No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);No violation of Article 14+10 - Prohibition of discrimination (Article 14 - Discrimination) (Article 10 - Freedom of expression -{General})

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens

In March 2003, the journalist M. entered into a contract of employment with the C. company. The C. company was authorised under the relevant provisions of the Animal Welfare Act to perform animal experiments and to keep and breed animals (monkeys) for that purpose. During his working hours, M., using a hidden camera, produced 40 hours of film footage which documented the treatment of laboratory animals within the C. company’s premises.

Having terminated his employment contract, M. prepared footage of around twenty minutes which he offered to a major German broadcasting company. On 9 December 2003 the broadcasting company aired a film of about nine minutes under the title “Animal experiments for profit”. The film showed a number of different scenes from within the C. company’s premises, accompanied by a critical commentary. The scenes primarily concerned the animals’ accommodation and the way they were treated by staff. During the month of December 2003, other broadcasting companies showed excerpts of the footage.

Later on, a film of about twenty minutes with the title “Poisoning for profit” was produced, which used largely the same material that had already been aired on television. The introduction to the film claimed that the applicable law was systematically flouted in the laboratories of the C. company. The film further showed various experiments being carried out on monkeys. The second half particularly dealt with the way in which staff treated the animals, alleging that the animals were repeatedly treated in a cruel and harsh way. The film contained the accusation that the applicable legal regulations on the treatment of animals were disregarded and closed by the statement that medicines were not being made safer by poisoning monkeys. The applicant association made the film available for download on its website.

The C. company filed requests for civil injunctions against the dissemination of the film footage against the applicant association, against the journalist M. and against other animal rights activists.

On 20 January 2004 the Münster Regional Court (Landgericht) ordered the applicant association to desist from publicly showing the film footage taken by the journalist M. on the C. company’s premises or to make it otherwise available to third persons.

On 25 February 2004, the Regional Court confirmed the injunction. It considered that the publication and dissemination of the footage interfered with the C. company’s personality rights, as the footage was produced without that company’s consent within its private premises. According to the Regional Court, the interference was unlawful because the C. company’s interest that the footage should not be published outweighed the applicant association’s interest in its publication.

On 21 July 2004 the Hamm Court of Appeal (Oberlandesgericht) rejected the applicant association’s appeal. That court confirmed that the C. company had an injunction claim under section 1004 in conjunction with section 823 of the Civil Code and Article 2 § 1 of the Basic Law and section 186 of the Criminal Code (see relevant domestic law, below). The Court of Appeal considered that the C. company was not obliged to tolerate the publication and dissemination of the footage by the applicant association, because the applicant association had demonstrated that it did not respect the “rules of intellectual battle of ideas” (Regeln des geistigen Meinungskampfs). The court observed that it had allowed other persons, to which these circumstances did not apply, to continue the dissemination of the footage as long as this was not accompanied by unfounded or sensationalist reproaches.

The Court of Appeal confirmed that the publication of the footage interfered with the C. company’s personality rights, which encompassed the right not to be spied upon by use of hidden cameras. Even though the footage was produced in an unlawful way, the court considered that the dissemination of such material was protected by the applicant association’s right to freedom of expression. In the instant case, this right was further enforced by the special reference to animal rights in Article 20 a of the Basic Law. There was no doubt that animal experiments were a controversial issue, which concerned the public in a serious way.

Under the relevant case-law of the Federal Constitutional Court, it had thus to be determined whether the means employed had been proportionate to the aim pursued. The court considered, on the one hand, that the published material had been procured in an unlawful way and was to be used against the very person who had been betrayed. Such material could only be published if the importance of the information for the public clearly outweighed the disadvantages suffered by the injured party and by the legal order as a whole.

Given that the information used had been procured in an unlawful way, it was decisive whether the person using this information was respecting the rules of intellectual battle of ideas. If a person did not abide by these rules, his right to freedom of expression had to cede. The Court of Appeal considered that numerous examples from the case-file demonstrated that this prerequisite was not met in the applicant association’s case.

The court quoted a number of statements from the applicant association’s homepage, such as the following one:

“A[n animal’s] life will also be more important for us than a broken door, a destroyed laboratory or an incinerated meat transport.”

When third persons spilled artificial blood on a business associate of the C. company, the applicant association announced the publication of photographs and commented on the event as follows:

“The [applicant association] has nothing to do with spilling artificial blood on the monkey dealer, but solidarises with the animal rights activists who have performed this act.”

According to the Court of Appeal, these quotations demonstrated that the applicant association approved of the commission of criminal offences. With the following quotation, the applicant association incited third persons to commit criminal acts by offering its support:

“We carry out public relations and press work for so-called autonomous animal right activists who risk public prosecution in order to save animal life; furthermore, we show our solidarity by granting legal aid.”

The Court of Appeal considered that the applicant association had not been aware of the fact that it might entice third parties to break into the C. company’s private sphere by interfering with the C. company’s personality rights through dissemination of unlawfully obtained information. On the contrary, it even enhanced that risk. On its website, the applicant association reproached the C. company of committing “murder and torture”. Even if such unfounded and sensationalist statements, considered on their own, might be covered by the right to freedom of expression, they indicated that the applicant association intended to use the footage for defaming the C. company’s reputation. The applicant association further supported interferences with the private sphere of the C. company’s staff members by reporting on gatherings in front of private homes – which the applicant association labelled as “home-demos”– and by disseminating flyers and posting stickers in the private neighbourhood of the C. company’s staff members. Even if the applicant association or its members might not have taken part personally in these actions, they supported such actions not only by reporting on their website, but, to all appearances, also in a financial way. On its homepage, the applicant association published the sentence:

“The action groups act in a mostly autonomous way and are financially supported by the association.”

The C. company had furthermore established that the applicant association had high-jacked their website.

The court considered that the applicant association, by employing these unfair means, attempted to force the C. company to close down its business activities, thereby even accepting the use of violence. This was confirmed by the applicant association’s declaration on its website:

“The [applicant association] does not request “better accommodation” or “better treatment” of animals which are killed in animal experiments, but demands the immediate abolition of all animal experiments.”

It was not for the court to evaluate the aims pursued by the applicant association. The issues raised by the applicant association were part of a public debate and the applicant was certainly allowed publicly to express its opinion and to demand the abolition of animal experiments. However, when assessing the relation between the means employed and the aims pursued, it had also to be taken into account whether the person concerned by the interference with their personality rights had to tolerate the dissemination of the unlawfully acquired information by a specific person. Against the background laid out above, the C. company could not be expected to tolerate that an adversary such as the applicant association used film footage that had been produced in an unlawful way.

The Court of Appeal further pointed out that the judgment exclusively concerned the use of the unlawfully produced footage. The applicant association remained fully entitled to express its criticism on animal experiments in other, even one-sided ways. The Court of Appeal finally observed that the civil injunction was subject to review in case of a change of the relevant circumstances. This served the applicant association’s interests, as it was up to them to respect the rules of intellectual battle of ideas.

On 30 January 2009 the Federal Constitutional Court, relying on its Rules of Procedure, refused to admit the applicant association’s constitutional complaint without giving further reasons.

By judgment of 21 July 2004 the Hamm Court of Appeal ordered the journalist M. and another animal rights activist to desist from publishing or disseminating the film “Poisoning for profit” as well as two further short versions of the film footage. Conversely, the Court of Appeal rejected the C. company’s request entirely to prohibit the publication of the footage secretly obtained within its premises. Basing its assessment on the opinions submitted by altogether four experts, the Court of Appeal considered that the way the animals were treated inside the laboratory justified criticism. There was, however, no evidence for cruelty to animals in the legal sense of the word. The Court of Appeal further observed that the film “Poisoning for profit”, through its accompanying commentary and through the way specific scenes were cut together, conveyed the core message that the C. company systematically contravened the law. Similar principles applied to two further short versions already broadcast. The Court of Appeal concluded that the C. company’s request was to be granted insofar as it concerned this specific footage. However, the defendant was, in principle, not prevented from using the footage in other ways, as long as he did not convey any misleading message.

Following the broadcast of 9 December 2003, a British animal rights organisation and several others lodged criminal complaints against the C. company for contravention against the Animal Protection Act.

