Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1973 and lives in Mykolayiv.

The applicant married O. in 2006. The spouses lived in Mykolayiv. On 21 March 2007 their daughter S. was born. In August 2007 the couple separated. O. continued to live with the child at a different address in Mykolayiv and that place of the child’s residence was not, at that time, a matter of dispute between the parents.

On 15 April 2009 the Leninsky District Court of Mykolayiv, in response to an application from O., pronounced the couple’s divorce.

On 4 June 2009, in response to a claim brought by the applicant against O. concerning hindrance of access to the child, the Leninsky District Court of Mykolayiv granted the applicant rights of access to his daughter. It ordered that the applicant should be granted an opportunity to see his daughter no less than three times a week, including overnight stays with the applicant, the dates and times thereof to be fixed by mutual agreement in advance.

On 13 July 2009 the local police examined the applicant’s complaint concerning threats which O. regularly made when the applicant went to see the child, as well as O.’s refusal to let the child stay overnight with him and her restriction on the amount of time which the applicant could spend with the child. The police refused to open criminal proceedings because of the absence of the constituent elements of a criminal offence.

In the autumn of 2009 O. and S. moved to Selydove in the Donetsk Region. The distance between Mykolayiv and Selydove is about 600 kilometres by road. In view of that, the applicant initiated civil proceedings asking the court to determine that the child should live with him in Mykolayiv. That claim was dismissed as unfounded by the courts with the final decision being taken by the Higher Specialised Court on Civil and Criminal Matters (“the HSCU”) on 1 August 2011.

On 20 October 2009, at the applicant’s request, the Mykolayiv State Bailiffs’ Service opened proceedings for the enforcement of the judgment of 4 June 2009. However, on 22 October 2009 the bailiffs’ decision was quashed since the procedure for enforcement of a court judgment of that kind was not specified by law.

On 19 November 2009 the applicant arrived in Selydove, where O. allowed him to see the child for about one hour. On 27 January 2010, when O. and S. arrived for a short stay in Mykolayiv, the applicant attempted to see his daughter, but O. refused to let him take the child overnight. On 20 October 2011 when the applicant arrived in Selydove and attempted to collect the child from the childcare centre, O. arrived and took back the child. The applicant’s complaints to the police on account of those incidents were dismissed because of the absence of the constituent elements of a criminal offence.

On 28 March 2012 the applicant submitted to the Selydove State Bailiff’s Service a writ of execution of judgment dated 4 June 2009. On 29 March 2012 the State bailiff opened the enforcement proceedings. On 9 April 2012 in the presence of the applicant, O. and two witnesses, the State bailiff read out the operative part of the judgment of 4 June 2009 and issued a resolution on termination of the enforcement proceedings, considering that the judgment had been fully enforced by so doing.

The applicant brought a challenge in the courts against the termination of the enforcement proceedings. The courts upheld the bailiffs’ decision, finding that it had been taken in accordance with the law. The final decision was taken by the HSCU, which on 3 August 2012 dismissed the applicant’s appeal on points of law.

On 20 November 2012 in proceedings concerning child support allowances, the applicant admitted that he took the child to Mykolayiv to live with him for about one or two months per year.

In January 2013 the applicant brought a claim for damages against O. for obstructing enforcement of the judgment of 4 June 2009 granting him access rights. The courts dismissed the claim for lack of proof. The final decision in those proceedings, rejecting the applicant’s appeal on points of law, was delivered by the HSCU on 14 June 2013.

On 21 June 2013 the Leninskyy Dstrict Police Department in Mykolayiv opened criminal proceedings following the applicant’s complaint that O. had refused to comply with the judgment of 4 June 2009. On 10 December 2014 the police terminated the criminal proceedings because of the absence of the constituent elements of a criminal offence. The applicant challenged that decision in the court. On 1 April 2015 the Leninskyy District Court of Mykolayiv quashed the decision of 10 December 2014 after finding that the investigator had failed to substantiate his conclusion. The criminal investigation was resumed.

In 2014 the applicant instituted civil proceedings in Selydove Town Court seeking to determine anew his access rights in view of the impediments caused by O. On 12 January 2014 his claim was dismissed as unfounded. However, on 8 December 2015 the Donetsk Regional Court of Appeal partly allowed the applicant’s claim. It found that O. had prevented the applicant from properly exercising his access rights and ruled that the applicant should be given the opportunity of spending one month with his daughter during the summer and one week during the winter school holidays every year until she attained the age of majority.

On 26 May 2016 the Selydove department of State bailiffs’ service opened enforcement proceedings in relation to the judgment of 8 December 2015. On 10 June 2016 the bailiffs notified O. about the judgment of 8 December 2015.

In spring 2014 illegal armed groups associated with two selfproclaimed entities known as the “Donetsk People’s Republic” and the “Luhansk People’s Republic” started operating in the Donetsk and Luhansk Regions, seizing control of certain parts of those regions by force. Ukraine’s armed forces launched a military anti-terrorist operation against them. A ceasefire line was later put in place. Selydove is in the territory controlled by the Ukrainian Government, about twenty-five kilometres from the ceasefire line, and was included in the list of locations where the military antiterrorist operation was being conducted. According to information provided by the Government, in April 2014 certain movements of illegal armed groups had been registered in Selydovo, but no active military operations had ever taken place in that area.

In August 2014 the applicant lodged a claim with the Selydove Court seeking a declaration that O. was unlawfully failing to cooperate in executing the judgment of 4 June 2009 granting the applicant access rights. He also asked the court to determine that the child’s place of residence should be his home in Mykolayiv. He argued that O. was unemployed and had no source of independent income, and that the child was fully dependent on the child support payments which the applicant was duly making. He also argued that it was dangerous for the child to continue to reside in the proximity of a theatre of armed conflict. Moreover, there was a risk that the conflict might spread to Selydove. In support of the latter assertion the applicant cited media reports according to which representatives of the so-called “Donetsk People’s Republic” were threatening to capture all the territory of the Donetsk Region.

On 5 May 2015 the Selydove Court rejected the applicant’s claim. The court established that the applicant was employed and had good references from his employer, and had no recorded mental health or addiction problems. The court quoted a report compiled by the child protection authority in Mykolayiv, according to which the applicant could provide secure, wellequipped accommodation suitable for a child, and had stable employment and income. However, the applicant had failed to prove that O. had no independent income or had failed to perform her parental duties or was engaged in unlawful or immoral conduct. The court also stated that the applicant had not substantiated the allegation that the child’s life was in danger and the mere fact of anti-terrorist military operations taking place in the region did not prove that risk.

On 4 August 2015 the Donetsk Regional Court of Appeal upheld the Selydove Court’s judgment, finding that the applicant had failed to substantiate the allegations that the child’s place of residence should be changed.

On 23 December 2015 the HSCU upheld the lower courts’ decisions. It stated that the Selydove Town Court had correctly established the relevant facts and had properly applied the law. The HSCU agreed with the lower courts’ conclusion that separating the child from the mother had not been justified.


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak

The applicant, Mr Gintautas Jurgelaitis, is a Lithuanian national, who was born in 1970 and lives in the village of Žūklijai, in the Šakiai Region. He was represented before the Court by Mr J. Gabraitis, a lawyer practising in Kėpštai.

The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

At around 2.45 a.m. on 26 February 2011, A.A. was wounded with a knife in the village of Žūklijai. He sustained injuries to the face and abdomen, which were initially categorised as a minor health impairment and later as a severe health impairment. On the same day the Šakiai district prosecutor (hereinafter “the prosecutor”) opened a pre-trial investigation.

On the same day the applicant was served with an official notice informing him that he was suspected of having injured A.A. while acting together with another unidentified individual and while being under the influence of alcohol. He was suspected of having caused A.A. a minor health impairment, as defined in Article 138 § 1 of the Criminal Code (see paragraph 22 below). The applicant was questioned and denied having injured A.A.

On unspecified dates the prosecutor questioned the victim, A.A., and several individuals who had been with him on the night of the incident. They all stated that that night they had been celebrating a birthday in the house next to the applicant’s. At some point they had decided to go to the applicant’s house to buy more alcohol because they had heard that he was selling it. However, nobody had let them into the house, so they had left. Soon afterwards they had noticed two men following them – one of them had been the applicant and the other had been unknown to them at that time. It was the latter who had assaulted A.A. with a knife; subsequently, in an identification parade, A.A. identified his attacker as S.B.

On 17 March 2011 the prosecutor discontinued the pre-trial investigation in respect of the applicant. The prosecutor’s decision stated that during the investigation it had been established that the applicant had not injured A.A. – this had been confirmed by A.A. himself and by other witnesses (see paragraph 5 above). The investigation in respect of the applicant was therefore discontinued on the grounds that his actions had not constituted a criminal offence under Article 138 § 1 of the Criminal Code. The decision stated that a copy of it had been sent to the applicant, who had the right to appeal against it within fourteen days. He did not lodge an appeal. The applicant later submitted to the domestic courts that he had never received a copy of that decision (see paragraph 18 below).

