Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

A list of the applicants is set out in the appendix. All the applicants are nationals of Bosnia and Herzegovina and are represented by Ms T. Drobnjak, a lawyer practicing in Belgrade.

The Serbian Government (“the Government”) are represented by their Agent, Ms N. Plavšić.

Following its declaration of independence from the former Socialist Federal Republic of Yugoslavia (SFRY) in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. The following local forces were the main parties to the conflict: the Army of the Republic of Bosnia and Herzegovina (Armija Republike Bosne i Hercegovine, hereinafter ARBH), which was mostly made up of Bosniacs and loyal to the central authorities in Sarajevo, the Croatian Defence Council (Hrvatsko vijeće odbrane, hereinafter HVO), which was mostly made up of Croats, and the Army of the Republika Srpska (Vojska Republike Srpske, hereinafter VRS) which was mostly made up of Serbs. The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force between Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (succeeded by Serbia by 2006).

Žepa, a town in eastern Bosnia and Herzegovina, is situated some twelve kilometres from the border with Serbia. Before the war it had a population of less than 3,000, of whom the majority were Bosniacs. During the war, Žepa was one of three Bosniac enclaves in eastern Bosnia surrounded by the VRS. In 1993 it was declared a “safe area” by the United Nations Security Council.

In 1995, there were between 6,500 and 8,000 people living in Žepa, of whom some two-thirds were displaced persons from other parts of Bosnia and Herzegovina.

On 12 July 1995 the VRS attacked the Žepa “safe area”, capturing it on 25 July. In the days that followed, several hundred Bosniacs – predominantly able-bodied men who refused to surrender to VRS forces – managed to cross the border and flee to Serbia. The present applicants’ relatives were among them.

When Žepa was captured by the VRS, the applicants’ relatives (Mr Abid Agić, the brother of the first applicant; Mr Šećan Dizdarević, the son of the second applicant and brother of the third and the fourth applicant; Mr Edem Torlak, the father of the fifth applicant and the husband of the sixth applicant; and Mr Meho Jahić, the husband of the seventh applicant) crossed into Serbia from Bosnia and Herzegovina, hoping that they would be able to find refuge in a third country. They were discovered by a border guard patrol of the Yugoslav Army (Vojska Jugoslavije, hereinafter VJ) and taken to two detention camps. It would appear that more than 800 exiled individuals were brought to the camps between 29 July and 3 August 1995. The applicants claim that the men received notification that they had prisoner-of-war status; it is not clear whether all of them were indeed members of ARBH or some of them were civilians. The first camp, Šljivovica, was situated in the municipality of Čajetina and the second, Mitrovo Polje, in the municipality of Aleksandrovac, both in Serbia. The Šljivovica detention camp was located in an abandoned workers’ barracks and Mitrovo Polje in a former children’s recreational facility.

Both camps were guarded by the Serbian police force and none of the applicants was allowed to leave them. According to the applicants, during their transportation to the camps or while interned in them, their relatives were either murdered or died as a result of torture and lack of medical assistance.

During their existence the camps were visited by representatives of the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina. The latter compiled a report in which it found that the conditions of detention were disturbing.

Following the entry into force of the Dayton Agreement, the UNHCR facilitated the transfer of the camp survivors into third countries and the camps were closed in February/April 1996.

The applicants maintained that Mr Agić, along with the other men, was captured by a border guard stationed at the Jagoštica watch-tower on 31 July or 1 August 1995. Upon capture and before being handed over to the competent police authorities, he was severely beaten by the soldiers and died there from the injuries sustained.

The Government maintained that nobody by the name of Abid Agić is mentioned in the relevant police or military records.

The applicants maintained that Mr Dizdarević, who was seventeen years old at the time, was captured along with the other men by a border guard stationed at the Jagoštica watch-tower on 31 July or 1 August 1995. Upon capture and before being handed to the competent police authorities, he was repeatedly kicked in the abdomen by the soldiers, sustaining internal injuries as a result. He was then transferred to an internment camp where, despite the deterioration of his health, he was not provided with medical care. He died of the inflicted injuries on the way to hospital on 9 September 1995.

The Government maintained that the autopsy report shows that Mr Dizdarević died of natural causes due to “heart failure and stay of breathing resulting from self-poisoning caused by deterioration of part of the small intestine, aggravated by breathing of stomach contents as a result of vomiting and acute inflammation of the stomach.”

The applicants made no comment on the Government’s submission.

Mr Torlak was detained at the Jagoštica watch-tower and transported to the Šljivovica camp on 1 August 1995. He was transported with another sixty detainees in a closed curtainside truck designed to transport a maximum of twenty people. He died apparently of suffocation during transportation. His body was taken out of the truck and buried on 11 August 1995 by the Muslim religious community in the Priboj cemetery. There is apparently a pathologist’s report of 10 August 1995, without post mortem examination, stating that he had died from heart attack.

In June 2007 the Serbian Commission for missing persons ordered the exhumation of his corps, identified him and transported him to Bosnia and Herzegovina. The Commission stated in its request to a competent court that it did not have any information that the persons may have died by the cause of a crime. The autopsy could not determine the cause of death due to the corps’ state.

The applicants maintain that Mr Jahić was severely beaten by guards at the Šljivovica camp and that he died of the injuries inflicted in October 1995.

The Government maintained that the only person registered as a detainee under the name of Meho Jahić at the Šljivovica camp was transferred to the Office of the UN High Commissioner for Refugees in Belgrade on 7 December 1995 and had been scheduled for emigration to Ireland. They further claim that this person died on 25 January 2005 in Hrasnica, Ilidža, Bosnia and Herzegovina and was buried in Vlakovo, Ilidža, Bosnia and Herzegovina.

On 6 September 2011 the Humanitarian Law Centre (Fond za humanitarno pravo, hereinafter FHP), a Belgrade-based NGO, lodged a criminal complaint on behalf of the applicants and other individuals as victims with the Office of the War Crimes Prosecutor of Serbia (Tužilaštvo za ratne zločine, hereinafter OWCP) against more than fifty individuals for alleged war crimes (see paragraph 32 below). In its criminal complaint the FHP submitted statements from the camps’ detainees, medical documentation, documentation from the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina, and other evidence. They submitted an extensive list of potential witnesses and proposed other investigative steps. Among those alleged to have taken part in the killings, the Centre identified members of the State Security Agency of Serbia, police officers, and military servicemen of various ranks. It would appear that on 8 September 2011 the OWCP requested the FHP to provide evidence it referred to in the criminal complaint, but the FHP apparently failed to do so.

