Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1968 and, at the time of the most recent communication from the applicant, was detained in Odessa.

On an unspecified date in 2006 K. mentioned in a confession given whilst being questioned by the police that the applicant had participated in the murder of Z., a gang member, in 2002.

On 28 July 2006 the applicant was stopped on the motorway and arrested by police, who also seized his car.

According to the applicant, the reasons for his arrest were not clearly explained to him. Between 28 July and 1 August 2006 he was transferred to various police units and questioned.

On 30 July 2006 the police found explosives in the car which had been seized from the applicant upon his arrest.

On 1 August 2006 criminal proceedings were instituted against the applicant on suspicion of the illegal possession of explosives and the murder of Z., and an arrest report was drafted and countersigned by the applicant.

On 4 August 2006 the Kyivskiy District Court of Odessa (“the Kyivskiy Court”) remanded the applicant in custody for ten days pending collection of information concerning his person.

On 10 August 2006 the applicant was formally charged with possessing illegal explosives and taking part in the murder of Z., which had been committed by an organised gang in 2002.

On 11 August 2006 the Kyivskiy Court remanded the applicant in custody for two months, to be counted from 28 July 2006. The court noted that the gravity of the charges against the applicant constituted a sufficient basis for the fear that he would abscond or interfere with the investigation if released.

On the same day the court made a separate ruling drawing the attention of the Minister of the Interior to breaches of the applicant’s rights whilst effecting his arrest. It noted, in particular, that the applicant’s undocumented detention between 28 July and 1 August 2006 was unlawful. The court asked the Minister to investigate the incident. The case file does not show any follow-up.

The applicant, acting through his lawyer, appealed against the detention order. He submitted that he had good references from his employer, had a family including three children who were minors, and that he had been suffering from health problems.

On 17 August 2006 the Odessa Regional Court of Appeal (“the Odessa Court of Appeal”) rejected the applicant’s appeal. The court noted, in particular, that taking into account the gravity of the charges against the applicant, together with the fact that he resided in Crimea ‒ whereas the investigative authority was located in Odessa ‒ there was reason to fear that he might abscond or interfere with the investigation if released.

On 25 September 2006 the Odessa Court of Appeal extended the applicant’s detention until 28 February 2007, stating in general terms that the applicant might abscond, pressure witnesses or interfere with the investigation if released.

On 23 February 2007 the applicant, represented by his lawyer, lodged an objection against the investigative authority’s request to extend his detention. He reiterated that he had a permanent address, a family with three children who were minors, and that prior to his arrest he had been engaged in lawful business activity. He referred to the aggravation of his ulcers and stated that during the time he had been held in custody, no investigative action involving him had been initiated and no new evidence of his involvement in any crime had been discovered.

On 26 February 2007 the Odessa Court of Appeal allowed the investigative authority’s request and extended the applicant’s detention until 28 April 2007, giving the same reasons as in its decision of 25 September 2006.

On 20 April 2007 the applicant, represented by his lawyer, and citing the same reasons as before, again brought an objection against the investigative authority’s request to extend his detention.

On 24 April 2007 the Supreme Court further extended the applicant’s detention until 22 August 2007, stating that additional investigative action needed to be taken and there were no reasons to release the applicant.

On 9 August 2007 the applicant was charged with participation in several other offences committed in a gang, including murders, abductions, and torture.

On 14 August 2007 the Supreme Court granted the investigative authority’s request to extend the detention of six purported criminal gang members, including the applicant, until 17 February 2008. It noted the gravity of the charges, the fact that the investigation related to thirty different episodes of alleged crimes committed by a criminal association and that the investigative authorities needed more time to finish their work.

According to the Government, during the pre-trial investigation the authorities interviewed in total 17 defendants, 21 victims and 275 witnesses, conducted 30 face-to-face confrontations, 37 identification parades, 20 reconstructions and 14 seizures, obtained 66 experts’ reports and carried out a number of other investigative actions.

On 18 December 2007 the applicant was presented with the final bill of indictment. In addition to previous charges, the applicant was also indicted for participation in an armed gang (banditry).

On 24 December 2007 the investigation was completed and the applicant and his co-defendants were given time to study the case file.

On 24 January 2008 the Kyiv City Court of Appeal (“the Kyiv Court of Appeal”) extended the applicant’s detention until 20 August 2008, noting the gravity of the charges, confirming that the decision to place him in detention was correct, and referring to the need to complete the study of the case file.

On 14 August 2008 the applicant lodged an objection against the investigative authority’s request to extend his detention. He argued, in particular, that the reason that familiarisation with the case file materials was taking so long was poor procedural organisation.

On 15 August 2008 the Kyiv Court of Appeal extended the applicant’s detention until 20 October 2008, citing the same reasons as in its decision of 24 January 2008.

On 9 October 2008 the applicant notified the prosecutor’s office that although there was some case file material he had not yet seen, he waived his right to further study and asked to be released pending trial.

On 12 October 2008 the General Prosecutor’s Office promised to send the applicant the relevant procedural forms but stated that there were no grounds for his release.

On 14 October 2008 the applicant again objected, in similar terms, to the prosecution’s request for extension of his detention.

On 15 October 2008 the Kyiv Court of Appeal allowed the prosecution’s request, extending the applicant’s detention until 20 December 2008, and stating, in addition to reasons given previously, that the defendants needed time to complete the study of the case file.

On 16 December 2008 the Kyiv Court of Appeal further extended the applicant’s detention until 19 February 2009, citing the same reasons.

Between 19 February and 18 March 2009 the applicant remained in detention.

On 18 March 2009 the Odessa Court of Appeal, acting as the trial court, held a preparatory hearing in the applicant’s and his co-defendants’ case. It rejected the applicant’s request for release, lodged on the same day, stating that there was no basis for granting it.

On 15 June 2011 the applicant, represented by his lawyer, asked to be released pending trial, arguing that his health was deteriorating, that there was insufficient evidence against him, that because all the witnesses and victims had already testified at trial the applicant would not be able to pressure them, and lastly that he had good references, two dependent children who were minors, and a permanent address.

On 15 June 2011 the Odessa Court of Appeal rejected the applicant’s request, noting the gravity of the charges against him and stating that the trial was not complete and that there was no reason to release him.

According to the Government, a total of 151 hearings were held in the case by the Odessa Court of Appeal, a number of which were adjourned, some due to the failure of one of the defendants ‒ who was at liberty ‒ to attend.

On 18 October 2011 the Odessa Court of Appeal found the applicant guilty of murder, kidnapping, and banditry and sentenced him to fourteen years’ imprisonment with confiscation of his property.

According to the applicant, on 30 July 2013 the Higher Civil and Criminal Court, on appeal from him and his lawyer, upheld his conviction and amended the judgment of the trial court, rectifying the domestic legal classification of one of the offences.

On 16 October 2006 the General Prosecutor’s Office rejected the request for a meeting with the applicant lodged by I.O., the applicant’s wife. The General Prosecutor’s Office noted there was “no indication that a meeting between the relatives and [the applicant] was necessary” at the time.

According to the applicant, he was denied the possibility of meeting or corresponding with his family for the entire period of his pre-trial detention.

On 25 May 2009 the applicant lodged a request with the Odessa Court of Appeal for permission for a visit from his family, namely his mother, wife and children. He stated that throughout the period of his pre-trial detention the investigative authorities had rejected his requests for family visits without sufficient justification.

According to the Government, the applicant’s request of 25 May 2009 was granted but the applicant’s relatives did not avail themselves of it and did not visit the applicant.


CASE OF ERNST AUGUST VON HANNOVER v. GERMANY

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

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1954 and lives in Monaco.

In 1998 the applicant was involved in an altercation with a cameraman outside his property, “Gut Calenberg”, during which he struck the cameraman with an umbrella. In January 2000 the press reported on another scuffle between the applicant and the manager of a discotheque on Lamu Island off the Kenyan coast, as a result of which the applicant was convicted of assault.

On 27 March 2000 the company British American Tobacco (Germany) GmbH (“the company”) launched a ten-day advertising campaign with full-page advertisements in magazines and on posters at bus stops and other busy locations showing, on the lower half, a crumpled packet of Lucky Strike cigarettes lying on its side. The top half read, in large lettering: “Was it Ernst? Or August?” At the bottom of the advertisement was the phrase “Lucky Strike. Nothing else.” (“Lucky Strike. Sonst nichts.”) The campaign covered eighteen towns and cities and 6,364 billboards, which meant that it had a potential reach of approximately 2.97 million people. It was also reported in the media.

