No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1981 and lives in Dubrovnik.

On 21 October 2010, at 4:40 p.m. in Dubrovnik, police officers of the Criminal Police Department of the Dubrovnik-Neretva County Police (Odjel kriminalističke policije Policijske uprave dubrovačko-neretvanske) (hereinafter “the police”) arrested the applicant on suspicion of drug abuse.

According to the Government, the applicant resisted arrest and the police had to apply force in order to be able to bring him to the police station. During this process both the applicant and one of the police officers who had arrested him, S.D., sustained minor bodily injuries.

According to the applicant, he did not resist arrest and did not sustain injuries during his arrest; rather, it was during his stay in the police station that the police officers ill-treated him in order to pressure him to make incriminating statements against his co-accused in the trial.

The applicant was taken to the police station immediately after his arrest. At 9.40 p.m. he was examined by a doctor, who found that he had sustained minor bodily injuries – excoriations on his left elbow, on the left side of his chest and behind his left ear. Minor bodily injuries were also found on the police officer, S.D., who had arrested the applicant – specifically, excoriations on his right knee and elbow. During their medical examination the applicant and the police officer S.D. stated that they had sustained their injuries by falling to the ground. The doctor’s report of the examination was forwarded to the police.

According to a common report issued on the same day by the three police officers who arrested the applicant, S.D., L.D. and I.R., the applicant had resisted arrest and they had had to apply force in order to bring him to the police station. In particular, it was noted that the applicant had been found in a vehicle on the road and arrested. He had refused to step out of his vehicle, so S.D. had grabbed him by his left wrist and had applied the socalled “wristlock” technique in order to get him out of his vehicle. At that point police officer L.D. had grabbed the applicant by his right hand in order to apply the so-called “elbow-lock” technique, but due to the fact that the applicant had continued to resist all three of them had fallen to the ground. The applicant had tried to stand up and L.D. had kept him on the ground by pressing his knee against his back. The applicant had then been handcuffed and placed in the back seat of a police vehicle. In the police vehicle the applicant had continued to resist and the police officer S.D. had applied the “elbow-lock” technique and leaned him forwards in order to restrain him. By the time they had parked in front of the police station, one handcuff had come loose, so L.D. and I.R. had applied the “elbow-lock” technique again. When they had entered the police station the applicant had once again fallen to the ground. Then the applicant had been seated in a room and had ceased to resist, so the police officers had stopped using force and removed his other handcuff. Lastly, it was noted that during the application of coercive measures the applicant and S.D. had sustained injuries which, according to the doctor’s report, had been minor.

On the same day a shift manager of the Criminal Police Department noted in a report that the applicant had actively resisted arrest and that S.D., L.D. and I.R. had applied coercive measures against him – bodily force, restraining techniques and handcuffing. It was also noted that the applicant had been examined by a doctor, who had found that he had sustained excoriations on his left elbow, on the left side of his chest and behind his left ear. The applicant signed the report and stated that he did not have any objections to the procedure that had been followed.

On 25 October 2010 the chief of the Dubrovnik-Neretva County Police examined the information gathered in respect of the application of coercive measures against the applicant and found that they had been necessary, justified and lawful.

According to a police report made on the day of the applicant’s arrest, the applicant was informed of the reasons for his arrest and his right to remain silent, to hire a lawyer of his own choosing and to have a person of his choice be informed of his arrest. The report noted that the applicant had declined to hire a lawyer and that he had asked that his father be informed of his arrest. In this connection it was noted that the applicant’s father had been contacted at 6.20 p.m. The applicant signed the report without making any objections to its contents. On the same day the police lodged a criminal complaint against the applicant under a reasonable suspicion of drug abuse.

On 22 October 2010 at 9.45 a.m. the applicant was questioned by the police. In the report on his questioning it was noted that the applicant had been advised of his right to remain silent and to hire a lawyer of his own choosing who could be present during the questioning. In this connection it was noted that the applicant had declined to hire a lawyer. The applicant then gave a statement, explaining that in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines. He also stated that between 2008 and 2010 he had on several occasions bought cocaine from a certain D.Š. He expressed regret for his actions. The questioning ended at 11.10 a.m. The applicant signed the report on his questioning without making any objections regarding its contents.

On 22 October 2010 at 12 p.m. the applicant was brought for questioning before an investigating judge of the Dubrovnik County Court. A deputy Dubrovnik County State Attorney, K.K., was also present during the questioning. According to the report on his questioning, the applicant was twice advised by the investigating judge of his right to remain silent and to hire a lawyer of his own choosing, who could be present during the questioning. The applicant replied that he understood the advice and the grounds for his being under suspicion and maintained that he did not require a lawyer for that day’s questioning and that he would give a statement to the investigating judge and answer questions. He then explained that in August 2010 he had on two occasions acted as an intermediary in the selling of amphetamines and that between 2008 and 2010 he had on several occasions bought cocaine from D.Š. Lastly, the applicant stated that he had been arrested the day before at 5 p.m. and that apart from the use of force during his arrest he did not have any objections about the police conduct during his stay in the police station. The questioning ended at 12:50 p.m. The applicant signed the report on his questioning without making any objections as to its contents. He was then released.

On 29 October 2010 an investigation was opened in respect of the applicant and D.Š on the reasonable suspicion of their having engaged in drug abuse. On 2 December 2010 the investigation was extended to encompass a third person, V.V.

On 3 December 2010 the applicant hired a lawyer, D.P., to represent him.

On 4 January 2011 the Dubrovnik County State Attorney’s Office (Županijsko državno odvjetništvo u Dubrovniku) indicted the applicant, D.Š., and V.V for drug abuse.

On 3 May 2011 a hearing was held before the Dubrovnik County Court, which the applicant and his lawyer attended. The hearing was adjourned in order for V.V.’s ability to follow the proceedings to be determined.

The hearing of 7 June 2011, which the applicant and his lawyer attended, was adjourned owing to the illness of the presiding judge.

At a hearing held on 20 June 2011, which the applicant and his lawyer attended, the Dubrovnik Country Court (“the trial court”) established the identity of the defendants and the charges brought against them. The applicant stated that he understood the charges brought against him and the warnings regarding his rights given by the presiding judge and that he would present his defence and answer questions. He pleaded not guilty. He asked to give his defence at the end of the trial. Evidence was read out aloud, whereas certain evidence was excluded from the case file at the request of the defence. The trial court heard three witnesses.

At a hearing held on 21 June 2011, which the applicant and his lawyer attended, the trial court heard I.G., a witness.

At a hearing held on 1 July 2011, which the applicant and his lawyer attended, the trial court continued to hear I.G. and examined certain other evidence. The applicant’s lawyer then proposed that the trial court examine the medical records of the applicant’s father who allegedly suffered a stroke after learning of the applicant’s arrest, as well as a medical certificate dated 27 January 2011 confirming that on 21 October 2010 the applicant had been examined by a doctor and that the doctor’s report had been forwarded to the police. He also proposed that the trial court hear the applicant’s sister and examine the power of attorney by which she had hired a lawyer to represent the applicant during the time that the investigating judge was questioning him. The applicant’s lawyer, D.P., explained that this proposed evidence was relevant for the establishing of the conduct of the police against the applicant. D.H., the lawyer allegedly hired by the applicant’s sister, who represented D.Š., the applicant’s co-accused in the trial, stated that the power of attorney in question had been signed in his office on the night when the applicant had been held in the police station. The trial court examined the applicant’s father’s medical records and rejected the other proposed evidence, considering them irrelevant for the proceedings at that point.

At a hearing held on 4 July 2011 the trial court heard the applicant’s co-accused, D.Š. D.Š. stated, inter alia, that he had not sold drugs to the applicant and that he had learned from his lawyer, D.H., that the police had ill-treated the applicant in the police station and had beaten him. The trial court then heard the applicant.