On 18 March 2011 S.B. became a suspect in the investigation. In the course of the investigation against S.B., the applicant was questioned as a witness once and participated in four confrontations with S.B., A.A. and two other witnesses. On each of those occasions the applicant signed to confirm that he had been informed about his rights and obligations as a witness, and had been warned that if he gave false testimony he would incur criminal liability under Article 235 of the Criminal Code (see the contents of the protocol for witness testimonies in paragraph 26 below). The applicant stated that on the night of the incident he, his friend K.B. and the suspect, S.B., had gone to the applicant’s house to get alcohol and cigarettes. At some point S.B. had walked away from the house towards a nearby road and soon thereafter the applicant had heard screams coming from that direction. He had gone there with his car, had seen a group of young men beating up S.B. and had gone back to his house because he had not wanted to get involved. He had not seen S.B. assault anyone, nor had he known whether S.B. had had a knife.

The applicant repeated a similar account of events, with some changes, in confrontations with S.B. and K.B., and the latter stated that they agreed with the applicant’s version.

On an unspecified date S.B. was charged with causing A.A. a severe health impairment, as defined in Article 135 § 1 of the Criminal Code (see paragraph 22 below).

On 6 September 2011 the applicant was questioned as a witness at a court hearing. He was warned that if he gave false testimony he would incur criminal liability under Article 235 of the Criminal Code and signed an oath. He was asked whether on the night of the incident S.B. had had a knife, whether the victim and his friends had been armed, and who had attacked whom during the incident. The applicant provided essentially the same account of the events as before (see paragraph 7 above).

On 16 December 2011 the Šakiai District Court found S.B. guilty of causing A.A. a severe health impairment, as defined in Article 135 § 1 of the Criminal Code, and sentenced him to six years of imprisonment. The court considered that the victim, A.A., and the witnesses who had been with him on the night of the incident had given consistent statements which it had no reason to doubt (see paragraph 5 above). Furthermore, their account had been corroborated by police officers and was consistent with the items seized at the scene of the incident. The court also held that the applicant, K.B. and S.B. had given conflicting statements and had changed certain details in their statements when questioned on different occasions. Accordingly, the court viewed their testimonies as an attempt to help S.B. avoid criminal responsibility and dismissed them as unreliable.

On the same day the Šakiai District Court also instructed the prosecutor to consider whether a pre-trial investigation should be opened in respect of the applicant and K.B. for giving false testimony under Article 235 § 1 of the Criminal Code.

On 11 October 2012 the applicant and K.B. were served with official notices informing them that they were suspected of having given false testimony in the proceedings against S.B., as set out in Article 235 § 1 of the Criminal Code.

When questioned on the same day, K.B. admitted his guilt. He stated that he had been afraid to testify against S.B. because the latter was a former prisoner who had been carrying a knife and boasting about assaulting people. Therefore, K.B. had been afraid that S.B. might seek revenge against him for unfavourable testimony. The following day the prosecutor discontinued the investigation against K.B. on the grounds that he had not intended to interfere with the criminal proceedings but that he had been afraid to testify against S.B., which was “understandable” in the light of the serious charges against S.B.

The applicant was also questioned on 11 October 2012. He explicitly refused a lawyer, denied his guilt and refused to answer questions. On 15 October 2012 the applicant was informed that the investigation had been completed and that he had the right to acquaint himself with the case file, but he refused to do so. On 17 October 2012 the applicant was charged with giving false testimony under Article 235 § 1 of the Criminal Code. The indictment stated that, when questioned as a witness in the criminal proceedings against S.B. (see paragraphs 7 and 9 above), the applicant had lied about not being present at the scene when S.B. had assaulted A.A. and about not knowing whether S.B. had had a knife, whereas it had been established in those proceedings that he had been present and had witnessed the assault.

When questioned at the trial, the applicant insisted that the testimony he had given in the criminal proceedings against S.B. had not been false. In addition, he submitted that he should not have been obliged to give truthful testimony in those proceedings because he had been questioned not only about S.B.’s actions but also about his own role in the assault. The applicant submitted that he had been suspected of having taken part in the assault (see paragraph 4 above), and that even though the investigation against him had been discontinued, the domestic law allowed its reopening if new circumstances emerged (see paragraph 25 below). He further submitted that by giving truthful testimony he might have also revealed information about his possible drunk driving on the night of the incident or the possible unlawful sale of alcohol. The applicant therefore argued that convicting him of giving false testimony would be contrary to his right not to incriminate himself.

The prosecutor contested the applicant’s arguments and submitted that at the time when the applicant had been called as a witness, it had been established that he had not assaulted A.A., so he had not been questioned about his own actions. The applicant’s testimony had only been relevant for establishing S.B.’s actions on the night of the assault, in order to help the authorities determine all the circumstances of the criminal offence, and there had been no intention to reopen the proceedings against the applicant.

On 17 January 2013 the Šakiai District Court found the applicant guilty of giving false testimony. The court held that the material collected in the proceedings against S.B. demonstrated that the applicant had knowingly given false testimony in order to help S.B. avoid criminal liability – the inaccuracy of his testimony had been established by the court in those proceedings (see paragraph 10 above). The court dismissed the applicant’s arguments concerning his right not to incriminate himself. It held that at the time when the applicant had been questioned as a witness, the investigation against him had been discontinued on the grounds that his actions had not constituted a criminal offence (see paragraph 6 above), and that the applicant had been questioned only about S.B.’s actions and not his own. The court also stated that the applicant had not been suspected of any other criminal activity, such as drunk driving or the unlawful sale of alcohol, so his arguments in that respect were also dismissed. The applicant was given a fine of 1,950 Lithuanian litai (LTL, approximately 570 euros (EUR)).

The applicant appealed against that judgment. He submitted that he had not been served with a copy of the prosecutor’s decision to discontinue the investigation against him (see paragraph 6 above), so he had continued to regard himself as a suspected accomplice to S.B. The applicant therefore argued that he had had an obvious interest in the outcome of the proceedings and should not have been obliged to give truthful testimony.

On 17 May 2013 the Kaunas Regional Court dismissed the applicant’s appeal. It endorsed the lower court’s arguments that the false nature of the applicant’s testimony in the proceedings against S.B. had been established (see paragraph 17 above). It further stated that it was clear from the case file that before each questioning as a witness, the applicant had been informed about his rights and duties, as required by domestic law, and warned that he would be held criminally liable if he gave false testimony (see paragraphs 7 and 9 above and paragraph 26 below), so he had had no grounds to consider himself a suspect. The court also reiterated that the applicant had been called to testify only about S.B.’s actions which he had seen and not about his own role in the assault. However, the Kaunas Regional Court found that the lower court had erred when determining the sentence because it had applied an old version of Article 235 of the Criminal Code. It therefore changed the applicant’s sentence in line with the version of that provision which had been in force at the time when the applicant had given his last testimony in the criminal proceedings against S.B. (see paragraph 9 above), and fined him LTL 15,600 (approximately EUR 4,520).

The applicant submitted an appeal on points of law, again arguing that his right not to incriminate himself had been breached. However, on 23 December 2013 the Supreme Court dismissed his appeal. It reiterated that the applicant had been informed about his rights and duties as a witness and warned about criminal liability for giving false testimony, and that he had been questioned about the actions of S.B. and not about his own actions, so it must have been clear to him that his testimony could not have incriminated him.

The relevant part of Article 31 of the Constitution provides:

“It shall be prohibited to compel anyone to give evidence against himself, or his family members or close relatives.”

The relevant provisions of the Criminal Code, valid at the material time and currently, read:

“1. Anyone who has injured another person or caused him or her to be ill, if as a result the victim has lost his or her eyesight, hearing, ability to speak, fertility or pregnancy, or sustained another serious mutilation, or contracted a terminal or longlasting illness posing a real threat to his or her life or seriously affecting his or her mental health, or lost a considerable part of his or her professional or general capacity to work, or sustained permanent disfigurement, shall be punished by imprisonment for a term of up to ten years.

“1. Anyone who has injured another person or caused him or her to be ill, if as a result the victim has lost a small part of his or her professional or general capacity to work or was ill for a long time but did not suffer the consequences set out in Article 135 § 1 of this Code, shall be punished by restriction of liberty or by detention or by imprisonment for a term of up to three years.

