Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award

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

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

In November 2006 protests broke in a number of prisons throughout the country regarding demands for the Serbian Parliament to enact specific amnesty-related legislation.

On 22 November 2006, according to various official reports, violent conflicts between the two main groups of prisoners occurred in the Niš Penitentiary. It would appear that a radical group of prisoners clashed with the moderate leaders over how to proceed with the protests.

On 23 November 2006 the prevailing group of prisoners requested that all prison staff, including the guards, vacate the dormitories. They also reportedly threatened the prison staff with kidnappings should they fail to comply with this request. The prison staff therefore left the three buildings in question and the prisoners subsequently, at approximately 4.45 p.m., barricaded the entrances with furniture. Almost 600 prisoners were thus left without any official supervision. The security situation in the Niš Penitentiary continued to deteriorate thereafter. The prison authorities assessed that there was a very real threat to the life and health of the prisoners who had refused to take part in the revolt.

On the same day the governor of the Niš Penitentiary formed a crises team which decided that a large scale intervention was necessary. The Ministry of Internal Affairs produced a detailed action plan in this regard. It included, inter alia, the assessment of the resistance that could be expected on the part of the prisoners, the force needed to overcome this resistance and the need to secure the presence of medical teams during and in the aftermath of the intervention.

On 24 November 2006, at around 7.20 a.m., more than 330 special police officers, members of the Gendarmerie, wearing helmets with visors, assisted by prison guards and other security staff, entered the Niš Penitentiary. The protests were brought under control by 8.45 a.m.

According to the information subsequently provided by the Ministry of Justice, a total of 79 prisoners had been injured and medically treated. The same document stated that the injuries sustained, except in one case, were slight in character and had been inflicted by means of blunt force trauma.

The police maintained that during their intervention a certain number of prisoners had offered active resistance. Many also had certain pre-existing injuries stemming from a violent conflict which had apparently occurred between the prisoners themselves prior to the intervention. The police lastly noted that some prisoners had been injured as a result of the general commotion that had ensued in the course of the intervention, including prisoners being trampled over by other prisons and/or pushed against the furniture which had been moved into the corridors.

The applicants claimed that in the course of the intervention and/or shortly thereafter they had been physically abused by the police officers and/or the prisons guards. Concerning the intervention itself, the applicants contended that they had been beaten with baseball bats and truncheons, forced to run between two rows of police officers and/or prison guards who had kicked them as they passed and, lastly, compelled to lie on a cold, concrete floor for hours while being handcuffed. As a result, the applicants allegedly sustained various injuries, such as fractured bones, bruises and wounds all over the body, internal bleeding and brain concussions.

On 24 November 2006, at around 9.30 a.m., the investigating judge of the Niš Municipal Court and the Niš Municipal Public Prosecutor took part in an on-site investigation which found a large number of improvised weapons (i.e. knives, blades and metal pipes) on the premises of the Niš Penitentiary.

On 28 November 2006, having reviewed the reports of the police officers who had used restraints in the course of the intervention, the commanding officer of the Gendarmerie unit involved decided that the force used had been lawful and proportionate.

On 12 January 2007 the Ministry of Internal Affairs forwarded the minutes of the on-site investigation to the Niš Municipal Public Prosecutor’s Office (“NMPPO”). These minutes were accompanied by several police reports, photographic documentation, and a statement listing the objects which had been found in prison following the police intervention.

On 8 March 2007 the NMPPO requested information from the police concerning the identity of the injured persons and the reasons for the application of coercive measures.

Between 29 March and 11 May 2007 the applicants lodged their criminal complaints against unnamed police officers and a number of prison guards. The latter were, for the most part, identified by their respective first names and/or nicknames. The applicants urged the NMPPO to: (i) establish the full identities of all officials who had participated in their abuse; (ii) obtain the relevant medical records documenting their injuries; (iii) hear a number of other prisoners who had witnessed their ill-treatment; and (iv) ultimately, press criminal charges against all those responsible.

On 4 April 2007 the NMPPO ordered the police to submit the reports prepared in accordance with Article 86 of the Police Act (see paragraph 53 below).

On 25 April 2007 the police provided the NMPPO with a list of prisoners who had been injured on 24 November 2006 and subsequently treated at the Niš Hospital. The following applicants were among them: Mr Bajram Baždar, Mr Nenad Đokić, Mr Predrag Aleksić, Mr Robert Franc, and Mr Srđan Lomigora. They were all certified as having sustained different kinds of bruises and/or excoriations. On the same occasion the police identified the twelve prison guards to whom the applicants had referred in their criminal complaints.

On 7 May and 20 June 2007 the NMPPO requested the police to interrogate the prison guards in question.

On 4 August 2007 the police submitted a report, based partly on statements apparently given by a number of prisoners, to the effect that there had been several violent clashes between the various groups of prisoners on 17, 18 and 23 November 2006, resulting in serious injuries and a criminal prosecution. The twelve prison guards were also questioned and all denied ill-treating the applicants.

On 10 October 2007 the NMPPO requested the police to hear the applicants and the eyewitnesses specified in the criminal complaints.

On 5, 8, 15 and 19 November 2007 police interviewed the following twenty-five applicants on the premises of the Niš Penitentiary: Mr Srđan Lomigora, Mr Siniša Stanković, Mr Vladimir Ivljanin, Mr Miloš Jurišić, Mr Bratislav Rajković, Mr Slađan Matić, Mr Ivan Šekularac, Mr Vladimir Vasiljević, Mr Qerim Binaj, Mr Ivica Jonović, Mr Dejan Stojanović, Mr Branislav Radulović, Mr Zoran Zdravković, Mr Vukašin Kostić, Mr Goran Ristić, Mr Ivan Tanasković, Mr Bajram Baždar, Mr Minuš Belilović, Mr Zoran Vasić, Mr Ognjen Vujović, Mr Aleksandar Simonović, Mr Ivan Gajić, Mr Zoran Marković, Mr Slaviša Strugar and Mr Dane Glušica. All, except for Mr Aleksandar Simonović, confirmed that they had been abused as described at paragraph 13 above. Some also confirmed having witnessed the abuse suffered by other applicants and identified the prison guards in question. Mr Aleksandar Simonović, for his part, refused to give a statement to the police, explaining that he would only testify before a court of law.

On 5 December 2007 the NMPPO decided to reject the applicants’ criminal complaints. In so doing, it took into account, inter alia, the statements given by the prison guards, the available medical documents, the on-sight investigation, and the conclusion of the police officers’ commander to the effect that the force used had been lawful and proportionate. Concerning the injuries sustained by the applicants, the NMPPO opined that they had been caused by fights between the prisoners themselves, their falling down the stairs or against the furniture in the course of the operation and/or the prisoners’ resistance to the police who had been trying to restore order to the Niš Penitentiary. Lastly, the NMPPO noted that the proportionality of the entire intervention was best evidenced by the fact that despite the large number of prisoners involved, of which some had been armed and dangerous, and the scale of the intervention only a small number of persons had been injured, sustaining, as they did, mostly slight bodily harm.

On 11 December 2007 the applicants requested from the investigating judge of the Niš Municipal Court to establish the identity of all police officers and prison guards concerned, with the intention of starting a “subsidiary prosecution” against them (see paragraphs 46 and 47 below). The applicants stated that they knew the prison guards by their first names or nicknames only, while the identity of the police officers could be established through their commanding officer.