The applicant asked the company that had commissioned the advertisement and the advertising agency that had designed it to discontinue the campaign. The agency agreed to do so in writing, but the company refused. The applicant then made an urgent application to the Hamburg Regional Court.

On 31 March 2000 the Regional Court granted an interim injunction against any further distribution of the advertisement at issue, and confirmed the injunction on 14 April 2000. The company subsequently announced that it was discontinuing the advertisement, but refused to reimburse the costs incurred by the applicant for the official notice served on it.

On 8 March 2001 the applicant asked the company to pay him damages of 250,000 euros (EUR). The company did not respond to that request.

On 23 December 2003 the applicant applied to the Hamburg Regional Court for an order requiring the company and the advertising agency that had designed the advertisement to pay him EUR 100,000 for a “notional licence” (fiktive Lizenz) and at least EUR 500 in compensation for infringing his right to protection of personality rights, and also to reimburse the costs incurred in serving the official notice.

On 21 January 2005 the Regional Court allowed the applicant’s application as regards the notional licence and costs, and dismissed it as regards compensation. It pointed out that although everyone had the right to decide whether or not to allow his or her name to be used for advertising purposes, the general right to protection of personality rights (allgemeines Persönlichkeitsrecht) protected a person against the unlawful use by third parties of his or her name, including in the context of advertising. The Regional Court went on to observe that although the forenames “Ernst” and “August” were fairly common, the combination of the two was not. Moreover, since entering into a relationship with Princess Caroline of Monaco the applicant had become well known and the crumpled cigarette packet was a clear allusion to his scuffles. The Regional Court explained that advertising was also protected by freedom of expression in so far as it contributed to shaping public opinion; this applied, in its view, to the impugned advertisement. It further pointed out that both the right to freedom of expression and the right to protection of personality rights were protected under the Basic Law and that, in principle, they deserved equal respect. Where a person was used for advertising purposes without his or her consent, the right to protection of personality rights prevailed as a general rule. The Regional Court added that the company’s argument that as a result of his scuffles, the applicant had himself caused the event to which the advertisement referred did not deprive him of protection but it did affect the degree of the interference and the level of protection of freedom of expression. In conclusion, the Regional Court held that when balancing the competing interests, more weight was to be attached to the protection of the applicant’s personality rights than to the company’s right to freedom of expression regarding an advertisement which was essentially humorous in nature and pursued commercial aims.

As regards the pecuniary damage sustained, the Regional Court pointed out that the aim of a “notional licence” was to ensure that anyone using someone else’s personality without permission would not be in a more advantageous position than if he or she had obtained the person’s consent. It explained that the cost of such a licence was determined on the basis of the amount of a fee that would have been reasonable (angemessen). Having regard in particular to the applicant’s high profile, the billboards and advertising media used, and the fact that the advertisement had only used the applicant’s forenames, the Regional Court assessed the pecuniary damage at EUR 60,000. It also awarded the applicant the costs incurred in serving the official notice because they had resulted from the actions of the company and the agency.

On the other hand, the Regional Court did not award the applicant compensation in respect of non-pecuniary damage on the ground that there had been no serious interference with the protection of his personality rights. It emphasised that the applicant had struck the cameraman in public and that the advertisement had simply referred back to that event. Furthermore, the fact that the advertisement was merely derisive meant that there was no unavoidable need (unabwendbares Bedürfnis) to award pecuniary compensation, and the award of a notional licence should be deemed sufficient redress.

On 15 May 2007 the Hamburg Court of Appeal upheld most of the Regional Court’s judgment, varying it solely as regards the order for the company to reimburse the costs incurred in serving the official notice.

The Court of Appeal observed that the company and the agency had interfered with the applicant’s right to his own name without his permission. In that context, it pointed out that even though the advertisement had only used the applicant’s forenames, those names were well known to the general public because of the relationship between the applicant and the daughter of Prince Rainier III of Monaco and the repeated press reports on the applicant’s altercations in 1998 and 2000. It further noted that the company had derived a pecuniary advantage from using the applicant’s forenames. In cases such as the present one, where the impugned advertisement was designed to enhance the recognition and sales of a brand of cigarettes, freedom of expression generally took second place to the protection of personality rights. The Court of Appeal considered that the impugned advertisement had made very little contribution, if any, to shaping public opinion, that the applicant’s scuffles had been neither a political nor a societal event, and that the incidents had only been exploited for the purpose of entertaining a general public curious about the behaviour of famous people.

The Court of Appeal further pointed out that the impugned advertisement had infringed the pecuniary aspect of the right to protection of personality rights by depriving the applicant of his right to make his own choice as to whether and how his name could be used for advertising purposes. Clearly, the advertisement had not given the impression that the applicant identified with the product advertised or that he recommended it, nor was it offensive or degrading in nature, but with the sole aim of increasing sales of a brand of cigarettes it publicly mocked the applicant by suggesting that he even crumpled up cigarette packets.

As regards the cost of the notional licence, the Court of Appeal pointed out that the unauthorised use of a person’s name for commercial purposes was tantamount to unlawfully using a person’s image and infringed the pecuniary aspect of the right to protection of personality rights. It held that in using the applicant’s name without his consent the company and the agency had shown that they had attached economic importance to that name. The company and the agency were therefore under an obligation to pay the applicant the amount corresponding to the use of his name, and this obligation existed irrespective of whether the person in question would have been prepared to consent or not.

The Court of Appeal further stated that the cost of the notional licence had to be freely determined on the basis of all the relevant circumstances. It noted that the particular feature of the impugned advertisement was that it mocked the applicant, which made it unlikely that the applicant would have authorised it. However, it considered that the amount of the fees agreed between advertising companies and famous people who consented to the use their names might provide an indication for determining the cost of the notional licence. It noted in that connection that the company was one of the largest tobacco companies in Germany and that the impugned advertisement had been part of a very successful advertising campaign which the company had launched in 1989. The advertisement in question had taken up a full page in several national magazines and also, from 27 March 2000 onwards, in the form of posters at bus stops and other busy locations. Lastly, emphasising that the applicant was a well-known figure, it found that the advertising campaign had indeed attracted extensive public attention, thus justifying the award made by the Regional Court.

The Court of Appeal granted leave to appeal on points of law, on the grounds that the question whether the use of a famous person’s name for advertising purposes was justified where the advertisement referred to an event in contemporary history which was of no, or virtually no, interest except from an entertainment perspective had not yet been determined by the case-law of the Federal Court of Justice, and that a decision was required from that court in order to develop and maintain a standard line of authority.

In a judgment of 5 June 2008 (no. I ZR 96/07) the Federal Court of Justice quashed the Court of Appeal’s judgment. It held that the applicant’s claims were ill-founded because the company and the agency had not unlawfully interfered with his right to protection of personality rights or his right to his name, given that the use of his name in the impugned advertisement was covered by the right to freedom of expression as guaranteed by Article 5 § 1 of the Basic Law (see “Relevant domestic law and practice”). While upholding the findings of the Court of Appeal as regards the existence of an interference and the possibility of granting a notional licence in accordance with the principle of unjust enrichment, the Federal Court of Justice held that the Court of Appeal had not had sufficient regard to the fact that the pecuniary components of the right to protection of personality rights and the right to one’s name were only protected by ordinary law, whereas freedom of expression enjoyed protection under constitutional law.

The Federal Court of Justice explained at the outset that the case before it related solely to interference with the pecuniary components of the rights relied upon, since the applicant’s contention that the advertisement had also infringed the non-pecuniary components of his rights had already been dismissed by the Regional Court. It pointed out that the rights to protection of personality rights were among the fundamental rights safeguarded by the Basic Law to the extent that they protected non-pecuniary interests, but that the pecuniary components were only protected by civil law and therefore did not prevail over freedom of expression. The Federal Court also observed that the protection conferred by Article 5 § 1 of the Basic Law also covered advertising whose content contributed to shaping public opinion, while specifying that that was not only the case where the advertisement referred to a political or historical event, but also where it dealt with questions of general interest. Furthermore, reports with an entertainment purpose could also play a role in shaping public opinion, or indeed, in certain circumstances, could stimulate or influence the shaping of public opinion more effectively than strictly factual information.

