Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind)

Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1958 and lives in Magadan.

In April 2008 the administration of Magadan Region forwarded for review to the Magadan Regional Psychoneurological Clinic (MRPC) letters sent by the applicant to the President of the Russian Federation, the governor of the region, and 11 other administrative bodies. In these letters the applicant alleged in particular that she had a “special relationship” with the mayor of Magadan, that she was destined to protect people in high office, and that she was being persecuted by employees of the mayor’s office.

On 17 April 2008 the Chief Psychiatrist of the MRPC asked the Magadan Town Court to order an involuntary psychiatric examination of the applicant. The relevant part of the request read:

“[T]he resident psychiatrists concluded that [the applicant’s letters] are morbid (delusional) and that she suffers from a mental disorder. The content of the letters reveals high levels of emotional stress, crystallised delusions, and the probability of unlawful actions against the persons involved in the delusions. The MRPC attempted to persuade the applicant to undergo a psychiatric examination voluntarily, but she refused. Her son suffers from a chronic mental disorder manifested as paranoid schizophrenia. [Accordingly] a judicial authorisation of the applicant’s psychiatric examination under sections 24-25 of the Psychiatric Assistance Act 1992 [is requested] ...”

On 28 April 2008 the Magadan Town Court returned the application for involuntary psychiatric examination.

On 11 October 2008 after a heated argument in the town hall, the applicant was brought to the police station and then transferred to the MRPC for urgent treatment.

On 13 October 2008 a clinical psychiatric evaluation report was issued by the panel of three psychiatrists in the MRPC. The applicant was diagnosed with paranoid schizophrenia and paranoid syndrome. The panel noted in particular her belief that she had an affectionate relationship with the mayor of Magadan (attempting to contact him directly by phone and in person), her sense of being persecuted by the mayor’s assistants, and the intense arguments during her visits to the town hall.

Involuntary hospitalisation of the applicant was recommended in the light of her persistent refusal to commit herself to hospital voluntarily, her failure to acknowledge her medical condition, and the risk of significant damage to her health through aggravation of her psychiatric condition in the absence of psychiatric assistance.

The MRPC submitted the application for involuntary treatment to the Magadan Town Court under Article 29 c of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of Citizens’ Rights related to its Administration of 1992 (Psychiatric Assistance Act 1992).

On 17 October 2008 the Magadan Town Court terminated proceedings on the MRPC’s application because the applicant had agreed to undergo the necessary treatment voluntarily and had signed the consent form in the courtroom. The MRPC representative thus withdrew the application for involuntary treatment.

Between 17 October 2008 and 26 December 2008 the applicant was an in-patient in the MRPC, following a course of anti-schizophrenia treatment.

In a letter of 6 May 2010, the Magadan Mayor’s Office asked the Chief Psychiatrist of the MRPC to take “prophylactic measures” within his competence in respect of the applicant. The letter stated that she persistently stalked employees of the Mayor’s Office, demanded that unspecified payments be made to her, and insulted and threatened individuals dealing with her.

On 19 May 2010 a psychiatrist examined the applicant and established that she had not been following her medication treatment, with the result that her schizophrenia was at an acute stage. The psychiatrist recommended involuntary hospitalisation and issued the corresponding medical referral.

On 20 May 2010 the applicant was interned in the MRPC.

On 21 May 2010 a clinical psychiatric evaluation report was issued by the panel of three psychiatrists at the MRPC. The applicant was diagnosed with progressive paranoid schizophrenia. The panel took special note of her general medical and clinical history, with the greatest emphasis focussed on the events of 2008 and the treatment she received. In respect of developments since 2008 the report read:

“On 20.05.2010 at 15:50 the patient Mrs Mifobova was transported to the MRPC under a referral by the psychiatrist Mr Ya. due to changes in her mental state, her expression of delusional ideas of relations, grandeur and persecution. Hospitalised involuntarily ...

[Further follows the detailed personal, family and social profile of the applicant and her medical history in 2008]

... Currently admitted to the MRPC due to progression of her psychiatric symptoms to an acute stage. During examination the following were identified: delusional ideas of relations, persecution, grandeur, exceptional importance. A lack of any objective attitude regarding her condition and statements was observed.

Having regard to the above, the panel concluded that Mrs Mifobova suffers from a chronic mental disorder in the form of paranoid continuous schizophrenia and needs involuntary treatment in the MRPCV under subsections (a) and (c), Section 29 of the Psychiatric Assistance Act 1992.”

The application for involuntary treatment was submitted by the MRPC to the Magadan Town Court under Section 29 a and c of the Psychiatric Assistance Act of 1992, on the grounds of significant damage to her health due to the aggravation of her psychiatric condition in the absence of psychiatric assistance, posing an immediate danger to herself and others.

On 24 May 2010 the Magadan Town Court made phone calls to the applicant’s son, Mr L., and Mrs B., a representative of the municipal Department of Healthcare of Magadan, summoning them to attend the hearing and to act as the applicant’s representatives.

Mrs B’s rights and duties under the letter of authority of 21 January 2010 issued by the Department of Healthcare were described as follows:

“... Mrs B is entrusted with representing the interests of the Department of Healthcare of the Magadan Mayor’s Office in relation to all institutions, organisations, and commercial enterprises, and also to litigate in all judicial institutions with all the rights of a plaintiff, defendant or a third party ...”

On 26 May 2010, after considering the testimony of the applicant and the MRPC’s representative, medical evidence, written statements from the witnesses and documentary evidence, the Magadan Town Court ordered the involuntary hospitalisation of the applicant.

Present at the hearing were a representative of the hospital, a prosecutor, a representative of the municipal social services, and the applicant. The applicant’s legal representative Mr L. (her son, who also suffered from schizophrenia) was notified about the hearing, but did not appear. The trial record indicated that none of the parties objected to the hearing being held in his absence, including the applicant, who stated that she had “told him not to open the door to anyone”.

The hearing record indicates that Mrs B (designated as a representative of a party having an interest in the proceedings) took part in the examination of the applicant (addressing one question to the representative of the MRPC), stated that there were grounds for involuntary hospitalisation, but did not take part in the closing arguments.

In reaching the decision to order involuntary treatment of the applicant, the Town Court noted the applicant’s long history of suffering from a chronic psychiatric disorder and her acute state of schizophrenia at the material time; her inability to control her behaviour; her lengthy exposure to harsh weather conditions while seeking encounters with the mayor on the street; the absence of anyone able to provide her with the necessary care; the appearance and behaviour of the applicant in the courtroom; the answers given to the questions addressed to her; her previous history of in-patient psychiatric treatment and the lack of any prospect of improvement outside of a specialised facility.

Only the operative part of the judgment was delivered during the hearing and the applicant was never served with the full text of the judgment.

On 10 June 2010, during her stay in the MRPC, the applicant lodged an appeal against the judgment. Since she had not been served with a copy of it, the appeal claims had to be confined to general statements concerning the absence of reasons for her internment. The appeal contained a request to be provided with a lawyer for the appeal proceedings, because the applicant was allegedly not allowed to use the phone in the MRPC or otherwise contact a representative of her choice.

The applicant was notified of the scheduled appeal hearing by the medical personnel, but was not transferred from the hospital to the courthouse in order to participate in it.

On 6 July 2010 the Magadan Regional Court held a hearing in the presence of the MRPC’s representative and a prosecutor. No other party participated in the hearing, the record indicating in respect of the applicant that she “was duly informed about the date and time of the hearing, but did not appear”. The applicant’s request to be represented by a lawyer was neither specifically mentioned nor addressed in any way. After hearing the testimony of the hospital’s representative and the opinion of the prosecutor, and reviewing the written evidence, the Regional Court upheld the lower court’s authorisation in full, explicitly stating that “the arguments in the statement of appeal are essentially analogous to those examined [by the lower court]”.

On an unspecified date in 2010 the applicant was released from the MRPC.

During the applicant’s stay in the MRPC the medical personnel of the facility kept a treatment record, logging all the events considered significant. In the relevant parts it read :

28.05 Still certain about her convictions, mental process is blurred. Resists dissuasion. Considers appealing against the Town Court’s authorisation.

