CASE OF ZHIVKO GOSPODINOV AND OTHERS v. BULGARIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicants are serving either life sentences or whole-life sentences in different prisons in Bulgaria.

The applicant is currently serving a whole-life imprisonment sentence in Belene Prison. The sentence was delivered by the Dobrich Regional Court in 2003. It was confirmed on appeal in February 2004 and, subsequently, by the Supreme Court of Cassation in a final judgment of 19 October 2004.

As it is apparent from documents in the file, the applicant had unsuccessfully sought presidential clemency several times since 2007. He was initially placed in the high-security wing of Varna Prison where he started serving his sentence; since 2004 he has been under the “special regime”.

He described, and the Government did not comment on, the conditions under which he had been detained there as follows. His cell measured 5.5 by 3 metres and had a small grilled window which did not let much light in during the day. The lighting at night was also insufficient. The cell was humid, badly heated during the winter and deprived of ventilation during the summer. Given that in the cell there was neither running water, nor toilet facilities, the applicant had had to use a bucket to relieve himself. He was allowed to leave his cell three times a day, during meal times, for about forty-five minutes each time, in order to slop out, eat, wash himself and re-fill his water bottle from the tap. The prison was infested with cockroaches and rats, and he was only allowed to shower once a fortnight. The food was insufficient in quantity and of poor quality. During visits, he was separated from his family and lawyers by a grill and the meetings always took place in the presence of prison staff. His correspondence was routinely read by prison staff as he was obliged to transmit his letters to the outside world in open envelopes. The envelopes carrying correspondence with his lawyer bore a stamp showing that they had been checked.

Both parties submitted that the applicant had been transferred to Belene Prison on 17 February 2009, where he continued to serve his sentence under the “special regime”. He was detained in the high-security wing of this prison, alone in a cell.

According to the Government, since the beginning of his time in that prison, the applicant had gone on several hunger strikes. According to documents in the file, at the beginning of his stay in Belene Prison he demonstrated suicidal intentions and was identified as aggressive and hostile, as well as prone to attempting to escape. On the basis of an order of the prison governor of 19 February 2009, he did not take part in collective activities with other inmates, even those in his own category. In addition, the Government submitted that owing to lack of physical space in the prison, it was impossible to organise collective sport activities, or gather inmates for the purposes of reading, listening to music, playing board games or using the computer. Also, they emphasised that the impossibility was underpinned by the personal characteristics of the inmates which made them incompatible with each other and were an impediment to the authorities’ organising joint activities for them.

The parties submitted that the applicant’s cell in Belene Prison was secured by a door and an external grill, both of which were locked. The light bulb remained on throughout the night, for security purposes, which the applicant claimed interfered with his sleep. His daily walks in the open air took place in a grilled space measuring, according to the applicant and not disputed by the Government, about 15 sq. m, where only persons serving life sentences were taken. According to the applicant, its floor was partially made of bare cement and there was no sports equipment there. According to the Government, there was a climbing wall, a bench and a fixed-height bar. Both parties submitted that each time the applicant left the high-security wing of the prison, he was handcuffed and the handcuffs were shackled to a belt. He claimed that his correspondence was routinely checked. According to the Government, prisoners’ correspondence was checked out of security considerations. However, the authorities only checked the contents of the envelopes which the applicant received and not the text of the letters in them.

In a final judgment of 15 May 2005 the Supreme Court of Cassation sentenced the applicant to life imprisonment. The documents in the case file indicate that he had been initially imprisoned in Lovech Prison and was transferred to Belene Prison on 6 October 2009 where he was placed in the high-security wing.

The Government submitted that he had been serving his sentence under the “special regime” since 5 May 2005.

The applicant submitted that he had been kept in isolation in Belene Prison under the “special regime” and that the living conditions in his prison cell were inadequate. In particular he claimed that he spent about twenty-three hours a day locked up in a very small, poorly lit cell with a non-secluded toilet close to his bed.

The Government did not dispute his claims. They specified that the size of his cell was 6 sq. m, that it was a “normal” as opposed to a “punishment” cell, that he had a bed, a drawer, a sink and a toilet in his cell, and that there was enough space for him to move about in it.

The applicant was sentenced to life imprisonment in a final judgment of 10 December 2001 of the Supreme Court of Cassation.

The applicant complained that, in accordance with the “special regime” under which he had been serving his sentence, he had been permanently locked up in a cell which he had only been allowed to leave for no more than one and a half hours a day. He also alleged very poor living conditions, the presence of rats, insufficient lighting, tainted water, limited space and time for outdoor activities, and consistent overuse of handcuffs.

The Government submitted that the applicant had been serving his sentence under the “special regime” in Bobov Dol Prison between 5 February 2002 and 19 April 2007 when his regime had been changed to “severe”. He had spent the following two years under the “severe regime” and on 1 June 2009 his regime had been changed to “strict”. During his stay in Bobol Dol Prison between 2002 and 2012 the applicant had been in the high-security wing, alone in a cell measuring just under 13 sq. m. The cell had contained a sink and a toilet separated from the rest of the space. Hygiene in the cell had been satisfactory; the bed sheets had been washed weekly and the prisoners had been provided with sanitary products once a month. The cells had been disinfected and treated against mice with the same frequency.

The Government submitted that the applicant had been kept in a permanently locked up cell in Bobov Dol Prison, in strict compliance with the relevant legal provisions and in particular section 71(2) of the Execution of Punishments and Pre-trial Detention Act. As of February 2016, they specified that the applicant had formally satisfied the conditions for being detained together with other prisoners but that the applicant had considered himself not ready for it.

On 24 July 2012 the applicant was transferred to Pazardzhik Prison upon his request and was placed in the high-security wing, in a cell measuring 7 sq. m. He expressed an interest in working but the authorities were not in a position to provide him with work. He had not committed disciplinary breaches to the time of application. As to the conditions of detention in Pazardzhik Prison, the Government submitted that he had not raised related grievances with the authorities.

The applicant was sentenced for a number of offences and was given a total sentence of whole-life imprisonment in 2000. He complained that his sentence had amounted, from the time of its imposition, to inhuman and degrading punishment, in breach of Article 3 of the Convention and that he did not have an effective remedy in this connection.

In a final judgment of 15 March 2010 the applicant was sentenced by an Austrian court to life imprisonment. He was transferred from Austria to Bulgaria on 15 July 2010 in order to serve his sentence. On 8 November 2010 the Vratsa Regional Court confirmed the sentence and accepted it for enforcement. This was upheld on appeal by the Sofia Appellate Court in a final decision of 9 February 2011. The applicant has been serving his sentence under the “special regime” since 18 February 2011. He is kept in a permanently locked cell in Vratsa Prison, in the high-security wing, in accordance with applicable rules for life prisoners under the Execution of Punishments and Pre-trial Detention Act.

The applicant was sentenced to whole-life imprisonment on 28 February 2011 in a final judgment of the Supreme Court of Cassation.

The applicant complained that his sentence had amounted, from the time of its imposition, to inhuman and degrading punishment, in breach of Article 3 of the Convention and that he did not have an effective remedy in this connection.

The applicant was sentenced to life imprisonment in a final judgment of the Supreme Court of Cassation of 13 November 2008. He has been serving his sentence under the “special regime” in Varna Prison. He alleged that he spent his time almost permanently locked up in isolation from the other inmates, while the Government claimed that he was in “almost permanent contact with other inmates” without submitting more details. The applicant submitted that he had had to relieve himself in a bucket in his cell where there had been no running water. The Government clarified that this changed in 2012 when a toilet had been built in his cell. The food, according to the applicant and disputed by the authorities, was insufficient and of poor quality.

The applicant was sentenced for different offences and given a total sentence of life imprisonment in a final judgment of 17 November 2011 by the Supreme Court of Cassation. The applicant has been serving his sentence in Stara Zagora Prison under the “special regime” in a permanently locked cell located in the high-security wing of the prison. The Government submitted that he was allowed to leave his cell twice a day for an hour at a time when he could see and communicate with other inmates detained in the same prison wing. He was also allowed to use sanitary facilities outside of his cell five times a day, and to shower twice a week. There was no toilet in the applicant’s cell and no ventilation system had been installed.

The applicant had been serving a sentence of whole-life imprisonment in Pleven Prison since 1999 under the “special regime”. In 2003 he was placed under the lighter “severe regime” and a year later under the even lighter “strict regime” when he was also placed in a cell together with other inmates.

The applicant was sentenced to life imprisonment and has been serving his sentence under the “special regime” since 2009. Until 2009 he was detained in Varna Prison and since 18 February 2009 he has been detained in Plovdiv Prison. He complained in respect of his detention after February 2009, the conditions of his detention before 18 February 2009 having been examined by the Court in an earlier case with application no. 16391/05, which was decided in a judgment of 10 January 2012.

Both the applicant and the Government submitted that he was detained in a permanently locked cell and isolated from the other prisoners. The Government pointed out that the applicant left his cell for an hour in the morning and for an hour in the afternoon every day for exercise and to spend time in the open air.

The applicant also claimed that the material conditions in which he had been serving his sentence were inadequate and that he had been offered no collective activities or other forms of occupation.