On 17 April 2008, despite a prior negative opinion expressed by the investigating judge, the pre-trial Chamber of the Niš Municipal Court ordered that the applicants be heard (see paragraph 47 below).

On 19 May and 2 June 2008, on the premises of the Niš Penitentiary, the investigating judge of the Niš Municipal Court heard the following applicants: Mr Zoran Marković, Mr Dejan Stojanović, Mr Nenad Đokić, Mr Ivan Gajić, Mr Bojan Vučković, Mr Branislav Radulović, Mr Vladimir Vasiljević, Mr Minuš Belilović, Mr Ivan Šekularac, Mr Zoran Antić, Mr Nenad Jovanović, Mr Slaviša Strugar, Mr Ivan Tanasković, Mr Aleksandar Simonović, Mr Siniša Stanković, Mr Saša Stevanović, Mr Ivica Jonović, Mr Vukašin Kostić, Mr Bajram Baždar, Mr Zoran Vasić, Mr Ognjen Vujović and Mr Qerim Binaj. All applicants, except for Mr Minuš Belilović, Mr Zoran Antić, Mr Nenad Jovanović, Mr Aleksandar Simonović and Mr Vukašin Kostić recounted the alleged abuse suffered at the hands of the police officers and/or prison guards. Some of them identified, by first name or nickname, the prison guards in question but none could provide any details regarding the identity of the police officers since they had visors covering their faces. Mr Minuš Belilović, however, stated that despite having been ill-treated by the police he did not want anyone to be convicted for the incident and had therefore decided to withdraw his complaint. Mr Zoran Antić and Mr Nenad Jovanović stated, respectively, that they were not the persons of the same name and surname who had complained of police brutality. Mr Aleksandar Simonović described his alleged ill-treatment by the police and prison guards but stated that “out of fear” he did not want to name the persons concerned. Mr Vukašin Kostić related that he was sorry to have been involved in the incident at all and would like to withdraw his criminal complaint.

Though duly informed of the hearing held on 2 June 2008, the applicant’s counsel did not attend it. On 3 June 2008 he informed the investigating judge that he had had to attend another hearing, in a different case, scheduled earlier.

On 3 June 2008 the investigating judge invited the applicants’ counsel to provide the court with information as to the whereabouts of a number of applicants who had in the meantime been released or transferred to another penitentiary.

On 16 June 2008 the applicants’ counsel responded by stating that he was not obliged to comply with this request. The investigating judge should instead have addressed his request to the Niš Penitentiary.

On 30 June and 2 July 2008 the Zabela Penitentiary and the Vranje District Prison informed the investigating judge that four applicants, Mr Miloš Jurišić, Mr Vladimir Ivljanin, Mr Robert Franc and Mr Dane Glušica, were not in their custody.

On 4 July 2008 the investigating judge heard another two applicants, Mr Srđan Lomigora and Mr Zoran Zdravković, in his own office. They recounted the abuse allegedly inflicted by the police and/or the prison guards but could not identify the police officers because of their visors. Mr Zoran Zdravković further stated that since he had only recently arrived to the Niš Penitentiary he could not identify the prison guards in question.

On the same day the Niš Penitentiary informed the investigating judge that out of the twelve applicants who had yet to be heard some had been moved to other penitentiaries, specifying which, and some released, specifying their home addresses. It subsequently transpired that one of these applicants, Mr Ramadan Ljatifi, had escaped from prison.

On 18 July 2008 the investigating judge of the Raška Municipal Court, acting on the request of the Niš Municipal Court, heard another applicant, Mr Darko Savić, who described the alleged abuse suffered in the course of the police intervention. He could not, however, identify the officers because of their visors.

Between 5 September and 5 December 2008 the investigating judge of the Niš Municipal Court received minutes of the interrogations of another seven applicants, specifically Mr Vladimir Ivljanin, Mr Adnan Habimi, Mr Miloš Jurišić, Mr Zoran Matović, Mr Robert Franc, Mr Bratislav Rajković and Mr Dane Glušica, carried out before the municipal courts in Prokuplje, Leskovac, Kraljevo, Sremska Mitrovica and Požarevac. All applicants reaffirmed that they had been beaten by the police and/or prison guards during the intervention and all, except for Mr Miloš Jurišić, identified by name the prison guards who had taken part in the alleged abuse. Mr Robert Franc further gave a physical description of one of the police officers who had allegedly ill-treated him since this officer’s face had been visible. Mr Vladimir Ivljanin, in addition, provided a detailed written statement containing a thorough account of his alleged abuse during the intervention and subsequently. In support of these assertions he offered the names of the prison guards in question, the name of the police officer who had allegedly beaten him, a list of eleven prison guards who could allegedly confirm that he had been denied medical assistance, and the names of several dozen prisoners and prison gourds who had witnessed his alleged abuse and/or seen his injuries.

On 10 November 2008 applicant Mr Ivica Jonović withdrew his request filed with the investigating judge.

On 22 December 2008 the investigating judge informed the applicants’ counsel that he had complied with the instructions of the pre-trial Chamber and that it was now up to the applicants to decide whether to take over the prosecution of the case in the capacity of subsidiary prosecutors within a period of eight days (see paragraphs 46-49 below).

On 31 December 2008 the applicants’ counsel complained to the investigating judge that he was effectively deprived of the possibility to take over the prosecution of the case on behalf of his clients. Specifically, the investigating judge had, in breach of Articles 257 and 259 of the Code of Criminal Procedure, failed to provide him with the case file which could have enabled him to be informed of the available evidence and of the identities of the perpetrators in question (see paragraphs 48 and 49 below). Also, a period of eight days was simply too short.

On 8 January 2009 the investigating judge addressed the applicants’ counsel. He stated, inter alia, that the latter had shown very little interest in the case to date, having never sought access to the case file or attended the hearings. Moreover, some of the applicants had themselves indicated that they had lost all contact with their lawyer. Finally, the investigating judge recalled that counsel acting on behalf of subsidiary prosecutors were not entitled to be provided with the case file but could review it on the court’s own premises.

On 31 January 2007 the NMPPO decided that there were no grounds to bring a criminal case against any of the prisoners involved in the revolt and explained that they had never had the intent to use force in order to escape from prison which was a necessary precondition for the existence of the crime provided for in Article 338 of the Criminal Code (see paragraph 44 below).

On 21 January 2009 a number of applicants, specifically Mr Adnan Habimi, Mr Ljubomir Simić, Mr Srđan Lomigora, Mr Bojan Vučković, Mr Bajram Baždar, Mr Branislav Radulović, Mr Darko Savić, Mr Qerim Binaj and Mr Nenad Đokić, requested from the Niš Hospital, through their counsel, to provide them with copies of their respective medical files. On 23 January 2009, however, the Niš Hospital declined to do so since this would be in breach of Article 37 of the Health Care Act (see paragraph 55 below).

Based on the copies of the partly inconsistent documents containing medical information, received by the Court after the communication of the present application, the Government maintained that between 24 November and 30 November 2006 the following applicants had not received any medical treatment or, if they had, no physical injuries had been recorded in the course of the examination: Mr Miloš Jurisić, Mr Ramadan Ljatifi, Mr Vladimir Vasiljević, Mr Ivica Jonović, Mr Nenad Jovanović, Mr Vukašin Kostić, Mr Ivan Tanasković, Mr Minuš Belilović, Mr Ivan Gajić, Mr Slaviš Strugar, Mr Zoran Matović and Mr Zoran Antić. The remaining applicants, in view of the available documentation, seemed to have sustained injuries essentially corresponding to those described at paragraph 13 above. Three applicants, Mr Adnan Habimi, Mr Bojan Vučković and Mr Mr Srđan Lomigora, also submitted photographs of their respective injuries.