05.07.2010 Informed [her] about her appeal hearing on 06.07.2010. [She] enquired whether she would be participating in the hearing ...”


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in Qesarat, Tepelenë, in 1977. He is currently serving a prison sentence.

On 14 January and 10 November 2005, following proceedings in absentia, the Gjirokastër District Court and the Court of Appeal, respectively, convicted the applicant of attempted theft resulting in death in collusion with others and sentenced him to seventeen years’ imprisonment. That decision became final on 9 February 2007 after the Supreme Court dismissed an appeal by the applicant’s lawyer. It appears that the applicant was represented by a lawyer appointed by his family throughout the court proceedings.

It appears that on 30 March 2007 the applicant was extradited from Greece to Albania.

On 3 May 2007 the Gjirokastër District Court allowed a request by the applicant to appeal out of time and he lodged an appeal against his conviction in absentia.

On 12 November 2007 the Gjirokaster Court of Appeal while requalifying the charges against the applicant on the basis of the evidence obtained during the proceedings in absentia, upheld the applicant’s conviction, ruling that it had become res judicata.

By a final decision of 7 October 2009 the Supreme Court upheld the applicant’s conviction as decided in the Gjirokastër District Court’s decision of 2005, ruling that it had become res judicata and that the facts and law in the case had been examined previously. It further noted that leave to appeal out of time should not have been granted as the case had become res judicata.

On 21 February 2011 the applicant lodged a constitutional appeal with the Constitutional Court against the Supreme Court’s decision, complaining, inter alia, about the fact that the domestic courts had not given him the possibility of a fresh factual and legal determination of the criminal charge.

On 9 May 2011 the applicant’s lawyer was notified of the Constitutional Court’s decision to dismiss his appeal.


No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);No violation of Article 14+3 - Prohibition of discrimination (Article 3 - Prohibition of torture;Positive obligations)

András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano

The applicant was born in 1968 and lives in Colognola ai Colli, in the province of Verona.

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

The applicant’s relationship with J.C.N., a Kenyan national, began in 2003. They had two children, P. and A., who were born in August 2006 and March 2008 respectively.

The applicant submitted that her relationship with J.C.N. deteriorated rapidly. In 2008 they undertook relationship therapy, which was interrupted because J.C.N. was suffering from depression. He also took no interest in the business he had set up with the applicant in 2006.

According to the domestic court’s judgments, on 16 November 2008 J.C.N. hit the applicant several times and threatened her with a knife and a pair of scissors during a violent argument concerning the relationship that she had begun with a common friend. J.C.N. locked the applicant in the flat and took the keys in order to prevent her from leaving. Their children were asleep in the flat and one of them, awakened by the screaming, witnessed part of the aggression.

The carabinieri, called by the neighbours, intervened at the couple’s home. The applicant was taken to hospital in a state of shock. She was diagnosed with, inter alia, concussion, injuries to the head and several bruises all over her body.

J.C.N. was arrested and detained. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. He subsequently asked the authorities in charge of the preliminary investigation to adopt the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”).

On 2 April 2009 J.C.N. was found guilty and sentenced to four years and eight months’ detention.

The applicant did not join the criminal proceedings as a civil party.

On 11 December 2009 the Verona Court of Appeal reduced the sentence to three years and four months’ detention.

By a decision issued on 7 October 2010 the Court of Cassation dismissed an appeal lodged by J.C.N.

On 6 October 2009 J.C.N. applied to the Venice Court of Appeal seeking to serve the remainder of his sentence under house arrest at a reception centre located in the municipality where the applicant was living (Colognola ai Colli).

On 3 November 2009 the Venice Court of Appeal dismissed J.C.N.’s application, referring, inter alia, to the proximity of the facility indicated (2 km) to the applicant’s home, the psychological condition of J.C.N. and the risk that he might try to contact the applicant.

On 1 June 2010 J.C.N. lodged another application for house arrest, indicating a reception centre (“Don Nicola”) located in Soave, a different municipality of the province of Verona, about 15 km from the applicant’s home. The centre was managed by a non-profit-making organisation called Sulle Orme.

The Venice Court of Appeal ordered an inspection of the facility indicated by J.C.N. in order to assess its suitability to host him. The inspection was carried out by the carabinieri, who highlighted that the facility in question had already hosted persons whose prison sentence had been replaced by house arrest, without any complications having arisen. They further stressed that they carried out regular surveillance of the persons hosted by the centre. They consequently concluded that the facility was suitable to host the applicant’s former partner.

On 18 June 2010 the Venice Court of Appeal granted J.C.N.’s request.

On 24 September 2010 the Venice Court of Appeal granted J.C.N. permission to work outside the reception centre during the grape-harvest season.

On 2 August 2011 J.C.N. finished serving his sentence and was released. He decided to continue residing at the reception centre.

On 24 April 2009 the applicant lodged an application with the Venice Juvenile Court seeking sole custody of her children and the forfeiture of her former partner’s parental rights.

On 15 May 2009 the applicant was granted sole custody of her children. In February 2010, after having heard both the applicant and her former partner, the Venice Juvenile Court ordered the forfeiture of J.C.N.’s parental rights and prohibited any form of contact between him and the children. The court stressed that J.C.N. could apply for the restoration of his parental rights once he had served his sentence and followed a path aimed at acquiring the parental skills he had been shown to be lacking.

In January 2012 J.C.N. applied to the Venice Juvenile Court seeking the restoration of his parental rights and the suspension of his financial obligation towards his children. No information was submitted to the Court about the outcome of the application.

The applicant claimed that following the violence suffered at the hands of her former partner, she lived in a state of constant anguish and fear of a recurrence of the violence against her and her children. She underwent psychological support therapy, as did her son P., who had witnessed the violence.

On an unspecified date the applicant turned for help to an association (Associazione scaligera vittime di reato – ASAV) that specialised in providing material, psychological and legal assistance to victims of crime.

The applicant visited her former partner five times during his imprisonment, which lasted from 18 November 2008 to 18 June 2010.

From the material submitted by the applicant, it appears that after J.C.N. was released he and the applicant resumed contact in the form of an exchange of emails.


André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Mr X, is a Slovenian national, who was born in 1962 and lives in Sp. Duplek. The chamber decided that the applicant’s, the children’s and their mother’s identity should not be disclosed to the public (Rule 47 § 4 of the Rules of the Court).

The applicant is the father of two children, Y, born in 2000, and Z, born in 2002. He was married to their mother, M, but they separated on an unknown date.

On 3 September 2003, after a physical conflict between the applicant and M, not for the first time, the children were taken away from them by the Maribor Welfare Authority.

According to the judgment in the case of X v. Slovenia (no. 40245/10, 28 June 2012) which concerned the applicant’s complaint about the length of the custody proceedings the facts appear as set out below.

On 4 September 2003 the children were placed in the care of a foster family by an interim care order.

On 11 February 2005 an ordinary care order was issued by which the children were removed from their parents indefinitely.

Between 2003 and 2005 the applicant did not have any contact with his children, and he repeatedly requested the Maribor Welfare Authority to return the children and to allow him to have contact with them.

On 17 October 2005 the Ministry of Labour, Family and Social affairs (“the Ministry”) allowed the applicant and M contact with the children once a month.

For the first two years the contact was successful, but later became stressful as the applicant and M became impatient and were in conflict during the meetings. In December 2007 the Welfare Authority concluded that continuing contact would not be in the children’s best interest.

In October 2008 the applicant confirmed that he did not want to have contact with the children under the arrangement set out in the Ministry’s decision of 17 October 2005.

By an interim court order of 19 July 2011 the applicant was again forbidden to have contact with the children. On the basis of expert opinions, the Maribor District Court found that the contact did not have a positive effect on the relationship between the applicant and the children, and that there was no real prospect of the situation improving to such an extent that the children could be returned to the applicant.

On an unknown date the applicant lodged an appeal with the Maribor District Court against the interim order prohibiting him from having contact with the children.

On 5 June 2012 the Maribor District Court dismissed this appeal. The domestic courts found that contact would not be in the children’s best interests, basing their decision on expert reports as explained in paragraphs 28 and 29 below.

