András Sajó;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Sławomir Musiał, is a Polish national, who was born in 1978. He is currently serving a prison sentence in Strzelce Opolskie Prison.

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

In its judgment Sławomir Musiał v. Poland of 20 January 2009 (app. no. 28300/06), the Court found a violation of Article 3 of the Convention on account of the cumulative effect of the inadequate medical care and inappropriate conditions in which the applicant, who had a history of mental disorder, was held throughout his pre-trial detention.

In the operative part of the judgment the Court held that the respondent State was to secure at the earliest possible date adequate conditions of the applicant’s detention in a specialised institution capable of providing him with necessary psychiatric treatment and constant medical supervision (see also § 108 of the judgment).

The Government requested that the case be referred to the Grand Chamber; however, their request was rejected and the Chamber’s judgment became final on 5 June 2009.

The execution of this judgment is pending before the Committee of Ministers in the framework of enhanced procedure but only with respect to the general measures. The applicant’s judgment belongs to a group of cases against Poland concerning issues of adequacy of medical care provided to prisoners. According to the information submitted by the Government to the Committee of Ministers in February 2013, the applicant, who is now serving a prison sentence, has been provided with appropriate medical care. The Committee of Ministers decided at its 1164th meeting (5-7 March 2013) that no other individual measures appeared necessary in the light of information submitted by the Government, according to which the applicant’s conditions of detention were compatible with his state of health.

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

The Government submitted that the applicant had a long criminal record. In the period subsequent to the Court’s judgment of 20 January 2009, the applicant’s criminal record included, inter alia, the convictions for:

a) causing bodily injury, aggravated assault, punishable threat, armed robbery and aggravated theft - the Myszków District Court’s judgment of 21 April 2010, case no. II K 42/06;

b) aggravated assault – the Zawiercie District Court’s judgment of 29 February 2012, case no. II K 475/11;

c) punishable threat, trespass and aggravated theft - the Myszków District Court’s judgment of an unspecified date, case no. II K 1049/11;

d) aggravated assault, two counts of armed robbery and property damage - the Jędrzejów District Court’s judgment of 7 March 2013, case no. VIII K 13/13;

e) assault on a public official - the Myszków District Court’s judgment of an unspecified date, case no. II K 1438/10.

The applicant served various terms of imprisonment and was released in 2008. In 2011 he was imprisoned again. The applicant was detained in the following establishments:

a) Łódź Prison No. 2 (psychiatric ward): 22 November 2011 – 13 June 2012;

b) Częstochowa Remand Centre: 16 June 2012 – 17 October 2012;

c) Przemyśl Prison: 18 October 2012 – 30 October 2012;

d) Częstochowa Remand Centre: 30 October 2012 – 5 December 2012;

e) Przemyśl Prison: 6 December 2012 – 12 December 2012;

f) Częstochowa Remand Centre: 12 December 2012 – 5 January 2013;

g) Herby Prison: 15 January 2013 – 30 October 2013;

h) Nowy Sącz Prison: 30 October 2013 – 11 March 2014;

i) Przytuły Stare Prison: 13 March 2014 – 1 April 2014;

j) Kielce Remand Centre: 2 April 2014 – 9 July 2014;

k) Herby Prison: 9 July 2014 – 18 September 2014;

l) Strzelce Opolskie Prison: 18 September 2014 – present.

The applicant submitted that has been suffering from severe mental disorders. He claimed that in 2003 he had been diagnosed with paranoid schizophrenia. The applicant relied, in particular, on three medical opinions of 18 September 2009, 26 June 2011 and 30 May 2014.

The Government rebuffed the applicant’s assertion. They maintained that the applicant had been inaccurately diagnosed with paranoid schizophrenia. The Government submitted that the applicant did not mention at least nineteen opinions (twelve psychiatric and seven psychological) which concluded that he was not suffering from schizophrenia or any other mental disorder. The applicant further concealed the fact that at last six opinions (five psychiatric and one psychological) established that he was feigning his mental illness.

The Government submitted a complete list of psychiatric and psychological opinions regarding the applicant issued between 2003 and 2014 in the course of various criminal proceedings against him.

The Government submitted that four opinions confirmed the applicant’s alleged mental disorder (opinions of 9 August 2007, 18 September 2009, 26 June 2011 and 30 May 2014). However, in their view, these opinions were imprecise; short (1, 3, 4 and 6-page long respectively); based on a short (less than one day) consultation; prepared without reference to opinions in which no mental disorder had been diagnosed and without adequate access to all medical data; and based on documents submitted by the applicant and his suggestions.

Due to the discrepancies in the assessment of the applicant’s mental health, the relevant courts and prosecutor’s offices, at least on three occasions, ordered the applicant to undergo a psychiatric observation in hospital. The applicant’s hospital observation took place in the following periods: from 6 June to 18 July 2005; from 4 February 2008 to 17 March 2008 and from 24 November 2011 to 13 June 2012. All opinions issued following the hospital observations (dated 18 July 2005, March 2008, 14 April 2008, 25 June and 29 October 2012) excluded that the applicant was mentally ill. The Government asserted that the above opinions were detailed; long (5, 7, 8, 14, 34 and 41-page long respectively); prepared after a prolonged hospital observation; based on all previous opinions and on a various medical data.

The Włoszczowa District Court requested a psychiatric opinion as to whether the applicant could participate in the trial against him (case no. II K 192/08). The applicant was examined on 11 August 2009. In an opinion of 18 September 2009, two psychiatrists noted that verbal contact with the applicant was difficult and that he had difficulties in concentrating. The applicant stated that he had hallucinations and could not sleep well. The psychiatrists concluded that the applicant suffered from a mental disorder similar to paranoid schizophrenia. He did not have acute psychotic symptoms, but anxieties persisted. The psychiatrists concluded that the applicant could not take part in the trial for a period of six months.

The Government submitted that the above opinion was one-page long. The opinion also stated that the applicant had refused to be hospitalised in the Opole Psychiatric Hospital. In two previous opinions issued in the course of the same criminal case the psychiatrist opined that the applicant was not suffering from any mental disorder and that his psychiatric treatment between 2004 and 2006 was without prejudice to his ability to recognise his criminal acts.

The Częstochowa Regional Court requested a psychiatric opinion on the applicant’s mental condition for the purposes of the appellate proceedings (case no. VII Ka 550/10). In their opinion of 15 November 2010, the two psychiatrists opined that the applicant has suffered from paranoid schizophrenia from his teenage years. Currently his mental condition was relatively stable; however in the last few months, despite regular treatment, he had some psychotic spells leading to self-harm. His condition was chronic and there was a possibility that it will become more acute at any time. However, the psychiatrists concluded that the applicant could take part in the appellate proceedings.

On 21 June 2011 the Zawiercie District Disability Evaluation Board declared the level of the applicant’s disability as “moderate”. It noted that the applicant was unfit for work and needed assistance of social services in his daily life. The decision was in force until 30 June 2013.

The Zawiercie District Prosecutor’s Office requested a psychiatric opinion on the applicant’s mental condition, including whether he could be held criminally responsible (case no. 1 Ds 884/11). The applicant was examined on 14 June 2011. In their opinion of the same day, the two psychiatrists opined that there were no grounds to diagnose the applicant with mental disorder. They took note of the applicant’s medical records and the two opinions, produced by the applicant, in which he had been diagnosed with paranoid schizophrenia. However, they noted that these opinions did not establish the presence of psychotic symptoms at the time of the applicant’s examination; these symptoms had only been related by the applicant. In the course of the current examination, the applicant did not show any symptoms present in schizophrenia. The psychiatrists concluded that the applicant was not mentally disabled, having regard to the history of his schooling, his subsequent activities and the quality of contact during his examination. They found that the applicant had features of antisocial personality. In their conclusion, the applicant could be held criminally responsible and participate in the proceedings against him.

The Myszków District Court requested a psychiatric opinion as to whether the applicant suffered from a mental illness preventing him from serving his sentence (case no. II K 42/06). In their opinion of 26 June 2011, the psychiatrists diagnosed the applicant with acute psychotic disorder in the form of paranoid schizophrenia. His intellectual ability was assessed to fall within a norm. The experts concluded that the applicant’s current mental condition made him unfit for serving a prison sentence.

The Government submitted that the above opinion was two-and-a-half page long. It was issued after one day of examination. It corroborated that the applicant, regardless of several referrals to psychiatric hospitals, had refused to be hospitalised in connection with his alleged mental disorder. Furthermore, two weeks earlier, on 14 June 2011 the psychiatrists examining the applicant in connection with another set of criminal proceedings had declared him mentally fit. The psychiatrists disproved the two psychiatric opinions produced by the applicant which attested to his mental illness. They underlined that in the course of the examination leading to the issuance of those two earlier opinions no symptoms of mental disorder had been noticed and that the mental disorder had only been reported by the applicant.

The Włoszczowa District Court requested a psychiatric opinion on the applicant’s mental health in connection with the proceedings in which the applicant had been charged, inter alia, with robbery and assault (case no. II K 379/11). The applicant was interviewed at the Łódź Prison Hospital No. 2. In their opinion of 16 January 2012, the two psychiatrists (T.N. and J.M.), having analysed the medical documentation, stated that they were unable to determine the question of the applicant’s sanity at the time of the alleged offences. They noted that in the past the applicant had been diagnosed with paranoid schizophrenia, and that this diagnosis raised doubts and could not have been properly verified during a short stay at the hospital. The applicant’s mental condition did not indicate any psychotic process, but his “rich” medical documentation gave rise to difficulties in making a diagnosis. The psychiatrists requested the district court to order the applicant’s psychiatric observation in hospital and requested access to various medical and penitentiary documentation in order to assess the applicant’s mental health.