On 19 February 2004 the Münster Public Prosecutor informed the animal rights organisation that criminal investigations had been discontinued for lack of a sufficient suspicion. Basing its assessment on an examination of the long version of the film footage, on the statements made by the journalist M. and by the C. company during the criminal investigations, and on four expert opinions, the Public Prosecutor considered that it could not be established that the management or animal keepers had contravened the Animal Protection Act.

The Public Prosecutor noted, at the outset, that the C. company possessed the necessary authorisation for keeping and breeding animals and for performing animal experiments. It followed that the C. company was allowed to perform interventions and treatments for experimental purposes even if this should cause pain or suffering. It had not been established that cruelty to animals had been exerted or tolerated by the C. company. The fact that some scenes could be considered as tasteless and lacking respect towards the animals was not relevant in this context.

The Public Prosecutor transferred the case-file to the administration for further examination.

On 17 December 2003 the Municipality of Münster ordered the C. company to record the treatment of the monkeys on video and to have the film material assessed on a daily basis by the company’s animal welfare officer. On 16 January 2004 the Münster Administrative Court restored the suspensive effect of the objection lodged by the C. company against this order since no breach of the Animal Welfare Act had been proven. The objection proceedings were discontinued in November 2006.

In 2004, the C. company requested the issue of civil injunctions ordering two Swiss animal right associations and two internet providers to desist from further disseminating footage taken by the journalist M. inside its premises. On 21 May 2004 the Münchwilen District Court (Bezirksgericht) rejected the request on the grounds that there were serious doubts whether the practices depicted on the footage were in line with the Swiss law on animal protection and that the associations’ right to freedom of expression had to prevail.


CASE OF RADUNOVIĆ AND OTHERS v. MONTENEGRO

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

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicants were born in 1982, 1967 and 1978 respectively and live in Podgorica.

The applicants were employees of the USA Embassy (“the Embassy”) in Montenegro. The first applicant worked as a protocol specialist/translator, and the second and third applicants as security guards. All the applicants were local staff.

The employment contract between the locally employed staff and the Embassy provided, inter alia, as follows:

“3. Services to be Performed. The employee agrees to perform all the duties set forth in the Position Description in accordance with the terms and conditions set forth herein.

Disputes. All disputes between the employee and the Government arising out of this agreement shall be decided by the Management Officer or, in the absence thereof, the designee of the Management Officer, provided that the employee shall have the right to appeal in writing within thirty (30) days of receipt of notice of any such decision to the Chief of Mission [at the American Embassy Podgorica].”

The first applicant’s main duties and responsibilities were related to assisting in organising official receptions, lunches and dinners; questions relevant to protocol and local practices and customs; maintaining a contact database; drafting correspondence in English and Montenegrin; interpreting and translating documents, articles and incoming correspondence; arranging official calls; ensuring press coverage of ceremonial events; organising official visits and serving as a contact person between the front desk and the host country officials.

The second and third applicants’ main duties and responsibilities were continuous surveillance of an area around their fixed posts for security hazards; checking ID cards, screening visitors and vehicles, and controlling parking; recognising emergencies and unusual incidents, and acting accordingly. They could occasionally be required to work at other locations and for special functions such as VIP visits, receptions and dinners at the Principal Officer’s Residence.

Between 14 February 2009 and 28 June 2012 the applicants were informed by the Embassy that they were dismissed.

On 26 July 2010 the Court of First Instance (Osnovni sud) in Podgorica, apparently upon the third applicant’s claim to that effect, quashed the decision on his dismissal and ordered his reinstatement. It would appear that on an unspecified date thereafter this decision became final.

Between 22 November 2010 and 26 July 2012 the applicants instituted separate civil proceedings against the Embassy. All the applicants claimed compensation: the first applicant sought compensation for non-pecuniary damage caused by the wrongful dismissal, and the second and third applicants claimed compensation for loss of earnings. The first and second applicants, in addition, sought reinstatement.

On 26 May 2011 the Court of First Instance in Podgorica declared that it lacked competence to deal with the first applicant’s claim and rejected it (tužba [se] odbacuje), which decision was upheld by the High Court on 21 June 2011. On 4 October 2011 the Supreme Court quashed these decisions. Relying on section 29 of the Civil Procedure Act, section 2 (1) of the Labour Act and section 46 of the Resolution of Conflict of Laws and Regulations of other States Act (see paragraphs 30, 33 and 35 below), the Supreme Court considered that the Montenegrin courts had jurisdiction to examine the merits of the first applicant’s claim.

Between 8 September 2011 and 24 September 2012 the Court of First Instance in Podgorica declared that it lacked competence to deal with the applicants’ claims (in a re-trial in respect of the first applicant) and rejected them. In substance, the court considered that the respondent State had immunity provided for by international law, and therefore could not be subjected to the jurisdiction of another State’s court. In rejecting the first applicant’s claim the court further held that granting immunity to the respondent State could not be considered a restriction on access to court, as provided in Article 6 of the Convention. While the court acknowledged that in international and comparative law there were restrictions on State immunity in respect of employment-related disputes, it also held that recruitment (pitanja u vezi sa zapošljavanjem) in a foreign diplomatic mission or an embassy was an issue which could be “very sensitive or of a confidential nature” and might relate to the diplomatic and organisational policy of a foreign State. In ruling upon the second and third applicants’ claims, the Court of First Instance relied also on the Vienna Convention on Diplomatic Relations, which provided that the function of Embassies was to represent foreign States, and held that therefore the jurisdiction of the domestic courts was excluded. The court also relied on Article 22 of the Vienna Convention, which provided for the inviolability of the premises of Embassies.

On various dates thereafter the applicants appealed. The first applicant submitted, inter alia, that by examining the merits of her claim the courts would not interfere with the other party’s sovereignty. She also submitted that the Court of First Instance had to examine the claim on the merits pursuant to the decision of the Supreme Court of 4 October 2011 and relied on section 415 of the Civil Procedure Act (see paragraph 32 below).

Between 20 November 2011 and 6 December 2012 the High Court upheld the first-instance decisions, in substance endorsing their reasoning. The High Court further held, upon the first applicant’s appeal, that a violation of sections 367 (1) and 415 of the Civil Procedure Code (see paragraphs 31 and 32 below) by the first-instance court did not render the first-instance decision unlawful, in particular as it was undisputed that the respondent party had its seat in another State and only a diplomatic representation in Montenegro. In ruling upon the second applicant’s claim it held that the jurisdiction of the domestic courts was not explicitly provided for either by the law or an international agreement.

Between 1 November 2012 and 10 May 2013, ruling upon the applicants’ appeals on points of law, the Supreme Court upheld the previous decisions on the grounds that the respondent party was a foreign State with its own legal personality and the domestic courts had no competence to rule upon the applicants’ claims. The court relied on section 29 of the Civil Procedure Act, section 46 of the Resolution of Conflict of Laws and Regulations of other States Act, and Article 3 of the Vienna Convention on Diplomatic Relations. In ruling upon the third applicant’s appeal on points of law the Supreme Court also held, inter alia, that granting immunity to a foreign State in civil proceedings pursued a legitimate aim of complying with international law and encouraging good diplomatic relations between States, and that it could not be considered as a restriction on access to court in violation of Article 6 of the Convention.

Between 10 January 2013 and 12 July 2013 the applicants lodged separate constitutional appeals. On 18 November 2015 the Constitutional Court dismissed the first and third applicants’ constitutional appeals, while the second applicant’s constitutional appeal would appear to be still pending. The Constitutional Court held that there had been no violation of Article 6 of the Convention as the decisions had been issued by tribunals established by law, which had acted within their competence, and which had given clear reasons for their decisions. There was therefore no arbitrariness in the courts’ rulings. In ruling upon the third applicant’s constitutional appeal the Constitutional Court in addition held that pursuant to the case-law of the Court and the Constitutional Court “it [was] not the task of these courts to examine the conclusions of the regular courts in respect of the substantive law application, except in cases where [...] procedural rights were violated ([such as ...], the right of access to court) [...]”. However, it did not go into any analysis about the third applicant’s right of access to court.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1974 and lives in Yerevan.

On 18 December 2007 criminal proceedings were instituted on account of a fight with use of firearms between two groups of people, which had taken place that day. As a result of the fight, one person died and two others were wounded. The applicant went into hiding after having participated in the fight and a search for him was declared.

