CASE OF STANKA MIRKOVIĆ AND OTHERS v. MONTENEGRO

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

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

Details of the applicants are set out in the appendix.

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

On 3 December 2004 the third and fourth applicants filed a request with the Restitution and Compensation Commission (hereinafter “the Commission”), seeking compensation for land expropriated from their legal predecessor in 1946.

Between 17 July and 12 August 2005 the first and second applicants made statements waiving their rights in respect of the property belonging to the same legal predecessor in favour of the third and fourth applicants.

On 28 August 2005 the Commission ruled in favour of the third and fourth applicants.

On 14 October 2005 the Ministry of Finance quashed that decision upon an appeal filed on 19 September 2005 by the Supreme State Prosecutor (Vrhovni državni tužilac) in his capacity as legal representative of the respondent State.

On 17 April 2006 the Commission issued a new decision, awarding compensation to all the applicants as they were all heirs of the legal predecessor. In so doing, it also examined the waiver statements of the first and second applicants made in 2005, but considered that, pursuant to section 40 of the Restitution of Expropriated Property Rights and Compensation Act, such waiver statements could only be validly made in non-contentious proceedings before a competent court (see paragraph 20 below).

Between 12 June 2006 and 27 March 2014 the competent secondinstance administrative body (firstly the Ministry of Finance and later the Appeals Commission) and the Administrative Court, before which the case was first brought on an unspecified date in 2006, issued sixteen decisions in total (eight decisions each). The second-instance body ruled upon a series of appeals and gave decisions within 55 days, 65 days, 30 days, 53 days, 14 days, 78 days, 94 days, and 132 days. The Administrative Court gave rulings within 1 year 8 months and 17 days, 7 months and 22 days, 7 months and 27 days, 3 months and 23 days, 5 months, 5 months and 19 days, 4 months and 16 days, and 4 months and 23 days.

On at least four occasions, when initiating an administrative dispute before the Administrative Court, the applicants explicitly referred to section 37 and/or section 58 of the Administrative Disputes Act (see paragraph 26 below) and urged the Administrative Court to decide on the merits of their request. The Administrative Court never ruled on the merits of the initial compensation request, but instead quashed or upheld the quashing of the first-instance decision of the Commission. Its last decision was issued on 27 March 2014, in substance remitting the case once again to the Commission.

On 27 June 2014 the Supreme Court upheld the Administrative Court’s decision. The Supreme Court’s decision was served on the applicants on 8 July 2014.

On 25 July 2014 the applicants each lodged a constitutional appeal against the decision of the Supreme Court, relying on, inter alia, Articles 6 and 13 of the Convention. The Government submitted that, on the same day, in addition to those constitutional appeals against the Supreme Court’s decision, the applicants had also each lodged a second constitutional appeal against the decision of the Administrative Court of 27 March 2014. No copies of those second constitutional appeals were provided by either party.

On 28 October 2014 the Constitutional Court rejected the applicants’ constitutional appeals against the Supreme Court’s decision as premature, given that the Commission was still considering their compensation request.

On 28 December 2015 the Constitutional Court issued another decision dismissing the applicants’ constitutional appeals. The decision stated that the applicants’ constitutional appeals had been filed against the judgments of the Administrative Court and the Supreme Court. In its ruling, the Constitutional Court constantly referred to the “impugned judgments”. There is no information in the case file as to when that decision was served on the applicants.

On 31 March 2016, at a hearing before the Commission, the proceedings were adjourned at the applicants’ request until this Court ruled on their applications.


CASE OF CENTRE FOR THE DEVELOPMENT OF ANALYTICAL PSYCHOLOGY v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

In 1995 Dr Marija Arsovska, a psychiatrist whose name at the time was Marija Karanfilova (“the psychiatrist”), established a private practice called Dr Marija Karanfilova’s Independent Psychiatric Practice (Самостојна специјалистичка ординација по невропсихијатрија „Д-р Марија Каранфилова„ – “the Practice”) where she treated people using Carl Jung’s analytical psychotherapy methods. The Practice was assigned an individual tax number beginning with the numbers 503.

In 2004 the Practice signed a contract with the State Health Insurance Fund (“the Fund”) on the funding of treatment provided by the Practice to health insurance beneficiaries.

On 15 February 2006 the Ministry of Health’s State Sanitation and Health Inspectorate (“the Inspectorate”) conducted an on-site inspection (инспекциски надзор). It ordered the Practice to re-register as a private health institution in order to comply with amendments to the Health Protection Act of 2004 (Закон за изменување и дополнување на Законот за здравствена заштита, Official Gazette no. 10/04).

In compliance with the Inspectorate’s orders, the psychiatrist applied to the Ministry of Health to have the Practice re-registered and to change its name, as required by the new statutory provisions.

On 28 February 2006 the Ministry of Health issued a decision on the registration of the Private health institution Dr Marija Karanfilova’s Specialist Psychiatric Practice (Приватна здравствена установа – специјалистичка ординација по невропсихијатрија „Д-р Марија Каранфилова„ – “the new Practice”) at the same address as the previous Practice. It stated that the 1995 registration decision relating to the original Practice would no longer be in force (ќе престане да важи) after the new decision had been entered into the relevant register. The decision was delivered to several institutions, including the Fund.

The Inspectorate conducted a fresh on-site inspection on 6 March 2006. It concluded that the Practice had fully complied with its decision of 15 February 2006, including the instructions for re-registration.

On 17 April 2006 the Central Registry recorded the registration of the new Practice as of 29 March 2006. It was given a new individual tax number, beginning with the numbers 403.

On 6 June 2006 the new Practice notified the Fund about the changes in its registration, including the change of its name.

On 29 November 2006 the Fund notified the new Practice that it did not intend to sign a new contract after the expiry of the previous one.

On 2 August 2007, on the basis of a request by the new Practice, the Central Registry allowed the new Practice to change from being a private health institution to one that was a limited liability company established by a single person (ДООЕЛ) and entered that transformation in its records. The applicant company was known officially as the Centre for the Development of Analytical Psychology Ltd. (Центар за развој на аналитичка психологија – ДООЕЛ). It kept the same tax number as the new Practice. The link between the new Practice and the applicant company was not disputed in the impugned proceedings (see below).

On 25 January 2006 the Practice initiated compensation proceedings against the Fund in the Skopje Court of First Instance (Основен суд Скопје) for non-adherence to the terms of the contract. Both the new Practice and the applicant company continued the proceedings as the claimant.

On 10 June 2008 the first-instance court granted the claim in part.

On 26 August 2008 the Fund lodged an appeal against the firstinstance judgment, objecting to the applicant company’s standing in the proceedings for the first time. It argued that the claimant was a different legal entity than the one which had signed the contract with the Fund in 2004, as evident in the two entities’ different individual tax numbers.

The applicant company submitted in reply that the re-registration of the Practice had been carried out in compliance with the Inspectorate’s orders and that the Fund had been aware of the changes. It also argued that the Fund had implicitly recognised the legal continuity of the two entities as it had accepted reports submitted by the new Practice under the contract of 2004 and had given notice of the termination of the contract to the new Practice.

The Skopje Court of Appeal (Апелационен суд Скопје) on 28 January 2009 granted the Fund’s appeal and remitted the case for fresh consideration.

On 10 April 2009 the Skopje Court of First Instance dismissed the applicant company’s claim, finding that it had no standing in the proceedings (нема активна легитимација во спорот). It established that the contract had been signed by the Fund and Dr Marija Karanfilova’s Independent Psychiatric Practice and that the applicant company could not be considered as the Practice’s legal successor as they had different individual tax numbers.

The applicant company appealed, complaining that the first-instance court had disregarded the evidence that had shown the existence of a legal relationship between the parties and had based its assessment solely on the different tax numbers. In particular, the first-instance court had disregarded the fact that the new Practice had continued to perform its contractual obligations until the contract had been terminated by the notice of 29 November 2006 (see paragraph 13 above). The applicant company maintained that those circumstances indicated that the Fund had implicitly recognised the legal continuity of the original and the new Practice. The applicant company alleged that the formalistic approach of the first-instance court had meant its claim had remained undecided on the merits.