The Government stated that he was enrolled in the following weekly activities: a catechism course lasting an hour-and-a-half per week; and a course in basic computer skills with hour-long sessions; he also had an additional hour in the open air, as well as half an hour to take a bath on Wednesday evenings. Furthermore, when various competitions had taken place in the prison, or there had been concerts or recitals, inmates serving life sentences had been offered a chance to attend them as spectators. The Government further clarified that the applicant’s regime had been changed to “strict” in 2015 but he had continued to be in the high-security wing; according to the Government, he had repeatedly stated that he had not wished to be placed together with other prisoners.


Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1956 and lives in Constanţa. At the time of the relevant events, she was an investigative journalist working in Constanţa.

During the night of 12 to 13 August 2006 a group of approximately fifty to eighty armed persons were involved in a violent incident that took place in Mamaia, a seaside resort on the outskirts of Constanţa. Several locations in Mamaia – including Hotel F., belonging to a company in which R.M., mayor of Constanţa since 2000, was a shareholder – were attacked and severely damaged.

Following that incident, R.M. accepted to participate in a television show hosted by A.G. and broadcast on “R.”, a national television channel. During the show, the applicant intervened and made some remarks which R.M. considered as defamatory. Consequently, he instituted civil proceedings against the applicant (see paragraphs 9-22 below).

The relevant excerpts from the television show are set out below:

“[A.G., the host of the show, acting as a moderator, asks [the applicant], a journalist in Constanţa]: What types of clans are we talking about, are they gangs, are they clans, who are these people we are talking about?

[The applicant]: These are clans, it is well known, the city of Constanţa is divided between the supporters of R.M. and his enemies. More precisely, it is the V. clan, in other words the clan of the V. brothers, who are at war with the supporters of R.M. This war has been going on for several years and it is well known that at the beginning, the V. brothers and R.M. were good friends. The hostility occurred, if my memory is not mistaken, on the occasion of the construction of Hotel O., when one of the V. brothers was excluded from the business, in spite of the initial plan. This doesn’t mean that M. [R.M.] or V. is personally involved in this war. This war continued between the people that represent the two, and the enmity has continued to this day. ... But the crux of the problem is not the conflict between R.M. and the V. brothers. It seems that nowadays they have different claims, at a different level, within different hierarchies ...

[A.G.]: The image you describe is that of a city torn between the underworld clans, in which the offenders retaliate against the mayor. The latter is a business partner of the President of the Regional Council and during the night anything can happen because the police have made a pact ... and do not want to sanction anyone.

[The applicant]: Lately, the police have been doing their job, as I said before. Except that they do not succeed in finalising it ... Two years ago, when there was a big fight in the city centre, before the eyes of everybody, when the G. clans were opposed to the P. clan – and here we are talking about the same clan masters – the police did not intervene promptly because, they said it clearly, these were R.M.’s men and they were afraid, because M. [R.M.] was and still is the mayor. The only victims were the heads of the city police, who were sacked; the aggressors were allowed to go free.

[A.G.]: I have the impression that we are talking about an ungoverned city, in which the delinquents walk freely and the mayor fights different clans. Is this an erroneous conclusion?

[R.M.]: I have the impression that [the applicant] needs to be hospitalised – in a psychiatric hospital (la balamuc). How dare she? What is this story, this nonsense? The supporters of R.M. fight I do not know who – V.? I do not even know him, I have never seen him in my life and I have never spoken to him .... I have listened for fifteen minutes to her [the applicant’s] lucubrations, in which she tries to create about Constanţa the image of a demonic city, in which the mayor runs everything, is a smuggler, has clans with Kalashnikovs and bodyguards ...

[A.G.]: Would I be entitled to believe that this conflict was generated by one of your actions, or by one of your past activities, or your past partnerships; maybe you had relations with them and in this context they came to vandalise your hotel?

[R.M.]: Mr. A.G., [the applicant] is a journalist, she should have submitted a document from the Chamber of Commerce to prove that I have a business partnership with whomever she mentioned. She had not submitted anything because it is all false. I personally asked the police to intervene and arrest the perpetrators. ... I do not know the people who were fighting. It does not interest me what they do in their free time, why they fight. All I said was that it is unacceptable to see forty people armed with axes. Let them identify and arrest the guilty. Everything else is just a fantasy of [the applicant], worthy of a psychiatric hospital ...

[A.G.]: ... this is what the mayor says, that everything is false ...

[The applicant]: What I have said, I said as an observer of the daily events; these things have been observed, discussed, noted for years. I have presented a general picture of the situation.

[R.M.]: And they must be proved ... Just like other journalists, you have learned to drag others in the mud, with no evidence to support what you state.

[The applicant]: If I understand correctly, he does not know the V. brothers, he knows them well, but that is not the point, the point is that their men ...(interrupted)

[R.M.]: But I do not know them! Prove the contrary if you please; I have never spoken to any of them, I do not know them. Stop lying ...

[The applicant]: ... the reality is that they present themselves as being M. [R.M.]’s men, or V.’s men. This does not mean that M. [R.M.] or V. order these conflicts. You know what happens in the world of ordinary people: I am strong because I represent R.M., who is mayor. Or I am stronger because I have the backing of the V. brothers ... Mr R.M., I did not say that you ordered this assault. But this is indeed what has been going on for several years in the city of Constanţa.

[A.G.]: Actually, we are dealing with a band of delinquents; it doesn’t matter who they are associated with or who is behind them and supports them, these people were on the street, made noises and I, as a simple citizen, am dissatisfied with not seeing them arrested. This is the only thing I can say, apart from the political connotations and connotations of the clans. I now turn to Mr. M.P, a sociologist, a specialist in violent incidents. This type of incident, what do you think? ...

[M.P.]: ... I would ask Mr. R.M. if he is still live ... it is necessary to know that mayors elsewhere in the world, such as Giuliani or Chirac, have had what are called urban policies of prevention and that they were directly involved. I am talking about a sociological perspective, an area that in which I specialise. I am not interested in your relationship with the institutions that accuse you today in one way or another. Do you have an urban prevention policy project? For if this were the case, such events would not happen again. ...

[R.M.]: Do you know that according to Romanian legislation, the police are not under the authority of the mayor? ... I have asked the police to intervene and to arrest those who are guilty ...

[A.G.]: Thank you ... The story we have followed is a violent one. Hooligans go during the night, armed with axes and knives, something very common lately, and vandalise a hotel. The police, ineffective, react very late, disinterestedly, unconvincing ... At the same time, the name of Mayor R.M. and his business partners appears again directly linked to a strange business. And all these strange things, which I quote ‘need proof’, accumulate and accumulate, one after the other, and create in the end the perception of a mayor who raises certain questions, of a forgotten city and, in general, of inefficiency at all levels. In this story, in my opinion, the two managers are also guilty, the police are also guilty and we are also guilty, because we tolerate endlessly the incompetent authorities. I thank you.”

On 24 October 2006 R.M. lodged a civil complaint against the applicant. He alleged that, in her capacity as a journalist, she had made defamatory statements during a television show hosted by A.G. in relation to a violent incident that had occurred during the night of 12-13 August 2006 (see paragraph 6 above). R.M. requested that the applicant write a public letter of apology, that she publish at her own expense the final judgment allowing his claims in two newspapers, one with a nationwide circulation and the other a local circulation, and that she pay him 200,000 Romanian lei (RON) in non-pecuniary damages.

R.M. complained that the applicant had attempted to persuade people that Constanţa city was divided between two gangs, “M.’s men and those who were against M.”, and that he himself had at one point been familiar with certain persons from the underworld (“persoane interlope”), namely with the V. clan, who had allegedly been at the origin of the violent incident in August 2006. He considered that the applicant’s imagination had proved to be “diabolical and of an infinite malice”, as her remarks had gone beyond what was permitted not only by freedom of speech, but also by professional deontology. He claimed that the applicant had failed to first check her information before using it, and then to prove her statements.

R.M. further claimed that the defamatory statements the applicant had made against him in prime time on national television had seriously damaged his image as a public person and a locally elected official.

The applicant submitted that her statements during the television show had reflected her opinion in an honest and ethical manner. Like any other opinion, hers was inevitably subjective, the important issue being that it had been expressed with honesty and in good faith, based on information concerning R.M.’s conflicts with the V. brothers that had been presented more than once in the local press.

The applicant further argued that the non-pecuniary damage claimed by R.M. was unjustified, in so far as there was no evidence to prove that her statements had had any impact among R.M.’s supporters in connection with his public image.

On 11 October 2007 the Constanţa District Court dismissed R.M.’s claims. The court started with an overview of the ECHR’s case-law on freedom of expression, referring specifically to the essential role played by journalists in a democratic society and to the fact that the essential criteria in assessing their statements is whether they are made in good faith. The court held that in the case before it, the applicant’s statements could not be interpreted as a personal attack on the claimant and in any event, they were not of such a severe nature as to harm R.M.’s honour, reputation or dignity. The court further noted that in answering the questions of A.G., the host of the show, the applicant had provided an objective explanation for her opinion; in support of her opinion, she had submitted before the court excerpts of articles from the local press, as well as from a publication issued by several investigative journalists on the topic of public integrity, a project implemented by Transparency International Romania, in which the name of the mayor, R.M., was connected to several ongoing criminal investigations.