On 23 September 2011 the OWCP undertook a preliminary verification of the information submitted by the applicants and requested the Ministry of the Interior and the Ministry of Defence to submit information regarding the criminal complaint.

On 17 November 2011 and 2 December 2011 the Ministry of the Interior submitted two reports to the OWCP. In their reports it was stated that the situation in the camps had been generally good, that the camps had not been enclosed behind a fence, and that residents who were given refugee status had had access to health services, a canteen, a post office, a phone, a bank, and both private visits and visits by officials from international organisations. While one of the reports describes the conditions in Šljivovica camp as unsatisfactory, the conditions in Mitrovo Polje were described as lodgings with the quality of “hotel accommodation”. This preliminary examination also revealed some inconsistencies and irregularities in the criminal complaint regarding the identity of the alleged victims and the circumstances of their death and burial.

On 1 March 2013 the OWCP notified the FHP that it decided, having regard to the FHP’s allegations and evidence collected by the OWCP, not to prosecute (da nema mesta krivičnom gonjenju, Ktrr. 134/11) on the ground that there had not been elements of the alleged war crime or any other crime within the OWCP’s jurisdiction in the acting of the suspects. A reasoned decision (rešenje o odbačaju), if it had been made in writing, has neither been sent to the applicants, nor to the FHP.

On 8 April 2013 the applicants lodged a constitutional appeal before the Constitutional Court of Serbia, claiming violations of Articles 2, 3 and 6 of the Convention. On 4 February 2014 the Constitutional Court rejected the applicants’ constitutional appeal, finding that, given the legal nature and content of the OWCP’s decision, it could not be considered as an individual act which was decisive with respect to the applicants’ human rights, as required by Article 170 of the Constitution (da se ne radi o pojedinačnom aktu iz člana 170. Ustava; see paragraph 25 below).

The decision of the Constitutional Court was delivered to the applicants’ representative on 2 July 2014.

The relevant provisions of the Constitution read as follows:

Article 170

“A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.”

The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in OG RS no. 39/03) was in force until 1 January 2006. The relevant provisions thereof are set out hereunder.

Article 95 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows:

“(1) If not prescribed differently by this Code, criminal liability shall be statutebarred:

1) twenty-five years from the date on which the offence was committed in instances where the law provides for the death penalty or twenty years’ imprisonment;

2) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years;

3) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years;

4) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years;

5) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year;

Article 100 of the same Code is worded as follows:

“The statutory limitation of criminal liability does not apply to the crimes covered by Articles 141-145 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by international treaties.”

The Criminal code of the Republic of Serbia (Official Gazette of the Republic of Serbia, nos. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012 and 104/2013) entered into force on 1 January 2006.

Article 103 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows:

1) twenty-five years from the date on which the offence was committed where the law provides for thirty to forty years’ imprisonment;

2) twenty years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding fifteen years;

3) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years;

4) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years;

5) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years;

6) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year;

“The statutory limitation of criminal liability does not apply to crimes covered by Articles 370-375 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by ratified international treaties.”

Article 142 - War crime against the civilian population

“Whoever, acting in violation of the rules of international law applicable in time of war, armed conflict or occupation, orders that a civilian population be subject to killing, torture, inhumane treatment, biological experiments, immense suffering or violation of their bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, hostage-taking, imposition of collective punishment, unlawful transfer to concentration camps or other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of the enemy’s army or in its intelligence service or administration; forced labour, starvation of the population, property confiscation, pillaging, illegal and intentional destruction or large-scale stealing of property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency; or personally commits one of the aforementioned actions, shall be punished by not less than five years’ imprisonment or the death penalty.”

Article 144 - War crime against prisoners of war

“Whoever, acting in violation of the rules of international law, orders the murder, torture or inhumane treatment of prisoners of war, including biological experiments, extreme suffering or serious injury to their bodily integrity or health, compulsory enlistment in the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or personally commits any of the aforementioned acts, shall be punished by not less than five years’ imprisonment or by the death penalty.”

The Criminal Code of the Socialist Republic of Serbia (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77 and 20/79) was in force in until 1 January 2006. Its relevant provisions read as follows:

Article 47 – Murder

“(1) Whoever causes the death of another shall be punished by not less than five years’ imprisonment.

(2) No less than twelve years’ imprisonment or the death penalty shall be imposed on whoever:

1) causes the death of another in a cruel or insidious manner;

2) causes the death of another by callous, violent behaviour;

3) causes the death of a person and with premeditation endangers the life of (an)other person(s);

4) causes the death of another for the purpose of gain, or to commit or conceal another offence, or for callous revenge or other base motives;

5) causes the death of an official or serviceman during the discharge or related to the discharge of duties concerning the state or public security...;

6) with premeditation causes the death of several persons, where this is not a case of manslaughter committed in the heat of passion, or infanticide, or mercy killing.

Article 53 – Serious bodily harm

“(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment of between six months and five years.

(2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to ten years’ imprisonment.

(3) If the injured party dies as a consequence of sustained injuries according to paragraphs 1 and 2 of this Article, the perpetrator shall be punished by one to twelve years’ imprisonment.”

Article 113 - Murder

Whoever causes the death of another shall be punished by imprisonment of between five and fifteen years.

Article 114 - Aggravated Murder

Whoever:

2) causes the death of another by callous violent behaviour;

3) causes the death of another and with premeditation endangers the life of another person;

5) causes the death of another for the purpose of gain, or to commit or conceal another offence, or for callous revenge or other base motives;

9) with premeditation causes the death of several people, where this is not a case of manslaughter committed in the heat of passion, or infanticide, or mercy killing;

shall be punished by thirty to forty years’ imprisonment .

Article 121 – Serious bodily harm

(2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to eight years’ imprisonment.

(3) If the actions specified in paragraphs 1 and 2 of this Article result in the death of the injured party, the offender shall be punished by two to twelve years’ imprisonment.