On 2 December 2009 the Skopje Court of Appeal dismissed the applicant company’s appeal and upheld the first-instance judgment.

On 7 July 2006 the new Practice lodged a civil claim against the Fund for the payment of an undetermined sum for failing to adhere to the terms of the contract of 2004. After the new Practice turned itself into the applicant company (see paragraph 14 above) the latter continued the proceedings as the claimant.

At a hearing held on 27 June 2008 the Fund raised an objection that the applicant company lacked standing in the proceedings.

On 16 February 2009 the Skopje Court of First Instance dismissed the applicant company’s claim, finding that it had no standing in the proceedings. The first-instance court relied in its reasoning on the difference in the tax numbers between the original Practice that had been party to the contract with the Fund in 2004 and the applicant company.

On 11 December 2009 the Skopje Court of Appeal dismissed an appeal by the applicant company and upheld the first-instance judgment. It stressed that a tax number was a unique attribute of a particular entity and would remain unchanged, regardless of any structural or other changes to the entity.


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

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

The applicant was born in 1973 and lived in Vladivostok. She died on 16 April 2007.

On an unspecified date the military prosecutor’s office had opened criminal proceedings against the applicant’s father K., a naval officer, on suspicion of document forgery.

On 14 March 2003 the acting prosecutor of the Pacific Fleet issued a warrant to search the applicant’s flat. The parties did not submit a copy of the warrant. It is apparent from the search record of 14 March 2003 that the purpose of the search was “to find and seize objects and documents, including draft calculations in respect of the salary due to [K.] and other naval officers of the ship Argun, and other data storage media exposing [K.’s] involvement in criminal activity”.

The police came to the applicant’s flat on the same evening, at about 9.30 p.m. As the applicant refused to let them in, the police broke down the door and suggested that the applicant surrender objects and documents which could be of relevance for the criminal case against her father. The applicant surrendered K.’s seaman’s passport and claimed that she had no other documents or objects belonging to her father. The police searched the flat and seized the applicant’s seaman’s passport, a printer and six floppy disks. The search ended at about 11 p.m.

On 18 March 2003 the applicant lodged a complaint before the Frunzenskiy District Court of Vladivostok, claiming that the search had been unlawful. She submitted, in particular, that night searches were unlawful under domestic law. She further submitted that the search had not been justified because the calculations in respect of the salary due to naval officers of the ship Argun had been submitted to the court at an earlier date and could therefore be found in the case file. She also complained that her and her husband’s personal belongings, including their printer and floppy disks and her seaman’s passport, had been seized.

On 20 April 2003 the applicant was informed that her complaint would be examined on 21 April 2003 by the Military Court of the Vladivostok Garrison.

On 21 April 2003 the Military Court of the Vladivostok Garrison examined the applicant’s complaint. The applicant did not attend the hearing. The court found:

“[The applicant’s] signature on the search warrant confirms that she had been notified of it at 9.30 p.m. on 14 March 2003.

It is apparent from the search record of 14 March 2003 that a search was carried out in [the applicant’s] flat from 9.30 p.m. to 11 p.m. In the course of the search the following objects were seized: seaman’s passport in the name of K. no. [...], seaman’s passport in the name of K. no. [...], seaman’s passport in the name of [the applicant] no. [...], Canon printer no. EUK04532, its power module no. 981202TT06 and six floppy disks. That investigative measure was carried out in the presence of two attesting witnesses who signed the search record and a note explaining their rights.

Before the start of the search [the applicant] wrote a note on the search record stating that her rights, obligations or applicable procedures had not been explained to her.

It is apparent from the questioning record of witness [N.] that she participated in the search of [the applicant’s] flat as an attesting witness. Her rights were respected.

In view of the above, it follows that the search of [the applicant’s] flat was carried out in accordance with Articles 182 and 183 of the CCrP, without any breaches of law. [The applicant’s] complaint is therefore unsubstantiated and must be rejected.”

The applicant appealed. She complained, in particular, that the search had been carried out late at night and that the personal belongings seized from her were of no relevance to the criminal case against her father. The applicant expressed her wish to be present and represented at the appeal hearing.

On 23 June 2003 the Military Court of the Vladivostok Garrison informed the applicant that her appeal would be examined by the Military Court of the Pacific Fleet on 7 July 2003.

According to the applicant, on 7 July 2003 her counsel telephoned the judge and asked for an adjournment of the appeal hearing because she – the counsel – was ill. The applicant was present during the call. According to the Government, no record of that telephone call was found in the case file.

On 7 July 2003 the Military Court of the Pacific Fleet held a hearing in the absence of the applicant and her counsel and upheld the judgment of 21 April 2003. It noted that the applicant had been informed of the date of the hearing but had not attended for unknown reasons. She had not asked for an adjournment. The court further held:

“It is apparent from the case-file that the search [of the applicant’s flat] was ordered on 14 March 2003 by the acting prosecutor of the Pacific Fleet at the request of the investigator ... in connection with criminal proceedings against her father [K.]. It is apparent from the search record that during the search [K.’s and the applicant’s] seaman’s passports, a printer and its power module were seized. There is no evidence of any breaches of procedure.

[The applicant’s] complaint about the use of force during the search is not supported by any evidence in the case-file. There is no evidence that [the applicant] or members of her family sought medical aid. Nor did she mention the use of force when signing the search record. Domestic law allows the possibility of carrying out investigative measures at night in cases of urgency. Moreover, the search of [the applicant’s] flat continued until after 11 p.m. because she had refused to let the police in. There is no evidence of breaches of law in seizing [the applicant’s] documents and other belongings during the search.”

The applicant received a copy of the appeal decision on 16 July 2003.


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

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

The applicant was born in 1972 and lives in Ulyanovsk.

On 23 December 2002 the Commercial Court of the Ulyanovsk Region declared V.T., a closed joint stock company (the “Company”), insolvent and appointed the applicant as its liquidator.

On 29 June 2005 the Ulyanovsk Regional Department of the Interior opened an investigation into the Company’s insolvency proceedings. On 29 August 2005 the applicant was removed from office. According to the applicant, in the course of the investigation he was repeatedly questioned as a witness.

On 29 March 2006 the investigator from the Regional Department of the Interior issued an indictment against the applicant on the charges of fraudulent trading during the Company’s insolvency proceedings and embezzlement. In particular, the applicant was accused of having unlawfully transferred the Company’s real property to a third party.

According to the materials in the applicant’s criminal case file, he was duly asked to appear at the investigator’s office to be served with the indictment. The investigator sent the telegram to the applicant’s known address. When the postman tried to deliver the telegram the persons present in the applicant’s flat did not open the door. They claimed that the applicant was not there. They also refused to sign for the delivery of the telegram. The investigator’s subsequent summons remained unanswered by the applicant. He was not found at his place of residence either. The police questioned the applicant’s wife and other relatives, who appeared to be unaware of the applicant’s whereabouts. On 5 April 2006 the applicant’s name was put on the list of wanted persons.

On 29 April 2006 the applicant was arrested in Moscow and then transferred to Ulyanovsk. The investigator asked the court to authorise the applicant’s pre-trial detention given that (1) he had absconded, (2) he was charged with a serious offence (embezzlement) and, if found guilty, might be subjected to a custodial sentence exceeding two years, and (3) if released, he might abscond or interfere with the administration of justice.

On 30 April 2006 the Leninskiy District Court of Ulyanovsk granted the investigator’s request. In particular, the court noted as follows:

“[The applicant] has provided positive references as to his character and has two minor children. However, in the light of the severity of the charges and the fact that he might abscond, [the court] does not consider it possible to apply any restrictive measure other than custody.”

The applicant appealed, alleging, inter alia, that the District Court could have applied a less strict preventive measure and that the investigator failed to substantiate his argument that the applicant might abscond. On 11 May 2006 the Ulyanovsk Regional Court upheld the detention order of 30 April 2006 on appeal.

On 19 June 2006 the investigator refused to extend the time-limit established for the applicant to be able to study the case file. On 11 July 2006 the First Deputy Prosecutor of the Ulyanovsk Region quashed the investigator’s decision.