The court concluded that the applicant’s intervention had not been made in bad faith; her opinions concerned a matter of general interest and did not have an illicit nature; at the same time, her opinions were not found to have harmed the reputation of the claimant.

R.M. appealed against that judgment. He essentially argued that the applicant’s defamatory statements had not only consisted of her personal opinions, but also reports on specific facts which had not been previously verified, nor ever proved to be true. He further argued that by associating his name and image with that of criminal groups or clans, the applicant had seriously harmed his reputation.

On 29 May 2008 the Constanţa County Court allowed the appeal and awarded R.M.’s claims in part, holding the applicant liable for the payment of 50,000 RON in non-pecuniary damages, and 7,197 RON in respect of legal costs. It also ordered her to publish the judgment at her own expense in one national newspaper and in another local newspaper and to present R.M. with written public apologies within fifteen days of the date of the final judgment.

The County Court considered that the conclusion of the television show, as drawn by A.G., was based essentially on the applicant’s statements, namely that the city was “torn between the underworld clans, in which the offenders retaliate against the mayor” (see paragraph 8 above), and that the same conclusion would have been drawn by anyone else who had watched the show. From that perspective, it was evident that the applicant’s statements had damaged the reputation of the claimant.

The court also held that the applicant’s intention had not been to present facts, but to deliberately discredit R.M. by claiming in bad faith that he was involved in illegal activities. Such allegations, made without prior verification and lacking factual support, were of a serious nature and had severely damaged the claimant’s image.

Furthermore, in trying to support her allegations with extracts of articles from the press reporting on the activities of R.M., the applicant had only proved that what she had presented in the television show was information, and not her personal opinions.

The applicant appealed against that judgment, reiterating her arguments that the impugned statements were in fact her opinions as an investigative journalist, and that they had been expressed in an honest and ethical manner. She pointed out that the County Court had not analysed whether R.M. had participated in the television show in his capacity as a public person or as a private one, so as to attract specific consequences in the balancing-of-rights exercise carried out by the court. She pointed out that the sanction imposed by the court was excessive and lacked appropriate reasoning and any justifying criteria.

On 24 November 2008 the Constanţa Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s judgment.

The appellate court firstly noted that R.M. had participated in the television show in his capacity as a shareholder of Hotel F., as well as in his capacity as a local politician.

While drawing a clear distinction between opinions and information, the court held that that the applicant had not put forward any argument or explanation to support her allegation that what she had expressed in the show were her opinions, and not factual elements:

“By setting herself up as a connoisseur of what was going on in the local area, she had presented to the public, in the form of undeniable truth, some information that was not true”.

The court further referred to the responsibilities of journalists, namely to present information and ideas to the public, while respecting certain limits in relation to the rights and reputation of others. The applicant, as a journalist, “had breached the rules of journalistic ethics by manifesting aggression and intention to blame, with no evidence and without maintaining a balance between the statement made and the unconfirmed allegations”.

The court considered the amount of damages to be paid by the applicant to be fully justified, in view of the fact that the defamatory statements had been broadcast in prime time on a national television channel, and that the amount had been reduced by the appeal court to one quarter of the full amount claimed by R.M. The court held:

“If she had complied with the first obligation, namely ‘to apologise’, the court would have examined the proportionality of the amount in relation to her intentions, as she does not contest the allegations, but by means of victimisation, she gives them strength, albeit without any evidence or documents having been submitted to the present day”.

It appears that in February 2009 the applicant fully complied with the terms of the final judgment.


Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

The applicant was born in 1980 in Abakan, the Khakassiya Republic.

The applicant stood accused of theft and murder. On 22 November 2004 the Sayanogorsk Town Court in Khakassiya fixed, in the hearing held without the applicant’s attendance, the opening date for the trial and ordered an extension of his pre-trial detention. On 2 December 2004 the applicant was convicted and given a custodial sentence.

On 22 March 2005 the Constitutional Court held, in unrelated proceedings, that the provisions of the Code of Criminal Procedure ought to be interpreted as guaranteeing the right of the defendant to take part in the hearing where the matter of detention was decided, to make submissions to the court and to produce evidence (Judgment no. 4-P, point 4 of the operative part).

On 8 August 2013 the Presidium of the Supreme Court of the Khakassiya Republic quashed the Town Court’s decision of 22 November 2004 in the part relating to the detention matter. Referring to the case-law of the Constitutional Court, it found that the District Court had unlawfully extended the applicant’s detention without giving him an opportunity to take part in the hearing or to make submissions to the court.

The applicant sued the Ministry of Finance, seeking compensation for the unlawful detention from 22 November to 2 December 2004. By judgment of 16 September 2013, as upheld on appeal on 27 November 2013, the Abakan Town Court rejected his claim, holding that he was not eligible for compensation in respect of pre-trial detention because he had been found guilty and given a custodial sentence.


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1937 and lived in Aistersheim.

The applicant owned a landholding of some 150 hectares, which is an approved hunting ground (Eigenjagd). According to the Upper Austrian Hunting Act (Oberösterreichisches Jagdgesetz), every six years, the District Authority has to establish the boundaries of the Upper Austrian hunting grounds. In this respect, requests may be filed by landowners to have adjacent land allocated to their hunting grounds where, for the purpose of facilitating the exercise of hunting rights, boundaries need readjustment (Arrondierungsantrag). On 29 September 2004 the applicant filed such a request for readjustment in respect of the next six years’ hunting period, i.e. from April 2005 to March 2011.

On 28 December 2004 the Grieskirchen District Authority (Bezirkshauptmannschaft) partly granted the applicant’s request and assigned specified plots of third persons to the applicant’s hunting grounds, but dismissed her request concerning some other parcels of land.

On 21 October 2005 the Upper Austria Regional Government (Landesregierung) dismissed the applicant’s appeal. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof).

On 15 March 2006 the Constitutional Court declined to deal with the applicant’s complaint due to lack of prospects of success and referred the case to the Administrative Court (Verwaltungsgerichtshof) on 18 April 2006. On 2 May 2006 the Administrative Court requested the applicant to complement the complaint. The applicant submitted her additional comments on 21 June 2006 and requested an oral hearing. On 31 August 2006 the Upper Austria Regional Government submitted its additional comments to the Administrative Court.

On 29 September 2008, after having held an oral hearing on the same day, the Administrative Court dismissed the complaint as unfounded. That decision was served on the applicant’s counsel on 13 October 2008.


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1961 and lives in Bijela, Montenegro.

On 1 March 2012 the Herceg Novi First Instance Court rendered a judgment in favour of the applicant and ordered the applicant’s employer “Vektra Boka” AD Herceg Novi (hereinafter “the debtor”) to carry out a reallocation of plots for the construction of apartments. This judgment became final on 21 December 2012.

On 15 January 2013 the applicant requested enforcement of the above judgment and the Herceg Novi First Instance Court issued an enforcement order on 31 January 2013.

On 12 June 2015 the Commercial Court opened insolvency proceedings in respect of the debtor.

On 28 January 2016 the Herceg Novi First Instance Court transferred the case to the Commercial Court for further action.

On 22 March 2016 the Commercial Court suspended (obustavio) the enforcement due to the opening of the insolvency proceedings, which decision became final on 11 May 2016.

The judgement in question remains unenforced to the present day.

On 8 February 2013 the applicant instituted administrative proceedings seeking, on the basis of the above judgment, the removal of competing titles from the Land Register.

On 29 July 2015 the Real Estate Directorate terminated (prekinuo) the administrative proceedings because the Commercial Court had commenced insolvency proceeding in respect of the debtor.

On 7 September 2015 the applicant submitted an objection against the above decision. This objection was rejected as being out of time by the Real Estate Directorate on 5 October 2015.

The administrative proceedings are still pending.

On an unspecified day in 2003, the applicant instituted separate civil proceedings against the debtor, as his former employer, seeking reinstatement and damages. Following three remittals, on 3 March 2014 the Herceg Novi First Instance Court rendered a judgment in the applicant’s favour.

On 22 September 2015 the High Court upheld this judgment on the merits, but quashed it as regards the costs.

On 31 October 2016 the Herceg Novi First Instance Court transferred the case to the Commercial Court for further action due to the commencement of the insolvency proceedings in respect of the debtor.

On 22 February 2017 the Commercial Court ruled partly in favour of the applicant regarding the costs.

The parties did not inform the Court about when the Commercial Court’s decision became final and was served on the applicant.


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

The applicant, Mr Vitaliy Viktorovich Sakhanov, is a Russian national who was born in 1969 and lives in Moscow.

From 25 December 2009 to 20 December 2011 the applicant was the director general of a Russian limited liability company, OOO VA INVEST (hereinafter “the company”).

On 16 November 2012 the Commercial Court of Moscow declared the company bankrupt and opened liquidation proceedings. The proceedings were closed on 25 June 2013.

On 4 July 2013 the Commercial Court of Moscow considered a request from the Federal Tax Service to hold the applicant jointly liable for the company’s debts because of the company’s inability to cover all its debts with its remaining assets. Although duly notified, the applicant was not present at the hearing.

The Federal Tax Service’s request was granted and the applicant was found liable to pay 1,194,434 Russian rubles (RUB, approximately 27,732 euros).