The applicant reiterated the part of his statement given to the investigating judge on 22 October 2010 concerning the criminal accusation against him, namely that he had on two occasions acted as an intermediary in the selling of amphetamines. He retracted the part of his statement concerning the buying of cocaine from D.Š. He alleged that after he had been brought to the police station he had been physically and psychologically ill-treated and had been coerced to into giving such a statement to the investigating judge. He further alleged that the following morning his father and sister had come to the police station, and when he had seen his father crying, he had agreed to give his statement to the investigating judge. He explained that once he had been brought to the police station he had immediately confessed to being an intermediary in the selling of amphetamines. However, when the police had started questioning him about D.Š. and the cocaine, he had asked for a lawyer. Later, at one point police officer L.D. had told him that D.H. had arrived at the entrance of the police station but had not been allowed to come in. He alleged that he had been beaten by police officers L.D., S.D. and I.R.

When asked by the prosecutor, the applicant explained that during his arrest and transportation to the police station the police officers had used force against him and had beaten him. When further asked by the presiding judge and the lawyer, D.H., the applicant explained that even though on 22 October 2010 he had been advised by the investigating judge of his right to remain silent and to hire a lawyer, he had been afraid of the police officers who had brought him before the investigating judge, given that they had been the same police officers who had beaten him. The applicant’s lawyer then asked that the applicant’s sister be heard on account of a conversation that she had had with the police officer, L.D. He also asked that D.H. be heard and that the medical documentation relating to the injuries the applicant had sustained during his questioning by the police be examined. The trial court dismissed these requests, considering such evidence to be unnecessary.

In a closing statement the applicant’s lawyer asked the trial court to take into account, when determining the applicant’s sentence, the fact that he had confessed to his crime. The applicant reiterated his lawyer’s statement and added that he intended to finish school and start working and would never repeat his actions.

On 6 July 2011 the Dubrovnik County Court found the applicant guilty as charged and sentenced him to two years’ imprisonment. It also found D.Š. and V.V. guilty as charged and sentenced them to eight and two years’ imprisonment, respectively. In finding D.Š. guilty the trial court referred to, inter alia, the statement that the applicant had given to the investigating judge concerning his having purchased cocaine from D.Š. in the period between 2008 and 2010. It did not consider credible the applicant’s allegation that he had given his statement to the investigating judge under police duress. It found that during the trial the applicant himself had alleged that he had given his oral statement to the investigating judge uninterruptedly, without the police officers being present, and after being advised of his right to hire a lawyer and to remain silent. In this respect it noted that the applicant had told the investigating judge that he had been illtreated by the police only during his arrest, and not during his stay in the police station. It considered that the fact that the applicant had changed the nature of his allegation was an attempt to help his co-accused D.Š in the trial.

The trial court dismissed evidence proposals relating to the applicant’s alleged ill-treatment in the police station, specifically that his sister be heard in respect of this allegation, finding that his sister had not been present during his arrest and transportation to the police station, and later on had not been in the same room with the applicant and the police officers. As to the criminal accusation against the applicant, the trial court found that the applicant had confessed to being an intermediary in the sale of amphetamines and it took his confession into account as a mitigating circumstance.

The applicant appealed against the first-instance judgment to the Supreme Court (Vrhovni sud Republike Hrvatske). In his appeal he stated that he had not resisted his arrest and had not sustained injuries during his arrest. He explained that once he had been brought to the police station he had immediately and voluntarily confessed to his crime. Therefore, he could have had no reason to resist the police only a few minutes beforehand. He further stated that the police had physically and psychologically pressured him into incriminating D.Š. and had denied him access to a lawyer. He alleged that he had given a statement to the investigating judge under duress applied by the police officers who had brought him before the investigating judge. He complained about the trial court’s dismissal of his proposals regarding evidence relating to those circumstances. He lastly stated that, given that the trial court had believed the statement that he had given against D.Š. and had taken it into account when convicting D.Š., he should have been given a milder sanction.

On 29 February 2012 the Supreme Court upheld the applicant’s conviction but reduced his sentence to one year’s imprisonment. The Supreme Court found that in his appeal the applicant himself had stated that the police officers had had no reason to exert pressure on him given that he had immediately confessed his crime. As to the change of the applicant’s line of defence during the trial, the Supreme Court agreed with the trial court that this had probably been an attempt to help his co-accused, D.Š., in the trial, rather than constituting a credible reason for retracting his earlier statements. The Supreme Court lastly found that the applicant’s statement had helped to convict D.Š. and that therefore his sentence was to be reduced to one year’s imprisonment.

The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He complained that during his stay in the police station he had asked for a lawyer and that his sister and father had hired D.H. to represent him. However, he stated that the police had forced him to waive this right. He further complained that he had been ill-treated during his stay in the police station. He explained that he had not resisted arrest and had not been injured during his arrest, but during his stay in the police station when he had been forced to incriminate D.Š.

On 7 November 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded. The decision was served on the applicant’s representative on 18 November 2013.


LE LIEVRE AND OTHERS v. THE UNITED KINGDOM

Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

In 2008, the island of Sark, an autonomous part of the Bailiwick of Guernsey in the Channel Islands with a population of some 600 residents, enacted a new electoral system.

The applicants are three British nationals, Tony Eric Le Lievre, Peter Tonks and Robert Knight, who were born respectively in 1953, 1948 and 1983. They are residents of Sark and, although they bring this application in their individual capacities, they have formed an unincorporated association called “Sark First”, which seeks reform of the island’s new electoral system. Their principal complaint to the Court is that the system does not comply with the requirements of Article 3 of Protocol No. 1 to the Convention, the right to free elections.

Sark’s constitutional position, the history of the reforms which led to the new electoral system, and the conduct of recent elections under that system are summarised at paragraphs 4–18 below. That summary is taken from the facts as submitted by the applicants and from two judgments of the Supreme Court of the United Kingdom concerning Sark: R (Barclay) v. Lord Chancellor and Secretary of State for Justice (“Barclay (no. 1)”) and R (Barclay) v. Secretary of State for Justice (“Barclay (no. 2)”) (see relevant domestic law and practice at paragraphs 23–32 below).

The Channel Islands consist of the Bailiwicks of Jersey and Guernsey. The Bailiwicks are United Kingdom Crown Dependencies. The Bailiwick of Guernsey consists of the island Guernsey itself, the islands of Sark and Alderney, and several smaller islands. Sark and Alderney are autonomous from Guernsey.

The United Kingdom is responsible for the Bailiwick of Guernsey’s international obligations and has extended the application of the Convention and Protocol No. 1 to it through declarations under Article 56 of the Convention and Article 4 of Protocol No. 1. That responsibility is exercised primarily through the Privy Council.

Sark’s constitutional position can be traced back to the Anglo-French wars of 1202-14, when it came under the jurisdiction of the English Crown. Throughout its history Sark has, like the rest of the Channel Islands, retained its own customs, laws, courts and legislature.

Sark’s present constitutional position derives from letters patent issued by Queen Elizabeth I in 1565 which granted a perpetual lease of island to its first “Seigneur”. The lease has passed, either by sale or inheritance, down to the island’s current Seigneur, who still plays a role in the government of the island.

Guernsey, Alderney and Sark all have their own legislatures and, in general, the three islands legislate for themselves.

Sark’s legislature is called the Chief Pleas. The Chief Pleas legislates by two methods, Laws and Ordinances. In respect of Laws, after the Chief Pleas passes a Law, it is remitted as a Projet de Loi to officials in the Ministry of Justice, London. It is then remitted to the Committee for the Affairs of Jersey and Guernsey, a Committee of the Privy Council (“the Committee”). The Committee includes the Secretary of State for Justice, the member of the United Kingdom cabinet responsible for the Ministry of Justice. If the Committee recommends that Royal Assent be granted, the Projet de Loi is presented to the Privy Council for Royal Assent so that it may become law. Royal Assent will then be given through an Order in Council. The Projet de Loi will not be presented to the Privy Council if the Committee decides not to recommend it for Royal Assent (see the Supreme Court’s judgment in Barclay (no. 1) at paragraph 17).