On 22 December 2007 the applicant turned himself in to the police. He surrendered his two guns and stated that he had used them during the fight in defence against an assault by unknown persons. He was arrested and taken into custody.

On 25 December 2007 the applicant was charged with aggravated murder, under Article 104 § 2 (6) of the Criminal Code (CC), aggravated infliction of serious injuries, under Article 112 § 2 of the CC, and illegal possession of firearms, under Article 235 § 1 of the CC.

On the same day the investigator applied to the Kotayk Regional Court seeking to have the applicant detained for two months. The application stated that on 18 December 2007 the applicant, in a manner dangerous to the life of many, had opened fire from illegally-possessed guns on individuals G.S., R.V. and V.H., as a result of which he had unlawfully and intentionally deprived G.S. of his life and inflicted serious injuries on R.V. and V.H. The application further stated that the applicant had to be detained, inter alia, because he had committed a serious crime.

On the same day the Kotayk Regional Court decided to grant the motion and detain the applicant for two months, from 22 December 2007 until 22 February 2008. The court found that the applicant might abscond, obstruct the examination of the case, avoid criminal liability and serving the imposed sentence as well as hinder the execution of the judgment. In so finding, the court took into account the nature and gravity of the imputed offence and the fact that the applicant had committed a serious crime.

On 9 January 2008 the applicant lodged an appeal, claiming that his detention was not based on a reasonable suspicion that he had committed an offence and that the Regional Court had not adduced sufficient reasons when finding that his detention was justified. He also alleged that the principle of the presumption of innocence had been breached since the Regional Court had stated in the affirmative that he had committed a grave crime.

On 29 January 2008 the Criminal Court of Appeal upheld the decision of the Regional Court. The Court of Appeal found that there was sufficient evidence to raise a reasonable suspicion that the applicant had committed an offence. In this regard, it referred to the applicant’s statements to the investigative bodies and the results of G.S.’s autopsy, according to which he had died from a bullet wound. As to the reasons for detention, the Court of Appeal found that the applicant might obstruct the examination of the case. In so’s statement had to be taken solely as meaning that the offence was imputed.

On 25 April 2008 the applicant lodged an appeal on points of law.

On 19 May 2008 the Court of Cassation left the appeal unexamined on the ground that it had been lodged outside the prescribed one-month time-limit.

On 18 February, 18 April, 16 May 2008 and 17 June 2008 the Kentron and Nork-Marash District Court of Yerevan, on the basis of corresponding motions lodged by the investigator, extended the applicant’s detention, ultimately until 22 July 2008, on the ground that, taking into account the hostility between the applicant and the victim’s friends and relatives which had resulted in the burning of the applicant’s property, the applicant might commit a crime. It further found that, taking into account the nature and gravity of the imputed offence the applicant, if at large, might commit a new crime, abscond, obstruct the examination of the case and avoid criminal liability.

The applicant appealed against the decisions of the District Court claiming, inter alia, that the court had provided no relevant and sufficient reasons justifying his detention.

On 7 March, 7 May, 6 June and 4 July 2008 the Criminal Court of Appeal upheld the respective decisions of the District Court. It held that the applicant’s continued detention on remand was justified, taking into account the applicant’s personality and the nature and gravity of the imputed offence, punishable by a maximum of life imprisonment, which increased the likelihood of his absconding.

The applicant appealed on points of law against the respective decisions of the Court of Appeal.

On 19 May 2008 the Court of Cassation decided to leave the applicant’s first appeal unexamined on the ground that it had been lodged outside the prescribed one-month time-limit. On 2 July, 4 August and 5 September 2008 the Court of Cassation declared the applicant’s other appeals inadmissible for lack of merit.

On 4 July 2008 the investigator decided to drop some charges against the applicant and modify others. In particular, the charge of illegal arms possession (Article 235 § 1 of the CC) was dropped, while the charges under Article 104 § 2 (6) and Article 112 § 2 (1) were modified and replaced with a charge for two counts of aggravated attempted murder (Article 104 § 2 (1) and (6) in conjunction with Article 34) and a charge for two counts of aggravated hooliganism (Article 258 §§ 3 (1) and (4) respectively).

On 11 July 2008 the investigator applied to have the applicant’s detention extended by two more months.

On 17 July 2008 the District Court, having examined the materials of the criminal case, decided to grant partially the request and to extend the applicant’s detention for one month, until 22 August 2008, on the same grounds as those invoked in its previous decisions. As a reason for considering that the applicant might avoid responsibility, the court referred to the fact that the applicant had gone into hiding after committing the crime and thus obstructed the examination of the case.

On 1 August 2008, upon the applicant’s appeal, the Court of Appeal upheld the decision of the District Court finding that the applicant, if he remained at large, might abscond, obstruct the proceedings or, given the continuing hostility between the two sides, might commit new crimes.

On 12 August 2008 the investigator decided to drop or modify the charges against the applicant. In particular, the charge of aggravated hooliganism under Article 258 § 3 (1) was dropped and new charges under Article 104 § 2 (1) and (6) in conjunction with Article 34 of the CC and Article 258 § 4 of the CC were brought.

Meanwhile, on 12 August 2008 the investigator applied to have the applicant’s detention extended for two months.

On 15 August 2008 the District Court of Yerevan granted the investigator’s request partially and extended the applicant’s detention for one month, until 22 September 2008.

On 16 September 2008 the investigator applied again to have the applicant’s detention extended for 15 days.

On 17 September 2008 District Court granted the request and extended the applicant’

On 22 September 2008 the applicant lodged an appeal.

It appears that, in the meantime, the investigation was completed and, on 1 October 2008, the applicant’s case was referred to the Northern Criminal Court for trial.

On 7 October 2008 the Criminal Court of Appeal decided to leave the appeal of 22 September 2008 unexamined on the ground that the scope of judicial control over pre-trial proceedings was limited to the investigation stage. Since the investigation had been completed and the case had been referred to a court, it was now up to that court to examine questions of lawfulness and validity of detention.

On 7 November 2008 the applicant lodged an appeal on points of law against the Court of Appeal’s decision of 7 October 2008. However, in finalising his appeal, the applicant requested that his detention be cancelled.

On 21 November 2008 the Court of Cassation decided to leave the applicant’s appeal unexamined on the ground that it had been directed against the decision of the District Court of 17 September 2008, which was not subject to an appeal on points of law. In this respect, it referred to the fact that the request contained in the applicant’s appeal on points of law was to cancel his detention as ordered by the decision of the District Court of 17 September 2008.

In the meantime, on 15 October 2008 the judge of the Northern Criminal Court decided to take over the examination of the case. In the same decision, the judge imposed detention on the applicant, as a preventive measure.

On 27 October 2008 the applicant lodged an appeal against this decision.

On 23 December 2008 the Court of Appeal dismissed the applicant’s appeal, finding that his detention was justified because, taking into account the gravity and nature of the imputed offence, there was a high risk that he might abscond or obstruct the examination.

On 10 April 2009 the Court of Cassation dismissed the applicant’s appeal on points of law.

On an unspecified date the criminal case, in accordance with procedural amendments introduced in the meantime, was transferred to the Kotayk Regional Court for examination. It appears that, during the examination of the case, the prosecutor decided to modify the charges against the applicant by replacing them with a charge of attempted murder in excess of the boundaries of necessary defence (Article 108 in conjunction with Article 34 of the CC) and a charge of aggravated hooliganism (Article 258 § 3 (1) of the CC).

On 8 May 2009 the Kotayk Regional Court found the applicant guilty under Article 108 in conjunction with Article 34 and Article 258 § 3 (1) and sentenced him to a total of three years’ imprisonment.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants were born in 1955 and live in Poreč.

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

On 5 February 2009 the applicants and their company, M.N., entered into an agreement with M.G. and his company, E. By virtue of that agreement the applicants acknowledged their debt of 580,000 Croatian kunas (HRK) to M.G. and their company’s debt of HRK 180,000 to company E. In order to secure the overall loan, the applicants used their house as collateral, allowing M.G. to register a charge on it. It was stipulated that unless the applicants and their company paid their outstanding debts by 1 May 2009, the creditors were entitled to institute enforcement proceedings for payment of the debt through the sale of the applicants’ house.

