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

Kristina Pardalos;Pauliine Koskelo;Robert Spano

The applicant was born in 1958 and lives in Korça.

On 14 July 1995 and 14 June 1996 the Korça Commission on Restitution and Compensation of Properties (Komisioni i Kthimit dhe Kompensimit të Pronave) (“the Commission”) decided to recognise the applicant’s inherited property title to two plots of land measuring 118 sq. m and restore them to the applicant.

On an unspecified date the Korça Regional Company for the Distribution of Electricity (Ndërmarja zonale e shpërndarjes së energjisë elektrike) (“the defendant”) started the construction of a high-voltage line on the applicant’s plots of lands.

On an unspecified date the applicant sought an injunction to suspend the construction works.

On 13 January 2006 the Korça District Court (“the District Court”) issued an injunction and ordered the construction to be suspended. On 8 March 2006 and 4 May 2007 the Korça Court of Appeal (“the Court of Appeal”) and the Supreme Court respectively upheld that decision.

On 26 January 2006 the applicant brought an action against the defendant to bring the construction works to an end immediately, remove the high-voltage line and restore the site to its previous state.

On 30 January 2006 the bailiff in the case discontinued enforcement proceedings concerning the decision of 13 January 2006 on the grounds that the works had been suspended.

On 7 April 2006 the District Court ordered the immediate termination of the works on the applicant’s plot of land, the removal of the high-voltage line and the restoration of the site to its former state (ndalimin e punimeve si dhe duke detyruar ana e paditur të heqë kabllot, të dy linjat dhe ta kthejë pronën në gjendjen e mëparshme). The District Court reasoned that the defendant had unlawfully constructed that line on the applicant’s property.

On 27 June 2006 the Court of Appeal upheld that judgment. On an unspecified date the defendant lodged an appeal with the Supreme Court against the lower courts’ judgments.

On 10 August 2006 the applicant requested that the bailiff enforce the judgment of 7 April 2006, as upheld by the Court of Appeal on 27 June 2006. However, as the proceedings on the merits of the case were pending before the Supreme Court (see paragraph 11 above), on 8 September 2006 the Supreme Court provisionally decided to stay the enforcement proceedings.

Subsequently, the applicant lodged a constitutional appeal against the Supreme Court’s decision of 8 September 2006.

On 16 May 2007 the Constitutional Court dismissed the appeal on the grounds that an examination of the applicant’s action on the merits was pending before the Supreme Court.

On 11 January 2008 the Supreme Court upheld in a final judgment the District Court’s judgment of 7 April 2006 and the Court of Appeal’s judgment of 27 June 2006.

On 22 February 2008, following the Supreme Court’s judgment of 11 January 2008, the applicant again requested that the bailiff enforce the judgment of 7 April 2006.

From 2008 to 2011 the bailiff unsuccessfully sought to enforce the final judgment. In particular, on 29 February 2008 the bailiff sought to have the defendant comply voluntarily with the judgment. The bailiff further imposed a fine of 71,155 Albanian leks (ALL) on the defendant.

On 10 April 2008 the bailiff again ordered the defendant to pay a fine for failing to comply with the final judgment.

On 21 September 2011 and 25 November 2011 the defendant informed the bailiff that the applicant was prepared to solve the dispute with the authorities by way of a friendly settlement.

On 17 November 2014 the applicant informed the bailiff that the defendant had failed to reach a settlement with her. She requested the continuation of the enforcement proceedings.

On 8 April 2015 the bailiff imposed another fine on the defendant for failing to comply with the final judgment.

On 20 May 2008 the applicant filed a criminal complaint against the bailiff and the Distributor Energy Operator (Operatori i Shpërndarjes së Energjisë Elektrike) (“DEC”) for failure to comply with the judgment of 7 April 2006. It appears that on an unspecified date the Court of Appeal discontinued the proceedings by virtue of a final judgment.

On 11 July 2008 the applicant lodged a criminal complaint against the Albanian Electricity Corporation (Korporata Elektroenergjetike Shqiptare) (“AEC”) and the Korça municipality for “destruction of private property”. On 14 July 2011 the prosecutor’s office discontinued the criminal proceedings in a final decision.

On an unspecified date the applicant brought a civil action against C.E.Z Shpërndarje sh.a, which had privatised DEC, claiming damages and loss of profit.

On 7 May 2012 the District Court decided to stay the proceedings and await the conclusion of the civil proceedings instituted by AEC against the administrative decisions of 14 July 1995 and 14 June 1996 (see paragraph 24 below), which had recognised the applicant’s property rights.

On 6 December 2012 the Court of Appeal amended that decision and decided that the proceedings could continue. It appears that the case is still pending before the domestic courts.

On 6 February 2007 AEC brought a civil action against the applicant to annul the administrative decisions of 14 July 1995 and 14 June 1996 on the grounds that the plots of land had belonged to and had been used by AEC since 1960.

On 24 January 2008 the District Court ordered the freezing of the title to the applicant’s plots of land (vendim për marrjen e masës së sigurimit të padisë duke bllokuar pronën në Zyrën e Regjistrimit të Pasurive të Paluajtshme). On 12 December 2008 and 26 January 2012 the Court of Appeal and the Supreme Court lifted the freezing order.

On 31 July 2008 the District Court decided, at the applicant’s request, to stay the proceedings and await the conclusion of other civil and criminal proceedings instituted by the applicant. On 6 January 2009 and 17 October 2013 the Court of Appeal and the Supreme Court respectively upheld that decision.

On 5 March 2014 the District Court discontinued its examination of the case on the grounds that AEC had failed to attend a hearing without good reason. It would appear that AEC did not appeal against that judgment and it became final on an unspecified date.

On two other occasions AEC and DEC brought civil actions against the applicant to annul the administrative decisions of 14 July 1995 and 14 June 1996. On 17 April 2012 and 22 December 2014, respectively, the District Court discontinued its examination of the actions on the grounds that AEC and DEC had failed to attend hearings for no good reason. It appears that they did not appeal against either judgment and they became final on an unspecified date.


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

The applicants, Mr Albrecht Kieser and Mr Peter Tralau-Kleinert, are German nationals, who were born in 1949 and 1937 respectively and live in Cologne. They were represented before the Court by Mr E. Reinecke, a lawyer practising in Cologne.

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

The publishing company M. DuMont Schauberg, registered in Cologne, publishes daily newspapers including Kölner Stadtanzeiger, Kölner Rundschau and Express. The chairman of the supervisory board of the publishing company is Mr Alfred Neven DuMont, son of Mr Kurt Neven DuMont and Ms Gabriele DuMont, who died in 1968 and 1978 respectively.

In February 2006 the applicants, journalists for the online magazine Neue Rheinische Zeitung, published an article concerning the so-called “aryanisation profits” (“Arisierungsprofite”) of Germans during the Nazi regime and the role of the DuMont family in these activities. The article, which contained some six pages and photos, entitled “Discoveries about the publishing family Neven DuMont in Nazi times: No resistance, but aryanisation profits” read in part as follows:

“The publishing family Neven DuMont, which has declared itself every now and then for years .... as being haunted by the Nazi regime and being a member of the resistance, profited from aryanisation....”

“Last Friday a congress took place in the adult evening school covering the topic of “aryanisation”. There the journalist and historian Niebel sowed doubts. Niebel, who had no access to files of the tax offices, cited in his speech parts of the denazification file of Kurt Neven DuMont, publisher of Kölnische Zeitung during the Nazi period and father of the present publisher Alfred Neven DuMont. There the former publisher confessed to an unlawful appropriation of Jewish real estate in 1941...”

“As a matter of fact the Neven DuMont family took possession of three houses in Breite Straße....The houses, respectively the real estate, belonged to the Jewish merchant Fritz Brandenstein and his wife, Sofie. In 1939 they were forced to emigrate, the Nazis confiscated their fortune and the Gerling company interimpurchased the real estate for 6 weeks. Afterwards Gabriele DuMont, wife of Kurt Neven DuMont, purchased the real estate. The price is not known.....”

“Following the inquiries of Ingo Niebel, already in 1938 the DuMont publishing company grabbed a house of the merchant Emil Lippmann in Luxemburger Straße via its mutual insurance company. Lippmann was accused of “racial defilement” and died shortly afterwards....”

“In the fifties the publishing company DuMont and the widow Brandenstein reached an out-of-court settlement concerning compensation. This is the reason why the amount of money paid is not generally known. The same applies to the daughters of M. E. Lippmann....”

These parts of the article referred to the following three real estate purchases:

In 1938 a mutual insurance company situated in Cologne, and which insured the employees of the M. DuMont Schauberg company, purchased real estate situated at 301 Luxemburger Straße in Cologne from Mr Lippmann, a German Jew who was persecuted and died shortly afterwards. In 1951 the legal heirs of Mr Lippmann renounced any restitution claims after having primarily lodged such claims.

According to the denazification file of Mr Kurt Neven DuMont, in 1941 Ms Gabriele DuMont bought real estate in Leyboldstraße in Cologne, which was owned by a Mr A. Ottenheimer. Mr Ottenheimer was a German Jew who had emigrated in 1937. Therefore his property was liquidated by a curator. In 1949 Ms DuMont and Mr Ottenheimer (now known as Otten) reached a settlement concerning the structural condition of the property in 1941 (price, size, value and cultivation) and restitution claims. In this settlement the property was declared as being in essence undeveloped except for cellar walls and concrete foundations.