“1. Anyone who, during a pre-trial investigation or trial or before the International Criminal Court or another international judicial institution, has submitted a false complaint, application or report of a criminal activity, or given false testimony when questioned as a witness or a victim, or has given false conclusions or explanations when acting as an expert or specialist, or provided a false or knowingly inaccurate translation when acting as an interpreter, shall be sentenced to a term of community service or a fine or restriction of liberty or detention or imprisonment for a term of up to two years.

Article 80 § 1 of the CCP provides that persons who are to give testimony about their own possibly criminal activity cannot be questioned as witnesses unless they agree to be thus questioned. Article 82 § 3 of the CCP provides that when such persons are questioned, they have the right to legal representation and to apply for status as a suspect, and they are exempted from liability for refusing to testify or giving false testimony.

Article 217 § 2 of the CCP allows the reopening of a previously discontinued pre-trial investigation following the discovery of essential circumstances which are relevant for the proper examination of the case and which had not been established at the time the decision to discontinue the investigation had been adopted.

The protocol for witness testimonies, adopted by the Prosecutor General on 11 April 2003 and valid, with some amendments, until 29 December 2014, provided that a witness must be informed about his or her right, in line with Article 31 § 3 of the Constitution, not to give evidence against himself or herself, or his or her family members or close relatives (see paragraph 21 above), about his or her rights and obligations as set forth in the CCP (see paragraphs 23 and 24 above), and about criminal liability for giving false testimony (see paragraph 22 above). That protocol had to be signed by the witness to confirm that he or she had been so informed.

In its ruling of 31 January 2017 in criminal case no. 2K55699/2017, the Supreme Court, relying on its previous case-law (ruling of 23 June 2009 in criminal case no. 2K-255/2009 and ruling of 16 June 2015 in criminal case no. 2K-348-303/2015), held:

“Article 80 § 1 of the CCP provides that persons who are to give testimony about their own possibly criminal activity cannot be questioned as witnesses unless they agree to be thus questioned, in line with the conditions provided for in Article 82 § 3 of the Code of Criminal Procedure ... In accordance with the emerging case-law of the [Supreme Court] ... the prohibition on compelling someone to testify against himself or herself will be violated if a person who is questioned as a witness is in fact suspected of having committed a criminal offence but for some reason has not been recognised as a suspect in line with the CCP. Testimony which has been obtained in violation of Article 80 § 1 of the CCP cannot be accepted as evidence ... under the CCP. Whether the questions submitted to a witness can be regarded as compulsion to testify against oneself, must be decided in accordance with the circumstances of each case.”


András Sajó;George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney

The applicant, Mr Tadeusz Mura, is a Polish national, who was born in 1957 and lives in Rybnik. He was represented before the Court by Ms A. Krasuska-Terrillon, a lawyer practising in Katowice.

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

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

The applicant and his wife run a company which produces and sells construction materials. On 14 March 2005 the applicant’s wife was arrested and remanded in custody on charges of fraud and association with an organised crime group. The applicant and their children protested against the detention by organising demonstrations outside the prosecutor’s office and the prison, contacting the press and writing letters to the authorities. Following the arrest of his wife, the applicant’s family and financial situation deteriorated; their adolescent son underwent psychiatric treatment after a suicide attempt. The applicant’s wife was released on bail on 13 June 2005. In 2009 she was indicted and, according to information received by the Court in 2013 the criminal proceedings against her are still pending.

During his wife’s detention, the applicant wrote voluminous letters to her on a daily basis. In them he related the events of recent days in detail and urged his wife to be brave and withstand her situation. The letters contained assurances of his love for her and his trust in God, to whom he had been praying every day. The letters were also full of profanities and abuse directed against the authorities and, most particularly, against the prosecutor, R.P., whom he considered responsible for his wife’s incarceration. Some included passages addressed directly to R.P. or showed that the applicant had been aware that the letters would be read by the prosecutor. In his letters the applicant admitted that he felt angry and full of hatred towards the prosecutor. On few occasions he apologised to his wife for it. It also appears that in her letters to him his wife complained about such behaviour.

The applicant often took the letters, addressed to his wife at the Lubliniec Prison, directly to the Registry of the Katowice Appellate Prosecutor in order to speed up their delivery. He must have known that all the letters addressed to his wife were censored by the prosecutor’s office. On at least one occasion he apologised for the fact that a passage of his letter to his wife had not been addressed to her.

For instance, in the applicant’s letter to his wife of 30 April 2005 he alleged that the prosecutor made copies of their letters in order to masturbate when aroused by the private passages that they contained. He also stated: “I guess his father must have had syphilis to have made such a product (forgive me)”. Another passage from the letter read:

“I love you and I miss you. And with every minute my hatred towards this son of a bitch is growing. I curse him every day, I made myself a doll [resembling him] and I put nails in it every day ... I see the harm being caused to our children and I curse him every day and I hope with all my strength that my cursing will have an effect.”

In his letter of 12 May 2005 the applicant referred to R.P. as a prat (dupek), an idiot (debil) and a bandit. He stated:

“Our victory will be great. This prat knows that his time is over. The idiot thought that he could lock up innocent people and secure his promotion on this account. But this prat is simply stupid.”

In a letter of 20 May 2005 the applicant spoke of their son’s health problems, which had led to his hospitalisation in Kraków. He then stated:

“I know you were brave during the [identification parade at the police station] and according to the witnesses that fool (palant) P. was stoned. There was no contact with him. He was clearly stoned. Even the police officers confirmed it. I think that prat is almost finished. I have talked about this case with journalists from the Polish Television and they are going to go after him (the son of a bitch) ... I hope he ends up in prison ... and his friends from the mafia (key witnesses) will be wiping his arse. And if human justice fails to reach him, he cannot escape God’s.”

On an unspecified date the Katowice Regional Prosecutor indicted the applicant under Article 226 of the Criminal Code, accusing him of insult of a public official, the Appellate Prosecutor Mr R.P. The latter participated in the proceedings and asked the court to proceed with the case also if the court considered that the offence was subject to private prosecution.

On 15 June 2007 the Katowice District Court convicted the applicant of insult (zniewaga) in breach of Article 216, rather than Article 226, of the Criminal Code, considering that the offence had not been committed during or in connection with the carrying out of professional duties by a public official. The applicant was fined 500 Polish zlotys (PLN), calculated as 50 daily rates, each equivalent to PLN 10. He was further ordered to pay the State Treasury PLN 900 for the costs of the proceedings. The court considered that, between April and May 2005, in his numerous letters to his wife, the applicant had used vulgar and insulting language about Mr R.P. In particular, the applicant had stated that the prosecutor had an IQ of below ten, had ridiculed the Polish judicial system and had a mental disorder. He also called him Satan, bastard, bandit, and stupid. The court noted that some of the insults were so vulgar that they should not be quoted in the reasoning of the judgment. The applicant had also stated that the prosecutor had cooperated with the mafia, had accepted money from criminals and had been protecting them. In one of the letters he alleged that the prosecutor had been under the influence of drugs at work.

The court considered that the applicant’s statements contained no opinion or actual criticism of the prosecutor. The applicant’s intention was merely to debase the victim and insult him. His statements had not been provoked by any actions of the prosecutor.

The court concluded that although the letters had never been published, it had been the applicant’s intention for the insults to reach Mr R.P. The applicant knew that all the letters addressed to his wife were subject to censorship, and thus would be read by Mr R.P. He took the letters directly to the prosecutor’s office and requested that they be censored as a priority. Moreover, in several letters the applicant addressed his insults directly to Mr R.P., stating for example “P., you bandit”. He would also apologise to his wife that parts of his letters were not in fact addressed to her.

The applicant and the prosecutor each lodged an appeal against the judgment.

On 19 February 2008 the Katowice Regional Court dismissed both appeals. The court upheld the findings and conclusions of the firstinstance court. The appellate court examined the case from the standpoint of Article 10 of the Convention and considered that the applicant had overstepped the limits of permissible criticism.

The applicant submitted that he had not been able to pay the fine owing to his difficult financial situation and that it had been commuted to imprisonment. The fine was in the end paid by the applicant’s daughter.

Article 216 of the Criminal Code, in so far as relevant, provides as follows:

"1. Anyone who insults another person in his or her presence, or publicly in his or her absence, or with the intention that the insult will reach such a person, is liable to a fine or the restriction of liberty.

Prosecution is subject to the private procedure."

Article 226 § 1 of the Criminal Code, prohibiting insult of a public official, reads as follows:

"Anyone who insults a public official, or a person assisting him or her, in the performance of his or her official duties or in connection with such duties is liable to a fine, the restriction of liberty or imprisonment of up to one year."


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicant was born in 1965 and lives in Ankara.

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

On 13 April 2010 the applicant was dismissed from his post as an officer in the army due to non-compliance with disciplinary rules.

