality examined above, which essentially aim to strike a balance between the purpose to be achieved through the administrative act and the means to be used, without disregarding fundamental freedoms and rights and the achievement of legal public interests...”

On an unspecified date the applicants’ representative submitted a request to the NUCI, informing it of the interim order of 7 November 2013. He stressed the fact that under Article 210 of the CCP an interim order was an executable decision, even in the event of an appeal against it. He urged the authorities to take the necessary measures for the immediate enforcement of the interim order. It appears that no reply was given.

On 11 November 2013 the NUCI lodged an appeal against the interim order of 7 November 2013.

On 20 January 2014 the Administrative Court of Appeal terminated the proceedings concerning the interim measure on the grounds that the subject matter of the proceedings had ceased to exist, as the Jon Residence had already been demolished in December 2013 (see paragraph 15 above). The decision, in so far as relevant, reads as follows:

“...it was already ...a well-known public fact that the Jon Residence had been demolished, in relation to which the District Court had decided to stay the administrative actions of any State authority with the aim of the peaceful enjoyment of the property by the applicants until the final solution of the dispute ... The outcome which the interim order was trying to stay, has now occurred...”

It appears that on an unspecified date one of the applicants complained to the Ombudsman (Avokati i Popullit) about the authorities’ interference with her entering her flat and other residents entering their flats (see also paragraph 24 below). She complained that the authorities had arbitrarily cordoned off the building using yellow police “crime scene” tape.

On 13 November 2013, in reply to the applicant’s complaints and to other residents’ complaints appearing in the media, the Ombudsman sent an official letter to the chief of Vlora police station (Komisariati i Policisë), the head of Vlora district police (Policia e Qarkut), and for information to the Director General of the State Police (Policia e Shtetit), recommending that they take all appropriate measures to stop the unlawful actions that had resulted in a violation of the Jon Residence residents’ property rights. The Ombudsman stated that the NUCI had seized the building without any formal act. The cordoning off of the building preventing the applicants from enjoying their properties was unlawful and had consequently resulted in a violation of their legal interests. Moreover, the use of yellow police “crime scene” tape was not appropriate since the events in the present case did not involve a crime scene. He further suggested that it was necessary to examine the case and undertake organisational measures aimed at ensuring that such actions were not repeated in the future.

On an unspecified date, but within ten days from the interim order, eleven residents, including nine of the applicants (E. Durolli, A. Deromemaj, V. Kacorri, P. Rakipaj, G. Calliku, V. Calliku, B. Rakipaj, Xh. Sharxhi and E. Ballanca), lodged a claim on the merits with the District Court. It appears from the District Court’s decision of 28 January 2014 (see paragraph 26 below) that the object of the claim was the same as that lodged on 4 November 2013 (see paragraph 16 above).

On 28 January 2014 the District Court declared that the actions carried out by the MUCI and NUCI on 3 November 2013 had been arbitrary and in flagrant breach of the Albanian Constitution and the law. The decision in so far as relevant reads as follows:

“...[the] MUCI and [the] NUCI abusively and without any administrative decision to justify their illegal actions took arbitrary action with the aim of demolishing a property which had been acquired in accordance with the law. The NUCI had no legal reason to take this administrative action, and therefore its actions were totally illegal...the administrative action for the demolition of the construction as duly authorised by the competent authorities without first analysing in detail the illegality of the actions and without an assessment of the situation by an independent court of law, was within the limits of extreme illegality...The authorities unilaterally and without a full and comprehensive administrative investigation surrounded the building... The authorities with their arbitrary actions gravely violated the principle of legal certainty, according to which no one should suffer an interference with their rights obtained by law and has the expectation that no State authority will take any administrative decision or action by which the rights obtained by law could later be violated as a consequence of the State authorities’ actions...”