Furthermore in 1941 Ms Gabriele DuMont purchased real estate, located in Breite Straße in Cologne for 255,000 Reichsmark. The vendor was the Gerling company, which had purchased the real estate three years before at auction for 46,000 Reichsmark. The former owner of the property was a company belonging to a Jewish couple who had fled Germany in 1939.

The chairman of the supervisory board of the publishing company, Mr Alfred Neven DuMont, instituted an action for an interim injunction with the Cologne District Court after the applicants’ article was published, in which he precisely indicated the parts of the article which he considered not to be true.

The Cologne District Court and afterwards the Cologne Court of Appeal issued an interim injunction and ordered the applicants to refrain from disseminating certain parts of the article.

On 19 September 2007 the Cologne Regional Court prohibited in particular any further publication of the following elements of the published article, subject to penalty (“strafbewährte Unterlassungserklärung”) of up to 250,000 euros for each contravention, under Articles 1004 § 1, 823 § 2 of the Civil Code taken in conjunction with Article 186 of the Criminal Code, read in the light of the right to protection of personality rights (“Allgemeines Persönlichkeitsrecht”, see §§ 23 seq., below):

“...to refrain from giving the impression that the plaintiff’s family unlawfully enriched itself during the Nazi regime with foreign fortune, in particular by statements such as “the plaintiff’s family DuMont made aryanisation profits when purchasing the real estate in Leyboldstr. 19, Breite Straße 82, 86, 88 and Luxemburger Straße 301”.

According to the Regional Court, the relevant passages of the article in question amounted to a serious interference with Mr DuMont’s right to the protection of his personality rights. The Regional Court considered that the impugned statements had to be classified as statements of fact. A statement of fact had to be assumed when a passage of an article or an article as a whole led the reader to draw a peremptory conclusion from it. In the Regional Court’s view, the article in question mainly made statements of fact because the term “aryanisation profit”, used in the context of the purchase of real estate, created the impression that the DuMont family had enriched itself unlawfully during the Nazi regime with foreign fortune by abusing the predicament in which the Jewish population found itself. The veracity of that statement could be proved. The Cologne Regional Court found that, the impugned statement being a statement of fact and not a value judgment, the burden of proof concerning the veracity of the statement lay with the applicants. However, the applicants had failed to prove the veracity of the allegations.

In particular, regarding the real estate in Leyboldstraße, the Cologne Regional Court stated that the mere claim that the purchase price had been below the current market value was insufficient, because this was a general assumption due to the political situation in Germany at that time and the fact that German Jews were persecuted and expropriated. The applicants’ statement that the property was a built-up area was contradicted by statements and proof provided by the plaintiff, Mr DuMont. He had stated that an old building had been demolished in 1937 and a subsequent settlement between Ms DuMont and Mr Otten expressly declared that the property had not been developed in 1941, apart from concrete foundations and cellar walls. As a consequence, the applicants’ reference to an address book of Cologne (the “Greven’s address book”) as proof was considered to be too imprecise und therefore insufficient.

Concerning the real estate in Breite Straße the Cologne Regional Court found that the applicants had failed to substantiate that the DuMont family had exploited the Jews’ plight, firstly because the DuMont family had purchased the real estate some three years after the Gerling company had purchased it at auction for 46,000 Reichsmark and secondly because the price paid by the DuMont family had exceeded the auction price by 209,000 Reichsmark. As this purchase did not indicate a clear exploitation of the Jews’ plight, the statements were to be classified as false. As far as the applicants offered a statutory declaration by the historian Niebel as proof of this allegation, the court held that in view of this finding there was no need to pursue the proof provided by the applicants.

With regard to the real estate in Luxemburger Straße the Cologne Regional Court held that no profit had been made by the DuMont family because it had not been the DuMont family who had purchased the real estate, but a legally independent mutual insurance company situated in Cologne and which insured the DuMont company’s employees. Furthermore, other real estate, comparable to that in Luxemburger Straße, had been sold for similar prices around the same time.

The Cologne Regional Court therefore concluded that the applicants had not proved the veracity of their statements as there had either been no profits made by the DuMont family or the evidence produced by the applicants had not been sufficient. As far as the applicants argued that the term “aryanisation” had to be classified as a value judgment, the court was of the opinion that, even when classified as a value judgment, it still had to be considered as ambivalent. It was necessary with ambivalent expressions to examine their admissibility on the basis of the interpretation which caused the most serious interference. Against this background the statements had to be regarded as untrue and thus were not protected by freedom of speech. Moreover, the court held that there had not been a legitimate interest in publishing the statements. It was true that the publication of untrue statements of fact could be justified. However, this was only the case if the person disseminating the information had tried sufficiently to verify the facts prior to publication and if any remaining doubts as to the truth of the facts had been made sufficiently clear. In the case at hand, the applicants had not even come close to exhausting all possibilities of establishing the facts and the article was far from being balanced coverage that also indicated doubts as to the truth of the statements.

As far as the plaintiff wanted the publication of other parts of the article to be prohibited, the Cologne Regional Court allowed the action for one part. For other parts the applicants made a declaration of discontinuance subject to penalty (strafbewährte Unterlassungserklärung).

On 21 September 2008 the Cologne Court of Appeal dismissed an appeal by the applicants against the judgment and refused to grant the applicants leave to appeal on points of law. It endorsed the reasoning of the Regional Court. It expressly confirmed the Regional Court’s finding that the statements were to be classified as statements of fact as they were open to objective verification and proof. Even if parts of the statements comprised value judgments, these were based on documented incidents like the denazification file of Mr Kurt Neven DuMont, address books or files of the competent tax authority. As it was primarily these documents which were supposed to prove the conclusion that the DuMont family had participated in aryanisation profits, the main focus of the statements was not the expression of an opinion but a statement of facts.

On 3 February 2009 the Federal Court of Justice rejected the applicants’ complaint about the refusal to grant them leave to appeal on points of law (Nichtzulassungsbeschwerde), without giving further reasons.

On 4 March 2009 the applicants lodged a constitutional complaint with the Federal Constitutional Court. The applicants claimed a violation of their right to freedom of expression insofar as the Cologne Regional Court and the Cologne Court of Appeal had ordered them to refrain from giving the impression that the plaintiff’s family had unlawfully enriched itself during the Nazi regime with foreign fortune, in particular by statements such as “the plaintiff’s family DuMont made aryanisation profits when purchasing the real estate in Leyboldstr. 19, Breite Straße 82, 86, 88 and Luxemburger Straße 301”. The applicants claimed that the Cologne Regional Court and the Cologne Court of Appeal had omitted to clarify whether these passages of the article in question were to be classified as statements of facts or value judgments. The classification as “ambivalent expressions” was an oversimplification contravening the Federal Constitutional Court’s case-law.

On 24 September 2009 the Federal Constitutional Court declined to consider the constitutional complaint without providing reasons.

The claim underlying the injunction was based on an analogy to Article 823(1) and (2), read in conjunction with the second sentence of Article 1004 § 1 of the German Civil Code taken together with Article 186 of the Criminal Code. It is the well-established case-law of the German courts that a person whose personality rights are jeopardised by another individual may – under certain specified conditions – lodge a claim against the latter pursuant to these provisions.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

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

I. THE CIRCUMSTANCES OF THE CASE

The applicants are German nationals born in 1979 and 1978 respectively. They are currently serving prison sentences in Germany, following their conviction by the Romanian authorities for drug trafficking, as described below.

A. Criminal proceedings against the applicants

At the time of the impugned events, S.R.B., one of the applicants’ acquaintances, was in police custody accused of drug-related offences. In the context of a covert operation, S.R.B. agreed to contact the applicants by phone in order to arrange a drug transaction. It appears that following several phone conversations between S.R.B. and the first applicant, the latter agreed to deliver 5,000 Ecstasy pills to Romania.

On 9 November 2007 the prosecutor in charge of investigating S.R.B.’s case issued an order (ordonanta) in which he authorised the intervention of three undercover agents, namely D.D., N.A. and L.C., who were mandated to purchase 6,000 Ecstasy pills with the assistance of S.R.B. The justification given for such an intervention was that, based on S.R.B.’s statements, there existed a strong indication that individuals as yet unknown to the police intended to commit the offence of drug trafficking. The undercover agents were necessary in the operation because the individuals in question “belonged to a drug-dealing network which acted very cautiously, taking a lot of precautions in their activities and relying exclusively on highly trustworthy persons”.

On the same date, the prosecutor authorised the undercover agents N.A. and L.C. to be provided with 35,000 euros (EUR), to be taken from the special funds of the police, with the purpose of using it to purchase the drugs.

On the night of 9 to 10 November 2007 the applicants entered Romania and met S.R.B. in a petrol station in Timişoara. Subsequently, they requested to be directed to a mechanical workshop, where they asked to be left alone. S.R.B. was asked to wait for their phone call before returning to the garage with the money for the drugs.

The applicants’ activity of removing the drugs from hidden compartments under the front passenger seat of the vehicle was video recorded by the investigators, based on an authorisation issued by the court on 25 October 2007.

After more than an hour, the applicants called S.R.B. to return to the garage together with the buyers, who were the undercover agents. One of them, N.A., handed over EUR 35,000, and the second applicant verified the authenticity of some of the bank notes with a special pencil.