On 16 May 2010 the applicant brought an action before the Supreme Military Administrative Court and requested the annulment of his dismissal. On 21 October 2010 the chief public prosecutor submitted his observations to the Supreme Military Administrative Court. These observations were notified to the applicant and he replied to it in his petition of 24 January 2011.

On 15 February 2011 the Supreme Military Administrative Court dismissed the applicant’s action having regard to the “secret documents” submitted by the Ministry of Defence. These documents were not disclosed to the applicant.

On 3 May 2011 the applicant’s request for rectification of the above judgment was rejected by the same court.


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

Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria

The applicant was born in 1955 and lives in Kiskunfélegyháza.

The applicant initiated a labour lawsuit against his employer on 1 July 2005 for unpaid remunerations. After remittals on 15 November 2006 and on 8 July 2009, on 25 February 2010 the Kecskemét Labour Court adopted a judgment in which it partly found for the applicant.

On 10 March and 16 November 2011, respectively, the Bács-Kiskun County Court and the Kúria upheld this judgment.


Egidijus Kūris;Helen Keller;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Mr Jovan Pejović, is a Montenegrin national, who was born in 1956 and lives in Herceg Novi.

The Montenegrin Government (“the Government”) were represented by their Agent at the time, Mr Z. Pažin.

On 1 July 2004 a Montenegrin daily newspaper, the DAN, published an article entitled “The president of the court enabled his brother’s unjust enrichment”. The article, in substance, alleged that there were numerous failures (propusti) in the Court of First Instance (Osnovni sud) in Herceg-Novi, most of which were attributable to the president of that court, V.Š., against whom a number of criminal complaints had been filed. One such complaint, filed by the applicant, as reported by the article, implied that V.Š. had abused his office. He had allegedly kept hidden an eviction claim filed by a private company X against his brother, D.Š., and his brother’s company, thus enabling D.Š. unlawfully to make a profit of between 15,000 and 20,000 euros (EUR) on a monthly basis by using somebody else’s property.

On 25 August 2004 and 29 July 2004 V.Š. and D.Š. each lodged a private criminal action against the applicant for defamation (kleveta), claiming that the latter’s statements were untrue and, therefore, harmful to their honour and reputation.

On 19 October 2004 the Supreme Court (Vrhovni sud) designated the Court of First Instance in Kotor as the competent court to process the actions.

On 7 November 2007, after a remittal, the applicant was found guilty of defamation (kleveta u produženom trajanju), fined 2,400 euros (EUR), and ordered to pay EUR 100 for the court fees (sudski paušal). The judgment specified that if the fine was not paid within 60 days from the day when the judgment became final, it would be converted into a 60-day prison term.

In the course of the proceedings the applicant confirmed that he had lodged a criminal complaint with the police and made a similar submission to the Supreme Court, but claimed that he had never given a statement to the DAN relating to the allegations contained in the article. His intention was not to insult D.Š., but to draw the attention to the irregularities in the work of V.Š.

The journalist who wrote the article maintained that his source of information was from the Ministry of Interior, whose identity he did not want to reveal, and that the article had been written on the basis of the applicant’s criminal complaint only.

V.Š., for his part, considered that the newspaper’s source of information was the applicant. It was not true that he had kept the eviction case-file hidden and the only reason why the case had not been concluded earlier was due to an enormous number of cases pending before the said court, which was widely known. In any event, his brother was not a respondent party in these proceedings.

D.Š. submitted that the applicant had made untrue statements in the article published in the DAN about his unlawful use of business premises owned by X.

The court established that the applicant’s submission made to a number of judicial bodies alleged, inter alia, that V.Š. had acted contrary to the Courts Act for two years by not allocating the said eviction case to another judge. The remainder of the submission contained allegations relating to V.Š. only. It was further established that the newspaper article contained, inter alia, the allegations from the applicant’s criminal complaint implying that V.Š. had abused his office by enabling his brother’s unjust enrichment. The court took into account that the applicant had failed to prove the veracity of his claims as he did not have a final court judgment convicting V.Š. in this regard. The journalist’s statement was held to be illogical and made with the aim of helping the applicant.

In view of this, the court held that the applicant had given untrue statements about the private prosecutors through the media or in a similar way and thus committed the said criminal offence. In particular, he had made a submission to the High Court and other bodies, as well as an untrue statement to the DAN about V.Š. and his involvement in the said eviction proceedings, which “undoubtedly harmed the honour and reputation of the private prosecutors”. The court, however, did not accept that the statements could have led to more severe consequences.

Without verifying the applicant’s financial status (imovinsko stanje), the court considered that the imposed fine was adequate and that the applicant would be able to pay it within the prescribed time-limit as “he undoubtedly ran a private legal practice and obviously had clients given that he had asked for adjournment of some of the hearings in order to attend the proceedings in his clients’ cases”.

On an unspecified date thereafter the applicant appealed. He maintained, in particular, that he had not given the said statement to the newspaper, which was confirmed by the author of the article himself. It was unacceptable that somebody be found guilty of defamation for submissions made in a criminal complaint filed against a public official. In addition, V.Š. himself had admitted that he had not allocated the eviction case file to another judge for two years, and that he, the applicant, was not allowed to prove the veracity of his criminal complaint, namely that by doing so V.Š. had enabled his brother’s significant unjust enrichment.

He further submitted that he had requested the exclusion of the first-instance court single judge dealing with the case, but that she had rendered the judgment nevertheless. She had also drawn conclusions about his financial status without verifying it.

He finally proposed that the judgment be quashed and that the previous first-instance judge be excluded in the re-trial proceedings.

On 10 March 2008 the High Court upheld the first-instance judgment in substance, endorsing its reasoning, and held that none of the other allegations made in the appeal could lead it to decide otherwise.

On an unspecified date thereafter the applicant paid the fine.

The average monthly income in Montenegro when the relevant domestic decisions were rendered was EUR 338 in 2007 and EUR 416 in 2008. Financial brokers had the highest incomes, these being on average EUR 770 in 2007 and EUR 854 in 2008.

On 3 October 2013 the application was communicated to the respondent Government. In their observations dated 17 January 2014 the Government informed the Court that on 27 April 2009 the Supreme Court, following a request for the protection of legality lodged by the Supreme State Prosecution, had quashed the judgment of the High Court rendered on 10 March 2008 and had ordered a re-trial. The impugned judgment had been quashed on the ground that the High Court had ruled only on the appeal submitted by the applicant’s representative, but had failed to rule on the appeal submitted by the applicant himself. On 7 September 2009, in the re-trial, the High Court had overturned the first instance judgment of 7 November 2007 and dismissed the criminal actions lodged against the applicant (odbija se optužba) as the criminal prosecution had become time-barred in the meantime.

In his observations of 27 February 2014 the applicant confirmed the above information.

Section 61 of the Enforcement Act (Zakon o izvršnom postupku; published in the Official Gazette of the Republic of Montenegro no. 23/04) provided that once the enforcement had taken place, the debtor could request the court to order a counter-enforcement and order the repayment of what he had paid, if the document on the basis of which the enforcement had been undertaken was quashed, overturned, annulled or ceased to be in force. This Act was repealed by the Enforcement Act 2011 on 27 September 2011.


Remainder inadmissible;Violation of Article 6+6-1 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing);Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed

András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano

On 25 December 1997 the applicant became a member of the executive board of Yurtbank, and subsequently on 25 March 1998 he was appointed as Director General of the bank.

On 19 August 1998 Yurtbank founded the Yurt Security Offshore Bank in the “Turkish Republic of Northern Cyprus” (the “TRNC”). Subsequently, Yurtbank branch offices in Turkey started collecting deposits to be transferred to offshore accounts in the “TRNC”.

On 4 October 1999 the applicant resigned from his post as Director General and subsequently on 30 November 1999 he resigned from membership of the executive board.

On 21 December 1999 the Committee of Ministers decided to transfer the management and control of Yurtbank to the Savings Deposits Insurance Fund (Tasarruf Mevduat Sigorta Fonu). As result, a new executive board was set up and an inspector was appointed to study the administration of Yurtbank.

On 6 October 2000 the inspector submitted his report. Following an inspection of all the bank’s accounts, the inspector found it established that the Yurt Security Offshore Bank owed 32,898,662,376,959 Turkish liras (TRL), 5,105,982 US dollars (USD) and 7,514,387 German marks (DEM) to account holders. The report stated that these sums had been used by Yurtbank to provide loans to companies owned by Mr A.B., the main shareholder of the bank. The applicant’s name was also included in the list of persons who had authorisation to make the transfers. It was however stressed that the inspection had not revealed any direct or indirect responsibility on the part of the applicant in the impugned transfers.