On 20 October 2009 M.G. and his company E. instituted enforcement proceedings against the applicants before the Poreč Municipal Court (Općinski sud u Poreču), seeking the judicial sale of the house. They argued that the applicants had failed to pay their debt to M.G., while the company M.N. had managed to pay only part of its debt to the company E. The applicants’ outstanding debt amounted to HRK 703,643.05.

On 17 November 2009 the Poreč Municipal Court granted that request and issued an enforcement order against the applicants. The applicants did not appeal and the enforcement order became final on 17 December 2009.

On 11 December 2009 the Poreč Municipal Court registered the enforcement order on the applicants’ house in the land register.

A hearing to assess the value of the property was held before the Poreč Municipal Court on 4 May 2010. Both applicants were properly summoned, but only the first applicant appeared. He undertook to submit an expert valuation of the house within two days. The creditor asked the Municipal Court to commission an expert for that purpose. The first applicant did not comply with his undertaking.

On 16 June 2010 the valuation of the house was carried out on site by a civil engineer and a surveyor, in the presence of the first applicant.

The civil engineer submitted his report on 20 August 2010, stating that the value of the house was HRK 2,463,092.48 (approximately 323,860 euros). The applicants made no objections to the valuation.

On 7 October 2010 another set of enforcement proceedings against the applicants was joined to the proceedings at issue. In the former proceedings an enforcement order had been issued against the applicants at the request of the Poreč Municipality on 12 May 2010, in respect of a claim of HRK 24,352.94 (approximately 3,200 euros). Since the applicants had not lodged an appeal, the enforcement order had become final on 12 June 2010.

On 25 October 2010 the Municipal Court set the value of the applicants’ house at HRK 2,463,092.48.

On 25 January 2011 a first public auction was held. However, there were no interested buyers. The applicants, though properly summoned, did not appear.

A further set of enforcement proceedings against the applicants was joined to the proceedings at issue on 13 May 2011. In those proceedings, an enforcement order had been issued against the applicants at the request of Bank P. on 24 January 2011, in respect of an unpaid loan of 14 February 2006 in the amount of 159,688.87 Swiss Francs. Since the applicants had not lodged an appeal, the enforcement order had become final on 31 March 2011.

A second public auction for the sale of the applicants’ house was postponed several times at the request of the creditors.

The second public auction was eventually held on 30 March 2012 and the applicants’ house was sold to M.G. for HRK 821,040 (approximately 109,000 euros). The applicants, though properly summoned, did not appear.

On 2 April 2012 the Poreč Municipal Court granted M.G. title to the applicants’ house, on condition that he paid HRK 821,040 as the purchase price.

On 23 April 2012 the applicants lodged an appeal against that decision, arguing that the judicial sale had been disproportionate since the true value of their house had been about 700,000 euros (EUR). They also argued that the Municipal Court had failed to comply with the provisions of the Enforcement Act, which stated that courts should respect the dignity of debtors subject to enforcement and should make the enforcement process as humane as possible.

On 8 May 2012 the applicants submitted a statement that the value of their house was EUR 640,000.

On 28 December 2012 the Pula County Court (Županijski sud u Puli) dismissed the applicants’ appeal. It found that the applicants’ house had been sold at a second public auction for more than one-third of its value, that the first public auction had been unsuccessful, and that M.G. had been the only bidder. Furthermore, the value of the house had been set by the Poreč Municipal Court on 25 October 2010 and the applicants had not objected to it. In the County Court’s view, the sale of the applicants’ house was in accordance with the Enforcement Act.

On 31 January 2013 the Poreč Municipal Court entered M.G.’s title to the applicants’ house in the land register.

On 20 February 2013 the applicants lodged an appeal on points of law against the decision of the Pula County Court, relying on section 382(2) of the Civil Procedure Act. They argued that the actual value of their house was around EUR 700,000, and that their house should have been exempted from enforcement as it was “meeting their basic human needs”.

On the same day, the applicants applied to the Poreč Municipal Court for a stay of enforcement.

On 22 February 2013 the Poreč Municipal Court declared the applicants’ appeal on points of law inadmissible on the grounds that such an appeal was allowed in enforcement proceedings only if based on section 382(2) of the Civil Procedure Act, which was not the case. The applicants lodged an appeal.

On the same day the Poreč Municipal Court declared the applicants’ request for a stay of enforcement inadmissible, finding that they had failed to meet the statutory conditions for such a request. The applicants lodged an appeal.

On 8 March 2013 the Croatian Electricity Company (Hrvatska Elektroprivreda, hereinafter “HEP”) cut off the applicants’ electricity at M.G.’s request. The applicants immediately applied to the Poreč Municipal Court for an interim measure prohibiting M.G. from having the electricity and water cut off and from making alterations to the house, ordering HEP to reconnect the electricity, and authorising them to keep the house until the enforcement proceedings were complete. On the same day the Poreč Municipal Court issued the interim measure, prohibited M.G. from having the electricity and water cut off and ordered HEP to reconnect the electricity. That decision was quashed by the Pula County Court on 21 May 2013 and the applicants’ request for an interim measure was denied.

On 19 June 2013 the Municipal Court decided to transfer ownership of the house at issue to M.G. The applicants lodged an appeal, which was declared inadmissible by the Municipal Court on 10 July 2013.

On 26 July 2013 the Poreč Municipal Court held a hearing on the division of the proceeds (dioba kupovnine) from the sale of the house. The applicants, though properly summoned, did not appear.

On 17 September 2013 the Poreč Municipal Court ordered the eviction of the applicants. The applicants lodged an appeal, arguing that enforcement should not have been carried out by the sale of their house, which served to “satisfy their basic needs”: they lived there with their family and it also served as their business premises.

On 21 October 2013 the Municipal Court scheduled the eviction of the applicants for 13 December 2013, ordering the court bailiff to carry out the eviction. However, the eviction was postponed for three months.

On 19 November 2013 the applicants applied for an interim measure prohibiting the sale of their house and their eviction.

On 20 December 2013 the Poreč Municipal Court decided to conclude the enforcement proceedings for the payment of monetary debts.

On 20 January 2014 the Pula County Court dismissed the applicants’ appeal against the decision of 17 September 2013 (see paragraph 32 above), finding that the Municipal Court had acted in accordance with the law, namely the provisions of the Enforcement Act. The enforcement proceedings were about to be concluded since the sale of the applicants’ house had been completed.

On 23 January 2014 the Pula County Court accepted the applicants’ appeal against the decision of 22 February 2013 (see paragraph 27 above) and remitted the applicants’ appeal on points of law to the Municipal Court.

On the same day the Pula County Court, in a different decision, dismissed the applicants’ appeal against the decision of 22 February 2013 by which their request for a stay of the enforcement proceedings had been dismissed (see paragraph 28 above).

On 12 March 2014 the applicants withdrew their appeal on points of law referred to in paragraphs 25 and 37 above.

On 13 March and 28 April 2014 M.G. sought the applicants’ eviction.

The applicants have not yet been evicted.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1952 and lived in Split.

He was the owner of a flat in Split with a surface area of 66.76 square metres.

On 17 October 1955 a certain Ms P.A. was, on the basis of the Decree on Administration of Residential Buildings of 1953 (see paragraph 24 below), awarded the right to live in the flat and moved in together with her mother and her cousin I.T. (born in 1948) whom her parents had entrusted to P.A.’s care in 1951. This right was by the entry into force of the Housing Act of 1959 transformed into the specially protected tenancy (stanarsko pravo, see paragraphs 24-30 below about the specially protected tenancy in the former Yugoslavia).

P.A. and I.T. lived together in the applicant’s flat until P.A. moved out in 1973. I.T. continued to live there with her husband and her son, Ig.T. (born in 1972). I.T.’s husband died in 1998.

On 5 November 1996 the Lease of Flats Act entered into force. It abolished the legal concept of the specially protected tenancy and provided that the holders of such tenancies in respect of, inter alia, privately owned flats were to become “protected lessees” (zaštićeni najmoprimci, see paragraphs 31 and 40 below). Under the Act such lessees are subject to a number of protective measures, such as the duty of landlords to contract a lease of indefinite duration, payment of protected rent (zaštićena najamnina), the amount of which is set by the Government and significantly lower than the market rent; and better protection against termination of the lease.