In a note dated 27 February 2012 the Łódź Prison informed the Włoszczowa District Court that the applicant had been admitted to the psychiatric ward on 24 November 2011 in the light of pharmacological treatment related to suspected schizophrenia. During his stay there, doctors did not notice any symptoms of schizophrenia or other mental illness and it was decided to stop administering antipsychotics. After that the applicant’s mental condition remained good. It was noted on the basis of existing documentation that the applicant had been frequently consulted by psychiatrists, who had diagnosed him with schizophrenia basing themselves solely on the applicant’s “stories”. The most comprehensive opinion on the applicant’s mental health was prepared in 2005 following his observation at the Rybnik Psychiatric Hospital. The psychiatrists of that hospital did not observe any psychotic symptoms. They found that the applicant suffered only from a personality disorder which corresponded to the conclusions of the current observation at the Łódź Prison Hospital. The psychiatrists of the Łódź Prison Hospital requested access to extended medical and penitentiary documentation on the applicant, to which previous experts had no access. It was noted during the applicant’s observation at the Łódź Prison Hospital that in situations which were uncomfortable for the applicant (i.e. when he was summoned to a hearing) he immediately began simulating symptoms of mental illness.

The Częstochowa Regional Prosecutor’s Office requested a psychiatric opinion on the applicant’s mental condition in connection with the proceedings in which the applicant had been charged, inter alia, with robbery, punishable threats, insult of a public official, participation in an organised gang and extortion (case no. V Ds 71/11/s). The psychiatric opinion was prepared by the same experts (T.N. and J.M.) who prepared the opinion of 16 January 2012, following the applicant’s observation at the psychiatric ward of the Łódź Prison between 24 November 2011 and 16 June 2012. The psychiatrists verified the applicant’s medical documentation and carried out a number of tests and examinations. They discovered no organic dysfunctions. The psychiatrists noted that the applicant had attempted to feign the symptoms of mental illness. For example, he related in a stereotypical manner that “voices are calling him to commit suicide”. The results of various tests showed no symptoms which could have even suggested the presence of depressive or manic disorders, either at present or in the past. During the examination, the applicant could not say anything about his symptoms and changed the subject of conversation. It was visible that the questions put to him in this respect were distressing. The experts carried out a test to determine the symptoms of schizophrenia, but this proved negative. The experts noted that:

“Sławomir Musiał’s behaviour hid a clear motive and intentional effort to achieve a defined goal which was to mislead the experts and, consequently, to avoid his criminal responsibility. To this end, he feigned his mental illness.”

The experts further noted that the applicant was unwilling to undergo certain tests. The applicant complained about problems with sleep or anxieties, but his observation at the psychiatric ward did not confirm his assertions. The experts found that the applicant displayed no typical behaviour for a person suffering from psychotic disorders, such as being suspicious vis-à-vis the other patients and staff. The applicant demanded to take anti-psychotic drugs, whereas in reality the mentally-ill avoid taking them. The applicant’s ostentatious behaviour and tendency to focus attention on the alleged hallucinations were also reported. The experts noted that the symptoms showed by the applicant did not correspond to any known illness.

In conclusions of their opinion of 29 October 2012, the psychiatrists stated:

“1. We conclude that Sławomir Musiał shows no symptoms of mental illness or of mental disability.

We conclude that Sławomir Musiał has an antisocial personality and that he feigns his mental illness (...).”

They lastly established that the applicant could be held criminally responsible and to participate in the proceedings.

The Częstochowa Regional Prosecutor’s Office also requested a psychological opinion on the applicant. The opinion was prepared on the basis of interviews and tests carried in the course of the applicant’s observation in the Łódź Prison. In his opinion of 25 June 2012, the psychologist T.M. concluded that the applicant’s intellectual ability fell within a broad norm and that he had no organic dysfunctions. The psychologist noted that the applicant did not function as a mentally disabled person. This was demonstrated by his ability to adapt, the manner of functioning in a group and of formulating his thoughts orally and in writing. The expert was unable to determine the applicant’s genuine intellectual ability since the latter had not properly participated in the tests. The expert also concluded that the applicant’s personality was improperly developed. In this respect, he noted that the applicant poorly internalised socio-moral norms.

The Włoszczowa District Court requested a psychiatric opinion on the applicant’s mental health in connection with the case against him (no. II K 379/11). The opinion was prepared by the same experts in psychiatry as the earlier opinion of 29 October 2012 (T.N. and J.M.) and based, in addition, on the applicant’s examination on 20 September 2012. In their opinion of 22 November 2012, the experts confirmed their earlier findings made in the opinion of 29 October 2012. In addition, they found that the applicant could be transported to court and noted that his earlier behaviour during transport resulted from him feigning a mental illness.

The Włoszczowa District Court also ordered a psychological opinion in connection with the same case. In his opinion of 22 November 2012, the psychologist T.M. reached the same conclusions as those presented in his earlier opinion of 25 June 2012.

On 4 September 2012 the applicant was consulted by a psychiatrist at the Częstochowa Remand Centre. She noted that the applicant was undergoing psychiatric treatment and had been frequently hospitalised in psychiatric hospitals in Lubliniec, Czeladź and Opole in connection with his schizophrenia. The psychiatrist expressed negative prognosis for the applicant given the chronic nature of his condition which was characterised by remissions.

It appears that on 15 January 2013 the applicant was transferred to Herby Prison. On 24 May 2013 the applicant was consulted by a doctor of the prison. Her findings were similar to those made by a psychiatrist on 4 September 2012.

In the course of the civil proceedings against the applicant which concerned a claim for increase of child maintenance, the Kraków-Podgórze District Court requested a psychiatric opinion on the applicant. The applicant was interviewed on 30 May 2014 by a psychiatrist in a court building. In his opinion of the same day, based on the interview, the case file of the civil case and some medical documentation, the psychiatrist established that the applicant suffered from chronic mental illness: paranoid schizophrenia. The applicant displayed low level of intellectual ability, hyperactivity and claimed to have hallucinations. It transpired from the medical documentation that despite a pharmacological treatment (large doses of antipsychotics) his condition did not improve and he often showed psychotic symptoms and agitation. There were also attempts to commit suicide. The expert concluded that the applicant was unable to work in prison due to his chronic mental illness.

The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the case of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009. More recent developments are described in the Court’s decision in the case of Łatak v. Poland (dec.) (no. 52070/08, §§ 25-54, 12 October 2010).


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote)

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in 1966 and is currently detained in Giurgiu Prison.

On 24 June 1999 the Călăraşi County Court convicted the applicant of burglary, rape and murder and sentenced him to twenty five years’ imprisonment. In application of Article 71 of the Criminal Code, his right to vote and to be elected was withdrawn during detention.

The decision became final on 25 February 2000 when the Supreme Court of Justice dismissed the appeal on points of law lodged by the applicant.

The applicant is currently serving his prison sentence in Giurgiu Prison where he has been held since 21 January 2009.

The applicant described the conditions of his detention as follows:

- there was no water during summer days;

- he was placed with smokers (in the court-room and for few days during detention) although he did not smoke;

- the windows were covered with bars and thick galvanised wire which rendered the ventilation of the cell impossible;

- he was transported to court hearings in small dirty vans, with no ventilation or natural light;

- from 2009 until the date of the last information received (22 July 2014) he had been held with five other inmates in a 17.65 sq. m cell infested with bugs.

Based on the documents presented by the Prison Administration, the Government explained that during his stay in Giurgiu Prison the applicant had occupied the following cells, all non-smoking:

- cells nos. A305, A306, A328, B232, C109, C116, C126, C127, C215, C216, C225, E1.22, E3.7, E3.12, E3.24, E3.26, E3.32, E4.5, E4.14, E4.25, E4.27, E5.32, E10.8, E10.11 which each measured 17,65 sq. m and which he shared with a maximum of five other detainees, between 26 January 2009 and 5 August 2010, between 12 August and 6 September 2010, between 7 March and 28 April 2011, between 20 May and 22 August 2011, between 29 August 2011 and 3 February 2012, between 9 February and 2 April 2012, between 7 May and 23 July 2012, between 2 August and 13 September 2012, between 4 October 2012 and 4 March 2013, between 11 March and 11 April 2013, between 18 and 29 April 2013, between 7 May 2013 and 7 February 2014 and between 21 February and 22 July 2014.

- cells nos. C317, C333, C336 and E3.19 which each measured 9.66 sq. m and which he shared with another person, between 21 and 26 January 2009, between 6 September and 10 October 2010, between 12 and 20 May 2011 and between 7 and 21 February 2014.

The sanitary annexe measured 2.7 sq. m and was provided with a sink, a shower cabin, shelves, mirror and a toilet. All rooms had windows and ventilation. The detainees collected the trash and cleaned the cells twice every day.

The inmates received the hygiene products from the prison administration and had access to warm water twice every week. Access to drinking water was unlimited.

The information submitted by the Prison Administration concerned conditions of detention only until 22 July 2014.

According to the Government, from 21 February 2014 onwards the applicant had been sharing the cells with a maximum of four other persons, in compliance with the decision adopted on 31 January 2014 by the Giurgiu District Court (see paragraph 15 below).