The Federal Court of Justice noted that the impugned advertisement provided a satirical, derisive slant on the applicant’s scuffles outside his “Gut Calenberg” property and on Lamu Island. The media had reported on these events, mentioning the applicant’s name and publishing photographs of him, because there was a particular public interest in information about the incidents on account of the applicant’s relationship with the daughter of Prince Rainier III of Monaco. The Federal Court of Justice considered that even though the company had merely alluded to the applicant’s scuffles as part of its advertising campaign, it could still rely on the specific protection of freedom of expression. It held that the fact that the advertisement – by using the applicant’s forenames and alluding to his propensity for picking fights – had been mainly intended to increase sales of the cigarette brand by capturing the attention of the general public did not mean, as the Court of Appeal had maintained, that the right to protection of personality rights prevailed in general.

The Federal Court of Justice continued as follows:

“In weighing up the competing interests the Court of Appeal failed to take adequate account of the fact that the only issue at stake in this case was the protection of the pecuniary components of the right to protection of personality rights, such protection being based solely on civil law and not constitutional law. In the case of interference with the pecuniary components of the right to protection of personality rights because a well-known person’s name has been used in an advertisement without his consent, it cannot simply (ohne weiteres) be maintained that the person’s right to protection of his personality rights will always prevail over the advertiser’s right to freedom of expression. On the contrary, it might be appropriate to tolerate an interference with protection of personality rights resulting from reference to a person’s name if, on the one hand, the advertisement alludes in a derisive, satirical manner to an event involving the person and forming the subject of public debate and if, on the other hand, it does not exploit the person’s brand image (Imagewert) or advertising value (Werbewert) by using his name, and if it does not give the impression that the person identifies with the product advertised or advocates its use (reference to the Federal Court of Justice judgment of 26 October 2006, no. I ZR 182/04).”

The Federal Court of Justice held that the impugned advertisement had not given such an impression. It had merely served as a reminder of the applicant’s scuffles for anyone who already knew about them, while anyone who had never heard of those events would have been unable to understand the play on words, especially since the incidents had not been actually mentioned but had been hinted at in a particularly clever (pfiffig) way. The Federal Court of Justice therefore took the view that the advertisement had been part of the public debate on the applicant’s aggressive attitude. Above and beyond the derisive, satirical allusion to the events already known to the public, it had been devoid of any offensive or seriously degrading content in relation to the applicant. Given the absence of any suggestion that the applicant identified in any way with the product advertised, there were no grounds for considering that the advertisement was disparaging towards him simply because it was promoting cigarettes. The Federal Court of Justice concluded that the applicant’s interest in not being mentioned in the advertisement without his consent carried less weight than the tobacco company’s freedom of expression, and that in the absence of a violation of the pecuniary or non-pecuniary components of his right to protection of his personality rights, the applicant could not claim an entitlement to a notional licence or to reimbursement of the costs incurred in serving the official notice.

On 6 April 2009 the Federal Constitutional Court declined to accept for adjudication a constitutional complaint by the applicant (no. 1 BvR 3141/08). It provided no reasons for its decision.


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicant, Mr Lee Anthony Roberts, is a British national, who was born in 1975 and is currently detained at HM Prison Grendon in Aylesbury. He was represented before the Court by B. Richardson of CM Solicitors, a firm of lawyers based in Manchester. The respondent Government were represented by their Agent, Ms A. McLeod, of the Foreign and Commonwealth Office.

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

On the afternoon of 15 March 2011 the applicant attacked D.W., stabbing him several times. He was charged with attempted murder and his trial took place in April 2011 in the Crown Court before a jury. Before the trial commenced, the jury were shown a video about their role as jurors, setting out what they should and should not do. At the start of the trial, the judge reiterated the instructions given in the video and expressly instructed the jury members that they should not look up information relevant to the case on the Internet.

The applicant’s defence at trial was that although he had intended to cause serious bodily injury to D.W. he had not intended to kill him. Whether he had intent to kill was therefore the only contested issue.

The trial judge’s summing-up and directions to the jury set out in detail the factors that the jury was required to take into account when deciding whether the prosecution had proved that the wounding was done with intent to kill. The jury then retired to consider its verdict. No verdict was reached that day and the jury was sent home for the evening.

The next morning the jury members sent the judge a note which read:

“Can the judge give the jury any guidance on the factors to be taken into account in deciding whether the defendant intended to murder D.W. with particular onus on the definition of intent?”

With the agreement of counsel for the prosecution and the defence, the judge gave the jury a written extract from the relevant section of her summing-up where she had discussed intent. The judge also read the passage out to the jury members. She gave additional details at some length as to the circumstances that needed to be considered.

On 19 April 2011 the applicant was convicted of attempted murder by a majority verdict of the jury (ten jurors to two). On 23 September 2011 he was sentenced to indefinite imprisonment for public protection with a minimum term of seven years’ imprisonment, less time spent on remand.

Meanwhile, on 21 September 2011, A.O., who had been a juror at the trial, sent an email to the Crown Court alleging a number of shortcomings in the conduct of his fellow jurors. In particular, he alleged that information had been obtained from the Internet by three jurors and had been disclosed to fellow jurors. The trial judge informed counsel for the prosecution and the defence that allegations of jury irregularities had been made by a juror.

The applicant subsequently sought leave to appeal his conviction and sentence, alleging that his trial was unfair on account of significant jury irregularities. On 13 January 2012 the Court of Appeal directed that the Criminal Cases Review Commission (“CCRC”) be asked to investigate the allegations.

The CCRC interviewed the jurors in the case. A.O. claimed that Juror C, the foreman and a solicitor, had researched sentencing tariffs in similar cases and had shared the information he had discovered with his fellow jurors. In its report of 12 February 2013 the CCRC summarised statements from three other jurors alleging that the jury foreman had looked up the definition of “attempted murder”, had looked at information concerning the question of intent and had looked up the sentencing guidelines for attempted murder. Seven of the jurors had no recollection of the alleged improper conduct having taken place. None of the jurors supported the claim that two further jurors had undertaken Internet research.

The CCRC subsequently interviewed the jury foreman under caution. After receiving legal advice, the jury foreman gave a prepared statement and refused to answer questions. In his statement he confirmed that there had been some uncertainty as to the law on intent, for which further direction had been required from and provided by the trial judge; and that the issue of possible sentences had arisen. The statement neither confirmed nor denied that the foreman had conducted Internet searches relating to the case.

The CCRC report noted that A.O.’s allegations in interview appeared to be not “quite so stark” as those made in his initial email. It further noted that there was no support for the majority of his allegations. However, it accepted that there was some corroboration for the more general allegations that the jury foreman had conducted case-related research on either the question of the differing elements of intent as between the offences under consideration, or the different sentences which might arise, and had provided information to his fellow jurors.

On 1 July 2013 the Court of Appeal granted leave to appeal against conviction and refused leave to appeal against sentence.

In its judgment on the merits of the appeal against conviction, the court noted that the summing-up by the trial judge had been “impeccable” and had not been criticised by the applicant. The court referred to the jury’s question during deliberations regarding the law on intent and noted that the trial judge’s response was very thorough and that the jury could not have had any doubt as to the correct directions in law and the factors to which they were required to have regard.

The court agreed with the parties that it should proceed on the basis that an irregularity had occurred at trial. It considered that two matters had to be examined: first, the information introduced to the jury in relation to the requirements to establish the intent to kill; and second, the information introduced concerning applicable sentences.

As to the former, the Court of Appeal considered it inconceivable that the jury members would have paid any attention whatsoever to what had been said by the foreman after the judge had handed them the answers to the questions they posed. The court rejected the applicant’s submission that it could not be presumed in his case that the jurors would follow directions. Had the judge not handed a direction to the jury, there might have been some doubt but considering the timing, the probabilities and the care with which the judge provided a written document to the jury, the court had no doubt whatever that the jury followed the direction of the judge and ignored what the foreman of the jury had said.

On the question of what was said regarding sentencing guidelines, the Court of Appeal accepted that it should bear in mind the potential effect that a jury knowing the range of sentences could have on their attitude towards conviction. However, it continued:

“35. But we must look at the reality of this case. As we have explained, there was one narrow issue before the jury, namely whether the Crown had proved, in addition to the intent to cause really serious bodily injury ... an intent to kill. It must have been obvious to the jury that the reason why the Crown was proceeding with the trial was that they did not consider that a plea to wounding with intent was sufficient to enable the judge to pass a severe enough sentence. It must have been obvious to the jury that by proceeding to seek a verdict on the count of attempted murder, the Crown were interested in establishing the more serious offence, so that the punishment could be the more serious. Thus, the fact that the foreman explained to the jury that sentences for attempted murder were more serious than for wounding with intent cannot have any effect ...