On 27 August 2013 the company officially went into liquidation.

The applicant only became aware of the outcome of the proceedings against him in May 2014 when money was seized from his bank account.

The applicant appealed against the decision of the Commercial Court of Moscow of 4 July 2013.

The 9th Commercial Court of Appeal considered the appeal on the merits and on 6 November 2014 discontinued the appeal proceedings. With reference to the position of the Supreme Commercial Court, the appeal court concluded that it was impossible to adjudicate bankruptcy-related disputes concerning a company that had already gone into liquidation. The operative part of the appeal decision stated that the applicant could file a cassation appeal.

On 22 December 2014 the Commercial Court of Moscow Region dismissed a cassation appeal of the applicant. Reasoning adopted by the appeal court was upheld in full. The applicant did not appeal further against that decision.

In 2015 the applicant attempted to initiate a separate set of proceedings before the Constitutional Court of Russia, but his complaint was found inadmissible.

On 6 February 2014 several amendments to the Constitution introduced by the Constitutional Amendment Act No. 2-FKZ (Закон РФ о поправке к Конституции РФ от 05.02.2014 No. 2-ФКЗ) entered into force. Among other things, the amendments provided that the Supreme Commercial Court was to be abolished following a provisional period of six months and all its functions were to be gradually transferred to the Supreme Court.

With some material and procedural exceptions, final court decisions issued by a first-instance and appeal courts in commercial cases may be challenged by way of cassation appeal before a commercial court of a Circuit (Article 273 of the Code).

On 6 August 2014 amendments to the Code of Commercial Procedure (“the Code”) came into effect. The Supreme Court was empowered to consider cassation and supervisory review appeals against the final decisions of commercial courts. There were no specific transitional provisions. For a detailed description of the procedure in force before the amendments refer to Kovaleva and Others v. Russia ((dec.), no. 6025/09, 25 June 2009).

A cassation appeal may be lodged within two months after the last impugned court decision became final (Article 276 of the Code). A panel of judges examines a cassation appeal within two months (Articles 284-285 of the Code). The scope of review includes the issues of legality as raised by the parties and, proprio motu

Article 291.1 § 1 of the Code provides that final judicial decisions of commercial courts that have already been subjected to review in a cassation appeal by regional courts may be challenged further in cassation appeal proceedings before the Chamber of the Supreme Court. The proceedings may be taken by the parties to a case and by others whose rights or legal interests have been adversely affected by those decisions.

According to Article 291.2 § 1 cassation appeals may be filed within two months of the date the last judicial decision in the case became legally binding.

Article 291.2 § 2 sets out that the deadline for submitting a cassation appeal may be extended in exceptional circumstances at the request of the appellant. An extension, however, is only possible if the request is submitted either by a party to the proceedings within six months of the date the last judicial decision in the case became legally binding, or by a third party affected by the case within six months of the date he or she became aware of a violation of his or her rights.

Article 291.6 §§ 1 and 7 provide that the admissibility of a cassation appeal is considered by a single judge of the Supreme Court. The judge can either find the cassation appeal inadmissible or refer it to the Chamber of the Supreme Court for consideration.

According to Article 291.7 §§ 1 and 2 the admissibility of a cassation appeal is to be considered within two months if the case file has not been requested from the lower court, and within three months if the file has been requested. That time-limit excludes the period between the request for the case file and its receipt. The time-limits may be extended by two months by the President of the Supreme Court or his or her deputy.

Article 291.12 § 1 states that the Chamber of the Supreme Court is to examine the case within two months of the date of the admissibility decision.

Article 291.14 § 1 provides that following examination of the case, the Chamber of the Supreme Court may, among other things, quash wholly or in part one or all of the judgments previously delivered in the case by the first-instance, appeal or cassation courts and remit the case for reconsideration by any of those courts.

Chapter 26 of the Code provided that final judgments could be challenged by way of supervisory review before the Supreme Commercial Court of Russia (see further Kovaleva and Others v. Russia (dec.), cited above). When the Supreme Commercial Court of Russia ceased to exist, the review of final judgments in commercial cases was assigned to the Supreme Court of Russia according to the rules of new Chapter 36.1 of the Code.

A newly introduced chapter, Chapter 36.1, provides that the Presidium of the Supreme Court of the Russian Federation can consider applications from parties for supervisory review of binding judgments issued by lower judicial instances.

According to Article 308.1 § 3 (3), in an ordinary civil case where the proceedings started at a first-instance commercial court, parties may lodge an application for supervisory review only if their case has previously been examined in cassation proceedings by the Chamber of the Supreme Court. Such applications may be brought within three months of the date on which the impugned decision became binding (Article 308.1 § 4).

According to Article 308.4 § 1 and 308.5 the admissibility of an application is decided by a single judge of the Supreme Court, who may dismiss the application or transfer it for examination by the Presidium. That decision must be taken within two months if the case file has not been requested and within three months if it has been requested. The time-limit excludes the period between the request for the case file and its receipt.

Article 308.4 § 7 provides that a decision by a single judge to dismiss an application may be overruled by the President or Deputy President of the Supreme Court. The Code contains no explicit time-limit for the exercise of that power.

Following examination of a case the Presidium of the Supreme Court may, in accordance with Article 308.11 § 1, uphold, vary or quash any of the judgments previously delivered in a case, be it by the first-instance, appeal or cassation courts. If it does so, the Presidium may adopt a new decision or send the case back for reconsideration. Article 308.8 provides that binding decisions may be quashed on supervisory review if they breach: (1) human rights and freedoms enshrined in the Constitution or principles of international law and international treaties to which the Russian Federation is a party; (2) the rights and legitimate interests of an undefined group of people or other public interests; (3) the uniformity of case-law.

Article 208.9 § 5 states that the Presidium of the Supreme Court is to examine cases within two months of the date of the admissibility decision.


CASE OF GUȚĂ TUDOR TEODORESCU v. ROMANIA

Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

On 8 April 1998 the applicant requested the Bucharest Commission for Implementing Law no. 9/1998 (the County Commission) to award compensation for a property owned by his ancestors and taken over by the Bulgarian State. On 15 December 2000 the Commission issued a decision proposing payment of compensation in the amount of ROL 2,013,957,441 (approximately EUR 88,000 at the time).

That decision, according to the law, had to be validated by a central commission within sixty days. As the Central Commission did not issue any decision, the applicant brought a court action aimed at obliging the Central Commission to act in accordance with the law. The applicant also asked for the amounts granted by the County Commission to be adjusted for inflation when payment was made.

The applicant’s action was dismissed on 17 February 2002 by the Bucharest County Court, which held that the sixty-day deadline was not compulsory, but rather advisory. The court also held that the adjustment of the amounts granted was indeed prescribed by Article 8 § 3 of the law, but any adjustment was to be made at the time payment was actually made, once the Central Commission had ratified or otherwise the County Commission decision.

On 23 June 2003 the Bucharest Court of Appeal allowed the applicant’s claim, and ordered that the Central Commission issue a decision ratifying or otherwise the proposal made by the County Commission on 15 December 2000. The court held that the claim concerning the adjustment of the amounts granted as compensation was to be dealt with during the enforcement stage.

On 29 August 2003 the Central Commission ratified the County Commission decision of 15 December 2000.

The compensation, representing at that time approximately EUR 54,000, was paid to the applicant on 22 November 2003.

Dissatisfied with the decision of the Central Commission, on 13 December 2003 the applicant lodged a court action aimed at obtaining an adjustment of the initial amount to take into account inflation from the date on which it was established by the County Commission to the date of actual payment.

By a decision of 16 April 2004, the Bucharest County Court ruled in the applicant’s favour. The County Court established that in accordance with Article 8 § 2 of Law no. 9/1998, the amounts set by the County Commission had to be adjusted for inflation if they were not paid in the year they were awarded.

On 21 February 2005 the Bucharest Court of Appeal reversed the decision, and ruled that the applicant was not entitled to an adjustment for inflation.

The appellate court concluded that the County Court had interpreted the applicable law incorrectly, as the entitlement to adjustment for inflation had to be determined on the basis of the date when the Central Commission had ratified the decision of the County Commission. As the payment had been made uno ictu, and not in instalments, during the same year as the Central Commission took its decision, the applicant was not entitled to an adjustment for inflation.

It also concluded that the failure of the Central Commission to ratify the decision of the County Commission within sixty days could not represent a legal basis for the adjustment of the amount in question.


Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1997 and lives in Deva.

At the time of the events, the eleven-year-old applicant was living with her family in a small village and often used to go to play with two girls from a neighbouring family at their house. The girls, F.C.B. and M.S.B., were about the same age as the applicant. The neighbours’ family (the B. family) had ten children and were also accommodating a relative of theirs, J.V., a fifty-two-year-old man who was unemployed and lived in the family’s vacant cattle stable.

According to the statement made by the applicant later to the police, in August 2008 and then again in December 2008, J.V. had dragged her by force while she was playing with her girlfriends at the neighbours’ house, had taken her to an empty room in the house or into the barn and had raped her while holding her down and keeping his hand over her mouth in order to prevent her from screaming. The applicant also stated to the police that between August 2008 and February 2009 she had been raped in similar circumstances by four of the neighbours’ sons and their friend G.I.