The District Court accordingly allowed the claim. The applicants, however, withdrew their request for the authorities to be prohibited from taking any further action, which had become devoid of purpose, since the Jon Residence had in the meantime been demolished by the authorities. The District Court therefore discontinued the examination of this part of the claim.

On 6 May 2016, following an appeal by the authorities, the Administrative Court of Appeal upheld the District Court’s decision of 28 January 2014. It appears from the decision that the applicants argued that the MUCI and NUCI had abusively and without any administrative decision to justify their illegal actions taken arbitrary action with a view to demolishing a lawful property. The Administrative Court of Appeal reasoned that the cordoning off of the building and prevention of the applicants from entering it had been arbitrary, not in accordance with the law and in breach of their property rights. It further noted that the NUCI were obliged to compensate the applicants for their illegal actions under the Non-Contractual Liability of the State Act (see “Relevant domestic law and practice” below) and Article 608 of the Civil Code. Only after the actions taken by the authorities were declared unlawful were the applicants entitled to bring a claim for damages under section 14 of the Inspection of Buildings Act (see “Relevant domestic law and practice” below). However, it did not decide this issue as it had not been part of the claim. It appears that the proceedings are pending before the Supreme Court.

On 8 October 2013 the National Council for Territorial Planning (Këshilli Kombëtar për Rregullimin e Territorit – “the NCTP”) adopted a decision on emergency measures to be undertaken for the protection and rehabilitation of the environment in some areas of national importance, as well as a procedure for the preparation of an integrated sectoral plan concerning stretches of coastline. The decision stated that stretches of coastline were areas of national importance where measures of an emergency nature were to be undertaken with a view to protecting and rehabilitating the territory and environment. Furthermore, it was decided that the granting of new development building permits for individual buildings on stretches of coastline and in other areas of national importance would be suspended pending the preparation of the integrated sectoral plan.

On 27 November 2013 the Council of Ministers issued a decision, which came into effect immediately, ordering the expropriation in the public interest of immovable private properties affected by the environmental rehabilitation of Uji i Ftohtë – Tuneli, a protected stretch of coastline in the Vlora Municipality. The expropriation was made in favour of Vlora Municipality within thirty days of the decision. The total compensation awarded was 462,919,230 Albanian Leks (ALL) (approximately 3,456,600 euros (EUR)) in respect of the construction measuring 8,121.39 square metres in total, to be divided among the owners. The decision was taken under the Expropriation Act and on the basis of two decisions of the NCTP – the above-mentioned decision of 8 October 2013 (see paragraph 28 above) and an earlier decision of 23 June 2004 on the approval of the Vlora city centre plan. According to the decision, after the expropriation the legal owners of the property would be compensated (by the authorities) on presentation of their property title documents. The deadline for the termination of the expropriation procedure was set for 28 December 2013.

The decision was published in the Official Gazette on 3 December 2013. It appears that the applicants only learned of the decision that day, when the press spokesman for the Minister of Home Affairs announced that the Jon Residence was to be demolished – a process that was to start the following day (4 December 2013).

On 2 December 2013 the mayor of Vlora requested the assistance of the NUCI with the demolition of the Jon Residence in accordance with the decision of 27 November 2013. On the same day the NUCI requested the assistance of Vlora police station with the demolition, which was planned to start at 8 a.m. the next morning. The entire building was demolished between 4 December 2013 and 8 December 2013 (see also paragraph 15 above).

On 29 January 2014 the IPRO, in response to a letter sent by one of the applicants asking for a copy of her certificate of ownership, said that since the building had been demolished, it was unable to issue a certificate of ownership in respect of a property that no longer existed.

On 9 April 2014 the Council of Ministers issued another decision, “On some amendments to the Council of Ministers’ decision of 27 November 2013”, amending its previous decision of 27 November 2013 to the effect that it awarded the applicants a total of ALL 441,168,600 in compensation in respect of a plot of land measuring 7,739.80 square metres. The deadline for the termination of the expropriation procedure was set for 30 April 2014. No appeal was lodged against this decision.