The applicant did not lodge an appeal with the Higher Court in connection with the interim order.

In parallel with the above, on 9 February 2005 the Maribor Welfare Authority instituted proceedings before the Maribor District Court seeking the withdrawal of the parental rights of the applicant and M in respect of Y and Z.

The Maribor District Court ruled in 2005, deciding that the applicant and M should be divested of their parental rights.

In 2006, on appeal, the Maribor Higher Court quashed the decision and remitted the case for re-examination, with an instruction that the court should examine further evidence.

In 2010 the Maribor District Court found that the withdrawal of parental rights was the only appropriate measure.

On appeal, the Maribor Higher Court again quashed the decision and remitted the case for re-examination, finding that the expert opinions on which the decision was based were outdated.

On 5 June 2012 the Maribor District Court again decided to withdraw the parental rights of the applicant and M. It found that in 2003 the children, Y and Z, were hospitalised three times; they were neglected and dirty and had haematomas on their bodies. Police intervened several times in the applicant’s and M’s home due to verbal and physical conflicts. Among other things, M tried to burn down their house; she physically attacked the applicant several times; the applicant also beat her and physically punished the children; neither parent took proper care of the children.

As regards the children, a court-appointed expert found that they were emotionally attached to their foster parents; they felt safe and well in their home and were determined to stay with them. The children did not ask about the applicant during their stay with the foster parents. They were afraid of him and of being sent back to him; that uncertainty caused them emotional distress and anxiety. They showed fear of losing the safety and stability offered by the foster parents. They also expressed the wish not to have contact with the applicant, as when they met he was rude and constantly complained and spoke badly of the foster parents. They were rejecting the applicant and felt angry and disappointed at him.

As regards the applicant, the Maribor District Court found that he verbally attacked the professionals of Maribor Welfare Authority working on the case, and said he did not want to cooperate with them or with the foster parents. The applicant attended contact visits when it was convenient for him, and because of problems in his personal life contact often did not take place for long periods. He declined to have contact in accordance with the decision of the Ministry, and wanted to make his own arrangements. The applicant also despised the children for their positive attitude towards the foster parents. His personality and personal circumstances meant that he was unable to take on parental responsibilities to the benefit of the children. He was not able to see the children’s needs or to prioritise them, as his needs, sorrow, anger and disappointment prevailed.

The Maribor District Court concluded that, as the applicant was not capable of fulfilling his parental responsibilities to the children’s benefit, the withdrawal of custody was the most suitable measure at the time to protect the rights and interest of the children and provide them with an appropriate environment for their physical and emotional development.

On 4 October 2012 the Maribor Higher Court dismissed the applicant’s appeal and upheld the decision of 5 June 2012.

On 14 February 2013 the Supreme State Prosecutor’s Office lodged a request for the protection of legality, stating that the interests of the children were already satisfied when the children were taken from their parents and placed with a foster family, and thus there was no need for the withdrawal of parental rights.

On 11 July 2013 the Supreme Court dismissed the request for the protection of legality.

As regards the applicant, the Supreme Court found that, according to a court-appointed expert, he was hurt by the separation from his children. However, he was clearly unable to understand the reality of the situation, because of his egocentric way of thinking and his feeling that he was in conflict with the foster parents and the children. The applicant would need to show that he was willing to change his attitude as regards cooperation with the foster family and Welfare Authority. He would also need to show that he understood the need to fulfil the children’s needs and wishes, that contact with them could be rebuilt only gradually, and that he needed to adapt to that situation. However, the expert considered that the applicant was not capable of making these changes.

The Supreme Court observed that having been with them for nine years the children had become attached to the foster parents and were afraid of being taken away from them. It concluded that when, as in such a case, there is no real possibility that children could be returned to their parents, it is in the children’s best interests to make their relationship with the foster parents a permanent and stable one.

On 29 October 2013 the Constitutional Court refused to accept the applicant’s complaint for consideration.

On 3 September 2003 the applicant was fined by the police. The applicant did not submit any further details in this regard.

The relevant provisions of the Slovenian Constitution read as follows:

“... The state shall protect the family, motherhood, fatherhood, children and young people, and shall create the necessary conditions for such protection.”

“Parents have the right and duty to maintain, educate and raise their children. This right and duty may be revoked or restricted only for such reasons as are provided by law in order to protect the child’s interests ...”

The following provision of the Marriage and Family Relations Act (Zakon o zakonski zvezi in družinskih razmerjih, (old) Official Gazette of the Socialist Republic of Slovenia no. 15/1976, with amendments) is relevant to the present case:

“(1) A parent who abuses parental rights or abandons his child, or has clearly demonstrated by his behaviour that he is not taking care of the child, or seriously neglects his duties in that respect, should be deprived of parental rights by a court decision.

(2) Parental rights may be restored to a parent by a court decision if the reasons for its withdrawal no longer exist, unless the child has been adopted.

(3) The above matters should be decided by the courts in non-contentious proceedings.”

The relevant provision of the Civil Procedure Act (Zakon o pravdnem postopku, Official Gazette no. 45/08) in so far as relevant, reads as follows:

“(1) During the proceedings in ... disputes arising from relationships between parents and children a court may issue, of a party’s or of its own motion, an interim measure for ... the prohibition of the contact visits or for their restriction...


Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant, Mr Slobodan Đurović, is a Montenegrin national who was born in 1954 and is currently serving a prison sentence in Zagreb Prison. He was represented before the Court by Mr R. Mlinarić and Mr K. Vilajtovic, lawyers practising in Zagreb.

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

On 12 February 2015 the Government of Montenegro were informed of the case and invited to exercise their right to intervene if they wished to do so. On 27 July 2015 the Government of Montenegro informed the Court that they did not wish to exercise their right to intervene in the present case.

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

On 23 October 2008 I.P., a well-known Croatian journalist, and his business associate N.F. were killed by the explosion of an improvised device placed under I.P.’s car, which was parked in front of his publishing company. The explosion also caused injuries to two employees of the publishing company and considerable material damage to the surrounding buildings and nearby parked cars.

The police immediately started enquiries into the above events and soon learned that a certain R.M., L.M. and A.M. were implicated and that an unknown person was supposedly aiding them in fleeing the country. It was therefore decided to arrest these individuals. The Police Chief (Glavni Ravnatelj Policije) issued an oral order that the arrests be carried out by an anti-terrorist team of the Special Police Force (Specijalna policija, Antiteroristička jedinica Lučko – hereinafter “the ATJ”).

On 23 October 2009 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta – hereinafter “the State Attorney’s Organised Crime Office”) indicted several individuals, including the applicant, before the Zagreb County Court (Županijski sud u Zagrebu) on charges of conspiracy to kill I.P. and of carrying out the plan.

On 3 November 2010 the Zagreb County Court (Županijski sud u Zagrebu) found the applicant guilty on the charge of incitement to conspiracy to commit aggravated murder and sentenced him to ten years’ imprisonment. On 15 January 2013 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the applicant’s conviction, increasing his sentence to twenty-three years’ imprisonment.

On 29 October 2008, at 5.35 p.m., the ATJ arrested the applicant together with R.M. and L.M. at the Spačva petrol station off the motorway near the town of Županja.

According to the Government the three individuals concerned resisted arrest and force had to be used against them. Two members of the ATJ sustained injuries. The applicant also sustained injuries while a standard restraint technique was applied against him during the arrest.

According to the applicant, even though he was not resisting arrest, he was severely beaten by several police officers all over his head and body.

After being arrested the applicant was brought to the premises of the Criminal Police in Zagreb. There he received medical assistance at 5.20 a.m. on 30 October 2008 from an emergency medical team.

On 31 October 2008 the applicant was questioned by an investigating judge of the Zagreb County Court in the presence of two defence lawyers. He did not make any complaints about the conduct of the police.

On 1 November 2008, upon his admission to detention, the applicant was examined by a prison doctor who found that he had haematomas around both eyes and an abrasion on his face.

According to the applicant, in the further course of the proceedings he complained to the Zagreb County Court, the investigating judge, the State Attorney’s Office, the police and other authorities of the violence used against him during his arrest. However, he did not submit any documents supporting those allegations.