The applicant complained repeatedly to the post-sentencing judge (Law no. 275/2006 on the execution of sentences; hereinafter “Law no. 275/2006”) about the conditions of his detention.

By two decisions of 29 August and 21 November 2013 the post-sentencing judge for Giurgiu Prison noted that the applicant was no longer held with smokers. The judge also considered that because of the large number of inmates held in that Prison, it was impossible to ensure more personal space for the applicant. He also concluded that in so far as the inmates were responsible for cleaning their cells, the presence of bugs was not the authorities’ fault, but that of the prisoners. The applicant appealed against these two decisions. On 31 January 2014 the Giurgiu District Court ordered the Giurgiu Prison administration to ensure the applicant 4 sq. m of personal space, as provided by law.

The applicant also complained before the post-sentencing judge for Slobozia Prison, that while he was held in there, from March to May 2013, he was again placed in cells with smokers. On 7 October 2013 the postsentencing judge dismissed the request as having been lodged after the expiry of the ten-day time-limit provided for by Law no. 275/2006. The decision was upheld by the Slobozia District Court on 10 March 2014.

Ruling on a similar complaint lodged by the applicant about his stay in a cell with smokers from 8 to 11 March 2013 in Rahova Prison, the postsentencing judge for this prison decided, on 19 March 2013, that no measure could be imposed on Rahova Prison as the applicant was no longer there. He also noted that the applicant could bring a separate claim for compensation before the civil courts.


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

Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant was born in 1983 and is detained in Sztum.

At the time of the events in question, the applicant was serving a prison sentence in the Barczewo prison.

On 8 January 2011 the applicant’s grandmother died. On 10 January 2011 the applicant lodged a request with the Director of Prison and the Penitentiary judge for leave to attend her funeral which was to take place on 12 January 2011. Together with his application he submitted a statement from his sister E.K. who confirmed that she would personally collect the applicant from prison and bring him back after the funeral.

On 11 January 2011 the Penitentiary judge of the Olsztyn Regional Court (Sędzia Penitencjarny Sądu Okręgowego w Olsztynie) allowed the applicant to attend the funeral under prison officers’ escort. The reasoning of the decision read as follows:

“In view of [the applicant’s] multiple convictions and his long term of imprisonment there is no guarantee that he will return to prison”

The applicant refused to attend the funeral, since he believed his appearance under escort of uniformed officers would create a disturbance during the ceremony.

On the same day the applicant lodged an appeal with the Olsztyn Regional Court (Sąd Okręgowy) complaining that the compassionate leave was granted under escort and also that he was only allowed to participate in the funeral (not the preceding church service).

On 3 February 2011 the Olsztyn Regional Court upheld the Penitentiary judge’s decision and dismissed the appeal. The court stressed that the applicant had been allowed to participate in the funeral under prison officers’ escort. It further noted that the applicant was a habitual offender sentenced to a long term of imprisonment therefore there was no positive criminological prognosis and no guarantee that he would have returned to prison after the ceremony.


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

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Paulo Pinto De Albuquerque;Georges Ravarani

The applicant was born in 1930 and lives in Vilnius.

On 29 December 2001 the applicant’s husband asked the national authorities to restore his property rights to a house and a plot of land in Vilnius which had belonged to his grandfather before nationalisation. On 28 February 2002 the applicant’s husband specified his initial request and asked to have the plot of land restored in natura to him if possible, or to provide him with another plot of land in Vilnius.

The property rights of the applicant’s husband were restored to some premises (a storehouse) in Vilnius in 2003 and it was decided to pay him monetary compensation for the other premises that had not been returned to him in natura.

On 10 April 2003 the Vilnius County Administration informed the Vilnius Municipality that the property rights of the applicant’s husband would be restored to 0.1638 hectares of land for residential purposes.

On 11 June 2003 the Vilnius Municipality informed the Vilnius County Administration that a plot of land of 0.1007 hectares had been formed near the buildings owned by the applicant’s husband.

In November 2003 the Vilnius City First District Court established as a legal fact that the grandmother of the applicant’s husband had owned a plot of land in Vilnius measuring 362 square “fathoms” (sieksnis – 1 fathom equals 1.82 m).

On 12 March 2004 the Vilnius County Administration informed the Vilnius Municipality that the property rights of the applicant’s husband would be restored and that he was a candidate to receive a plot of land measuring 0.1638 hectares in natura. In July 2004 the Vilnius County Administration issued a document stating that the applicant’s husband had a right to a plot of land of 0.1638 hectares.

In August 2006 the authorities replied to the applicant husband’s letter asking why only a plot of land of 0.1007 hectares instead of 0.1638 hectares had been formed near the house, and stated that the plot of land 0.1007 hectares where the premises had been situated, would be divided for several co-owners of the premises and the rest of the land would be returned to the applicant’s husband by the means he chose.

On 16 May 2007 the applicant’s husband died and the applicant became his heir.

On 27 March 2009 the applicant’s son, as the representative of the applicant, asked the authorities to restore the property rights of his father to the plot of land of 0.1171 hectares by paying compensation in securities.

On 9 April 2009 the property rights of the applicant’s husband were restored in natura to 0.0467 hectares of land and it was provided that compensation of approximately 1,642 euros (EUR) would be paid in securities for the remaining 0.1181 hectares of land. On 24 July 2009 this decision was changed and it was decided to restore the applicant’s husband’s property rights to a plot of land of 0.0362 hectares in natura and to pay compensation in securities for the plot of land of 0.1286 hectares, amounting to approximately EUR 1,788.

In October 2009 the applicant lodged a complaint with the Vilnius Regional Administrative Court, claiming that the compensation in securities, established by the national authorities, was unjust, and asking to have the value of the plot of land measuring 0.1286 hectares recalculated. In February 2010 the applicant applied to have the administrative proceedings suspended and to have the matter of calculation of compensation referred to the Constitutional Court.

On 10 February 2010 the Vilnius Regional Administrative Court held that the Vilnius County Administration had calculated the compensation in accordance with the methodology approved by the Government (see paragraph 33 below). However, the calculation of the municipality provided that the market value of the plot was approximately EUR 786,029 and the market value of the plot as calculated by the Centre of Registers was approximately EUR 750,313. The court stated that in comparison with these numbers, the value of the plot of land provided by the Vilnius County Administration (see paragraph 14 above) was 327.5 times lower, and it could not conform to the principle of equal value. Moreover, in accordance with the methodology approved by the Government, the calculation was the same for plots of land in the city centre and outside the city. The court thus decided to suspend the administrative proceedings and to refer the matter to the Constitutional Court.

In April 2013 the National Land Service informed the applicant that the relevant laws had been changed and that she could change the form of restoration of the property rights to 0.1286 hectares of land. Instead of securities she could choose one of the following: to be assigned a new plot of land of equivalent value to the one held previously; to have the liabilities to the State legally voided; to be assigned a new plot of land for individual construction; to receive monetary compensation. It appears that the applicant did not reply to this letter.

On 30 September 2013 the applicant was included on the list of persons to receive a plot of land for construction of an individual house.

After the matter had been resolved by the Constitutional Court (see paragraph 35 below), the Vilnius Regional Administrative Court rejected the applicant’s claim on 4 November 2013. The court analysed the domestic regulation regarding the calculation of the value of the land and observed that this matter had been referred to the Constitutional Court, which held that the methodology approved by the Government setting down the principles of calculation of the value of the land was in accordance with the law. The Vilnius Regional Administrative Court also held that the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property had been changed and persons could, before 1 July 2013, choose other means to restore their property rights than by payment of securities. If no other means were chosen, the property rights had to be restored by paying monetary compensation. The court further observed that the authorities had suggested the applicant choose other means to have her property rights restored (see paragraph 17 above), and that in September 2013 it had been decided to include the applicant on the list of persons to receive a plot of land for construction of an individual house. The decision the applicant complained of, that is to say the calculation of the compensation to be paid in securities, had not been of legal importance to the applicant because the Law on the Restoration of Citizens’ Ownership Rights to Existing Real Property had been changed and it had become impossible to restore the property rights in securities. The decision to restore the applicant’s property rights by paying her compensation in securities had to be changed to monetary compensation. Because the applicant had been included on the list of persons to receive a new plot of land for individual construction, she could use another way to restore her property rights.

The applicant appealed. On 29 May 2014 the Supreme Administrative Court upheld the first-instance decision. The court also emphasised the argument of the Constitutional Court that, in calculating the compensation, it was justified to pay heed not only to the market value of the property but also to its value at the time of nationalisation and to the changes in the quality and the value of property. The Supreme Administrative Court also held that the applicant had complained about the length of the court proceedings. The court held that the applicant had lodged the complaint on 4 November 2009; it had been accepted by the Vilnius Regional Administrative Court on 17 November 2009. On 10 February 2010 the Vilnius Regional Administrative Court had decided to apply to the Constitutional Court, which had adopted its decision on 11 September 2013. The proceedings in the administrative case had recommenced on 16 September 2013 and the decision had been adopted on 4 November 2013. Given the complexity of the case and referral of the matter to the Constitutional Court, the length of proceedings had not breached the reasonable time requirement.

On 11 November 2014 the National Land Service informed the applicant’s son, as the applicant’s representative, that on 1 November 2014 it had become possible to restore the property rights by receiving a plot of forest of equal value. The applicant was asked to express her wish before 1 March 2015. It appears that she never replied to this letter.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention)

The applicant was born in 1976 and lives in Kemerovo.