On 12 April 2017 the Budget Management Department of the Ministry of Finance addressed a letter to the Government Agent, stating that the Ministry of Finance had approved a fund of ALL 362,919 and ALL 100,000 (approximately EUR 3,460 in total) for the implementation of the Council of Ministers’ decision of 27 November 2013. No payment has been made to the applicants.

On 26 December 2013 twenty-one residents, including all the applicants, lodged a claim with the District Court against the Council of Ministers’ decision of 27 November 2013, challenging the value of the compensation awarded and the calculation of the exact surface area of the property which had been expropriated, on the basis that the decision had been issued as a result of an expropriation procedure in flagrant breach of the law. They also requested that the Council of Ministers be ordered to change the amount of compensation (to ALL 57,000 per square metre) and compensate each owner based upon the exact size of their property, corresponding to an amount of fair compensation in accordance with the law and calculated by an expert appointed by the court, also taking into consideration the possibility of development of the property. In their claim the applicants maintained that the expropriation had been unlawful and that a “de facto expropriation” (shpronësim de facto) had taken place. They also maintained that the actions of 3 November 2013 of the NUCI and MUCI had been abusive and had been taken without any administrative decision to justify their illegal actions with the aim of demolishing a lawful property. They further submitted that, even though the authorities had issued an interim order and the Ombudsman had also acknowledged the illegality of the authorities’ actions and had recommended that similar actions in the future should not be repeated without awaiting a decision of the District Court, they had nevertheless adopted the Council of Ministers’ decision of 27 November 2013.

On 6 March 2014 the District Court allowed the applicants’ claim. It reasoned that the expropriation had been unlawful in that the Council of Ministers’ decision of 27 November 2013 had been adopted in gross procedural violations and breaches of the Expropriation Act (see “Relevant domestic law and practice” below) and various by-laws.

As regards the facts of the case, the District Court mentioned that the actions taken on 3 November 2013 consisting of the cordoning off of the building with a view to its demolition had been arbitrary and taken in breach of domestic law, as it had held in its decision of 28 January 2014 (see paragraph 26 above). It also reiterated the fact that the Ombudsman had recommended that necessary measures be taken so that similar arbitrary actions would not be repeated in the future. It nevertheless noted that the authorities had adopted the Council of Ministers’ decision of 27 November 2013 without awaiting the decision on the merits of the case.