The documents submitted by the parties show that in a letter of 27 July 2011, addressed to the Office of the President of the Republic (Ured Predsjednika Republike Hrvatske) the applicant complained, inter alia, of alleged ill-treatment by the police during his arrest.

No investigation was ever opened in connection with the applicant’s allegations of ill-treatment.

On 21 September 2012 the applicant instituted civil proceedings against the State before the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu), claiming damages for his alleged ill-treatment by the police. It appears that these proceedings are still pending before the first-instance court.

In a constitutional complaint of 7 March 2013, lodged against the Supreme Court’s judgment of 15 January 2013 given in the criminal proceedings against him, the applicant alleged that the police officers had used force against him during his arrest and had caused him numerous bodily injuries. On 25 February 2015 the Constitutional Court found that these allegations, in so far as they were admissible and susceptible to be addressed within the Constitutional Court’s proceedings, did not reveal any violation of the applicant’s human rights and fundamental freedoms guaranteed by the Constitution.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing)

The applicant was born in 1966 and lives in Portorož.

On 13 March 2010 the police issued a payment order fining the applicant 540 euros (EUR) for two traffic offences under Section 27(1) and (3) and Section 135(3) and (5) of the Road Traffic Safety Act. From the police’s description of the facts and evidence it appears that on 13 March 2010 at 9:45 am while trying to overtake X’s car, which had been improperly parked, the applicant failed to make sure that he could do so without endangering X’s car and with the rear right end of his car he hit the rear left end of X’s car. Allegedly, after the collision the applicant left the scene of the accident without submitting his personal data to X who was not present during the accident or notifying the police that he had been involved in an accident. X stated to the police that an unknown witness told him that the person responsible for the accident was driving a dark car with the number plate LJ 37-33. On the basis of this information the police checked two vehicles with number plates LJ 37-33V and LJ 37-33L. These vehicles did not show any sign of damage. On 14 March 2010 X informed the police that he had found a dark car with the number plate KP L3-733. The police established that the owner of the car was the applicant. On the same day the police interviewed the applicant and checked his car. They found that the damage on the applicant’s car corresponded to that of X’s car. They further found that Y was present in the applicant’s car during the accident.

On 31 March 2010 the applicant lodged an objection. He argued that he did not detect any collision between the two cars and that, accordingly, he had not informed X or the police of the accident; that there had been many passers-by on the road who had witnessed how he had been manoeuvring the car but nobody had warned him of any kind of abrasion or dent caused to X’s car; that he lived at the address of the scene of the accident and would have never left the scene even if he had caused the damage; that he had been informed of the accident only the following day when called by the police, and that together with the police he had checked his car visually and discovered a scratch of 10 to 15 cm in length for which he did not know when it appeared. According to the applicant, due to X’s improper parking any vehicle could have hit his car; from the damage on X’s car it was clear that the applicant could not have caused the damage with his car. The applicant reiterated that if he had detected the accident he would have reported it and this fact could have been proved by witness Y which was present in his car. He described in detail the events of 13 March 2010, namely approximately at 9.30 am he drove out of the parking spaces, he wanted to turn to the right but two cars prevented him from doing so because they were actually parked on the road; the cars parked posed a threat to road traffic safety because the space between them would have not allowed an ambulance or any other emergency vehicle to pass; in such a situation the applicant was forced to position his car at an appropriate angle to enable him to pass safely between the cars; he had to fold both side mirrors; otherwise he would not have been able to pass the two parked vehicles without collision; he manoeuvred his car at almost zero speed and was not aware that he had caused an abrasion or damage to any other vehicle.

On 14 April 2010 the police issued a reasoned decision finding the applicant guilty of the abovementioned minor offences.

On 29 April 2010 the applicant lodged a request for judicial review. He complained that the police had not sufficiently established the facts; he had not left or escaped the scene of the accident; he had not been aware of any collision and, consequently, he did not inform X and the police thereof in accordance with Section 135(3) of the Road Traffic Safety Act. He further stated that he wanted to turn right onto the carriageway but he was prevented from doing so by two cars parked on the carriageway – on the left and on the right sides of the road. One of the cars was X’s car. When he wanted to drive out of the garage he could not do so and was forced to manoeuvre for quite some time to position the car at an appropriate angle and had to straighten the car almost completely to be able to pass freely between the two cars. In order to do it safely he had to fold in both side mirrors because otherwise he would have not been able to pass the parked cars without colliding with them. During the manoeuvring he was not aware that he had caused an abrasion or damage to the cars. The manoeuvring speed was minimal. There were many passers-by who witnessed the manoeuvring but did not warn him of any accident. In order to prove these allegations the applicant proposed that he and Y be heard. He further stated that police had not considered the fact that he lived at the address of the scene of the accident and therefore he had no interest in leaving the scene. He drove to a filling station, went shopping and visited his parents. As evidence he submitted a fuel purchase receipt and a shop receipt and proposed the hearing of his parents. He further argued that if he had left the scene of the accident intentionally he would have concealed the scratches on his car. Even if he had collided with X’s car he would not have been aware of it since his car was a diesel-fuelled car which tended to vibrate heavily. Moreover, his radio was always turned on which reduced the likelihood of noticing the collision. In order to prove this he proposed that he and Y be heard. He argued that he was not aware of the date when the scratch appeared on his car since the car was seven years old and had many other scratches. Since X’s car had been improperly parked any vehicle could have collided with it. The police did not clarify on the basis of which fact they had concluded that the scratch on his car corresponded to the damage on X’s car. In the applicant’s view X had been frenetically searching for the culprit and as soon as he found a black car

On 12 September 2011 the Ljubljana Local Court rejected the request for judicial review without holding a hearing. The Local Court held that it had no reason to doubt the findings of the police who conducted an interview with the applicant and a visual inspection of his car during which they noticed damage which corresponded to the damage on X’s car. According to the court, it was clear from the documents of the case-file, in particular the photographs of X’s car, that the damage had been caused by the applicant’s car and the applicant’s complaints in this respect remained general and subjective. In particular, the allegations that the accident would have been reported by passers-by or that the applicant would not have left the scene of the accident if he had noticed it were subjective and could not be verified. The applicant could not be released from his responsibility for the minor offence by stating that he had not been aware of the collision because this was, again, a subjective allegation. Every participant in road traffic, in the circumstances described by the applicant, was expected to be particularly alert and to detect the collision. Regarding the allegation that X’s car was parked on the road and that it had endangered the traffic safety the court stressed that only the applicant’s behaviour was at issue. It held that according to Section 135(5) of the Road Traffic Safety Act a traffic offender who had left the scene of the accident should have immediately notified the injured party or the police the information referred to in that Section. The court therefore did not have to reply to the applicant’s allegations that he had not left the scene to an unknown place as they were legally irrelevant. Finally, the evidence submitted by the applicant could not change the conclusions of the police and it was only an attempt to delay the proceedings since the motions for evidence did not comply with the required legal standards regarding the subject-matter about which the witnesses proposed might have testified.

On 9 November 2011 the applicant lodged a constitutional appeal.

On 26 March 2012 the Constitutional Court rejected the appeal as inadmissible.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Wiesław Kraiński, is a Polish national, who was born in 1962 and lives in Nysa.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

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

On 15 April 1998 the Nysa District Prosecutor (Prokurator Rejonowy) opened an investigation into the allegations that the applicant had committed the offences of illegal border crossing and inciting prostitution for gain. The case was registered under no. 1 DS 518/98.

It appears that the investigation was formally stayed from 14 November 1998 to 12 January 2005.

On 31 January 2005 the Nysa District Prosecutor lodged with the Nysa District Court (Sąd Rejonowy) a bill of indictment, charging the applicant with the offence of trafficking of women and inciting prostitution for gain. The case was registered under no. II K 47/05.

On 24 March 2005 the Nysa District Court remitted the case to the prosecutor for further investigation. The new investigation file was registered under no. 1 Ds. 149/05.