On 2 November 2000 the new executive board filed a criminal complaint against the former board members, including the applicant. It was alleged that fifteen people, including the applicant, had established a criminal organisation to commit fraud. The complainants stated that the former board members had set up an offshore company with the aim of collecting deposits which they subsequently used to provide irregular loans. In that connection, it was indicated that the deposits collected for the offshore account had never been transferred to the “TRNC”.

On 14 November 2000 the applicant was arrested in Istanbul on suspicion of aggravated fraud. According to a form explaining arrested persons’ rights which the applicant signed, he had been informed of the charges against him and of his right to remain silent. In the form it was further noted that legal assistance could not be provided to persons accused of offences falling within the jurisdiction of the State Security Courts.

On 17 November 2000 the applicant was questioned without a lawyer present. In his police statement, the applicant explained that although he had been the Director General of the bank, he had not been directly involved in offshore banking activities, which were administered by a separate directorate. He stated that Yurtbank had acted as a correspondent bank for Yurt Security Offshore Bank. He explained that he had not put pressure on the managers of branch offices to collect deposits for offshore accounts but had known that the managers received bonus payments depending on the number of deposits they had collected for offshore accounts. He further explained that, using the deposits saved in offshore accounts, the bank had signed loan contracts with companies which were owned by the main shareholder of the bank, Mr A.B. In concluding these loan agreements, the bank had not requested any security and the agreements had been concluded on the basis of verbal authorisation, without any documents being submitted. The applicant stated that when he had become aware of the illegal activities he had quit his post as Director General of Yurtbank.

On 21 November 2000 the applicant was brought before the public prosecutor and subsequently the investigating judge at the Istanbul State Security Court. Before the public prosecutor, and without a lawyer present, the applicant repeated his police statement. When the applicant was brought before the investigating judge, the judge allowed the applicant’s lawyer to enter the hearing room. However, he was not allowed to take the floor or advise the applicant. During questioning, the applicant repeated his police statement and pointed out that there was no legislation or court decision that banned offshore banking activities. Following questioning, the applicant was placed in pre-trial detention.

On 10 January 2001 the public prosecutor at the Istanbul State Security Court filed an indictment with that court against thirty accused persons, including the applicant. The prosecutor accused the applicant of forming a criminal organisation and of committing aggravated fraud under Articles 313 and 504 of the Criminal Code (Law no. 765 – now repealed). In this connection it was alleged that a company owned by Mr A.B. had constructed real estate and that before the construction was finished the persons intending to buy the properties had been provided with real estate loans by Yurtbank, in which Mr A.B. was the main shareholder. In the process of concluding these loan agreements, the requisite legal documents and security had not been requested from the potential buyers, and by granting irregular loans the accused persons had allegedly committed fraud. It was also alleged that offshore banking activities had been used as a cover in order to provide illegal and irregular loans to the companies owned by the bank’s main shareholder, Mr A.B.

On 19 March 2001 the Istanbul State Security Court held its first hearing. In the presence of his lawyer, the applicant submitted his written defence submissions to the court. He stated that he accepted the statements taken from him in custody and pleaded not guilty.

On 18 June 2001 the applicant was released pending trial.

Following a change in the domestic legislation, the case was transferred from the Istanbul State Security Court to the Istanbul Second Assize Court on 24 December 2001.

At a hearing held on 10 October 2002 the trial court appointed three experts. In particular, the experts were asked to clarify whether irregular loans had been provided to companies owned by the main shareholder of the bank; whether the accused board members could be held responsible for those allegedly illegal transactions; and whether in providing the loans the bank had complied with the domestic legislation and obtained the prior authorisations and documents that were legally required. The experts were further asked to investigate the legality of the offshore activities of Yurt Security Offshore Bank. On 14 July 2003 the experts submitted a lengthy report to the court. At the outset, they pointed out that there was no domestic legislation which banned offshore banking activities in Turkey and that the establishment of Yurt Security Offshore Bank had been in line with domestic law and the “TRNC” legislation.

At a hearing held on 4 December 2003, the court ordered another expert report. On 13 January 2004 the report was submitted to the court. The experts concluded that, in the circumstances of the present case, it could not be concluded that the accused persons had committed aggravated fraud. In that connection they referred to the fact that when depositors opened offshore accounts it was clearly indicated in the relevant documents that these were offshore accounts, and therefore the depositors should have been aware of the fact that their deposits were not protected by the Savings Deposits Insurance Fund.

On 15 January 2004, pursuant to a change in the banking legislation, the Istanbul Eighth Assize Court became the competent specialised court to deal with cases concerning the Banking Activities Act (Law no. 4389), and the applicant’s case was accordingly transferred to that court. The new court requested a third expert report in order to calculate the damage sustained by the third-party interveners. In a report dated 14 October 2004, the experts pointed out that from 21 December 1999 onwards the accused persons, including the applicant, had been responsible for a total sum of TRL 15,832,536,971,373.

In the course of the hearings, several witness statements were taken, including from the managers of branch offices, who testified that they had been pressurised into collecting deposits for the offshore accounts. The applicant and his co-accused also submitted several legal opinions to the court drafted by university professors, attesting to the legality of offshore banking activities.

On 17 December 2004 the Istanbul Eighth Assize Court delivered its judgment. It held in the first place that it could not be established that the accused persons had intended to form a criminal organisation. It accordingly acquitted them of this charge. As to the accusations that the applicant had been involved in aggravated fraud on two counts, namely by providing illegal real estate loans and by using offshore banking activities to cover up fraudulent loans, the court found the applicant guilty as charged under Article 504 § 3 of the Criminal Code (Law no. 765). The applicant was accordingly sentenced to a total of five years and ten months’ imprisonment and a fine. In delivering its judgment, the court based its findings on the bank’s inspection reports, the expert reports, the police statements of the applicant and his co-accused, and witness statements. The court found it established that in his capacity as Director General of Yurtbank the applicant had given authorisation for the granting of irregular loans to companies which were owned by Mr A.B.

On 7 February 2005 the applicant appealed.

On 22 April 2005 the Principal Public Prosecutor at the Court of Cassation submitted his written opinion on the merits of the case. This opinion was served on the applicant’s lawyer on 7 June 2005. After holding a hearing, the Court of Cassation quashed the judgment of the first-instance court in so far as it concerned the term of imprisonment, stating that the sentence should be reassessed in the light of the new Criminal Code (Law no. 5237) that had entered into force in June 2005. It also upheld the acquittal of the applicant on the charge of forming a criminal organisation.

The case was accordingly remitted to the Istanbul Eighth Assize Court. On 29 September 2005 the applicant requested the court to hear evidence from several witnesses, including directors of the bank and certain experts, in particular a certain İ.F. The court rejected his requests on the same day, stating that the proceedings were at a stage where no more evidence was necessary. Nevertheless, at a hearing held on 27 October 2005 the witness İ.F. was heard and he made submissions regarding offshore banking. In his testimony, İ.F. explained the development of offshore banking and maintained that, in his opinion as an expert, the acts in question had not constituted an offence at the time when they were committed by the applicant.

On 29 November 2005 the first-instance court delivered its judgment. In lengthy reasoning, taking into account the decision of the Court of Cassation, it decided to sentence the applicant to one year and fifteen days’ imprisonment and a fine for providing illegal real estate loans, and then suspended this sentence. As to the charge of aggravated fraud through offshore banking activities, the court sentenced him to two years and one month’s imprisonment and a fine under Article 158 § (f) of the new Criminal Code, indicating that this was the most favourable provision applicable to the applicant’s case. In this connection, it was noted that the main shareholder of the bank, Mr A.B., had committed fraud by way of banking activities. The court further stated that although the applicant had not been officially working for the offshore bank, in his capacity as the Director General of Yurtbank he was aware of the fraudulent actions, and had actively participated in the unlawful activities by using Yurtbank’s resources.

The applicant appealed against the judgment of the Assize Court. On 9 February 2006 the opinion of the Principal Public Prosecutor attached to the Court of Cassation was notified to the applicant’s lawyer and on 13 April 2006 the applicant submitted his written observations in reply.

On 19 October 2006 the Court of Cassation discontinued the proceedings concerning the suspended sentence in respect of illegal real estate loans, holding that the statutory time-limit had expired. The appeal court further upheld the judgment of the first-instance court in respect of the applicant’s conviction for aggravated fraud by way of banking activities.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1971 and is serving a prison sentence in Valuyki, the Belgorod region.

On 14 June 2006 Ms I., a university student, disappeared.

On 15 June 2006 her mother reported her missing to the Severnyy police department of the Kominternovskiy district of Voronezh, which initiated a search for her. According to the applicant, on the morning of 17 June 2006 the police searched his flat without drawing up a record. They then searched his car. According to police records, the applicant’s car was searched between 10.10 and 11.20 a.m. that day in connection with I.’s disappearance by an investigator of the Severnyy police department.