Article 371 – Crime against humanity

“Whoever, acting in violation of the rules of international law, orders as part of a wider and systematic attack against a civilian population: murder; placement of the group in living conditions calculated to bring about its complete or partial extermination, enslavement, deportation, torture, or rape; enforced prostitution; forcible pregnancy or sterilisation aimed at changing the ethnic balance of the population; persecution on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information about such acts in order to deny such person legal protection; oppression of a racial group or establishing domination of one such group over another; or other similar inhumane acts that intentionally cause serious suffering or serious impairment of health, or personally commits any of the aforementioned offences, shall be punished by imprisonment of at least five years or imprisonment of between thirty and forty years. ”

Article 372 – War crime against civilian population

(1) Whoever, acting in violation of international law in time of war, armed conflict or occupation orders: an attack on the civilian population, a settlement, particular civilians, persons incapable of combat or members or facilities of humanitarian organisations or peacekeeping missions; wanton attack without target selection that harms the civilian population or civilian buildings under the special protection of international law; an attack against military targets knowing that such an attack would cause collateral damage among civilians or damage to civilian buildings that is evidently disproportionate to the military effect; the infliction on the civilian population of bodily injury, torture, inhumane treatment, biological, medical or other research experiments, or the taking of tissue or organs for transplantation or the performing of other acts that impair health or inflict great suffering or the deportation or relocation or forced change of nationality or religion; forcible prostitution or rape; applying intimidation and terror measures, taking hostages, collective punishment, unlawful deprivation of freedom and detention; deprivation of the rights to a fair and impartial trial; declaration of the prohibition, suspension or non-admissibility in court proceedings of the rights and acts of enemy nationals; the coercion into service of a hostile power or its intelligence or administration services; the coercion into military service of persons under seventeen years of age; forced labour; starvation of the population; unlawful seizure, appropriation or destruction of property not justified by military needs; taking unlawful and disproportionate contributions and requisitions; devaluation of local currency or unlawful issuing of currency, or personally commits any of the above offences, shall be punished by at least five years’ imprisonment.

Article 374 – War crimes against prisoners of war

“(1) Whoever, acting in violation of international law, orders the injury, torture, or inhumane treatment of prisoners of war, or biological, medical or other research experiments on them, or the taking of their tissues or body organs for transplantation or the commission of other acts harmful to health and causing them serious suffering, or compels prisoners of war to serve in the forces of a hostile power or deprives them of the rights to fair and regular trial; or personally commits any such offences, shall be punished by at least five years’ imprisonment.

(2) Whoever orders the murder of prisoners of war or personally commits such an offence, shall be punished by at least ten years’ imprisonment or imprisonment of between thirty and forty years.”

This Act (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal were set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act).

In a number of previous cases concerning war crimes, the OWCP has treated the war in Bosnia and Herzegovina between June 1992 and 1995 as an internal armed conflict (see the judgments in cases Škorpioni, Zvornik I, Bijeljina, Prijedor, Zvornik II and Stari Majdan). The majority of the indictments in these cases came into being before 2006. The final judgments in most of these cases had been adopted by the domestic courts by 2010.


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

The applicants was born in 1976 and lives in Porto.

On 28 August 1996 the applicant instituted an action for the settlement of accounts in inventory proceedings (ação especial de prestação de contas em inventário) before the Penafiel Court.

From 20 December 1996 to 24 April 1997 the administrator of the estate (cabeça de casal) was notified, challenged the action and submitted the relevant accounts, which were contested by the applicant.

On 23 February 1998 the judge gave instructions setting out the matters that had already been established and those that remained outstanding (despacho saneador). On 17 June 1998 the evidence submitted by the parties was admitted by the Penafiel Court.

On 17 September 1998 the applicant revoked the power of attorney given to her lawyer in the proceedings and on 6 November 1998 requested legal aid, which was granted by the State’s Attorney’s Office on 5 February 1999. On 22 February 1999 a lawyer was appointed to represent the applicant.

On 19 March 1999, following a request of the applicant’s representative, the hearing scheduled to 24 March 1999 was adjourned.

On 19 October 1999 the hearing was adjourned because the representative of the administrator of the estate failed to appear. The hearing was adjourned to 9 May 2000.

On 2 May 2000 the applicant requested to represent herself in the proceedings.

On 9 May 2000 the applicant’s request was granted and the first hearing was held. The hearing continued on 24 May 2000.

On 5 June 2000 the Penafiel Court adopted a decision with regard to the factual basis (matéria de facto) and on 14 September 2000 it delivered its judgment in which it ruled against the applicant.

On 25 September 2000 the applicant appealed against the decision before the Porto Court of Appeal, which delivered a decision remitting the case to the first-instance court on 5 June 2001.

Between 5 June 2001 and 23 June 2010 the proceedings were again analysed by the first-instance court to which they were remitted twice. On 23 June 2010 the Penafiel Court adopted its fourth judgment in the proceedings.

Between 7 July 2010 and March 2013 the applicant lodged different appeals before the Porto Court of Appeal, the Supreme Court of Justice and the Constitutional Court.

On 10 May 2013 the Constitutional Court adopted the final decision in the proceedings.

On 23 November 1995 the applicant instituted inventory proceedings (processo especial de inventário) before the Porto Court.

Between 13 December 1995 and 14 November 1996 several procedural steps took place, namely, the appointment of the administrator of the estate (cabeça de casal) and declarations from the parties.

On 23 May 1997 a conference between the parties (conferência de interessados) started. The conference was adjourned to 25 June 1997 at the request of the parties who argued they would try to reach an agreement.

On 25 June 1997, at the request of the parties, the proceedings were stayed for ten days.

On 8 September 1997 the applicant requested information to the administrator of the estate with regard to certain amounts which had allegedly been received by her. On 20 October 1997 the administrator of the estate replied.

On 27 November 1997 the conference of the parties continued and the representative of administrator of the estate requested the suspension of the proceedings due to the death of the latter.

Between 4 December 1997 and 23 June 1998 procedural steps were taken in view of the continuation of the proceedings against the heirs of the deceased administrator of the estate (incidente de habilitação de herdeiros). In this period a second administrator of the estate was appointed.

Between 18 September 1998 and 7 January 1999 the applicant revoked the power of attorney given to her lawyer in the proceedings and requested legal aid, which was granted.

On 19 March 1999 the conference of the parties was scheduled to 26 May 1999.