It seems to us that it must have been obvious to the jury that they were tasked with deciding whether the Crown had proved the intent to kill, that if they did so the sentence would be more severe and therefore the introduction by the foreman of that further material can have had no material effect upon their decision to convict ...”

For these reasons, the court dismissed the appeal against conviction.

The applicant did not ask the Court of Appeal to certify a question of general public importance to enable him to apply for leave to appeal to the Supreme Court.

The applicant provided a copy of counsel’s advice dated 14 March 2014. The advice explained:

“At the hearing of the appeal it was accepted ... that extraneous material had been introduced into the jury’s deliberations, and that the material related at least in part to the ingredients of the offence of attempted murder. There was no dispute as to the relevant law. It was accepted that the introduction of such material prima facie constituted a material irregularity in the trial process. The issue to be determined on appeal was whether that irregularity affected the safety of the appellant’s conviction.

Following full argument, [the Court of Appeal] expressed the opinion that the appeal concerned the fact-specific issue of considering whether, in the light of the admitted irregularities, the appellant’s conviction was safe ...

The issue at appeal ... was wholly fact-specific ... As there was no dispute between the parties on any point of law it was not possible to request a certification of a point of law of general public importance, and I regret to inform Mr Roberts that there are no further domestic avenues of appeal.”

Upon responding to a summons, jury members are sent a leaflet called “Your Guide to Jury Service”. The leaflet explains that jurors’ discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors. It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial. The leaflet also notes that it is an offence for anyone outside the jury to try and influence them.

Once selected for jury duty, jurors must swear an oath or affirmation that they will:

“faithfully try the defendant and give a true verdict according to the evidence.”

At the outset of the trial, the jury are conventionally given a direction to the effect that they must try the case on the evidence alone, which is what they hear in court. They are instructed that they must not discuss the case with family, friends or anyone else or conduct their own research into the case.

The rule governing the secrecy of jury deliberations is set out in the Contempt of Court Act 1981. Section 8(1) of the Act states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations.

Section 23A of the Criminal Appeals Act 1968 enables the Court of Appeal to direct the CCRC, in the context of an appeal against conviction, to investigate and report to the court on any matter deemed relevant to the resolution of the appeal.

In R. v Thompson and others [2010] EWCA Crim 1623, the Court of Appeal, addressing the matter of jury irregularities, explained:

“2. Much more difficult problems arise when after the verdict has been returned, attention is drawn to alleged irregularities. This may take the form of a complaint from a defendant, or his solicitors, or in a very few cases it may emerge from one or more jurors, or indeed from information revealed by the jury bailiff. It is then beyond the jurisdiction of the trial judge to intervene. Responsibility for investigating any irregularity must be assumed by this court. In performing its responsibilities, it is bound to apply the principle that the deliberations of the jury are confidential. Except with the authority of the trial judge during the trial, or this court after the verdict, inquiries into jury deliberations are “forbidden territory” ... If any complaint about jury deliberations is received by the trial court after verdict it is immediately referred to this court and whether the complaint has been received from the court of trial or by this court directly, the practice is to examine each case to see whether or not, exceptionally, further inquiries ought to be made, and if so, to invite the assistance of the Criminal Cases Review Commission to conduct the necessary inquiry.”

The court confirmed that the rule that jury deliberations were confidential was subject to two narrow exceptions. The first arose if it emerged that there might have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence (for example, a decision arrived at by the toss of a coin). The second exception arose in cases where extraneous material had been introduced into the jury deliberations. Where the complaint was made that the jury had considered non-evidential material, the court was entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts.

Section 1 of the Criminal Appeal Act 1968 (as amended) provides that a person convicted of an offence on indictment may appeal to the Court of Appeal against his conviction. An appeal can only proceed with the leave of the Court of Appeal or if the judge of the court of trial grants a certificate that the case is fit for appeal.

Section 2(1) of the 1968 Act provides that the Court of Appeal:

“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss such an appeal in any other case.”

Pursuant to section 33(1) of the 1968 Act, a defendant has the right to appeal to the Supreme Court against a decision of the Court of Appeal (Criminal Division). Section 33(2) clarifies that the leave of the Court of Appeal or the Supreme Court is required and that leave will not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the Supreme Court (as the case may be) that the point is one which ought to be considered by the latter court.

The Human Rights Act 1998 (“the 1998 Act”) incorporates the Convention into United Kingdom law. Under section 7(1) of the Act, a person who claims that a public authority has acted in a way which is incompatible with Convention rights may rely on the Convention right or rights concerned in any legal proceedings.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1952 and lives in Voyvodinovo.

The applicant worked as a driver of tractors and other heavy machines for a number of years before 1985. This work led to her developing dysfunctions of the nervous system. In 1985 she was declared to have a “third degree disability” and started receiving a disability pension.

Between 1985 and 2000 the applicant underwent seven medical reexaminations by the local Territorial Expert Medical Commission (“the TEMC”), the body competent to assess the level of disability. The medical examinations serve as a basis for the allocation of disability pensions. She was diagnosed with vegetative polyneuropathy of the upper extremities, coxarthrosis, cervical spondylosis and radiculopathy. On all occasions she was assessed to have a “third degree disability” ─ she had lost between 50% and 70% of her ability to work, which entitled her to receive a disability pension.

On 14 November 2000 the applicant underwent a new regular reexamination by the TEMC. This time she was diagnosed with vegetative polyneuropathy of the upper extremities and myotendinosis. No mention was made of the other diseases diagnosed earlier, namely coxarthrosis, cervical spondylosis and radiculopathy. On that basis the TEMC assessed the applicant’s loss of ability to work at 40%, which was not sufficient to entitle her to a disability pension.

The applicant challenged this decision before the National Expert Medical Commission (“the NEMC”). After re-examining her, the NEMC declared the applicant fully fit to work in a decision of 14 February 2001. Its diagnosis was “spondylosis and related diseases”.

The applicant applied to the Sofia City Court for judicial review of that decision.

The Sofia City Court appointed a medical expert who examined the applicant and concluded that she suffered from the following conditions: cervical spondylarthrosis, vegetative polyneuropathy, myotendinosis of the upper limbs and coxarthrosis of the coxofemoral joint. The expert pointed out that these conditions had a chronic character and had permanently and negatively affected the applicant’s state of health. If anything, some of them had become worse after 1985. The expert pointed out that such conditions typically led to a significant reduction in the affected person’s ability to work.

On the basis of that report, on 27 December 2002 the Sofia City Court quashed the NEMC’s decision of 14 February 2001 as unlawful. It found, on the basis of the expert’s conclusions corroborated by the remaining documents in the case file, that the applicant’s ability to work was reduced. The court concluded that the NEMC had erroneously assessed the applicant’s state of health by failing to consider all relevant elements to her actual state of health. The court remitted the case for a fresh examination, pointing out that it was the NEMC which had to fix the exact percentage of the applicant’s reduced ability to work. The judgment entered into force on 11 February 2003.

The NEMC examined the applicant on 9 October 2003. In its decision of the same date it indicated as a leading diagnosis “spondylosis and related diseases”. It specified that the applicant suffered from cervical spondylarthrosis and cervical radiculopathy, which were occupational diseases, and from myotendinosis of the upper limbs and coxarthrosis, which were not. It considered that she did not suffer from vegetative polyneuropathy of the upper limbs. On that basis the NEMC assessed the applicant’s reduced ability to work at 30%. The decision stated that it was valid for three years.

Once again, the applicant applied for judicial review of the NEMC’s decision. The Sofia City Court appointed a medical expert who concluded that the applicant suffered from the following diseases which he considered occupational: cervical spondylarthrosis, vegetative polyneuropathy, myotendinosis of the upper limbs and coxarthrosis of the two coxofemoral joints. The expert considered that these conditions had a permanent and chronic character and had led to irreversible degenerative changes to the applicant’s locomotor system.

On that basis, on 6 January 2005 the Sofia City Court quashed the NEMC’s decision of 9 October 2003 and remitted the case to it for further examination in accordance with the conclusions of the medical expertise accepted by the court in the case proceedings. The court found that the administrative body had erred when assessing the applicant’s state of disability as it had not taken into account all the relevant circumstances. It considered the NEMC’s opinion that the applicant did not suffer from vegetative polyneuropathy unfounded and concluded that the NEMC’s decision was not based on the applicant’s actual state of health. The court held, like in its judgment of December 2002, that the NEMC was exclusively competent to assess the percentage of disability.