In considering whether or not to recommend approval, the Committee will in general respect the decision of the Chief Pleas, and there would tend to be a presumption in favour of recommending Royal Assent. But consideration is given to the Crown’s responsibilities, so that if a Projet de Loi violates the Crown’s international obligations or any fundamental constitutional principle or if it is clearly not in the public interest for it to become law, then a recommendation may be made to withhold Royal Assent (see the Barclay (no. 1) judgment at paragraph 18).

Historically, Sark was divided into 40 plots of land or “tenements”. Anyone who owned one of the tenements (“a tenant”) was entitled to a seat in the Chief Pleas. In 1922 the tenants were joined in the Chief Pleas by twelve elected members.

In March 2006, the Chief Pleas voted for a reform which would have provided for a legislature to consist of 16 tenants elected by the tenants and 16 deputies elected by the rest of the population. In April the Chief Pleas withdrew its support for the reform, a position supported by the Secretary of State for Justice, who wrote to the Seigneur stating that he “would not have been able to recommend for Royal Assent legislation about which there are serious or substantial ECHR compliance issues” (quoted in Barclay (no. 1) at paragraph 26). He continued:

“[a]ny option which falls short of a wholly democratic process would cause me serious difficulties. ... I am concerned that Sark should give itself, and the UK, the best protection it can from ECHR challenge and its possible consequences ... [i]t is the UK which is vulnerable to an ECHR challenge. The UK cannot stand by and give that situation its tacit approval by doing nothing.”

In April 2007, the Chief Pleas approved another version of a new law which would still reserve seats in the Chief Pleas for tenants, but with those tenants elected by universal suffrage. The Secretary of State decided not to submit that proposal to the Privy Council over doubts as to whether it complied with the United Kingdom’s international obligations (Barclay (no. 1) at paragraph 27).

In 2008, the Chief Pleas then passed a Projet de Loi which proposed removing tenants from the Chief Pleas and replacing them with twentyeight elected members or “conseillers”. The Seigneur was to be an ex officio member of Chief Pleas, with a voice but no vote. The Seigneur did not have the right to veto Laws passed by the Chief Pleas (and this is would not change in the Projet de Loi). He would, however, retain the right to veto an Ordinance. In that case, the Ordinance would be placed again before the Chief Pleas within twenty-one days for its decision on whether to override the veto. The Projet de Loi also provided that the Seigneur could not sit on executive committees of the Chief Pleas, the main means through which the executive government of the island is conducted.

The 2008 Projet de Loi created the following electoral system for the island. All persons who had been resident on the island for 24 months could vote. Conseillers would serve four-year terms, but those terms would be staggered so that, subject to special rules governing by-elections and unforeseen vacancies, only fourteen of the twenty-eight conseillers would be elected at any one general election (save for the first general election at which all twenty-eight seats would be contested).

For any election, the island would be a single constituency with all eligible voters able to vote for all candidates. A voter would receive a number of votes equal to the number of vacancies being contested at the election (normally fourteen vacancies unless there were additional vacancies). The fourteen candidates gaining the most votes would be elected.

The Committee of the Privy Council recommended that the Reform Law should receive Royal Assent, concluding that it would not violate any of the United Kingdom’s international obligations. Royal Assent was accordingly given on 9 April 2008 and the Projet de Loi entered into force as the Reform (Sark) Law 2008 (“the 2008 Reform Law”).

Once Royal Assent was given to the 2008 Reform Law, Sark’s first general election on took place on 10 December 2008. Since then there have been three further general elections and two by-elections. The applicants have provided the following summary of the results for those elections:

Traditionally, sessions of the Chief Pleas were chaired by the island’s “Seneschal” who also serves as the island’s resident judge. Subsequent reforms have separated the Seneschal’s judicial and legislative functions: he now holds purely judicial office, his presiding role in Chief Pleas has been taken by a President of Chief Pleas.

Sark’s court of first instance is the court of the Seneschal. His court has unlimited jurisdiction in civil matters and shares jurisdiction in criminal matters with the Royal Court of Guernsey. When civil and criminal matters are decided at first instance by the court of the Seneschal, there is a right of appeal to the Royal Court of Guernsey then to the Court of Appeal for Guernsey and, finally, the Judicial Committee of the Privy Council.

Sark’s laws can, under certain circumstances be challenged in the United Kingdom courts. This arises because, under the law of England and Wales, there is the possibility of bringing a legal challenge to the making of an Order in Council. This is done by way of judicial review in the High Court for England and Wales and, on appeal, to the Court of Appeal and, finally, the Supreme Court of the United Kingdom. Given that Royal Assent to legislation from the Bailiwick of Guernsey is given by an Order in Council (see paragraphs 9 and 10 above), it is, therefore, possible to challenge Guernsey legislation in the High Court through judicial review proceedings. This is, however, a limited jurisdiction, which the Supreme Court has made clear should not always be exercised: see Barclay (no. 2) at paragraphs 30–32 below.

The Human Rights (Bailiwick of Guernsey) Law 2000, a Law modelled on the United Kingdom Human Rights Act 1998, applies throughout the Bailiwick of Guernsey, including Sark. In summary, like the Human Rights Act, the Law constrains public authorities in the islands from acting contrary to Convention rights and requires the courts of the islands to take account of the case-law of the Convention bodies. It also requires the courts, so far as it is possible to do so, to read and give effect to primary legislation and subordinate legislation in a way which is compatible with the Convention rights. When it is not possible for them to do so, the islands’ courts, like their counterparts in the United Kingdom, may make a declaration that the legislation is not compatible with the Convention (a declaration of incompatibility).

In Barclay (no. 1) certain aspects of the Reform Law were challenged by way of judicial review in the High Court of England and Wales, including whether the continued presence of the Seigneur and (at that time, the Seneschal) in the Chief Pleas was compatible with Article 3 of Protocol No. 1.

That judicial review challenge ultimately reached the United Kingdom Supreme Court, which gave judgment on 1 December 2009 dismissing the challenge: [2009] UKSC 9.

Lord Collins gave the lead judgment for the unanimous court. After reviewing the general principles which emerged from this Court’s case law on Article 3 of Protocol No. 1 (including the need to consider electoral rules in the round and in the light of historical and political factors), Lord Collins observed that there was no breach of Article 3 of Protocol No 1 arising from the Seigneur and Seneschal’s continued membership of Chief Pleas. He observed (at paragraph 66 of the judgment):

“The starting point is that only Conseillers are entitled to vote in the Chief Pleas, and therefore it is only Conseillers who determine whether legislation is to be enacted. The electorate of Sark consists of fewer than 500 voters, who choose 28 elected Conseillers by a process of casting 28 votes each and electing the 28 candidates with the largest number of votes. There is therefore one Conseiller for every 17-18 persons in the electorate. It is not easy to envisage, in the words of Article 3, conditions which are more likely to ensure the expression of the opinion of the people in the choice of the legislature.”

Lord Collins went on to find that there was nothing in the travaux préparatoires of the Convention or the case-law of this Court which established that all members of the legislature should be elected, irrespective of their powers and irrespective of the circumstances. Indeed, to the contrary, the travaux préparatoires indicated that Article 3 of Protocol No. 1 had been drafted to recognise that, in some States, part of the legislature was not elected.

Instead, the effect of this Court’s case-law under Article 3 of Protocol No. 1 was that all circumstances had to be considered. The presence of the Seigneur (and, at that time, the Seneschal) in the Chief Pleas did not contravene that Article. Even if their membership in the Chief Pleas was to be regarded as a limitation on the people’s right to choose the legislature, in light of the constitutional history and the political factors relevant to Sark, that limitation fell well within the margin of appreciation allowed by Article 3, not least given the long history of both positions and the difficulties that had occurred since 1922 in reforming the Chief Pleas (see paragraphs 11–17 above).

