Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicants, Ms Elena Laura Rău (“the first applicant”) and Ms Eliza Gâlea (“the second applicant”), are Romanian nationals who were born in 1943 and 1928 respectively and live in Iaşi. The first applicant was represented before the Court by Ms C. Drăgan, a lawyer practising in Iaşi. The second applicant was represented by Ms D. Beşliu, a non-lawyer. On 19 January 2016 the President of the Section had decided to give Ms Beşliu leave to act as representative of the second applicant pursuant to Rule 36 § 4 (a) of the Rules of Court.

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

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

On 31 March 2008 the applicants, who were both retired, instituted proceedings against the Iaşi Mayor’s Office seeking the annulment of a document signed by the second applicant during the communist regime, donating a house and its appurtenant plot of land located in the centre of Iaşi to the Romanian State.

By a judgment of 5 February 2009 the Iaşi District Court allowed the applicants’ action. It held that the city of Iaşi, represented by its mayor, had locus standi because it was the current owner of the property. Also, given that the applicants had been forced to donate the property, the donation agreement was null and void and therefore the proceedings initiated by them were not time-barred. The Iaşi Mayor’s Office appealed against the judgment.

By a judgment of 4 November 2009 the Iaşi County Court allowed the Iaşi Mayor’s Office’s appeal and quashed in part the first-instance court’s judgment. It held that the city of Iaşi, represented by its mayor, did not have locus standi because it had not been a party to the donation agreement signed by the second applicant. The donation had been made to the Romanian State. In accordance with the relevant domestic legislation, the State was legally represented by the Ministry of Economy and Finance. Moreover, the applicants had not proved their allegation that the city of Iaşi was the current owner of the donated property. The court upheld the remainder of the first-instance court’s judgment. The applicants lodged an appeal on points of law against the judgment.

On 5 February 2010 the Iaşi Court of Appeal noted that following its express request, the applicants had stated that the value of the donated immovable property was 1,500,000 Romanian lei (RON) (approximately 361,400 euros (EUR)). Relying on the relevant domestic legislation on stamp duty, the court established that the applicants had to pay RON 9,552 (approximately EUR 2,300) in stamp duty in order to have their appeal on points of law examined.

On 11 February 2010 the applicants, referring to Article 18 § 2 of Law no. 146/1997, challenged the way in which the appellate court had calculated the stamp duty. They asked the court to re-examine the amount of stamp duty due and to order the payment of a sum which represented half of the stamp duty they had paid in order to have the case examined by the firstinstance court. They argued that the second-instance court had not calculated the amount of stamp duty due on the basis of the property’s value, even though they had declared the same value for the property before that court as well. Moreover, the first-instance court had established that the stamp duty due in order to have their case examined had been that required for cases with a non-pecuniary object, and that therefore they were required to pay only half of the amount paid to the first-instance court in order to have their case examined by the last-instance court. Furthermore, they had initiated proceedings merely seeking the annulment of a donation agreement in respect of an immovable property; the proceedings would not have resulted in an immediate return of the property to its rightful owners or in an immediate increase in the value of their estate. They also argued that the declared value of the immovable property which had formed the basis for the calculation of the stamp duty was small compared with the actual market value of the property. Given that they were both retired persons, it was impossible for them to pay such a high amount in stamp duty. Consequently, by calculating the stamp duty based on the value of the property, the court had denied them access to justice and prevented them from recovering their home.

On 17 February 2010 the Iaşi Court of Appeal, sitting in chambers and composed of a different bench of judges from that which had examined the merits of the applicants’ case, dismissed the applicants’ challenge by a final interlocutory judgment. It held that given the object of the proceedings initiated by the applicants, Government Ordinance no. 212/2008 was applicable in their case. Consequently, the amount of stamp duty due had to be calculated based on the value of the immovable property, since the object of the applicants’ action was the annulment of a donation agreement in respect of an immovable property. Given the value of the property stated by the applicants, the amount of stamp duty payable by them had been calculated correctly.