On 18 June 2005 the Nysa District Prosecutor lodged with the Nysa District Court an extended bill of indictment, this time, charging the applicant, together with three alleged accomplices, of membership in an organised criminal gang, trafficking of women and inciting and profiting from prostitution. The case was registered under no. II K 313/05.

On 17 July 2007 the trial court relinquished its jurisdiction to the Opole Regional Court (Sąd Okręgowy).

On 5 October 2007 the Opole Regional Court renounced its jurisdiction and the case was remitted back to the Nysa District Court. The case was registered under no. II K 503/07.

The first hearing was held on 9 January 2008. On the same day the trial court decided to sever the charge of profiting from prostitution and to deal with it separately.

The severed case was registered under no. II K 12/08.

The subsequent hearings in the severed case no. II K 12/08 were held on 13 February, 5 March and 9 April 2008. The trial court examined twenty witnesses.

On 9 April 2008 the Nysa District Court discontinued the case no. II K 12/08 on the ground of negative prescription.

On an unspecified date, prior to August 2008, the proceedings in the main case, no. II K 313/05, were discontinued on the ground of negative prescription.

On 1 April 2005 the applicant lodged a complaint about the unreasonable length of the proceedings under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He alleged that the pre-trial proceedings in the case no. II K 47/05 had been unreasonably lengthy as they had lasted seven years.

On 15 April 2005 the Opole Regional Court dismissed the complaint. The court held that the 2004 Act was not applicable in the applicant’s case since the impugned proceedings were in their pretrial and not judicial phase.

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

Moreover, on 1 May 2009 the Law of 20 February 2009 on amendments to the Law on complaints about a breach of the right to a trial within a reasonable time (Ustawa o zmianie ustawy o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2009 Amendment”) entered into force.

Pursuant to section 1 of the 2009 Amendment, the amended name of the 2004 Act reads as follows:

“[the Act] on complaints about a breach of the right to an investigation conducted and supervised by a Prosecutor and to a trial within a reasonable time.”

Following the 2009 Amendment, section 1 of the 2004 Act, in so far as relevant, reads as follows:

“1. The Act stipulates the principles of and the procedure for the lodging and the examination of a complaint by a party whose right to a trial within a reasonable time has been breached as a result of an action or the inaction of a court or of the prosecutor conducting or supervising the investigation.”

Pursuant to section 4 of the amended 2004 Act, in so far as relevant:

“5. If a complaint concerns the unreasonable length of an investigation, it will be examined by the court immediately above the court competent to deal with the case.”

Section 6 of the amended 2004 Act provides, in so far as relevant:

“3. The complaint may contain a request for the court conducting the proceedings or the prosecutor conducting or supervising the investigation, to take actions in a specific time-limit or to pay suitable amount of money as specified in section 12 subsection 4.”

Section 10 of the amended 2004 Act reads, in so far as relevant:

“2a. If the complaint concerns unreasonable length of the investigation, the competent court informs the State Treasury – the prosecutor immediately above the prosecutor conducting or supervising the investigation – and serves him with a copy of the complaint.”

Section 12 of the amended 2004 Act provides, in so far as relevant:

“4. If the complaint is justified, the court may, at the request of the complainant, award ... a sum of between 2,000 and 20,000 Polish zlotys to be paid by the State Treasury or by a bailiff, if the proceedings have been conducted by a bailiff.”

Pursuant to section 14 of the amended 2004 Act:

“A party may lodge a new complaint in respect of the same set of proceedings twelve months after the court has decided on the previous complaint or six months after where the complainant has been remanded in custody during the investigation, or where these are enforcement proceedings or any other proceedings concerning execution of a court’s ruling.”

Section 2 of the 2009 Amendment lays down the following transitional rules in relation to applications which are already pending before the Court:

“1. Within six months of the date of entry into force of this Act, persons who, before that date, had lodged a complaint with the European Court of Human Rights ... complaining of a breach of the right to an investigation within a reasonable time as guaranteed by Article 6 (1) of the Convention for the Protection of Human Rights and Fundamental Freedoms ..., may, if their complaint to the Court was lodged in the course of the impugned investigation and if the Court has not adopted a decision concerning the admissibility of their case, lodge a complaint, on the basis of the provisions of this law, that the length of the proceedings was unreasonable.

A complaint lodged under subsection 1 shall indicate the date on which the application was lodged with the Court.

The relevant court shall immediately inform the minister with a foreign affairs mandate of any complaints lodged under subsection 1.”


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

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1957 and lives in Zákopčie.

On 28 February 2011 the applicant was sued by his son in proceedings on child maintenance before the Čadca District Court (file no. 10 C 38/2011).

During those proceedings he made an incomplete submission on 21 April 2011, which he supplemented the month after alleging that he had been waiting for a response from the Centre for Legal Aid in respect of his request for a legal aid lawyer. He also lodged two complaints with the president of the District Court about the excessive length of proceedings, namely on 9 February 2012 and 29 February 2012, which were unsuccessful. Having been dissatisfied with their outcome, he turned to the appellate court for review of his complaints to no avail.

The District Court, on the other hand, took the following steps. It asked several public authorities, such as for example Social Security Authority and the Job Centre, to provide it with information relevant to the case. Between May 2012 and April 2014, it was dealing with an appointment of a guardian to the applicant, who at the material time was undergoing an ambulatory psychiatric treatment. Such an appointment was eventually revoked in September 2014 on the grounds that the Centre for Legal Aid had appointed a lawyer for the applicant in June 2014. The District Court also joined the present case file to another set of proceedings for several months. In January 2014, the District Court judge responsible for hearing the applicant’s case changed. The District Court further scheduled several hearings, which were either adjourned or cancelled.

On 13 May 2015 the Constitutional Court rejected the applicant’s complaint about a violation of his right to a hearing within a reasonable time in the proceedings held before the District Court as manifestly ill-founded. It concluded that the District Court proceeded with the matter actively and properly, apart from a few minor exceptions, such as the joining of a case file to another set of proceedings, changing of the judge and a procedural error made during one of the hearings. In particular, the Constitutional Court took into account the fact that the applicant had complained of excessive delays with the president of the District Court and challenged them further on appeal on each occasion.

Subsequently, the District Court took several steps as follows. It asked for further information from inter alia the applicant’s employer. It also scheduled a hearing for 12 August 2015, which was adjourned to 31 August 2015. It then postponed the latter hearing to an unspecified date, since it had to deal with a procedural request from the plaintiff, which was also challenged on appeal. In the absence of any further information from the parties, it appears that the proceedings are still pending and no judgment on the merits has been delivered by the District Court.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-d - Examination of witnesses);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in 1974 and lives in Šibenik.

On 26 August 2005 the Šibenik Municipal State Attorney’s Office opened an investigation against the applicant on suspicion of the theft of a mobile telephone from E.R., who had come to Croatia as a tourist from the Czech Republic.

On 20 September 2005 an investigating judge of the Šibenik County Court heard the applicant, who denied the charges against him. He explained that on the occasion in question some children from a house in Betina had thrown water-filled balloons at him. He had approached the house the children had come from and had knocked at the door, but no one had answered. He had then walked away. When he was back at home, two young women had come to ask for the mobile telephone belonging to one of them, but he told them he had not taken it.

In response to a request for international legal assistance from the Croatian prosecuting authorities, on 9 June 2006 the Chomutovo County Court in the Czech Republic heard evidence from E.R. She said that on 12 July 2005 in Betina, Croatia, her children had thrown water-filled balloons at the applicant. He had then approached the house they were staying in and through a window she had seen him steal her mobile telephone from a table on the terrace of that house. Together with her step-daughter she had followed the applicant to his house and asked him to return her telephone. However, he had denied taking it.

On 9 November 2006 the Šibenik Municipal State Attorney’s Office indicted the applicant in the Šibenik Municipal Court (Općinski sud u Šibeniku) on the charge of stealing a mobile telephone from E.R.

During his trial before the Šibenik Municipal Court the applicant gave oral evidence on 18 May 2010. He reiterated the statement he had given before the investigating judge. Throughout these proceedings the applicant challenged the allegation against him, contending that, although there had been a dispute between him and E.R. over the behaviour of her children, he had not stolen her mobile telephone. The applicant’s account was confirmed in essence by his former wife, who was also questioned as a witness during the proceedings.