In the meantime, on 23 June 2006 the District Court extended the applicant’s detention until 29 July 2006, stating as follows:

“In view of the severity of the charges and [the applicant’s] character, the court considers that he might abscond if released.

The grounds justifying [the applicant’s] detention ... have not ceased to exist. There are no new circumstances that would allow any less restrictive measure to be applied.”

The applicant appealed, alleging that the District Court could have considered the application of a less strict preventive measure. On 6 July 2006 the Regional Court upheld the detention order of 23 June 2006 on appeal.

On 19 July 2006 the District Court further extended the applicant’s detention until 29 August 2006. The applicant asked to be released, arguing that he had no prior convictions, that he had a permanent place of residence, that he was married with two minor children and that he would not abscond. The court dismissed the applicant’s request, noting as follows:

“[The applicant] is charged, [inter alia] with a serious offence and, if found guilty, is liable to a custodial sentence exceeding two years. In the light of the above, and taking into consideration the fact that [the applicant] had earlier been put on the list of wanted persons, [the court] pays special attention to the prosecution’s argument that [the applicant] might abscond, if released...

In the light of the above, the court cannot release [the applicant] and considers it necessary to extend his detention.”

On 16 August 2006 the Zavolzhskiy District Court of Ulyanovsk scheduled the first hearing of the case for 24 August 2006. The court refused to release the applicant pending trial, noting as follows:

“[The applicant] is charged with a number of offences, one of which is considered a serious one. This fact is sufficient to assume that [he] might abscond. There are no other circumstances... that would allow custody to be replaced by another less restrictive measure”.

On an unspecified date the prosecution dropped the charge of embezzlement against the applicant.

On 29 December 2006 the Zavolzhskiy District Court found the applicant guilty of fraudulent trading and sentenced him to one year and one month’s imprisonment and a fine of 50,000 Russian roubles discharging him from serving the prison sentence. The applicant was released from custody in the courtroom.

On 21 February 2007 the Ulyanovsk Regional Court upheld the judgment of 29 December 2006 on appeal.

“Preventive measures” or “restrictive measures” can be imposed on a defendant in order to assure the execution of the sentence, if it is subsequently imposed, or for the extradition purposes (Article 97 § 2 of the Russian Code of Criminal Procedure (the “CCrP”)).

“Preventive measures” or “restrictive measures” include an undertaking not to leave a town or region, a personal guarantee, bail and remand in custody (Article 98 of the CCrP).

The court may remand the defendant in custody provided there are grounds to believe that he might abscond, continue criminal activities, threaten a witness or other parties to the criminal proceedings, destroy evidence or otherwise interfere with administration of justice (Article 97 § 1 of the CCrP).

When deciding whether to remand an accused in custody, the competent authority is required to take into account the seriousness of the charge, information on the defendant’s character, his or her profession, age, state of health, family status and other circumstances (Article 99 of the CCrP).

The defendant may be remanded in custody if the charge carries a sentence of at least two years’ imprisonment and it is not possible to apply a less severe preventive measure (Article 108 § 1 of the CCrP).


CASE OF ASANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses;Obtain attendance of witnesses)

Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicants were born in 1979 and 1984. They are currently serving life sentences imposed in the impugned proceedings described below.

On 18 May 2006 at 11.45 p.m. several persons arrived by car in front of an Internet café in Skopje and opened fire with machine guns. According to an expert report admitted in the ensuing proceedings, around 70 bullets were fired towards the café. In the incident three children were killed and six people were seriously injured (“the victims”).

Following a criminal complaint for murder lodged against unknown perpetrators, on 3 August 2006 the public prosecutor requested that an investigating judge question the victims and a certain B.H. who had allegedly been present at the scene at the time of the shooting.

Between 6 and 19 December 2006 the investigating judge heard oral evidence from the victims and other witnesses. None of them identified the applicants as the perpetrators. Some victims, as well as other witnesses who had arrived at the scene immediately after the shooting, stated that there had been no street lighting and that visibility had been considerably impaired. The investigating judge also heard oral evidence from M.M., who had sold the car used in the incident to two people whom he didn’t know and “would not recognise if I (he) were to see them now”. He stated that a certain F. had introduced him to the buyers.

During the investigation, there were several unsuccessful attempts by the investigating judge to summons B.H. Assistance from the police was also sought. Having been alerted to the summons and the police inquiry, B.H. appeared in court to testify before the investigating judge. On 27 February and 23 March 2007 he confirmed that he had been present at the scene at the time of the incident and that he had been shot in the upper leg. He had fainted and had spent time recovering in a private hospital outside the respondent State. He stated that there had been four people in the car and that all had fired on the café. He identified a certain Dz. as the driver of the car. He also alleged that he himself had been the most likely target of the attack owing to his alleged involvement in the killing of the applicants’ brother, which had happened at the beginning of 2006. In that context, he had received threats that he would be killed.

On 4 May 2007 two people who had been eye-witnesses to the incident gave oral evidence in the presence of the investigating judge and the public prosecutor. They testified as anonymous witnesses (сведок со прикриен идентитет) under the pseudonyms “Korab” and “Vodno”. The latter asked not to have his identity revealed for the following reasons:

“the people who committed the crime are violent and have a criminal record and that’s why I’m afraid of their threats; they are armed, convicted, I fear for my life and the life of my family, I fear reprisals.”

On photographs shown in evidence, both witnesses identified one of the applicants as having fired on the café and Dz. as the driver of the car. “Vodno” also identified the other applicant as having fired on the café. He stated that three people (including the applicants) had fired weapons in the incident of 18 May 2006.

On 11 May 2007 another individual was examined before the investigating judge and the public prosecutor under the pseudonym “Vardar” for the same reasons as the witness “Vodno”. He confirmed that Mr Ramiz Asani (the applicant) had bought the car used in the accident from M.M. He also stated that after the incident Mr Ramiz Asani had told him the following:

“what you’ve seen and heard on television about the incident with M.M.’s car – I did it in revenge for the killing of my brother ...”

On the same date, the investigating judge opened an investigation against the applicants and Dz. on reasonable suspicion of murder. The applicants, who had in the meantime been arrested, were remanded in prison custody. On a later date the investigating judge suspended the investigation in respect of Dz. as he had proved to be untraceable.

In an indictment of 13 August 2007, the public prosecutor accused the applicants − who had no previous record, but had criminal proceedings in relation to other charges pending against them − of having fired machine guns at the Internet café with the intention of killing B.H. The prosecutor requested that the trial judge examine the victims and several witnesses − including B.H. and M.M., and the anonymous witnesses − and to admit other material evidence in evidence, including post-mortem reports and other expert reports.

At the trial, the applicants, represented by two lawyers, unsuccessfully requested that evidence produced by the anonymous witnesses be rejected and that the written transcripts of their depositions be excluded from the case file. The trial judge, however, granted their request for witnesses “Korab” and “Vodno” to be questioned at the trial. The examination was carried out at a hearing of 21 January 2008 in the presence of only the trial judge and the public prosecutor, as provided for in the Criminal Procedure Act in force at the time (see paragraph 24 below). Both witnesses repeated the statements they had given before the investigating judge and reiterated their fear of negative repercussions. Their statements were read out at the trial in the presence of the applicants. A written transcript of their depositions was communicated to the applicants who, at their request, obtained a ten-day grace period in which to prepare written questions to be put to these witnesses by the court. The applicants formulated seven questions to be put to each witness. Both witnesses replied, again in the presence of only the trial judge and the public prosecutor. “Korab” stated that only one person had fired, while according to “Vodno” three people had fired at the café. Both witnesses submitted that, despite the impaired visibility, there had been sufficient light to see the applicants. A transcript of their replies was communicated to the applicants.

The trial judge further examined M.M., who did not recognise Mr Ramiz Asani as the buyer of the car used in the incident. He also heard oral evidence from three of 25 witnesses proposed by the applicants regarding their whereabouts at the time when the crime was committed. All three witnesses corroborated the applicants’ version of events, namely that they had been in another local café at that time.

Since the identity of witness “Vardar” had been disclosed in the proceedings (F.S.), the trial judge granted the applicants’ request for him to be questioned again. At a hearing held on 1 April 2008 in the presence of the applicants, F.S. denied that he had testified as an anonymous witness. He denied that the applicants had bought the car from M.M. He alleged that he had been beaten by the police in order to tell the investigating judge that the applicants had bought the car (see paragraph 12 above).