At the same time, the applicants presented the drugs, packed in zip-locked plastic bags, to the undercover agents. The investigators then intervened in order to ensure that the applicants were caught in flagrante delicto.

On the same day the applicants were placed in custody in the detention facility of the Timiş police station, in connection with drug-trafficking charges.

In his statement given before the prosecutor on 10 November 2007, the first applicant declared that he and the second applicant had come to Romania for personal reasons, namely to visit relatives. He claimed that they had intended to spend the night at the home of S.R.B., a friend of theirs, and that they had no knowledge of the content of the plastic bags found in the garage.

The second applicant refused to give any statements, claiming that he was overwhelmed by the situation.

On 5 December 2007 the first applicant specified before the prosecutor that when they had been in the garage, the two individuals who had entered with S.R.B. had taken some plastic bags out of another car that was parked in the garage, and had placed them on a table. A third person who had come in later had taken out some money and asked him and the second applicant to count it, without indicating why.

In his statement given before the prosecutor on 10 November 2007 in the presence of his lawyer, S.R.B. admitted that he had agreed to cooperate with the police in order to benefit from the provisions of Law no. 143/2000 granting certain benefits to those who contributed to or facilitated the identification of perpetrators of crime; he had therefore told the police that he had knowledge of a group of people who was involved in the international trafficking of Ecstasy pills. With the permission of the prosecutor, he then contacted the first applicant on the phone; the latter agreed to bring to Romania 5,000 Ecstasy pills for the price of 40,000 EUR. Several other phone calls were made in order to arrange the details of the transaction, which took place on the night of 9 to 10 November. S.R.B. confirmed that the phone calls and his being taken out of custody for the operation had been approved by the prosecutor.

On 6 March 2008 the applicants and S.R.B., were charged with drug-related offences.

During the proceedings before the first-instance court, namely until the hearing of 4 February 2009 (see paragraph 16 below), the applicants pleaded not guilty, claiming that they had had no knowledge of the plastic bags, which they believed had been placed in the garage by the three persons who had accompanied S.R.B., in order to set them up.

Up until the same hearing, S.R.B., legally assisted by Mr Fanu Moca Adrian and his substitute lawyer, Mr S.D., maintained the statements he had given before the investigating authorities.

At the hearing of 16 October 2008 the court watched the video recordings made on the night of 9 to 10 November 2007, in the presence of the applicants, S.R.B. and their respective lawyers. The recordings were not contested and their authenticity was not questioned.

At the hearing of 4 February 2009, the applicants, then represented by lawyer S.D., changed their plea and claimed that they had been pushed to commit the offence by the investigators, who had acted as agents provocateurs. They invoked in their defence the Court’s case-law in relation to police entrapment, namely Teixeira de Castro v. Portugal (9 June 1998, Reports of Judgments and Decisions 1998-IV) and Ramanauskas v. Lithuania ([GC], no. 74420/01, ECHR 2008).

The applicants contended that they had first declined S.R.B.’s proposal, but had finally agreed to deliver the drugs to Romania in order to help S.R.B., who had claimed that he had been facing financial difficulties. The first applicant stated that he had been called by S.R.B. on a daily basis for one month. Each time he had refused S.R.B.’s proposal, and each time the latter had increased his offer, namely from 3 euros per pill initially to the final price of 8 euros per pill.

At the same hearing, S.R.B. also changed his statement and alleged that he had been coerced by the police to act as he had. He stated that during the telephone negotiations, the investigating authorities had asked him to increase both the quantity of pills requested and their price so that the first applicant would accept the transaction. He claimed that he had known the applicants as drug consumers, but not as drug dealers. He mentioned that some of the conversations he had had with the first applicant on a mobile phone had been recorded.

On 19 March 2009 the Timiş District Court sentenced the applicants to fifteen years’ imprisonment for drug trafficking. In its ruling, the court relied on the video recordings made on the day on which the applicants had been caught red-handed by Timiş police officers, as well as on the statements given by witnesses, including S.R.B. and the undercover agents.

The court ruled that the procedure used by the applicants to conceal the drugs showed that they were experienced in international trafficking of narcotic drugs and had sought to make a significant profit, while the operation to catch them red-handed could not be considered as entrapment. The court found that the method used by the applicants to hide the drugs in the cavities of the front passenger seat of the vehicle and the large quantity of drugs that they managed to transport across several borders showed that they were not unfamiliar with drug trafficking.

The court held that S.R.B.’s change of testimony could not be taken into account, as there was no other evidence to corroborate it and it contradicted his previous testimonies.

The applicants appealed against that judgment.

On 18 June 2009 the Timişoara Court of Appeal heard the applicants and S.R.B. They all maintained their previous statements according to which S.R.B., coerced by the police, had incited the applicants to commit the crime.

At the hearing, the applicants also submitted a request that the prosecution make available the recordings of the telephone conversations between S.R.B. and the first applicant, or at least a list of those conversations and of the telephones used. The applicants argued that the recordings proved on the one hand that S.R.B. had been coerced to cooperate with the police and on the other hand that there had been a high degree of incitement in the negotiations in order to persuade them to accept the deal.

The court allowed the request.

On 14 July 2009 the prosecutor’s office attached to the High Court of Cassation and Justice submitted that such recordings did not exist because the court had not been requested to authorise the recording of the phone conversations. Furthermore, according to the indictment, it was S.R.B. who had asked to be allowed to contact the applicants, under the supervision of the prosecutor, in order to take advantage of the lenient conditions prescribed in section 16 of Law no. 143/2000.

By its judgment of 21 October 2009, the appellate court upheld the lower court’s judgment.

The court stated that the authorities had been legally entitled to bring to the attention of S.R.B. the benefits of cooperating with the police by virtue of section 16 of Law 143/2000, a reduction of his sentence.

The applicants’ allegation that they had been entrapped was refuted by the court, which noted that the international case-law they had invoked was not applicable. In the case of Teixeira, the undercover agent and the collaborator had dealt with the applicant in person, while in Ramanauskas the applicant had been contacted by the agent claiming to be an acquaintance of the collaborator, whereas in the present case the applicants had never been contacted by the undercover agents, since S.R.B. had taken the initiative to ask to be allowed to make contact with the applicants in order to benefit from section 16 of Law no. 143/2000.

Furthermore, in the present case the applicants had freely chosen to travel to Romania with the drugs. Nothing had prevented them from refusing S.R.B.’s proposal.

The applicants further appealed against that judgment. They maintained before the High Court of Cassation and Justice that they had been entrapped, having been incited to sell drugs by S.R.B. He in turn had been forced to incite them to do so by the investigators, who had promised him a reduction in his sentence.

The applicants also denounced the use of the undercover officer N.A., who had sought, through S.R.B., to purchase the drugs.

By a judgment of 28 January 2010, the High Court of Cassation and Justice, taking into account as a mitigating factor the applicants’ lack of a previous criminal record, partly allowed the appeal and reduced their sentences to seven years’ imprisonment. The High Court upheld the lower courts’ reasoning in dismissing the entrapment pleas. It held that S.R.B., interested in the reduction of his sentence, had collaborated with the police and contacted the applicants in order to buy drugs; however, the applicants had had the opportunity to refuse the transaction proposed by him. Therefore, the court considered that the applicants’ pleas of entrapment were unfounded.

B. Conditions of detention

As from 10 November 2007, the applicants were remanded in custody in the Timiş police station detention facility. According to the Government, the applicants were placed in separate cells measuring 12 square metres, which they shared with five other inmates.

On 11 March 2008 the applicants were transferred to Timişoara Prison. The Government submitted that the cells in which the applicants had been placed measured 21 square metres, and were shared by a total of nine inmates.

On 7 December 2009 the applicants were transferred to Rahova Prison, where they were placed in cells measuring 19.58 square metres with ten beds.

On 29 July 2010 the applicants were transferred to Giurgiu Prison, where they remained until 28 July 2011 (the first applicant) and 17 August 2011 (the second applicant), when they were transferred to the Giurgiu Police Inspectorate in order to be transferred to serve the remainder of their sentence in Germany.

The Government pointed out that the applicants had had access to clean sanitary facilities as well as to hot and cold water, in accordance with a specific schedule.


CASE OF ZHEBRAILOVA AND OTHERS v. RUSSIA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants are:

(1) Ms Isita (also spelled as Yisita) Zhebrailova, born in 1956;

(2) Mr Shuddi Vakhayev, born in 1954, and

(3) Mr Salavdi Zhebrailov, born in 1980.

The first and second applicants are the parents of Mr Balavdi (also spelled as Balauddi) Zhebrailov, born in 1982. The third applicant is Mr Balavdi Zhebrailov’s brother. The applicants reside in the village of Gekhi, the Chechen Republic.

At about 12 midnight on 25 April 2005 a group of four men wearing uniforms and armed with assault rifles burst into the applicants’ property at 23 Pervomayskaya Street in Gekhi. Two of the intruders were wearing masks. The applicants inferred that the intruders were law-enforcement officers. The men ordered the applicants to lie down and grabbed hold of Mr Balavdi Zhebrailov and the third applicant, who was in his underwear. They then dragged them outside, firing several shots in the air to prevent the first and second applicants, as well as their relatives L.Sh. and Kh.A., from following them. The men threw the Zhebrailov brothers into a UAZ vehicle with a beacon on the roof and marked “police” (милиция), which was parked about 300 metres away from the applicants’ house, and drove off.