In respect of the Seigneur, his right to speak but not vote could not reasonably be said to frustrate the free expression of the opinion of the people in the choice of the legislature. Nor was that conclusion affected by the Seigneur’s other powers and responsibilities on the island. For instance, the present Seigneur had never exercised his right of temporary veto over Ordinances and he had stated that he only envisaged using it in very limited circumstances. The remainder of the Seigneur’s other powers, such as the limited power to appointment certain of the island’s executive officials, did not affect the democratic process.

Finally, Article 14 could not assist the claimants in the case: their complaint under Article 14 was essentially the same as that made under Article 3 of Protocol No. 1.

In Barclay (no. 2), the same claimants challenged Reform (Sark) (Amendment) (No. 2) Law 2010, which removed the Seneschal from the Chief Pleas and made new provisions for his or her appointment, removal, renewal and remuneration. They did so by way of judicial review proceedings, commenced in the High Court for England and Wales, alleging that the provisions were incompatible with Article 6 and thus that the decision of the Committee of the Privy Council to recommend that Royal Assent be given to the Law through an Order in Council was unlawful.

The High Court rejected the challenges to provisions on appointment, removal and renewal of the Seneschal. It found, however, that the power of the Chief Pleas to reduce the Seneschal’s remuneration was incompatible with Article 6.

The latter part of the judgment was appealed to the Supreme Court, which allowed the appeal: [2014] UKSC 54. The Supreme Court found that, although the High Court had jurisdiction to hear such a challenge, it should not have exercised its discretion to hear it. For the courts of England and Wales to entertain challenges to the compatibility of Channel Islands legislation with the Convention would be to subvert the islands’ own human rights legislation (see, for instance, the Human Rights (Bailiwick of Guernsey) Law 2000, set out at paragraph 22 above). The courts of the Bailiwick of Guernsey were infinitely better placed to assess the issues involved in human rights cases and there was the ultimate safeguard of an appeal to the Judicial Committee of the Privy Council. Unlike the courts of England and Wales, the Judicial Committee had the inestimable benefit of the considered judgment of the courts of first instance and appeal in the island jurisdictions, and the island authorities would have every opportunity to take part in the case. The courts of the Bailiwick were the appropriate forum in which challenges to island legislation on grounds of incompatibility with the Convention should be heard (Lady Hale at paragraphs 37 and 39 of the Supreme Court’s judgment).


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano

The applicant was born in 1962 and lives in Prague.

On 19 July 2005 the National Security Authority (hereinafter “the Authority”) issued the applicant with a certificate, valid until 18 July 2010, confirming that he had access to State classified information in the “secret” category (hereinafter “security clearance”). That clearance was a precondition for holding the post he then occupied as deputy to a vice-minister of Defence.

On 7 October 2005 the Authority received confidential information, classified as “restricted”, on the applicant from an intelligence service.

Following an internal investigation, the Authority decided on 5 September 2006 to revoke the applicant’s security clearance. According to that decision, the applicant posed a national security risk, inter alia on the grounds provided for in section 14(3)(d) of the Protection of State Classified Information Act (Law no. 412/2005). The decision stated that the facts established in respect of his conduct, as documented and substantiated by information received by the Authority on 7 October 2005, cast doubt on his trustworthiness and his ability not to be influenced and not to disclose secret information (preconditions for issuing him with security clearance). It was noted that as the information was classified as “restricted”, section 122(3) of the Act precluded any mention thereof in the decision or any disclosure of the Authority’s reasoning regarding its assessment of the facts in question.

According to information supplied by the Government, on 4 October 2006 the applicant asked the Minister of Defence to discharge him, on health grounds, from his post as deputy to the vice-minister. His request was granted on the same day. The ministerial decree discharging him from his duties specified that this did not terminate the applicant’s employment contract. That contract did not end until 31 January 2007, following an agreement by mutual consent signed by the parties on 20 October 2006.

In the meantime the applicant challenged the decision of 5 September 2006 before the director of the Authority, who confirmed the decision on 18 December 2006 regarding the risk referred to in section 14(3)(d) of the Protection of State Classified Information Act. That risk, which had been unknown on 19 July 2005, had transpired from the results of an investigation carried out by the Authority. Those results constituted “restricted” information and the decision could only refer to them and not mention their content.

On 19 January 2007, relying on section 133(1) of the Protection of State Classified Information Act, the applicant lodged a request with the Prague Municipal Court for judicial review of the decision of 18 December 2006. In his submission, that decision had deprived him of acquired rights in that he had been obliged to give up his post as deputy to the vice-minister of the Defence whereas he had adapted his activities within the public service and within the sphere of his private life. Accordingly, he asked the court to assess the lawfulness of that decision which was based exclusively on undisclosed classified information.

On 16 April 2007 the Authority sent the applicant’s file to the Municipal Court, including the documents classified as “restricted”, which in its opinion could not be exempted from the obligation of confidentiality laid down in section 133(3) of Law no. 412/2005. It also submitted its comments on the applicant’s request. These were sent to the applicant for his reply. In his reply of 14 May 2007 the applicant commented on, inter alia, the necessity alleged by the Authority of protecting the confidentiality of the documents in question.

Subsequently, the applicant and his lawyer were permitted to study the file, except the confidential parts.

At the hearing on 1 September 2009 the applicant was given the opportunity to submit his arguments and to state what he thought were the reasons for revoking his security clearance. He observed that, in his view, the information in question had been provided by a military intelligence service which had sought to punish him for his refusal to co-operate.

Pursuant to section 133(3) of the Protection of State Classified Information Act, the Municipal Court refused the applicant access to the section of the legal file containing the classified information from the Authority’s file and in a judgment of 1 September 2009 dismissed his request for judicial review. Referring to section 122(3) of the Protection of State Classified Information Act, the court held that the Authority, which had disclosed to the applicant the source of the classified information and the general conclusions that it had drawn from that information but not the content thereof, had acted neither arbitrarily nor unlawfully. Furthermore, the fact that the impugned decision was amenable to judicial review had enabled the court to examine the information in question and rule on whether it justified the conclusion that the applicant posed a security risk, which was the case here. The court also observed that there was no fundamental individual right to hold a post in the civil service, that the State was authorised to restrict the access of individuals to such posts and that it could also determine the conditions in which those individuals could have access to confidential information necessary for the performance of their duties. The applicant had not satisfied those conditions in the present case. According to that rationale, an individual could not have knowledge of the confidential information on the basis of which his right of access to confidential information had been refused. The court considered, lastly, that the confidentiality of the information that had led to the applicant’s security clearance being revoked prevented it from examining his submission that the information in question had concerned his refusal to co-operate, beyond his statutory obligations, with the military intelligence service. In any event that submission was deemed to be speculative because unsupported by verifiable documents.

The applicant appealed on points of law against the Municipal Court’s judgment, complaining first about his inability to gain access to the relevant part of the legal file. He submitted that the disclosure of information in the “restricted” category (which was the lowest level of confidentiality) could not constitute a serious threat to the activities of the intelligence services within the meaning of section 133(3) of the Protection of State Classified Information Act. He stated that he was convinced that the revocation of his security clearance was connected with his refusal to co-operate with the military intelligence service, of which he had no written proof. However, as he had no knowledge of the content of the information in question he could not refute its accuracy.