At the same hearing, the trial judge read out B.H.’s pre-trial statement (see paragraph 9 above). The judge did so after having tried on several occasions to secure his attendance at the trial and having inquired with the police about his whereabouts. It was noted that, according to official notes in the case file, B.H. was untraceable. The record of the hearing did not specify that the applicants objected to the reading of the statement.

During the proceedings, the trial judge granted the applicants’ request for a face-to-confrontation with the experts who had carried out the ballistic examination. He did not, however, allow an additional ballistic examination and refused to admit further evidence regarding the intensity of the street lighting at the scene at the relevant time (the applicants alleged that the street light had been too low to allow the anonymous witnesses to see the assailants). In their concluding remarks, the applicants claimed that B.H. was in the respondent State and had been involved in incidents relating to the parliamentary elections of 1 June 2008.

On 23 June 2008 the trial court delivered a judgment in which it found the applicants guilty of murder and sentenced them to life imprisonment. The applicants’ presence at the scene when the incident happened, as well as the development and dynamics of events, was established on the basis of the testimony of the anonymous witnesses “Korab” and “Vodno”, which the court regarded as credible and consistent despite “small differences which were due to the intensity of the shooting and fear for their lives”. The court also gave weight to the statement given by F.S. in the pre-trial proceedings under the pseudonym “Vardar”. It disregarded his statement of 1 April 2008 (see paragraph 17 above), finding that it had been given under duress and the threat that he or his family would be killed. In this connection it referred to a police report of 24 January 2008 according to which F.S. had been visited several times by unknown people who had threatened him and his family about the testimony given in the pre-trial proceedings. The motive for the crime was established on the basis of the statement given by B.H. in the pre-trial proceedings. That witness had not been examined at the trial since he had been untraceable. In that context, the trial court referred to an official note by the police of 9 January 2008 informing the court that B.H. had fled the respondent State and that an arrest warrant (потерница) had been issued against him. The court did not say anything regarding the applicants’ allegations that B.H. had in fact been in the respondent State and could have been located (see paragraph 19 above). In the court’s view, the evidence produced by the defence witnesses was unreliable and aimed at enabling the accused to avoid criminal responsibility. For this reason it considered it irrelevant to examine the remaining witnesses proposed by the defence. The applicants’ defence that they had been at another location at the relevant time was found to be selfserving.

In public hearings held on 10 October 2008 and 25 September 2009 (latter judgment served on the applicant on 5 January 2010) respectively, the Skopje Court of Appeal and the Supreme Court upheld the applicants’ conviction and the sentence imposed on them. They dismissed appeals lodged by the applicants in which they complained inter alia that the trial court had failed to admit evidence proposed by the defence, that their conviction could not be based solely on the statements of the anonymous witnesses, which had been unlawfully obtained, and that the trial court had not examined B.H. notwithstanding their claims that he would have been available for examination. In this connection they argued that it had been an issue of public record that in the election incidents of 1 June 2008 B.H. had been wounded and hospitalised and later detained by the police.

The courts held that the evidence produced by the anonymous witnesses had been lawfully obtained and that the applicants’ opportunity to put written questions to them had secured their defence rights. The fact that the witnesses had only produced evidence a year after the incident had been due to their fear. Furthermore, they stated that the applicants’ conviction had not been based solely on the evidence produced by those witnesses. In this connection they found that the trial court had admitted other evidence, both documentary and verbal. As regards the evidence produced by B.H., the courts held that the trial court had tried to secure his attendance at the trial, but he had been unavailable for examination, as described in the police note. The higher courts also endorsed the trial court’s finding regarding the applicants’ motive for committing the crime, as established on the basis of the evidence produced by B.H. That had been confirmed by the pre-trial statement of witness F.S. given under pseudonym “Vardar” (see paragraph 12 above).

On 2 December 2010 Dz. was found and detained. In subsequent criminal proceedings, he was convicted of murder and sentenced to fifteen years’ imprisonment.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);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 - Review of lawfulness of detention)

The applicant was born in 1981 and lives in Lviv.

On 29 January 2007 the applicant was arrested on suspicion of murder.

On 1 February 2007 the Lviv Shevchenkivskyy District Court (the Shevchenkivskyy Court) ordered his detention as a preventive measure pending trial, for an initial period of two months.

On 28 March 2007 the same court extended the applicant’s pre-trial detention for two more months on the ground that there was a considerable volume of investigative measures to be carried out and there were no reasons for changing the preventive measure.

On 29 May 2007 the investigation was completed and the applicant and his lawyer received access to the case file.

On 6 July 2007 another set of criminal proceedings was instituted against the applicant, for infliction of grievous bodily harm.

On 10 July 2007 the two criminal cases were joined.

On the same day the Lviv Regional Court of Appeal (the Court of Appeal) extended the applicant’s pre-trial detention to six months.

On 27 July 2007 the case was referred to the Shevchenkivskyy Court, which held a preliminary hearing on 31 August 2007. It ordered the applicant’s further detention without fixing any time-limits.

The Shevchenkivskyy Court remitted the case for further investigation three times (on 8 October 2007, as well as on 19 May and 18 November 2008). The appellate court quashed the first two decisions (on 18 December 2007 and 26 August 2008), but upheld the last one (on 27 March 2009). All the judicial rulings in question maintained the applicant’s continued detention without further reasoning.

On 14 May 2009 the investigation was completed and the case was referred for trial, this time to the Court of Appeal as a first-instance court.

On 27 May 2009 the Court of Appeal held a preliminary hearing, at which it decided, among other things, to remit the case for further investigation once again and to maintain the applicant’s detention.

On 4 August 2009 the Supreme Court quashed the above decision in so far as it concerned the remittal issue and rejected the applicant’s request for release on the ground that he was accused of serious crimes.

On 15 June 2010 the Court of Appeal found the applicant guilty of murder and attempted murder and sentenced him to thirteen years’ imprisonment.

On 22 February 2011 the Supreme Court upheld that judgment.

On 29 January 2016 the applicant was released following the legislative amendments pertaining to the enforcement of sentences.


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant, Mr Rolandas Čiapas, is a Lithuanian national, who was born in 1966 and is currently detained in Vilnius Correctional Facility.

The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

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

The applicant was detained on remand in Šiauliai Remand Prison periodically on an unspecified date in August 2013, from 18 October 2013 to 21 October 2013, from 25 October 2013 to 17 December 2013, from 19 December 2013 to 7 May 2014, from 8 September 2014 to 11 September 2014, from 3 November 2014 to 10 November 2014, and from 14 November 2014 to 18 November 2014. He was transferred to Vilnius Correctional Facility on 20 June 2014 after his conviction.

The applicant was married to E.Č. but got divorced on 4 June 2013. On 18 December 2014 he married V.A.

On 1 August 2013, 7 August 2013, 14 February 2014 and 17 February2014 he wrote to Šiauliai Remand Prison administration to request conjugal visits from his former spouse but was informed that under domestic law pre-trial detainees had no right to such visits.

The applicant wrote to the Ministry of Justice on 30 July 2013, the Prison Department under the Ministry of Justice on 20 August 2013, 30 September 2013 and 15 February 2014 and to the Parliamentary Committee on Human Rights on 16 February 2014, complaining about his inability to receive conjugal visits from his former spouse. He received similar responses, namely that the provisions of domestic law did not guarantee pre-trial detainees a right to conjugal visits. On 10 September 2013 he also complained to the Chief Administrative Disputes Commission (“the Commission”) about the Ministry of Justice’s refusal to grant him conjugal visits. His complaint was dismissed on 23 September 2013.

It appears that the applicant called E.Č. at least eighty times from 30 May 2013 to 3 December 2013. It also appears that when the applicant was detained in Panevėžys police station, E.Č. visited him on 22 May 2013, 5 June 2013, 5 July 2013, 17 July 2013, 29 July 2013 and 30 September 2013.