Upon an appeal by the NEMC, the Supreme Administrative Court upheld the Sofia City Court’s judgment in a final judgment of 15 July 2005.

Following that, in a decision of 28 October 2005 the NEMC assessed the applicant’s reduced ability to work at 40% which did not entitle her to a disability pension. In the decision’s entry “occupational deceases”, only vegetative polyneuropathy featured this time. The operative provision of the decision stated that the NEMC “Quashes and decides anew the question of percentage of disability. Confirms the rest of the elements.” The decision stated that it was valid for three years.

The applicant did not apply for judicial review of the above decision.

The payment of the applicant’s disability pension was discontinued as of 2 October 2000 and there is no information about what happened after the 28 October 2005 NEMC decision.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants were employed as police officers. They were all charged with the commission of various criminal offences. They were dismissed from the police force pursuant to Article 45 of the Ministry of Interior Act 1991 which was in force at the time. Subsequently, all the applicants were acquitted. However, their dismissals remained in force. They unsuccessfully challenged their dismissals in civil proceedings before the national courts.

On 26 April 2004 a criminal complaint was lodged against the first applicant with the Jagodina District Court (“the District Court”). He was reported to have instigated his superior, the second applicant, to abuse his power. He was arrested the same day and criminal proceedings were instituted against him.

On 26 April 2004, simultaneously with the initiation of criminal proceedings, the Ministry of Interior instituted disciplinary proceedings against the applicant. He was suspended from the police force on the same day, pending the decision of the Disciplinary Court.

On 5 May 2004 the Ćuprija Municipal Prosecutor charged the applicant for alleged instigation to abuse of power.

On 7 June 2004 the competent directorate of the Ministry of the Interior rendered a decision by which the applicant was dismissed from the police force. The decision noted that criminal proceedings had been instituted against the applicant and that Article 45 of the Ministry of Interior Act 1991 which was in force at the time of the dismissal could be applied. The applicant lodged an appeal against this decision. On 16 July 2004 the Minister, acting as a second-instance administrative body, rejected his appeal, confirming the dismissal.

On 27 August 2004 the disciplinary proceedings against the applicant were stopped without any decision on the merits. The Disciplinary Court concluded that the applicant had already been dismissed from the police force as a result of the initiation of the criminal proceedings against him and that this fact rendered the disciplinary proceedings redundant.

On 29 November 2004 the Ćuprija Municipal Court (“the Municipal Court”) acquitted the applicant. The Prosecutor appealed against this decision. On 29 March 2005 the District Court confirmed the Municipal Court’s decision and the applicant’s acquittal became final.

Shortly after the applicant’s acquittal in the criminal proceedings, he instituted civil proceedings in which he requested the annulment of the above decisions on dismissal. On 10 March 2006 the Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate him in his former post. The court held that the formulation of Article 45 of the 1991 Ministry of Interior Act left broad discretionary powers to the Ministry of Interior to dismiss its employees even when no criminal responsibility was attributable to them. It concluded that this legal solution “most certainly left the possibility of abuse of this authority.” It also observed that the applicant had been acquitted in criminal proceedings instituted against him. Finally, the court noted that the applicant had been dismissed without any determination of his disciplinary responsibility but solely through the use of the discretionary power given to the Ministry by Article 45 of the 1991 Ministry of Interior Act and without any further reasoning.

The Ministry of the Interior appealed against this decision. On 2 November 2006 the District Court upheld the decision and reasoning of the Municipal Court.

The Ministry of the Interior lodged an appeal on points of law before the Supreme Court. On 25 April 2007 the Supreme Court quashed the District Court’s decision and decided that the applicant’s dismissal was lawful. According to the Supreme Court, the Ministry of Interior had used its discretionary power under Article 45 of the Ministry of Interior Act 1991 in accordance with the law. It concluded that the applicant’s acquittal in the criminal proceedings and the absence of a decision on the merits in the disciplinary proceedings were irrelevant to his dismissal. It also held that the lower courts had overstepped the limits of their authority in considering the necessity, proportionality and correctness of the dismissal decision.

On 26 April 2004 a criminal complaint was lodged against the second applicant with the District Court. He was alleged to have committed the crime of abuse of power. He was arrested the same day and criminal proceedings were instituted against him.

On 26 April 2004, simultaneously with the initiation of the criminal proceedings, the Ministry of Interior instituted disciplinary proceedings against the applicant. He was suspended from the police force on the same day, pending the decision of the Disciplinary Court.

On 5 May 2004 the Municipal Prosecutor charged the applicant with alleged abuse of power.

On 7 June 2004 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force. The reasoning of the decision was identical to that in the case of the first applicant. The applicant appealed against this decision. On 19 July 2004, the second-instance administrative body confirmed the decision.

On 27 August 2004 the disciplinary proceedings against the applicant were stopped without any decision on the merits for the same reasons as in the case of the first applicant.

On 29 November 2004 the Municipal Court acquitted the applicant. The prosecutor lodged an appeal which was dismissed on 29 March 2005 by the District Court. It confirmed the Municipal Court’s decision and the applicant’s acquittal became final.

The applicant instituted civil proceedings after the acquittal, in which he requested the annulment of the above decision on dismissal. On 25 April 2005 the Municipal Court accepted the applicant’s claim and ordered the Ministry of Interior to reinstate him in his previously held post. The reasoning of the court was the same as in the case of the first applicant.

The Ministry of the Interior appealed against this decision. On 8 July 2005 the District Court upheld the decision and reasoning of the Municipal Court.

The Ministry of the Interior lodged an appeal on points of law. On 27 March 2007 the Supreme Court quashed the above decisions on the same grounds as in the case of the first applicant.

On 19 October 1999, the Vranje District Prosecutor lodged an indictment with the Vranje District Court (“the District Court”) against the third applicant for the alleged unauthorised possession of weapons and ammunition. On 17 December 1999 the Vranje District Court found him guilty as charged and sentenced him to one year of imprisonment.

On 14 June 2000 the Ministry of Interior rendered a decision by which the applicant was dismissed from the police force with the same reasoning as in the case of the first and the second applicants. The applicant appealed. On 13 July 2000 the second-instance administrative body confirmed the above decision. No disciplinary proceedings were instituted against the applicant.

On 6 November 2001 the Supreme Court confirmed the applicant’s conviction in criminal proceedings. The applicant lodged a request for the re-opening of the proceedings, which was granted. On 2 September 2005 the Vranje District Court acquitted the applicant. The Prosecutor appealed against this decision. On 22 February 2006 the Supreme Court confirmed the acquittal.

Shortly after the applicant was acquitted in the criminal proceedings, he instituted civil proceedings in which he requested the annulment of the 14 June 2000 decision on dismissal.

On 18 October 2006 the Vranje Municipal Court accepted the applicant’s claim and ordered the Ministry of the Interior to reinstate the applicant in his previously held post. The Ministry of the Interior appealed. On 7 February 2007 the Vranje District Court quashed this decision, giving essentially the same reasons as in the decisions of the Supreme Court delivered in the cases of the first and the second applicant. The applicant lodged an appeal on points of law. On 3 August 2007 the Supreme Court upheld the District Court’s decision.

In the criminal proceedings against the third applicant, another police officer, G.M. was a co-defendant. G.M. was charged with the same crime as the applicant and was acquitted. He is still employed as a police officer.

The third applicant also instituted a separate set of civil proceedings in which he requested compensation for non-pecuniary damage related to his unlawful detention, stress sustained in prison and the loss of reputation caused by the imprisonment. On 10 October 2008 the Gnjilane Municipal Court partially accepted the applicant’s claim and awarded him 780,000 dinars (RSD), (approximately 6,330 euros (EUR)). On 18 December 2008 the Gnjilane District Court partially upheld this decision, decreasing the awarded amount to RSD 530,000 (approximately EUR 5,640). The awarded sum was paid to the applicant accordingly.


CASE OF ALIŠIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA, CROATIA, SERBIA, SLOVENIA AND "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objections dismissed (Article 35-3 - Ratione materiae);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Serbia);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Slovenia);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Serbia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Slovenia);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures) (Serbia);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures) (Slovenia);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Guido Raimondi;Ineta Ziemele;Josep Casadevall;Lech Garlicki;Linos-Alexandre Sicilianos;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Ksenija Turković

The applicants were born in 1976, 1949 and 1952 respectively and live in Germany.