CASE OF VEIGA DA SILVA BRAGA v. PORTUGAL

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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

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

On 6 May 2011 the applicant brought enforcement proceedings against her former husband before the Braga Family Court seeking the payment of child support amounting to 3,600 euros (EUR).

On 27 February 2013 the applicant was notified that her former husband had no attachable assets.

On 12 June 2015 the proceedings were extinguished as no attachable assets were specified pursuant to Article 750 § 2 of the Code of Civil Procedure (see paragraph 8 below).


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

The applicant was born in 1939 and lives in Ljubljana.

On 1 December 1993 the applicant instituted proceedings before the Ljubljana Labour and Social Court against his employer, company K. and four further defendants.

On 28 June 1994 the Convention came into force in respect of Slovenia.

On 4 August 1994 the first defendant, company K. replied to the claim.

On 28 March 2003 the applicant was requested to supplement or amend his claim.

On 14 April 2003 the applicant lodged his submissions by which he withdrew the action against the second, third, fourth and fifth defendant and proposed to determine another court with subject matter jurisdiction.

On 15 July 2003 the court stayed the proceedings against the second, third, fourth and fifth defendant.

On 23 September 2003 the Supreme Court issued a decision by which it dismissed the applicant’s request to determine another court with subject matter jurisdiction.

On 23 March 2004 the court adjourned the first main hearing at the request of both parties.

On 31 May 2004 the settlement hearing and the first main hearing were held.

On 24 June 2004 the second main hearing was held.

On 15 February 2005 the scheduled hearing was postponed at the applicant’s request.

Between 14 April 2005 and 14 September 2006 further four hearings were held.

On 21 September 2006 the Labour and Social Court partially upheld the applicant’s claim and dismissed the remainder of the claim. Both parties appealed.

On 18 January 2007 the Higher Labour and Social Court dismissed the appeals and issued a decision that an appeal on points of law would not be allowed in the present case. The applicant appealed.

On 24 April 2007 the Supreme Court dismissed the applicant’s appeal against the decision that appeal on points of law was not allowed. The applicant lodged a constitutional appeal.

On 17 October 2008 the Constitutional Court dismissed the applicant’s constitutional appeal.


Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo

The applicants, Mr Paolo Guiso (“the first applicant”) and Mr Alessando Guiso (“the second applicant”) are Italian nationals who were born in 1962 and 1960 respectively. Mrs Vincenza Consiglio (“the third applicant”) was an Italian national who was born in 1929. She died on 2 February 2008. The first and second applicants are her heirs, and expressed their wish to pursue the proceedings before the Court. They were represented before the Court by Mr. P. Guiso, a lawyer practising in Nuoro.

The applicants were the joint owners of various parts of different plots of building land in Nuoro.

The plots in question – measuring a total surface area of 13,614 square metres – were recorded in the land register as Folio no. 43, parcel nos. 1141, 1147, 1148, 1339, 1136, 1137, 1143, and 1146.

By different orders issued between March and October 1991 Nuoro City Council approved a project to build a residential complex on the applicants’ land.

By four orders issued on 18 October 1991 by the mayor of Nuoro, through an expedited procedure and on the basis of a public interest declaration, the Nuoro municipality was authorised to take possession of the above-mentioned plots of land, with a view to subsequently expropriating them. The deadline for issuing a formal expropriation order was 31 December 1995.

In November 1991 the authorities took physical possession of the land and began the building works.

By an order issued on 12 December 1995 by Nuoro City Council, the deadline for issuing the expropriation order was extended to 31 October 1996.

By an order of 21 August 1996 Nuoro City Council further extended the deadline for issuing the expropriation order.

On 11 October 1996 an expropriation order was issued in respect of the land.

On 24 January 1997 the applicants lodged an application with the Sardinia Regional Administrative Court (“the Regional Administrative Court”), contesting the lawfulness of the mayor’s orders of 18 October 1991 and the orders extending the deadline for issuing the expropriation order.

By a judgment of 12 May 1999 the court found that the orders extending the deadline for issuing the expropriation order had been unlawful, and that the expropriation order of 11 October 1996 had consequently also been unlawful.

On 22 November 2000 the applicants applied to the Regional Administrative Court for compensation for their being unlawfully deprived of their property, relying on the same court’s judgment of 12 May 1999. In this connection, they sought an amount equal to the property’s market value on the date when the land had been irreversibly altered, plus a sum reflecting an adjustment for inflation and statutory interest. They further contended that the application of the “constructive expropriation” rule, which was likely to be applied in their case, had been found by the Court to be incompatible with Article 1 of Protocol No. 1 to the Convention.

On an unspecified date the court ordered an expert valuation of the land. A report produced in September 2004 stated that the affected surface area of the land was equal to 13,614 square metres, and that the market value of the land in May 1996 had been 122.32 euros (EUR) per square metre.

By a judgment of 24 January 2005 the court found that, pursuant to the constructive expropriation rule (occupazione appropriativa), the applicants were no longer the owners of the land, which had become the property of the Nuoro municipality following completion of the public works. It dismissed the applicants’ argument that the constructive expropriation rule was incompatible with Article 1 of Protocol No. 1 to the Convention. However, the court conceded that, as the transfer of property had been unlawful, the applicants were entitled to compensation. In this connection, it relied on the expert report which had assessed the market value of the land at EUR 122.32 per square metre. However, the court did not award compensation reflecting the market value, but instead proceeded to make an award based on the criteria contained in Article 5 bis of Legislative Decree no. 333 of 11 July 1992, as amended by Law no. 662 of 1996. All amounts were to be adjusted for inflation and include statutory interest from the date the occupation of the applicants’ land had ceased to be lawful, which the court identified as 1 January 1996.

On 24 May 2005 the applicants lodged an application with the Consiglio di Stato. They contested the lower courts’ legal classification of how they had been deprived of their property and complained that the reduction in their compensation was incompatible with their right to property. They claimed, inter alia, that they were entitled to compensation corresponding to the market value of the land, and a sum for loss of enjoyment of the land. They also complained about the fact that the award would be subject to taxation.

On 16 February 2006 the Nuoro municipality paid the applicants the amounts due under the judgment of the Regional Administrative Court. The sum they received jointly amounted to EUR 429,814.64. Tax at a rate of 20% was deducted at source from these sums.

On 2 February 2008 the third applicant died.

On 2 October 2009 the Consiglio di Stato issued a decision declaring that it did not have jurisdiction to decide the applicants’ claim.

The applicants lodged an application with the Court of Cassation in order to settle the issue of jurisdiction.

On 12 January 2011 it ruled, sitting as a full court (Sezioni Unite), that the administrative courts had jurisdiction to decide the applicants’ claim for compensation, as the issue at stake concerned the unlawful exercise of public authority.

On an unspecified date the applicants resumed their appeal before the Consiglio di Stato. They contested the lower courts’ legal classification of how they had been deprived of their property and complained that the reduction in their compensation was incompatible with their right to property. They asked the court to award an amount corresponding to the property’s market value. They also complained about the fact that the award would be subject to taxation.