The applicant refused to conclude a lease contract with I.T. stipulating the protected rent pursuant to section 31(1) of the Lease of Flats Act (see 40 below). On 16 May 1997 I.T. brought a civil action against him in the Split Municipal Court (Općinski sud u Splitu), relying on section 33(3) of the same Act (see paragraph 43 below), with a view to obtaining a judgment in lieu of such a contract.

Shortly afterwards in 1997 the applicant brought a civil action in the same court seeking to obtain a judgment ordering I.T. and her son to vacate the flat in question. He argued that she had not been “a child without parents” and thus could not have been considered a member of P.A.’s household within the meaning of section 9(4) of the 1974 Housing Act or section 12(1) of the 1985 Housing Act (see respectively paragraphs 28 and 29 below). Consequently, she could not have taken over the specially protected tenancy after P.A. had moved out of the flat in 1973, and thus had not had any title to use it.

The two proceedings were subsequently joined.

By a judgment of 2 September 2002 the Split Municipal Court found in favour of I.T. and her son in part. It ordered the applicant to conclude with I.T. a lease contract stipulating protected rent in the amount of 102.14 Croatian kunas (HRK) – approximately 14 euros (EUR) at the time – per month within fifteen days; otherwise the judgment would substitute such a contract. Since the existence of a specially protected tenancy was a necessary precondition for acquiring the status of a protected lessee under the Lease of Flats Act (see paragraph 11 above) the court had first to determine, as a preliminary issue, whether I.T. had become the holder of the specially protected tenancy after P.A. had moved out of the flat in 1973. The court held that, unlike the subsequent legislation relied on by the applicant, the legislation in force at the material time, namely the Housing Act of 1962, had not defined who could have been considered a member of the household of a holder of a specially protected tenancy (see paragraph 27 below). Thus, given that I.T. had been in foster care by P.A. and lived with her in the flat in question, she could have been considered as a member of her household and therefore could, after P.A. had moved out of the flat in 1973, taken over the specially protected tenancy from her and become the holder thereof. Consequently, when in November 1996 the Lease of Flats Act entered into force, I.T. had, as the holder of the specially protected tenancy, become a protected lessee by the operation of law and was entitled to conclude a lease contract stipulating protected rent with the applicant (see paragraphs 39-40 below). While the court ruled that I.T.’s son could be listed in the lease contract as a member of her household, it also held that her daughter-in-law and her grandson could not because they had not moved into the flat until after the entry into force of the Lease of Flats Act, when specially protected tenancies could no longer be obtained.

On 28 June 2006 the Požega County Court (Županijski sud u Požegi) dismissed an appeal by the applicant and upheld the first-instance judgment, which thereby became final.

The applicant then lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) alleging violations of his right to equality before the law, his right to a fair hearing and his right of ownership under the Constitution (see paragraph 23 below).

On 17 September 2009 the Constitutional Court dismissed the applicant’s constitutional complaint and served its decision on his representative on 2 November 2009.

According to the information submitted by the parties, the monthly protected rent for the applicant’s flat changed as follows, in line with the increase in the construction price index (see paragraphs 52 and 85 below):

It appears from the documents submitted by the Government that the applicant refused to receive the protected rent for the flat and that I.T. therefore had to deposit it with a court.

According to the parties the condominium fee paid into the common reserve fund (see paragraph 67 below) by the owner of the flat – the applicant and later his heir – for maintenance etc., was set at HRK 102.81 on 1 January 1998 and has not been changed since.

The Government also submitted information from the tax authorities according to which the applicant had never declared any income from renting out the flat. On the other hand, the applicant’s heir did so in his tax returns for 2011 and 2012 where he also asked for a tax deduction on account of costs corresponding to the amount of the condominium fee paid (see paragraphs 67-70 below). The Government did not specify what tax rate was applied.


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicants are three companies: OAO Afanasiy-Pivo (Russia), OOO Brau Service (Russia), and Eastern Union Holding AG (Switzerland). They were represented before the Court by Mr A. Shcherba, a lawyer practising in Moscow, Y. Fedichkin, a lawyer practising in Tver, and Ms Mjriana Visentin, a lawyer practising in Lainate in Italy.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

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

Afanasiy-Pivo ran a brewery in Tver. In June 2002 its chief executive officer Mr M. Larin was charged with abusing his position by transferring the company’s taxable profits to his other company, Eastern Union Holding.

On 9 September 2002 the Tverskoy District Court of Moscow made a freezing order (наложил арест) against Mr Larin under Article 115 of the Code of Criminal Procedure. The order concerned the Afanasiy-Pivo shares owned by Easter Union Holding and Brau Service, real estate and industrial equipment owned by Afanasiy-Pivo and Brau Service, Brau Service shares owned by Eastern Union Holding, and trademarks that Mr Larin had allegedly criminally assigned to Eastern Union Holding.

On 25 September 2002 the applicant companies learned of the freezing order. They realised that domestic law, in particular Article 354 of the Code of Criminal Procedure did not allow them to lodge an ordinary appeal against such an order.

In October 2002 Mr Larin applied for a supervisory review of the order. On 10 December 2002 the Moscow City Court returned his application as incomplete.

In January 2003 Afanasiy-Pivo and Brau Service applied for a supervisory review. On 18 March 2003 their application was dismissed on the merits.

In May 2003 Brau Service lodged an ordinary appeal against the order. On 7 July 2003 the Moscow City Court terminated the proceedings (прекратил производство) as under Article 115 of the Code of Criminal Procedure the company was not affected by the order.

In July 2003 Afanasiy-Pivo applied for leave to appeal against the order out of time. On 21 July 2003 the Tverskoy District Court of Moscow refused.

Between February and May 2003 the applicant companies four times asked an investigator or prosecutor to unfreeze the assets, without success.

The Code of Criminal Procedure 2001, as in force at the material time:

A prosecutor ... or investigator ... may ask a court to freeze the assets of the suspect [or] the accused ... to secure them for meeting any award of damages, other recovery orders, or eventual forfeiture.

The asset freeze prohibits the owner or holder of the assets from disposing of and ... using them, and puts the assets into custody.

Assets held by third parties may be frozen if there is reason to believe that they were gained by criminal activity of the suspect or accused.

An appeal or appeal in cassation may be lodged by parties against ... court decisions that have not yet come into force....

The right of appeal lies with a convicted person, an acquitted person, their defenders or legal representatives, the public prosecutor, a victim or his representative.


CASE OF IVANOVA AND CHERKEZOV v. BULGARIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) (Conditional);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property) (Conditional);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicants were born in 1959 and 1947 respectively and live in the village of Sinemorets, on the southern Black Sea coast.

The two of them have lived as a family since 1989. At that time, they resided in the town of Burgas, where the first applicant owned a flat, which in 2013 she donated to her daughter, who had lived in it with her family for a number of years.

The first applicant’s father and mother owned a plot of 625 square metres in Sinemorets. Following the death of the first applicant’s father in 1986 and ensuing division-of-property proceedings between his surviving wife and seven children, the first applicant’s mother was allotted 250 out of the 625 shares in the plot. In 1999 she transferred those shares, together with the nine sixteenths of the plot to which she was otherwise entitled as a heir of her late husband, to the first applicant. Combining the shares that she obtained as a result of this transfer and the one sixteenth of the plot that she had inherited from her father, the first applicant became the owner of 484.43 shares, or 77.5%, of the plot. On the plot, there existed a dilapidated one-storey cabin.

In 2004 the second applicant, who had been employed as a driver, suffered a myocardial infraction and was no longer able to work. In 2005 he was recognised as a disabled person and has since then been in receipt of a disability pension. At about that time, the two applicants moved from Burgas to Sinemorets, allegedly because they were no longer able to afford living in Burgas. They submitted that they put all their savings into the reconstruction of the cabin, converting it into a solid one-storey brick house. They did not apply for a building permit. The reconstruction took place in 2004-05. Since that time, the two applicants have lived in that house. In 2006 two of the other co-owners of the plot formally notified the first applicant that they did not agree with the reconstruction. According to the Government, there was evidence that the construction had not been finalised before 2009.