On 10 March 2009 the applicant’s mother noticed that the applicant did not get her monthly period and had a talk with her. She told her mother that she had been sexually abused by J.V. and the other boys. She said that she had been ashamed to talk about what happened and also afraid to tell her parents sooner because J.V. had threatened that he would beat her if she told anyone.

As a result of the sexual abuse, the applicant became pregnant and, with her parents’ approval, she later underwent a surgical termination of the pregnancy.

On 10 March 2009 the applicant’s parents lodged a complaint against the alleged perpetrators with the local police and an investigation was started against J.V. and the four brothers F.B., A.B., G.B. and P.B. No proceedings were opened with respect to G.I., who was under fourteen and hence not criminally liable.

On the same day the five suspects were called into the police station for questioning. F.B. declared that on 22 December 2008, when the applicant was visiting her friends, he had asked her to have sex with him and she had accepted. P.B. declared that it had been J.V. who insistently told him to have sex with the applicant.

On 11 March 2009 a forensic report found that no traces of violence had been detected on the applicant’s body.

During the investigation J.V. declared that the applicant had provoked him to have sex with her as she was always scantily dressed. He further stated that it was she who had come to him and had asked him to have sex with her the first time, in August or September 2008. He alleged that the applicant had told him that she had had sex before with the boys from the B. family.

The applicant declared before the police that she had been forced by J.V. to have sex with him on several occasions, alleging that he had threatened that he would beat her if she told anyone. The other boys had also forced her to have sex with them, telling her that it was J.V. who had told them what to do.

On 22 April 2009 the Deva Police sent the file to the Prosecutor’s Office of the Hunedoara County Court in order to pursue the investigation into rape. The judiciary police officer making the request held that, even if the perpetrators’ statements were to be accepted as truthful, the victim’s age (eleven at the time of the first sexual act) precluded the existence of legally valid consent as she could not have freely expressed her will.

On 7 July 2009, at the request of the Hunedoara County Police, the Hunedoara County Forensic Institute issued a forensic psychiatric report on the applicant. The report held that the applicant was suffering from post-traumatic stress and stated that:

“Concerning the specific circumstances in which the criminal acts were committed, the minor speaks with shame about what happened. She has a vivid memory of the events. ... She says that she did not tell anyone about the incidents sooner because she feared for her safety and the safety of her family members.”

The report concluded that the applicant had difficulties in foreseeing the consequences of her actions and had insufficient discernment due to her age.

F.B. declared before the prosecutor that he had had sex with the applicant once on 22 December 2008. A.B. declared that he had had sex with the applicant in the autumn of 2008. G.B. declared that he had had sex with the applicant once in April and then again in October 2008. P.B. stated that he had had sex with the applicant on one occasion in the autumn of 2008. The applicant had asked him to have sex with her, and when he had refused - because he had never done this before - it was she who got undressed and climbed onto him. He further mentioned that he had used a condom that he had in his pocket. They all declared that it was the applicant who had taken the initiative each time and that it had happened because she displayed a provocative attitude, being scantily dressed most of the time. Each brother stated that the applicant had told him that she had had sex before, either with one of the other brothers or with J.V.

When questioned during the investigation, F.C.B. and M.S.B. declared that the applicant had told them she had had an intimate relationship with J.V. and that they had never seen him taking the applicant by force while they were playing. They also stated that the applicant often came to their house scantily dressed and that their brothers C.B. and A.B. had told them that the applicant had provoked them and “jumped onto them”.

On 10 December 2009 the Prosecutor’s Office of the Hunedoara County Court issued an indictment decision with respect to J.V. for the crime of sexual intercourse with a minor on repeated occasions. F.B., A.B., G.B. and P.B. were given administrative fines for the same crime. From the statements of the perpetrators and the two sisters, the prosecutor held as proved the fact that the applicant had gone to the neighbours’ house scantily dressed and had had a sexual relationship with J.V. The prosecutor therefore concluded that from the documents in the file it was not proved beyond doubt that the applicant had not given her consent to the sexual acts.

The applicant’s complaint against the prosecutor’s decision concerning the four brothers and G.I. was rejected by the superior prosecutor and subsequently by the courts.

On 20 April 2010 J.V. was found guilty by the Deva District Court of sexual intercourse with a minor and was sentenced to three years’ imprisonment. The applicant was awarded 10,000 Romanian lei (ROL) by way of compensation in respect of non-pecuniary damage (approximately 2,000 euros (EUR)).

During the proceedings the applicant’s representative requested the perpetrator’s conviction for rape. She submitted to the file a copy of a judgment issued on 10 November 2009 by the Bacău Court of Appeal which held that a girl aged ten years and eight months could not understand what a sexual act meant sufficiently well to give her consent to it.

The applicant declared before the court that J.V. had forced her to have sex with him and had threatened to beat her if she told anyone. She was afraid of him because he could become violent when he was drunk. The other boys had also threatened to beat her and once A.B. had threatened her with a knife.

In reaching its decision, after also hearing statements from J.V. and the witnesses F.C.B. and M.S.B., the Deva District Court firstly observed that the forensic certificate stated that no signs of violence had been detected on the victim’s body. The court further noted that it was apparent from the statements of J.V. and the other perpetrators who had not been indicted by the prosecutor that the applicant had always taken the initiative for the sexual acts and she had been in the habit of provoking both J.V. and the other boys to have sex with her. As regards the content of the above-mentioned statements, the court considered “relevant” the fact that the applicant was scantily dressed and that even after she had allegedly been sexually abused she went on playing with her girlfriends. The court considered that:

“If sexual intercourse had taken place by force or by taking advantage of the victim’s lack of capacity to defend herself or to express her will, it is certain that [she] would not have continued her previous practice [going to play with the neighbours’ daughters]”.

The applicant, represented by her lawyer, appealed against the judgment of the Deva District Court, requesting that J.V. be convicted of rape and that the amount of compensation in respect of non-pecuniary damage be increased to ROL 50,000. The applicant’s representative submitted that the decision of the first instance court had not been impartial since it had been based only on the statement of the accused, together with statements by the other perpetrators and two witnesses – all related to the accused. Furthermore, since the minimum age of consent to a sexual act was set by law at fifteen, the applicant ‒ who was only eleven at the time of the incidents ‒ could not have expressed valid consent and the sexual abuse committed against her could therefore only be classified as rape. In addition, the applicant’s representative complained that the forensic psychiatric report of 7 July 2009, which declared that the victim lacked capacity to express valid consent and was suffering from post-traumatic stress, had not been taken into consideration by the first instance court.

The Hunedoara County Court decided to allow the applicant’s appeal, holding that:

“According to the provisions of Article 197 of the Criminal Code, the crime of rape is ‘Sexual intercourse of any kind with a person ... taking advantage of the [person’s] lack of capacity to defend herself or to express her will [original emphasis]...’.

At the time when the accused had sexual intercourse with the victim, she was eleven years old. In Romanian law, there is an absolute presumption that any person below fourteen completely lacks capacity. Therefore, before the age of fourteen, the minor cannot express a valid consent, being in a position of inability to express [his/her] will in a valid manner...”

Taking these arguments into account, on 4 November 2010 the Hunedoara County Court convicted J.V. of rape and sentenced him to four years’ imprisonment. The court applied a sentence below the minimum provided for by law for the crime of rape against a person under fifteen, finding mitigating circumstances due to the defendant’s good behaviour prior to the commission of the crime on trial. The court also held that it was not necessary to increase the amount of compensation in respect of non-pecuniary damage awarded by the first instance court.

The applicant’s representative submitted an appeal on points of law (recurs) against the judgment of 4 November 2010, requesting an increase in the amount of compensation for non-pecuniary damage and that a more severe sentence be imposed on the defendant. J.V. also contested the judgment, requesting a conviction for the crime to which he had confessed, namely sexual intercourse with a minor.

On 21 March 2011 the Alba Iulia Court of Appeal allowed the appeal on points of law submitted by J.V. and upheld with final effect the judgment of the Deva District Court of 20 April 2010. The Alba Iulia Court of Appeal based its verdict on the statements given by J.V., F.C.B. and M.S.B. as well as the account of the events given by the other perpetrators. Based on these testimonies and the fact that the victim had not told her parents about the alleged abuse, the court drew the conclusion that the instances of sexual intercourse had always been initiated by the applicant and dismissed the theory that the victim might have lacked capacity to express her will. The findings of the forensic psychiatric report of 7 July 2009 were not mentioned or discussed in any way by the court.

The court of appeal explained as follows:

“The court considers that the crime of rape is committed by constraint - physical or moral - or by taking advantage of the victim’s lack of capacity to express his/her will, more specifically rape is a sexual intercourse committed without consent. On the other hand, the crime of sexual intercourse with a minor, as provided by Article 198 of the Criminal Code, means engaging in a sexual intercourse with a minor under 15, but with the minor’s consent. ...

“The presumption of lack of capacity applies only to minors who are under fourteen and have committed a crime, but with respect to the crime provided by Article 198 of the Criminal Code, the minor [the applicant] is the victim and not the perpetrator.”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Peer Lorenzen

The applicant was born in 1960 and lives in Marsala (Trapani).