By a judgment delivered on 12 July 2011, filed with the registry on 2 November 2011, the Consiglio di Stato confirmed that the applicants had been deprived of their property unlawfully. It further drew on the Constitutional Court’s judgment no. 349 of 24 October 2007, whereby Article 5 bis of Legislative Decree no. 333 of 11 July 1992, as amended by Law no. 662 of 1996, had been declared unconstitutional, and held that the applicants were entitled to compensation corresponding to the full market value of the property, minus what had already been paid to them under the judgment of the Regional Administrative Court. The court further stated that the applicants were entitled to a sum reflecting an adjustment for inflation as well as statutory interest from the date that they were deprived of their property. It also awarded them EUR 50,000 in compensation for non-pecuniary damage. The court stated that it lacked jurisdiction to examine the complaint about prospective taxation.

On 25 May 2012 the Nuoro municipality paid the applicants the remaining amounts due to them under the judgment of the Consiglio di Stato, which amounted to EUR 480,757.76. Tax at a rate of 20% was deducted at source from these sums.

The relevant domestic law and practice concerning constructive expropriation is to be found in Guiso-Gallisay v. Italy ((just satisfaction) [GC], no. 58858/00, §§ 18-48, 22 December 2009).

In judgments nos. 348 and 349 of 22 October 2007, the Constitutional Court held that national law had to be compatible with the Convention as interpreted by the Court’s case-law, and consequently declared Article 5 bis of Legislative Decree no. 333 of 11 July 1992, as amended by Law no. 662 of 1996, unconstitutional.

In judgment no. 349 it noted that the insufficient level of compensation provided for by Law no. 662 of 1996 was contrary to Article 1 of Protocol No. 1 to the Convention and Article 117 of the Italian Constitution, which required compliance with international obligations.

A number of changes in domestic law occurred following the Constitutional Court’s judgments. Section 2/89(e) of the Finance Act (Law no. 244) of 24 December 2007 established that, in cases of constructive expropriation, the compensation payable had to correspond to the market value of the property in question and could not be reduced.

Law no. 413 of 30 December 1991 (hereinafter “Law no. 413/1991”) was created, inter alia, to broaden the tax base and streamline, facilitate and strengthen tax administration.

The relevant parts of section 11(5) provide that capital gains (plusvalenza) on compensation for expropriation or unlawful forms of acquisition of property (somme dovute per effetto di acquisizione coattiva conseguente ad occupazione di urgenza divenute illegittime) paid to individuals not operating a business are taxable under the Consolidated Income Tax Act (Testo Unico delle Imposte sui Redditi).

As to the practical means of enforcement of the tax, section 11(7) provides that when paying the compensation mentioned in section 11(5), including, inter alia, compensation for constructive expropriation (risarcimento danni da occupazione acquisitiva) the authorities entrusted with making the payment (enti eroganti) must deduct tax at source at a rate of 20% from the entire sum. It is open to the taxpayer to opt for ordinary taxation in his or her annual tax return, in which case the sum deducted at source will be considered as an advance on the final tax payment due.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)

Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1953 and lives in Tula.

The applicant is a lawyer. In 2003-05 the applicant, together with the lawyer Ms V., represented Ms D. in civil proceedings before the Proletarskiy District Court of Tula.

On 13 April 2005 Judge S. of the District Court sent a complaint to the President of the Tula Bar Association. She alleged that the absence of the applicant and Ms V. without good cause had led to delays in the proceedings. She asked the President to institute disciplinary proceedings against the lawyers and to inform them of the next hearing in Ms D.’s case. In particular, she stated as follows:

“I draw your attention to the conduct of the lawyers Mr Zubarev and Ms V., which is not compatible with the Lawyers’ Code of Ethics. It has encroached on the rights of the person they were representing before the court ... and has led to unjustifiable delays in the examination of the merits of the case. At the same time [they] have systematically written complaints in Ms D.’s name to various authorities and newspapers, attempting in that way to shift the responsibility for their own incompetence and lack of professionalism onto the judicial system, and thereby expressing contempt for the court.”

The parties did not inform the Court whether there was any follow-up to Judge S.’s complaint on the part of the Bar Association.

Being of the opinion that the above-cited paragraph of Judge S.’s complaint tarnished their professional reputation, the applicant and Ms V. brought a defamation action against her in accordance with Article 152 of the Civil Code. They also sought a compensation award in respect of nonpecuniary damage.

On 3 May 2005 the District Court refused to accept the applicant’s claims for consideration. The court noted that current laws did not define the grounds or procedure for adjudicating that type of claim. In particular, the court noted as follows:

“According to Article 16 of the Law of the Russian Federation on the Status of the Judiciary of the Russian Federation, a judge cannot be held liable for an expression of opinion in the course of the administration of justice or for the judgment handed down [by him or her] unless he or she has been found guilty in criminal proceedings concerning the abuse of power or the adoption of an unlawful verdict, judgment or other judicial act.

Pursuant to Article 1070 § 2 of the [Civil Code] of the Russian Federation, ... [d]amage caused within the framework of the administration of justice shall be compensated, provided that the guilt of the judge has been established in a final criminal conviction.

The claims lodged by [the applicant] and Ms V. cannot be considered in civil proceedings given that the issue of a judge’s liability for actions taken in the course of the administration of justice must be adjudicated purely in accordance with the procedure prescribed by law. [However], current legislation does not lay down the grounds or the procedure for compensation by the State for damage caused by a judge’s unlawful actions (inaction) (including the rules governing the jurisdiction of this type of case).”

Further to an appeal by the applicant, on 16 June 2005 the Tula Regional Court upheld that decision. The court noted, in particular:

“Pursuant to Article 134 § 1 (1) of the [Code of Civil Procedure] of the Russian Federation, the judge must dismiss a claim [without consideration on the merits] if it cannot be adjudicated in civil proceedings but should instead be considered and adjudicated by way of another judicial process.

Referring to Article 16 of the Law of the Russian Federation on the Status of the Judiciary of the Russian Federation, the [first-instance] court established that the claims lodged by Ms V. and [the applicant] concerned the judge’s liability and the compensation for damage caused by the judge’s actions (failure to act). [It] correctly indicated in its decision that the judge should be immune from liability for the actions taken in the course of the administration of justice unless she or he had been found guilty of criminal abuse of power in a final criminal conviction.

Being mindful of the fact that the issue of the judge’s liability for actions taken in the course of the administration of justice can be examined only in accordance with the procedure prescribed by law, the court has rightly dismissed the claims lodged by [the applicant] and Ms V. [without consideration on the merits], noting correctly that current legislation had not yet laid down the grounds or the procedure for compensation by the State for damage caused by a judge’s unlawful actions (inaction) (including the rules governing the jurisdiction of this type of case).”


Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1975 and lives in Tauragė.

On 23 July 2006 officers of the State Border Guard Service were patrolling the border between Lithuania and Russia in the Jurbarkas Region, by the river Nemunas. At around 2 a.m. the officers noticed several cars approaching the river and heard the sound of a boat in the water. The officers approached one of the cars and found cartons of cigarettes inside, which they suspected had been smuggled from Russia. The three individuals who had been in the car, K.B., E.L. and M.G., were arrested. During the arrests K.B. received a gunshot wound and the officers took him to a hospital in Jurbarkas (hereinafter “the hospital”).