In 2006 the other ten heirs of the first applicant’s father and mother brought a claim against the first applicant, seeking a judicial declaration that they were the owners of 140.57 of the 625 shares of the plot and of the house built on it. The Tsarevo District Court dismissed the claim. On an appeal by the claimants, on 7 June 2009 the Burgas Regional Court quashed that judgment and made a declaration in the terms sought by the claimants, finding that they were the owners of 140.57 out of the total of 625 shares of the plot and the house built in the place of the old cabin. It also held that the first applicant was the owner of the remaining 484.43 shares of the plot and the house. The first applicant attempted to appeal on points of law, but in a decision of 22 June 2009 (опр. № 566 от 22.06.2009 г. по гр. д. № 1974/2009 г., ВКС, I г. о.), the Supreme Court of Cassation refused to admit the appeal for examination. In so doing, it held, inter alia, that by including the house in the declaration, the lower court had not erred because it was settled case-law that illegal buildings could be the objects of the right to property.

For most of the year, the first applicant is unemployed. Her only source of income comes from servicing vacation houses in Sinemorets during the late spring and summer. The second applicant inherited shares of several plots of land in another village, which he sold for a total of 1,200 Bulgarian levs (614 euros) in 2012-14. The applicants used the money to buy a second-hand car.

In September 2011, prompted by some of the other co-owners of the plot, municipal officers inspected the house and found that it had been constructed illegally. They notified their findings to the first applicant in October 2011. In July 2012 the municipality brought the matter to the attention of the regional office of the National Building Control Directorate. In October 2012 that office advised the first applicant that it had opened proceedings for the demolition of the house. In November 2012 officers of the Directorate inspected it and likewise found that it was illegal as it had been constructed without a building permit.

On 30 September 2013 the head of the regional office of the Directorate noted that the house had been constructed in 2004-05 without a building permit, in breach of section 148(1) of the Territorial Organisation Act 2001, and was as such subject to demolition under section 225(2)(2) of that Act (see paragraphs 25 and 26 below). The first applicant had not put forward any arguments or evidence to show otherwise. The house was therefore to be demolished. Once the decision had become final, the first applicant was to be invited to comply with it voluntarily. If she failed to do so in good time, the authorities would enforce it at her expense.

The first applicant sought judicial review of that decision.

On 10 December 2014 the Burgas Administrative Court dismissed the claim. It held that the decision was lawful. The evidence clearly showed that the applicants had constructed the house in 2004-05 without obtaining a building permit, which under section 225(2)(2) of the 2001 Act (see paragraph 26 below) was grounds for its demolition. The house could not be exempted from demolition under paragraph 16 of the transitional provisions of the 2001 Act or paragraph 127 of the transitional and concluding provisions of a 2012 Act for the amendment of the 2001 Act (see paragraphs 28 and 29 below).

The first applicant appealed. She submitted, inter alia, that the house was her only home and that its demolition would cause her considerable difficulties as she would be unable to secure another place to live.

In a final judgment of 17 March 2015 (реш. № 2900 от 17.03.2015 г. по адм. д. № 1381/2015 г., ВАС, II о.), the Supreme Administrative Court upheld the lower court’s judgment. It agreed that the house was illegal as it had been constructed without a building permit, that it was as such subject to demolition, and that, having been constructed in 2004-05, it could not be legalised under the transitional amnesty provisions of the 2001 Act or the 2012 Act.

On 15 April 2015 the regional office of the National Building Control Directorate invited the first applicant to comply with the demolition order within fourteen days of receiving notice to do so, and advised her that failure to do so would prompt it to enforce the order at her expense.

As the first applicant did not do so, on 6 August 2015 that office made a call for tenders from private companies willing to carry out the demolition; the deadline for submitting such offers was 15 September 2015.

On 18 August 2015 the Burgas Municipal Ombudsman urged the Minister of Regional Development to halt the demolition on the basis that, although formally lawful, it would have a disproportionate impact on the applicants. In response, on 25 September 2015 the Directorate’s regional office reiterated its intention to proceed with the demolition.

After the Government were given notice of the application (see paragraph 4 above), on 15 October 2015 the Directorate’s regional office asked the municipal authorities to explore whether, if necessary, they could provide alternative accommodation for the first applicant. Until 27 October 2015, date of the latest information from the parties on that point, the municipal authorities had not replied to that query, and the Directorate’s regional office had for that reason not proceeded with the demolition.

On an unspecified date in the second half of October 2015, again after notice of the application had been given to the Government, a social worker interviewed the first applicant and explained to her the possibilities to request social services. The first applicant stated that she was not interested in that because she preferred to remain in the house.

According to a register available on the website of the National Building Control Directorate (link), on 10 March 2016 the demolition had not yet been carried out.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Criminal offence)

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

The applicants were born in 1976 and 1983 respectively.

The first applicant, Aleksey Navalnyy, is a political activist, opposition leader, anti-corruption campaigner and popular blogger. He lives in Moscow. The second applicant, Oleg Navalnyy, is the first applicant’s brother; he is an entrepreneur and a former employee of the Federal State unitary enterprise Russian Post. He is currently serving a three-and-a-half year sentence in a correctional colony in the Oryol Region.

From 2005 the second applicant worked at the Main Centre for Long Distance Mail, a subsidiary of Russian Post. On 1 December 2007 he became head of its Internal Mail department and then worked in other managerial posts in various departments and divisions of Russian Post.

On 17 October 2006 Russian Post concluded a contract with the limited liability company Multidisciplinary Processing (OOO Многопрофильная процессинговая компания – hereinafter “MPK”) and the telecommunications company Rostelekom, whereby MPK undertook to print Rostelekom’s telephone bills and deliver them through Russian Post to Rostelekom’s customers.

On 1 February 2007, under a separate contract, Russian Post leased electronic equipment from MPK. On 10 April 2007 MPK subcontracted the sorting, packing and the transfer of the equipment leased to Russian Post to a private joint-stock company, the Interregional Mail Centre (OAO Межрегиональный специализированный почтовый центр – hereinafter “MSPT”).

On 3 December 2007 the applicants and their parents acquired the limited liability company Alortag Management Limited, incorporated in Cyprus.

On 7 May 2008 MPK subcontracted the printing of the Rostelekom telephone bills to the limited liability company IPS M-City (OOO ИПС МСити – hereinafter “MCity”).

On 19 May 2008 Alortag Management Limited set up a Russian limited liability company, Chief Subscription Agency (ООО Главное подписное агентство – hereinafter “GPA”). Neither of the applicants held formal positions in GPA, but it appears that the second applicant was actively involved in its functioning.

On 16 July 2008 the chief of Russian Post’s Mail Service Directorate informed its client, the Russian subsidiary of French company Yves Rocher, the limited liability company Yves Rocher Vostok (OOO Ив Роше Восток), that from 1 October 2008 it would terminate the practice of collecting the client’s parcels from a specific distribution centre and that this service would henceforth be subject to a separate contract. Subsequently, Ms B., a manager at Yves Rocher Vostok, asked the second applicant for advice on handling the transfer of parcels from the distribution centre and he suggested that she use a private contractor, GPA.

On 2 August 2008 the financial director of Yves Rocher Vostok, Mr K.M., signed a freight forwarding agreement with GPA for the collection and transfer of parcels from the distribution centre at 23,600 Russian roubles (RUB) per shipment. On 10 August 2008 GPA subcontracted the freight forwarding services under that agreement to two specialist courier companies. GPA paid the couriers RUB 14,000 per shipment. GPA and its contractors provided those services to Yves Rocher Vostok until the end of 2012.

On 7 November 2008 the general director of MPK, Mr Sh., signed an agreement with GPA whereby the latter undertook to provide overall logistical services to MPK related to the printing, sorting, packing and distribution of telephone bills as well as the sorting, packing and transfer of electronic equipment to Russian Post. Subsequently, GPA subcontracted those services to seventeen specialist companies, including M-City. GPA and its contractors rendered the services to MPK until March 2013.

In the same period, the first applicant ran an increasingly public anti-corruption campaign targeting high-ranking public officials (see Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14, § 15, 23 February 2016). In 2011-2012 he organised and led a number of rallies, including an assembly at Bolotnaya Square in Moscow on 6 May 2012 (see, among other sources, Frumkin v. Russia, no. 74568/12, §§ 7-65, ECHR 2016 (extracts)).