On 1 March 2008 the applicant was arrested on suspicion of causing grievous bodily injuries to Mr K. On 3 March 2008 the Tsentralnyy District Court of Kemerovo remanded him in custody.

On 10 October 2008 the applicant and other persons were charged with running of a criminal syndicate, extortion and other offences. On 18 March 2010 the case was sent for trial to the Kemerovo Regional Court.

On 28 May 2013 the Kemerovo Regional Court, further to a verdict by a jury, found the applicant guilty and sentenced him to six years’ imprisonment.

On 11 February 2014 the Supreme Court of the Russian Federation quashed the conviction and remitted the case for a new trial. It decided that the applicant should stay in custody:

“Zavorin, P[.], K[.], Sp[.] and Sl[.] stand accused of serious and particularly serious offences. Having regard to the gravity of the charges and the information on their character which is available in the case materials, the court considers that the grounds listed in paragraph 1 of Article 97 of the Code of Criminal Procedure are present. The information about the case, taken in its entirety, gives reason to consider that, if the above individuals were to be released from custody, they might abscond and thereby prevent the case from being examined within a reasonable time (the time the proceedings before the first-instance court have already taken should not be discounted) or they might influence the witnesses or victims. Under these circumstances, the court considers that these individuals must be placed into custody for a period of three months”.

On 28 April 2014 the Kemerovo Regional Court returned the case to the prosecutor so that certain procedural defects could be remedied. It also extended the applicant’s and other defendants’ detention for a further three months, referring mainly to the gravity of the charges but also to the wording of the Supreme Court’s decision of 11 February 2014. In so far as the applicant sought to rely on the Government’s admission of a violation, the Regional Court held as follows:

“The defendant A. L. Zavorin filed an application for release on an undertaking to appear and to be of good conduct, relying on the fact that his prolonged detention in the present proceedings was deemed to be unjustified in the framework of the proceedings on his application before the European Court of Human Rights and that the [Russian] Government offered him compensation ... which he refused ...

A. L. Zavorin [and another co-defendant] submitted documents concerning the examination of their applications by the European Court of Human Rights which are in English; they are not translated into Russian or properly certified. The document in Russian which A. L. Zavorin submitted is not certified either. The court is not competent to translate the documents which the parties submitted ...

Having regard to the number and nature of the offences imputed to Sp[.], P[.], A. L. Zavorin and St[.] and the public danger they represent, the information on their character, the particular complexity of the criminal case, the time that the remedying of the defects and a subsequent trial will take, the court considers that their detention must be extended for a further three months, until 28 July 2014.”

On 28 July 2014 the senior investigator of the Investigations Committee ordered the applicant’s release, noting that he had spent in custody more than seventy-six months, whereas the Code of Criminal Procedure set the maximum duration of pre-trial detention at eighteen months.


Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant, Mr Ertaç Bilim, is a Turkish national who was born in 1969 and lives in Istanbul. He was represented before the Court by Ms Tuğba Tüfek, a lawyer practising in Istanbul.

On 5 January 2006 the applicant was dismissed from his employment. In the dismissal notice, it was noted that the poor performance of the applicant had been brought to his attention in previous appraisal interviews and that a prior warning had been issued. It was also indicated that remedial coaching had been provided to the applicant on several occasions during 2005; however, the employer company had not discerned any progress.

On 3 February 2006 the applicant initiated proceedings before the Istanbul Labour Court against his former employer, requesting the annulment of his dismissal and asking to be reinstated. During the proceedings, the domestic court requested an expert report to determine if the dismissal notice had been issued in accordance with the relevant legislation and whether the grounds for dismissal given by the employer could be justified. In their report, the experts stated that there had been no procedural shortcomings in respect of the dismissal notice. The experts nevertheless stated that dismissal in such cases should be a last resort and that the applicant could have been given continuous coaching and mentoring to improve his performance.

On 14 March 2007 the Istanbul Labour Court gave its judgment and dismissed the applicant’s case. The first instance judge concluded that the dismissal grounds had been notified to the applicant in accordance with the law and that the applicant had been able to put forward his defence submissions. The judge, after taking into consideration the expert report, held that the applicant’s performance had not been satisfactory and that he had not participated in necessary team work exercises. He therefore concluded that the grounds for dismissal had been sufficient. In his appeal petition, the applicant argued that his performance could not be considered as insufficient. On 12 November 2007, finding in line with the first instance court’s reasoning, the Court of Cassation rejected the applicant’s appeal.

Article 20 of the Labour Code in so far as relevant reads:

“An employee who alleges that no reason was given for his dismissal or who considers that the reasons indicated were not sufficient as to justify his dismissal shall be entitled to lodge an objection with the labour court within one month of his receipt of the dismissal notice ...

The first-instance court must apply fast-track procedures and conclude the case within two months. If an appeal is lodged, the Court of Cassation must issue its final verdict within one month. ...”


Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

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

The applicant was born in 1969 and lives in Iaşi.

On 20 February 2003 the Iaşi Prosecutor’s Office indicted the applicant and a third party for procurement and for unlawful deprivation of freedom. It held, amongst other things, that there was reasonable suspicion that the applicant and his co-accused had threatened and forced into prostitution five underage girls, namely C.R.R., M.A., F.P.D., I.A.P. and G.S.S. It relied on testimonial evidence, including the statements of the five girls, the minutes of witness confrontations, a report of the search carried out at the applicant’s home, lists of telephone calls, the applicant’s medical documents, his statements and those of his co-accused.

Between 20 March 2003 and 17 June 2004 the Iaşi District Court adjourned the proceedings fifteen times to allow, amongst other things, the summoning of the witnesses who had been heard at the pre-trial stage of the proceedings. At the hearings of 2 and 30 October 2003 the applicant’s lawyer asked the court to hear the aforementioned witnesses. The court ordered that as from 27 November 2003 any witness who refused to appear should be fined.

Between 12 May 2003 and 3 March 2004, bailiffs tried seventeen times to enforce the warrants (mandate de aducere) issued by the court for some of the witnesses to appear before the court. According to the bailiffs’ reports, witnesses had left the country (M.M.K., F.P.D. and I.A.P.), moved to unknown addresses (T.E.P., C.R.R., C.R. and G.C.R.) or could not be found at home (I.I.C.). I.I.C. was still living at the indicated address but was not found at home. C.R.R., as confirmed by her neighbours, had changed her name and had moved to an unknown address years earlier. T.E.P. was not living at the address known by the authorities; he had sold his flat and was not registered at a different one. According to the available information he had left for the United States of America. M.M.K., who was a foreign national, had left the country on an unspecified date and for an unknown destination, while F.P.D.’s and I.A.P.’s mothers declared that their daughters had left the country for Venice, Italy and Austria in November 2002 and on 18 March 2003, respectively, and that they did not know their addresses. According to I.A.P.’s relatives, she had married, changed her name and did not plan to return to Romania in the near future because she was pregnant. F.P.D.’s neighbours confirmed her mother’s statements. G.C.R. had changed his name and according to his neighbours he had moved some time ago to an unknown address. C.R.’s address was incorrect and no one with the witness’s first name lived at the available address.

The Iaşi District Court asked the Neamţ Population Records Office (Serviciul de Evidenţă al Populaţiei Neamţ), the Romanian Passport Service and the Iaşi Border Guard Service on several occasions to provide information on the whereabouts of the witnesses who had failed to appear before the court, namely T.E.P., M.M.K., C.R., F.P.D., I.A.P., G.C.R. and I.I.C. At the hearing of 27 November 2003 the court noted that the Neamţ Population Records Office had confirmed that the witness G.C.R. had changed his name to G.C.G. and continued to summon him under both names. On 22 December 2003 the Creţeşti Police Department informed the court that according to I.A.P.’s relatives, she had left the country after marrying a Turkish national, and confirmed that she had changed her name and was residing at an unknown address in Austria. The authorities provided the courts with the available information concerning the aforementioned remaining missing witnesses, and stated repeatedly that they had no other records of their current valid addresses.

By interlocutory judgments of 4 September 2003, 8 January, 5 February and 3 June 2004 the Iaşi District Court held that on the basis of information provided in the enforcement reports produced by the bailiffs, the Neamţ Population Records Office, the Romanian Passport Service, the Iaşi Border Guard Service, Iaşi Prison and the Iaşi Police Department, it was impossible to hear C.R., G.C.R., F.P.D., I.A.P., T.E.P., M.M.K. and I.I.C. It relied on Article 327 of the former Romanian Criminal Procedure Code and held that the statements of G.C.R., F.P.D., I.A.P., T.E.P. and I.I.C. given at the pre-trial stage of the proceedings would be read out before the court at the end of the judicial investigation stage of the proceedings. Except for I.I.C.’s statement, there is no evidence in the case file that the statements of those witnesses were read out before the court.

On 8 January 2004 I.I.C. attended a hearing before the Iaşi District Court, but he was not heard by the court because the applicant’s chosen legal representative was missing. The court adjourned the proceedings until later that day pending the arrival of the applicant’s legal representative. I.I.C. informed the court that he could not wait because he had to undergo surgery. He asked to be summoned for the following hearing, and promised to present documentation attesting to his need for medical treatment. The court noted that the witness was living without being registered at an address in the town of Iaşi. By the time the proceedings were reopened that day, I.I.C. had left the court. He did not attend any subsequent hearings and the authorities failed to find him, although they also attempted to summon him at the aforementioned unregistered address.