As regards the legal arguments as to whether the interference had been lawful, the District Court reasoned that the authorities had not complied with the whole expropriation procedure as set out in sections 9 to 16 and 20 to 21 of the Expropriation Act. The competent ministry had not informed the owners of the property or the construction company of the expropriation, therefore they and any other third parties had been deprived of the opportunity to challenge it. According to their claims submitted before the district court, the applicants had only learned of the expropriation decision through the media, while the building was being demolished. Even afterwards, the applicants had never been informed, despite it being a legal requirement. This would have given them reasonable time to leave the building and take their belongings to other places. The authorities had continued with the demolition of the property without having all the information as to who the residents were. From the documents in the case file it was evident that the relevant ministry had only asked the Vlora Municipality for information about the residents of the Jon Residence a month after the building had been demolished and more than forty-five days after the decision on the expropriation had been issued. It further held that the expropriation had been disguised as a formal expropriation taken in compliance with the legal provisions in force, but that in reality the seriousness of the violations had been such as to make it a “de facto expropriation” (shpronësim de facto). The Council of Ministers’ decision to expropriate the property had been a formal act, the sole purpose of which had been to disguise the actual nature of the expropriation. Furthermore, as a result of the immediate demolition of the building, without the authorities respecting the deadlines set in the law, the applicants had been prevented from being returned to their previous situation, even though the Council of Ministers’ decision had been null and void. The District Court reasoned that the non-compliance with domestic law concerning the expropriation procedure had aggravated the applicants’ situation and, therefore, the violation of the property rights had been so serious that it was unacceptable in a State governed by the rule of law. It reasoned that, according to the Court’s case-law (reference was made to Guiso-Gallisay v. Italy judgment (just satisfaction) [GC], no. 58858/00, §§ 94-95, 22 December 2009), in cases of unlawful expropriation the domestic courts had a strict obligation to award higher compensation than in cases of lawful expropriation. Moreover, as regards the existence of any legitimate aim in the public interest, the District Court noted that there had been no infrastructure or ecological (environmental) regulatory plan approved by law, not even a plan for the development of the protected area. The District Court noted that the decisions of the NCPT of 8 October 2013 and 23 June 2004 had not provided for the demolition of any legal building or its expropriation, or the invalidity of any authorisation that had already been granted and of any construction already built. On the basis of the above considerations, the District Court decided to amend the Council of Ministers’ decision of 27 November 2013 concerning the exact total surface area of the expropriated property, as well as the total amount of compensation and the amounts to be paid to each applicant. More concretely, the District Court increased the total compensation to be awarded to the applicants to ALL 1,580,712,321, on the basis of a court-ordered experts’ report. The District Court found that the authorities had blatantly violated the procedure set out in the Constitution and domestic law concerning the determination of the compensation to be paid in expropriation cases. Therefore, the calculation by the Council of Ministers in its decision of 27 November 2013 had not been made in accordance with the law. It accepted the report on the grounds that the valuation of the property had been based on the open market value following contemporary valuation methods for immovable properties such as the direct comparison and the state of the development of the property and taking also into consideration the location of the property, the development of the property, its actual development on the basis of legal documents as well as analysing the values of sales and rents of similar properties. The experts had also tried to analyse increases or decreases in the market prices of sales or purchases of similar properties. Under the expert report, the price per square metre was EUR 1,155 (ALL 161,700) in respect of the flats and EUR 2,000 (ALL 280,000) in respect of the business premises. The price was calculated using the average market value during the period between 2013 and January 2014 based on a Council of Ministers’ decision “on the valuation methods for immovable properties in Albania” which stated that such calculations are made in accordance with international valuation standards.

The District Court also recalculated the surface area of the expropriated property, stating that it actually measured 8,396 square metres. Furthermore, it included all the owners of the Jon Residence in the list of parties to be compensated, as some of the applicants had been excluded from the list under the Council of Ministers’ decision of 27 November 2013. Lastly, the court ruled that the compensation was to be paid by the Council of Ministers and the Vlora Municipality in three tranches over a period of eighteen months from the moment the court’s decision became final. Both the Council of Ministers and the Vlora Municipality were obliged to pay jointly the judicial costs and expenses including the experts’ fee, the court fees for lodging the claim (ALL 11,409,852) and the lawyers’ fee for the representation of G. Calliku, V. Calliku, M. Mecaj, A. Deromemaj, E. Durolli, M. Hanxhari, P. Rakipaj, B. Rakipaj, K. Kapedani (applicants in the proceedings before the Court), J. Ismailaj and S. Ismailaj (not applicants before the Court), which amounted to EUR 12,000 (ALL 1,680,000) in total.

On an unspecified date thereafter the applicants lodged an appeal against the part of the District Court’s decision of 6 March 2014 concerning the amount of compensation and the manner in which it was to be paid. They argued that the expert report did not reflect the market value of the property, which was much higher than the value indicated, and that the valuation standards for expropriated properties had not been complied with. More concretely, the experts had not complied with the criteria and standards provided for by The European Group of Valuers’ Associations (TEGOVA) and the valuation standards based on the financial and legal interests of the applicants. The property had had a higher value at the time of its expropriation. The experts had not specified the value of the specific components of the relevant calculation formula or the market value for every flat in order to reflect the market value of the building. Nor had they taken into consideration all the official data in the purchase agreements for the flats. They also complained of factual and calculation errors in the expert report and requested that another be produced. An appeal was also lodged by the Attorney General’s Office.