On 21 April 1999 the administrator of the estate requested a second set of proceedings against the heirs of her father. On 10 December 1999 the Porto Court admitted the heirs as parties to the proceedings.

Between 17 February 2000 and 21 June 2000 the Porto Court attempted to notify one of the heirs.

On 14 December 2000 the conference of the parties was adjourned due to the death of a J.L.E, party to the proceedings. On 13 March 2001 proceedings were initiated against the heirs of J.L.E, seeking their intervention in the proceedings.

On 13 December 2001 the conference of the parties was adjourned at the request of the parties who sought to reach an agreement. The agreement between the parties failed.

Between 30 January 2002 and 5 June 2006 the parties lodged several requests with the Porto Court, to which it promptly replied.

On 21 November 2002 a third set of proceedings against the heirs of M.P.E., party to the proceedings, was initiated; having ended on 16 January 2003.

On 11 June 2003 the Porto Court adopted a decision with regard to the partition of the estate (sentença de partilha).

On 29 September 2003 the applicant appealed against the decision before the Porto Court of Appeal. By a decision of 7 April 2004 the Porto Court of Appeal quashed the first-instance decision, annulled all the procedural steps taken and remitted the case to the Porto Court.

Between 13 October 2004 and 5 January 2005 several procedural steps took place, in particular, notifications, a request made by the applicant and delivering of declarations.

On 25 January 2005 the Porto Court ordered the suspension of the proceedings in order to determine the legal standing of one of the parties. Between 9 February 2005 and 22 November 2005, the applicant appealed against this decision before the Porto Court of Appeal – which was dismissed – and the administrator of the estate requested the continuing of the proceedings, which was determined by the Porto Court.

On 31 January 2007 the conference of the parties was adjourned to 3 May 2007, which continued on 6 June 2007.

Between 11 June 2007 and 14 June 2011 several applications were made and challenged by the parties, different appeals were lodged by the applicant and several notifications were made by the Porto Court, which promptly replied to all requests.

On 14 June 2011 the Porto Court adopted a decision with regard to the partition of the estate. On 30 June 2011 the applicant appealed against the decision, which was dismissed by the Porto Court of Appeal on 24 April 2012.

Between May 2012 and June 2013 the applicant lodged three appeals before the Supreme Court of Justice and two appeals before the Constitutional Court. The appeals were dismissed, the last decision being adopted by the Constitutional Court on 22 October 2013.

On 2 February 2014 the applicant started proceedings seeking the enforcement of the decision with regard to the partition of the estate (processo especial de execução de inventário), which is still pending before the Porto Court.


András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicant, Mr Cengiz Sinan Halis Çelik, is a Turkish national, who was born in 1974 and is currently serving a prison sentence.

On 24 April 2012, based on Rule 123 of the Prison Regulations, the reading committee of the Tekirdağ F-Type prison decided that a document posted to the applicant by a third person and which had been drafted in Kurdish should not be remitted to the applicant, as it was considered that the content of the document might be offensive.

On 30 May 2012 the Tekirdağ Enforcement Judge dismissed the applicant’s objection.

On 12 September 2012 the Tekirdağ Assize Court further dismissed the applicant’s appeal.

A full description of the domestic law and practice at the relevant time may be found in Mehmet Nuri Özen and Others v. Turkey, nos. 15672/08, 24462/08, 27559/08, 28302/08, 28312/08, 34823/08, 40738/08, 41124/08, 43197/08, 51938/08 and 58170/08, §§ 30-34, 11 January 2011.

A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey (dec.), no. 44013/07, §§ 9-17, 27 May 2014.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Positive obligations);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Ksenija Turković

The applicant was born in 1981 and lives in Istanbul.

On 24 May 2001 the applicant started his compulsory military service in Şırnak. On 25 July 2001 he contacted the infirmary of his regiment, complaining of severe pain in his left eye. According to the applicant, the military doctor was absent and he was given eye drops by a soldier who had no medical qualifications. According to the Government, the records of the infirmary (which were not made available to the Court) showed that the applicant had been examined by a military doctor and given eye drops by that doctor and not by a soldier.

The following day the pain became persistent, so the applicant contacted the infirmary once again. He was told that he should go to his dormitory and rest. According to the applicant, despite the pain he was in, he was not relieved of his sentry duties during that period. On 2 August 2001 he was referred to the Cizre State Hospital, where he was diagnosed with a corneal ulcer.

On 6 August 2001 the applicant was transferred to the Diyarbakır Military Hospital, where his treatment started. However, he completely lost the sight in his left eye. According to the applicant, the doctors informed him that he had lost his eyesight because of the delay in starting the treatment, as in corneal ulcer cases it was essential to start treatment immediately.

On 13 August 2001 the applicant was transferred to Ankara GATA Military Hospital for further treatment. He stayed there until 25 September 2001, during which time he underwent several operations. He returned to the hospital for a number of additional operations from 9 November 2001 to 7 February 2002, 10 to 21 March 2002, 2 to 10 May 2002, and lastly, 15 to 18 July 2002.

A medical report issued on 17 July 2002 concluded that the applicant was no longer medically fit for military service and that he was eligible for an ocular prosthesis. On the basis of that report, the applicant was formally discharged from the army.

On 15 October 2002 the applicant instituted proceedings before the Supreme Military Administrative Court, seeking compensation from the Ministry of the Interior for the damage he had suffered to his eye during his compulsory military service as a result of the delay in his treatment. He claimed 30,000,000,000 Turkish liras (TRL; approximately 19,000 euros (EUR)) in respect of pecuniary damage and TRL 30,000,000,000 in respect of non-pecuniary damage. He argued that for a period of one week after the start of his eye problem, he had been unable to see a doctor because there had been no doctor present at his regiment infirmary during that time. He gave the administrative court the names of a number of his fellow conscripts who had witnessed the fact that he had not been provided with medical treatment by a doctor in the first week but had instead been told to rest and use eye drops, and asked the court to question them.

In the written defence submissions that it sent to the administrative court, the Gendarmerie High Command argued that on 25 and 26 July 2001 the applicant had been examined at the infirmary of his regiment by military doctor İ.H.Ş., who had prescribed medication for him.