On the outskirts of Gekhi, Mr Balavdi Zhebrailov and the third applicant were transferred from the UAZ vehicle to a VAZ-99 vehicle driven by officer S. of the 2nd Regiment of the Road Police of the Ministry of the Interior of the Chechen Republic (hereinafter “the 2nd regiment”). The VAZ-99 vehicle took the road leading to Grozny and on the journey the men physically assaulted the Zhebrailov brothers. After a while the car passed through a checkpoint and Mr Balavdi Zhebrailov and the third applicant were taken to the premises of the 2nd regiment. The third applicant recognised the premises because he had come there two months earlier with a friend to apply for a job.

Upon arrival the Zhebrailov brothers were put in a cell in a basement, beaten with rifle butts and interrogated about a pistol. After a while they were separated and the third applicant was placed in a cell with another arrestee of about forty years old. From his cell the third applicant could hear Mr Balavdi Zhebrailov screaming whilst being beaten.

Shortly thereafter the persons, whom the applicants considered to be officers of the 2rd regiment, returned and physically assaulted the third applicant, saying that Mr Balavdi Zhebrailov had confirmed that the third applicant had a pistol and threatening to take the latter to the military base in Khankala. They kicked and beat the third applicant all over his body and also hit him several times on the head with a rifle butt. Sometime later they dragged the third applicant outside, gave him police trousers and a shirt belonging to his brother and pushed him into a grey UAZ vehicle equipped with a partition for prisoners’ transport. The car carrying the third applicant and two police officers passed through a checkpoint and after a short time stopped in the vicinity of the “northern market” in Grozny, where the third applicant was released. The third applicant then went to the home of an uncle of his who lives in Grozny, from where the third applicant’s relatives took him home on the morning on 26 April 2005.

Upon his return home, the third applicant had numerous bruises on his chest, back and legs and also wounds on his head, sustained as a result of the blows with the rifle butt.

On 26 April 2005 the third applicant’s relatives took him to the local hospital. While queuing there, the third applicant spotted one of his abductors, officer S. of the 2nd regiment. Fearing reprisals, the applicants immediately left, without obtaining medical assistance. At home the third applicant was treated by a family friend Z., a nurse. She bandaged his head and gave him medication. As a result of the ill-treatment the third applicant could barely walk. He had to stay at home for a week.

The applicants have had no news of Mr Balavdi Zhebrailov since his abduction.

In support of their account of events, the applicants furnished written statements by L.Sh. and Kh.A. dated 12 and 14 December 2006, and detailed written statements by the first to third applicants dated 5 May and 12 December 2006, 17 January 2007, and 7 January, 15 and 30 March 2010.

The Government submitted that the national investigation had established that on the night of 25/26 April 2005, unidentified armed men in camouflage uniforms had burst into the applicants’ property and had abducted Mr Balavdi Zhebrailov and the third applicant. The abductors had assaulted the third applicant and then released him.

The Government submitted some 280 pages from criminal case-file no. 47041 which was opened to look into the events of 26 April 2005. The submitted documents covered the period from April 2005 to December 2009. Many of the documents furnished by the Government were incomplete, such as witness statements submitted only in part. Some documents were illegible. The relevant information may be summarised as follows.

The local police were informed of the abduction of the Zhebrailov brothers at 2 a.m. on 26 April 2005. At about 2.15 a.m. on the same day a group of police officers arrived at the applicants’ property. They inspected the crime scene, seized a bullet cartridge found during their inspection and interviewed eight eyewitnesses, including the applicants. The interview records and police officers’ reports referred to the fact that the abductors had worn camouflage uniforms, carried assault rifles, used a UAZ vehicle ‒ with a beacon and a muddied licence plate bearing the inscription “Grozny” ‒ as well as a VAZ-99 vehicle with blackened windows and licence plate number “862”, and had fired shots into the air. In the third applicant’s interview record, he described in detail the circumstances of the abduction and the ensuing events, including his alleged ill-treatment. He also explicitly stated that he and his brother had been detained at the 2nd regiment’s premises and stressed that the men who had interrogated them and assaulted them had not concealed that they belonged to the police.

On 20 June 2005 the Urus-Martan district prosecutor’s office (hereinafter “the district prosecutor’s office”) instituted a criminal investigation into the events of 25-26 April 2005 under Article 126 § 2 of the Criminal Code (aggravated kidnapping).

On 27 June 2005 the first applicant was granted victim status in case no. 47041.

The ballistic examination of the bullet cartridge seized at the crime scene, carried out on 30 June 2005, established that the bullet could have been shot by an AK-47 assault rifle and that the gun could be identified.

In the ensuing period between June 2005 and December 2009 the investigators mainly re-interviewed the individuals questioned by the police on 26 April 2005. They also questioned some further witnesses ‒ residents of Gekhi ‒ some of whom confirmed the applicants’ account of events; others stated that they had learnt about the abduction from the applicants. The third applicant’s uncle, R.Zh., interviewed in September 2007, stated that when the third applicant had arrived at his home in Grozny on the morning of 26 April 2005, his head had been covered in blood. When interviewed as a witness in October 2009, Z. stated that after the third applicant’s return home in April 2005, she had treated him for wounds to his head and had given him pain-killing injections.

The investigation in case no. 47041 was suspended in August 2005, March 2006, September 2007, November 2009 and on the latest occasion on 4 March 2010. Supervising prosecutors repeatedly set aside those decisions, ordering the investigation to be resumed and pointing to the investigators’ failure to take a number of important steps. For instance, on 26 January 2006, 21 August 2007 and then again, as late as on 23 October 2009, the supervising prosecutors pointed out the investigators’ failure to inspect the premises of the 2nd regiment and verify the allegation of the involvement of its officers in the crime with the participation of the third applicant, in spite of his specific assertions that he had been detained on those premises and that the regiment officers had not concealed that they belonged to the police. The investigators, who had on various dates forwarded several information requests to local law-enforcement agencies to verify those allegations, were instructed to resume the proceedings and take the necessary steps. From the documents submitted it is unclear whether the requested steps were taken.

The investigation in case no. 47041 is still pending.

On 23 April 2007 the Urus-Martan District Court dismissed as unfounded the applicants’ complaint that the investigation had been ineffective and that the investigators’ had refused to allow the applicants access to the case file. The court stated that the investigators had taken all possible investigative steps and that the applicants’ arguments concerning the procrastination of the investigation were not convincing.

On 14 February 2006 the investigators granted the third applicant victim status in criminal case no. 47041 and ordered his medical examination.

Expert report no. 152 of 20 February 2006 stated that the third applicant had two scars on the top of the head, which could have been sustained in April 2005 as a result of the impact of a blunt, firm object.

On 1 March 2006, in the light of the expert’s findings, the investigators also classified the abductors’ acts under Article 116 § 1 of the Criminal Code (application of physical force to another person, causing physical pain but not resulting in health damage).


Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1976 and lives in Moscow.

On 13 October 2006 the Zamoskvoretskiy District Court in Moscow remanded the applicant in custody on the charge of fraud. Subsequently the District Court extended the applicant’s detention on 8 December 2006 and on 2 February, 10 April, 29 May and 18 September 2007. Each time the District Court attached preponderant weight to the gravity of the charges against the applicant. On 21 May and 4 July 2007 the Moscow City Court rejected the appeals against the detention orders of 10 April and 29 May 2007, respectively.

The City Court authorised further extensions of the applicant’s detention on 28 September and 26 December 2007. The Supreme Court rejected his appeals on 31 October 2007 and 15 February 2008, respectively.

On 14 February 2008 the case was submitted for trial. On 20 February, 30 June and 17 December 2008 and 18 March and 18 June 2009 the District Courts in Moscow prolonged the applicant’s detention pending trial, referring mainly to the gravity of the charges. The most recent extension order was issued for the period until 19 September 2009.

Between 27 January 2007 and 16 May 2008 the applicant was detained in the IZ-77/1 remand prison in Moscow. The prison was filled beyond the design capacity and cells were severely overcrowded. He was later transferred to another remand prison in Moscow.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

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

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

On 21 May 2004 at 08.15 two household workers (“M.R.” and “I.B”) discovered the body of the applicant’s daughter (“S.J.”) at her home in Ventspils. She had a rope around her neck, the other end of which was thrown over the top of a door and tied to the door handle on the other side.

At 08.20 M.R. and I.B. reported the incident to the Ventspils City and District Police Department of the State Police (“the Ventspils State Police”). Three police officers from the Ventspils State Police were dispatched to S.J.’s home. S.J.’s husband (“A.J.”), who worked as a policeman-driver for the Ventspils State Police, arrived separately.

The Government have provided details of the investigation which followed. Their account has not been disputed by the applicant.

From 09.40 to 10.35 officers G.A. and A.G. from the Ventspils State Police examined S.J.’s home. They prepared the procedural record, photographed the scene and seized material evidence. Later that same day S.J.’s body was transported to the Ventspils City Morgue and A.G. requested an autopsy and forensic medical examination of the body. He also submitted an internal report to the Head of the Ventspils State Police which stated that he and G.A. had arrived at the scene, established that S.J. was dead, arranged for the transportation of the body, examined the scene, and took statements. In the report he noted that the persons transporting S.J.’s body to the morgue had removed the rope from around her neck.