On 23 September 2014 the Administrative Court of Appeal upheld in part the District Court’s decision of 6 March 2014. It reiterated the facts of the case as noted by the District Court and upheld the amount of compensation awarded, the size of the construction land and the list of owners concerned. It decided that the applicants should be compensated individually based on the size of their property. The total amount of compensation (ALL 1,580,712,321) was to be divided as follows: ALL 161,700 (EUR 1,155) per square metre in respect of the flats, which measured 6,564.79 square metres in total, and ALL 280,000 (EUR 2,000) per square metre in respect of the business premises, which measured 1,831.63 square metres in total. It decided that the value calculated in the expert report represented the real value and just compensation in accordance with the Constitution, the European Convention, the Expropriation Act and other by-laws. It ruled that the compensation was to be paid by the Council of Ministers in one lump sum. The Council of Ministers was also obliged to pay the legal costs and expenses.

Both the applicants and the Attorney General’s Office lodged an appeal with the Supreme Court against the lower courts’ judgments. The applicants requested a higher amount of compensation for their expropriated property. The Council of Ministers, however, requested that the execution of the decision be stayed.

On 15 January 2015 the Supreme Court, on the basis of Article 479 of the CCP allowed the request of the Council of Ministers and the proceedings were stayed. The decision contained no reasoning. The case is still pending before the Supreme Court. There is no information in the case file on what grounds the Council of Ministers appealed against the lower courts’ decisions and requested a stay of execution.

It appears from the Ombudsman’s letter of 13 November 2013 (see paragraph 24 above) that on 18 February 2011 the NUCI lodged a criminal complaint with the Vlora District Prosecutor against the head of the Vlora Urban Planning Department, alleging irregularities in the proceedings leading to the granting of the building permit on 17 August 2010. The case was sent to the Vlora District Court for trial. There is no information about the outcome of those proceedings.

On 4 November 2013 the first applicant and another resident lodged two separate criminal complaints with the District Prosecutor, alleging abuse of power on the part of officials of the NUCI and the police officers of the State Police involved in the seizure of the Jon Residence on 3 and 4 November 2013. They complained that they had not been allowed to enter their homes, that the State Police had cordoned off the building with police crime scene tape and that inspectors of the NUCI had entered the building. They also asked the authorities to take measures to end the arbitrary interference with their property rights, which was still continuing the day that they lodged the criminal complaint.

In February 2014 the District Prosecutor decided not to initiate criminal proceedings, on the grounds that the actions did not constitute a criminal offence (fakti i kallëzuar nuk parashikohet nga ligji si vepër penale). It reasoned that the NUCI’s employees under domestic law had been entitled to carry out the inspection and verify the regularity of the documents concerning the approval of the building permit and the implementation of its technical standards by the construction company. They had accordingly been entitled to enter the premises of the Jon Residence. Furthermore, the officers of the State Police had been entitled to cooperate with and support the NUCI. After the authorities had carried out the inspection criminal proceedings had been instituted, therefore the suspicion of non-compliance with the rules and urban planning conditions had been realistic. The District Prosecutor further reasoned that one of the complainants had said that when he had returned to the building the following day he had seen officers of the State Police inside and had been allowed to enter his flat freely after showing them his certificate of ownership. That statement had also been corroborated with the information given by the NUCI and the Vlora police.

On 18 December 2013 the District Prosecutor, following a request lodged by the Taskforce for Territorial Protection (Task-Forca për Mbrojtjen e Territorit – a body under the authority of the Minister of Home Affairs), instituted a criminal investigation against six public officials (some of them employees of the IPRO, others employees of the Vlora Municipality) for possible abuse of power because of the irregularity of the proceedings concerning the restitution of the applicants’ property and the subsequent proceedings concerning the issuance of the building permit. On 20 April 2016 the Vlora Court of Appeal terminated the proceedings in respect of four of the public officials and the remaining two were acquitted. The proceedings are currently pending before the Supreme Court following an appeal by the District Prosecutor.