At the beginning of 2012 the first applicant investigated the off-duty activities of the chief of the Investigative Committee of the Russian Federation (“the Investigative Committee”), Mr Bastrykin. On 25 April 2012 the Investigative Committee, at the direct order of Mr Bastrykin, instituted criminal proceedings in embezzlement case against the first applicant (see Navalnyy and Ofitserov, cited above, hereinafter “the Kirovles case”). On 5 July 2012 Mr Bastrykin made a public statement expressing his determination to have the first applicant prosecuted. On 26 July 2012 the first applicant published an article about Mr Bastrykin, alleging in particular that his business activities and residence status were incompatible with the office he held (ibid., §§ 30-31 and 118).

On 4 December 2012 the general director of Yves Rocher Vostok, Mr B.L., lodged a complaint with the Investigative Committee, alleging that in 2008 unidentified persons had misled his company’s employees and had persuaded them to conclude a contract with GPA, thus depriving the company of a free choice of contractor. He stated that it was possible that the company had suffered significant damage as a result.

On 10 December 2012 the first applicant made a public plea for people to participate in the Freedom March, an opposition rally at Lubyanskaya Square on 15 December 2012, in defiance of a ban by the Moscow authorities.

On the same day the Investigative Committee decided to open a criminal file on the basis of material severed from the Kirovles case. The new file concerned suspicions of fraud by the applicants against Yves Rocher Vostok and the laundering of the proceeds of illegal transactions, offences set out in Articles 159.4 and 174.1 § 2 (a) and (b) of the Criminal Code.

On 20 December 2012 charges of fraud and money laundering were brought against the applicants under Articles 159.4 and 174.1 § 2 (a) and (b) of the Criminal Code in connection with acts allegedly committed against MPK and Yves Rocher Vostok.

On 13 February 2013 the second applicant requested that five Yves Rocher Vostok employees be questioned as witnesses, including the general director Mr B.L. and the manager Ms B., but the investigator rejected the request on 18 February 2013. It appears that the witnesses were questioned during the investigation, but the applicants were not informed of that fact or given the opportunity to have a formal faceto-face confrontation with them.

On 18 July 2013 the Leninskiy District Court of Kirov found the first applicant guilty of organising large-scale embezzlement in the Kirovles case and gave him a suspended prison sentence of five years. The Court subsequently found that those proceedings had been conducted in violation of Article 6 of the Convention (see Navalnyy and Ofitserov, cited above, §§ 102-21).

On 11 February 2013 the financial director of Yves Rocher Vostok, Mr K.M., submitted an internal audit report to the investigator stating that the company had not sustained any damage or loss of profits due to its agreement with GPA; it had been established by the auditors that GPA had charged the market price for its services.

On 28 February 2014 the Basmannyy District Court ordered that the first applicant be placed under house arrest. This preventive measure was maintained until 5 January 2015.

On 14 August 2014 the Zamoskvoretskiy District Court began hearing the applicants’ criminal case.

On 14 November 2014 the applicants requested that the court call and examine the general director of Yves Rocher Vostok, Mr B.L., the manager, Ms B. and several employees of Russian Post as witnesses. They also asked the court to obtain certain internal documents relating to the structure and functioning of Russian Post. The court dismissed those requests.

On 9 December 2014 the applicants asked the court to summon six witnesses, again including Mr B.L. and Ms B.

On 15 December 2014 the court, at the request of the prosecutor, issued a warrant compelling Mr B.L. to appear, however, it was not executed. The court subsequently allowed statements that he and Ms B. had given during the investigation to be read out.

On 19 December 2014 the court concluded the trial and said it would deliver a judgment on 15 January 2015.

At about 4 p.m. on 29 December 2014 the applicants and their defence counsel were summoned by telephone to appear in court at 9 a.m. on 30 December 2014 for delivery of the judgment, which had been brought forward from 15 January 2015 for unknown reasons.

On 30 December 2014 the court delivered the introductory and operative parts of the judgment. The applicants were found guilty of money laundering and of defrauding MPK and Yves Rocher Vostok and were convicted under Articles 159.4 §§ 2 and 3 and 174.1 § 2 (a) and (b) of the Criminal Code. The first applicant received a suspended sentence of three and a half years and the second applicant a prison sentence of the same duration, to be served in a correctional colony. They were also fined RUB 500,000 each and had to pay jointly RUB 4,498,546 in damages to MPK. The court ordered that the first applicant should remain under house arrest and that the second applicant be placed in “pre-trial detention”, with his term of imprisonment running from that day. Delivery of the judgment in full was adjourned until 12 January 2015.

The second applicant appealed against his detention the same day.

The first applicant appealed against the extension of his house arrest on 31 December 2014.

On 12 January 2015 the applicants appealed against the judgment of 30 December 2014 on the merits. They received the full text of the judgment on the same day, which included the reasons for finding the applicants guilty of fraud. The court found that the applicants had set up a “fake company”, GPA, with the intention to use it as an intermediary to offer services to two clients of Russian Post, MPK and Yves Rocher Vostok. It held that the second applicant had taken advantage of insider information that Russian Post had ceased to provide the companies with certain services for lack of operational capacity and had convinced those clients to use GPA as a substitute; that he had misled the clients about GPA’s pricing policy and its relationship with Russian Post, thus depriving them of the freedom of choice of service providers; that he had promoted his company’s services while knowing that it would have to subcontract the work to other companies; and that GPA had retained the difference in price between what MPK and Yves Rocher Vostok paid for its services and what GPA paid to its subcontractors. The court concluded that the latter margin had been stolen from MPK and Yves Rocher Vostok by the applicants through GPA. The court further established that the amounts in question constituted the proceeds of crime, and that using that money to pay GPA’s office rent, legal services, dividends to the applicants and for transfers to affiliated companies had constituted money laundering.

On 19 January 2015 the Moscow City Prosecutor’s Office appealed against the first-instance judgment on the grounds that the sentence given to both applicants had been too lenient.

On 28 January 2015 the applicants challenged the accuracy of the verbatim records of the first-instance hearing. Only a few of their corrections were accepted.

On 11 February 2015 the applicants lodged additional points of appeal and a request that six witnesses be called and examined, including Mr B.L. and Ms B.

On 17 February 2015 the Moscow City Court upheld the firstinstance judgment, except for the part imposing a fine and awarding damages to MPK, which was reversed.

On 27 April 2015 the applicants lodged a cassation appeal.

On 26 June 2015 the Moscow City Court refused leave to lodge a cassation appeal.


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

The applicant, Mr Kader Bencheref, was born in 1985 and lived in Växjö until his expulsion to Algeria in February 2017. He was represented before the Court by Ms E.-M. Lindhe, a lawyer practising in Växjö, and later by Mr I. Vita, a lawyer practising in Stockholm.

The Swedish Government (“the Government”) were represented by their Agent, Ambassador A. Rönquist, and then by Ambassador E. Hammarskjöld, both of the Ministry for Foreign Affairs.

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

On 24 July 2006 the applicant applied for asylum and a residence permit in Sweden. He claimed to be of Moroccan nationality and complained about the conditions there.

On 21 September 2006 the applicant was detained on remand as he was suspected of committing several crimes: attempted rape, physical assault, making unlawful threats, attempted theft, and sexual molestation. On 13 December 2006 the District Court (tingsrätten) convicted the applicant of the above-mentioned crimes, sentenced him to three years and six months’ imprisonment, ordered his expulsion from Sweden and banned him from returning to Sweden for life. The applicant’s sentence was mitigated by the District Court because of his upcoming expulsion. The Migration Agency (Migrationsverket) had submitted to the court that there were no impediments to the applicant being expelled to Morocco.

The applicant appealed to the Court of Appeal (hovrätten), which, on 27 February 2007, reduced the sentence to three years’ imprisonment and limited the ban on the applicant’s return to ten years. On 2 April 2007 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.

As a consequence of the criminal conviction and the expulsion order, the Migration Agency struck out the applicant’s application for asylum and a residence permit on 25 May 2007. Subsequently, the applicant lodged repeated applications for asylum and a residence permit with the Migration Agency, but these were rejected and, upon appeal, the migration courts upheld the decisions.