The applicant, who subsequently acquired Italian nationality, was at the relevant time a Tunisian national who had entered Italy on the basis of a lawful residence and work permit. He was employed by company A. and insured with the National Social Security Agency (Istituto Nazionale della Previdenza Sociale – “the INPS”). His family was made up of his wife and their four minor children. His income for the year 1999 totalled 30,655,000 Italian lira (ITL – approximately 15,832 euros (EUR)).

On 24 May 2001 the applicant lodged an application with the Marsala District Court, acting as an employment tribunal, seeking payment of the family allowance (assegno per nucleo familiare) provided for by section 65 of Law no. 448 of 1998. Under the terms of that provision, the allowance in question was paid by the INPS to families made up of Italian nationals living in Italy with at least three minor children, whose annual income was below the amounts set out in the table appended to Legislative Decree no. 109 of 31 March 1998 (in this instance, the amount applicable to families with five members, namely ITL 36 million (approximately EUR 18,592)).

The applicant submitted that even though he did not have Italian nationality as required by Law no. 448 of 1998, the allowance was nevertheless due to him under the association agreement between the European Union and Tunisia – known as the Euro-Mediterranean Agreement – which had been ratified by Italy (Law no. 35 of 3 February 1997). Article 65 of the Agreement provides as follows:

“1. Subject to the provisions of the following paragraphs, workers of Tunisian nationality and any members of their families living with them shall enjoy, in the field of social security, treatment free from any discrimination based on nationality relative to nationals of the Member States in which they are employed.

The concept of social security shall cover the branches of social security dealing with sickness and maternity benefits, invalidity, old-age and survivors’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits.

These provisions shall not, however, cause the other coordination rules provided for in Community legislation based on Article 51 of the EC Treaty to apply, except under the conditions set out in Article 67 of this Agreement.

All periods of insurance, employment or residence completed by such workers in the various Member States shall be added together for the purpose of pensions and annuities in respect of old age, invalidity and survivors’ benefits and family, sickness and maternity benefits and also for that of medical care for the workers and for members of their families resident in the Community.

The workers in question shall receive family allowances for members of their families who are resident in the Community.

The workers in question shall be able to transfer freely to Tunisia, at the rates applied by virtue of the legislation of the debtor Member State or States, any pensions or annuities in respect of old age, survivor status, industrial accident or occupational disease, or of invalidity resulting from industrial accident or occupational disease, except in the case of special non-contributory benefits.

Tunisia shall accord to workers who are nationals of a Member State and employed in its territory, and to the members of their families, treatment similar to that specified in paragraphs 1, 3 and 4.”

In a judgment of 10 April 2002 the Marsala District Court rejected the applicant’s application.

The applicant appealed. He requested, among other things, that a question be referred to the Court of Justice of the European Union (“the CJEU”) for a preliminary ruling as to whether, under Article 65 of the EuroMediterranean Agreement, a Tunisian worker could be refused the family allowance provided for by section 65 of Law no. 448 of 1998.

In a judgment of 21 October 2004 the Palermo Court of Appeal dismissed the applicant’s appeal. It observed that, as the allowance in question was based solely on the income and family situation of the recipients, it fell within the sphere of social assistance (assistenza sociale). The allowance had initially been intended only for Italian citizens and had subsequently been extended to all European Union nationals. However, the Euro-Mediterranean Agreement related only to social-security benefits (prestazioni previdenziali) and was therefore not applicable to the family allowance provided for by section 65 of Law no. 448 of 1998.

The applicant lodged an appeal on points of law, reiterating his request for a preliminary ruling to be sought from the CJEU.

In a judgment of 15 April 2008 which was deposited with the registry on 29 September 2008, the Court of Cassation dismissed the appeal.

In its reasons, the Court of Cassation observed first of all that Article 64(1) and (2) of the Euro-Mediterranean Agreement provided, inter alia, as follows:

“1. The treatment accorded by each Member State to workers of Tunisian nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals.

All Tunisian workers allowed to undertake paid employment in the territory of a Member State on a temporary basis shall be covered by the provisions of paragraph 1 with regard to working conditions and remuneration.”

Noting that the text in question referred explicitly to employment relationships and the elements that comprised them, the Court of Cassation inferred from this that it applied only to social-security benefits and not to social-assistance benefits of the kind claimed by the applicant, to which Tunisian citizens resident in Italy were not entitled. According to the Court of Cassation, this interpretation was confirmed by Article 65(1) and (2) of the Euro-Mediterranean Agreement, which referred in particular to “sickness and maternity benefits, invalidity, old-age and survivors’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits”. The Court of Cassation stressed that its interpretation was not based solely on the reference in the text to “social security” (previdenza sociale) but, as indicated by the CJEU, on the elements comprising each benefit.

This judgment was served on the applicant on 2 October 2008.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant was born in 1978 and lived in Cheboksary before his conviction. He is currently serving a sentence in Novocheboksarsk.

In April 2006 a criminal case was opened into the theft of money belonging to the applicant’s cousin, Ms G.

On 8 September 2006 G. was found dead in her flat with several gunshot wounds. On 9 September 2006 a criminal case was opened into her murder.

On 14 September 2006 the applicant, who was suspected of the theft and whose whereabouts were unknown, was placed on a police wanted list.

At around 10 p.m. on 6 October 2006 the applicant was arrested on the street. He was handcuffed and taken to the police station of the Moskovskiy district police department of Cheboksary (Московский РОВД г. Чебоксары – “the district police”). According to Ms P. and two other female witnesses, the applicant had no injuries before his arrest.

The applicant was escorted to the police station at around 11 p.m. He was taken in handcuffs to room no. 217 on the first floor (“second floor” in Russian) and interviewed by operative police officers Ch. and F. about the theft and murder. He gave a partial confession, stating that he had stolen less money from the victim, but denied murder.

The parties provided different accounts of the events at the police station.

According to the applicant, police officers Ch. and F., who were drunk at the time, demanded that he confess to the theft and murder. They allegedly beat him up, delivering blows to his head, ears, body and legs, and threatened him with rape. At about 3 a.m. they shackled a 40 kg weight to his hands, which he was made to hold while they continued to physically assault him. At about 4 a.m. they made him stand on the windowsill of an open window and threatened to throw him out and make it look as if he had attempted to flee or commit suicide if he did not confess to the murder. After refusing to do so, one of the police officers allegedly pushed him out of the window.

According to the Government, in the course of the police interview the applicant, who was drunk when he was taken to the police station, suddenly climbed on a table and jumped out of the window. This course of events was reported by police officers Ch. and F. to their superior on 7 October 2006. They stated that they had taken the applicant for an interview in room no. 217 in handcuffs as he had been drunk, had had a strong smell of alcohol coming from his mouth, had behaved aggressively and inadequately and had used obscene and threatening language towards them.

Shortly before 6 a.m. on 7 October 2006 the applicant was given first aid by the ambulance service, which diagnosed him with a closed head injury, concussion and bruises of the soft tissue on the face and on both feet. According to the paramedic and his assistant, they found the applicant lying on the tarmac conscious; he was handcuffed without any weight shackled to him.

At 6.15 a.m. the applicant was taken to the Cheboksary Town Emergency Hospital handcuffed on a stretcher, accompanied by police officers Ch. and F. After surgery his right foot was in plaster and his left foot had a weight fixed to it. The applicant was shackled to the bed by one of his hands and guarded by a police officer.

From 11.20 to 11.55 a.m. on 7 October 2006 an investigator from the district police questioned the applicant in hospital as a suspect in the theft case, in the presence of a lawyer. He reiterated his confession (see paragraph 10 above). From 7 to 8.30 p.m. that evening an investigator from the Moskovskiy district prosecutor’s office questioned him as a witness in the murder case.

According to Ms P. and the applicant’s mother, who visited the applicant in the hospital, the applicant’s eyes were both bruised (which is also evident on photographs of the applicant in hospital), his left ear was swollen, his teeth were loose and he could hardly talk. According to his mother, his left ear was unresponsive and he could not hear, his head and chin were badly bruised, and he had bruises and cuts on his wrists. The applicant told his mother that he had been beaten up and threatened with rape by two police officers, who had shackled a 40 kg weight to him and threatened to throw him out of a window if he did not confess to the crimes. He could not remember what had happened next.

At 1.10 p.m. on 10 October 2006 an investigator from the district police drew up a record of the applicant’s arrest at 1 p.m. that day as a suspect in the theft case. On 11 October 2006 the Moskovskiy District Court of Cheboksary (“the District Court”) dismissed the investigator’s request to have the applicant remanded in custody on the grounds that he had been hospitalised and could not participate in the hearing himself.

At 2.15 p.m. on 13 October 2006 an investigator from the Moskovskiy district prosecutor’s office drew up a record of the applicant’s arrest at 2.10 p.m. that day on suspicion of the murder. On the same day the District Court extended his arrest until 16 October 2006.

On 16 October 2006 the criminal cases concerning the theft and murder were joined and the applicant was charged with both crimes. The District Court remanded him in custody.

On the same day the applicant, who had been undergoing continuous inpatient treatment in hospital since 7 October 2016, was transferred to the Cheboksary pretrial detention facility.