At around 3.30 a.m. E.L.’s mobile telephone began to ring and a border officer answered it. The caller stated that he would “find and shoot” the officer who had injured K.B. A subsequent forensic examination identified the caller’s voice as probably (tikėtinai) that of the applicant.

At around 4 a.m. the applicant arrived at the hospital and approached the border officers guarding K.B. The applicant used various swearwords towards the officers, demanded that they release K.B. and said that he would beat them up or kill them. It appears that no physical altercation occurred between the applicant and the officers and that the applicant subsequently left the hospital.

On the same day the State Border Guard Service opened a pre-trial investigation against the applicant and several other individuals. The applicant was suspected, among other things, of threatening to murder or seriously injure law enforcement officers and obstructing and verbally abusing them in the exercise of their official duties, under Articles 145 § 1 and 231 § 2 of the Criminal Code (see paragraphs 21-22 below).

On 5 December 2006 the Jurbarkas district prosecutor (hereinafter “the prosecutor”) discontinued the pre-trial investigation against the applicant for lack of evidence. As to the words and statements used by the applicant in his interaction with the border officers (see paragraphs 7 and 8 above), the prosecutor noted that the applicant could have committed the administrative offence of minor hooliganism under Article 174 of the Code of Administrative Offences (see paragraph 26 below). The prosecutor’s decision was forwarded to the State Border Guard Service, instructing them to decide whether administrative proceedings against the applicant should be instituted. However, three days later a senior prosecutor annulled that decision and reopened the pre-trial investigation.

On an unspecified date administrative proceedings were instituted against the applicant; the information available to the Court does not indicate which authority was in charge of them. On 18 December 2006 the Jurbarkas District Court held that the applicant had committed the administrative offence of minor hooliganism when he had used swearwords in the presence of border officers in the hospital (see paragraph 8 above). He was given a warning. The decision was not appealed against and became final after the expiry of the ten-day time-limit for appeal.

On 6 August 2008 the prosecutor charged the applicant with threatening to murder or seriously injure law enforcement officers, and insulting them in the exercise of their official duties, under Articles 145 § 1 and 290 of the Criminal Code (see paragraphs 21 and 24 below). The indictment alleged that the applicant had committed the offences in the hospital on 23 July 2006 (see paragraph 8 above). The case was transferred to the Jurbarkas District Court for examination on the merits but in June 2009, at the prosecutor’s request, the case was returned for additional investigation.

On 23 October 2009 the prosecutor discontinued the pre-trial investigation, stating that the applicant’s actions had not amounted to the criminal offence of threatening to murder or seriously injure the officers because there had not been any objective circumstances indicating that he could have carried out those threats. The prosecutor also held that the applicant could not be prosecuted for insulting the officers because he had already been given an administrative penalty for the same conduct (see paragraph 11 above) – continuing the criminal proceedings against him would be in breach of the ne bis in idem principle.

On 11 June 2010 the Prosecutor General’s Office annulled the prosecutor’s decision and reopened the investigation, noting that the administrative penalty given to the applicant “did not automatically preclude” the criminal proceedings against him.

The applicant appealed against that decision to a senior prosecutor at the Prosecutor General’s Office but on 30 June 2010 his appeal was dismissed. The senior prosecutor held that, in line with the case-law of the domestic courts, an administrative penalty did not preclude the institution of subsequent criminal proceedings concerning the same conduct; however, in order to comply with the ne bis in idem principle, if a person was found guilty in the criminal proceedings, the previous administrative penalty had to be annulled or, if that was impossible, it had to be taken into account during sentencing. Accordingly, the prosecutor considered that the administrative penalty given to the applicant did not preclude the continuation of the criminal proceedings against him.

On 2 November 2010 the Jurbarkas District Court upheld the applicant’s appeal and overruled the prosecutor’s decision of 30 June 2010. It held that criminal proceedings against the applicant could be continued only after the administrative penalty had been annulled, but since that had not been done, any further proceedings concerning the same conduct would be in breach of the ne bis in idem principle. However, on 8 December 2010 the Kaunas Regional Court quashed the lower court’s decision, reiterating the reasoning of the prosecutor’s decision of 30 June 2010 (see paragraph 15 above). That decision was not subject to any further appeal.

In June 2011 the case was transferred to the Jurbarkas District Court for examination on the merits. The amended indictment alleged that the applicant had committed the offences set out in Articles 145 § 1 and 290 of the Criminal Code because of the words and statements which he had used when speaking to the border officers on the telephone (see paragraph 7 above) and in the hospital on 23 July 2006 (see paragraph 8 above).

On 6 September 2011 the Jurbarkas District Court terminated the criminal proceedings against the applicant as time-barred. That decision was not appealed against and became final.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants complained under Article 3 of the Convention of the inadequate conditions of their detention. They also raised other complaints under the provisions of the Convention.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney

The applicant, Mr Raimonds Merzaļijevs, is a Latvian national who was born in 1951 and is serving a prison sentence in Riga. He was represented before the Court by Ms I. Nikuļceva, a lawyer practising in Riga.

The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine, and subsequently by Ms K. Līce.

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

The applicant was arrested on 18 December 2006.

Between 16 October 2008 and 15 April 2010 he was held in the Grīva wing of Daugavgrīva Prison (Daugavgrīvas cietums).

Between 30 October and 13 November 2009 the applicant was subjected to strip searches. In particular:

- on 30 October 2009 owing to his being escorted from the Grīva wing to Daugavpils wing in Daugavgrīva Prison;

- on 2 November 2009 because he was being escorted from Daugavgrīva Prison to a court in Rēzekne;

- on 6 November 2009 for the purposes of being escorted from the court in Rēzekne to Daugavgrīva Prison; in his letter to the Court of 28 May 2010 the applicant submitted that on 6 November 2009 he had not been escorted anywhere; and

- on 13 November 2009 – twice, prior to being escorted to a court in Daugavpils and upon his return from the court. In their additional observations, the Government specified that the first search had been partial and that the second search had taken place on the premises of the courthouse.

The applicant submitted that on 13 November 2009 he had been searched a further five times, when being taken from the holding cell to the courtroom and back on two occasions, and prior to his return to the prison. As a result, on 13 November 2009 he had been searched on a total of seven occasions, on three of which he had been directed to strip naked. In response to the Government’s observations, he averred that on 13 November 2009 he had been searched eight times and each time had been told to undress.

According to the Government, body searches in Daugavgrīva Prison were conducted in a special room in the prison admissions unit, by two prison warders, one of whom carried out the search while the other filled out the forms. During the search on 13 November 2009 on the premises of the courthouse the applicant had been asked to squat once.

The applicant, however, stated that he had been searched in the presence of other inmates and, while naked, had been told to squat up to five times or to lie down on the floor. As two or three inmates had been searched at the same time, seven or eight prison warders had been present.

The applicant submitted that for the whole day on 13 November 2009, when he was taken for a court hearing to Daugavpils, he had not been provided with food.

Referring to the escort log of Daugavgrīva Prison, the Government contended that on 13 November 2009 the applicant had left the prison at 8.55 a.m. and had returned the same day at 11.35 a.m. They stressed that according to the order issued by the governor of Daugavgrīva prison on 1 November 2008, breakfast was served between 7 a.m. and 7.40 a.m. and lunch between 12 p.m. and 1 p.m. The applicant had been removed from his prison cell at around 8.20 a.m. and had returned to the cell at around noon.