Some of the witnesses who testified against the applicant at the pretrial stage of the proceedings were located by the authorities and brought before the court.

On 2 and 30 October, 27 November 2003 and 1 April 2004 the Iaşi District Court heard M.A, G.S.S., D.V.D., F.H.A. and J.L.A. The court dismissed M.A.’s request to be heard in the applicant’s absence. M.A. stated amongst other things that the applicant had threatened her and had forced her into prostitution. She had not met any other girls apart from C.R.R. and had been sold to the applicant by I.I.C. G.S.S. withdrew her previous statement given at the pre-trial stage of the proceedings and declared that the authorities had forced her to accuse the applicant of procurement. D.V.D. confirmed his previous statements given at the pre-trial stage of the proceedings. He contended that he knew the applicant and that although he had met some of the girls, they did not live with him. F.H.A. stated that he did not know the applicant. Although he had had sex with several of the girls he had met at the club allegedly run by the applicant, he had not paid for it. L.A.J. withdrew his statement given at the pre-trial stage of the proceedings, denied that he knew the applicant or that he had previously been asked by the authorities if he had paid for sexual relations.

By an interlocutory judgment of 3 June 2004 the Iaşi District Court dismissed, among other things, a request lodged by the applicant’s lawyer to adjourn the proceedings in order to allow him to locate I.I.C. and to bring him before the court as a witness. Having assumed that I.I.C. would be heard by the court, he had not examined the file thoroughly enough to be able to submit oral observations on behalf of the applicant. The court refused his request, holding that it had already decided that it was impossible to have I.I.C. heard and that the absence of the witness did not hinder the examination of the merits of the case.

On the same date the statement given by I.I.C. at the pre-trial stage of the proceedings was read out before the court. Subsequently, the court allowed the parties to submit oral observations on the merits of the case and allowed a request submitted by the applicant’s lawyer to adjourn the proceedings in order to allow the parties to submit written observations on the merits of the case.

By a judgment of 22 June 2004 the Iaşi District Court acquitted the applicant of unlawful deprivation of freedom, convicted him of procurement and sentenced him to nine years’ imprisonment. It held that the facts of the case had been established on the basis of the statements given by C.R. and G.C.R.; the statements of the girls forced into prostitution, namely C.R.R., G.S.S., F.P.D. and M.A. – the girls described how they had met the applicant and his co-defendant, and how they had prostituted themselves; they provided details on how they had been contacted by clients, the money given to the applicant, and the appearance of some of the clients; the report of the search carried out at the applicant’s home; the description of the objects found in the applicant’s home which belonged to C.R.R.; the letter received by I.A.P. from her mother, which referred to rumours that her daughter and the other girls had been prostituting themselves; the list of telephone calls made from the applicant’s phone, which established the phone contact between the applicant, his co-defendant and some of the clients who had contacted the applicant’s co-defendant or with whom she had had sexual relations, namely M.M.K., S.S., K.S.E., N.K., Y.F., F.H.A., T.E.P. and O.K.; and the witness testimonies of I.I.C., D.V.D., T.E.P., F.H.A., J.L.A. and M.M.K. made at the pre-trial stage of the proceedings, which established, with the help of the list of telephone calls and the statements of the five underage girls, the applicant’s involvement in procurement. The court noted that only M.A. and D.V.D. had confirmed their own statements given at the pre-trial stage of the proceedings. It also noted that C.R., G.C.R., I.A.P., F.P.D., I.I.C. T.E.P. and M.M.K. could not be heard as witnesses by the court. In addition, witnesses G.S.S., J.L.A. and F.H.A., like the applicant’s co-defendant, had significantly changed the statements they had given at the pre-trial stage of the proceedings by affirming that they had never paid for sex. Having regard to the conflicting witness and co-defendant statements, the court decided to rely on those testimonies which had been confirmed by the other evidence available in the file. Consequently, it considered that the testimonies given by the witnesses and the co-defendant at the pre-trial stage of the proceedings were accurate as they had been made closer to the date of the unlawful acts and had also been corroborated by the remaining available evidence. Furthermore, it dismissed G.S.S.’s statement and those of the defendants given before the court because they contained several inaccuracies.

The applicant appealed against the judgment, arguing that the court had summoned as witnesses, but had failed to summon as victims, the five girls who had allegedly been forced into prostitution. In addition, the statements of the five girls were not supported by any other evidence, and all the victims of his alleged unlawful acts should have been heard by the court.

By a judgment of 17 October 2005 the Iaşi County Court allowed in part the applicant’s appeal in so far as the classification of his offence was concerned, upheld his sentence and dismissed the remaining points of his appeal. It held that given the nature of the unlawful act with which the applicant had been charged, it would not have been justified to summon as victims the girls he had forced into prostitution. Moreover, the applicant could not rely on the court’s failure to do so as long as his personal interest was not affected. As for the facts established by the first-instance court, the appeal court held that they had been confirmed by the evidence in the file. In particular, the testimonies of the five girls, C.R.R., M.A., I.A.P., F.P.D. and G.S.S. had been corroborated by the testimonies of T.E.P., Y.F., N.K., K.S.E. and S.S. that with the help of the applicant’s co-defendant, they had paid for sexual relations with several girls. I.I.C. had testified that the applicant had been interested in meeting girls who wanted to leave the country and work as dancers in bars, and G.C. had repeatedly driven the applicant and the girls to various hotels. Consequently, the appeal court considered that the first-instance court had correctly convicted the applicant of procurement.

The applicant appealed on points of law (recurs) against the judgment. He argued, amongst other things, that the court had summoned as witnesses, but had failed to summon as victims the five girls who had allegedly been forced into prostitution. In addition, the judicial investigation of the case had been insufficient because the evidence had not been administered publicly.

At a hearing of 9 February 2006 before the Iaşi Court of Appeal the applicant’s lawyer reiterated some of the arguments which he had raised before the second-instance court. Moreover, he contended that some witnesses, including A.P., G.C., O.P., had not been heard directly by the first-instance court and that the court had not provided reasons for its failure to hear them. Also, the address on the summons intended for I.I.C. had been incomplete. The summons had been sent to a town in the county of Neamț, even though the Neamţ Population Records Office had stated that the witness was not registered there. The courts had failed to hear other witnesses as well, including C.Z., and to take measures to bring those witnesses before them. Consequently, he asked the court to quash the judgments of the lower courts and to order a review of all the evidence in the file.

By a final judgment of 21 February 2006 the Iaşi Court of Appeal allowed in part the applicant’s appeal on points of law in so far as it reduced his sentence to eight years’ imprisonment, and dismissed the remainder of the appeal. It held that the lower courts had correctly established the facts of the case and the applicant’s guilt on the basis of the evidence administered at the pre-trial stage of the proceedings and re-confirmed at the trial. The fact that the girls forced by him into prostitution had been summoned during the trial not as victims but as witnesses was not an argument the applicant could rely on as long as his personal interest had not been affected. As for the evidence establishing the facts of the case, the court reiterated the reasoning of the second-instance court. Moreover, the applicant’s arguments that the court had failed to administer and examine directly all the evidence raised during the pre-trial stage of the proceedings, that his rights of defence had been breached and that the debate had not been adversarial were unsubstantiated. A court could rely either on the testimonies given at the pre-trial stage of the proceedings or on the ones given before the court if it was convinced that only some of them reflected the truth and were corroborated by the evidence in the file. A court could rely on the testimonies given at the pre-trial stage of the proceedings if it was impossible to hear the witness directly. A judgment could not be quashed on the grounds that a witness had not been heard directly by the court, unless a party had been prejudiced. In the present case, the lower courts had allowed the applicant’s requests to hear the witnesses who had testified at the pretrial stage of the proceedings and had taken measures to secure their attendance at the trial. The judgments of the lower courts could not be quashed because they had provided reasons for their inability to hear some of the witnesses, namely that they had left the country, and the testimonies had been read out at a public hearing. Consequently, the lower courts had followed the correct procedure in establishing the applicant’s guilt by using evidence collected both at the pre-trial and the trial stages of the proceedings.

On 3 October 2006 the applicant lodged an extraordinary appeal (contestație ȋn anulare), seeking the quashing of the final judgment of 21 February 2006. He argued that his right of defence had been breached on 9 February 2006 because he had been unable to attend the hearings held before the last-instance court on account of his serious medical condition and therefore he had been unable to ask for additional evidence.

On 31 October 2006 the Iaşi Court of Appeal allowed the applicant’s extraordinary appeal, quashed the judgment of 21 February 2006 and ordered the last-instance court to re-examine the appeal on points of law lodged by the applicant against the judgment of 17 October 2005 because he had been unable to attend the hearings before the last-instance court on account of his medical condition.

On 1 March 2007 the applicant submitted his reasons for appeal on points of law before the last-instance court. He argued, among other things, that some of the witnesses, including A.P., G.C., O.P., had not been heard. In addition, the first-instance court had dismissed the request to re-summon the witness I.I.C., whose testimony had been relevant for the case. Other witnesses, including C.Z., had also not been heard and no steps had been taken to bring them before the first-instance court.