By an order of 21 October 2006 the Ministry of Internal Affairs of Chuvashiya held police officers Ch. and F. liable in disciplinary proceedings for failing to properly guard the applicant and leaving him without permanent surveillance on 7 October 2006. They were issued with a severe warning. The order stated that in the course of the applicant’s interview the police officers, who had failed to carry out their duties in accordance with the service regulations and to take into account the applicant’s personality, had opened a window thereby creating conditions for the applicant to jump out of it.

On 22 November 2006 the applicant confessed to the murder of G. in the course of his questioning as an accused, in the presence of his lawyer.

On 8 February 2007 the District Court convicted him of theft, murder and possession of a firearm, and sentenced him to fourteen years’ imprisonment. The period of his arrest and remand in custody from 10 to 12 October 2006 and from 13 October 2006 onwards was counted towards his sentence. The judgment entered into force on 5 April 2007.

The following injuries were recorded during the applicant’s initial examination at the Cheboksary Town Emergency Hospital on 7 October 2006: a soft tissue injury to the head, scratches on the face and knees, swelling and bruises on the left hip, a fractured left foot and a dislocated right foot. He was diagnosed with a closed head injury, concussion, bruises and scratches on the head soft tissue and left hip and knee joints, and fractures to both feet.

On 8 October 2006, during his inpatient treatment in hospital, the applicant, who had complained that one of his teeth was loose and painful, was examined by a dentist and diagnosed with a “contusion of tooth 41” (lower tooth on the right side). On 11 October 2006 an otolaryngologist examined him in connection with the impaired hearing in his left ear and diagnosed him with otitis.

From 22 October to 12 November 2006 the applicant received inpatient treatment in the medical facility of Chuvashiya correctional colony no. 4 (IK-4).

It appears from a report by a panel of forensic psychiatrists dated 24 November 2006 that the applicant suffered from a personality disorder which did not require medical treatment or exclude his criminal responsibility. The experts did not assess the applicant’s fall from the window of the police station.

On 11 December 2006 an investigator of the Moskovskiy district prosecutor’s office ordered a forensic medical examination of the applicant. The investigator stated that at about 5 a.m. on 7 October 2006 the applicant had fallen from office no. 217 on the first floor of the police station and received injuries to both feet. The investigator asked whether on 7 October 2006 the applicant had had any injuries other than those to both of his feet, and if so, how and when they had been received, whether they could have been received as a result of a fall onto tarmac from the first floor, where they were located and how serious they had been.

Following an examination of the applicant’s hospital records, a forensic medical expert concluded on 14 December 2006 that the information concerning the applicant’s initial examination in hospital on 7 October 2006 was undetailed. Information on the exact location, number and morphological characteristics of the injuries was missing, and was insufficient to determine the time and order they had been inflicted to distinguish them and determine which could have been as a result of the applicant being punched and kicked and which could have been as a result of his fall from the first floor. It was stated in the expert’s report that the applicant had not attended the examination, after asking in writing to carry it out in his absence.

On 11 October 2006 the applicant’s mother lodged a complaint with the Chuvashiya prosecutor’s office concerning her son’s alleged illtreatment and unlawful deprivation of liberty from 6 to 10 October 2006.

On 8 November 2006 the applicant lodged a complaint with the Moskovskiy district prosecutor’s office concerning his alleged illtreatment by the police officers, requesting that criminal proceedings be opened against them.

The Moskovskiy district prosecutor’s office and subsequently the Cheboksary inter-district investigation department of the investigative committee at the Chuvashiya prosecutor’s office refused to open a criminal case into the applicant’s alleged ill-treatment and unlawful deprivation of liberty twenty-four times, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), because none of the elements of the offences provided for in Articles 127, 285, 286, 299 and 301 of the Criminal Code (unlawful deprivation of liberty, abuse of powers, criminal prosecution of persons known to be innocent and unlawful arrest and detention respectively) were present in respect of the actions of the police officers. They concluded that the applicant’s allegations could not be confirmed by a pre-investigation inquiry.

The pre-investigation inquiry was resumed twenty-three times as the decisions refusing to open a criminal investigation were set aside by higher authorities within the prosecutor’s office and subsequently the investigative committee as unsubstantiated, unlawful or based on an incomplete inquiry.

(i) A refusal on 21 October 2006 was overruled on 5 December 2006 on the grounds, inter alia, that nothing had been done to establish whether there had been a 40 kg weight in office no. 217. Moreover, police officers Ch. and F. had carried out non-investigative actions involving the applicant, a suspect in the criminal case, from 11 p.m. to 5.42 a.m. on the night of 6 October 2006, and no assessment of the lawfulness of those actions had been carried out.

(ii) A refusal on 12 December 2006 was overruled on 13 December 2006. It was noted that office no. 217 had been inspected and no weights had been found.

(iii) Twenty further decisions refusing to open a criminal case taken between 18 December 2006 and 9 October 2008 were overruled. In particular, a refusal on 22 May 2008 was overruled on 5 June 2008 on the grounds that instructions by the deputy head of the investigative committee of Chuvashiya given on 22 November 2007 had still not been fulfilled. A refusal on 16 June 2008 was overruled on 16 June 2008 on the grounds that deficiencies identified by the deputy head of the prosecutor’s office of Chuvashiya on 5 December 2006, the Moskovskiy District Court of Cheboksary on 6 March 2007 and the Supreme Court of Chuvashiya on 12 April 2007 had still not been corrected.

(iv) A refusal on 27 October 2008 was overruled on 28 October 2008 on the grounds that the investigative committee of Chuvashiya acknowledged that investigator S. had been found liable in disciplinary proceedings for stalling the inquiry and issuing unlawful and unsubstantiated decisions based on an incomplete inquiry.

(v) A refusal on 2 December 2008 was upheld by the courts as a result of a review under Article 125 of the CCrP (see paragraph 40 below).

In the most recent refusal issued on 2 December 2008 investigator A. from the Cheboksary investigative committee found that the applicant, who had been wanted in the theft case, had been arrested and taken to the police station and remained there on suspicion of committing it. His being held in room no. 217 for five hours had been necessary for carrying out operationalsearch measures. Police officers Ch. and F. had handcuffed him lawfully in order to guard him and prevent him from escaping or harming himself or others. His hospitalisation had made it impossible for him to be arrested as a suspect on 7 October 2006. He had been handcuffed in hospital to prevent him from attempting to escape again.

The investigator also found that the applicant had jumped out of the window himself in order to flee, without any coercion by the police officers. His allegations that he had been subjected to physical violence had not been confirmed. The investigator stated that injuries other than those to both feet had been found on the applicant at the time of his admission, as set out in the forensic medical expert’s report of 14 December 2006. However, the lack of any detailed description of those injuries in the applicant’s medical records had made it impossible to establish when and how they had been received, in particular whether they had been received as a result of him falling from the first floor or being beaten up.

The investigator’s decision of 2 December 2008 referred, inter alia, to statements by police officers Ch. and F. They said that after the applicant’s arrest on 6 October 2006 they had interviewed him in room no. 217 about the theft and the murder of G. of which he had been suspected. The applicant had given a partial confession to the theft but had denied murder. He had been convicted of a criminal offence in the past and had tried to escape from a police station by jumping out of a toilet window. The incident had prompted the police to install iron bars on it. In September 2006, after the murder of G., the applicant had been hospitalised for a drug overdose, but had not been arrested because after the hospital had alerted the police he had managed to escape. During the interview on 6 October 2008 the applicant, who had been drunk and had smelled of alcohol, had behaved provokingly and insulted them with obscene words. They had therefore handcuffed him (placing his hands in front) to avoid any attempts to escape or commit suicide. At about 5 a.m., as F. had been leaving the room, the applicant had jumped on a table adjacent to an open window and jumped out. Ch. claimed that he had been putting documents into a safe at the time, while F. said that Ch. had been sitting at the table and the applicant had been sitting on a chair near the table immediately before jumping out of the window. Access to the window had been blocked by the table. It had been possible to reach and open it while sitting at the table. They had taken the applicant to hospital and guarded him there to prevent him attempting to flee again.

The decision of 2 December 2008 also referred to the applicant’s statements that immediately before his arrest he had been drinking, and to statements by the investigator from the district police and a police officer who had guarded the applicant at the hospital on 9 October 2006 that the applicant had allegedly stated off the record that he had jumped out of the window himself trying to flee, without any influence by the police officers. It also relied on statements by duty police officer T. that in the early morning of 7 October 2006 he had seen on a monitor (no video recordings had been made) that somebody had fallen out of the window of the police station. He had been the first to go near the applicant lying on his back with his hands handcuffed to his front. Nothing had been attached to his hands. In his earlier statements set out in the refusal to open a criminal case of 21 October 2006, T. explained that at around 5 to 6 a.m. on 7 October 2006 he had seen on a monitor that somebody was lying near the entrance of the police station. Police officers and ambulance staff approached him. T. had not gone near him himself and had neither seen him nor whether there had been any objects near him.