In a letter dated 23 May 2005 a Prosecutor from the General Prosecutor’s Office admitted to the applicant that the examination of the scene by A.G. had not been done “qualitatively” or in compliance with the requirements of the Criminal Procedure Law. He had been subjected to disciplinary action and prosecuted under Article 319(1) of the Criminal Law (Failure of a State Official to Perform His Duties) and under Article 327(19) (Forgery of a Document by a State Official). The second prosecution would appear to relate to the forgery of a Doctor’s signature on a document purporting to set out an expert’s conclusion. A.G. was later released from criminal liability.

In the same letter the Prosecutor from the General Prosecutor’s Office informed the applicant that another officer from the Ventspils State Police (“A.M.”) had been subjected to disciplinary action for violating the Criminal Procedure Law when verifying the fact of S.J.’s death. It is not clear whether or not the disciplinary action related to the examination of the scene on 21 May 2004.

On 24 May 2004 the police took statements from the applicant and S.J.’s sister (“B.L.”), both of whom expressed the opinion that S.J. had no reason to commit suicide.

On 25 May 2004 a forensic expert, having examined S.J.’s body, concluded that she had died on 21 May 2004 and attributed the cause of death to mechanical asphyxiation. The report stated that there was no evident sign of violence, aside from the strangulation, although it noted that S.J. had bruises on her shoulder, hands and legs and three scratches on her right palm which could have been acquired up to three days prior to her death.

The following day the police obtained statements from a neighbour (“M.N.”) and two of S.J.’s colleagues. M.N. recalled that between 22.00 and 22.15 on 20 May 2004 she had observed a red vehicle similar to the one driven by A.J. parked in the courtyard of the building where S.J. and A.J. lived. Another neighbour (“Ma.N.”) subsequently recalled seeing such a vehicle in the courtyard from 22.00 to 22.30.

S.J.’s colleagues confirmed that she had finished her shift in the shop she worked in at 22.00 and headed to an office where she had a second job as a cleaner. Another witness later confirmed that she had arrived at the office at 22.15 and left at 22.45 22.50.

The Government submitted that on 27 May 2004 the Kurzeme Regional Division of the Organised Crime Combating Department (“the OCCD”) requested a list of incoming and outgoing calls to S.J.’s mobile phone from her operator.

On 30 May 2004 the son of S.J. and A.J. (“Av.J.”) made a statement. He said that A.J. had picked him up at home at 18.00 on 20 May 2004. He had remained with his father until 23.00, when his father returned to work and he went to the home of his sister (“D.J.”). A colleague of A.J. later reported going with him to the cafeteria in the police station at 23.00 and the chief officer on duty that night confirmed that A.J. had remained with the squad until his shift ended at 07.00 on 21 May 2004. He also told the investigators that after midnight the police station was locked and the main gate closed, with the consequence that no person – or vehicle – could leave the premises without his permission.

On 1 June 2004 Officer A.M. performed a further examination of S.J.’s home. He examined marks and traces left by the rope on the door and seized several samples for forensic traceology examination.

On 8 July 2004 a household worker gave a statement to the police confirming that on 20 May 2004 A.J. had returned home at 18.00 to collect Av.J. On 20 July 2004 D.J. confirmed that A.J. and Av.J. had arrived at her home at 23.00 that night.

On 21 July 2004 the State Forensic Expertise Centre reported that the groove marks on the upper fragment of the door had been chafed into the wooden surface by the rope attached to S.J.’s neck. Those marks could only have been made by pulling the weight of S.J.’s body towards the door handle, to which the rope was subsequently tied.

On 23 July 2004 the OCCD initiated criminal proceedings to investigate the aggravated murder (murder with mercenary intent) of S.J. From this point onwards, Inspector V.L. of the OCCD was responsible for the investigation under the supervision of the General Prosecutor’s Office. A.L. was the Prosecutor in charge and he reported to A.B., who was the supervising Prosecutor.

On 23 July 2004 A.J. was interrogated as a suspect and he was informed that he could not change his registered place of domicile. Av.J., D.J. and B.L. were questioned as witnesses.

A couple of days later, M.N. and Ma.N. were again interviewed about the red vehicle parked in the courtyard of S.J.’s home. Both indicated that they had believed the vehicle to be the one driven by A.J.

Throughout the following months witnesses were interviewed, including A.J. (who was questioned repeatedly), his relatives and acquaintances, S.J.’s relatives (including the applicant), the couple’s neighbours, a number of police officers, S.J.’s employer and some of her colleagues, her household workers and her dentist. The General Prosecutor’s Office also instructed the OCCD to order further forensic tests, although records indicate that many were in fact ordered by the Ventspils State Police.

Attempts were made to establish the exact time of death but on 11 August 2004 the forensic expert indicated that “considering that the forensic medical examination of S.J.’s body had been performed four days after it was found and that livor mortis appears within the first hour of death, a more precise time of death could not be established”.

A.J.’s uniform and the seat covers of his service car were seized on 9 August 2004 and DNA samples were taken from him. On 9 September 2004 the expert reported that there were several different DNA samples on the rope used to hang S.J. but none belonged to A.J. The expert was unable to establish the gender identification of the samples. On 16 September 2004 an expert concluded that some fibres found on S.J.’s coat possibly came from A.J.’s car seat but the results were inconclusive.

Further tests were also carried out on S.J.’s body, but no injuries were found which would indicate a struggle or self-defence.

Furthermore, S.J.’s bank records were requested, as were details of all red vehicles matching the description of the one seen at the scene of the crime. S.J.’s family members were also questioned repeatedly about whether or not she had kept a personal diary. On 23 March 2005 the diary appears to have been handed over to the police and attached to the criminal file.

On 1 December 2006 a further forensic traceology report suggested that there was a “high probability” that if S.J. had committed suicide the grooves on the top of the door would not have appeared as they did.

On 21 March 2007 A.J. was again declared a suspect. Further DNA tests were performed on the rope and experiments were carried out to determine the driving time from Ventspils Police Station to S.J.’s home. The results of the latter test appeared to confirm A.J.’s alibi and on 13 November 2008 the decision to once again declare him a suspect was quashed.

On 11 January 2011 a new OCCD investigator (“A.Jo.) assumed jurisdiction over the case file.

On 20 August 2007 the OCCD acknowledged D.J. (the applicant’s granddaughter) as a victim in the criminal proceedings.

On 26 May 2004 the applicant wrote to the Head of the OCCD alleging that S.J. had been murdered. The OCCD informed the applicant on 2 July 2004 that the circumstances of S.J.’s death were still being investigated.

The applicant subsequently submitted further complaints to the Prosecutor’s Office concerning the conduct of the investigation. In the course of these complaints, he implied that A.J. was directly or indirectly implicated in S.J.’s murder and that his colleagues on the police force were deliberately obstructing the investigation.

On 22 December 2004 A.Mi., a senior Prosecutor of the Prosecutor’s Office attached to the Kurzeme Regional Court, informed the applicant that an in-depth investigation was being carried out. It was being conducted in an impartial manner and there was no evidence of any deliberate obstruction by the police. A.Mi. noted that the investigation was complicated and was supervised by another prosecutor from the same office (“A.L.”).

On 23 May 2005 a Prosecutor from the General Prosecutor’s Office informed the applicant that the investigation was still ongoing and that the evidence which had been gathered was not sufficient to bring charges against any specific persons. The Prosecutor admitted that A.G. had not carried out the initial examination of the scene of S.J.’s death “qualitatively”, that both A.G. and A.M. had violated the requirements of the laws on criminal procedure and that the two officers had received disciplinary penalties. In addition, criminal proceedings had been initiated against A.G. for criminal inaction of a State official (section 319 of the Criminal Law) and for the forgery of official documents (section 327 of the Criminal Law). However, on 14 March 2005 the Prosecutor’s Office attached to the Kurzeme Regional Court had decided to release A.G. from criminal liability pursuant to Article 54 of the Code of Criminal Procedure.

On 17 July 2007 the applicant wrote to A.L., the supervising Prosecutor, and asked to see certain expert reports and other specific information concerning the investigation into S.J.’s death. More particularly, he asked for additional information concerning the violations committed by the police officers A.M. and A.G. He also enquired when the case would be sent to a court.

On 20 August 2007 the Prosecutor replied to the applicant. He informed him that the pre-trial investigation was still ongoing and a forensic biological analysis of DNA was being carried out. Further investigative steps would be planned after receiving the results of that analysis and it was therefore impossible to predict the date of the completion of the pre-trial investigation. The applicant was further informed that under the Law of Criminal Procedure he had no right to read the case file or to receive copies thereof. The only persons who had such a right were the accused and the victims, but only after the completion of the criminal proceedings. With regard to the violations committed by the police officers, the applicant was advised to contact the Ventspils State Police.

On 10 September 2007 the applicant submitted a complaint to the Prosecutor General concerning the Prosecutors’ responses of, inter alia, 22 December 2004, 23 May 2005 and 20 August 2007. He principally complained that the investigation was being deliberately delayed in order to protect S.J.’s murderer(s).

The applicant’s complaint was forwarded to the Prosecutor’s Office attached to the Kurzeme Regional Court. On 1 October 2007 he received a response from A.Mi. informing him that the investigation and the gathering of evidence were continuing “in order to establish important facts”. Unspecified expert reports had apparently been ordered and their results were expected no earlier than December. Finally, the applicant was informed that his “allegation that the investigator and the supervising Prosecutor were not sufficiently active and were uninterested in establishing the truth were unfounded”.