In a judgment of 15 July 2010 the Supreme Administrative Court dismissed the applicant’s appeal on points of law as unfounded. It observed that the possibility, provided for in section 133(3) of the Protection of State Classified Information Act, of prohibiting access to part of the file was not limited to a specific category of confidential information. In the present case the conditions for prohibiting access were met because communication of the information in question to the applicant could have led to the disclosure of the intelligence service’s working methods, the disclosure of its sources of information or attempts on the applicant’s part to influence possible witnesses. Referring to the judgment of the Constitutional Court no. II. ÚS 377/04, the Supreme Administrative Court held that the applicant’s complaints of unfairness of the proceedings were unfounded because, having regard to the special nature of the proceedings on account of the nature of the confidential information in question, not all the applicant’s procedural rights could be guaranteed. Whilst the executive did indeed, in certain circumstances, have the right not to inform the individual concerned of the reasons for not issuing him or her with security clearance, that restriction was counterbalanced by the guarantee of having that decision examined by the administrative courts, which had unlimited access to the documents contained in the administrative file. In the present case the Supreme Administrative Court observed that the confidential document emanating from the intelligence service contained specific, comprehensive and detailed information concerning the conduct and lifestyle of the applicant on the basis of which the court was satisfied in the present case as to its relevance for determining whether the applicant posed a national security risk. It observed, further, that the information did not in any way concern the applicant’s refusal to co-operate with the military intelligence service.

On 25 October 2010 the applicant lodged a constitutional complaint. He complained of the unfairness of the proceedings in his case. He argued, in particular, that the parties had not been treated equally because he had not been allowed to have knowledge of the sole evidence on which the decision against him had been taken and which had resulted in his being declared unsuitable for public office. He also expressed his firm conviction that he should have been able to consult the relevant part of the file.

In a decision of 18 November 2010, which was served on the applicant’s lawyer on 26 November 2010, the Constitutional Court dismissed the applicant’s complaint as manifestly ill-founded. Referring to its judgment no. Pl. ÚS 11/2000, it observed that, having regard to the special nature and the importance of decisions adopted in connection with confidential information where there was a clear national security interest, it was not always possible to apply all the procedural guarantees of fairness in such proceedings. In the present case the Constitutional Court held that in so far as the courts’ conduct was duly justified and the reasoning in their decisions comprehensible and in conformity with the Constitution and they had not departed from procedural standards and constitutional principles to an inordinate degree, the Constitutional Court was not required to intervene in their decision-making process.

In their observations of 30 April 2014 the Government submitted to the Court a bill of indictment of 16 March 2011 in which the applicant and some fifty co-defendants were formally charged with participating in an organised criminal group between 2005 and 2007 with a view to illegally influencing public tender procedures in the Ministry of Defence. This document shows that investigative measures had been carried out from May 2006. In a judgment of 25 March 2014, which was not final as at 17 July 2014, the applicant was sentenced to three years’ imprisonment and ordered to pay a fine.

The Government also submitted a letter from the Authority dated 24 March 2014 in which it confirmed that the document in question was still classified “restricted” because disclosure of the information contained in it was liable to disrupt the work of the intelligence service, reveal its methods and sources of information and adversely affect the legitimate interests of third parties. In that context the Authority referred to the above-mentioned criminal proceedings against the applicant.


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1950 and lives in Sisak.

The applicant was married to N.T. and they had two sons, Z.T. and B.T. In 1985 the applicant and N.T. divorced.

On 25 August 1991 a number of members of the “Wolves” (Vukovi) unit of the Sisak police entered the house of the applicant’s son Z.T., They abducted Z.T., the applicant’s second son B.T. and her former husband N.T. On 26 August 1991 the body of N.T. was found in the River Sava and the autopsy showed that he had been shot and killed. Z.T. and B.T. disappeared. On 2 September 1991 the Sisak police lodged a criminal complaint with the Sisak County State Attorney’s Office in connection with the killing of N.T. Police enquiries were started by the Sisak police, under the command of Ɖ.B. and his deputy V.M. (see paragraph 31 below).

On 9 September 1991 the applicant contacted the Ministry of the Interior and informed them that her former husband and two sons had disappeared.

The commander of the Wolves unit was J.G., who died in a road accident in 1992.

On 14 June 1993 the applicant lodged a criminal complaint with the State Attorney’s Office

On an unspecified date broader police enquiries were opened into the killing of individuals of Serb ethnicity in the Sisak area during the war. The enquiries into the killing of N.T. and disappearance of the applicant’s sons were part of these overall enquiries.

Before 5 November 1997, when Croatia ratified the Convention, the police interviewed the applicant as well as potential witnesses D.F.T., M.T., Ž.B., D.M. and J.J. None of them had any concrete knowledge about the potential perpetrators.

On 15 October 2002 an investigating judge of the Sisak County Court heard evidence from Z.G., a former Croatian soldier who firstly denied knowing anything about the fate of the applicant’s sons and former husband but later on, through tears and saying that he was scared, said that he had seen all three of them in ORA, a military base near Sisak. Z.T. and B.T. had been visibly beaten.

In October and November 2002, January and February 2003 the police interviewed a number of former Croatian soldiers as witnesses, some of whom (Z.K., M.D., S.Š., S.K., Ž.R., M.B., I.A., M.P., A.D., S.G., D.M.S.K.I.Š., I.K., M.G., M.R., D.V. as well as two anonymous individuals) had given statements about the arrest of individuals during the war in the Sisak area and their detention in ORA. None of them had any knowledge about the fate of the applicant’s former husband and sons.

On 4 November 2002 the police interviewed D.M., a friend of the applicant’s sons, who had witnessed their and their father’s arrest by four people dressed in camouflage uniforms and had heard that they had been taken to ORA.

On 9 January 2003 an investigating judge of the Sisak County Court heard evidence from the applicant. She said that she had not witnessed the arrest of her former husband and sons but had heard from D.F.T., wife of her son Z.T., about it. D.M. had also witnessed the arrest of her former husband and sons. Also, M.F. had told her that he had seen her sons in ORA and his girlfriend had also told her that her sons had been beaten in ORA. Another person, C., had also told her that he had seen her son B.T. in ORA.

A report drawn up by the Sisak police in 2004 for the Sisak County State Attorney’s Office on disappeared individuals lists the applicant’s sons as missing.

On 29 July 2005 the State Attorney’s Office issued a document concerning enquiries into the killings of civilians between 1991 and 1995. The document was addressed to the County State Attorney’s Office, which were required to examine all the information collected to date on the killings of civilians during that period and to concentrate their activities on identifying the perpetrators and gathering the relevant evidence in order to initiate criminal proceedings.

On 21 November 2005 the applicant’s sons were declared dead by the Sisak Municipal Court as of 25 August 1991.

On 5 October 2006 the Sisak County State Attorney’s Office classified the killing of N.T. and the disappearance of the applicant’s sons as war crimes against the civilian population.

On 13 December 2006 the applicant again lodged a criminal complaint. She alleged that her sons had been arrested by the members of the Croatian army and taken to ORA, under the command of B.B.

On 25 January 2007 an investigating judge of the Sisak County Court heard evidence from witnesses D.M. and D.F.T. D.M. repeated his previous statements (see paragraph 15 above). D.F.T., the wife of the late Z.T., had witnessed the arrest of the victims but had no information on possible direct perpetrators.

On 9 October 2008 the State Attorney’s Office issued an instruction to the County State Attorney’s Offices concerning implementation of the Criminal Code and the Code of Criminal Procedure, in which it indicated that an inspection of their work had indicated two main problems: possible partiality on the part of the individuals involved in the pending proceedings as regards the ethnicity of the victims or the perpetrators; and the problem of trials in absentia. The instruction advocated the impartial investigation of all war crimes, irrespective of the ethnicity of those involved, whether victims or perpetrators, and reiterated the duty of those working for the State Attorney in that connection.

On 14 October 2008 the Sisak police compiled an analysis of the criminal complaints concerning the crimes committed in 1991 and 1992 in the broader Sisak area and adopted a plan for further actions to be taken, including in the Trivkanović case.

On 17 December 2008 the police again interviewed the applicant. She said that she had heard that Z.R. was one of the people who had taken her former husband and sons and that her daughter-in-law D.F.T. also knew one of the individuals implicated but was afraid to talk about it.

On the same day the Sisak County State Attorney’s Office compiled a report on the cases concerning war crimes, including the killing of the applicant’s sons.

On 18 December 2008 the police interviewed D.F.T. and M.F. D.F.T. said that she did not know any of the individuals who had arrested the victims. M.F. said that he had no knowledge of the events at issue.