Refusals of 17 February 2007 and 25 April 2007, as well as the refusal of 2 December 2008, were reviewed by the domestic courts in accordance with Article 125 of the CCrP. The applicant’s complaints concerning the two 2007 refusals were allowed. In decisions of 6 March and 13 September 2007 the District Court found that they were unlawful and lacked reasoning. The decision of 6 March was upheld on appeal on 12 April 2007 by the Supreme Court of Chuvashiya, which noted that it was necessary to assess the lawfulness of the handcuffing and guarding of the applicant in hospital before his detention in the criminal proceedings. The decision of 13 September 2007 also found the Moskovskiy district prosecutor’s failure to enforce the District Court’s previous decision of 6 March 2007 unlawful.

On 3 November 2009 the District Court dismissed the applicant’s appeal against the most recent refusal to open a criminal case, finding that the investigating authorities had carried out all the measures necessary for establishing the relevant facts fully, objectively and thoroughly, and had taken a reasoned decision on the basis of a full and comprehensive inquiry in accordance with the law. On 10 December 2009 the Supreme Court of Chuvashiya upheld that decision on appeal, noting that in disagreeing with the District Court’s findings, the applicant’s representative had misinterpreted the relevant domestic law.


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in 1971. He is currently serving a sentence in a prison in Panama.

Following an undercover operation set up by the police with the help of two undercover agents, the applicant and a Dutch national, V.D.P., were arrested on suspicion of drug trafficking.

In November 2002, the prosecutor’s office attached to the Timişoara Court of Appeal committed the applicant and his co-accused for trial for drug trafficking and the case was registered with the Arad County Court.

The applicant’s counsel asked the court to hear evidence from the undercover agents. His request was refused on the ground that the anonymity of the undercover agents was protected.

Following another request lodged by the applicant’s counsel, on 5 March 2003 the court ordered the prosecutor to submit the authorisations it had issued for the undercover operation.

The applicant’s counsel claimed that his client had committed the drug offence only after being incited to do so by the undercover police agents.

On 9 April 2003 the Arad County Court convicted the applicant of drug trafficking and sentenced him to three years’ imprisonment. The County Court imposed a lenient sentence in the light of the applicant’s good behavior after his arrest and the fact that he had pleaded guilty as charged. The court based his conviction on the report drafted by the undercover agents after the applicant had been caught red-handed, as well as a search report and the statements given by the applicant and his co-accused.

The applicant appealed, complaining, inter alia, that the undercover agent had overstepped the legitimate limits of investigation by inciting him to sell drugs.

By a decision delivered on 25 June 2003 the Timişoara Court of Appeal increased his prison sentence to ten years’ imprisonment. It held that the good behaviour of the applicant after he had committed the offence could not justify a lenient sentence.

The applicant lodged an appeal on points of law. In his grounds for appeal he did not complain about the unlawfulness of his conviction but only about the length of his sentence. He requested the appellate court to impose a milder sentence and accordingly, to overturn the decision of the Timisoara Court of Appeal and to uphold the judgment of the Arad County Court by which he had been convicted to only three years’ imprisonment.

By a final decision delivered on 27 November 2003, the Supreme Court of Justice dismissed the applicant’s appeal on points of law as unfounded.

The applicant was detained in Jilava Prison between 25 July 2003 and 6 January 2004.

The applicant alleged that he had been kept in poor hygienic conditions in overcrowded cells. The water provided had been of very poor quality, being of a yellow colour, smelling and containing worms. Sometimes, there had been no water – either for drinking or for the toilet. The food had also been of very poor quality.

The Government contended that the records held by the prison authorities concerning the cells’ size and their occupancy rate were no longer available as the archives for that period had been destroyed, pursuant to the domestic law. However, as regards the general detention conditions in Jilava Prison the Government submitted that every cell had been equipped with two squat toilets connected to the water network and separated from the rest of the room by a wall. It had been possible to let in fresh air by opening the window to each cell. The prisoners had been allowed to take one hot shower per week in the communal bathrooms located in each section of the prison (between nineteen and twenty-three showers had been available). The applicant had been allowed to walk outside his cell for thirty minutes each day.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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. Some applicants also raised other complaints under the provisions of the Convention.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Mr Stanislav Hučko, is a Slovak national, who was born in 1964 and lives in Otley, the United Kingdom. He was represented before the Court by Mr F. Chochol, a lawyer practising in Vranov nad Topľou.

The Slovak Government (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

In 1998 a former business partner sued the applicant for a sum of money in the context of the dissolution of their partnership. On 8 January 2001 the applicant filed a counterclaim.

The case was dealt with by courts at two levels of jurisdiction.

On 27 April 2009 the Humenné District Court dismissed both parties’ claims. It found the claim lodged by the applicant to have lapsed.

On 12 February 2010 the Prešov Regional Court rejected an appeal by the applicant as having been lodged out of time.

The Regional Court’s decision was served on the applicant by the District Court several times owing to difficulties in obtaining a certificate of service. Thus, in a letter of 10 August 2010 a judge stated that the above impediment had prevented the District Court from indicating the date when the decision in issue took effect. On 3 March 2011, following the receipt of the relevant document and the return of the case file, the District Court put a stamp on the decision indicating that it had become final on 13 December 2010.

In the meantime, on 10 May 2010 the applicant unsuccessfully applied to the General Prosecutor’s Office for the lodging of an extraordinary appeal on points of law on his behalf. He argued that he had appealed within the statutory time-limit.

On 12 January 2011 the applicant posted a complaint to the Constitutional Court. He alleged a breach of his right to a fair hearing within a reasonable time in the proceedings before the ordinary courts. The applicant affirmed that the complaint had been lodged within two months of 12 November 2010, when he had been notified that his application to the General Prosecutor’s Office had been dismissed.

The applicant noted that the copy of the Regional Court’s judgment enclosed with his constitutional complaint had no stamp indicating the date of final effect. This was due to the fact that such indication had to be made first in the original decision, and that had been possible only after the case file had been returned to the District Court.

On 3 February 2011 the Constitutional Court rejected the complaint as having been lodged outside the statutory time-limit of two months. It held that the applicant should have lodged his complaint within two months of the service of the Regional Court’s decision. The Constitutional Court admitted that the exact date of service of that decision was unknown. However, it found that decision to have been served not later than on 10 May 2010, the date of the applicant’s application to the General Prosecutor’s Office. The applicant had posted his constitutional complaint more than two months thereafter, namely on 12 January 2011. His application to the General Prosecutor’s Office could not affect the position as it concerned an extraordinary remedy.

On 3 May 2011, in a reply to the applicant’s complaint, the vicepresident of the District Court indicated, with reference to the case file, that the decision in the applicant’s case had become final on 13 December 2010.

On 24 May 2011 the applicant’s representative asked the Constitutional Court to review its decision.

In a letter of 13 September 2011 a judge of the Constitutional Court, after examining the file, replied that the Regional Court’s decision of 12 February 2010 had actually become final on 8 April 2010. It had been served on the applicant on that date; he had been the last person on the list of those on whom it had to be served. The indication of 13 December 2010 as the date of final effect of the decision by the District Court had been an error, but it could not affect the legal position because it was of a merely declaratory nature. Finally, the letter stated that the applicant’s complaint was in any event inadmissible on account of his failure to seek redress by means of an appeal on points of law.

Pursuant to Article 158 § 2 of the Code of Civil Procedure, a certified true copy of a judgment is to be served on the parties or their representatives in person.

Article 159 § 1 of the Code of Civil Procedure provides that a judgment which has been served and which can no longer be challenged by means of an appeal is final.

Section 53(3) of the Constitutional Court Act 1993 provides that a complaint to the Constitutional Court may be lodged within two months of the date on which the decision in question becomes final and binding or on which a measure is notified or notice of some other interference with the complainant’s interests is given. As regards measures and other types of interference, this period commences when the complainant has had a practical opportunity to become aware of them.

Pursuant to section 62(1) of Regulation no. 543/2005, a court’s legal secretary is obliged, as soon as the date of final effect of a decision has been established, to indicate the same on the cover page of the original of the court’s decision. Under section 63 of that Regulation, upon request courts are to confirm, by means of a stamp on the cover page of a true and certified copy, the date when the decision acquired final effect and became enforceable.

As regards complaints about ordinary courts’ decisions in the context of civil proceedings, the Constitutional Court has held, in a number of cases, that the above time-limit of two months starts running on the day when the contested decisions become final (see, for example, decisions II. ÚS 99/2010 of 4 March 2010; IV. ÚS 188/2010 of 19 May 2010; III. ÚS 106/2010 of 9 March 2010; or II. ÚS 298/2010 of 24 June 2010).

In the context of complaints about judicial proceedings the Constitutional Court has consistently considered irrelevant, when determining compliance with the time-limit of two months under section 53(3) of the Constitutional Court Act 1993, the dismissal of plaintiffs’ request for an extra-ordinary appeal to be filed on their behalf. It held the date of final effect of the contested judicial decisions to be relevant in that context (see, for example, decision file no. IV. ÚS 42/06 of 28 February 2006, with further references).


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

The applicant was born in 1960 and lives in Budapest.

On 17 April 2007 the applicant was questioned as suspect on charges of theft.

On 25 June 2008 the Budapest XIV/XVI District Public Prosecutor’s Office indicted the applicant for theft.

On 14 October 2011 the Pest Central District Court acquitted the applicant.

The first-instance judgment was upheld on appeal by the Budapest High Court on 8 October 2012. This judgment was served on the applicant on 19 October 2012.