The applicant disagreed. Replying to the Government’s observations, he stated that, owing to the length of the various procedures prior to leaving the prison premises, it was not even theoretically possible that on the critical day, 13 November 2009, he could have had breakfast. Furthermore, breakfast was served to inmates in their cells, which the applicant had left at around 6.30 a.m. He had returned to his cell at around 4 p.m., after lunch had been served. In addition, during the journey to the court in Daugavpils and his time there he had had no access to drinking water.

The applicant submitted that when he had been placed in Daugavgrīva Prison the temperature in the cells had been low, between five and eight degrees Celsius. A member of the prison staff, however, had refused to issue him with winter clothing, stating that he already had his own clothing. In the applicant’s submission, he had indeed been wearing a leather jacket, but it had been for the summer only and had subsequently been taken away from him. Furthermore, during the search on 6 November 2009 the applicant’s autumn jacket had been taken away. He had been left with a summer jacket without any lining.

The applicant submitted that on certain dates in January 2010 he had been required to shovel snow in the prison yard. In his application to the Court the applicant specified two sets of dates, namely 14, 15 and 18 January 2010 and 15, 18 and 19 January 2010. He could not refuse to perform that work. If he had, he would have been liable to a penalty of fifteen days’ confinement in a disciplinary cell for disobeying prison orders. The temperature outside had been between minus fifteen and minus twenty degrees Celsius and the applicant had suffered greatly from the cold. Furthermore, he had not been in good health.

As a result, he had once again started having problems with his heart. On 19 January 2010 he had been placed in the prison hospital.

On 28 January 2010 the applicant’s hospital cell had been inspected by three officers. At their request the applicant had also relayed to them his complaint about the jacket confiscated on 6 November 2009. Although the officers promised to clarify the matter, the applicant had not received any response.

On 1 February 2010 the applicant was discharged from the prison hospital.

According to the applicant’s submissions in his application to the Court and his comments in reply to the Government’s observations, on several occasions he had raised the issue of the cold conditions in the prison and the lack of winter clothing. In autumn 2008 he had submitted a written complaint to the authorities in Daugavgrīva Prison. On 7 September 2009 he had written a letter to the Prisons Administration and in November 2009 he had complained to prison staff. In December 2009 he had complained to the commission during their inspection of his prison cell. He had also complained verbally and in writing at other times but had not recorded those complaints.

The Government furnished a copy of a handwritten complaint by the applicant dated 5 January 2009, addressed to the Ministry of Justice. The stamp on the complaint indicated that it had been received at the Ministry of Justice on the much later date of 14 January 2010. In his reply to the Government’s observations the applicant stated that he had written to the Ministry of Justice on 5 January 2010.

In the complaint he stated that during the search on 6 November 2009 his autumn jacket had been taken from him. The prison warders had explained that he had two jackets but that by law he could keep only one. The applicant had tried to explain that the other jacket was in fact a summer pullover, but to no avail. As a result, he had been prevented from taking walks during the winter.

In the same complaint he stated that in mid-December 2009 he had raised the issue of the jacket with prison staff. He had been told that he needed to write a request to the prison governor and that “maybe [he] would be given the jacket”. In reply to the applicant’s question as to how soon his request would be reviewed, he had been told “within thirty days”. In his complaint to the Ministry of Justice the applicant criticised the fact that he would therefore receive his jacket in mid-February 2010.

On 25 January 2010 the Ministry of Justice informed the applicant that the matter of appropriate clothing fell within the competence of the Prisons Administration, to which it had accordingly been transmitted for examination. The Ministry advised the applicant that the conduct of a member of prison staff could be the subject of a complaint to the head of the Prisons Administration and subsequently to a court.

In the course of examination of the applicant’s complaint, the Prisons Administration requested information from Daugavgrīva Prison on 5 February 2010. On 16 February 2010 the prison replied that the applicant could request permission in writing to retrieve his personal items from the stores. The applicant however had made no such request. Daugavgrīva Prison further stated that on 10 February 2010 that procedure had been explained to the applicant.

On 24 February 2010 the Prisons Administration replied to the applicant, stating that, according to its information, he had been provided with clothing appropriate to the season. On 10 February 2010 when the procedure for retrieving items from the stores had been explained to the applicant, he had refused to write any request. The possibility of retrieving clothing from the stores could be considered on submission of the relevant request by the applicant.

In his reply to the Government’s observations the applicant disputed the assertion that the procedure for retrieving his clothes had been explained to him on 10 February 2010. He further maintained that by law he was not required to submit a written request asking the prison to provide him with clothing. That duty had to be fulfilled by the prison of its own initiative. Furthermore, he was entitled to submit such a request verbally.

In his letter to the Court dated 26 May 2010 the applicant stated that on 3 March 2010 he had submitted a written request to the governor of Daugavgrīva Prison, indicating that he lacked seasonally appropriate clothing and that anyone who had informed the Prisons Administration to the contrary had been a liar.

The applicant indicated that in response to that request he had been summoned on 5 March 2010 to the office of his prison unit inspector. Because the applicant had accused a source of information of lying he had been threatened with placement in an isolation cell and with beating. The inspector had then examined the applicant’s belongings. Having found no winter clothing he had questioned the applicant’s cellmates. The applicant had then been taken to the stores and given all his clothes.

The applicant submitted that on 16 March 2010 he had written a letter to the Prisons Administration in connection with its reply of 24 February 2010 (see paragraph 24 above), because he considered that the Administration had been misinformed about the matter of his clothing. On 19 March 2010 the letter was returned to the applicant with a request to place it in an envelope and pay for the postage. The letter was accompanied by a note citing Article 50(4) of the Sentence Enforcement Code (Sodu izpildes kodekss) (see paragraph 33 below). The applicant exchanged two days’ worth of white bread rations for an envelope and a stamp and eventually managed to dispatch his letter on 6 April 2010.

It appears that on 22 March 2010 the Prisons Administration responded to a further request by the applicant dated 11 February 2010 regarding the issue of warm clothing. It referred back to its earlier reply of 24 February 2010 (see paragraph 24 above). It indicated that the applicant’s personal items were in the prison stores and that they could be obtained if the applicant sent a written request to the prison governor.

On 11 May 2010 the Prisons Administration replied to the applicant’s request of 6 April 2010 in which he had criticised its response of 22 March 2010. The Prisons Administration did not address that part of the request as it had already responded on the matter.

The Administrative Procedure Law (Administratīvā procesa likums) took effect on 1 February 2004. It provides, among other things, for the right to challenge administrative acts (administratīvais akts) and actions of the public authorities (faktiskā rīcība) before the administrative courts (see D.F. v. Latvia, no. 11160/07, § 40, 29 October 2013, and Melnītis v. Latvia, no. 30779/05, § 24, 28 February 2012).

Section 124 of the Administrative Procedure Law makes a State fee (valsts nodeva) payable for the lodging of a complaint or an appeal in proceedings before the administrative courts. Section 128(3) of the Law reads as follows:

“(3) A court or a judge, in the light of a natural person’s financial situation, may fully or partly exempt the person from the payment of the State fee at the person’s request.”