On 26 January 2009 the Sisak police sent a report on the interviews to the Sisak County State Attorney’s Office.

In January and March 2009 the police interviewed D.K., M.R., I.V., J.J., and K.J., none of whom had any relevant knowledge of the critical events. The police also again interviewed D.M. and Z.G., who both repeated their respective prior statements.

On 25 March and 18 August 2009 the Sisak police sent a report to the Sisak County State Attorney’s Office.

The enquiries into the killing of the applicant’s former husband and sons were a part of broader police enquiries which concerned officials of the Sisak police as suspects and altogether thirty-four victims (see paragraph 61 below). As a result of these enquiries an investigation was opened in the Sisak County Court (see below, paragraphs 32 and 33).

On 20 June 2011 the Sisak county police lodged a criminal complaint against Đ.B., V.M and D.B. on charges of war crimes against the civilian population. This included the killing of the applicant’s sons and former husband. On the same day Đ.B., head of the Sisak police in 1991 and 1992, V.M., police commander at the border territory of Sisak and Banovina in 1991 and 1992 and deputy head of the Sisak police, and D.B., a member of the Wolves, a reserve unit of the Sisak police, were arrested.

On an unspecified date an investigation was opened. On 13 July 2011 Đ.B. died.

During the trial D.F., D.M., D.F.T., S.R., Z.G., P.M. and S.L. as well as the applicant all testified as witnesses that they had either seen or heard that the applicant’s former husband and two sons had been abducted from their home by the members of the Wolves unit and taken to ORA.

On 16 December 2011 the Osijek County State Attorney’s Office lodged an indictment against V.M. and D.B. with the Osijek County Court, alleging that they had been in command of the unit whose unnamed members had committed a number of crimes against the civilian population between July 1991 and June 1992, including the killing of the applicant’s relatives. They were charged with war crimes against the civilian population.

On 9 December 2013 a first-instance judgment was delivered. V.M. was found guilty of war crimes against the civilian population in that, in his capacity as “commander of police forces in the broader area of Sisak and Banovina” and “deputy head of the Sisak police”, he had allowed the killings of individuals of Serb ethnicity and had failed to take adequate measures to prevent such killings. The relevant part of the judgment concerning the applicant’s sons and former husband reads:

“On the afternoon of 25 August 1991 a number of members of the ‘Wolves’ unit of the Sisak police forcibly abducted N.T. and his sons Z. and B.T. from their family home at 38 Slavonska Street in Sisak and took them in a white van to the improvised prison at ‘ORA’, where they were beaten during an unlawful interrogation after which N.T. was taken to an unknown place on the same day and shot and killed and his body was found on 26 August 1991 at the left bank of the River Sava at a place called Gušće, whereas the fate of Z. and B.T. after they had been taken to ‘ORA’ remains unknown.”

V.M. was sentenced to eight years’ imprisonment. D.B. was acquitted of all charges.

On 10 June 2014 the Supreme Court upheld the conviction of V.M. and increased his sentence to ten years’ imprisonment.


Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant, Mr Borut Bizjak, is a Slovenian national, who was born in 1981 and lives in Izola. He was represented before the Court by Mr J. Ahlin, a lawyer practising in Ljubljana.

The Slovenian Government (“the Government”) were represented by their Agent, Mrs Tjaša Mihelič Žitko, State Attorney.

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

The applicant was detained in the remand section of Ljubljana prison on 6 September 2011. The Government submitted that he had been released on 19 or 20 March 2012. The applicant claimed that he had been released on 20 March.

From 6 September 2011 to 22 December 2011 the applicant was held in cell no. 41, measuring 17.74 square metres (including a separate 1.89 square metre sanitary facility). According to the Government, the number of detainees held in the cell fluctuated between four and six. On 22 December 2011 the applicant was held with another detainee in cell no. 53, measuring 8.6 square metres (including a separate 1.49 square metre sanitary facility). From 23 December 2011 until his release he was held in cell no. 91, measuring 17.35 square metres (including a separate 1.71 square metre sanitary facility). According to the Government, the number of detainees held in that cell fluctuated between three and five. The applicant alleged that he had shared the cells with five other detainees.

The relevant domestic law is resumed in Mandić and Jović v. Slovenia (nos. 5774/10 and 5985/10, §§ 24-37, 20 October 2011), and Štrucl and others v. Slovenia (nos. 5903/10, 6003/10 and 6544/10, §§ 33-47, 20 October 2011). For the purposes of the examination of the present application, the Court points out that under Article 179 of the Civil Code, if it is established that the circumstances of a case, and in particular the degree of pain and fear, and their duration, justify it, an injured party may be awarded monetary compensation, irrespective of any compensation for material damage. Even if there is no material damage, he or she may be awarded damages for the physical pain endured; for psychological anguish resulting from a general loss of the ability to perform vital functions, disfigurement, defamation, or infringement of personal freedom or personality rights; for the death of a next-of-kin; and for the fear experienced. The latest observations submitted by the parties (dated 17 April 2014) summed up as follows the decisions of the domestic courts in response to claims for compensation for allegedly inadequate conditions of detention.

On 9 May 2011 the Ljubljana Local Court found that the plaintiff’s personality rights, as well as the prohibition of torture and inhuman or degradation treatment, had been violated on account of inadequate conditions in the remand section of Ljubljana prison (judgment no. I P 1725/2010). The plaintiff had spent about seven months (from July 2006 to March 2007) in Ljubljana prison as a remand prisoner. For most of that time he had been held together with five other detainees in a cell measuring about 18 square metres. The court found that all four elements of civil tort were established, namely: unlawful act, occurrence of damage, causal link and the defendant’s responsibility. The court noted that there was no case-law on the matter thus far and that that first judgment should establish principles for the future. Referring also to Kalashnikov v. Russia (no. 47095/99, ECHR 2002VI), the court noted that the rights guaranteed by the Convention represented a minimum standard and that the protection afforded by the national legislation should go beyond that minimum. It found that the personal space afforded to the plaintiff had been far below the standard of 7 square metres for multi-occupancy cells recommended by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) and provided for in section 27 of the Regulation on the Execution of Sentences. It was therefore in breach of the plaintiff’s personality rights. The court further observed that the overcrowding had had a negative effect on other aspects of the plaintiff’s detention. It found that the plaintiff’s personality rights had been breached also on account of poor ventilation, disturbances during the night, verbal and physical conflicts in the cell, and the fact that he could not eat his meals at a table or use the telephone for at least ten minutes (as provided for in the regulations). Those conditions amounted to a violation of Article 18 of the Slovenian Constitution, which prohibited torture or inhuman or degrading punishment or treatment. The plaintiff was awarded compensation for non-pecuniary damage in the amount of 2,290 euros (EUR) (see Mandić and Jović, cited above, § 103). When deciding on the amount of compensation, the court took into consideration the Court’s case-law, in particular as established in the case of Kalashnikov, cited above.

On 21 March 2012 the Ljubljana Higher Court dismissed an appeal lodged by the Republic of Slovenia (judgment no. II Cp 2360/2011) against the judgment of 9 May 2011. It held that the amount of compensation awarded was fair as it approximately corresponded to two average monthly net salaries in the Republic of Slovenia in May 2011. On 23 August 2012 the Supreme Court dismissed a request for an appeal on points of law lodged by the Republic of Slovenia (judgment no. II DoR 174/2012).

Previously, on 9 September 2010 the Grosuplje Local Court, considering the Court’s case-law on prison conditions and the plaintiff’s personal circumstances, had dismissed a claim for compensation regarding the detention conditions in Dob prison. That judgment had been upheld by the Ljubljana Higher Court on 23 March 2011.

The Grosuplje Local Court had also issued on 18 May 2010 a default judgment regarding prison conditions in Dob Prison, on the grounds that the plaintiff had not attended the hearing to which he had been duly summoned.