After the search the applicant was taken to the Severnyy police department, where he was interviewed about I.’s whereabouts. He stated that he knew I. and had last seen her on 14 June 2006 but was unaware of her whereabouts. A record of his “explanation” (объяснение) was drawn up by operative officer M.

According to the applicant, police officers beat him up in order to extract information from him about I.’s whereabouts.

According to the Government, after being interviewed the applicant was released and later taken again to the police station. A record drawn up by operative officer M. states that at 9 p.m. on 17 June 2006 the applicant was taken in for committing petty hooliganism in the vicinity of the police station by swearing at passers-by. It is stated in the record that he had no injuries. According to a decision delivered by the acting head of the Severnyy police department in administrative proceedings conducted the same day, the applicant was found guilty of petty hooliganism and fined. At 11.50 p.m. that evening his administrative detention was ordered by the police.

The applicant was detained at the Severnyy police department until 10.40 a.m. on 19 June 2006. He was then taken to the Sovetskiy police department, where further operative measures in connection with I.’s disappearance were carried out.

According to the applicant, he was subjected to beatings and given electric shocks by police officers of the Sovetskiy police department in order to make him give information about I.’s whereabouts. He allegedly had a cap put on his head so that he could not see anything and was taken by car out of town, where he was beaten up and given electric shocks with wires attached to his little fingers. His mouth was taped so that he would not scream. When he was ready to give a statement in order to stop the torture, he was taken to a river bank and shown a dead body. He was thrown on the ground and kicked. When taken back to the Sovetskiy police department, he made a confession statement to an investigator in the presence of the same police officers who had illtreated him.

According to the applicant’s “explanation” (объяснение) given to investigator S. of the Sovetskiy district prosecutor’s office of Voronezh on 19 June 2006, he confessed to the murder of I. by strangulation. He also stated that he had been beaten up and had received all his injuries at the Severnyy police department, but had not been subjected to any illtreatment at the Sovetskiy police department, and had no complaints against its officers. The applicant was then taken to the place where he had allegedly hidden I.’s body. According to a record drawn up by investigator S., an examination of the place was carried out between 11 p.m. and midnight, and a woman’s body was recovered.

At 12.50 a.m. on 20 June 2006 investigator S. arrested the applicant as a suspect and questioned him between 1 and 1.50 a.m., and then between 11 and 11.15 a.m., in the presence of P., a State-appointed lawyer invited by investigator S. The applicant reiterated his earlier selfincriminating statements, as well as the statements concerning his illtreatment at the Severnyy police department. He also stated that he had burnt I.’s body after he had strangled her. Between 11.30 a.m. and 1.32 p.m. his statements were verified at the scene of the crime by investigator S. in the presence of lawyer P. and operative officers of the Sovetskiy police department. The applicant also showed where he had hidden the victim’s mobile telephone.

On 20 June 2006 investigator S. ordered a forensic medical examination of the applicant. That day an operative officer of the Sovetskiy police department took him to the Voronezh Regional Forensic Medical Bureau. An expert recorded multiple bruises and abrasions on his face, head, trunk and upper and lower extremities. The applicant stated that the injuries had been inflicted after his arrest on 17 June 2006 by police officers who had punched him in the head and different parts of his body and beaten him with a rubber baton on the back and legs. The expert concluded that the injuries could have been inflicted by a blunt object between one and three days before the examination.

On 21 June 2006 the applicant was questioned as an accused by investigator S. in the presence of lawyer P. He confirmed his earlier selfincriminating statements and statements concerning his alleged illtreatment at the Severnyy police department.

On the same day the Sovetskiy District Court of Voronezh (“the District Court”) ordered the applicant’s detention at a hearing in the presence of lawyer P. He was placed in detention facility SIZO-36/1. In the criminal proceedings that followed the applicant was represented by a lawyer hired for him by his family.

On 28 June 2006 investigator S. communicated the applicant’s allegations concerning the unlawful actions of the police officers from the Severnyy police department to the Kominternovskiy district prosecutor’s office of Voronezh. An investigator of that prosecutor’s office carried out a pre-investigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. His two decisions of 1 July and 2 August 2006 were annulled by his superiors on the grounds that they had been based on an incomplete inquiry.

In the most recent refusal of 29 September 2006 to institute criminal proceedings for lack of evidence that the officers of the Severnyy police department had committed a crime, the investigator established the facts as follows, relying on the police officers’ statements. On 17 June 2006 certain operative officers of the criminal search unit of the Severnyy police department carried out operational-search activities in connection with I.’s disappearance. In order to check the applicant’s involvement in I.’s disappearance they took him to the Severnyy police department with his consent and interviewed him. After receiving his “explanation” M. released him. That evening M. took him to the police station again for swearing on the street near the police station. From 9.50 p.m. on 17 June until 10.40 a.m. on 19 June 2006 the applicant was detained in a cell for administrative offenders. He was then taken to the Sovetskiy police department. No physical force was used against him, and no complaints were made by him.

The investigator noted that on the two occasions the applicant had been taken to the Severnyy police department – first, for giving statements in relation to I.’s disappearance, and second, for having committed the administrative offence – he had had no injuries. In the same decision the investigator suggested that the applicant’s injuries could have been inflicted by a third party outside the Severnyy police department, between 17 and 19 June 2006, between one and three days before his medical examination by the forensic expert on 20 June 2006.

On an unspecified date the applicant also complained about the unlawful actions of officers of the Sovetskiy police department, explaining that he had blamed the officers of the Severnyy police department for all his injuries for fear of reprisals from the officers of the Sovetskiy department, in whose hands he had been at the time. An investigator of the Sovetskiy district prosecutor’s office of Voronezh carried out a preinvestigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. His decision of 10 August 2006 was annulled by his superior as unlawful and unfounded.

In the most recent refusal of 21 September 2006 to institute criminal proceedings for lack of evidence that a crime had been committed, the investigator found, relying on statements by the operative officers of the Sovetskiy police department, that the applicant had been taken to the station with his consent and had confessed to the murder of I. He had also shown where he had hidden her body voluntarily, without any coercion.

An appeal by the applicant of 17 May 2007 against the investigators’ decisions was not examined by the District Court because by that time he had been convicted by a final judgment, as was stated by the court in a letter of 4 June 2007.

At his trial the applicant pleaded innocent and submitted that he had given the self-incriminating statements at the preliminary investigation stage as a result of physical coercion by officers of the Severnyy and Sovetskiy police departments. His counsel requested that the records of the investigative measures carried out on 19, 20 and 21 June 2006 be declared inadmissible, arguing, inter alia, that they had been obtained in the presence of lawyer P., who had been invited by investigator S. in breach of the relevant procedure and without the applicant’s consent.

The District Court dismissed the request, noting that all investigative measures since the applicant’s arrest as a suspect on 20 June 2006 had been carried out in the presence of lawyer P. Moreover, there was no evidence that the applicant had rejected her services. Following his confession, recorded in his “explanation” to the investigator of 19 June 2006, the applicant had shown where he had hidden I.’s body, which had not required the presence of a lawyer. The court based its findings on the selfincriminating statements given by the applicant in the preliminary investigation, noting that his allegations of illtreatment in police custody had been examined and dismissed by the Sovetskiy and Kominternovskiy district prosecutor’s offices in decisions of 21 and 29 September 2006 respectively.

On 25 October 2006 the District Court convicted the applicant of aggravated murder and sentenced him to twelve years’ imprisonment.

On 30 November 2006 the Council of the Voronezh Regional Bar Association examined a disciplinary case against lawyer P. which originated in a complaint by the applicant. It found that P. had defended the applicant at investigator S.’s direct invitation, surpassing the Council of the Voronezh Regional Bar Association in breach of the relevant procedure. P. was subjected to disciplinary liability in the form of a warning. On 5 December 2006 the Council informed the applicant of its decision, explaining that there was nothing to suggest that P. had failed to properly defend the applicant. However, it had established a breach of the procedure for providing legal assistance at the invitation of the investigating authorities.

On 6 February 2007 the Voronezh Regional Court upheld the judgment on an appeal by the applicant, fully endorsing the trial court’s findings.

Applications by the applicant for supervisory review of his case were dismissed by the Regional Court.


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

The applicant was born in 1946 and lives in Cork.

She has been receiving treatment for a pituitary brain tumour since 1982. In that year, she underwent surgery to remove as much of the tumour as possible. In the following years she received a variety of treatments for her condition. In 1995 she became the patient of Dr B, a consultant endocrinologist. He referred her for an MRI scan of the tumour, performed that same year, and monitored her condition in the following years. In August 2000, at the request of Dr B, the applicant underwent another MRI scan. This indicated that there had in fact been no significant change since 1995, but the tumour remained large. The applicant also underwent two types of test to determine her level of growth hormone.