Prior to the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), two of the present applicants, Ms Ališić and Mr Sadžak, had deposited foreign currency in Ljubljanska Banka Sarajevo. In 1990, within the context of the economic reforms carried out in 1989-90 (see paragraph 21 below), Ljubljanska Banka Sarajevo became a branch of Ljubljanska Banka Ljubljana, a Slovenian bank. Also prior to the dissolution of the SFRY, the third applicant, Mr Šahdanović, had deposited foreign currency in the Tuzla branch, located in Bosnia and Herzegovina, of Investbanka, a Serbian bank. According to the material in the Court’s possession, on 31 December 1991 the balance in Ms Ališić’s and Mr Sadžak’s accounts at the Sarajevo branch of Ljubljanska Banka Ljubljana was 4,715 Deutschmarks (DEM) and DEM 129,874 respectively; on 3 January 2002 the balance in Mr Šahdanović’s accounts at the Tuzla branch of Investbanka was DEM 63,880, 4 Austrian schillings and 73 United States dollars (USD).

The applicants’ complaints under the Convention concern their inability to withdraw their foreign-currency savings from the bank accounts described above. In their submission, this constituted a breach of Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention by all of the respondent States. They also alleged a violation of Article 13 of the Convention.

Before the economic reforms that were carried out in the SFRY in 1989-90, its commercial banking system consisted of basic and associated banks. Basic banks had separate legal personality, but were integrated into the organisational structure of one of the nine associated banks. As a rule, basic banks were founded and controlled by socially owned companies based in the same territorial unit (that is, in one of the Republics – Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia – or Autonomous Provinces – Kosovo and Vojvodina – of the SFRY). Socially owned companies were the flagship of the Yugoslav model of self-management: neither private nor State-owned, they were a collective property controlled by their employees, based on a communist vision of industrial relations (the phenomenon and the current status of such companies in Serbia, where they continue to exist, has been described in R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 71-76 and 97, 15 January 2008). Two or more basic banks could form an associated bank. Ljubljanska Banka Ljubljana, one of the associated banks of the SFRY, was composed of Ljubljanska Banka Sarajevo, at which two of the present applicants had opened accounts, Ljubljanska Banka Zagreb, Ljubljanska Banka Skopje and a number of other basic banks. Similarly, Investbanka, at which one of the present applicants had opened accounts, had, together with some other basic banks, formed an associated bank called Beogradska udružena Banka.

In the SFRY there were also nine national banks, the National Bank of Yugoslavia (“the NBY”) and a national bank in each of the six Republics and two Autonomous Provinces.

Being hard-pressed for hard currency, the SFRY made it attractive for its expatriates and other citizens to deposit foreign currency with its banks. Such deposits earned high interest, the annual rate often exceeding 10%, and were guaranteed by the State (section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989).

The State guarantee was to be activated in case of a bank’s bankruptcy or “manifest insolvency” at the request of the bank (section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and the relevant secondary legislation). None of the banks under consideration in the present case made such a request.

Savers could not request the activation of the guarantee of their own volition, but were entitled, in accordance with the Civil Obligations Act 1978, to collect their deposits at any time, together with accrued interest. Section 1035 of that Act provided as follows:

“(1) A contract for a monetary deposit shall be formed when the bank agrees to accept and the depositor agrees to deposit a certain sum of money in the bank.

(2) Under such a contract, the bank shall have the right to use the deposited money and the obligation to return it in accordance with the terms set out in the agreement.”

Section 1043(1) of the Act read as follows:

“If a savings account is opened, the bank or financial institution shall issue the saver with a savings book.”

Section 1044 of the Act provided:

“(1) All deposits and withdrawals shall be recorded in a savings book.

(2) Signed and stamped entries in savings books shall constitute proof of deposits and withdrawals.

(3) Any agreement to the contrary shall be null and void.”

Furthermore, section 1045 of the Act read as follows:

“Interest shall be paid on savings deposits.”

Beginning in the mid-1970s, the banks incurred foreignexchange losses because of depreciation of the dinar exchange rate. In response, the SFRY introduced a system for “redepositing” foreign currency, allowing banks to transfer citizens’ foreign-currency deposits to the NBY, which assumed the currency risk (section 51 of the Foreign-Currency Transactions Act 1977). Although the system was legally optional, in practice the banks did not have another option as they were not allowed to maintain foreign-currency accounts with foreign banks, which were necessary to make payments abroad, nor were they allowed to grant foreign-currency loans. Virtually all foreign currency was therefore redeposited with the NBY according to one of the following two methods: either the “accounting” or “pro forma” method, or the method of actual transfer of foreign currency to foreign accounts of the NBY. The accounting method was used far more often, as it enabled commercial banks to shift currency risks to the NBY without having to pay fees to foreign banks (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, § 36, 3 October 2008; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). According to an internal report of the NBY of September 1988, by 30 June 1988 an equivalent of approximately USD 9 billion had been redeposited with the NBY, of which only around USD 1.4 billion (that is, slightly above 15%) had been physically transferred to the NBY’s many foreign accounts. It would appear that the funds in the NBY’s foreign accounts have recently been divided among the successor States (see paragraph 65 below).

With regard to Ljubljanska Banka Sarajevo, where the first two applicants held their accounts, the redepositing scheme operated as follows. Pursuant to a series of agreements (between Ljubljanska Banka Sarajevo and Ljubljanska Banka Ljubljana, the National Bank of Bosnia and Herzegovina and the National Bank of Slovenia), Ljubljanska Banka Sarajevo was to transfer every month to the National Bank of Slovenia, for the account of Ljubljanska Banka Ljubljana, any difference between the foreign currency deposited and the foreign currency withdrawn. Some of those funds were transferred back to Ljubljanska Banka Sarajevo at the request of that bank in order to meet its liquidity needs (during periods when more foreign currency was withdrawn than deposited). Indeed, in the period from 1984 to 1991, DEM 244,665,082 was transferred to Ljubljana and DEM 41,469,528 (that is, less than 17%) back to Sarajevo. The funds which had not been transferred back to Sarajevo were redeposited with the NBY according to one of the two methods described in paragraph 17 above: the “accounting” or “pro forma” method (in which case there is no proof that the funds actually left Ljubljana), or the method of actual transfer of foreign currency to foreign accounts of the NBY. Regardless of the redepositing method used, all those funds were recorded as a claim of Ljubljanska Banka Sarajevo against the NBY.

Under the agreements mentioned in paragraph 18 above, Ljubljanska Banka Sarajevo was granted dinar loans (initially interest-free) by the NBY, via the National Bank of Bosnia and Herzegovina, in return for the value of the redeposited foreign currency. The dinars received by Ljubljanska Banka Sarajevo were used by that basic bank to offer loans, at interest rates below the rate of inflation, to companies based, as a rule, in the same territorial unit.

In late 1988 the redepositing system was stopped (by an amendment to section 103 of the Foreign-Currency Transactions Act 1985). Banks were given permission to open accounts with foreign banks. Ljubljanska Banka Sarajevo, like other banks, seized that opportunity and deposited around USD 13.5 million with foreign banks in the period from October 1988 to December 1989. There is no information in the file as to what has happened to those funds.

Within the framework of the reforms carried out in 1989-90, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the former associated banks to which they had formerly belonged. On 1 January 1990 Ljubljanska Banka Sarajevo, mentioned above, thus became a branch (without legal personality) of Ljubljanska Banka Ljubljana; the latter assumed the former’s rights, assets and liabilities. Investbanka, mentioned above, became an independent bank with its seat in Serbia and a number of branches in Bosnia and Herzegovina.

Moreover, the convertibility of the dinar was declared, which led to a massive withdrawal of foreign currency. The SFRY therefore resorted to emergency measures restricting to a large extent withdrawals of foreign-currency deposits. For example, as of December 1990, when the amendment to section 71 of the Foreign-Currency Transactions Act 1985 came into force, savers could withdraw their savings only to pay for imported goods or services for their own or their close relatives’ needs, to purchase foreign-currency bonds, to make testamentary gifts for scientific or humanitarian purposes, or to pay for life insurance with a local insurance company. In addition, section 3 of the SFRY government’s decision of April 1991, which was in force until February 1992, and section 17(c) of the NBY’s decision of January 1991, which the Constitutional Court of the SFRY declared unconstitutional in April 1992, limited the amount that savers could withdraw or use for the above purposes to DEM 500 per transaction, but not more than DEM 1,000 per month (see paragraph 53 below).