At the material time, Article 18 § 2 of the Law on Administrative Disputes Commissions provided that parties to proceedings could appeal against Commission decisions to the Vilnius Regional Administrative Court within twenty days of their receipt. A similar provision was set down in Article 32 § 1 of the Law on Administrative Proceedings.

At the material time, Article 22 of the Law on Pre-trial Detention (Kardomojo kalinimo įstatymas) provided that remand detainees could have an unlimited number of visits from relatives and other people. Visits could not exceed two hours.

As of 1 January 2017, Article 22 of the Law on Pre-trial Detention provides that visits to remand detainees by spouses, cohabitants or the other parent of a mutual child can take place without the presence of a representative of the remand prison. Such visits can take place once a month, in specially equipped premises and can last up to one day. An explanatory report of 22 April 2015, attached to the draft amendments of the Law on Pre-Trial Detention, stated that the Varnas v. Lithuania (no. 42615/06, 9 July 2013) judgment had obliged Lithuania to make sure it did not discriminate against remand detainees (as compared with convicted inmates) and to provide them with the possibility to receive conjugal visits from spouses (partners).

At the material time, Point 65 of the Internal Regulations of Remand Prisons (Tardymo izoliatorių vidaus tvarkos taisyklės) provided that physical contact was not allowed during visits to remand detainees.

At the material time, Articles 73-75, 79-80 and Article 94 of the Code for the Execution of Sentences (Bausmių vykdymo kodeksas) provided that a convicted person being held under the standard prison regime had the right to short-term visits of up to four hours and long-term visits of up to forty-eight hours, including conjugal visits, every three months. Those being held under a light regime had the right to short-term visits of up to four hours and long-term visits of up to forty-eight hours, including conjugal visits, every two months, while convicted inmates being held under a disciplinary regime were not allowed any visits. Similarly, convicted inmates aged under 18 in the ordinary regime had the right to short-term visits of up to four hours and long-term visits of up to fortyeight hours, including conjugal visits, every two months. Convicted inmates under 18 being held under a light regime had the right to short-term visits of up to four hours and long-term visits of up to forty-eight hours, including conjugal visits, every month.

Articles 73-75 and 79-80 of the Code for the Execution of Sentences were amended on 1 April 2016 while Article 94 was amended on 1 January 2017. They now provide that convicted inmates being held under the standard regime can have short-term visits of up to three hours and longterm visits of up to one day, including conjugal visits, every two months. Light regime convicted inmates have the right to two shortterm visits of up to three hours and two long-term visits of up to one day, including conjugal visits, every two months. Convicted inmates assigned to a disciplinary regime have the right to a short-term visit of up to three hours every four months. Similarly, convicted inmates under 18 being held under the standard regime can have two short-term visits of up to three hours and one long-term visit of up to one day, including conjugal visits, every month. Under-eighteens under a light regime have the right to four short-term visits of up to three hours and one long-term visit of up to one day, including conjugal visits, every month.

Article 3.66 § 1 of the Civil Code provides that a marriage is dissolved from the date of issue of the court decision.

In a case unrelated to the applicant, the Supreme Administrative Court relied on the Court’s interpretation in the case of Varnas, cited above, and acknowledged that the refusal on the basis of domestic law to grant conjugal visits to pre-trial detainees was not objective and reasonable grounds to treat pre-trial detainees and convicted inmates differently. As a result, the Supreme Administrative Court awarded the applicant in that case compensation of 1,000 euros (EUR) (decision of 8 September 2016, no. A850-662/2016).


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

The applicant, Mr Savo Orić, is a Croatian national of Serbian ethnic origin, who was born in 1952 and lives in Topolovica. He was represented before the Court by Mr J. Jelić, a lawyer practising in Bjelovar.

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

On 9 December 1991 the police lodged a criminal complaint with the Bjelovar County State Attorney’s Office against unknown perpetrators on charges of terrorism, alleging that on 5 November 1991 they had learned that there were two corpses in a house in Topolovica. The police had visited the said house and found two bodies, identified as Ljuban Orić and Mara Orić. The crime scene had been photographed.

At the request of the applicant, on 15 December 2000 the Grubišno Polje Municipal Court (Općinski sud u Grubišnom Polju) decided that Ljuban and Mara Orić, the applicant’s parents, were presumed to have died on 3 November 1991.

In their letter of 22 August 2005 the Bjelovar County State Attorney’s Office qualified the criminal offence as murder and asked the Grubišno Polje Police about the progress of the investigation into the deaths. The latter replied on 31 January 2006 that it had been concluded that the applicant’s parents had been killed in unknown circumstances during a military operation.

On 9 November 2006 the Grubišno Polje Police interviewed four people, K.M., I.M., M.S. and J.S., who all lived in Topolovica in 1991. They submitted that between August and November 1991 Toplovica had been occupied by Serbian para-military forces. At the beginning of November 1991 the Croatian forces had entered the village and taken them to another place. When they were leaving they had seen many parts of the village burning.

The witness I.M. had returned to the village three days later and entered the house of the Orić family, where he had seen the dead bodies of Ljuban and Mara Orić. The next time he visited the village the house had partly burned down and the roof had fallen in.

The witness M.S. submitted that he had been a member of the Croatian Army and on 1 November 1991 when his village, Topolovica, had been taken over by the Croatian army he had seen two copses lying on a bed in the house of the Orić family. He had recognized Ljuban and Mara Orić. Ljuban had had no visible injuries while Mara had been shot. His mother, J.S., had told him that Ljuban had died a natural death because he had not received his medication. Mara had been killed by an unknown person when she had refused to leave the village with the Croatian Army.

The witness J.S. submitted that the Serbian para-military forces which had controlled Topolovica had left at the end of October 1991. On the third day thereafter the Croatian army had entered the village. One T.F. had told her that Ljuban Orić, who had been suffering from leukemia, had died because he had not received his medication.

The police interviewed J.V. and A.P., the police officers who had carried out the on-the-scene inspection in the house of the Orić family in November 1991, on 7 and 10 March 2008 respectively. J.V. submitted that both victims had been shot with firearms. The woman had been shot in the head and chest. He was not sure about the man, but thought that he had been shot in the chest. He had found bullet cartridges and traces of blood. He had also photographed the crime scene. No other steps had been taken owing to the ongoing war. A.P. submitted that both victims had been shot with firearms and that the house had been burned down.

On an unspecified date the applicant sought financial assistance for the reconstruction of his parents’ house. His request was dismissed by the administrative authorities in 2003 on the ground that he had not resided in that house at the time the damage had occurred. The applicant brought the same claim again in 2005. It was dismissed on the ground that the same request had already been decided upon.

On 7 February 2007 the applicant, through his legal representative, brought a civil action against the State in the Grubišno Polje Municipal Court, seeking compensation in connection with the death of his parents and the destruction of their property. The claim was dismissed on 3 April 2007 and this judgment was upheld by the Bjelovar County Court and the Supreme Court on 6 September 2007 and 9 April 2008, respectively. The national courts found that the claim had been submitted after the statutory limitation period had expired.

The applicant’s subsequent constitutional complaint was dismissed on 9 May 2012.

The applicant was legally represented throughout the proceedings.

The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/00, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011, 125/2011, 143/2012 and 144/2012) reads:

“(1) The criminal prosecution shall be time-barred after:

- forty years if the case concerns a criminal offence punishable by long term imprisonment or imprisonment of more than fifteen years,

- twenty-five years for a criminal offence punishable by more than ten years’ imprisonment,

- twenty years for a criminal offence punishable by more than five years’ imprisonment,

- fifteen years for a criminal offence punishable by more than three years imprisonment,

- ten years for a criminal offence punishable by more than one year imprisonment,

- six years for other criminal offences.

(2) Criminal prosecution for the crime of genocide (Article 88), aggressive war (Article 89), crimes against humanity (Article 90), war crimes (Article 91) and other criminal offences which are not subject to statutory limitation according to the Constitutional or international law.

(3) If before the expiry of the time-limits under paragraph 1 of this Article, a first-instance judgment has been passed, the statutory limitation periods shall be extended for further two years.”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)

The applicants were born in 1989 and 1954 respectively and live in Kazan.

On 9 June 2009 the first applicant was arrested in connection with a drug-related offence, and on 10 June 2009 he was detained in custody.