By a final judgment of 21 December 2010 the Iaşi Court of Appeal allowed in part the applicant’s appeal on points of law against the judgment of 17 October 2005 and reduced his sentence to seven years’ imprisonment. It held that the first and second-instance courts had been active and had collected all the relevant evidence for the case. They had diligently taken all the necessary steps in order to hear the evidence directly and to verify the applicant’s defence arguments. They had valid reasons for not having directly heard all the victims and witnesses in the case, namely that the individuals in question had left the country. Consequently, the courts had applied Article 327 of the Romanian Code of Criminal Procedure. The factual circumstances had been established on the basis of C.R.’s and G.C.R.’s statements; the statements of the girls forced into prostitution, namely C.R.R., G.S.S., F.P.D. and M.A., who described how they had met the defendants and how they had prostituted themselves, and provided details on how they had been contacted by clients and on the money given to the applicant; the report of the search carried out at the applicant’s home; the report containing a description of the objects belonging to C.R.R., which had been found in the applicant’s home; the letter received by I.A.P. from her mother, which had been found in the applicant’s home; the list of telephone calls made from the applicant’s phone, which had established the phone contact between the defendants and some of the clients who had contacted the applicant’s co-defendant or with whom she had had sexual relations; and the witness testimonies of I.I.C., D.V.D., T.E.P., F.H.A., J.L.A. and M.M.K.

On an unspecified date the Iaşi Prosecutor’s Office instituted criminal proceedings for perjury against the witness G.S.S. who had changed her testimony before the first-instance court in the applicant’s favour.

By an order of 15 June 2006 the Iaşi Prosecutor’s Office discontinued the criminal proceedings for perjury against G.S.S. on the grounds that her action had not met the level of severity required for an offence and the domestic courts had disregarded her statement given at the trial. However, it fined G.S.S. the sum of RON 1,000 (approximately EUR 200) for her behaviour. G.S.S. did not challenge the order before the domestic courts.


Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Non-pecuniary damage - award

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1977 and lives in Stara Zagora. In 2003 he was convicted of a fraud offence and served a sentence of imprisonment in Stara Zagora Prison from 11 February 2003 to 9 August 2004. On 1 October 2004 he was arrested on suspicion of unlawful possession of firearms. Between 29 November 2004 and 20 April 2007 he was detained on remand in Stara Zagora Prison, where he claimed to have been detained with “recidivist” prisoners (see paragraph 20 below).

As he had never finished his secondary education, the applicant requested to be enrolled in the school operating inside Stara Zagora Prison. In August 2005 he submitted a written request to the governor of the Stara Zagora Prison, asking to be enrolled for the 2005/06 school year. He received no reply before the school year began on 15 September 2005, so he wrote again to the governor on 29 September 2005 and also to the Ministry of Education and the Prosecutor’s Office (in Bulgaria, the Prosecutor is the authority competent to oversee the lawful execution of pretrial and post-conviction detention). The applicant received a letter from the Prosecutor, dated 6 October 2005, which said that the prison administration had taken due account of the possibility for the applicant to study, in view of his previous sentence. The Prosecutor further stated that the applicant’s assertion regarding refused access to education had not been confirmed. The applicant also received a reply, dated 24 October 2005, from the Ministry of Education. The letter stated that individuals deprived of their liberty (лишени от свобода) were entitled to continue their education in prison and made no specific reference to remand prisoners.

In the meantime, on 19 October 2005 the applicant sent another request to the prison governor, the Ministry of Education and the Appellate Prosecutor. On 26 October 2005 the applicant filed a new request with the prison governor, again asking to be enrolled in the prison school for the 2005/06 school year. Referring to the letter of 24 October 2005, the applicant argued that the Ministry of Education had recognised his right to access to education in prison. On 7 December 2005 he received a reply signed by the Head of the Execution of Punishments Directorate of the Ministry of Justice, rejecting his request. The letter stated, inter alia:

“It was established that [the applicant] has not yet been convicted. Once convicted, he is to be transferred to a prison for recidivists.

The inclusion of recidivists in the educational and work programmes in a prison for non-recidivists would lead to a breach of the requirement that different categories of inmates are to be kept apart and are to participate separately in correctional programmes ...”

On 21 December 2005 the applicant appealed against the refusal to enrol him in the school, claiming that in the absence of a second sentence of imprisonment he could not be treated as а “recidivist”. In his written pleadings he relied explicitly on the right to education as guaranteed by Article 53 of the Constitution and by Article 2 of Protocol No. 1 to the Convention, as well as on Rule 77 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, which provided, inter alia, that “[p]rovision shall be made for the further education of all prisoners capable of profiting thereby”. In the applicant’s opinion the Execution of Punishments Act 1969 (see paragraphs 15-18 below) imposed the same obligation on the authorities to provide access to education to prisoners detained on remand as the obligation to provide such access to sentenced prisoners. The refusal pursued no legitimate aim and was contrary to the National Education Act 1991 and the United Nations Convention against Discrimination in Education (published in the Official Gazette in 1963). During the hearing he indicated that other persons in his situation were allowed to study and that the prison authorities had not shown any legal ground for their refusal. The prison governor admitted that there had previously been a practice of providing access to the school, but that this had been discontinued because of concerns about the influence of “recidivists” on “non-recidivists”. The applicant had been refused access as he was to be treated as a “recidivist” within the meaning of the Execution of Punishments Act 1969 (see paragraph 20 below) and could not attend the school because this would bring him into contact with non-recidivists.

In a judgment of 24 March 2006, the Stara Zagora Regional Court allowed the applicant’s appeal and ordered the governor to include him in the prison’s educational programme. It found, in particular, that the refusal of the prison governor was based on the assumption that the applicant was a “recidivist” and that since the Stara Zagora Prison was a prison for “nonrecidivists”, it was the duty of the prison administration to exclude him from programmes involving other inmates, most of whom were “nonrecidivists”. The court held that the applicant could not be considered a “recidivist”, as defined by section 158 of the Execution of Punishments Act because, although he had previously received a sentence of imprisonment, the current set of proceedings against him were still pending and he had not yet been convicted and sentenced a second time. The rule requiring that “recidivists” be kept separately from “non-recidivists” in prison was, therefore, inapplicable.

The prison governor appealed against that judgment. He argued that, in accordance with the principle for differentiated treatment of the various categories of prisoner, the applicant was accommodated in the group of those remand prisoners who, if convicted, would fall within the category of “recidivists”. Moreover, the Stara Zagora Prison was a prison for “non-recidivists” and the accommodation of “recidivists”, including remand prisoners treated as such, was exceptional.

Before the examination of the appeal, on 9 August 2006 the applicant requested the governor to enrol him in the prison school for the new school year, starting 15 September 2006. As he received no reply to his request, on 21 September 2006 he filed a similar request with the Execution of Punishments Directorate of the Ministry of Justice.

On 26 September 2006 the Supreme Administrative Court gave a final judgment in respect of the applicant’s complaint about exclusion from the school. Before the Supreme Administrative Court, the prosecutor (who intervenes in all Supreme Court proceedings) was of the view that the decision of the Stara Zagora Regional Court was correct and that the prison governor’s appeal should be dismissed. The prosecutor further expressed the view that the grounds for the cassation appeal were unclear and based on an incorrect interpretation of the applicable law, contrary to the correct interpretation given by the first-instance court in the decision appealed against. In its decision the Supreme Court noted that before the 2002 amendments, the Execution of Punishments Act imposed an obligation for the mandatory education of all prisoners under 40 years of age. The current provision envisaged mandatory education only for persons under the age of 16; for those aged 16 and over there was an obligation on the State to make education available for prisoners who wished to take part. However, convicted prisoners had a right under domestic law to access education only where they had been sentenced to one year or more of imprisonment, to ensure that they would have the possibility of completing a school year (see paragraphs 15-19 below). The Supreme Court concluded:

“[T]he right to education (whether mandatory or voluntary) is envisaged and regulated in the legislation of the Republic of Bulgaria solely in regard of persons deprived of liberty as a result of a final conviction [лишаване от свобода] and not in regard of those deprived of liberty pursuant to a measure of remand [задържане под стража].”

It followed that the question whether the prison authorities unlawfully considered the applicant to be a “recidivist” was irrelevant.

Referring to that judgment, on 6 November 2006 the Execution of Punishments Directorate replied to the applicant’s requests of 9 August and 21 September 2006, informing him that he would not be enrolled in the prison school for the year 2006/07.

Subsequently, the applicant was convicted and sentenced to imprisonment in respect of the firearms offence. He was removed from Stara Zagora Prison on 20 April 2007 and transferred to Pazardjik Prison to serve his sentence. The Government informed the Court that the applicant did not file any requests to take part in educational activities while at that prison. However, in his observations to the Court, the applicant stated that he did not file a request because there was no school at Pazardjik Prison. In addition, he sent the Court documents which indicated that at least one prisoner considered a “recidivist” had participated successfully in the education programme at Stara Zagora Prison. The applicant was released from Pazardjik Prison on 27 July 2008.


CASE OF DANIEL FAULKNER v. THE UNITED KINGDOM

No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

The applicant was born in 1982 and is detained in HM Prison Dovegate, Uttoxeter.

On 3 August 2001 the applicant was sentenced by the Crown Court to custody for life for causing grievous bodily harm. The minimum period (“tariff”) was set at two years, eight and a half months, less time spent on remand. The tariff expired on 18 April 2004 and he became eligible for parole.

The Parole Board subsequently examined his case in order to review whether his detention remained necessary for the protection of the public. On 26 May 2005 it decided not to direct his release but recommended that he be transferred to open conditions. That recommendation was rejected by the Secretary of State.