The dissolution of the SFRY occurred in 1991-92. In the successor States of the SFRY, foreign-currency savings deposited prior to the dissolution were placed under a special regime and are commonly referred to as “old” or “frozen” foreign-currency savings. An overview of the relevant domestic law and practice concerning such savings in each of the five successor States is provided below. The successor States, which are also the respondent parties to the present case, are presented below in alphabetical order.

In 1992 Bosnia and Herzegovina took over the statutory guarantee for “old” foreign-currency savings from the SFRY (see section 6 of the SFRY Legislation Application Act 1992). Although the relevant statutory provisions were not clear in that regard, the National Bank of Bosnia and Herzegovina held the view that the guarantee covered such savings in domestic banks only (see report 63/94 of the National Bank of Bosnia and Herzegovina of 8 August 1994).

Although all “old” foreign-currency savings remained frozen during the war, withdrawals were exceptionally allowed on humanitarian grounds and in some other special cases (see the relevant secondary legislation).

After the 1992-95 war, each of the Entities (the Federation of Bosnia and Herzegovina (“the FBH”) and the Republika Srpska) enacted its own legislation on “old” foreign-currency savings. Only the FBH legislation is relevant in the present case, given that the branches in issue are situated in that Entity. In 1997 the FBH assumed liability for “old” foreign-currency savings in banks and branches situated in its territory (see section 3(1) of the Claims Settlement Act 1997 and the Non-Residents’ Claims Settlement Decree 1999). Although such savings remained frozen, that Act provided that they could be used to purchase State-owned flats and companies (see section 18 of the Claims Settlement Act 1997, as amended in 2004).

In 2004 the FBH enacted new legislation. It undertook to repay “old” foreign-currency savings in domestic banks in that Entity, regardless of the citizenship of the depositor concerned. Its liability for such savings in the branches of Ljubljanska Banka Ljubljana, Investbanka or other foreign banks, in which the applicants had their accounts, was expressly excluded pursuant to section 9(2) of the Settlement of Domestic Debt Act 2004.

In 2006, liability for “old” foreign-currency savings in domestic banks passed from the Entities to the State. Liability for such savings at the local branches of Ljubljanska Banka Ljubljana and Investbanka was again expressly excluded, but the State was to help the clients of those branches to obtain payment of their savings from Slovenia and Serbia respectively (see section 2 of the Old Foreign-Currency Savings Act 2006). In addition, all proceedings concerning “old” foreign-currency savings ceased by virtue of the same Act (see section 28 of that Act; that provision was declared constitutional by decision U 13/06 of the Constitutional Court of Bosnia and Herzegovina of 28 March 2008, § 35).

As stated in paragraph 21 above, in January 1990 Ljubljanska Banka Sarajevo became a branch, without legal personality, of Ljubljanska Banka Ljubljana; the latter assumed the former’s rights, assets and liabilities. Pursuant to the companies register, the branch acted on behalf of and for the account of the parent bank. At the end of 1991, the foreign-currency savings at that branch amounted to around DEM 250 million, but less than DEM 350,000 had been placed in its vault (the flow of foreign currency between Sarajevo and Ljubljana is described in paragraph 18 above).

A new bank, with the same name as the predecessor of the Sarajevo branch of Ljubljanska Banka Ljubljana – Ljubljanska Banka Sarajevo – was incorporated under the law of Bosnia and Herzegovina in 1993. It assumed unilateral liability for “old” foreign-currency savings at the Sarajevo branch of Ljubljanska Banka Ljubljana, a Slovenian bank.

In 1994 the National Bank of Bosnia and Herzegovina carried out an inspection of the new Ljubljanska Banka Sarajevo and noted many shortcomings. First of all, the management of the new Ljubljanska Banka Sarajevo had not been properly appointed and it was not clear who its shareholders were. The National Bank, for that reason, appointed a director of that bank. Secondly, as a domestic bank, Ljubljanska Banka Sarajevo could not have assumed a foreign bank’s liability for “old” foreign-currency savings, as this would impose new financial obligations on the State of Bosnia and Herzegovina (as the State was the statutory guarantor for “old” foreign-currency savings in all domestic banks). The National Bank ordered that a closing balance sheet for the Sarajevo branch of Ljubljanska Banka Ljubljana as at 31 March 1992 be drawn up urgently and that its relations with the parent bank be defined.

However, according to the companies register, the newly founded Ljubljanska Banka Sarajevo remained liable for “old” foreign-currency savings at Ljubljanska Banka Ljubljana’s Sarajevo branch until late 2004 (see paragraph 35 below). Consequently, it continued to administer “old” foreign-currency savings at Ljubljanska Banka Ljubljana’s Sarajevo branch; around 3% of those savings were used in the privatisation process in the FBH (see paragraph 26 above). In one case, a civil court ordered Ljubljanska Banka Sarajevo to repay a client of Ljubljanska Banka Ljubljana’s Sarajevo branch (see Višnjevac v. Bosnia and Herzegovina (dec.), no. 2333/04, 24 October 2006).

The Constitutional Court of Bosnia and Herzegovina described the pre-2004 situation as “chaotic” (decision AP 164/04 of 1 April 2006, § 55). The Human Rights Chamber for Bosnia and Herzegovina, a domestic human rights body, held that the legal uncertainty surrounding the issue of “old” foreign-currency savings in, inter alia, domestic branches of Ljubljanska Banka Ljubljana and Investbanka during that period amounted to a violation of Article 1 of Protocol No. 1 (see decision CH/98/377 and others of 7 November 2003, § 270).

In 2003 the FBH Banking Agency placed the domestic Ljubljanska Banka Sarajevo under its provisional administration on the ground that it had undefined relations with Ljubljanska Banka Ljubljana, a foreign bank located in Slovenia.

By virtue of an amendment to the Companies Register Act 2000, in 2003 the FBH Parliament extended the statutory time-limit for the deletion of wartime entries in the companies register until 2004. Shortly thereafter, in November 2004, the Sarajevo Municipal Court decided that the domestic Ljubljanska Banka Sarajevo was not the successor of the Sarajevo branch of the Slovenian Ljubljanska Banka Ljubljana; that it was not liable for “old” foreign-currency savings in that branch; and that, as a result, the 1993 entry in the companies register stating otherwise ought to be deleted.

In 2006 the domestic Ljubljanska Banka Sarajevo sold its assets to a Croatian company which, in return, undertook to pay the debts of that bank. At the same time, the premises of the Sarajevo branch of the Slovenian Ljubljanska Banka Ljubljana, under the administration of the FBH government pending the final determination of the status of that branch, were let out to the same Croatian company on behalf and for the account of Ljubljanska Banka Ljubljana.

In 2010 the competent court opened bankruptcy proceedings against Ljubljanska Banka Sarajevo in Bosnia and Herzegovina. The proceedings are still pending.

The Tuzla branch of Investbanka has always had the status of a branch without legal personality. The balance of the “old” foreign-currency savings at that branch was approximately USD 67 million (approximately DEM 100 million) as at 31 December 1991. The branch closed in June 1992 and has never resumed its activities. It is not clear what happened to its funds.

In 2002 the competent court in Serbia made a bankruptcy order against Investbanka. The Serbian authorities then sold the premises of the FBH branches of Investbanka (those in the Republika Srpska had been sold in 1999). For example, for the sale of the premises in Džafer Mahala Street in Tuzla the Serbian authorities obtained 2,140,650 euros. The bankruptcy proceedings against Investbanka are apparently still pending.

In 2010 the FBH government decided to place the premises and archives of the FBH branches of Investbanka under its administration. However, it would appear that Investbanka no longer had any premises or archives in the FBH.

In 2011, at the request of the FBH authorities, the Serbian authorities opened a criminal investigation into the manner in which the archives of the Tuzla branch had been transferred to the Serbian territory in 2008.

The Croatian Government stated that they had repaid “old” foreign-currency savings in domestic banks and their foreign branches, regardless of the citizenship of the depositor concerned. Indeed, it is clear that they repaid such savings of Bosnian-Herzegovinian citizens deposited in Bosnian-Herzegovinian branches of Croatian banks. However, the Slovenian Government provided the Court with decisions of the Supreme Court of Croatia (Rev 3015/1993-2 of 1994, Rev 3172/1995-2 of 1996 and Rev 1747/1995-2 of 1996) holding that the term used in the relevant legislation (građanin) meant a Croatian citizen (compare Kovačić and Others, cited above, § 77).