Dr B received the result of the first test on 5 September 2000. He spoke by phone with the applicant, telling her that the tumour was very unsatisfactory. Prior to that conversation, the applicant was under the belief that the operation in 1982 had removed almost the entire tumour. She therefore understood the information given to her by Dr B about the tumour to mean that it was growing rapidly, gravely endangering her health.

The applicant was prescribed a newly-available drug to treat her condition, to be injected by her general practitioner on a monthly basis from September 2000. As the drug led to severe gastrointestinal side effects within a short time, Dr B reduced the dosage by half. It appears there were no side effects following the injections of October and November 2000. At the end of the year the applicant was unwell, and was hospitalised in early January 2001 suffering from vomiting, diarrhoea, severe exhaustion, headaches, cramps and muscular spasms in her arms and legs. A blood test indicated that she was also severely hypothyroid. It was later established that this was a side-effect of the drug, not known at the time.

The applicant had further discussions with Dr B about her condition and treatment. Dr B proposed to defer the next injection until the following month. The applicant received two more injections, in February and March 2001. From February 2001 she became the patient of another endocrinologist.

In May 2004 the applicant commenced civil proceedings in the High Court against Dr B and the hospital. Her case in negligence was that Dr B had failed in his duty of care towards her in the prescribing of the drug and the monitoring of its administration to her. She further argued that her consent to the treatment was vitiated for lack of sufficient information, or for misinformation, about her condition and the appropriateness of the medication proposed to her.

The applicant’s statement of claim was served on the defendants in October 2004. Dr B entered his defence in February 2005, seeking further and better particulars from the applicant, which the applicant’s solicitor provided in June 2005. The hospital entered its defence in June 2005, and also sought further and better particulars.

According to the Government, between February 2005 and September 2008 eleven motions seeking various forms of interim relief were brought before the High Court and decided in relation to the case.

In October 2009, the case was included in a procedure before a judge of the High Court known as a “positive callover”. The purpose of this was to assign hearing dates to cases that had already been waiting for a considerable period of time. A hearing date in April 2010 was set for the case.

In January 2010 the applicant’s solicitor replied to the request for further and better particulars made by the second defendant in June 2005. The hearing commenced on 13 April 2010 and took place over twelve days. Two expert witnesses appeared for the applicant and two for the defence. The hearing concluded on 7 May 2010. Judgment was given on 20 May 2010.

The High Court ruled against the applicant on all grounds. The judge preferred the evidence given by the witnesses appearing on behalf of the defence, deeming their qualifications to be more relevant to this specialised area than those of the experts retained by the applicant. He found that Dr B had complied with the therapeutic indications on the data sheet of the drug. The doctor’s decision to place the applicant directly on the long-acting form of the drug was supported by the expert opinion given on his behalf. The judge did not accept that Dr B had failed to monitor adequately the effects of the drug on the applicant during the months that she received it. Likewise, he rejected the claim that the doctor had failed in his duty of care in the manner in which he had explained the proposed course of treatment to the applicant and the possible side effects.

On the question of consent, the judge considered that while the applicant had misunderstood the exact state of her tumour, this was not to be blamed upon Dr B, who had fulfilled his legal duty by giving her accurate and appropriate information about her condition. The applicant’s mistaken impression was neither caused nor contributed to by the doctor’s explanations. He found that Dr B had not been aware of the applicant’s misunderstanding and could not be blamed for the deficiencies in her knowledge of her condition. Moreover, he had given sufficient warning to the applicant regarding the gastro-intestinal side effects of the drug. Other potential side-effects (gallstones, hepatic dysfunction) had not been raised, but as they had not in fact materialised there were no grounds for complaint. The judge concluded that the applicant had given her valid, informed consent to the treatment.

The applicant appealed against the judgment, advancing numerous grounds. The appeal was filed on 1 July 2010. It remained pending before the Supreme Court until it was transferred to the newly-established Court of Appeal on 29 October 2014. The hearing of the appeal took place on 30 July 2015.

In a judgment of 17 November 2015 the Court of Appeal dismissed the appeal. The Court of Appeal addressed two issues. First, regarding the treatment of the applicant with the particular drug, it saw no basis to criticise the findings of the trial judge. His preference for the evidence of the defendants’ experts was rationally grounded, and his rejection of the applicant’s criticisms of Dr B was based on careful consideration of the evidence.

Second, on the issue of consent, the Court of Appeal reviewed the evidence about what Dr B knew of the applicant’s understanding of her condition. It rejected her claim that the High Court had made a clear error on this point. It considered that Dr B’s actions had been in keeping with the relevant domestic legal principles. It noted that Dr B’s opinion at the time was that the applicant had a serious condition that required treatment. As surgery was not possible, the only alternative was medication. It was, the Court of Appeal held, reasonably open to him to hold that view. He had explained to the applicant the expected benefits of the drug prescribed, as well as the unpleasant side effects. As for the argument that the doctor should have also presented a “do nothing” option, the Court of Appeal described this as “somewhat unreal”. Where a person seeks referral from a general practitioner to a specialist, it could be reasonably assumed that they wished to receive treatment, and that they had excluded the non-treatment option.

The applicant sought leave to appeal. On 8 March 2016 the Supreme Court refused.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

The applicant was born in 1953 and lives in Mielec.

The applicant is married and has three children. Prior to her early retirement she had been employed and had paid her social security contributions to the State.

On 25 October 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension.

Along with her application for a pension, the applicant submitted, among other documents concerning her daughter’s health condition, a medical certificate issued by a specialist doctor on 8 October 2001. The certificate stated that the child (born in 1992) suffered from chronic asthma and that she was in need of her parent’s constant care.

On 6 December 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an early retirement pension.

The Social Security Board suspended the payment of the pension due to the fact that the applicant was still working on the date of the decision.

On 30 June 2002 the applicant’s employment was dissolved by a mutual consent of the parties.

Consequently, on 29 July 2002 the Rzeszów Social Security Board decided to start payment of the retirement pension starting from 1 August 2002.

On 17 July 2002 the Rzeszów Social Security Board had asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s daughter required the permanent care of a parent. The doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care.

On 30 July 2002 the Rzeszów Social Security Board issued simultaneously two decisions in respect of the applicant.

By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. It follows that the applicant was never paid the pension. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an early retirement pension under the scheme provided for by the 1989 Ordinance.

The applicant appealed against the respective decisions divesting her of the right to an early-retirement pension. She submitted that she should receive the benefit because her child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of her retirement pension was contrary to the principle of vested rights.

On 29 December 2003 the Rzeszów Regional Court dismissed the applicant’s appeal.

The applicant appealed against the first-instance judgment.

On 2 June 2004 the Rzeszów Court of Appeal dismissed the applicant’s further appeal. The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the 1989 Ordinance as she had not satisfied the requirement of necessary permanent care.

A professional lawyer, who had been either hired by the applicant or appointed to represent her under a legal-aid scheme, prepared and lodged a cassation appeal against the second-instance judgment on the applicant’s behalf.

On 14 December 2004 the Supreme Court refused to examine the cassation appeal.

The applicant’s pension was revoked one day before the planned first payment. It follows that she never received any payment of the granted early retirement.

According to the Government’s submissions, after the revocation of her pension, the applicant worked between 16 December 2004 and 31 May 2005 on the basis of a civil law contract. On 31 May 2005 she started working on the basis of an employment contract and she is still working on a permanent basis.

The Government also submitted that the applicant’s gross annual income amounted to approx. 39% of the average brut salary in Poland in 2002 (10,063 Polish zlotys [PLN], approx. 2,472 euros [EUR]), 0.41% in 2004 (PLN 112, approx. EUR 25), 27% in 2005 (PLN 7,754, approx. EUR 1,929), 36% in 2006 (PLN 10,739, approx. EUR 2,760), 35% in 2007 (PLN 11,951, approx. EUR 3,162), 40% in 2008 (PLN 14,476, approx. EUR 4,124), 76% in 2009 (PLN 28,471, approx. EUR 6,590) and 77% in 2010 (PLN 7,610, approx. EUR 1,907). In 2003 the applicant had no income.

Additionally, on 1 December 2008 the applicant became eligible for an early retirement pension not connected with the state of health of her child. The pension amounted to PLN 1,102 net (approx. EUR 263). It follows that as of 1 December 2008 the applicant’s income consisted of both her salary and the early retirement pension.

The applicant submitted that she could not terminate her employment contract earlier than on 30 June 2002 because she had to train a new employee who would replace her at work and because of her financial commitments towards the employer. As regards her financial situation she submitted that the income in the period directly following the revocation of her pension and the following two years was “close to zero”. She also submitted a copy of the decision of 20 December 2004 issued by the Mielec Social Care Centre (Ośrodek Pomocy Społecznej) granting her a social care benefit for persons whose income per family member fell below the statutory threshold; according to the reasoning of the decision the applicant’s family’s income at the relevant time amounted to PLN 934.84 (approx. EUR 206); the income per member of the applicant’s family thus amounted to PLN 186.97 (approx. EUR 41). At the relevant time the threshold which enabled the applicant to claim the social care benefit was PLN 316 (approx. EUR 70) of income per family member.