On 29 July 2009 a forensic psychiatric examination found that the first applicant was suffering from schizophrenia requiring compulsory psychiatric treatment.

On 3 August 2009 the Sovetskiy District Court of Kazan (“the District Court”) extended the first applicant’s detention until 9 September 2009.

On 28 August 2009 the District Court further extended the first applicant’s detention until 9 October 2009. On 8 September 2009 the Supreme Court of the Republic of Tatarstan (“the Supreme Court”) upheld the above extension order on appeal.

On 15 December 2009 the District Court relieved the first applicant of criminal responsibility, finding that he was mentally incapacitated. The District Court ordered the application of compulsory measures of a medical nature to the applicant and his admission to a general psychiatric hospital (психиатрический стационар общего типа). The District Court further decided that he should remain in custody until the entering into force of its decision and his admission to the psychiatric hospital.

On 19 January 2010 the first applicant was admitted to V.M. Bekhterev Republican Clinical Psychiatric Hospital (Республиканская клиническая психиатрическая больница им. Бехтерева – hereinafter “V.M. Bekhterev Psychiatric Hospital”).

After attempting to escape from the hospital on 21 April 2010, he was held for a week, until 28 April 2010, in a ward measuring approximately 5 sq. m, with no windows, no ventilation, around-the-clock artificial lighting, and a bucket instead of a lavatory pan, emptied twice every twenty-four hours.

On 21 May 2010 the administration of V.M. Bekhterev Psychiatric Hospital submitted a request for the first applicant to be transferred to a specialist psychiatric hospital under intensive supervision (психиатрический стационар специализированного типа с интенсивным наблюдением). The request was supported by a report of the same date drawn up following an examination of the first applicant by a panel of three of the hospital’s psychiatrists. The report read as follows:

“... [The first applicant] suffers from a chronic psychiatric disorder in the form of pseudo-psychotic schizophrenia aggravated by multiple drug addiction. While under compulsory psychiatric treatment, [the latter] systematically breaches hospital rules, surrounds himself with antisocial patients, sets them against hospital personnel, disrupts the work of the department, [and] refuses treatment. [The first applicant] escaped from hospital and incites other patients to do so; [he] smuggles in prohibited items, including [those for] cutting. In view of the foregoing, the panel considers it necessary to recommend changing the form of compulsory medical treatment in respect of the [first applicant] from compulsory treatment in a general psychiatric hospital to [treatment in] a specialist psychiatric hospital under intensive supervision.”

Basing its decision on the report prepared by the hospital’s psychiatrists, on 4 June 2010 the District Court granted the hospital’s request. The first applicant was not taken to the hearing. His legal guardian (the second applicant) and his lawyer were not informed of the hearing.

On 16 June 2010 the first applicant was transferred to Kazan Specialist Psychiatric Hospital under Intensive Supervision (Казанская психиатрическая больница специализированного типа с интенсивным наблюдением – hereinafter “Kazan Specialist Psychiatric Hospital”).

On 29 July 2010 the first applicant had a dispute with another mental health patient of Kazan Specialist Psychiatric Hospital during which he hit that patient.

On 30 July 2010 the first applicant was isolated and physical restraints were used to attach him to his bed for twenty-four hours.

In the meantime, on 17 June 2010 the second applicant appealed against the decision of 4 June 2010.

On 30 July 2010 the Supreme Court quashed the decision of 4 June 2010 on appeal, because the applicants had not been duly notified of the hearing. The case was remitted for fresh consideration by a different bench. The first applicant remained in Kazan Specialist Psychiatric Hospital.

On 23 August 2010 the District Court again ordered the first applicant’s transfer to a specialist psychiatric hospital under intensive supervision. The first applicant was not allowed to attend the hearing, but the second applicant and the lawyer were present.

On 5 October 2010 the Supreme Court quashed the decision of 23 August 2010 on appeal, as the hearing had taken place in the first applicant’s absence. The case was remitted for fresh consideration by a different bench.

On 25 October 2010 the District Court held an off-site court hearing at the premises of Kazan Specialist Psychiatric Hospital. The court once again ordered the first applicant’s transfer to a specialist psychiatric hospital under intensive supervision. Both applicants and the lawyer were present. They submitted that the first applicant’s confinement in the hospital had been unlawful in the absence of a final court decision and asked the court to order an independent forensic medical examination to determine the effect of intensive therapy on his mental condition, but to no avail. The court decided that there was consistent evidence that the first applicant’s disorder persisted and that its aggravation required treatment in a specialist psychiatric hospital under intensive supervision.

In the meantime the second applicant challenged before the prosecutor’s office the lawfulness of the first applicant’s confinement in the specialist psychiatric hospital in the absence of a final court decision on the matter.

On 3 November 2010 she received a reply from the Republic of Tatarstan Prosecutor’s Office (no. 12-672-10), acknowledging the unlawfulness of the first applicant’s confinement in Kazan Specialist Psychiatric Hospital since 16 June 2010 in the absence of a final judicial decision on his transfer.

On 13 December 2010 the first applicant was transferred back to V.M. Bekhterev Psychiatric Hospital.

On 24 December 2010 the Supreme Court quashed the decision of 25 October 2010 on appeal. The case was remitted for fresh consideration by a different bench.

On 20 January 2011 the District Court decided not to order the first applicant’s transfer to a specialist psychiatric hospital under intensive supervision, as there was insufficient evidence that he represented any particular threat to himself or society.

On 4 March 2011, however, the Supreme Court quashed the decision of 20 January 2011 on appeal and remitted the case for fresh consideration.

On 5 April 2011 the District Court again ordered the applicant’s transfer to a specialist psychiatric hospital under intensive supervision. A request for the court to order independent comprehensive medical and psychiatric examinations in respect of the first applicant was dismissed.

On 20 May 2011 the Supreme Court upheld the decision of 5 April 2011 on appeal.

On 9 July 2011 the first applicant was transferred to Kazan Specialist Psychiatric Hospital.

On 8 June 2011 the District Court extended the application of compulsory measures of a medical nature to the first applicant and his treatment in a specialist psychiatric hospital under intensive supervision. The court relied on a report of a medical examination of the first applicant, carried out on 10 November 2010 by Kazan Specialist Psychiatric Hospital.

On 9 August 2011 the Supreme Court quashed the above decision on appeal, having noted that the District Court had failed to obtain the first applicant’s medical file and to address arguments by the second applicant as to the validity of the report drawn up over six months earlier.

On 9 September 2011 the District Court, having complied with the instruction of the Supreme Court, extended the application of compulsory measures of a medical nature to the first applicant and his treatment in a specialist psychiatric hospital under intensive supervision.

On 21 October 2011 the Supreme Court quashed the above decision on appeal and remitted the matter for fresh consideration, on account of the absence of a more recent medical report in respect of the first applicant.

On 22 November 2011 the District Court, having examined, inter alia, the newly prepared report of 10 November 2011, extended the application of compulsory measures of a medical nature to the first applicant and his treatment in a specialist psychiatric hospital under intensive supervision. The request submitted by the second applicant for the court to order an independent forensic psychiatric examination in respect of the first applicant was dismissed.

On 10 January 2012 the Supreme Court upheld the above decision on appeal.

On 27 May 2011 the second applicant brought a compensation claim on behalf of her son and herself against the Ministry of Finance, alleging that the proceedings concerning the first applicant’s transfer to a specialist psychiatric hospital under intensive supervision had been excessively lengthy, having lasted from 21 May 2010 until 20 May 2011 (see paragraphs 14-31 above).

On 26 July 2011 the Supreme Court dismissed the applicants’ claim as groundless.

On 22 September 2011 the Appeal Section of the Supreme Court upheld the above judgment on appeal.

On 25 October 2011 the second applicant brought a compensation claim on behalf of her son and herself against Kazan Specialist Psychiatric Hospital for damage incurred as a result of the first applicant being unlawfully confined in the hospital between 16 June and 13 December 2010 (see paragraphs 16-26 above), unlawfully administered intensive therapy in the above period, and unlawfully tied to his bed from 30 July to 31 July 2010 after an incident with another patient (see paragraphs 17-18 above). She also alleged that her son’s correspondence had been censored, that she had been refused access to his medical file, and that the conditions of his confinement had been substandard.