Article 50(4) of the Sentence Enforcement Code reads as follows:

“A convicted person’s correspondence with State institutions shall be paid for out of the funds of the custodial institution, provided the person concerned does not have funds on his or her own card and he or she is challenging an administrative act or the action of a public authority issued by those institutions or is sending a request for the receipt of State-provided legal aid.”


André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicants are Bulgarian nationals. Their particulars are set out in the appendix. The applicants were represented by Mr M. Ekimdzhiev and Ms G. Chernicherska, lawyers practising in Plovdiv. One of the applicants passed away in 2010 and her heirs, whose names are also indicated in the appendix, expressed the wish to continue the proceedings in her stead.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms L. Gyurova, of the Ministry of Justice.

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

An ancestor of the applicants owned agricultural land on the outskirts of Sofia, which was collectivised in the 1950s. It was initially managed by an agricultural cooperative, but was subsequently, together with other land, allocated to State-owned film studios and became part of what was known as “the Boyana National Film Centre”. At the beginning of the 1990s the State enterprise managing these facilities was transformed into a Stateowned company, initially named Boyana Film EAD and, after its privatisation in 2007, Nu Boyana Film AD.

Following the adoption of the Agricultural Land Act in 1991, which, under certain conditions, provided for the restoration of property titles to agricultural land, on 14 March 1993 the competent body dealing with restitution – the local agricultural land commission – held that the applicants were entitled to restitution in kind of their ancestor’s entire plot, measuring 4,900 sq. m in total.

In 1996 the applicants brought rei vindicatio proceedings against Boyana Film EAD. On 14 October 1998 the Sofia District Court allowed the action in part and ordered the company to hand over possession of 2,830 sq. m of the plot; it found that the company did not hold the remainder of the land, which had been taken by a street. The domestic court observed that the applicants’ property rights had been restored by virtue of the decision of 14 March 1993, whereas the company, which had made no submissions before it, had failed to show that it possessed the land on any valid legal grounds.

The judgment of the Sofia District Court, not having been appealed against, became final on 14 July 1999.

On 20 December 1999 the agricultural land commission issued another decision, restoring the applicants’ property rights in respect of 2,830 sq. m of their original plot, and refusing restitution as regards the remainder. The applicants did not appeal against that decision.

In 2000 they brought enforcement proceedings against Boyana Film EAD, seeking enforcement of the judgment of 14 October 1998. On two occasions, in August 2000 and December 2002, a bailiff formally handed over possession of the plot to the applicants, tracing its borders with poles inserted into the ground, and evicted the company. However, on each occasion the company removed the poles and continued to use the land, which remained within the film studios’ fenced territory.

In a decision dated 7 December 2001 the local mayor ordered that the plot described above be registered in the cadastral plans as the property of the applicants. In 2003 Boyana Film EAD challenged that order before the courts. The ensuing proceedings continued until 31 January 2012, with the courts rejecting the company’s challenge, finding in particular that, as the judgment of 14 October 1998 had already recognised the applicants’ property rights to the plot at issue, the proposed amendment to the cadastral plan was lawful.

In 2007 the company, already named Nu Boyana Film AD, brought court proceedings against the applicants, seeking a declaration that it was the owner of the disputed plot. Having satisfied itself on the basis of expert reports that the plot claimed was identical to the one which had been the subject of the previous proceedings between the same parties, the Sofia District Court found, in a decision of 25 February 2009, that the claim was inadmissible because the matter had already been settled with res judicata effect. That decision became final on 20 January 2010.

In December 2010 the body tasked with maintaining cadastral plans, the Geodesy, Cartography and Cadastre Agency, adopted a new plan for the area, naming the applicants as the owners of the plot at issue. Nu Boyana Film AD applied for the plan to be amended to say that ownership of the plot was “in dispute”. Its application was allowed, by order of the head of the Agency on 11 February 2011. The applicants challenged that order successfully, with the national courts pointing out in their judgments that ownership of the plot was not “in dispute”, particularly as the proceedings regarding amendments of the cadastral plan described in paragraph 10 above were not determinative of any property rights of the parties. The final judgment in that series of proceedings was given on 15 July 2013. In November 2013 the applicants’ representative was informed that the cadastral plans had been amended in accordance with the courts’ findings.

Article 415 § 1 of the 1952 Code of Civil Procedure, in force until 1 March 2008, provided that, in the context of enforcement proceedings, where a person had been ordered to hand over immovable property, a bailiff would evict that person from the property, if necessary forcibly, and formally transfer possession to the claimant. Under Article 418, if the person who had been removed from the property retook possession of it, he or she was to be evicted again. It was expressly noted that, in such a case, the person responsible for unlawfully taking possession could also incur criminal liability under Article 323 § 2 of the Criminal Code.

Similar provisions are contained in Article 522 § 1 and Article 525 of the current Code of Civil Procedure.

Under Article 323 § 2 of the 1968 Criminal Code, it is an offence for any person to take possession of immovable property from which they have been lawfully removed. The offence is punishable by up to three years’ imprisonment and a fine. The offence can also be committed by a representative of the relevant person (Решение № 248 от 14.07.2011 г. на ВКС по н. д. № 1302/2011 г., II н. о., НК).

Under section 109(1) of that Act, an owner may request the cessation of any unjustified action which hinders him or her in the exercise of his or her property rights.

In a 1985 interpretative decision (Тълкувателно решение № 31/84 г. от 6.II.1985 г. по гр. д. № 10/84 г., ОСГК) the former Supreme Court explained that such a claim (actio negatoria) provided protection against unjustified interference – whether direct or indirect – which might prevent an owner from using his or her property to the fullest extent. It pointed out that the claim could be used to declare such interference unlawful and enjoin the persons concerned to stop it and remove its effects.

In a number of cases the domestic courts, examining actions under section 109(1), have ordered the defendants to remove fences constructed by them, obstructing the plaintiffs’ access to their own properties (for example, Решение № 229 от 7.05.2009 г. на ВКС по гр. д. № 511/2008 г., I г. о., ГК; Решение № 37 от 7.03.2014 г. на ВКС по гр. д. № 4245/2013 г., I г. о., ГК; and Решение № 74 от 9.07.2014 г. на ВКС по гр. д. № 6580/2013 г., II г. о., ГК).

Section 59 of the Act is the general provision on unlawful enrichment. It has been relied on in a number of cases concerning unlawful hindrance of the effective enjoyment of a claimant’s right of property, with the courts, as a rule, awarding in damages what has been shown to be the “market rent” for a property for the period at issue (among many others, Решение № 1415 от 23.VIII.1995 г. по гр. д. № 1519/95 г., IV г. о.; Решение № 1937 от 24.XI.1995 г. по гр. д. № 2368/94 г., IV г. о.; Решение № 4 от 23.01.2009 г. на ВКС по гр. д. № 5382/2007 г., II г. о.; Решение № 90 от 8.07.2009 г. на ВКС по т. д. № 3/2009 г., I т. о.; and Решение № 122 от 14.03.2012 г. на ВКС по гр. д. № 1472/2011 г., IV г. о.).


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1965 and lives in Nizhniy Tagil.

On 19 August 2009 the Leninskiy District Court of Yekaterinburg convicted the applicant of massive fraud, an offence punishable with up to ten years’ imprisonment, and sentenced him to five and a half years’ in prison.

During the trial the applicant was represented by his counsel.

On 3 September 2009 the applicant lodged an appeal.