On 14 August 2013 an article was published on the official website of the Vlora Municipality reading, inter alia, as follows:

“Today the Vlora Municipality instituted an action for the demolition of illegal buildings in the Old Beach area of Vlora. The head of the Vlora Municipality declared that three weeks ago the Municipality had already demolished 130 other illegal buildings situated in Radhimë village in the city of Vlora. These actions [were] aimed at clearing and releasing territory which had been unlawfully occupied, as well as the management of the urban territory. He also declared that the process for the demolition of all illegal buildings would continue on the whole Vlora coastline. The second phase would deal with the revaluation of lawful constructions which have not been constructed in accordance with the regulatory planning and the touristic perspective of Vlora ...the Vlora Municipality in cooperation with the new Government will provide for legal forms of compensation or if necessary, financial indemnification. In this category there were [two to three] buildings, amongst others, [which] impeded the implementation of the Lungomare [promenade] construction project.”

On 2 November 2013 an article was published on an online portal, Shqiptarja.com, stating that the authorities in Vlora were continuing with the demolition of buildings in the area where the promenade would be constructed. Provisional permits had been issued by the authorities for the buildings which operated as bars and restaurants during the summer.

On 4 November 2013 an article was published on an online portal, Tema, stating that the residents of the Jon Residence were unable to enter the building. The article mentioned that, according to the NUCI, the building had been seized so that the authorities could inspect the building permit, the relevant documentation for the construction, and whether or not the building permit had been carried out in compliance with the law. The Ministry of Home Affairs, having been contacted by Vizion Plus (a national television station), had clarified that the police had taken part in the actions taken on 3 November 2013 to support the NUCI. The head of the NUCI had declared that they were still examining the case and if any shortcomings resulted, the Taskforce would then have to decide whether or not to demolish the building.

It appears from the evidence submitted by the applicants that on 4 December 2013 a local television channel broadcast in their news bulletin that the NUCI, supported by police officers, had started the procedure for the demolition of the building. According to the broadcast, on that day the demolition was considered to be partial, and the residents of the building were given five days to remove their movable property from their flats. The owners of the residential premises had not removed their movable property on the grounds that the authorities had not properly valued their flats, whereas the owners of the business premises had duly removed their movable property. The authorities had valued their flats as being worth EUR 350 per square metre, whereas they had paid EUR 1,300 per square metre when they had bought them. However, according to the broadcast it was noted that the procedure for the demolition of the property had already been started by the authorities following the Jon Residence having been blocked for a long time.

On 20 June 2016 an online portal, Vizioplus.tv, published an article stating that the National Inspectorate for Territorial Protection (Inspektoriati Kombëtar për Mbrojtjen e Territorit – “the NIPT”, the former NUCI), had initiated proceedings for the demolition of illegal buildings so as to make possible the implementation of the Lungomare project. A two-storey building had already been demolished on the Monday, and the demolition of two other buildings (bars) would happen in the days that followed.

On 29 June 2016 an online portal, JavaNews, published an article stating that the NIPT had initiated an operation in Vlora city for the implementation of the Lungomare project. The NIPT had already demolished a single-storey building. It would also demolish another building. During the first part of the operation the NIPT had already demolished three other buildings.