On 23 December 2011 the District Court dismissed the applicants’ claim as unsubstantiated. The court established that until October 2010 the administration of Kazan Specialist Psychiatric Hospital had not been aware that the decision of 4 June 2010, pursuant to which the second applicant had been transferred there, had been quashed on appeal. The court held that on 25 October 2010 the first applicant had undergone a medical examination by a medical panel, who had concluded that he needed continued compulsory treatment in that hospital. It held that the first applicant’s somatic state remained satisfactory and that he received medication allowed in the Russian Federation. The court further held that psychiatric patients’ medical documents had only been accessible to hospital medical staff, hospital administration, representatives of supervising health authorities, prosecution and investigation authorities and the court. The remaining aspects of the first applicant’s confinement in Kazan Specialist Psychiatric Hospital remained unaddressed by the court.

The second applicant appealed against the above decision, noting in particular the domestic court’s failure to address her complaints regarding the conditions of the first applicant’s confinement in Kazan Specialist Psychiatric Hospital, the incident involving him being tied to his bed, and censorship of her and her son’s correspondence by the hospital administration.

On 6 February 2012 the Supreme Court upheld the above judgment on appeal, without addressing the issues which had remained unexamined by the first-instance court. The hearing was held in public, although the second applicant had not agreed to public disclosure of the first applicant’s medical diagnoses and the contents of her correspondence with him.

On 21 November 2012 the District Court granted the application lodged by Kazan Specialist Psychiatric Hospital and changed the form of the first applicant’s compulsory psychiatric treatment from confinement in a specialist psychiatric hospital under intensive supervision to outpatient compulsory monitoring and psychiatrist treatment.

On 3 December 2012 the first applicant was discharged from Kazan Specialist Psychiatric Hospital.

As indicated above, from 16 June to 13 December 2010 and from 9 July 2011 to 3 December 2012 the first applicant was detained in Kazan Specialist Psychiatric Hospital.

The first applicant claimed to have been confined in a ward measuring 20 sq. m with between eleven to thirteen other mental health patients at one time, the majority of whom had suffered from severe psychiatric disorders accompanied with symptoms such as delirium and hallucinations. He claimed to have been confined to the ward for most of the day (except for approximately five hours when inmates were taken to eat, walk or watch TV).

The first applicant alleged that there had been no lavatory or sink in the ward. He submitted, in particular, that the inmates had had to use a bucket for a toilet which had been emptied by the hospital staff twice a day and which had caused a disgusting smell in the ward.

Shower use had been restricted to once a fortnight.

The first applicant’s correspondence with his mother, the second applicant, had been opened and subjected to censorship by the hospital administration.

Throughout his stay in Kazan Specialist Psychiatric Hospital the first applicant had been held for treatment in five different wards: ward no. 8 of department no. 1, ward nos. 56 and 57 of department no. 6, ward no. 102 of department no. 8, and ward no. 140 of department no. 12. The dates of the first applicant’s stay in these wards, the size of the wards and the number of patients held with the first applicant are given in the table below:

The Government noted with regret that the measurements of the wards where the first applicant underwent inpatient treatment indeed failed to meet the statutory standards, namely a minimum of 7 sq. m per patient in wards of a specialist psychiatric facility (see paragraph 59 below).

The Government further noted that the number of beds per ward considerably exceeded the domestic requirement of no more than four per ward (see paragraph 60 below).

Throughout his stay in the hospital the first applicant, like all other hospital patients, had been confined to the ward for most of the day. He had been taken out of the ward to undergo medical procedures, consult a psychologist, have a bath, help out at a concert, eat, watch TV and go for a daily walk outside (1.5 hours twice a day during summer and 1.5 hours a day during autumn and winter).

All the departments where the first applicant had been confined had separate lavatories, but were not equipped with shower rooms.

The Government informed the Court that, in connection with the present application, in October 2012 a committee consisting of representatives of the Republic of Tatarstan Prosecutor’s Office, the Department of Federal Public Health Service and the Department of Federal Service for Supervision of Consumer Rights Protection and Human Welfare had inspected Kazan Specialist Psychiatric Hospital. Following this inspection, which confirmed the applicant’s allegations of overcrowding in the wards, the Russian Ministry of Public Health and Social Development granted 4,935,000 Russian roubles to extend building no. 3 of the hospital, so that an additional forty-four beds could be accommodated.


CASE OF SELMANI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Public hearing);Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Non-pecuniary damage - award (Article 41 - Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicants were accredited journalists who were authorised to report from the national Parliament. On 24 December 2012 parliamentary proceedings were held on the Budget Act for 2013. The applicants, together with other journalists, were reporting from the Parliament gallery, which was situated above the plenary hall (“the chamber”) where members of parliament (MPs) were seated. The debate on the approval of the State budget attracted considerable public and media attention, owing to the conflict between opposition and ruling party MPs as to whether or not statutory procedure had been complied with. During the proceedings, opposition MPs approached the President of Parliament (“the Speaker”) and started creating noise by, inter alia, slapping his table. Soon thereafter, Parliament security officers entered the chamber. They pulled the Speaker out of the chamber and started forcibly removing the opposition MPs. At the same time, other security officers (four officers, according to the Government) entered the gallery and started removing the applicants and other journalists. The Government stated that the security officers had informed those in the gallery that they had to leave for security reasons. The applicants denied that the reasons for their removal had been explained to them. Whereas some journalists complied with those orders, the applicants refused to leave, as the situation in the chamber was escalating and they felt that the public had the right to be kept informed as to what was going on. However, the security officers forcibly removed the applicants from the gallery.

The Government submitted that according to official records (a copy of which was not provided) on that occasion the first applicant had forcibly removed the identification badge from one security officer and had injured him in his chest and leg. The applicants denied that they had injured any officer and submitted that no official document had been drawn up regarding the identity of the officer in question, the nature and severity of the injury or the alleged assailant. The Government further alleged that the applicants had been allowed to follow the events in the parliamentary chamber via a live broadcast in the Parliament’s press room and the adjacent hall. The applicants contested that there had been live stream while the ejection of the opposition MPs had been ongoing, given that the cameras had allegedly been turned against the walls.

At the same time, two opposing groups congregated in front of the Parliament building. According to the Government, several people were injured in those protests. No further information was provided.

In a letter of 26 December 2012 addressed to the media, the Speaker stated, inter alia:

“Having regard to the announcements (најави) that the opposition would not allow the Budget Act to be adopted and that there would be protests and incidents, I requested, under section 43 of the Parliament Act, that the Parliament security service ensure proper work at the session. I would like to underline that the Parliament security service arranges and implements necessary measures to be taken ... having regard to the fact that the gallery is part of the plenary hall, the Parliament security service considered (донело оценка) that the gallery should be vacated in order to avoid an incident of a larger scale.

As Speaker, I regret that such a measure regarding the journalists was taken ...”

On 26 December 2012 the Association of Journalists (represented by its president, the first applicant) sent a letter to the DCPS claiming that the forcible removal of the journalists had violated their rights under Article 10 of the Convention. In the letter, the journalists pushed for proceedings to be brought against those responsible for authorising and carrying out their removal from the gallery.

In a letter dated 6 January 2013, the DCPS informed the applicants that a group of MPs had surrounded the Speaker during the incident of 24 December 2012, and had attempted to physically confront him. They had also insulted and threatened him, whilst at the same time damaging technical equipment. Owing to the security risk, the Speaker had been removed to a place of safety. However, the disturbance in the chamber had continued. In the circumstances, the Speaker had requested, under section 43 of the Parliament Act (“the Act”, see paragraph 17 below), that the Parliament’s security service restore order so that the discussions could continue. Journalists had been asked to leave the gallery until order was restored. The letter further stated:

“An MP who had been involved in the disturbance in the chamber and other people who could have disturbed the journalists in the performance of their tasks were in the gallery.