On 23 October 2009 the Sverdlovskiy Regional Court upheld the judgment on appeal. It follows from the appeal judgment that the applicant could follow the appeal hearing by video link from the Yekaterinburg remand prison IZ-66/1. Counsel and prosecutor did not attend the hearing.

On 19 August 2009 the applicant was placed in Yekaterinburg remand prison IZ-66/1 and was held there until 27 October 2009. According to the applicant, conditions of detention there were inhuman and degrading because of overcrowding.


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

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

The applicant was born in 1961. When lodging his application, he was detained in Hagen Prison. He was released on 12 July 2011.

On 18 October 2007 the Aachen District Court authorised criminal investigations against S. and five other persons (not including the applicant) to be conducted by up to five undercover police officers, in accordance with Article 110a § 1 no. 1 and Article 110b § 2 no. 1 of the Code of Criminal Procedure (see paragraphs 24-25 below). Criminal investigation proceedings on suspicion of drug trafficking had previously been instituted against the six suspects. Prior to the District Court’s order, the police’s suspicion against the suspects had been confirmed, in particular, by information obtained via telephone tapping and police surveillance of the suspects.

The police decided to attempt to establish contacts between S. and the undercover agents via the applicant, a good friend of S. and business partner for real estate transactions. The applicant, who had no criminal record, was not, at that time, suspected of any involvement in drug trafficking.

From 16 November 2007 onwards, two undercover police officers, P. and D., established contacts with the applicant. They visited him in the restaurant he ran and pretended to be interested in purchasing real property for running a club. In the following weeks the applicant made a number of offers of real property to the undercover agents and visited the estates with them.

The applicant subsequently established contacts between the two undercover agents and S. for organising an international contraband trade in cigarettes after one of the undercover agents had pretended to have a suitable lorry at hand for transporting the cigarettes abroad. S. refused, however, to communicate directly with undercover agent P. by telephone and proposed to further communicate via the applicant. When undercover agent D. disclosed to the applicant on 23 January 2008 that he considered that the risk of being caught with smuggling cigarettes was too high compared to the possible profits, the applicant disclosed that they (that is, S. and others and himself) would also traffic in cocaine and amphetamine. He stated that he did not want to be involved in the drug trafficking itself, but would only draw commissions. The undercover agents showed interest in transporting and purchasing drugs.

However, on 1 February 2008 the applicant, having been telephoned by undercover agent P., explained to P. that he was no longer interested in any business other than the restaurant he ran.

On 7 February 2008 the Aachen District Court, having regard to the applicant’s submissions to undercover agent D. on 23 January 2008, extended the court order of 18 October 2007 authorising investigations so as to cover also the applicant.

On 8 February 2008 undercover agent P. visited the applicant in his restaurant and dispersed the applicant’s suspicions against the undercover agents as well as his fear of having to serve a prison sentence in case the drug deal was discovered. The applicant thereupon continued arranging two purchases of drugs (cocaine and amphetamine) by the undercover agents from S. on 16 February 2008 (10 kilograms of amphetamine paste and 40 grams of cocaine) and on 12 March 2008 (some 250 kilograms of amphetamine paste). On the latter day, the applicant and S. were arrested after the delivery of the drugs to the undercover agents. The applicant would have received a commission of more than EUR 50,000 from S. for having arranged the second contract between S. and the undercover agents.

On 22 October 2008 the Aachen Regional Court convicted the applicant of two counts of drug trafficking and sentenced him to five years’ imprisonment.

The Regional Court, having established the facts as described above (see paragraphs 6-12), noted that the applicant had confessed to the offences in the hearing. It had further read out in the hearing the written reports of undercover agents D. and P., drawn up throughout the undercover measure, with the consent of the parties. It noted that the applicant had accepted that these reports were essentially correct. It considered that the applicant’s allegation that it had been undercover agent D. and not himself who had first come up with the possibility of drug trafficking on 23 January 2008, and that he had only responded to that proposal, had not been proven. It noted in that context that the undercover agents had been careful throughout the investigations not to propose illegal business transactions or specific types or amounts of drugs first, but had waited for their respective counterparts to make the first step before becoming more concrete themselves.

In fixing the sentence, the Regional Court considered the considerable quantities of drugs trafficked as an aggravating factor. However, there were considerable elements leading to a mitigation of the sentence, which had to be considered as relatively mild in view of the amount of drugs trafficked. The applicant had in essence confessed to the offences and did not have any prior convictions. He had further trafficked mainly amphetamine, which was not a hard drug. In view of the undercover agents’ involvement, there had also not been a risk that the drugs would freely circulate on the market.

The Aachen Regional Court further stated that it was a particularly weighty factor mitigating the sentence that the applicant had been incited (verleitet) by a State authority to commit offences. Prior to the undercover measure concerning him, there had not been any suspicion of involvement in drug trafficking against the applicant, who did not have a criminal record. The police had only known that the applicant was a friend of S., against whom there had been strong suspicions of involvement in drug trafficking, and that the applicant had already arranged the sale of real estate together with S. The Regional Court considered that, nevertheless, the applicant had not been instigated (angestiftet) to commit the offences at issue. The undercover agents had waited for the applicant to raise the possibility of arranging an international contraband trade in cigarettes when the arrangement of a real estate transaction had not been successful. The agents had again waited for the applicant to raise the possibility of drug trafficking after the undercover agents had made him understand that they considered that the risk of being caught with smuggling cigarettes was too high compared to the possible profits.

Moreover, the Regional Court stressed that the applicant had then renounced any drug business on 1 February 2008 for fear of punishment. However, the undercover agents nevertheless contacted the applicant again on 8 February 2008, when the court order authorising recourse to undercover agents had been extended so as to cover also the applicant, and dispersed his doubts. The Regional Court considered that the way in which the undercover measure had been organised, that is, by contacting the applicant, a person not suspected of an offence, in order to establish contacts with suspect S., had entailed a risk, from the outset, that the applicant became implicated in drug trafficking.

The Regional Court further found that the applicant’s involvement in the offences had been less important than that of S., as he had only arranged contacts between S. and the undercover agents and had shielded off S. against them. The applicant obviously did not have any contacts with the drug scene apart from his contacts with S.

The applicant subsequently lodged an appeal on points of law against the Regional Court’s judgment. He complained, in particular, that he had been incited by the police to commit the offences he had later been found guilty of. This had breached the rule of law. There was, therefore, a bar to the criminal proceedings against him, which should have been discontinued.

On 8 April 2009 the Federal Court of Justice dismissed the applicant’s appeal on points of law as ill-founded. The decision was served on the applicant’s counsel on 20 April 2009.

On 12 May 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court. Relying, inter alia, on Article 6 § 1 of the Convention and on the corresponding provisions of the Basic Law, the applicant complained that he had not had a fair trial. He argued that the undercover agents had incited him to commit drug offences which he would not have committed otherwise. The use of the evidence obtained thereby in the criminal proceedings against him had rendered these proceedings unfair.

On 28 May 2009 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint against the judgment of the Aachen Regional Court and the decision of the Federal Court of Justice without giving reasons (file no. 2 BvR 1029/09). The decision was served on the applicant’s counsel on 3 June 2009.

On 16 June 2011 the Aachen Regional Court ordered the applicant’s conditional release on 12 July 2011 after the applicant had served two thirds of his sentence.