By a final judgment of 19 February 2010 the Iaşi Court of Appeal dismissed the applicant’s appeal on points of law and upheld the judgment of 4 November 2009. Having noted the applicants’ statement that they were unable to pay the required stamp duty, it held that they had failed to fulfil their lawful duty to pay the aforementioned fee and that their appeal on points of law could therefore not be examined.

According to the evidence submitted by the applicants to the Court in September 2015, the first applicant had a taxable annual income of RON 25,804 (approximately EUR 5,760) and the second applicant had a taxable annual income of RON 13,932 (approximately EUR 3,110). The first and the second applicants’ net annual income for the same period was RON 22,992 (approximately EUR 5,143) and RON 12,072 (approximately EUR 2,700), respectively.

The relevant provisions of the former Romanian Code of Civil Procedure, in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement before the first-instance court, read as follows:

“1. Legal aid includes:

- the granting of an exemption, a reduction, an instalment plan or a postponement for the payment of stamp duty ...;

Legal aid may be granted at any time during the trial, in full or in part.”

“1. In the circumstances provided for under Article 75 § 1(1), an application for legal aid shall be made to the court in writing ... in accordance with the law”.

“1. The application [for legal aid] shall include ... written proof of the applicant’s income ...

The court shall examine the application and may request clarifications and evidence from the parties or written information from the competent authorities ...

The court shall examine the application in chambers without summoning the parties, and deliver an interlocutory judgment.”

“1. The interlocutory judgment mentioned in Article 77 § 3 ... is not amenable to any form of appeal.”

The relevant provisions of Law no. 146/1997 on stamp duty, in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement before the first-instance court, read as follows:

“Actions and claims ... lodged before the courts ... shall be subject to stamp duty ... the calculation of which, except for in circumstances provided for by law, may differ, depending on whether the object of the application can be valued financially.”

“1. Actions and claims ... lodged before the courts [in respect of matters] which can be valued financially are subject to the following stamp duty:

(g) if the object of the action or claim is valued at more than RON 193,948, the stamp duty is RON 5,126 plus 1% of the amount which is over 193,948;

Stamp duty is calculated on the basis of the value of the object of the action or claim, as stated in the application ...”

“1. Actions or claims ... lodged before the courts [in respect of matters] which cannot be valued financially are subject to the following stamp duty:

(a)1 RON 12 for an application seeking the annulment ... of an official document;

“1. Appeals or appeals on points of law lodged against court judgments are subject to stamp duty of 50% of:

- the stamp duty payable for ... an application [in respect of matters] which cannot be valued financially and which was examined by a first-instance court;

- the stamp duty payable for the contested sum in the case of an application [in respect of matters] which can be valued financially;

“All other actions and claims ... [in respect of matters] which cannot be valued financially are subject to stamp duty of RON 8, except for those lawfully exempted from stamp duty.”

“1. The amount of the stamp duty payable is set by the court ...

An applicant has three days from the date on which the court calculated the sum due or notified the applicant of the sum due to ask the same court to re-examine the way in which the stamp duty was calculated.

The request for re-examination is heard ... in chambers by a different bench of judges and without summoning the parties.

If the request for re-examination is allowed, the stamp duty is returned in full or in part, as the case may be.”

If ... during the trial there are elements which determine a higher stamp duty, the court shall ask the applicant to pay the relevant amount ...

A court called upon to examine an appeal or an appeal on points of law ... shall order the applicant to pay the relevant stamp duty if it notes that the lawful amount of the fee was not paid during the previous stages of the proceedings.”

“1. A court may grant an exemption, a reduction, an instalment plan or a postponement for the payment of stamp duty in accordance with the conditions set out in Articles 74-81 of the Romanian Code of Civil Procedure ...”