On 26 October 2007 the applicant submitted a further complaint to the Prosecutor General. He criticised the Office of the General Prosecutor’s decision to forward his complaint to the Prosecutor’s Office attached to the Kurzeme Regional Court. He also denounced the response of 1 October 2007 as “passive and unfounded” and considered that the fact that it did not address the substance of his complaints demonstrated that A.Mi. was not interested in establishing the truth about S.J.’s murder.

On 13 November 2007 the Prosecutor General gave a final response to the applicant’s complaint. In the relevant parts of the response the applicant was informed:

“... [the senior prosecutor A.M.] in his response of 1 October [2007] informed you that the investigation of the criminal case ... was ongoing, that expert reports had been ordered, and that after receiving expert reports further investigative steps would be planned. While criminal proceedings are pending, the materials in the criminal case file are an investigative secret (section 375 of the Law of Criminal Procedure), which is why it is impossible to give you more specific information concerning the investigative steps that have been taken and will be taken. It might be for that reason that you have formed an incorrect opinion that the investigation is being intentionally delayed and not conducted with the aim of establishing the culprit; however, such an opinion does not find support in the steps actually taken in the criminal proceedings.

In the course of the pre-trial investigation of the criminal case ... a sufficient amount of investigative steps were carried out: more than 15 expert reports were ordered and received and the need to order [additional] expert reports and the planning of further investigative steps was determined by the [findings of the] expert reports already received. In addition, the preparation of expert reports took significant time; more than 40 witnesses were questioned and other investigative steps carried out. Unfortunately the pre-trial investigation to this date has not allowed us to establish the circumstances [of S.J.’s death] or the culprit.”


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1973 and until his arrest lived in the town of Volzhskiy, Volgograd Region.

On 16 October 2007 the applicant was arrested on suspicion of attempted drug trafficking and placed in custody. He remained in detention throughout the investigation and trial.

On 28 May 2008 the Volzhsk Town Court (“the Town Court”) convicted the applicant of attempted drug trafficking and sentenced him to six years’ imprisonment in a high-security correctional colony. The court noted that the term of the applicant’s detention was to be calculated with effect from the date of his arrest on 16 October 2007.

On 9 September 2008 the Volgograd Regional Court upheld the sentence on appeal. It mentioned, inter alia, that at the time of the hearing the applicant was detained in temporary detention facility no. IZ-34/5 in the town of Leninsk in the Volgograd Region.

The applicant asked the Presidium of the Volgograd Regional Court to re-examine his case by way of a supervisory review. In February and March 2009 the applicant submitted additional observations to the Presidium, which were dispatched from facility no. IZ-34/5. The application for supervisory review was rejected.

The applicant’s request for a re-examination of his case by way of a supervisory review was, however, granted by the Supreme Court of Russia, which on 13 January 2010 reduced the applicant’s sentence to five years and six months’ imprisonment.

Having served his sentence in full, the applicant was released from detention on 15 May 2013.

On 15 July 2013 the applicant was arrested on suspicion of another episode of attempted drug trafficking.

On 27 September 2013 the Town Court convicted the applicant of attempted drug trafficking and sentenced him to three years’ imprisonment in a high-security correctional colony.

On 11 October 2014 the applicant died in detention.

The applicant and the Government offered different versions of the applicant’s detention and treatment in the temporary detention facility.

According to the applicant, from 18 October 2007 to 27 June 2009 he was detained mostly in facility no. IZ-34/5. His letters to the Court dated 13 May and 7 December 2008 and 26 August 2009 were dispatched from that facility. A letter from the Court dated 8 June 2009 was sent to and received by the applicant in the same facility.

The applicant also submitted that on several occasions he had been transported to court hearings and to penal medical institution no. LIU-15 in Volgograd (“institution no. LIU-15”) and that he had spent very short periods, in transit, in temporary detention facility no. IZ-34/1 of the town of Volgograd. In particular, the applicant had been sent to institution no. LIU15 in 2008, where he had undergone successful treatment for tuberculosis. A chest X-ray examination on 14 January 2008 indicated that his tuberculosis had been cured, although extensive calcification and fibrosis remained in his lungs. On 17 January 2008 a medical commission confirmed his recovery. The applicant was prescribed anti-relapse treatment, but this was never provided to him after his return to the temporary detention facility.

The applicant filed a number of complaints ‒ for instance with the Prosecutor’s Office of the Volgograd Region ‒ arguing that he had not been afforded adequate medical treatment in facility no. IZ-34/5. On 31 March 2008 the Prosecutor’s Office re-directed the applicant’s claim to the Federal Service for the Execution of Sentences in the Volgograd Region. A month later the authorities rejected the applicant’s claim as ill-founded. They confirmed that from 18 October 2007 he had been detained in facility no. IZ-34/5. Referring to the decision of the medical commission on 17 January 2008, the authorities held that the applicant’s tuberculosis had been fully cured.

The Government, relying on a certificate issued on 18 December 2013 by the head of facility no. IZ-34/1, asserted that from 15 July 2007 to 22 October 2009 the applicant had been detained in that facility. In their observations of 31 January 2014, however, the Government mentioned the applicant’s detention in facility no. IZ-34/5, but did not provide any further details.

Despite the Court’s request for the applicant’s entire medical file, the Government submitted no medical documents dating from the period after his arrest and up until 29 October 2009. They merely noted that the applicant had contracted hepatitis C and tuberculosis before his arrest. The applicant did not dispute that submission.

On 27 June 2009 the applicant was transferred to correctional colony no. IK-154/9 of the Volgograd Region.

According to the applicant, the medical service in the colony was very poor. The colony did not employ a tuberculosis specialist and the detainees’ access to drugs, which were often out of stock, was limited. The applicant only received basic anti-fever medication.

The Government did not provide any information regarding the medical assistance afforded to the applicant in colony no. IK-154/9 and did not submit his medical record or any medical certificates from his time there.

On 29 October 2012, after the applicant complained of coughing up blood, he was transferred to institution no. LIU-15.

The Government provided the Court with copies of the applicant’s medical documents for the period 29 October 2012 to 15 May 2013.

The medical records show that on admission to institution no. LIU15 the applicant had undergone a general medical examination, a chest X-ray examination and a clinical blood test. A sputum culture test was performed the next day. The applicant was diagnosed with recurrent smear-positive infiltrative tuberculosis of the upper lobe of his left lung at the stage of lung tissue destruction caused by mycobacterium tuberculosis (“MBT”). He was prescribed protiocomb, a complex medicine containing protionamide, pyrazinamide, ethambutol hydrochloride, lomefloxacin hydrochloride and vitamin B6.

On 6 November 2012 the applicant was tested for HIV, syphilis, hepatitis B and C. The test confirmed his hepatitis C infection, but no antibodies associated with the other infections were found.

A week later the applicant again underwent a chest X-ray examination. It revealed that the cavity in the lung had decreased in size, and some negative changes in the lung tissues had progressed further.

On 20 November 2012 the applicant was examined by a doctor, who noted in the “epicrisis” (medical report issued on the applicant’s discharge) that no significant changes in the applicant’s health had occurred and prescribed continued treatment with protiocomb and ciprofloxacin, an antibiotic used to treat a number of bacterial infections.

On 1 December 2012 the applicant’s treatment was modified. He was prescribed a combination of anti-tuberculosis drugs and injections. A chest X-ray examination on 19 December 2012 showed no changes in the applicant’s lungs.

The applicant sent an application to the Dzerzhinskiy District Court of the town of Volgograd seeking early release on medical grounds. That request was dismissed on 27 December 2012 upon the court’s finding that the applicant’s state of health did not warrant his release from detention.

In February 2013 the applicant’s blood was twice taken for testing and his liver function was tested for the first time. On three further occasions in the same month the institution carried out a sputum culture test and also performed the first drug susceptibility test. The test was smear-positive. It revealed that the MBT was resistant to streptomycin. On 13 and 19 February 2013 the applicant underwent a chest X-ray examination and a tomography examination. They showed no changes. The treatment regimen was modified. The applicant was prescribed, among other medicines, pyrazinamide, ethambutol, prothionamide, cycloserine, rifampicin and isoniazid.

As follows from the epicrisis of 27 February 2013 and a “regime violation record” dated 6 March 2013 signed by two deputy heads of institution no. LIU-15 and the head of the detention ward, the applicant refused to take the drugs pyrazinamide, ethambutol, prothionamide and cycloserine ‒ citing their adverse effects on his health through inducing negative development of his hepatitis C ‒ and claiming that doctors should first treat his hepatitis. According to the same record, the applicant also refused to give a written explanation of the reasons for his refusal.

On 15 March 2013 the applicant’s X-ray examination established increased infiltration of the left lung tissue. According to a medical certificate dated 20 March 2013, his health had deteriorated due to his consistent refusal to take the prescribed medicines.

According to an extract from the applicant’s medical history, on an unspecified date he agreed to take isoniazid, rifampicin and capreomycin on condition that he would be provided with hepatoprotectors.

On 15 May 2013 the applicant was released from detention with a diagnosis of infiltrative contagious tuberculosis of the left lung at the stage of lung tissue destruction.

From 27 May to 15 July 2013 the applicant received in-patient medical treatment in a civilian anti-tuberculosis hospital, where he was diagnosed with active chronic fibrous-cavernous pulmonary tuberculosis at the stage of infiltration with bacilli emission, as well as hepatitis C. There is no information in the Court’s possession concerning the details of the applicant’s treatment during that period.