In his observations submitted to the administrative court on 6 January 2003 in response to those of the Gendarmerie High Command, the applicant maintained his allegation that on his first visit to the infirmary he had been examined by a soldier because the military doctor, İ.H.Ş., had been temporarily dispatched to another regiment. He repeated his request that witnesses be summoned to testify before the administrative court and asked the administrative court also to summon and question Dr İ.H.Ş.

During the proceedings the administrative court appointed three university professors from the ophthalmology department of Gazi University’s Faculty of Medicine as experts with a view to clarifying whether there had been any medical malpractice in the applicant’s case. Their expert report drawn up on 6 April 2005 concluded:

“Our medical opinion, based on our examination of the plaintiff’s allegations, is as follows:

It is understood that, although the problem in the patient’s eye is described in the medical reports as a ‘corneal ulcer’, the cause of the corneal ulcer (Herpes virus? Fungal infection? Bacterial infection?) is not known. Furthermore, it is considered that it was not possible to establish with certainty the infection factor at the hospitals where the patient was observed and treated. For this reason, it is not possible to decide whether the eye problem was related to his military service or whether it was idiosyncratic.

Similarly, because the problem could not be fully diagnosed, it was not possible to determine the outcome [of the applicant’s symptoms] within one to two weeks.

[We are of the opinion that] there were no delays, shortcomings, mistakes or negligence in the steps taken in transferring the patient to the hospital, diagnosing the problem, treating the problem or treating the patient.”

The applicant submitted a written statement to the administrative court on 29 April 2005, arguing that the medical report contained contradictory conclusions. He pointed out that, although the experts had indicated in the report that the problem had not been fully diagnosed, they had then gone on to conclude that there had been no shortcomings in the diagnosis of the problem. He further argued that the conclusion reached by the experts, namely that “because the problem could not be fully diagnosed, it was not possible to determine the outcome [of the applicant’s symptoms] within one to two weeks”, fully supported his allegations. His contention was also that, precisely because the problem had not been diagnosed properly, the treatment had not started in a timely manner. The applicant asked the administrative court to take steps to eliminate the inconsistencies by requesting and obtaining additional reports from a different set of experts.

In his written opinion submitted to the Supreme Military Administrative Court, the public prosecutor stated that the applicant should be awarded compensation either for the authorities’ negligence if such negligence was established, or on the basis of the no-fault strict liability of the military administration.

On 18 May 2005 the Supreme Military Administrative Court, on the basis of the expert report of 6 April 2005 (see paragraph 14 above), dismissed the applicant’s claim by a majority of four to one and held that no fault could be attributed to the military authorities in the treatment of the applicant.

In its decision the Supreme Military Administrative Court did not deal with the applicant’s allegation that between 25 July and 2 August 2001 he had been unable to see a doctor in the regiment infirmary because there had not been a doctor there during that time, other than stating that the applicant had “contacted the infirmary of the regiment on 25 and 26 July 2001 and started receiving medical treatment there”. Nor did the administrative court respond to the applicant’s requests to have his witnesses heard.

A dissenting judge stated in his separate opinion that issues such as the cause of the problem, whether or not it had been as a result of the applicant’s military activities, and what bearing the one-to-two week delay had had on the outcome had not been established in the expert report of 6 April 2005. The dissenting judge thus considered that the administrative court should not have decided the case without having obtained a new report and clarified those points.

The applicant requested a rectification of the administrative court’s decision. He claimed, in particular, that his arguments had not been examined adequately by the court and repeated his arguments regarding the contradictions in the expert report of 6 April 2005.

On 21 September 2005 the Supreme Military Administrative Court refused the applicant’s rectification request by a majority of four to one.

According to a medical report of 9 October 2009 issued by the Haseki Hospital, the applicant was deemed to be suffering from a permanent disability as a result of the loss of sight in his left eye. It was indicated that his ability to work had been reduced by 41% as a result of the disability, and that the applicant was entitled to receive a disability pension.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1968 and lives in Stryzhavka.

On 12 September 2006 the applicant submitted a written notice to the mayor of Vinnytsia informing him that the Chumatskyy Shlyakh civic youth association (“the Association”) registered in Vinnytsia, of which he was chairman, intended to hold a picket (пікет) outside the Vinnytsia Regional Authority (“the regional authority”) building. The notice read as follows:

“We inform you that, starting from 14 September 2006 our organisation will hold a picket [in front] of the [regional authority] for an indefinite term in view of the unhealthy, in our view, social and economic state of affairs in the region.

Beginning of the picket: 14 September 2005 at 14:00.

Place: square in front of the [regional authority] building;

Responsible person according to the decision of the Association’s management: Chumak S.V. [the applicant].

Chairman of the [Association] Chumak, Sergiy Viktorovych.”

According to the Government, the Association’s officially registered chairman at the material time was a certain Igor Viktorovyh Chumak. The applicant was neither the chairman, nor could he even be a member of the Association because according to the Association’s charter, membership was open to persons under the age of twenty-eight. At the time of the relevant events the applicant was older.

On 13 September 2006 the mayor’s office forwarded the applicant’s notice to the police, requesting that they maintain public order during the demonstration.

On 14 September 2006 the Association started the picket as intended. According to the applicant, several other local groups joined the action and two small camping tents (measuring 2 by 2 metres) were erected by the walls of the regional authority building on a 15-metre wide street for storing handout materials and displaying the protesters’ slogans.

On 15 September 2006 the executive committee of Vinnytsia City Council instituted administrative proceedings seeking “to enjoin the [Association] not to organise and carry out pickets on the streets and squares of Vinnytsia and to oblige it to uninstall the unlawfully erected ‘small architectural structures’ (малі архітектурні форми).” The plaintiff alleged that the protesters had been breaching the peace and public order by offending passers-by, acting arrogantly towards them, obstructing the traffic and pedestrians and endangering the lives and health of local residents. Referring to Article 182 of the Code of Administrative Justice (“the CAJ”, see paragraph 20 below), which provided for the lodging of an action before the start of a picket, the plaintiff asked the court to admit its action for consideration out-of-time on the grounds that only after the picket had started had it become apparent that the protesters intended to engage in inappropriate conduct. The statement of claim was supplemented with applications by V.Ch. and Y.S., two passers-by, addressed to the police, in which they complained that the protesters had “acted arrogantly”, had offended their feelings and had erected tents obstructing pedestrians and spoiling the street aesthetics.