Government Ordinance no. 51/2008 on legal aid in civil matters, which entered into force on 25 April 2008, repealed Article 21 § 1 of Law no. 146/1997 and Articles 74-81 of the former Romanian Code of Civil Procedure. Subsequently, Government Ordinance no. 212/2008, which entered into force on 12 December 2008, reinstated and amended Article 21 § 1 of Law no. 146/1997 in so far as natural persons could be granted exemptions, reductions and postponements of the payment of stamp duty in accordance with the conditions set out in Government Ordinance no. 51/2008. The relevant provisions of the latter ordinance, at the time when the applicants challenged the way the stamp duty had been calculated, read as follows:

“1. Public legal aid may be granted in the following ways:

d) exemptions, reductions, instalment plans or postponements in respect of court taxes prescribed by law, including those payable during the enforcement phase of the proceedings.”

“Public legal aid may be granted, separately or cumulatively, in any of the forms provided for in Article 6, but their annual amount shall not exceed the equivalent before tax of 12 minimum-wage monthly salaries ...”

“1. Any person whose average net monthly income for each family member in the last two months prior to his/her application was less than RON 500 may be granted public legal aid in any of the forms provided for in Article 6. In such circumstances, the sums that represent public legal aid shall be paid in full by the State.

If the average net monthly income for each family member in the last two months prior to an application was less than RON 800, the State shall pay 50% of the sums that represent public legal aid.

If the estimated or known costs of the proceedings are of a nature that could limit an applicant’s access to justice, public legal aid may be granted also in other circumstances, proportionate to the needs of the applicant.”

“Any occasional income, such as wages, rents, retainers ... and other similar income, shall be taken into account in establishing a person’s income ...”

“1. An application for legal aid shall be lodged with the court which is competent to examine the merits of the main proceedings ...”

“1. Legal aid may be granted anytime during the trial ... and shall be maintained for the duration of the procedural stage for which it was requested.

The application for legal aid is exempted from court fees.”

“1. The application for legal aid shall be made in writing and shall include information ... on the financial situation of the applicant and his family. Proof of the applicant’s and his family’s income, as well as of their financial obligations, shall be attached to the application ...

The court may ask for any clarifications or proof from the parties and for written information from the competent authorities.”

“1. The court shall examine the application for legal aid in chambers, without summoning the parties, and deliver a reasoned interlocutory judgment.

The interested party has five days from the notification of the interlocutory judgment to apply for a review of the court’s decision if the application for legal aid was dismissed.

A different bench of judges shall review the decision in chambers and shall deliver a final interlocutory judgment.”

“1. If the court fees payable are double the net monthly income of the applicant’s family for the month prior to his or her application for legal aid and if the court does not consider appropriate a more favorable form of legal aid, an instalment plan shall be set up in such a way that the monthly rate due shall not be higher than half of the net monthly income of the applicant’s family.

The instalment plan may be extended for a maximum of 48 months.”

On 9 June 2008 the High Court of Cassation and Justice (“the Court of Cassation”) delivered a judgment on an appeal in the interests of the law in order to clarify divergent domestic practice concerning, inter alia, the pecuniary or non-pecuniary nature of actions seeking, for example, the annulment of official documents such as donation agreements. It held that this type of action was pecuniary in nature. The judgment of the Court of Cassation was published in Official Gazette no. 830 of 10 December 2008.

Government Ordinance no. 212/2008 entered into force on 12 December 2008 and amended Law no. 146/1997, including paragraph 1 of Article 2. The new paragraph 1 applies to actions and claims seeking the annulment of official documents concerning pecuniary matters.

Law no. 276/2009, which entered into force on 16 July 2009, confirmed the provisions of Government Ordinance no. 212/2008 with certain amendments. However, the amendment made by Government Ordinance no. 212/2008 to Article 2 of Law no. 146/1997 was maintained.

Article 329 § 3 of the former Romanian Civil Procedure Code in force at the time when the applicants initiated the proceedings seeking the annulment of the donation agreement provided that judgments delivered in the interests of the law had no impact on judgments which had already been delivered or on the situation of the parties involved in those proceedings. However, any solution adopted by the Court of Cassation was binding on the domestic courts.


Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1962 and lives in Novska. He is of Albanian origin.

In 1960 the applicant’s parents fled Albania as political refugees and settled in Kosovo, which was at the relevant time an autonomous province of Serbia. They were granted refugee status in the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The SFRY was a federal State composed of six republics: Bosnia and Herzegovina, Croatia, Serbia (with two autonomous provinces, Vojvodina and Kosovo), Slovenia, Montenegro and Macedonia.

The applicant was born in Kosovo soon after his parents’ arrival to the SFRY. In 1979 the applicant, at the time seventeen years old, came from Kosovo to Croatia. He settled in Novska, where he has lived ever since.

The applicant has no family in Croatia. Since moving to Croatia, his parents have died in Kosovo. For a while, the applicant maintained a relationship with his two sisters, who lived in Germany and Belgium (see paragraphs 21, 29 and 35 below). In 2014 he declared to the domestic authorities that his only close relative was his sister in Belgium, with whom he had lost contact (see paragraph 48 below).

In 1987 the applicant applied for a permanent residence permit to the relevant police station in Novska.

He was instructed by the Novska police that he should regularise his status in Kosovo, where he had been officially registered. However, as the applicant refused to do that, he was provided with a temporary residence permit in Novska for the period between 4 January and 30 June 1988, pending the determination of his request for a permanent residence permit.

At the relevant time, the applicant possessed a certificate issued by the SFRY authorities in Kosovo in 1988 indicating that he had been an Albanian national with the status of a foreigner holding a temporary residence permit in the SFRY. The certificate also indicated that the applicant’s parents had been nationals of Albania living in the SFRY as refugees.

On 2 February 1989 the Ministry of the Interior of the then Socialist Republic of Croatia informed the Novska police that the applicant’s application for a permanent residence permit in the SFRY had been refused in accordance with the government policy according to which Albanian refugees should be instructed to apply for the SFRY citizenship.

On 22 February 1989 the applicant was interviewed by the Novska police in connection with the Ministry of the Interior’s instruction. He explained that he had been granted a temporary residence permit by the relevant authorities in Kosovo which was valid until July 1989. He also stated that he had attempted to travel to Germany but had not had a valid visa and had thus been refused entry. At the time he was waiting for a visa for Belgium. The applicant further explained that he hoped to be granted a permanent residence permit but that he was not interested in acquiring SFRY citizenship as that would not provide him with any security. He considered that by acquiring SFRY citizenship, he should be granted a flat or a house in private ownership just as one had been granted to his father when he had come from Albania as a refugee. However, as he would not be granted any property, he refused to apply for SFRY citizenship.

On 23 February 1989 the Novska police informed the Ministry of the Interior that the applicant had refused SFRY citizenship. The report further explained that the applicant was employed in a garage of a private entrepreneur, M.R., and that he had several times contacted the Novksa police insisting that he be granted permanent residence. The report also indicated that according to the available information the applicant had secured a temporary residence permit from the authorities in Kosovo until July 1989.

A further report of the Novska police to the Ministry of the Interior of 26 February 1990 indicated that the applicant was still living in Novska and working in a restaurant. As his temporary residence permit issued by the authorities in Kosovo had expired, he had been instructed to regularise his status. This report also contains a handwritten note dated 12 June 1990 according to which the applicant had come to the police station and presented an identity card for a foreigner with temporary residence status in the SFRY issued by the relevant authorities in Kosovo and valid until 5 November 1991.

On 25 June 1991 the Croatian Parliament (Sabor Republike Hrvatske) declared Croatia independent of the SFRY, and on 8 October 1991 all ties between Croatia and the SFRY were severed.

Meanwhile, war broke out in Croatia and the applicant was called up for mandatory civilian service with the local authorities. On 22 March 1992 the Novska police issued a permit to the applicant to move freely within the region of Novska-Kutina in order to perform his mandatory civilian service. The permit was valid until 31 December 1992.