The applicant further submitted two calls for payment addressed to her and issued by the Mielec Housing Cooperative on 18 September 2002 and on 19 May 2005 confirming that she had debt resulting from unpaid rent which amounted to PLN 1,656.65 (approx. EUR 407) and PLN 2,124.86 (approx. EUR 525) respectively.

The Government also submitted that the applicant’s husband had worked between 7 May 1999 and 29 March 2004, that her son W.C. had worked between 7 April 2000 and 31 December 2002 and her other son T.C. had worked as an adolescent employee between 1 January 1999 and 30 June 2001 and, subsequently, on the basis of an employment contract as of 18 August 2008.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Morocco)

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

The applicant is currently in Sweden.

In 2005 he was granted a temporary residence permit in Sweden which was made permanent in 2007. Both permits were based on the applicant’s family ties, but he was not granted Swedish citizenship. In 2009 he married a non-Swedish national who held a permanent residence permit in Sweden.

In March 2016 the Swedish Security Service (Säkerhetspolisen) applied to the Migration Agency (Migrationsverket) requesting the applicant’s expulsion. During the Migration Agency’s examination of the request, the applicant applied for asylum, claiming that he was in need of international protection. He further contested the Security Service’s request alleging that, since the Security Service had branded him a terrorist, he would risk torture and at least ten years’ imprisonment in Morocco. He submitted that he would be forced to confess to an act of terrorism that he had not committed. The applicant stated that his parents lived in Morocco and he had visited them a few years earlier. During the visit, police officers had approached him and informed him that they were monitoring him and advised him to “listen to our friends in Sweden or stay away from Morocco forever”. He acknowledged that he had left Morocco legally with his own passport, that he had not been wanted in Morocco, that there were no legal proceedings pending against him and that he had never published anything on, for example, religion or politics. Moreover, to his knowledge, his parents had never been approached by the authorities because of him and the Moroccan authorities had never contacted him in Sweden. However, he claimed that the Swedish Security Service would inform the Moroccan authorities of the reasons for his arrest and expulsion and other Moroccans in Sweden might also submit such information. He was not aware if his situation had been noted in Morocco. The applicant referred to country information about Morocco according to which physical ill-treatment and arbitrary detention occurred, in particular of suspected terrorists. Such persons had been tortured into confession and sentenced to lengthy terms of imprisonment. He also referred to the Court’s case law.

On 22 April 2016 the Migration Agency granted the Security Services’ request to expel the applicant and, at the same time, rejected the applicant’s demand for asylum and international protection. It noted that the human rights situation in Morocco had improved significantly. Violence at police stations and prisons had decreased. Imprisonment was common in terror-related cases and persons affiliated with Islamic movements ran a higher risk of being subjected to violence. Older reports contained accounts of torture and illtreatment in cases concerning national security and terrorism. However, the Moroccan authorities had publicly stated that the fight against terrorism should not be used as a pretext for depriving people of their rights. Torture was illegal and efforts to curb the use of torture had been successful. In terror-related cases, arrested suspects were examined by doctors before and after interrogation to prevent the use of violence by the interrogators.

As concerned the applicant’s situation, the Migration Agency found no reasons to question the Security Service’s assessment of the applicant. In this regard, it found that the applicant lacked credibility since his submissions relating to his background and previous activities were contradicted by the information submitted by the Security Service. Moreover, the Agency considered that he had not made out that the Moroccan authorities had previously showed an interest in him. It took into account that he had lived outside Morocco for about a decade and that, as he said himself, he had lived an inconspicuous life in Sweden without political or religious activities. Furthermore, after his last visit to Morocco, he had left the country legally using his passport. His parents in Morocco had not reported any visits from the authorities enquiring about him and the Moroccan authorities had never contacted him in Sweden. They had never requested his extradition either, or informed him that he was suspected of terrorism or any other kind of criminality. He had never been convicted of any terrorrelated crimes in Sweden. The Agency observed that the applicant had submitted that he was not sought in Morocco, that he had not been involved in any legal proceedings there and that the Moroccan authorities had never subjected him to any acts of persecution in the past. As late as towards the end of 2015, the applicant had travelled internationally using his passport, without being stopped. Even though older “country of origin” reports included accounts of ill-treatment, the most recent reports instead spoke of measures taken by the Moroccan authorities aimed at reinforcing the rule of law.

As concerned the risk upon return because it was the Security Service which had requested the expulsion, the Migration Agency found that the applicant had not made out that he risked persecution upon return on this ground. It took into account that no objective evidence suggested that the Moroccan authorities were aware of his case and that the legislation had regard to the possible risks of being labelled a terrorist and had been designed to avoid such risks.

The Migration Agency concluded that, even taking into account the applicant’s submissions, it shared the Security Service’s assessment and considered that there were grounds to expel the applicant with reference to Section 1, paragraph 2, of the Special Controls of Aliens Act (lagen [1991:572] om särskild utlänningskontroll). It thus rejected his request for asylum and international protection, revoked his permanent residence permit and ordered his expulsion to either Morocco or another specified country. It also decided on a lifelong ban on returning to Sweden.

The applicant appealed to the Government, submitting that the Security Service’s assessment had been accepted by the Migration Agency without a careful examination, rendering the proceedings unfair and partial. He maintained his claims and stressed that the use of torture was frequent in Morocco, in particular in relation to suspected terrorists.

The Migration Agency forwarded the appeal to the Migration Court of Appeal (Migrationsöverdomstolen) in accordance with Section 3 of the Special Controls of Aliens Act. The Agency maintained its stance and stated, inter alia, that the applicant had not made it probable that he was of interest to the Moroccan authorities and there was no concrete information indicating that they should be aware of what had happened to him in Sweden. The Security Service stated that it was as transparent as possible but, for reasons of confidentiality, could not reveal its working methods and sources. It added that it was continually assessing whether it was possible to enforce the expulsion. If information were to emerge which raised the issue of impediments to the expulsion, the Government would be informed.

On 22 June 2016, after having held an oral hearing, the appellate court shared the reasoning of the Migration Agency and decided to recommend that the Government uphold the Agency’s decision. It found, inter alia, that there was nothing to support that the applicant at that point in time was known by the Moroccan authorities and of interest to them.

On 8 September 2016 the Government upheld the Migration Agency’s decision in full. The Government noted the Security Service’s submissions concerning the applicant’s background and connections and found that there were no grounds for questioning these submissions. In view of what was known about the applicant’s former activities and other circumstances, the Government concluded that it was reasonable to fear that the applicant would commit or participate in committing a terrorist offence which warranted his expulsion in accordance with the Special Controls of Aliens Act.

On 22 September 2016, following the interim measure indicated by the Court, the Government decided to stay the enforcement of the expulsion order until further notice.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

The applicant was born in 1965 and lives in Budapest.

At 4.07 p.m. on 7 October 2009 the applicant notified the police that he planned to organise a demonstration from 2 to 7 p.m. on 10 October 2009 in front of the Venyige Street prison in Budapest, to protest against the “political persecution of national radicalism”. Venyige Street is a broad cul-de-sac with a service lane.

A police officer from the police station that had received the notification repeatedly attempted to contact the applicant by phone, in line with the relevant decree issued by the Minister of the Interior on police tasks related to securing public order at major events, in order to arrange for a meeting. Despite making several attempts and leaving messages, however, he could not reach him.

On 9 October 2009 the head of the Budapest Police Department banned the demonstration on the grounds that traffic could not be diverted to alternative routes (section 8(1) of the Assembly Act). In the decision, he referred to Article 21 of the International Covenant on Civil and Political Rights, Article 11 of the Convention and Decision no. 55/2001.AB of the Constitutional Court.

The applicant sought a judicial review of the decision within the statutory three-day time-limit.

On 15 October 2009 the Budapest Regional Court dismissed the applicant’s case. It noted that in assessing whether or not traffic could be diverted to other routes, the authority had reckoned on the participation of some 200 demonstrators, as per the applicant’s notification, and that it had established that lawful parking and traffic circulation in the neighbourhood would become impossible should the event take place. The court agreed with the police’s decision in that although the right to assembly was a constitutional fundamental right, it was not absolute and must not give rise to a violation of the fundamental rights of others, and could therefore be restricted. The court was satisfied that the decision had been lawful as the police had adequately established the facts, complied with the procedural rules and applied clear assessment criteria, and the assessment of the evidence had been logical.