In 2013 the Trebnje Local Court decided on five claims for compensation lodged in 2009 and 2010 concerning conditions in Dob prison; three of them were dismissed for lack of a violation of the plaintiffs’ personality rights and in the other two cases default judgments were issued. In 2012 and 2013, six claims for compensation were lodged concerning conditions in Ljubljana prison; in one of the cases a settlement was reached with the plaintiff, and as of the date of the latest information available to the Court (17 April 2014), the other five cases were still pending before the domestic courts.


CASE OF SUKHANOV AND ILCHENKO v. UKRAINE

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

Both applicants were born in 1938 and live in the city of Lugansk and in the town of Zhovti Vody, Ukraine, respectively.

Both applicants have the special status of “a child of war” (see paragraph 17 below). From 1 January 2006 they were entitled to a special supplement to their pensions in the amount of 30% of the minimum pension in accordance with section 6 of the Children of War Social Protection Act (Закон України “Про соціальний захист дітей війни”).

In May 2008 the first applicant instituted court proceedings against the Artemovskyy District Department of the Pension Fund of Ukraine and the Lugansk Regional Main Department of the State Treasury of Ukraine, asking them to recalculate his pension for 2006-08, to determine the amount of and to pay him the outstanding indexed debt, and to pay his pension in the recalculated amount in the future. The first applicant also claimed compensation for pecuniary and non-pecuniary damage, and legal expenses.

On 22 July 2008 the Lugansk Regional Administrative Court held that in 2006 section 6 of the Children of War Social Protection Act had been suspended by the State Budget Act 2006. In return the State Budget Act had empowered the Cabinet of Ministers to set up a mechanism for a pension increase. However, because in 2006 no such mechanism had been set up, the first applicant’s claims relating to 2006 had to be rejected.

The court further found that in 2007 section 6 had again been suspended, and in 2008 it had been modified by the State Budget Acts for the relevant years. However, this modification was found to be unconstitutional by the Constitutional Court on 9 July 2007 and 22 May 2008. The court consequently held that the State Pension Fund should recalculate the first applicant’s pension for the periods between 9 July and 31 December 2007 and as of 22 May 2008.

On 19 December 2008 the Donetsk Administrative Court of Appeal upheld that decision.

On 28 July 2010 the Higher Administrative Court dismissed the applicant’s appeal on points of law.

In December 2009 the second applicant instituted proceedings in the Zhovtovodsky Town Court against the Pension Fund, asking for recalculation of his pension from January 2006.

On 2 March 2010 the court found in part for the second applicant. It held that the second applicant was entitled to the supplement from the date of the decision of the Constitutional Court (9 July 2007) and not from 1 January 2006. The court further held that the Pension Fund should recalculate the second applicant’s pension for the periods between 9 July and 31 December 2007 and between 22 May 2008 and 2 March 2010.

On 10 August 2010 the Dnipropetrovsk Regional Court of Appeal upheld this decision. The decision of the Court of Appeal was final.

On 14 February 2011 the second applicant instituted a second set of proceedings in the Zhovtovodsky Town Court claiming payment of the above-mentioned supplement to his pension starting from 3 March 2010.

On 17 May 2011 the court found for the second applicant and held that the Pension Fund should recalculate the applicant’s pension from 3 March 2010. On 14 October 2011 the Dnipropetrovsk Administrative Court of Appeal upheld this decision.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1979 and lives in Korostyshiv.

The applicant, at the relevant time a judge of the Radomyshl District Court (“the District Court”), was convicted of abuse of office for having exploited a certain Mr I. as a worker on the renovation of his father’s house under the following circumstances. In April 2007 the applicant, having sentenced I. to fifteen days’ imprisonment for disorderly conduct, had the site manager for the house renovation, Mr Sh., check I. out of the police detention facility (“the facility”) where the latter was serving his sentence and take him to the construction site where he was to work under Sh.’s direction. Then, in November 2007, a police officer, G., conspired with the applicant in drawing up a report falsely accusing I. of another episode of disorderly conduct. G. fabricated written statements by false witnesses, P.S. and I.A., incriminating I., and submitted the file to the applicant. Knowing that I. was innocent and the report was false, the applicant convicted I. and sentenced him to another fifteen days’ detention. The same scheme was used to exploit I. on the construction site.

On 21 November 2007 officers of the Security Service discovered I. on the construction site in Sh.’s company.

According to the transcript of his statement dated 23 January 2008, which was also video-recorded, Sh. stated that the applicant had employed him to work on his father’s house, that in April 2007 I. had worked on the site on terms he had negotiated with the applicant and that in November I. had worked while serving his fifteen-day sentence. The applicant had instructed Sh. to collect I. from the detention facility, so he had done so. The statement was signed by Sh. on the first and second pages, where his rights as a witness were explained. The statement consists of three more type-written pages containing the transcript of the interview but is not signed by Sh. at the end. It contains a note by the investigator to the effect that Sh. did not sign because he failed to appear when summoned by the investigator. The file contains a report of the same date, signed by Sh., to the effect that he had watched the video recording of his interview and had no comment to make.

On 23 January 2008 I. was interviewed by the investigator. He stated that around May (sic) 2007 he had been sentenced to fifteen days’ imprisonment for disobeying the orders of a police officer. While serving his sentence he had worked on the construction of a house belonging to the applicant, under the direction of Sh. After his release, he had agreed to work for the applicant in return for payment and had carried out construction work for him in June and October 2007. He had then stopped working for the applicant. On 8 November 2007 he had been taken from his home by police officers, who had told him that the applicant had accused him of stealing some cables from the building site. He had been taken to the office of the applicant, who had told him that since he refused to work for money, he would have to work for free. As he had refused to work for free, the applicant had responded that then he would rot in a cell, and had given him a fifteen-day sentence. While he had been serving his sentence, Sh. had taken him out of the detention facility several times and he had worked on the applicant’s construction site: he had refused to build a fence and had done some other work on the site. He had not been remunerated. The applicant had visited the site once and had seen him working but they had not spoken.

On 12 September 2008 I. made a notarised statement to the effect that his statement incriminating the applicant had been given “under the influence of psychological violence and trickery” (з застосуванням щодо мене психологічного насильства та обману) and that in fact he had worked willingly and for remuneration.

On 30 September 2008 I. was again interviewed by the investigator. The interview was video-recorded. He largely confirmed the tenor of his statement of 23 January 2008 and denied knowingly signing the notarised statement repudiating it. In addition to repeating various elements of his statement of 23 January 2008, he said that although the house where he had worked formally belonged to the applicant’s father, it was the applicant himself who had organised the work. He stressed that he had not been remunerated for his work in April and November 2007 and had not worked voluntarily. In September 2008 the applicant had made him visit a notarial office to formalise some papers, the nature of which he was not clear about.

The applicant and his co-defendant, former police officer G., stood trial before the Vinnytsya Regional Court of Appeal, which was acting as the trial court.

The applicant testified that he had had no connection to his father’s house or work on it. He had not requested that I. be sent there. When convicting I., he had not been aware that the charges against him had been false. I. had worked voluntarily and for remuneration. The applicant did not deny that Sh. had been the construction site manager on the renovation of his father’s house but argued that it had been his father who had been concerned by those works and that the applicant himself had had minimal contact with Sh. The phone number which the prosecution argued he had used to contact Sh. in fact belonged not to him but to his father.

G. admitted that he had forged the administrative arrest report in respect of I. but stated that he had done it at the request of officers B. and S. (see paragraphs 15 and 16 below). He said that the applicant had not been involved and had been unaware of the forgery when convicting I.

B., the head of the detention facility, testified that in late October or early November 2007 the applicant had told him that I. had stolen some things from his construction site and had asked B. to bring I. to him. On 8 November 2007 he had taken I. from his home to the police station. He denied having instructed G. to forge documents in I.’s case. On 12 November 2007 B. was informed by another officer that a stranger claiming to be a court officer showed up at the station and was asking for prisoners to perform works at the court. This was refused. Sometime afterwards the applicant called the station to discuss the release of prisoners and spoke to the commanding officer of the station who gave permission for release of prisoners.