On 9 June 1992 the applicant applied for Croatian citizenship with the Novska police. He submitted that he had been living at his current address in Novska since 1980s, and that he had been a refugee from Albania. He also explained that he was working in a garage of a private entrepreneur, Z.A.

On 20 July 1992 the Novska police forwarded the applicant’s application to the Ministry of the Interior of the Republic of Croatia (Ministarstvo unutarnjih poslova Republike Hrvatske – hereinafter “the Ministry”) with a suggestion that it be granted.

On 2 November 1992 the Ministry instructed the Novska police that they had failed to provide a report concerning the applicant’s personal circumstances and information on his residence in Croatia.

In connection with the above application, on 16 December 1992 the applicant was interviewed by the Novska Police. In his interview, the applicant explained that he had Albanian nationality as he had been a refugee from that country. He further explained that he had come to Novska in 1979 where he had first worked as a waiter until 1984. Between 1986 and 1989 he had worked as a car mechanic for a private entrepreneur, M.R., and since 1989 for Z.A. During the war he had worked as a car mechanic for the police and the army. He was not married and did not have children. He had a sister living in Germany and one living in Belgium. He also had a brother living in Kosovo and another brother living at an unknown place in Albania. His parents lived in Kosovo.

On 18 December 1992 the Novska police informed the Ministry of the obtained information explaining that the applicant had lived in Novska as a foreigner since 1980 and that he had Albanian citizenship.

In May 1993 the national intelligence agency informed the Novska police that there was nothing preventing the applicant from being allowed to acquire Croatian citizenship.

According to the available information, the file concerning the applicant’s application also contained a birth certificate issued by the SFRY authorities in Kosovo on 23 December 1987 according to which the applicant did not have any nationality.

On 14 June 1993 the Ministry issued an assurance that the applicant would obtain Croatian citizenship if he obtained a release or provided evidence that he had renounced his Albanian citizenship within a period of two years. In its reasoning to this assurance, the Ministry explained that the applicant had met all the necessary conditions to be granted the assurance and thus Croatian citizenship. It also referred to section 8a of the Croatian Citizenship Act (see paragraph 60 below).

Upon the expiry of the above-noted period of two years, on 16 February 1995 the applicant lodged a new application for Croatian citizenship with the Novska Police. He explained that he was a national of Albania and that he had been living in Croatia since 1979. He was asking for Croatian citizenship in order to obtain legal certainty of his position. He stressed that he was ready to renounce his current citizenship and that he had nowhere to go back to in Kosovo. He also explained that he was employed as a car mechanic.

Meanwhile, the applicant had obtained a permit for extended residence of a foreigner (he was considered to be an Albanian citizen) from the Novska police for the period between September 1993 and September 1994, which was first extended until September 1995 and then January 1996. He was also granted a driving licence on 14 April 1994 valid until 19 November 2027.

In February 1995 the intelligence agency informed the Novska police that there was no bar to the applicant’s acquiring Croatian citizenship.

A report on the applicant’s personal circumstances prepared by the Novska police on 8 March 1995 indicated that he had lived in Croatia since 1979. The report contains a statement that the applicant had an Albanian passport issued in Kosovo (then part of Serbia) and that he had allegedly disappeared from his place of residence during the war in Croatia. It also suggests that the applicant socialised with individuals of similar characteristics who were involved in trading of grey-market goods and repairing cars. Moreover, the report alleged that the applicant had never tried to regularise his status in Croatia. The report also indicated that the applicant’s parents had died and that he had two sisters, who lived in Germany and Belgium.

On 28 March 1995 the Novska police informed the Ministry that the applicant had had a registered residence in Croatia since September 1993 (see paragraph 27 above).

On 3 August 1995 the Ministry dismissed the applicant’s application for Croatian citizenship on the grounds that he did not have a registered residence in Croatia for an uninterrupted period of five years as required by section 8(1)(3) of the Croatian Citizenship Act (see paragraph 60 below).