On 31 March 2017 the NIPT addressed a letter to the Government Agent. In so far as relevant, the letter reads as follows:

“... [The] NUCI had exercised their functions in accordance with domestic law. On 3 November 2013 the NUCI, in the presence of a representative of the Vlora Urban Planning Department, inspected the construction site of the Jon Residence. All the remaining procedures followed by the NUCI were based on the Council of Ministers’ decision of 27 November 2013. On the basis of the expropriation procedure the Vlora Municipality on 2 December 2013 had requested the NUCI’s cooperation with the implementation of the Council of Ministers decision to demolish immovable properties which would be expropriated. On the basis of this request, the NUCI had carried out the demolition of the building in cooperation with the Ministry of Home Affairs, the Defence Ministry, the Environmental Ministry and the Vlora Municipality... In the present case the NUCI had complied with the interim order of 7 November 2013 and had not taken any action in breach of this decision. In compliance with the Council of Ministers’ decision of 27 November 2013 and following the request of the Vlora Municipality it had undertaken all the necessary steps for the demolition of the building...in the present case there had not been any administrative or criminal investigation in respect of the applicants’ claims concerning the non-enforcement of the interim order...the use of yellow crime scene tape had not been made by the NUCI. It is true that the NUCI had requested the support of the State Police, however it is not the NUCI’s competence to dictate or examine the manner and equipment used by the State Police for securing the perimeter of the site under the authorities’ control...the NUCI had not taken any action that could have impeded the applicants in exercising their property rights. The object of the inspection had been the building and the subject of the inspection had not been the residents but the construction company and the activities of the MUCI’s employees.”

The Government submitted as part of their observations domestic case-law consisting of two decisions of the district courts allowing appellants’ claims for compensation in respect of pecuniary damage suffered as a result of the demolition of their properties by the MUCI and NUCI. In one case the demolition had occurred in respect of a property which had been illegally built but for which proceedings for its legalisation were ongoing. The claim was allowed under the Non-Contractual Liability of the State Act and Articles 608 to 640 of the Civil Code. In the other case the district court allowed the appellants’ claim for compensation on the grounds that the demolition of the property had occurred despite another court taking a decision to suspend the NUCI’s decision to demolish the property for being illegally built. The claim was allowed under Articles 608 and 640 of the Civil Code. It is unclear whether the two district court decisions became final.

The Government also submitted three other domestic court decisions in which the domestic courts allowed the appellants’ claim for a higher amount of compensation for their expropriated property in the public interest.

At the hearing the applicants’ representative pleaded that on 9 December 2013 the applicants had lodged a request with the Vlora Municipality for compensation. On 20 January 2014 the Vlora Municipality had asked the applicants to produce a copy of their certificate of ownership accompanied by a map of flats issued by the IPRO within the last seventy-two hours. The applicants did not submit the two documents. They further submitted that the IPRO had refused to issue the certificates (see also paragraph 32 above).


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Robert Spano

The applicant, Mr Simo Valkeajärvi, is a Finnish national, who was born in 1957 and lives in Helsinki. He was represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicant was born, went to school and grew up in the municipality of Kuru. In 2004 he inherited real estate from his parents, and he returned to live in the house situated on the property. His closest family members as well his friends live in the area.

In 2008 the applicant obtained a building permit allowing him to extend the house situated on the inherited property. During the works, the applicant’s application for communal aid for increasing energy-efficiency was rejected by the municipality as the real estate was marked in the detailed plan as a holiday home and not as a house destined for permanent, year-round use.

By letter dated 5 January 2012, the applicant requested that the municipality grant a derogation (poikkeaminen, undantag) from the planning norms and change the entry in its records from a holiday home into a house in permanent use, in order to reflect the real situation.

On 24 January 2012 the municipal environmental board rejected the applicant’s request. It reasoned its decision by stating that the real estate was situated in an area destined for holiday homes and that the building permit had been granted only for a holiday home. Accepting a derogation in the applicant’s case would affect the realisation of plans and be detrimental to urban development. If a derogation were made in the applicant’s case, then all other landowners would have the same right, as they all had to be treated equally. Moreover, the real estate was located a long way from the services of the municipality and was not therefore suitable for permanent residence.