At a hearing held on 27 October 2010 the Šibenik Municipal Court decided to admit the record of E.R.’s questioning as evidence without examining her directly. The applicant objected to the reading out of E.R.’s statement.

On 28 October 2010 the Šibenik Municipal Court found the applicant guilty as charged and sentenced him to four months’ imprisonment suspended for one year. The finding of the applicant’s guilt was based solely on the evidence given by E.R. The trial court held that it was clear that the applicant had been the person who had approached the house where E.R. and her family were staying. The evidence given by E.R. conclusively showed that the applicant had committed the offence at issue and that E.R. had no reason “to blame the accused without basis”. The relevant part of the first-instance judgment reads:

“Under Article 331 § 1(12) of the Code of Criminal Procedure this court read out the statement given by E.R. before the Chomutovo County Court, the Czech Republic, on 9 June 2009 without the parties’ consent because there were sound reasons for doing so, namely that the victim gave her evidence more than four years ago and this court considers that, owing to the passage of time, it would not learn any new facts or circumstances relevant for assessing the circumstances of the event [at issue], and was also mindful of the fact that the [charges against the accused] will become time-barred in July 2011 and ... summoning the victim would protract the criminal proceedings unnecessarily.

... considering the evidence given by witness and victim E.R. as being credible and truthful, this court has established the criminal responsibility of the accused because it has not found in the victim’s statement any reason for which she would blame the accused without basis. ...”

In his appeal of 28 January 2011 the applicant argued, inter alia, that E.R. had never been summoned to a hearing during his trial before the Šibenik Municipal Court and that he had had no opportunity to question her. He also argued that E.R.’s mobile telephone had not been found in his possession. On 3 March 2011 the Šibenik County Court (Županijski sud u Šibeniku) dismissed the applicant’s appeal as ill-founded, upholding the first-instance judgment. The relevant part of the appeal judgment reads as follows:

“In the reasoning of its judgment, the [first-instance] court stated the reasons why it had decided ... to read out the statement of the witness-victim E.R., stating that the victim had given her evidence more than four years previously, at which time her recollection of the event [at issue] would have been fresher than later, that the prosecution would become time-barred in July 2011 and since [the victim] was a foreign citizen ... summoning her [to a hearing] would protract the criminal proceedings unnecessarily.

... This decision of the first-instance court did not violate the defence rights of the accused ...

... it should also be said that the mobile telephone could not have been found in the accused’s possession because nobody looked for it. The documents in the case-file show that the accused’s home was not searched, which was a mistake on the part of the police. However, even without it, the [first-instance] court undoubtedly established that the accused had stolen the mobile telephone from the victim ...”

On 13 May 2011 the applicant lodged a complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that he had not had a fair trial as he had not been given an opportunity to question E.R.

On 8 December 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant’s counsel on 12 January 2012.


No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1973 and lives in Biała Podlaska.

The applicant and her husband, G.K., had two children, D. and K.

In March 2002 they formed a foster family for two brothers, D.K. and R.K. On 11 August 2002 the Biała Podlaska District Court appointed her and her husband as the siblings’ official foster parents.

In January 2003 they fostered three more children, siblings A.C., M.C. and T.C.

In June 2004 the family fostered two other children, sisters A.M. and S.M.

The applicant and her husband took care of nine children altogether, two biological and seven fostered.

In December 2004 G.K. suddenly died. The applicant subsequently applied for dissolution of the foster family. She submitted that she could not cope with the task of running a foster home for nine children on her own.

On 31 January 2005 the Biała Podlaska District Court issued an interim care order placing A.C., M.C. and T.C. with another foster family, run by Mr and Mrs P. The applicant was still responsible for the two K. brothers and the two M. sisters as their foster mother.

On 11 August 2005 the Biała Podlaska District Court moved the K. brothers to another foster family, run by Mrs W.

In April 2007 the foster family formed by the applicant was dissolved in respect of the two M. sisters.

In January 2008 the applicant married C.R., who did not adopt the applicant’s biological sons D. and K. . The applicant remains their sole legal guardian.

The applicant’s late husband G.K. was covered by an insurance scheme run by the Farmers’ Social Security Fund (Kasa Rolniczego Upezpieczenia Spolecznego – “the Fund”). His children were entitled to a survivors’ pension (renta rodzinna) under the scheme. The total amount of the pension payable to survivors was to be divided into equal parts among all eligible individuals – in G.K.’s case, all his children, both biological and fostered.

In January 2005 the applicant applied to the Fund for the survivors’ pension in respect of all nine children.

On 18 February 2005 the Fund decided that the M. sisters were not eligible for the pension, as less than a year had passed between the applicant’s late husband becoming their foster father and his death. The Fund further established that the remaining seven children – the applicant’s biological children, the two K. brothers and the three C. siblings − would be entitled to a pension of PLN 525.70 in total per month. The applicant, as their legal guardian, was appointed beneficiary of the pension.

On 22 February 2005 Mrs P. requested that the Fund grant a pension in respect of the C. siblings, who had by that time become part of the foster family she ran with her husband (see paragraph 12 above).

On 1 March 2005 the Fund issued a new decision revising the amount of the pension to be paid. The applicant’s two biological children and the two K. brothers fostered by her would be entitled to a monthly allowance of PLN 349.60 between them, four-sevenths of the total amount. The three C. siblings being raised by the P. family would be entitled to a monthly allowance of PLN 262.20 between them, three-sevenths of the total amount.

The applicant appealed against the decisions delivered by the Fund. She requested that the court amend its decision of 1 March 2005 and declare that the only individuals eligible were her husband’s biological children. She argued that the children formerly in her foster care had been placed with other families who provided for them and that they should not therefore be entitled to the survivors’ pension in respect of her late husband. She was of the view that the contested decision put her children in a disadvantageous situation in comparison with the foster children.

On 15 November 2005 the Lublin Regional Court dismissed the applicant’s appeal, but on 7 February 2007 the Lublin Court of Appeal quashed that judgment and remitted the case to the lower court for re-examination with the participation of the C. and K. siblings’ legal guardians.

On 16 May 2007 the Lublin Regional Court dismissed the applicant’s appeal again. The court based its reasoning on the Farmers’ Social Insurance Act 1990 (Ustawa z 20 grudnia 1990 roku o ubezpieczeniu społecznym rolników – “the Act”). Under section 29 (2)(2) of that Act all children of the deceased, including foster children, were eligible for a survivors’ pension. Section 30 of the Act stated that all family members were eligible for a share of the pension, which was to be divided into equal parts, even where the eligible individuals were minors under the care of different guardians. The Regional Court stressed that the spirit of the Act was to treat all children equally in respect of the insurance benefits payable to them on the death of an insured person, irrespective of whether they were biological or foster children. The court found no grounds on which to quash or amend the contested decision.

On 18 December 2007 the Lublin Court of Appeal dismissed a further appeal by the applicant on the same grounds as the first. The court fully concurred with the reasoning of the first-instance court.

On an unspecified date the applicant wrote to the Ministry of Labour and Social Policy to complain about the decisions given in her case. She submitted that her biological children were being treated less favourably than the foster children in respect of their survivors’ pension. She received a response dated 14 February 2008. In that letter, the Director of the Family Benefits Department shared the applicant’s view that the legal provisions in force at that time were indeed unfavourable to biological children in situations where foster children had been moved to other families. The applicant was informed that the relevant legislative amendments were in progress.

According to the most recent relevant decision of the Fund, dated 14 June 2010, the total amount of the pension would from that date be divided into six parts, because T.C. had lost his entitlement having reached the age of majority. From that date onwards, the applicant’s biological children would receive two-sixths of the survivors’ pension. The remainder would be paid to the other children formerly in her and her late husband’s foster care.