A second recommendation to the same effect was made, following the applicant’s second Parole Board review on 31 January 2007 and rejected by the Secretary of State on 23 May 2007. At the conclusion of its statement of reasons for rejecting the Board’s recommendation, the National Offender Management Service (“NOMS”) wrote:

“The Secretary of State has therefore decided that you should remain in closed conditions and your next review will conclude in January 2008.”

The accompanying letter stated:

“It has been decided that your case will next be referred to the Parole Board for a provisional hearing to take place in JANUARY 2008.

You will be notified by the Parole Board nearer the time about the exact date of that hearing.

At your next review the Parole Board will consider your suitability for release by way of a paper panel. This consideration will take place approximately 12 weeks prior to your provisional hearing [in January 2008]. If you are not content with the paper panel’s decision you may request that the case proceeds to the arranged oral hearing.”

The case was referred to the Parole Board on 21 December 2007. On 6 May 2008 the applicant and the Parole Board were sent relevant reports as required by the applicable rules. On 16 May 2008 the Parole Board gave case-management directions requiring additional reports. On 8 October 2008 the Parole Board received the further reports requested. The hearing took place on 8 January 2009. On 23 January 2009 the Parole Board directed the applicant’s release. He was released from prison four days later.

Meanwhile, in autumn 2008, the applicant commenced judicial review proceedings against the Secretary of State and the Parole Board seeking damages for the delay in holding the hearing. He relied on Article 5 § 4 of the Convention. He was granted permission to bring proceedings on 13 October 2008.

On 5 June 2009 the claim was dismissed by the High Court. Leave to appeal was granted by the Court of Appeal on 27 October 2009.

On 14 December 2010 the Court of Appeal handed down its judgment. After carefully reviewing the facts and the individual periods of delay encountered, it concluded that there had been a delay of ten months, from March 2008 to January 2009, in the holding of the Parole Board hearing which was unjustified and for which the Secretary of State was responsible. This delay had prevented the applicant from having the lawfulness of his continued detention decided in accordance with Article 5 § 4. On the question of damages, the court was satisfied that the applicant had shown, on a balance of probabilities, that he would have been released had the review taken place in March 2008. Damages on the basis of a loss of liberty were therefore appropriate.

In its judgment of 29 March 2011 on the amount of damages to be awarded, the court considered a number of just satisfaction awards in cases before this Court in which breaches of Article 5 § 4 had been found. It distinguished between cases where the delay had merely led to feelings of frustration and those where it had been established that, but for the delay in the holding of the hearing, the applicant would have been released earlier. It awarded the sum of 10,000 pounds sterling (“GBP”) by way of compensation for the loss of ten months’ conditional liberty.

The applicant sought leave to appeal to the Supreme Court on the ground that the award was inadequate. The Parole Board sought leave to appeal on the ground that the award was excessive. Leave was granted to both parties, and the applicant was in addition given permission to argue that his detention after March 2008 constituted false imprisonment at common law or a violation of Article 5 § 1 of the Convention. In respect of his latter argument, he relied on this Court’s findings in James, Wells and Lee v. the United Kingdom, nos. 25119/09, 57715/09 and 57877/09, 18 September 2012.

In its judgment of 1 May 2013 the Supreme Court unanimously rejected the applicant’s appeal and allowed the appeal of the Parole Board, reducing the damages award to GBP 6,500.

As regards the alleged violation of Article 5 § 1 of the Convention, Lord Reed, giving the leading opinion, observed that Article 5 § 4 provided a procedural entitlement designed to ensure that persons were not detained in violation of their rights under Article 5 § 1. However, he added, a violation of Article 5 § 4 did not necessarily result in a violation of Article 5 § 1. He considered this Court’s judgment in James, Wells and Lee, cited above, not to be directly relevant to the applicant’s case since that judgment concerned lack of access to rehabilitation courses and the just satisfaction awards made were for the feelings of distress and frustration resulting from continued detention without access to courses, and not for loss of liberty. Lord Reed noted that the delay in the applicant’s case appeared to have been the result of errors by administrative staff, “of a kind which occur from time to time in any system which is vulnerable to human error”. While it was extremely unfortunate that the errors had occurred and had resulted in the prolongation of the applicant’s detention, they were not of such a character, and the delay was not of such a degree, as to warrant the conclusion that there had been a breach of Article 5 § 1.

On the matter of damages for the violation of Article 5 § 4 of the Convention, Lord Reed reviewed relevant case-law of this Court where a violation of Article 5 §§ 1, 3 or 4 had been found, focusing in particular on cases concerning a delay in holding a hearing intended to address the question whether a convicted prisoner should be released. He considered that no clear guidance could be derived from the cases since none concerned awards for loss of liberty resulting from a violation of the speedy decision guarantee in Article 5 § 4. While, he said, an appellate court would not interfere with an award of damages simply because it would have awarded a different figure if it had tried the case at first instance, in the applicant’s appeal the court was being invited to give guidance as to the appropriate level of awards in cases of this character. For that purpose, the court had undertaken a fuller analysis of the case-law of this Court than the Court of Appeal. Lord Reed concluded:

“87. ... In the light of that analysis, and applying the general approach which I have described ..., it appears to me that an award in the region of £6,500 would adequately compensate Mr Faulkner for his delayed release, bearing in mind the conditional and precarious nature of the liberty foregone. That amount falls well short of the award of £10,000 made by the Court of Appeal. In the circumstances, it is in my view appropriate for this court to allow the Board’s appeal and to reduce the award accordingly.”


Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Štefan Harabin, is a Slovak national, who was born in 1957 and lives in Bratislava. He was represented before the Court by Mr B. Novák, a lawyer practising in Banská Bystrica.

The applicant is a judge. At the relevant time, he was the President of the Supreme Court.

On 18 November 2010 the Minister of Justice initiated disciplinary proceedings against the applicant by way of representation. Such proceedings fell by law to be conducted by the Constitutional Court, which was to decide in its plenary composition, normally consisting of all thirteen judges (Articles 131 § 1, 134 § 1, and 136 § 3 of Constitutional Law no. 460/1992 Coll., as amended – “the Constitution”).

In order to sit as a plenary formation, at least seven judges have to be present. In order for a decision to be passed, an absolute majority of all the constitutional judges is required. If no such majority has been obtained, the request is to be dismissed (Article 131 § 1 of the Constitution and section 4(2) of Law no. 38/1992 Coll., as amended – “the Constitutional Court Act”).

In the course of the proceedings, the Minister challenged three of the constitutional judges for bias. The applicant, for his part, challenged four.

On 10 May 2011 the Constitutional Court dismissed the challenges for bias and declared the Minister’s representation admissible. It held inter alia that the fact that four of its judges (including two of those challenged by the applicant) had earlier been excluded from other sets of constitutional proceedings involving the applicant could not affect the position as regards their impartiality in the present proceedings. The Constitutional Court found that the determination of the disciplinary offence imputed to the applicant was within the exclusive jurisdiction of its plenary session. Excessive formalism and disregarding the statements of the individual judges posed the risk that the proceedings would be rendered ineffective. Examination of the case by a plenary session of the Constitutional Court represented a guarantee that constitutional principles, including independence, would be respected. Furthermore, all the constitutional judges had pledged to decide cases independently and impartially, to the best of their abilities and conscience.

On 29 June 2011 the Constitutional Court, sitting in plenary formation in which all thirteen judges took part, found the applicant to have committed the disciplinary offence in question. The decision was subject to no appeal (Article 133 of the Constitution, as applicable at that time; for comparison to the current version of the provision, see paragraph 21 below).

For more factual details concerning the background see the Court’s judgment of 20 November 2012 in the case of Harabin v. Slovakia (no. 58688/11) and decision of 29 June 2004 in Harabin v. Slovakia (no. 62584/00, ECHR 2004VI).

In application no. 58688/11, the applicant mainly asserted a violation of his rights under Article 6 § 1 of the Convention in the disciplinary proceeding against him mentioned above.

In its judgment of 20 November 2012 the Court found that in the impugned proceedings the applicant’s right to a hearing by an impartial tribunal had not been respected. There had therefore been a violation of Article 6 § 1 of the Convention on that account.

The Court’s finding was preceded by the following reasoning;

“135. In the proceedings under consideration the Constitutional Court faced a situation where the parties challenged for bias seven of its thirteen judges. As regards the four constitutional judges challenged by the applicant, two of them [...] had been excluded for bias in earlier proceedings before a chamber of the Constitutional Court which had involved the applicant. The Constitutional Court did not attach decisive weight to that fact (similarly to the fact that two other constitutional judges challenged by the Minister of Justice had also been excluded for bias in the past) and decided not to exclude any of its judges. It noted, among other things, that the determination of the disciplinary offence allegedly committed by the applicant was within the exclusive jurisdiction of its plenary session, and considered that excessive formalism and overlooking the statements of the individual judges posed the risk of rendering the proceedings ineffective. The decision on the applicant’s case was taken by secret vote and, for that reason, the Constitutional Court joined no separate opinion of its judges to it.

The Court considers that the Constitutional Court, when balancing between the two positions, namely the need to respond to the request for exclusion of its judges and the need to maintain its capacity to determine the case, failed to take appropriate stand from the point of view of the guarantees of Article 6 of the Convention in that it did not answer the arguments for which the exclusion of its judges had been requested.