On the same date the Leninskiy District Court in Vinnytsia (“the District Court”) held a hearing at which the applicant, representing the Association, denied the allegations that the picketers had engaged in any inappropriate conduct. According to him, during the hearing he had unsuccessfully made several requests for the production of evidence. Notably, he had requested that V.Ch., Y.S. and the police officers present at the site of the picket be summoned for questioning; that the police authorities be asked whether any incidents of unlawful conduct by the picketers had been documented; and that the site be inspected in order to determine whether, in fact, the camping tents mounted by the picketers had obstructed the traffic or the passage of pedestrians.

Later on the same date, the District Court allowed the claim, having decided that the case file contained sufficient evidence that the protesters had behaved inappropriately. The relevant part of the judgment read as follows:

“... [the] executive committee ... did not and could not have known about a possible breach of public order by the participants of the event, which fact resulted in missing the time-limit for lodging a court action as required by paragraph 1 of Article 182 of the Code of Administrative Justice of Ukraine; the court therefore resets the procedural time-limit ...

The court, when deciding the case, takes into account that the participants in the event installed small architectural edifices on the pavement. In addition, during the event, they acted arrogantly, thus offending other citizens, obstructed the passage of pedestrians along Soborna street, and endangered road users, a fact confirmed by the complaints from Y.S. and V.Ch.

In addition, the court has regard to the fact that in the notice of the event it is stated that it will be held indefinitely. Also the number of protesters is not defined ... and it may gradually increase. Accordingly, at any time during the picket of indeterminate length, it cannot be excluded that those taking part might repeatedly breach public order.”

The court also noted that the picket “may potentially encroach upon the rights and freedoms of other local residents” and held as follows:

“[the court holds] to prohibit [the Association] and other persons taking part in the action from organising and carrying out peaceful assemblies in the streets and squares of Vinnytsia, [and] from installing small architectural edifices in Vinnytsia; ... oblige them to dismantle the small architectural edifices installed in the square in front of the [Administration’s] building ...

To allow immediate enforcement of the court ruling ...”

At 9 p.m. on 15 September 2006 the protesters were dispersed by the police.

On 29 September 2006 the local registry office informed the applicant that V.Ch. and Y.S. were not registered as residents at the addresses indicated by them in their complaints lodged with the police.

On 8 October 2006 the applicant lodged an appeal against the court judgment of 15 September 2006, which he signed as the Association’s chairman. He submitted that under Article 182 of the CAJ, a plaintiff’s action could not be examined when it had been lodged out of time. He further submitted that the court’s factual conclusions had been devoid of an evidentiary basis. In particular, there was no evidence whatsoever that the protesters had breached the law, apart from the complaints by V.Ch. and Y.S., who had given false home addresses and thus could not be identified. The applicant further complained that the court had rejected his request that those individuals be located and summoned, and that the police officers present at the site of the picket also be summoned for questioning concerning the alleged breaches of the law by the protesters. He also regretted that the court had refused his requests that the relevant police reports documenting the purported breaches of the law (if any) be produced and an inspection of the picket site be carried out with a view to determining whether the tents erected by the activists could count as “architectural structures” and whether there had been any obstruction of traffic or pedestrians. Lastly, the applicant complained that the sanction imposed by the District Court (a total and permanent ban on the Association organising peaceful assemblies in Vinnytsia) had been arbitrary and disproportionate.

On 22 November 2006 the Vinnytsia Regional Court of Appeal examined the applicant’s appeal and decided that, in view of namely, the short notice of the intention to hold a picket and the indefinite period during which the participants planned to continue their demonstration) the administrative action lodged by the executive committee could be accepted for examination. It agreed with the District Court’s findings of fact and noted, in particular, that by installing the tents, the protesters had breached section 16 of the Populated Localities Development Act and section 18 of the Automobile Roads Act. At the same time, the Court of Appeal found that the sanction imposed on the protesters had been disproportionate. In particular, the Constitution of Ukraine generally allowed peaceful assemblies, which could therefore not be prohibited in a blanket manner. Nevertheless, it did not envisage a form of assembly such as the “picketing” of administrative buildings “with the installation on the streets of small architectural structures”. Accordingly, the court found that the term “peaceful assemblies” in the operative part of the District Court’s judgment had to be substituted with the term “pickets”. The court then rejected the applicant’s remaining arguments as unsubstantiated.

On 1 April 2009 the Higher Administrative Court of Ukraine dismissed an appeal on points of law lodged by the applicant.


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Pauliine Koskelo

The applicant, Mr F.G., is a Greek national who was born in 1946 and lives in Athens. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). He was represented before the Court by Ms S. Asimakopoulou, a lawyer practising in Athens.

The Greek Government (“the Government”) were represented by their Agent’s delegate, Mr K. Georgiadis, Senior Advisor at the State Legal Council.

Mr L.-A. Sicilianos, the judge elected in respect of Greece, withdrew from sitting in the case (Rule 28 of the Rules of Court). The President of the Chamber accordingly appointed Mr Michail Margaritis to sit in his place (Article 26 § 4 of the Convention and Rule 29 § 1 (a) of the Rules of Court).

On 3 December 2013 the application was communicated to the Government.

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

At the time the events took place the applicant was a legal counsellor at the State Legal Council (Νομικό Συμβούλιο του Κράτους).

On September 2008, there were three vacant posts at the rank of vice-president of the State Legal Council. The first step of the selection procedure consisted of a proposal by the Minister of Economics and Finance, which included a list of all eligible legal counsellors ranked on the basis of seniority. Among the thirty-six legal counsellors who fulfilled the formal criteria, the applicant was ranked sixth.

At its meeting of 8 September 2008, the Cabinet of Ministers (“the Cabinet”), following the proposal by the Minister of Economics and Finance, unanimously decided to appoint as vice-presidents to the State Legal Council Mr N.M., Mr D.A. and Mr N.K, who were second, eighth and fourteenth respectively on the list. The reasoning of the decision stated that they “[had] proved superior to the rest of their colleagues under consideration for the posts, as [was] clear from the relevant proposal of the competent Minister, which [had been] accepted by the Cabinet following assessment of each of the eligible legal counsellor’s files and the ministers’ discussion ...”