The District Family Support Centre (PCPR) awarded the applicant the following amounts in financial support for the foster children:

for D.K. from 7 March 2002 until 11 August 2005 – 26,308.30 PLN and an additional 6 630,80 PLN for personal care of the child;

for R.K. from 7 March 2002 until 11 August 2005 – 26,308.30 PLN and an additional 6 630,80 PLN for personal care of the child;

for T.C. from 1 February 2003 until 31 January 2005 – 15,562.00 PLN and an additional 3 890,40 PLN for personal care of the child;

for M.C. from 1 February 2003 until 31 January 2005 – 15,562.00 PLN and an additional 3 890,40 PLN for personal care of the child;

for A.C. from 1 February 2003 until 31 January 2005 – 15,562.00 PLN and an additional 3 890,40 PLN for personal care of the child;

for A.M. from 14 June 2004 until 27 April 2007 – 22,248.06 PLN and an additional 4 557,00 PLN for personal care of the child;

for S.M. from 14 June 2004 until 27 April 2007 – 22,248.06 PLN, and an additional 4,557.00 PLN for personal care of the child.

Mr and Mrs P., the C. siblings’ foster parents, received:

for T.C. from 1 February 2005 until 31 July 2006 – 10,909.34 PLN and an additional 2,917.80 PLN for personal care of the child;

for M.C. from 1 February 2005 until 28 July 2010 – 39,627.52 PLN and an additional 10,796.87 PLN for personal care of the child;

for A.C. from 1 February 2005 until 28 July 2010 – 39,627.52 PLN and an additional 10,796.87 PLN for personal care of the child.

Mrs W., R.K. and D.K.’s foster mother, received:

for D.K. from 12 August 2005 until 17 January 2011 – 39,025.39 PLN and an additional 10,504.40 PLN for personal care of the child;

for R.K. from 12 August 2005 until 29 June 2009 – 28,285.83 PLN and an additional 7,539.80 PLN for personal care of the child.

Siblings T.C., M.C. and A.C. remained in Mr and Mrs P.’s foster family from 31 January 2005 until 26 June 2006 (T.C.) and 7 July 2010 (M.C. and A.C.). By a court decision of 26 June 2006, T.C. was placed in a Staterun children’s home. M.C. and A.C. remained with couple P.’s foster family until 7 July 2010 when the court restored their biological parents’ parental rights. M.C. and A.C. lived with them from that date onwards.

T.C. and M.C. stopped drawing their survivors’ pensions on 1 September 2009 and 1 November 2010 respectively.

Siblings R.K. and D.K. remained in Mrs W.’s foster family from 11 August 2005 until 29 June 2009 and 17 January 2011 respectively. That foster family ultimately ceased to exist because they had reached the age of majority. R.K. subsequently moved in with his biological mother. He stopped receiving his survivors’ pension on 1 August 2010. D.K. moved into college accommodation.

The applicant’s biological sons D.K. and K.K. were entitled to receive the survivors’ pension until 28 February 2012 and 31 July 2012 respectively. A.C. and D.K.’s entitlement expired on 31 August 2011.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1966 and has been in the Netherlands since 2003.

On 25 July 2003 the applicant entered the Netherlands where on 19 August 2003 he applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the Refugee Convention”) and/or treatment in breach of Article 3 of the Convention. On 20 August 2003, he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). He stated, inter alia, that he was an Afghan national of Hazara origin, that he came from Kabul and that he had travelled to the Netherlands via Pakistan, Iran and Germany.

On 21 August 2003 the applicant was interviewed about his reasons for seeking asylum (nader gehoor). He stated that he feared persecution and ill-treatment on account of his communist past as a former member of the communist People’s Democratic Party of Afghanistan (“the PDPA”) and for having served as a volunteer in the Revolutionary Guard (Sepah Enghelab). He further claimed that he risked ill-treatment at the hands of mujahideen party Jamiat-e Islami for having been involved between 1992 and 1994 with the rival Hazara-dominated, Hezb-e Wahdat party and, additionally, at the hands of a Mr S., whom he had captured and ill-treated during an interrogation conducted in the context of his work for Hezb-e Wahdat. He also feared problems from the side of Hezb-e Wahdat for having stopped working for them.

The applicant stated that he had joined the youth branch of the PDPA in 1978 and that in 1981 he had served as a volunteer for twenty days in the Revolutionary Guard. He had been discharged after he had stepped on a mine during combat. He further stated that in 1984 he had started to work for the Ministry of Trade in Kabul, at the department for government stores, and that in 1989 he had given a television interview in which he had criticised the then Minister of Trade. This interview had not been broadcast in 1989 but only in mid-May 1992, after the mujahideen had seized power in Afghanistan. The day after it had been broadcast, the applicant had been arrested by the mujahideen faction Ittehad-al-Islami (Islamic Union) then led by Abdul Rasul Sayyaf. In his opinion they had been under the impression, given that he had dared to criticise the Minister of Trade, that he was an important member of the Communist Party. He had been released after ten days in a prisoner exchange operation mediated, at the request of the applicant’s parents, by Mr M., an influential person of Hazara origin.

In return, the applicant had had to work for Hezb-e Wahdat. He had worked as a representative of the (military) Division 95 of Hezb-e Wahdat at the West Kabul peace commission in which Jamiat-e Islami, Ittehadal-Islami and Harakat-e-Islami had also been represented. His tasks had included trading prisoners and seized goods, and mediating between parties. He had also been responsible for preventing members of Hezb-e Wahdat’s Central Committee from defecting and for preventing members of other factions from infiltrating Hezb-e Wahdat. In the course of carrying out these duties and if circumstances so warranted, he had been under orders to take people secretly into custody. One of the persons taken in custody, Mr S., had been interrogated by the applicant himself, who had ill-treated Mr S. during interrogation. After Burhanuddin Rabbani and Ahmad Shah Massoud had taken over control of the Afshar district in West Kabul, the applicant had been arrested and detained again by Ittehadal-Islami in December 1992/January 1993. He had been released in a prisoner exchange organised by Hezb-e Wahdat.

The applicant had continued his work for the peace committee of Hezb-e Wahdat until December 1994, when this party had been defeated and retreated to Bamyan. The applicant had stayed behind in Kabul and had not been persecuted by “Khalili” (see paragraph 39 below). However, fearing Jamiat-e Islami and the Taliban, the applicant had then gone into hiding – moving around between Kabul and the villages of Siah Khak and Sar Shesmeh in the province of Wardak – until December 2001, when American troops had arrived. He had been arrested on 20 or 21 March 2002 by Jamiat-e Islami, then under the leadership of General Fahim. The applicant had been tortured several times during his incarceration. Mr S. had been present on one of those occasions. The applicant had been told by interrogators that he had been detained because he was a communist or a convert. He also thought that his arrest had something to do with Mr S. The applicant had managed to escape from prison after 45 days with the help of a guard – who like the applicant was a former communist – to whom the applicant had paid three thousand United States dollars. This guard had set up a mock execution outside the prison, which had enabled the applicant to escape. This guard had told the applicant that he should leave Afghanistan forever. After his escape, the applicant had first hidden in his house in Kabul for about 15 days and had subsequently stayed with a distant relative until he had left Afghanistan for Pakistan in May 2002.

On 18 September 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) informed the applicant that his case had been transmitted to the 1F Unit (see A.A.Q. v. the Netherlands (dec.), no. 42331/05, §§ 47-49, 30 June 2015) in order for it to examine whether Article 1F of the 1951 Refugee Convention should be applied to the applicant’s asylum request.

On 5 February 2004 the 1F Unit conducted a supplementary interview (aanvullend gehoor) with the applicant. During this interview, he declared, inter alia, that in 1981, as a member of the Revolutionary Guard, he had participated in a purge action – ordered by the PDPA Central Committee and the Ministry of Defence – aimed against persons active on behalf of Hezb-e Islami and Jamiat in a specific area and that prisoners of war had been handed over to the former Afghan communist security service, KhAD/WAD (Khadimat-e Atal’at-e Dowlati/Wezarat-e Amniyat-e Dowlati). He had become disabled when the tank on which he had been standing had hit a mine. The applicant also stated that, during the wars, Hezb-e Wahdat had plundered houses, seized privately owned cars and physically tortured persons. It was correct that Hezb-e Wahdat had committed many crimes and had shed much blood. He further related how he had interrogated and hit Mr S. at the Hezb-e Wahdat headquarters in Kabul. He also stated that, at present, he had no proof that he was being searched for but that it was clear to him, having been released upon payment of a bribe, that he could not show himself in Afghanistan.