On 19 September 2008 the Police Authority (Polismyndigheten) decided to detain the applicant with a view to expelling him to Morocco. This decision was enforced on 21 September 2008, the same date on which the applicant was released on probation. From that date on, in accordance with Swedish law, the Police Authority reconsidered the decision of the applicant’s detention every other month.

Given that the applicant’s mental health was fluctuating, he was occasionally transferred from the detention centre to psychiatric care facilities and the administrative courts decided, on a few occasions, to commit him for compulsory psychiatric care (tvångsvård) for shorter periods. Between 7 and 16 July 2010, when placed in a psychiatric care facility, the applicant was temporarily released from detention. However, as soon as he was discharged, the Police Authority detained him again.

On 22 January 2013 the District Court convicted the applicant of assaulting several officials working in the detention centre where he had been detained and inflicting damage on the detention centre’s facilities. He was fined a total of 6,000 Swedish kronor (SEK) (approximately 640 euros (EUR)) and he was ordered to pay damages to the victims. This judgment was not appealed against and it thus became final on 12 February 2013.

On 16 April 2014 the Police Authority again reconsidered its decision to keep the applicant in detention. Initially it noted that the applicant had not cooperated with the Police Authority in order to clarify his identity or facilitate the enforcement of his expulsion order; indeed, he had obstructed the investigations by providing the authorities with as little information as possible, and he had been acting in a threatening manner against the officials who were handling the matter. The Police Authority considered that all possible measures to enforce the expulsion order had not yet been exhausted. The Police Authority also noted that, according to a note written by the officials working for the Prison and Probation Board, the applicant had indicated that if the expulsion order were enforced, he would try to hurt any person getting in his way in order to avoid being expelled to Morocco.

The applicant appealed against the decision to the Migration Court (Migrationsdomstolen), requesting the court to quash the decision and release him immediately or, in the alternative, place him under supervision (ställa honom under uppsikt). The applicant referred to Article 5 of the Convention and claimed, inter alia, that it was disproportionate to keep him in detention since there was no realistic possibility of enforcing the expulsion order.

On 19 May 2014 the Migration Court rejected the appeal, mainly reiterating the reasoning of the Police Authority. However, the court also added, referring to the Court’s case-law, that (i) for the detention of a person for the purpose of the enforcement of an expulsion order to be lawful under Article 5 of the Convention, the national authorities had to be actively working on the enforcement of the expulsion order and (ii) it did not appear impossible that the enforcement order would be enforced within the foreseeable future. The court stressed that the authorities were still working actively on the enforcement of the expulsion order and it did not appear impossible that the expulsion order would be enforced within the foreseeable future. Thus, the continued detention of the applicant did not constitute a violation of Article 5 of the Convention.

The applicant requested the Migration Court of Appeal (Migrationsöverdomstolen) for leave to appeal, which, on 19 June 2014, granted him leave to appeal.

In the meantime, on 4 June 2014, the District Court convicted the applicant of molesting and assaulting the officials working in the detention centre where he had been held and of inflicting damage to the detention centre’s facilities and sentenced him to four months’ imprisonment. This judgment was not appealed against and thus became final.

The applicant started to serve the prison sentence immediately and, in accordance with Swedish law, the detention order was therefore revoked.

Consequently, on 4 July 2014, the Migration Court of Appeal struck the case out of its list of cases. However, in its decision the court noted that the question of whether there were exceptional reasons to keep the applicant in detention was a principled and important question that needed to be assessed by the court. The court noted that the applicant had been detained for an extraordinarily long time and even if it could be established that the authorities had been taking measures in order to enforce the expulsion order, it could also be noted that there had been periods of time when the authorities had been inactive. Moreover, contacts with the Moroccan authorities had not led to any concrete results and it could therefore on reasonable grounds be questioned whether the expulsion order actually could be enforced within the foreseeable future. The court stated that, even though the matter was being dealt with at a high political level, it still appeared unclear if and when the expulsion order could be enforced, and that it was hard to see what measures could be taken in order to enforce the expulsion order. Considering all of these circumstances, the court found, by two votes to one, that the continued detention of the applicant would not be proportionate.

On 11 September 2014 the Police Authority once again decided to detain the applicant in order to expel him. Upon the release of the applicant on probation, on 14 September 2014, the decision was enforced.

The applicant appealed against the decision to the Migration Court, requesting that he be released immediately or, in the alternative, that he be placed under supervision. The applicant once again referred to Article 5 of the Convention and claimed, inter alia, that it was disproportionate to keep him in detention since there was no realistic possibility of enforcing the expulsion order.

The Police Authority contested the applicant’s appeal, stating that it had intensified its work and that it had had a meeting with the Ministry of Justice to discuss what measures could be taken, and that the Minister of Justice had also handed over a letter to the Moroccan Minister of Internal Affairs. Moreover, the Ministry for Foreign Affairs and the Ministry of Justice had been in contact with the Moroccan Embassy in Stockholm.

On 16 September 2014 the Migration Court dismissed the appeal. Firstly, the court noted that there was a real and manifest risk that the applicant, upon release, would commit crimes and that there were legal grounds under Swedish law to detain him pending his expulsion. Moreover, the court found that the authorities had recently intensified their work and that the matter had been discussed between the Swedish and Moroccan Ministers for Foreign Affairs and that, in the light of those discussions, it appeared more probable that the expulsion could be executed within the foreseeable future. Given this, a continued detention could not be considered disproportionate and it was thus legitimate to detain the applicant. The court also noted that the interest in keeping the applicant in custody outweighed the applicant’s right to liberty and that it was not a sufficient measure merely to subject the applicant to supervision.

The applicant applied to the Migration Court of Appeal for leave to appeal against the judgment, maintaining his claims. On 29 September 2014 the Migration Court of Appeal refused him leave to appeal.

On 14 January 2015 the Police Authority once again reconsidered its decision and found that there were still reasons to keep the applicant in detention. The Police Authority stated that there were reasons to believe that the applicant, if released, would commit crimes of violence and that the Police Authority, even though it had been a long time since the applicant had initially been detained, had still actively been taking measures in order to enforce the expulsion order. Moreover, it noted that the applicant had not cooperated at all with the Swedish authorities in order to clarify his identity and facilitate the expulsion.

The applicant appealed against the decision to the Migration Court, requesting that the Police Authority’s decision be quashed and that he be released immediately or, in the alternative, that he be placed under supervision.

On 30 January 2015 the Migration Court rejected the appeal, mainly reiterating the reasoning of the Police Authority. However, the court noted, in particular, that the Swedish authorities, after the Migration Court of Appeal’s decision of 4 July 2014, had on several occasions tried to contact the Moroccan authorities and other international organs in order to investigate the applicant’s identity; it also noted that the period of time that had elapsed since the authorities had begun to deal with the matter at the highest political level was not unreasonably long, considering the extraordinary circumstances of the present case. It also noted that, since the authorities had continuously been taking measures to enforce the expulsion order, it could not be considered impossible to enforce the expulsion order within the foreseeable future. Moreover, considering that the applicant had not cooperated with Swedish authorities at all (for example he had not signed documents to facilitate the enforcement) and that he had been acting violently towards the officials, the court found that the time he had spent in detention could not be considered disproportionate. The court also noted that the applicant had indicated that he would use violence to stop a future expulsion of him.

The applicant lodged a request for leave to appeal against the judgment with the Migration Court of Appeal, which, on 17 February 2015, refused him leave to appeal.

As noted above, the applicant was initially detained with a view of expulsion on 21 September 2008. Between 21 January 2009 and 7 September 2016, numerous measures were taken by the Swedish authorities in order to enforce the expulsion order to Morocco.

By letters dated 31 October 2016 and 16 February 2017 the Government informed the Court about the following developments: On 24 October 2016 the applicant had submitted new information regarding his identity and country of origin to the Swedish police, stating that he was in fact an Algerian citizen. This information had made it possible for the Swedish and Algerian authorities to subsequently confirm his statement.

On 12 February 2017 the expulsion order was enforced and the applicant was expelled to Algeria.

A letter was sent to the Court by the applicant’s lawyer on 20 February 2017. The lawyer confirmed that the applicant was of Algerian nationality and had been expelled, and stated that he maintained the application.