The parties did not provide the Court with any information about the applicant’s detention and treatment after his renewed arrest on 15 July 2013. The applicant’s letters to Ms Yusupova submitted to the Court indicate that between 16 July and 21 October 2013 he was detained in facilities nos. 34/5 and 34/1, that he had no access to medical treatment, and that institution no. LIU-15 had refused to admit him for treatment before his conviction.

On 18 October 2013 the applicant underwent a chest X-ray examination which indicated negative changes in his right lung. The volume of his left lung had decreased, its tissue was infiltrated and it contained a number of cavities.

Following the fresh conviction, on 21 October 2013 the applicant was admitted to institution no. LIU-15. He was examined by a doctor, who diagnosed him with hepatitis C and MBT positive infiltrative tuberculosis of the left lung at the stage of tissue destruction. The doctor ordered blood, urine, sputum culture and drug susceptibility tests and an electrocardiogram examination. The applicant was prescribed a long list of medicines, including capreomycin, isoniazid, ethambutol and hepatoprotectors.

A week later, after the results of the tests had been received, the applicant’s treatment was slightly modifed to include ofloxacin.

In the first half of November 2013 the applicant was examined on four occasions by doctors, who recommended continuing the prescribed treatment.

On 14 November the applicant’s electrocardiogram examination revealed that he had mitral insufficiency.

A medical record drawn up on 14 November 2013 by the applicant’s attending doctor indicated that the applicant had refused to take tuberculosis medicines on that date. The following entries in the applicant’s medical record dated 19, 21, 25, 27 and 29 November do not contain any similar information. The Government did not submit any other document (for instance, a regime violation record) showing that the applicant had refused to continue the treatment.

On 6 December 2013 a medical commission examined the applicant and established no significant changes in his condition. The most recent entry in the medical record, made on 16 December 2013, showed no significant development in his health.

No further information about the applicant’s treatment was provided after 16 December 2013.

The applicant was certified as having second-degree disability on 1 May 2014.

A medical panel examined the applicant on 15 August 2014 with the aim of determining whether his state of health warranted early release. The panel stated that the applicant was suffering from multi-drug resistant progressive tuberculosis aggravated by cavernosal fibrosis of the lungs and cardiopulmonary decompensation in the third stage. The applicant’s left lung was completely destroyed by the infection. The panel concluded that his state of health could warrant his release on parole.

On 11 October 2014 the applicant died from tuberculosis in institution no. LIU-15.

The documents from the case-file, including a court judgment, indicate that the applicant was not married. According to certificate no. 35/6/9-Ю-1ГР issued by institution no. LIU-15 on 20 October 2014, when being asked about his relatives, the applicant stated that he had a partner, Ms Yusupova. The authorities noted that statement in the applicant’s personal file and allowed Ms Yusupova to visit him in detention as his de facto wife. By a telegram on 11 October 2014 the authorities informed Ms Yusupova of the applicant’s death, addressing her as his wife.

According to Ms Yusupova’s submissions, which were not contested by the Government, she was in a close family-like relationship with the applicant from 2010 until his death in detention. She visited him on many occasions, sent him letters and parcels. In 2013 when the applicant was released from detention they lived together and ran a common household.

Ms Yusupova submitted that she had had intense and intimate correspondence with the applicant before his death. She provided the Court with two letters sent to her by the applicant in September 2013 to confirm that they had shared strong feelings for each other.

On 11 September 2013 the applicant formally authorised Ms Yusupova to withdraw money from his bank account. In his letter to the Court on 1 March 2014 the applicant expressly asked the Court to award her non-pecuniary damage if he died.


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

The applicant was born in 1960 and lives in Budapest.

On 1 September 2006 the applicant brought an action against the Budapest XIV District Mayor’s Office challenging an administrative decision whereby the registration document of her car had been revoked.

On 10 September 2010 the Budapest Regional Court adopted a final judgment quashing the administrative decision in question.

It appears that the ensuing administrative proceedings to have the registration document reissued have been pending ever since.


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

Jon Fridrik Kjølbro;Georges Ravarani;Ksenija Turković

The applicant was born in 1974 and lives in Bolu. At the material time he was a military official.

On 18 February 2011 and 24 February 2011 the applicant’s superiors imposed on him an administrative restriction for 8 days and room confinement for 5 days as disciplinary penalties. The penalties were enforced between 4 and 9 April 2011 (5 days), 11 and 14 April 2011 (3 days), 29 April and 4 May 2011 (5 days).


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

The applicant was born in 1976 and lives in Metsamor.

On 23 July 2011 the applicant was arrested on suspicion of threatening to use violence against the investigator in charge of the criminal case against his ex-wife.

On 25 July 2011 the applicant was charged with the same crime.

On the same date the investigator filed a motion with the Armavir Regional Court seeking to have the applicant detained for a period of two months.

On the same date the Regional Court examined and granted the investigator’s application, ordering the applicant’s detention for a period of two months, namely until 23 September 2011. It found that the motion was substantiated, since the applicant partially admitted his guilt and the case materials provided sufficient grounds for believing that he might abscond and obstruct the investigation, having regard to the nature and degree of dangerousness of the offence in question.

On an unspecified date the applicant lodged an appeal seeking to cancel the detention order and claiming that the investigating authority had not obtained any materials or evidence to substantiate the reasons for which it had sought to detain him and that they failed to take into account the applicant’s personality.

On 11 August 2011 the Court of Appeal dismissed the appeal, finding that the applicant’s detention was based on a reasonable suspicion, and found the grounds invoked by the Regional Court in justification of detention to be sufficient. It also noted that less severe measures were insufficient to safeguard the applicant’s proper conduct.

On 19 August 2011 the applicant lodged a cassation appeal against the decision of 11 August 2011 of the Court of Appeal.

On 9 September 2011 the investigation into the applicant’s case was concluded and the case was transferred to the Regional Court for trial.

On 13 September 2011 the applicant’s criminal case was set down for trial. By the same decision the trial court decided that the applicant’s detention on remand was “to remain unchanged”.

On 17 September 2011 the Cassation Court returned the applicant’s cassation appeal as it was unsubstantiated and did not met the formal requirements imposed by law.

On an unspecified date the applicant filed a motion with the Regional Court seeking to be released. He argued, inter alia, that there were not sufficient reasons to keep him in detention.

On 13 December 2011 the Regional Court examined and dismissed this motion. The Regional Court found that the applicant’s detention was ordered by its decision of 13 September 2011. It also noted that the existing materials of the case were sufficient to conclude that the applicant’s detention was justified.

On 19 December 2011 the applicant lodged an appeal against this decision.

On 28 December 2011 the Criminal Court of Appeal left the appeal unexamined. The Criminal Court of Appeal found that there was no possibility under domestic law to appeal against the decision of the District Court “to leave the applicant’s detention unchanged”.

The applicant lodged an appeal against this decision.

On 20 March 2012 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit.

On 11 May 2012 the applicant filed a new motion with the Regional Court seeking to be released. He argued, inter alia, that the collection of evidence against him had been finalised and that there were not sufficient reasons to keep him under detention.

On 4 June 2012 the Regional Court dismissed the applicant’s motion having regard to the dangerousness and nature of the alleged offence and the fact that the applicant might abscond and obstruct the investigation.

On 14 June 2012 the applicant lodged an appeal against this decision.

On 19 June 2012 the Criminal Court of Appeal left the applicant’s appeal unexamined on the same grounds as indicated in its decision of 28 December 2011.

On 17 August 2012 the Court of Cassation declared the applicant’s appeal inadmissible for lack of merit.

On 6 August 2012 the Regional Court found the applicant guilty as charged, imposing a sentence of one and a half years’ imprisonment.


The applicant was born in 1962 and lives in Velika Reka.

He was employed by Holding Kompanija “Komgrap” – DD “Komgrap gradnja”, a socially-owned company based in Belgrade (hereinafter “the debtor”).

On 3 February 2006, the First Belgrade Municipal Court ordered the debtor to pay the applicant specified amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. This judgment became final on 31 July 2006.

On 23 October 2006, upon the applicant’s request to that effect, the Fourth Belgrade Municipal Court accepted the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs.

On 24 December 2010 the Belgrade Commercial Court opened insolvency proceedings in respect of the debtor (St. 4372/2010).

On 22 June 2011 the applicant submitted his respective claims.

On 31 October 2010 the Belgrade Commercial Court dismissed these claims as out of time. The Commercial Appeals Court upheld that decision on 26 June 2012.

The insolvency proceedings against the debtor are still ongoing.

On 23 April 2010 the applicant lodged a constitutional appeal.

The Constitutional Court dismissed his appeal on 14 July 2011.

On 13 March 2012 the applicant lodged a new constitutional appeal.

On 26 January 2012 the Constitutional Court dismissed again his appeal. On 28 December 2012 that decision was delivered to the applicant.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Ms Jadwiga Wasiewska, is a Polish national, who was born in 1936 and lives in Bydgoszcz. She was represented before the Court by Mr A. Drozd, a lawyer practising in Bydgoszcz.

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

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

In 1997 the applicant and her husband T.W. divorced. The applicant submitted that prior to the divorce her former husband had thrown her out of their flat. He changed the locks and prevented the applicant from entering to take personal items belonging to her, their daughter and granddaughter.