By letter dated 1 March 2012 the applicant appealed against the decision of the municipal environmental board to the Hämeenlinna Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that his house be designated as a house for permanent residence. He pointed out that the house fulfilled the requirements for a house in permanent use. The neighbours did not object to the applicant’s request. Moreover, the house was situated only 11 km from the centre of the municipality and such a location was not in any way unusual in other villages. Accepting the applicant’s request would not create any new service obligations for the municipality.

On 17 December 2012 the Administrative Court rejected the applicant’s appeal. It found that the applicant’s house was located in an area which, in detailed plans, was destined for holiday use only. The same plans indicated other areas in which permanent housing should be concentrated. The equal treatment of all landowners required that they should also be able to live permanently in the area in question, which would lead to an uncontrolled increase in permanent housing in the area. The applicant’s personal circumstances and the fact that the house in question was suitable for permanent residence were not relevant in the present case.

By letter dated 16 January 2013 the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal presented before the Administrative Court. Moreover, the applicant argued that the right to live permanently in a place of one’s choice could not be dependent on the municipality in which one lived and the will of a particular civil servant in that municipality. The question of a constitutionally-protected right to equal treatment of citizens arose, since similar requests had been accepted in other municipalities. For example in the Tampere area the municipalities had abandoned the idea that permanent housing could not be accepted in sparsely populated areas.

On 1 November 2013 the Supreme Administrative Court refused the applicant leave to appeal.

In order to avoid periodic penalty payments which were likely to be imposed, the applicant moved to a rented apartment in Helsinki.

On an unspecified date the applicant applied again for communal aid for increasing energy-efficiency.

On 27 December 2012 the applicant’s request was again rejected by the municipality.

By letter dated 10 February 2013 the applicant requested that the municipal environmental board rectify the decision of 27 December 2012 and state that there was no impediment to registering his house as a house for permanent use.

On 11 June 2013 the municipal environmental board upheld the decision of 27 December 2012 not to grant communal aid for increasing energyefficiency. No decision was made concerning the registration of the applicant’s house as a house for permanent use. It is not known whether the applicant appealed further against this decision.

Article 9 § 1 of the Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999) provides the following:

“Freedom of movement

Finnish citizens and foreigners legally resident in Finland have the right to move freely within the country and to choose their place of residence.”

According to Article 6 of the Constitution:

“Everyone is equal before the law.

No one shall, without an acceptable reason, be treated differently from other persons on the ground of sex, age, origin, language, religion, conviction, opinion, health, disability or other reason that concerns his or her person....”

According to Article 106 of the Constitution, if in a matter being tried by a court of law the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution.

Section 124, subsection 4, of the Land Use and Building Act (maankäyttö- ja rakennuslaki, markanvändnings- och bygglagen, Act no. 132/1999) provides that a building permit is required to substantially alter the intended use of a building or part thereof. When the need for the permit is considered, the impact the alteration will have on implementation of a land use plan and on other land use, and on the attributes required of the building are taken into account. Alteration of intended use requiring a permit includes altering a holiday home so that it is fit for permanent residence. Unless the area is specifically designated for this purpose in the local detailed plan, the building of a large retail unit shall be considered to have the aforementioned impact on land use.

According to section 171, subsection 1, of the same Act, when special cause exists, the local authority may grant a right to derogate from the provisions, regulations, prohibitions and other restrictions issued in or under this Act concerning building and other action. Section 172, subsections 1-2, of the same Act provide that

“Derogation shall not:

1) impede planning, the implementation of plans or other organisation of land use;

2) hinder attainment of the goals of nature conservation; or

3) hinder attainment of goals concerning the conservation of built-up environment.

A right to derogate may not be granted if it leads to building with substantial impact or if it has other substantially harmful environmental or other impact.”

The Supreme Administrative Court has, in its decision no. 3013/2013 of 24 September 2013, accepted in a case similar to the applicant’s case that the municipal building and environmental board could impose a periodic penalty payment to real estate owners in order to stop their unlawful use of a holiday home as a permanent residence.