The Court notes, firstly, that two of the judges challenged by the applicant and two other judges challenged by the Minister had been excluded in earlier sets of proceedings before the Constitutional Court involving the applicant. Doubts were likely to arise on that ground as to their impartiality. Convincing arguments should be adduced to clearly indicate why the challenges in their respect could not be accepted in the case under consideration.

Secondly, as to the other judges challenged by the parties, the mere fact that a party requests the exclusion of a judge for bias, even repeatedly, does not automatically have a consequence that the judge should withdraw or be excluded. It does not appear from the documents submitted that the Constitutional Court took a stand as to whether the reasons invoked by the parties justified their exclusion.

It is only after answering the parties’ arguments and establishing whether or not the challenges to the judges were justified that the question could have arisen as to whether there was any need and justification for not excluding any of the judges. In that context the Court has noted that the Bangalore Principles of Judicial Conduct (see [the relevant paragraphs of that judgment]) include the ‘doctrine of necessity’ which enables a judge who is otherwise disqualified to hear and decide a case where failure to do so may result in an injustice. However, it is not required to examine whether that doctrine is compatible with the guarantees of Article 6 of the Convention as, for the reasons set out above, such situation was not shown to have obtained in the present case.

The reasons invoked by the Constitutional Court, namely the need to maintain its capacity to determine the case, cannot therefore justify the participation of two judges who had been excluded for lack of impartiality in earlier cases involving the applicant and in respect of whose alleged lack of impartiality the Constitutional Court failed to convincingly dissipate doubts which could be held to be objectively justified.”

The relevant part of the judgment concerning the applicant’s claim in respect of non-pecuniary damage reads as follows:

“177. The Court further restates that a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach occurred (see Lungoci v. Romania, no. 62710/00, § 55, 26 January 2006, with further references).

In the event of a violation of Article 6 of the Convention, the applicant should as far as possible be put in the position he or she would have been in had the requirements of this provision not been disregarded. The most appropriate form of redress in cases like the present one would be the reopening of the proceedings, if requested, by a tribunal complying with the requirement of impartiality within the meaning of Article 6. The Court has noted in that respect that the Constitution or the Constitutional Court Act 1993 do not expressly provide for the possibility of reopening of proceedings before the Constitutional Court. However, the Constitutional Court Act 1993 allows the Constitutional Court to apply as appropriate the Code of Civil Procedure and the Code of Criminal Procedure, which do provide for the possibility of proceedings being reopened where the Court concludes in a judgment that a court’s decision or proceedings prior to it were in breach of the fundamental human rights or freedoms of the party (see Vojtěchová v. Slovakia, no. 59102/08, §§ 23 and 27, 25 September 2012, and [the relevant paragraph of that judgment]).”

The judgment of 20 November 2012 became final on 20 February 2013.

On 18 February 2013 the applicant lodged a request with the Constitutional Court that his above disciplinary proceedings be reopened. He relied on the Court’s judgment of 20 November 2012, referring mainly to its paragraph 178 (cited above), and requested that, along with the reopening of the proceedings, the convicting decision of 29 June 2011 be quashed.

On 29 October 2013 the Constitutional Court decided to dismiss the request. It sat in its plenary formation, but only ten of its thirteen-judge bench took part. Those present included two of the four judges whom the applicant had challenged in the original disciplinary proceedings. One of those two had earlier been excluded from sitting in another matter before the Constitutional Court concerning the applicant on grounds of bias.

The Constitutional Court summarised the applicant’s request, its decision of 29 June 2011 (see paragraph 8 above) and the Court’s judgment of 20 November 2012 (see paragraph 11 above). It went on to recapitulate the applicable rules on the relevant quorum (see paragraph 5 above) and held that:

“When voting on the rapporteur’s proposal [to accede to the applicant’s request], the proposal has not obtained the absolute majority of all [constitutional] judges.

In view of the above, having examined this matter, the plenary of the Constitutional Court has dismissed the rapporteur’s proposal on procedural grounds.”

The President, the judge rapporteur, and one other constitutional judge dissented. In their separate opinions, attached to the Constitutional Court’s decision, they considered inter alia that, although there was no direct legal basis for it, the reopening of the applicant’s disciplinary proceeding was permitted by analogy with the relevant rules of the Code of Criminal Procedure and the Code of Civil Procedure, which in turn was authorised by the Constitutional Court Act. In their view, such interpretation was not contrary to the constitutional provisions under which there was no remedy against a decision of the Constitutional Court. That constitutional provision was to be interpreted restrictively, not in isolation, but rather in the context of Slovakia’s duties under international law. Such duties included those under Article 46 § 1 of the Convention and other Council of Europe instruments and it was the Constitutional Court’s task to use all resources in order to ensure the execution of the Court’s judgment of 20 November 2012.

The Constitutional Court’s decision was served on the applicant on 10 February 2014.

The execution of the Court’s judgment of 20 November 2012 is still pending before the Committee of Ministers of the Council of Europe.

On 11 June 2014 the respondent Government submitted an action plan which is under assessment. It contains the following passage:

“Individual measures:

The applicant was awarded just satisfaction for non-pecuniary damage. His request to reopen the disciplinary proceedings in his case before the Constitutional Court was rejected on procedural grounds [...] The Constitutional Court Act did not explicitly provide for the possibility of reopening the proceedings before this court. On 4 June 2014 an amendment to Article 133 of the Constitution was adopted, introducing the possibility to lodge a remedy against a decision of the Constitutional Court following a decision of an international organisation in the application of a binding international treaty. The amendment shall come into force on 1/09/2014. The applicant will then be able to apply for reopening of the proceedings.

General measures:

The judgment was published and disseminated among the judges of the Constitutional Court. The new wording of article 133 of the Constitution, as amended on 4 June 2014, shall enable the Constitutional Court to implement the requirements following from the judgment of the Court. The authorities committed to inform the Committee of the Ministers about further developments.”

The applicant has not made use of the possibility of reapplying for reopening of his disciplinary proceedings as referred to in the Government’s action plan (see paragraph 25 below).


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

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

On 19 January 2005 bank C. brought enforcement proceedings against the applicant before the Setúbal Court seeking the payment of a debt of 106,278.60 euros (EUR) plus EUR 23,122.72 in interest.

On 8 October 2007 a writ of execution was issued against the applicant concerning an apartment he had mortgaged to the bank (penhora do apartamento). On an unspecified date a judicial enforcement officer (agente de execução) was appointed by the Setúbal Court as depositary (fiel depositário), thus being in charge of the apartment and responsible for the course of the enforcement proceedings through the sale of the applicant’s apartment, pursuant to the Code of Civil Procedure.

On 29 September 2009 the applicant lodged a complaint with the Setúbal Court regarding the judicial enforcement officer’s inactivity in the proceedings.

On 15 February 2012 the applicant lodged a complaint with the Commission for the Efficiency of Executions (Comissão para a Eficácia das Execuções) complaining about the judicial enforcement officer’s professional conduct which was preventing the sale of the applicant’s apartment. On 18 June 2012 the Commission acknowledged the receipt of the applicant’s complaint and in July 2012 informed him that they would start disciplinary proceedings against the judicial enforcement officer.

On 3 October 2012 following the applicant’s complaint of 29 September 2009, the Setúbal Court adopted a decision removing the judicial enforcement officer from his post on the grounds of professional negligence and appointed a new one.

According to the last information received by the Court on 8 July 2014 the proceedings are still pending at first instance.


András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Florin Leonte, is a Romanian national, who was born in 1963 and lives in Podul Iloaiei. He was represented before the Court by Mr T.C. Baltag, a lawyer practising in Iaşi.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

On 26 June 2007 the Iaşi County Court convicted the applicant of driving under influence of alcohol and without a licence, of leaving the place of an accident and of manslaughter. He was sentenced to fourteen years’ imprisonment. In application of Article 71 of the Criminal Code, his right to vote and to be elected was withdrawn during detention.

The applicant appealed against the decision, complaining mainly about the manner in which the evidence had been assessed and the prison sentence established.

On 6 March 2008 the Iaşi Court of Appeal upheld the decision, after reexamination of the evidence in the file.

The applicant appealed on points of law reiterating the arguments advanced in the appeal proceedings. The applicant complained again about the prison sentence imposed on him. The first hearing took place on 18 September 2008. The applicant’s lawyer filed the reasons for appeal for that hearing. In its final decision adopted on 22 October 2009, the High Court of Cassation and Justice upheld the previous decisions.

The relevant provisions of the Criminal Code providing the automatic withdrawal of the right to vote and to be elected during the execution of a prison sentence, read as follows:

“Disqualification from exercising one or more of the rights mentioned below may be imposed as an additional penalty:

(a) the right to vote and to be elected to bodies of a public authority or to public elective office; ...”

“The secondary penalty shall consist in disqualification from exercising all the rights listed in Article 64.

(2) A life sentence or any other prison sentence shall automatically entail disqualification from exercising the rights referred to in the preceding paragraph from the time at which the conviction becomes final until the end of the term of imprisonment or the granting of a pardon waiving the execution of the sentence ...”

In its decision of 5 November 2007 (following an appeal in the interest of the law), the High Court of Cassation and Justice advised the domestic courts to interpret Article 71 § 2 of the Criminal Code in the light of the Convention, and thus assess the necessity of the withdrawal of the right to vote in each case. This decision became mandatory on the date of its publication in the Official Monitor on 18 July 2008.