The proposal of the Minister of Economics and Finance included the qualifications of the eligible staff members, in particular the year of their appointment, their ranking and salary changes, their assignments and disciplinary proceedings and it concluded that:

“... having assessed all of the above-mentioned facts relating to the service of the persons under consideration, as well as other details of their personal service files and ... their general academic training, their moral character, their diligence and their administrative qualifications; having also taken into account the generally formulated opinion for each one and their seniority ranking, I PROPOSE that the following be chosen and promoted to fulfil the three (3) vacant posts of vice-president of the State Legal Council ... [the names of the three accepted candidates followed, handwritten]”.

From the minutes of the Cabinet meeting it appears that its duration was forty-five minutes and included other items on the agenda as well.

On 10 September 2008, the Presidential Decree by which the procedure was completed was issued and published in the Official Gazette.

On July 2009, the same procedure was followed for filling another two vacant posts to the rank of vice-president of the State Legal Council. Thirty-one legal counsellors were eligible for promotion, including the applicant, who was ranked fourth on the list on the basis of seniority.

At its meeting of 1 July 2009, the Cabinet, following the proposal by the Minister of Economics and Finance, unanimously decided to appoint to the vacant posts Mr B.K. and Mr I.S., who were sixth and tenth respectively on the list. The reasoning of the decision, as well as the Minister’s proposal, were identical to the 2008 procedure.

The duration of the Cabinet meeting was one hour and forty minutes and the agenda included other items as well.

On 2 July 2009, the Presidential Decree by which the procedure was completed was issued and published in the Official Gazette.

On 14 November 2008, the applicant lodged an application for annulment (αίτηση ακύρωσης) of the Presidential Decree dated 10 September 2008 with the Supreme Administrative Court (Συμβούλιο της Επικρατείας), on the grounds of lack of sufficient reasoning in the contested decision and of his having been manifestly superior to two of the three promoted legal counsellors, who had been ranked lower than him on the list and yet had been promoted.

On 13 April 2009, the applicant was informally informed that the State Legal Council had applied to have the case examined by the Plenary of the Supreme Administrative Court and that the President had agreed to grant that request. On the same date, the applicant filed a written submission contesting that decision, relying, on one hand, on the fact that his views on the subject had not been heard prior to the decision and, on the other hand, on the fact that such a referral would result in further delay in the examination of his case. In particular, the applicant maintained that he had only a few years left before he reached compulsory-retirement age and the delay in the examination of his case would further diminish his chances of serving as vice-president of the State Legal Council. From the material in the Court’s possession, it appears that the applicant did not receive a reply to his submission. By a decision of the President of the Supreme Administrative Court dated 21 April 2009, the case was referred to the Plenary of that court.

The date of hearing before the Plenary of the Supreme Administrative Court was scheduled for 25 September 2009. The Court adjourned the hearing until 5 February 2010. On that date, the case was again adjourned on the grounds that there were three pending applications raising similar issues to the case under consideration and it would be better to examine the cases together. The hearing eventually took place on 7 May 2010.

By its judgment no. 1973/2011, published on 20 June 2011 and finalised on 25 August 2011 (δημοσίευση και καθαρογραφή), the Supreme Administrative Court dismissed the application for annulment of the Presidential Decree dated 10 September 2008. In its reasoning the court first pointed out that the application for annulment was admissible, as Article 90 § 6 of the Greek Constitution, which excluded the possibility of applications for annulment of decisions relating to promotions of judges, could not be applied by analogy. It then observed that owing to the State Legal Council’s special institutional role and the nature of the role of its President and vice-presidents, the Cabinet, when choosing the candidates who, in their view, had more substantive qualifications for those posts, enjoyed a wide degree of discretion, without being obliged to provide specific justification for their decisions, except for cases where an omitted candidate had been manifestly superior to the promoted candidates. It then noted that according to the minutes the Cabinet had chosen the candidates to be promoted by taking into account not only the competent Minister’s proposal but also other details from the candidates’ files and following discussion among its members. Lastly, it pointed out that from the material in their possession, the applicant had not been manifestly superior to the promoted candidates.

On 22 October 2009, the applicant lodged an application for annulment of the Presidential Decree dated 1 July 2009 with the Supreme Administrative Court, on the grounds of lack of sufficient reasoning in the contested decision and because he had been manifestly superior to the two promoted legal counsellors who had been ranked lower than him on the list.

By a decision of the President of the Supreme Administrative Court dated 1 March 2010, the case was referred to the Plenary of that court. The hearing was scheduled for 7 May 2010.

By its judgment no. 413/2011, published on 4 February 2011 and finalised on 4 March 2011, the Supreme Administrative Court dismissed the application for annulment on the same grounds as those stated in judgment no. 1973/2011 (see paragraph 18 above).

On 13 July 2010, the applicant, following a procedure similar to the one described in paragraphs 6-15 above, was appointed President of the State Legal Council.

The relevant Articles of the Greek Constitution read as follows:

“2. The remuneration of judicial functionaries shall be commensurate with their office. Matters concerning their rank, remuneration and their general status shall be regulated by special statute ...”

“5. Retirement from the State legal service shall be compulsory upon attainment of the age of sixty-five years for all judges and prosecutors up to and including the rank of judge of a court of appeal or deputy prosecutor of a court of appeal, or a rank corresponding thereto. In the case of judges and prosecutors of a rank higher than the one stated, or of a corresponding rank, retirement shall be compulsory upon attainment of the age of sixty-seven years. In the application of this provision, 30 June of the year of retirement shall in all cases be taken as the date of attainment of the above age limit.”

“5. Promotions to the posts of President or vice-president of the State Legal Council, of the Court of Cassation and of the Court of Auditors, shall be effected by Presidential Decree issued on the proposal of the Cabinet, upon selection from among the members of the respective Supreme Court, as specified by law ... The mandate of the President of the Council of State, of the Court of Cassation and of the Court of Auditors ... may not exceed four years, even if the judge or prosecutor holding this office has not reached the retirement age.”

“Matters relating to the establishment and functioning of the State Legal Council, as well as matters relating to the service status of functionaries and staff members who serve therein, shall be specified by law. The competence of the State Legal Council pertains mainly to the judicial support and representation of the State and to the recognition of claims against it or to the settlements of disputes with the State. The provisions of Articles 88 paragraphs 2 and 5, as well as of Article 90 paragraph 5 shall apply accordingly to the main staff of the State Legal Council.”