S., an officer on duty at the police station, testified that I. had on several occasions been handed over to a person introduced as an employee of the District Court, supposedly for work at the court. On 21 November 2007 the applicant had called personally and asked that I. be handed over for such work. The applicant contested the way S.’s testimony was recorded in the domestic court’s judgment and asserted that S. had not identified him by name. It appears that S. also denied having given any unlawful instructions to G. concerning I.’s case.

Other police officers testified that Sh. had checked I. out of the facility on several occasions.

P., a District Court officer, stated that he was in charge of taking prisoners from the police detention facility to the District Court to carry out work, and that he knew I. well. However, in November 2007 the latter had not worked at the court.

The applicant’s father confirmed that he had bought the house and had had Sh. perform renovation works on it. He denied knowing I.

On 3 July 2009 the trial court, noting that I. had failed to appear despite the fact that summonses had been duly sent to him, ordered the police to escort I. to the next court hearing on 10 July 2009.

On 8 July 2009 the police reported that I. could not be found at his last known address in Radomyshl and that his whereabouts were unknown. His mother, niece and another neighbour had informed the police that I. had not been living at his usual address in Radomyshl for some time, having left to work in Kyiv. Although he visited briefly from time to time, they had no way of contacting him.

On 24 July 2009 the trial court asked the Zhytomyr regional prosecutor to establish the whereabouts of I. and Sh., and to escort them to the hearing scheduled for 17 September 2009. The prosecutor in turn asked the Security Service for assistance in establishing the whereabouts of those two individuals. On 4 September 2009 the Security Service reported essentially the same information as gathered by the police on 8 July 2009. They also stated that Sh. was not living at his address and his whereabouts were unknown.

On 17 September 2009 the trial court again ordered that the police bring I. to the next court hearing on 29 September 2009. The police could not locate I. at his last known address. His mother gave the same explanation for his absence.

On 29 September 2009 the trial court decided that as the presence of I. and Sh. could not be ensured, their statements should be read out and video recordings of their interviews shown.

According to the applicant, he met with I. several times and attempted to persuade him to testify, but I. refused, stating that officers of the Security Service had threatened him with imprisonment if he did.

On 5 November 2009 the trial court convicted the applicant and G. of abuse of office under the circumstances described in paragraph 6 above and sentenced each of them to five years’ imprisonment, suspended for three years. In convicting the applicant, the court relied on:

(a) I.’s statements, including the one video-recorded, and Sh.’s statement;

(b) evidence presented by the co-defendant G. and witnesses B., S. and P. (see paragraphs 14 to 18 above);

(c) evidence that the applicant had had regular telephone contacts with Sh. at the relevant time;

(d) expert evidence to the effect that it had been Sh. who had signed for I. in the register of prisoners taken out of the detention facility in April and November 2007 and evidence of police officers that Sh. had taken I. from the detention facility;

(e) the statements of witnesses P.S. and I.A., who had been identified in the forged police report as witnesses to I.’s alleged disorderly conduct (see paragraph 6 above), to the effect that their statements had been forged. They stated that they did not know I., had not observed him committing the offence, and had not made any statements about it to the police. P.S. testified at the trial. I.A. gave video-recorded evidence in the course of the pre-trial investigation but did not testify at the trial;

(f) expert evidence showing that the signatures attributed to P.S. and I.A. on the statements incriminating I. had in fact been made by certain police officers; and

(g) the statements of other witnesses, primarily police officers, concerning the circumstances of I.’s arrest.

The applicant appealed in cassation to the Supreme Court. He argued that Sh.’s statement should not have been relied upon because Sh. had not signed it and had not been examined at the trial. The applicant also stated that the trial court had misstated I.’s evidence, in particular by ascribing to I. statements which were not in his video-recorded interview shown in the course of the trial. In that interview I. had also made other statements indicating that he had worked voluntarily. The applicant questioned the trial court’s decision to trust the statements given by I., a drunk who had a prior conviction for murder and who had failed to remember the content of the notarised statement he had signed just weeks before, which showed that he was susceptible to signing anything presented to him by the investigator.

On 22 April 2010 the Supreme Court held a hearing to examine the appeal. No representative for the defence was present. A prosecutor was present and made oral submissions in opposition to the appeal. At the close of the hearing the court ordered that references to Sh.’s statement be struck from the judgment, since he had not signed his pre-trial statement and thus his statement was inadmissible. The court listed the remaining evidence supporting the applicant’s conviction and considered that, other than Sh.’s statement, the evidence was admissible and sufficiently supported the verdict. The court upheld the remainder of the judgment.


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

The first applicant was born in 1953 and the second applicant was born on 1957. They live in Izhevsk.

In 1986 the first applicant was called up to take part in the emergency operations at the site of the Chernobyl nuclear plant disaster. As a result, he suffered from extensive exposure to radioactive emissions. In October 1996 experts established a causal link between the applicant’s disability and his involvement in the Chernobyl events.

Under domestic law the first applicant is entitled to monthly payments in compensation for health damage. He brought court proceedings against local authorities claiming adjustment of the monthly payments in line with the increase of a statutory minimum wage for the period between October 1996 and April 2000.

On 3 May 2000 the Oktryabrskiy District Court of Izhevsk of the Udmurtia Republic allowed his claim in part and ordered the Pensions and Social Allowances Department of the Oktyabrskiy District of Izhevsk and the Ministry of Social Welfare of the Republic of Udmurtia to pay the applicant a lump sum of 9,823.37 Russian roubles (RUB) in respect of the debt accrued as a result of previous underpayment. The court ordered that the award be paid at the expense of the federal budget. On 15 May 2000 the judgment became final and entered into force.

On 13 June 2000 the bailiffs’ office opened the enforcement proceedings. On 10 December 2003 those proceedings were discontinued on account of the respondent authority’s lack of funds.

On 24 May 2004 the amount awarded was paid to the first applicant in full.

Being a victim of the Chernobyl nuclear disaster, the first applicant is entitled to additional housing. As he was not offered any, he brought an action against the local authorities claiming to provide him with housing.

On 15 November 2004 the Oktyabrskiy District Court of Izhevsk found for the first applicant and ordered the Ministry of Architecture, Construction and Housing Policy of the Republic of Udmurtia to grant him a separate room which should meet sanitary and technical requirements and be well-equipped in accordance with the set standards.

The judgment was not appealed against and entered into force ten days later.

The Ministry of Construction of the Republic of Udmurtia did not execute the judgment due to lack of available housing.

On 31 January 2005 the respondent authority informed the first applicant that as of 15 December 2004 the competence to distribute the social housing to the victims of the Chernobyl nuclear disaster had been transferred to the Ministry for Disaster Relief of the Republic of Udmurtia, and since that date the Ministry of Construction had accordingly been unable to execute the judgment in his favour.

On 20 April 2005 the first applicant filed a claim to alter the mode of enforcement of the judgment of 15 November 2004 from in-kind provision of the room to monetary compensation for its acquisition. His claim was granted by the Oktyabrskiy District Court of Izhevsk on 11 May 2005 and he was awarded RUB 230,000 to be paid by the Ministry for Disaster Relief of the Republic of Udmurtia at the expense of the federal budget.

On 27 July 2006 the Federal Treasury Department at the Ministry of Finance informed the applicant that the debtor had not enforced the judgment and proposed to bring actions against the Ministry for Disaster Relief of the Russian Federation.

Since 25 April 2007 the State compensations for acquisition of housing to the victims of the Chernobyl disaster are provided only in form of housing certificates.

On 29 August 2008 the Oktyabrskiy District Court of Izhevsk ordered indexation of the awarded amount to RUB 547,400. That decision entered into force on 9 September 2008.

The award granted by the judgment of 15 November 2004 as amended by the indexation order of 29 August 2008 has not been paid to date.