On 21 April 2005 the Minister for Immigration and Integration issued notice of her intention (voornemen) to reject the first applicant’s asylum application and to apply Article 1F of the 1951 Refugee Convention. The Minister found it established, given his consistent and detailed statements, that the applicant had worked for the Revolutionary Guard and Hezb-e Wahdat but also found that, in his account to the Netherlands authorities, he had in part misrepresented the facts, had sought to trivialise his activities for Hezb-e Wahdat and had withheld important information.

The nature of the applicant’s work, and the contents of an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, entitled “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”; DPC/AM 663896) and an official report, drawn up on 23 June 2000 by the Ministry of Foreign Affairs, on Hezb-e Wahdat (DPC/AM-681499), had given cause to consider whether Article 1F of the 1951 Convention was applicable to the applicant’s asylum claim.

In her notice of intention, the Minister analysed, on the basis of elaborate argumentation based on various international materials and on the prescribed and so-called “knowing and personal participation” test, the nature of the acts imputed to the applicant in the framework of Article 1F of the 1951 Refugee Convention, as well as his individual responsibility under that Convention. The Minister noted, inter alia, that the applicant had worked for a part of the PDPA Government, the Revolutionary Guard, which had collaborated with the KhAD and found that it was justified to conclude that the applicant had known or should have known about the criminal character of the KhAD and that its crimes had formed part of a widespread or targeted attack aimed against the civilian population. Having regard to the official report of 29 February 2000 (see paragraph 15 above), the Minister further found that the cruel character of the KhAD had been commonly known. The Minister further did not believe that the applicant had been ignorant of the criminal character of Hezb-e Wahdat when he had started to work for it as this had been widely known at the material time. Relying on the official report of 23 June 2000 (see paragraph 15 above), the Minister underlined that Hezb-e Wahdat had been considered during the Afghan civil war to be one of the most violent groups, not only because of its militia’s actions on the battle field and merciless liquidation of its political opponents, but in particular because of its militia’s crimes against the civil population of Afghanistan and for having instilled a true climate of terror in the country. The Minister lastly found it established that the applicant himself had committed acts of torture on the person of Mr S.

As regards Article 3 of the Convention, the Minister did not find it established that the applicant, if returned to Afghanistan, would be exposed to a real risk of being subjected to treatment prohibited by this provision. In reaching this finding, the Minister took into account, inter alia, that the applicant had stayed for about three months in Pakistan and about eight months in Iran without having sought assistance in these countries from, for instance, the United Nations High Commissioner for Refugees (“UNHCR”), that he had not applied for asylum when he had been apprehended by the police in Germany, and that he had not reported immediately to the immigration authorities after his arrival in the Netherlands.

On 17 June 2005 the applicant submitted written comments (zienswijze) on the Minister’s intended decision. On 19 October 2005 the Minister rejected the applicant’s asylum application, confirming the reasoning set out in her notice of intention of 21 April 2005 and rebutting the applicant’s written comments.

The applicant’s appeal against this decision was rejected on 25 January 2007 by the Regional Court (rechtbank) of The Hague, sitting in Roermond. It held in respect of the applicant’s activities as a fifteen-yearold adolescent volunteer for the Revolutionary Guard that, according to the applicable policy in respect of child soldiers, the Minister had not adequately reasoned her decision finding “knowing participation” in respect of this part of the applicant’s account. However, on the basis of the other elements of the account, it accepted the decision of the Minister to deny the applicant asylum by applying Article 1F of the Refugee Convention against him. It further held that it had not been established that the applicant – if expelled to Afghanistan – would be exposed to a risk of being subjected to treatment proscribed by Article 3 of the Convention from the side of Jamiat-e Islami on the basis of the general security situation in Afghanistan, or on the basis of his Hazara ethnic origin.

The applicant, who from his first interview was assisted by a lawyer in these asylum proceedings, could have filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), but did not do so. Consequently, the ruling of 25 January 2007 became final when the four week time-limit for filing an appeal with the Administrative Jurisdiction Division expired.

On 25 May 2007 the applicant was informed by the Deputy Minister of Justice (Staatssecretaris van Justitie) of the intention (voornemen) to declare him an undesirable alien entailing the imposition of an exclusion order (ongewenstverklaring) in accordance with section 67 § 1 (e) of the Aliens Act 2000 (Vreemdelingenwet 2000), following the decision to hold Article 1F of the Refugee Convention against him in the asylum procedure.

The actual decision to impose this exclusion order on the applicant was taken on 24 September 2007 by the Deputy Minister of Justice. As regards Article 3, the Deputy Minister did not find it established that the applicant would be at risk of being subjected to treatment contrary to this provision in Afghanistan or that there were any obstacles of a medical nature to his removal to Afghanistan. Further noting that the applicant did not have any relatives or other persons in the Netherlands with whom he had a family life within the meaning of Article 8 of the Convention, the Deputy Minister further found that the exclusion order did not constitute an interference with the rights guaranteed by this provision.

The applicant challenged this decision in administrative law proceedings. The last (for the applicant negative) decision in these proceedings was taken on 10 February 2009 by the Regional Court of The Hague, sitting in Maastricht. It noted that, in its ruling of 25 January 2007, which had obtained the force of res iudicata, the Regional Court of The Hague, sitting in Roermond, had concluded that there existed serious reasons for assuming that the applicant had been involved in acts referred to in Article 1F of the Refugee Convention. As the Deputy Minister had enjoyed a discretionary power in deciding whether or not to impose an exclusion order, it had to be assessed whether in deciding to impose that order, the competing interests involved had been carefully balanced. In view of the reasons given in the impugned decision and the applicant’s submissions, the Regional Court of The Hague, sitting in Maastricht, accepted the Deputy Minister’s decision that the applicant’s personal interests were outweighed by the general public’s interests pursued by the exclusion order.

In so far as the applicant had invoked Article 3 of the Convention, the Regional Court noted that in its ruling of 25 January 2007 it had already found that the applicant had not demonstrated that his expulsion to Afghanistan would expose him to a risk of a violation of his rights under that provision. It found that also in the proceedings at hand the applicant had not submitted facts or referred to circumstances on the grounds of which it should be accepted as plausible that he would risk a violation of his rights under Article 3 of the Convention if he were to be expelled to Afghanistan. As regards Article 8, the Regional Court noted that it appeared from the applicant’s notice of appeal (beroepschrift) that it was not in dispute between the parties that the applicant could not claim a right of residence on the basis of Article 8 of the Convention and that it was thus not necessary to consider this point any further.

The applicant, who was represented by a lawyer throughout these proceedings, could have filed a further appeal with the Administrative Jurisdiction Division, but he did not do so. Consequently, the ruling of 10 February 2009 became final after the expiry of the four-week time-limit for filing an appeal with the Administrative Jurisdiction Division.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life)

András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić

The applicant was born in 1965 and lives in Budapest.

At 8.04 a.m. on 31 August 2010 the applicant was apprehended at his home and a house search was conducted on the premises until 11.12 a.m.

During this time, the applicant told the officers that he intended to attend a funeral later that day. He submits that his request was “unofficially” dismissed at once. The Government denied this allegation.

On completion of the house search, the applicant was committed to the offices of the Central Investigating Prosecutor’s Office, about seven kilometres away from the cemetery in question.

From 1.35 p.m. onwards the applicant was interrogated as a suspect of attempted misappropriation of funds. At the beginning of the procedure, he formally requested that the authorities allow his attendance at his stepmother’s funeral which took place on the same day, at 2.15 p.m. The request was rejected with the reasoning that its granting would have contravened the purpose of the arrest. The interrogation ended at 2.29 p.m. on the same day.

The applicant then complained to the Attorney General. That office rejected the complaint on 10 September 2010, pointing out that the relevant decree did not allow as such for arrestees – as opposed to those in pre-trial detention – to attend funerals, for which reason the refusal of his request had been lawful.