The relevant sections of Law 3086/2002 (Organisation of the State Legal Council) and the status of its officers and employees, published in Official Journal A/324, read as follows:

“The State Legal Council is responsible for judicially supporting the State ...”

“1. The ranks of hierarchy of the State Legal Council’s members are the following: President, vice-president, legal counsellor, senior advisor, legal representative A, legal representative and associate legal assistant (Πρόεδρος, Αντιπρόεδρος, Νομικός Σύμβουλος, Πάρεδρος, Δικαστικός Αντιπρόσωπος Α΄. Δικαστικός Αντιπρόσωπος και δόκιμος Δικαστικός Αντιπρόσωπος).

Among members at the same rank, seniority is precedent, in accordance with the provisions of paragraph 1 of the preceding article ...”

“2. Promotions

a) For the promotion of a member of the State Legal Council to a higher rank the following are required:

i) Vacancy in the higher rank, if places are structurally distinct,

ii) Completion of the statutory time in the rank currently occupied ...

iii) Possession of the necessary qualifications for the higher rank.

b) Promotion of members of the State Legal Council to the ranks of judicial representative A and senior advisor takes place by election among those who possess the necessary formal requirements and qualifications:

i) character and courage, ii) academic training, iii) judgment, perception and skills in understanding cases, iv) skills in formulating proposals and pleas, v) diligence, hard work and service performance, vi) decent behaviour in general and in particular in courts and in their relations with other services and authorities, vii) decent social behaviour, to an absolutely satisfying degree, so as to fully respond to the duties of the higher rank

c) Promotion of members of the State Legal Council to the rank of legal counsellor takes place following a “free vote” (κατ’ απόλυτη εκλογή). Deemed as eligible for promotion by free vote among those who possess the formal requirements are the members who possess the following to an excellent degree:

i) character and courage, ii) academic training, iii) diligence, hard work and service efficiency, and following a comparison, those who are promoted to fill the vacant posts are elected.

e) Promotion to the posts of President and vice-president is effected by Presidential Decree following a proposal by the Cabinet, which, upon the recommendation of the Minister of Economy and Finance, selects the ones who must be promoted among those who fulfil the legal requirements.

i) The post of vice-president of the State Legal Council is occupied by a legal counsellor who has been promoted following three years of service in the rank of legal counsellor.

j) The post of President of the State Legal Council is occupied by a vice-president or a legal counsellor who has been promoted following four years of service in the rank of legal counsellor.”

“The members of the State Legal Council automatically retire from service:

b) the legal counsellors, who correspond to judges of the Court of Cassation, the vice-presidents, who correspond to vice-presidents of the Court of Cassation, and the President of the State Legal Council, who corresponds to the President of the Court of Cassation, [at the end of their] sixty-seventh year.

d) For the implementation of provisions a) and b) of the present paragraph, the day of retirement age is reached is considered to be 30 June of the year the member of the State Legal Council retires.”

The relevant section of Presidential Decree 18/1989, which codifies the laws relating to the Supreme Administrative Court, reads as follows:

“Legitimate interest. 1. An application for annulment against an administrative act can be lodged by any individual or legal person who is concerned by the act, or whose legitimate interests, even if non-pecuniary in nature, are infringed upon.”

“An application for annulment can be lodged for the following reasons:

1) Incompetence on the part of the administrative authority which issued the act;

2) Infringement of an essential procedural requirement which had been set for the act;

3) Infringement of an essential provision of law;

4) Abuse of authority, when the administrative act per se bears all the elements of legality, but has been manifestly issued for other purposes than those for which it was enacted.”

According to the case-law of the Supreme Administrative Court, when domestic law affords to civil servants the right to be considered eligible for promotion, this constitutes a sufficient legitimate interest enabling them to lodge an application for annulment for one of the reasons cited in Section 48 of Presidential Decree 18/1989 (see, for example, decision no. 2809/2012 of the Supreme Administrative Court).


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

The applicants complained of the inadequate conditions of their detention.


No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

The applicant was born in 1979 and lives in Perm.

On 21 October 2006 the applicant was arrested on suspicion of extortion, kidnapping and fraud. Two days later the Leninskiy District Court of Perm authorised his detention.

On 21 December 2006 the District Court held a hearing on extension of the applicant’s detention. The applicant asked to postpone the hearings for five days because his counsel was sick and could not attend. The District Court dismissed the request, assigned lawyer N. to represent the applicant, proceeded with the hearing and extended the applicant’s detention. The applicant’s objection to the participation of N. on account of their different defence strategies and N.’s limited knowledge of the case-file was also dismissed.

The applicant and his counsel appealed, complaining, in particular, about a breach of the applicant’s right to defend himself through legal assistance of his own choosing. On 18 January 2007 the Perm Regional Court upheld the detention order of 21 December 2006, having also noted that the legal aid lawyer N. had been appointed because the detention matter “had to be examined immediately”.

On 19 January 2007 the District Court once again extended the applicant’s detention. On 8 February 2007 the Regional Court held the appeal hearing without informing the applicant in advance about the hearing date. The applicant’s counsel attended the appeal hearing and made oral submissions. The Regional Court dismissed the appeal and upheld the detention order of 19 January 2007.

The applicant’s detention was further extended on several occasions. In particular, on 16 March 2007 the measure of restraint was prolonged until 4 April 2007.

On 21 March 2007 the applicant was committed to stand trial before the Regional Court. Five days later, on 26 March 2007, the trial court scheduled a preliminary hearing for 3 April 2007 and ruled that, in the meantime, the measure of restraint in respect of the applicant should remain unchanged until the preliminary hearing. The decision was delivered in a written procedure (without the parties being present).

The applicant appealed, complaining, among other matters, that that decision in the part relating to his detention was unlawful and that it had been delivered in his and his lawyer’s absence. On 14 May 2007 the Supreme Court of the Russian Federation upheld the decision, having found, in particular, that the trial judge’s decision was no more than a restatement of the detention order of 16 March 2007 extending the applicant’s detention until 4 April 2007 (see paragraph 10 above).

At the preliminary hearing on 3 April 2007 the trial court extended the applicant’s detention until 21 September 2007.

On 1 June 2007 the applicant was convicted. On 22 September 2008 the Supreme Court upheld his conviction on appeal.