Croatia allowed its citizens to transfer their “old” foreign-currency savings from the Zagreb branch of Ljubljanska Banka Ljubljana to Croatian banks (see section 14 of the Old Foreign-Currency Savings Act 1993 and the relevant secondary legislation). Apparently, about two-thirds of all clients of that branch availed themselves of that possibility. In March 2013 Croatia and Slovenia signed a memorandum of understanding, urging further succession negotiations regarding those transferred savings. As to the clients who did not transfer their savings from the Zagreb branch of Ljubljanska Banka Ljubljana to Croatian banks, which savings amounted to approximately DEM 300 million, some of them pursued civil proceedings in the Croatian courts: sixty-three of them obtained their “old” foreign-currency savings from a forced sale of assets of that branch located in Croatia (decisions of the Osijek Municipal Court of 8 April 2005 and 15 June 2010; see also Kovačić and Others, cited above, §§ 122-33); while others have pursued or are currently pursuing civil proceedings in the Slovenian courts (see paragraph 51 below). According to official papers provided by the Croatian Government, Ljubljanska Banka Ljubljana and its Zagreb branch no longer have any assets in Croatia.

After the dissolution of the SFRY, “old” foreigncurrency savings in Serbian banks remained frozen. However, withdrawals were exceptionally allowed on humanitarian grounds regardless of the citizenship of the saver concerned and the location of the branch in issue (see the relevant secondary legislation). Furthermore, the Serbian courts ruled on at least one occasion that the banks based in Serbia were liable for “old” foreign-currency savings at their branches located in Bosnia and Herzegovina (see Šekerović v. Serbia (dec.), no. 32472/03, 4 January 2007).

In 1998, and then again in 2002, Serbia agreed to repay, partly in cash and partly in government bonds, “old” foreign-currency savings in domestic branches of domestic banks of its citizens and of citizens of all States other than the successor States of the SFRY together with “old” foreign-currency savings in foreign branches of domestic banks (such as the Tuzla branch of Investbanka) of citizens of all States other than the successor States of the SFRY. Those government bonds were to be amortised by 2016 in twelve annual instalments and earned interest at an annual rate of 2% (section 4 of the Old Foreign-Currency Savings Act 2002). As regards the amount to be repaid, Serbia undertook to reimburse original deposits with interest accrued by 31 December 1997 at the original rate and interest accrued after that date at an annual rate of 2% (section 2 of the same Act).

However, other “old” foreign-currency savings (that is, the savings of citizens of the SFRY successor States other than Serbia deposited in all branches of Serbian banks, both domestic and foreign, as well as the savings of Serbian citizens in Serbian banks’ branches located outside Serbia) were to remain frozen pending succession negotiations, as was the case for example of the third applicant’s deposits. Furthermore, all proceedings concerning “old” foreign-currency savings ceased by virtue of sections 21 and 22 of the Old Foreign-Currency Savings Act 1998 and sections 21 and 36 of the Old Foreign-Currency Savings Act 2002.

According to the companies register, Investbanka is State-owned. It is controlled by the Deposit Insurance Agency of Serbia. As a State-owned entity, it had to write off its large claims against State- and socially-owned companies in order to enable their privatisation pursuant to the Privatisation Act 2001. In January 2002 the competent court made a bankruptcy order against Investbanka. The bankruptcy proceedings are pending. Hundreds of savers at Bosnian-Herzegovinian branches of Investbanka unsuccessfully applied to be paid back within the context of the bankruptcy proceedings. Twenty of them then pursued civil proceedings against Investbanka, but to no avail.

In 1991 Slovenia assumed the statutory guarantee from the SFRY for “old” foreign-currency savings in domestic branches of all banks (including Investbanka and other foreign banks), regardless of the citizenship of the depositor concerned (see section 19(3) of the 1991 Constitutional Act on the Implementation of the Fundamental Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia – “the 1991 Constitutional Act”), and converted the banks’ liabilities towards depositors into public debt (see the Old Foreign-Currency Savings Act 1993). Slovenia thus undertook to repay original deposits and interest accrued by 31 December 1990 at the original rate, as well as interest accrued from 1 January 1991 until 31 December 1992 at an annual rate of 6% (section 2 of the Old Foreign-Currency Savings Act 1993). As regards the period thereafter, the interest rate depended on whether a depositor had opted for government bonds or cash. The depositors were entitled to obtain either government bonds, which were to be amortised by 2003 in twenty biannual instalments and earned interest at an annual rate of 5%, or cash from the banks in which they had money, together with interest at the market rate plus 0.25% in ten biannual instalments. In the latter case, the banks were to be issued with government bonds. Some depositors opted for government bonds as they could use them to purchase State-owned flats and companies and to pay taxes and pension contributions.

Shortly after its declaration of independence, Slovenia nationalised and then, in 1994, restructured Ljubljanska Banka Ljubljana by virtue of an amendment to the 1991 Constitutional Act. Most of its assets and a part of its liabilities were transferred to a new bank – Nova Ljubljanska Banka (see section 22(b) of that Act, cited in paragraph 54 below). The old bank retained liability for “old” foreign-currency savings in its branches in the other successor States and the related claims against the NBY (ibid.). On the basis of that Act, domestic courts rendered a number of decisions ordering the old Ljubljanska Banka Ljubljana to pay “old” foreign-currency savings to clients at its Sarajevo branch; at the same time, domestic courts considered that the Slovenian State itself had no liabilities in this regard (see the Supreme Court judgments II Ips 415/95 of 27 February 1997; II Ips 613/96 of 1 April 1998; and II Ips 490/97 of 21 January 1999). The old Ljubljanska Banka Ljubljana was initially administered by the Bank Rehabilitation Agency. It is now controlled by a Slovenian government agency – the Succession Fund.

In 1997 all proceedings concerning “old” foreign-currency savings in the old Ljubljanska Banka Ljubljana’s branches in the other successor States (with the exception of third-instance proceedings before the Supreme Court) were stayed pending the succession negotiations (see the Succession Fund of the Republic of Slovenia Act 1993, as amended in 1997, and the Succession Fund and the Senior Representative for Succession of the Republic of Slovenia Act 2006). In December 2009 the Constitutional Court of Slovenia, upon a petition of two Croatian savers, declared that measure unconstitutional.

The Ljubljana District Court has since given many judgments ordering the old Ljubljanska Banka Ljubljana to pay “old” foreign-currency savings in its Sarajevo branch together with interest (see, for example, judgment P 119/1995-I of 16 November 2010, which became final and binding on 4 January 2012 when it was upheld by the Ljubljana Higher Court; judgment P 9/2007-II of 7 December 2010; and judgment P 1013/2012-II of 10 January 2013). The court explained that, according to the SFRY law, branches had acted on behalf and for the account of parent banks. Moreover, according to the Slovenian law, the old Ljubljanska Banka Ljubljana retained liability for “old” foreign-currency savings in its Sarajevo branch. The court considered it irrelevant that a homonymous bank, Ljubljanska Banka Sarajevo, had assumed liability of the old Ljubljanska Banka Ljubljana for savings at the Sarajevo branch in 1993 (see paragraph 30 above) as that had been done without the approval of the parent bank or the depositors. In any event, the competent court in Bosnia and Herzegovina had deleted the 1993 entry in the companies register to that effect in 2004 (see paragraph 35 above). The Ljubljana District Court also considered it irrelevant that some foreign currency had been transferred to the NBY’s foreign accounts in accordance with the redepositing scheme set out above.

The former Yugoslav Republic of Macedonia paid back “old” foreign-currency savings in domestic banks and local branches of foreign banks, such as the Skopje branch of Ljubljanska Banka Ljubljana, regardless of the citizenship of the depositor concerned.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicants’ personal details as well as the facts in relation to each case are set out in the appendix.

The applicants complained of the excessive length of different civil proceedings under Article 6 § 1 of the Convention.

In the first applicant’s case the Constitutional Court found a violation of his right to a hearing within a reasonable time, but failed to award any damages. As regards the third applicant the Constitutional Court rejected its appeal. Lastly, as regards the other two applicants, the Constitutional Court held that they had not raised a complaint about the length of the proceedings.


Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

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