On 30 April 2002 the applicant and her former husband reached a friendly settlement as regards the division of their marital property, i.e. the flat. The applicant became the sole owner of the flat against the payment to T.W. of 32,000 Polish zlotys (PLN) until 2 September 2002. Her former husband retained the right to stay in the flat until that date. However, T.W. made it impossible for the applicant to sell the flat so that she could have the money to pay him his share.

The applicant’s former husband obtained an enforcement order against the applicant with the result that part of her retirement pension was seized by the bailiff to help pay off her debt. She was also obliged to pay half of the maintenance costs for the flat.

In 2006 the applicant brought a civil case for eviction against her former husband. On 22 September 2008 the Bydgoszcz District Court allowed the applicant’s action and ordered the eviction of T.W. At the same time it ordered that the defendant be allocated social housing by the municipality. The execution of the judgment was to be stayed until he had been allocated social housing.

The applicant appealed, complaining about the part of the court’s judgment obliging the municipality to award her former husband social housing. Her appeal was dismissed on 9 April 2009 by the Bydgoszcz Regional Court. The appeal lodged by T.W. was rejected for formal reasons.

On 29 March 2010 the Bydgoszcz District Court issued an order confirming that the judgment of 22 September 2008 was final.

Subsequently T.W. instituted proceedings in which he sought to quash the enforcement order arguing that the flat allocated to him by the municipality had been in bad condition. On 29 June 2011 the Bydgoszcz Regional Court finally dismissed his application to quash the enforcement order.

On an unspecified date the applicant made use of a remedy provided by the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki– “the 2004 Act”). She complained about the length of the enforcement proceedings conducted by the court bailiff.

On 9 November 2011 the Bydgoszcz Regional Court dismissed the complaint finding that there had been no delay on the part of the bailiff.

The applicant’s former husband refused two offers of social housing in 2010. In 2012 he was offered another flat which had to be refurbished before he could move in.

The applicant submitted that in July 2013 T.W. finally moved out and she regained possession of her flat.

On an unspecified date in 2009 the applicant brought a civil claim for damages against her former husband, T.W. She relied on section18 (1) of the 2001 Act claiming that T.W. had been living in her flat without legal title to it. She sought compensation from him in the amount calculated in reference to the cost of rent for a similar apartment on the free market.

On 15 April 2001 the Bydgoszcz DC partly granted the action and awarded the applicant PLN 17,600 (approximately 4,200 euros (EUR)) in compensation for T.W.’s use of the flat without legal title. The court established that since the eviction order the applicant’s former husband had no right to stay in the flat and since he continued to live there he had been liable to pay compensation. T.W. appealed.

On 22 September 2011 the Bydgoszcz Regional Court allowed the appeal and dismissed the applicant’s action. The court agreed with the lower court’s findings as to the facts of the case, in particular that T.W. had no right to stay in the flat. However the appellate court noticed that since T.W. had had the right to social housing, on the basis of section 18 (3) of the 2001 Act, he had been liable to pay only his share of rent. There was no legal basis to order him to pay compensation on the basis of free-market calculations. Since the applicant sought compensation and not the reimbursement of half of the maintenance costs, the court dismissed her action.

The December 2006 Amendment to the Act of 21 June 2001 on the protection of the rights of tenants, housing resources of municipalities and on amendments to the Civil Code (Ustawa o ochronie praw lokatorów, misszkaniowym zasobie gminy I o zmianie kodeku cywilnego, “the 2001 Act”) added a new provision (subsection (5)) to section 18, which makes the municipality liable, under the rules of tort, for any damage sustained by the landlord on account of the municipality’s failure to provide the tenant with social housing. This provision reads:

“(5) If the municipality has not provided social housing to a person who is entitled to it by virtue of a judgment, the landlord shall have a claim for damages against the municipality on the basis of Article 417 of the Civil Code.”

Consequently, the municipality’s failure is statutorily deemed to be an “unlawful omission” within the meaning of Article 417 of the Civil Code.

Article 417 of the Civil Code reads in so far as relevant:

“1. The State Treasury, municipality or another legal person wielding public power by virtue of the law shall be liable for damage caused by an unlawful act or omission in the exercise of that power.”

The Supreme Court, in its ruling of 25 June 2008 (no. CZP 46/2008) concerning a claim for damages under section 18(5) of the 2001 Act read in conjunction with Article 417 of the Civil Code, confirmed that a landlord was entitled to full compensation for any damage sustained on account of a municipality’s failure to provide social housing to a tenant.

Pursuant to section 18 (3) of the 2001 Act, as long as the municipality has not supplied social housing, the tenant pays the same amount of rent that he would have paid if the tenancy had not been terminated. According to section 18 (1) and (2), other tenants in respect of whom the tenancy has terminated and who have not vacated the flat pay compensation to a landlord corresponding to the market-related rent that the landlord could normally receive. If such compensation does not cover losses incurred by a landlord, he may seek supplementary compensation.


CASE OF DUBSKÁ AND KREJZOVÁ v. THE CZECH REPUBLIC

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dmitry Dedov;Egidijus Kūris;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Kristina Pardalos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Lemmens;Síofra O’Leary

The applicants were born in 1985 and 1980 and live in Jilemnice and Prague respectively.

The applicant gave birth to her first child in hospital in 2007 without any complications. According to her, during the birth the medical personnel present were urging her to agree to undergo various kinds of medical intervention even though she had expressly stated her wish not to be subjected to any unnecessary medical treatment. She was also forced to give birth in a position she did not find comfortable. She wanted to leave the hospital a few hours after the birth as both she and the baby were healthy, but a doctor ordered her to stay in the hospital. She therefore did not leave until the next day, when she presented a letter from her paediatrician, who confirmed that the applicant would take care of the child.

In 2010 the applicant became pregnant for the second time with an expected delivery date in the middle of May 2011. The pregnancy was free from complications and the medical examinations and tests did not indicate any problems. Since she considered that giving birth in a hospital had been stressful for her, the applicant decided to give birth at home and searched for a midwife to assist at the birth. However, she was unable to find any midwife who was willing to assist her with a home birth.

On 5 April 2011 she wrote to her health-insurance company and to the Liberec Regional Office (krajský úřad) asking for help in finding a midwife.

On 7 April 2011 the health-insurance company replied that Czech legislation did not provide for the possibility of a public health-insurance company covering costs arising from home births and that it therefore had no contracts with any health professionals providing such services. Moreover, prevailing expert medical opinion did not approve of home births.

In a letter of 13 April 2011 the Regional Office added that the midwives listed in its register of health professionals were, in any event, only allowed by law to attend births at premises possessing the technical equipment required by Decree no. 221/2010 and not in a private home.

Not having found any health professional to assist her, the applicant gave birth to her son alone at home on 11 May 2011.

On 1 July 2011 she lodged a constitutional appeal (ústavní stížnost), complaining that she had been denied the possibility of giving birth at home with the assistance of a health professional, in violation of her right to respect for her private life.

On 28 February 2012 the Constitutional Court (Ústavní soud) dismissed the appeal, holding that it would be contrary to the principle of subsidiarity for it to decide on the merits of the case, because the applicant had not exhausted all the available remedies, which included an action for protection of personal rights under the Civil Code and an application for judicial review under Article 82 of the Code of Judicial Administrative Procedure. It nevertheless expressed its doubts as to the compliance of Czech legislation with Article 8 of the Convention and asked the relevant parties to initiate a serious and well-informed debate about new legislation. Nine out of the fourteen judges attached separate opinions to the decision, in which they disagreed with the reasoning behind it. Most of them considered that the Constitutional Court should have dismissed the appeal as an actio popularis and should have refrained from expressing any views on the constitutionality of the legislation concerning home births.

The applicant is the mother of two children who were born at home in 2008 and 2010 with the assistance of a midwife. The midwives attended the births without any authorisation from the State.

According to the applicant, before deciding to give birth at home, she had visited several hospitals, which had all refused her requests to deliver the baby without any medical intervention that was not strictly necessary. They had also refused to agree to her wish for uninterrupted contact with the baby from the moment of birth, as the regular practice was to take the child away from the mother immediately after the birth to be weighed and measured and for further medical observation for a period of two hours.

At the time of lodging the present application, the applicant was pregnant again, with an expected delivery in the middle of May 2012. The pregnancy was free from complications and she again wished to give birth at home with the assistance of a midwife. However, she was unable to find a midwife willing to assist because of the risk of a heavy fine if medical services were provided without authorisation. The applicant asked various authorities to help to find a solution.

In a letter of 18 November 2011 the Ministry of Health replied that it did not provide medical services to individual patients and that the applicant should make enquiries to the City of Prague (Město Praha), which, acting as a regional office, registered and issued licences to health professionals.

On 29 November 2011 the applicant’s health-insurance company informed her that the attendance of a health professional at a home birth was not covered by public insurance.

On 13 December 2011 the City of Prague informed the applicant that no midwife registered in Prague was authorised to assist with home births.

On 7 May 2012 the applicant gave birth to a child in a maternity hospital in Vrchlabí, 140 km away from Prague. She had chosen that hospital because of its reputation for respecting the wishes of mothers during delivery. Nevertheless, according to her, not all her wishes had been respected. Despite the fact that both she and the child had been healthy and that no complications had occurred during the birth, the applicant had had to stay in the hospital for seventy-two hours. The newborn baby had been separated from her after the birth, and before leaving the maternity hospital the remains of the child’s umbilical cord had been cut off despite her wishes to the contrary.