In the meantime, there was information that the protests [in front of the Parliament building] could escalate and that police cordons could be violently broken. All that threatened the security in the Parliament. For these reasons, the journalists were asked to leave the gallery and to continue following the events from the press room, at a designated area. Most of the journalists understood the seriousness of the situation and complied with that request. A smaller group of people in the gallery, including [the applicants], confronted the security officers, disregarded their orders and resisted actively and passively. As a result, a [security] officer sustained an injury to his leg.”

The DCPS concluded that the law enforcement powers employed had not gone beyond the limit of what was acceptable, and that excessive force had not been used.

On 14 June 2013 the President of the State set up an ad hoc commission of inquiry regarding the events in the national Parliament of 24 December 2012. It was composed of five national members, two of whom were MPs. It further included two non-national observers appointed by the European Union. On 26 August 2013 the commission drew up a report, the relevant part of which reads as follows:

The absence of appropriate guidelines on dealing with such situations, including the absence of a strategy to deal with media in crisis, led to a situation in which journalists were removed from the Parliament gallery, which violated their rights to freedom of public information (слобода на јавно информирање) and publicity in the work of Parliament. Parliament should be particularly attentive and open with respect to the freedom of the press to report and to apply the best European practices in this matter ...”

The applicants lodged a constitutional complaint with the Constitutional Court in which they alleged a violation of their rights under Article 10 of the Convention. They submitted that the parliamentary debate and the related events regarding the approval of the State budget had been of particular public interest. The intervention of the Parliament security officers and the removal of the applicants from the gallery had been neither “lawful” nor “necessary in a democratic society”. With regard to the lawfulness of the measures taken, the applicants argued that section 43 of the Act could not be interpreted as allowing the forcible removal of journalists from the gallery by Parliament security officers. In any event, that provision had not been sufficiently foreseeable. As to the necessity of the measures, they argued that at the critical time, they had been in the gallery and had had no contact with the Speaker or MPs. Accordingly, they had not and could not have contributed to the disturbance in the chamber. Furthermore, they contested the DCPS’s arguments that there had been unauthorised people in the gallery and that the protests in front of the Parliament building had justified their forcible removal (see paragraph 10 above). They urged the court to hold a public hearing (јавна расправа) in accordance with Article 55 of the Rules of the Constitutional Court (see paragraph 24 below) and to find a violation of Article 16 of the Constitution (see paragraph 16 below) and Article 10 of the Convention.

At a hearing held on 16 April 2014 in the absence of the parties, the Constitutional Court dismissed the applicants’ complaint. The relevant parts of the decision read as follows:

“On the basis of evidence submitted with the constitutional complaint and the reply of the Parliament of the Republic of Macedonia, the court has established the following facts:

There was an increased interest on the part of the public and the media in (the parliamentary proceedings) given the importance of the State budget and the fact that before the proceedings, namely in November and December, there had been long, intense and sometimes tense discussions between opposition and ruling party MPs regarding the draft Budget ...

On 24 December 2012 ... before the plenary debate of Parliament started, there was a disturbance by a group of MPs who started destroying technical equipment in the chamber. They prevented access to the podium, surrounded the Speaker, preventing him from carrying out his duties, whilst at the same time insulting and threatening him.

Due to the security risk, the Speaker was taken out of the chamber by security personnel. The disturbance in the chamber continued.

Under section 43 of the Parliament Act, the Speaker ordered police officers responsible for parliamentary security to restore order in the chamber and enable the debate to start in an orderly manner. The security personnel considered it necessary to vacate the gallery, in order to ensure the safety of those in the gallery and in the chamber.

All those in the gallery, including [the applicants], were asked to leave for security reasons and to follow the events from the press centre.

Most of the journalists complied with that instruction. A smaller group of people, including [the applicants], confronted the security officers, disregarded their orders, and resisted actively and passively. As a result, a [security] officer sustained an injury to his leg.

[The applicants] and other journalists, after having been removed from the gallery, remained in the Parliament building and were able to follow the live broadcast of the debate from other premises [the press centre, in a hall adjacent to the gallery].

At the same time, in front of the Parliament building, two opposing groups of people gathered. Several people were injured.

The plenary debate of the Parliament of 24 December 2012 was public and it was entirely broadcast live on national television and streamed on the Parliament website. When the debate was over, the video material was made available to the public on that website ...

The above provisions of the Parliament Act [see paragraph 17 below] and the Rules of Parliament [see paragraph 23 below] ... provide that the Speaker is responsible for maintaining order in the Parliament. In the event of disorder, he or she can take several measures (warning, denial of the right to speak, exclusion of MPs). Provisions regarding order during parliamentary proceedings concern all those participating in the session.

The court considers that the removal of [the applicants] from the gallery amounted to an interference with their freedom to carry out their professional duties and to inform the public about events that were of considerable interest for the citizens of the Republic of Macedonia – the events in Parliament regarding the approval of the State budget for 2013, in which the public had significant interest in following and being informed about.

The legal ground for the impugned measure was section 43 of the Parliament Act, which specified who was responsible for keeping order in the Parliament building – a special security unit, and which authorised the Speaker to decide and take measures in the event of disturbance of that order by MPs and other external persons participating in the work of Parliament.

As to the necessity of the measure ... it has to be examined in the light of the the events that took place inside the Parliament building, namely in the chamber, as well as the disorder outside the Parliament building. The strained atmosphere in the chamber, which prevented a regular and normal start of the proceedings, has to be taken into account. In this connection it is to be noted ... that a larger group of MPs assaulted the Speaker, who was immediately removed from the chamber by security officers. There were a number of incidents, including damage to furniture, which culminated in objects being thrown in the chamber – some in the direction of the gallery. In such circumstances, the Parliament security service considered that in order to protect the journalists in the gallery, they should be moved to a safer place where they would not be in danger. Such an assessment should not be viewed as conflicting with the journalists’ right to attend parliamentary proceedings and report on events that they witnessed. In fact, the journalists – most of them on the same day – submitted and published their reports in the evening editions of their newspapers, which implies that there was no violation of their freedom of expression.

The actions of the security officers constitute standard practice for these and similar situations in case of endangerment, i.e. protection of media representatives while reporting from places of crises, demonstrations and other potentially dangerous events ...

The fact that the journalists had been present within and outside the Parliament building since the morning of 24 December 2012, and were reporting on the events as they occurred, confirms that, notwithstanding the indications and expectations that discussion about the approval of the Budget would be tense, they were allowed access to the Parliament building and the gallery in order to carry out their function and inform the public about the debate. Accordingly, there was no preconceived idea to prevent the journalists from reporting on the debate. After they left the gallery, [the applicants] and other media representatives were allowed to remain in the parliamentary press centre ... from where they could have followed the live broadcast on the Parliament website and on the dedicated TV channel.

... The physical removal of journalists from the gallery required by the concrete escalation of chaos and disorder aimed to protect them and ensure order in the chamber, and not to restrict their freedom of expression or to prevent them from carrying out their function, i.e. to inform the public.”

In a dissenting opinion, Judge N.G.D. of the Constitutional Court stated, inter alia, the following:

“... My dissenting opinion mainly concerns the inability objectively to decide the case ... I consider that the written information, facts and evidence available to the court were insufficient ...

The decision [of the Constitutional Court] contains contradictory reasons given that it ... establishes that the removal of journalists amounted to an interference with their right to carry out their function and to inform the public about an event of indisputable public interest, but it finds that such an intervention was justified ... without there being a solid factual basis in support of that finding.

I think that it is of crucial importance that the Constitutional Court clarifies and explains the reasonableness of the assessment of the situation and the reason for which the journalists were removed from the gallery ...

In order to establish the facts and assess the need for [their] removal ... it was necessary to determine the reason which prompted the security officers to remove them, despite the undisputed fact that all the incidents and disorder in the Parliament chamber were physically and clearly isolated and distant from [the gallery]. It is absurd that [such a removal] was carried out ‘for the safety of journalists’, when it is clear that they were in their seats and were completely passive; they did not participate in the events at all, but only observed ... It is a fact that the journalists did not contribute to the conflictual situation in any respect [not disputed by Parliament]; they did not disturb order in the Parliament building; they were in direct contact neither with the Speaker or the MPs, nor with the events outside the Parliament building ... Besides, it is clear that the journalists themselves did not feel threatened; so they did not seek and expect any protection.”