The applicant challenged the above decision before the Administrative Court (Upravni sud Republike Hrvatske). He argued that he had had a registered residence in Novska since 1979 and that his personal circumstances had been well known to the Novska police. He also stressed that he was in employment and that he possessed an identity card and a driving licence issued by the Novska police.

On 29 May 1996 the Administrative Court dismissed the applicant’s administrative action on the grounds that there was no evidence that he had had a registered residence in Croatia since 1979. In fact, according to the Novska police’s report of 28 March 1995 (see paragraph 29 above), he had had a registered residence in Novska, as a foreigner with extended residence status, since 24 September 1993. In these circumstances, the Administrative Court considered that no available evidence suggested that the applicant had had an uninterrupted registered residence in Novska for a period of more than five years as required by section 8(1)(3) of the Croatian Citizenship Act.

On 13 November 2001 the applicant asked the Ministry to grant him a permanent residence permit. He argued that he was employed and had sufficient means of subsistence and a strong interest to live in Croatia. Together with his application, the applicant provided the birth certificate issued by the SFRY authorities in Kosovo on 23 December 1987 (see paragraph 24 above). He also provided his employment booklet according to which he had been employed in the periods between 1 July 1986 and 15 July 1987, 1 August 1987 and 1 December 1988, and 1 January 1989 and 31 December 1989 in the garage of M.R.

A report on the applicant’s personal circumstances prepared by the Novska police on 24 April 2002 indicated that the applicant was a national of the Federal Republic of Yugoslavia (Serbia and Montenegro – hereinafter “the FRY”). According to the report, the applicant had settled in Novska in 1979 and had first worked in the garage of Z.A. until 1984; and then, between 1985 and 1990, in the garage of M.R. The report further indicated that the applicant was at that time unemployed and supported by his sisters in Germany and Belgium. He had lived in Novska for twenty-two years and had never left Croatia. The only document which he possessed was a driving licence. Up to that point he had been prosecuted only for a minor offence related to the status of aliens.

On 29 April 2002 the Ministry instructed the Novska police that the applicant should also be interviewed in connection with his application.

The applicant was interviewed by the Novska police on 10 June 2002. He explained that after he had been given an assurance of eligibility for Croatian citizenship (see paragraph 25 above) he had contacted the Albanian embassy several times. However, they had at first delayed their response and then dismissed his request. He had therefore been unable to obtain a certificate of renunciation of Albanian citizenship within the relevant period of two years. The applicant further explained how his second application for Croatian citizenship had been refused because he had not had a registered residence in Croatia for five years (see paragraphs 2633 above).

In his interview the applicant also stated he did not have a travel document of any country. So far he had always relied on his Albanian citizenship but whenever he had tried to obtain Albanian travel documents, he had been orally refused. The same was true for his attempts to obtain travel documents from the FRY. The applicant further explained that he did not have a family and was not married. He wanted to stay in Novska because there he knew a lot of people and would be able to make a living there.

On 3 July 2003 the Ministry dismissed the applicant’s application on the grounds that he did not meet the necessary statutory requirements under section 29(1) of the Movement and Stay of Foreigners Act (see paragraph 61 below). In particular, he was not married to a Croatian national or an alien with a permanent residence in Croatia, and he did not have three years of uninterrupted employment in Croatia. The Ministry also held that there was no particular interest of Croatia in granting him residence under section 29(2) of the Movement and Stay of Foreigners Act. The Ministry considered the applicant to be a national of Serbia and Montenegro.

The applicant challenged this decision before the Administrative Court. He argued that the fact that he had previously been a national of Serbia and Montenegro and had resided in Croatia since 1979 qualified him for permanent residence in Croatia. The applicant also contended that it was difficult for him to find a formal employment as he did not have permanent residence permit for Croatia.

On 17 August 2006 the Administrative Court dismissed the applicant’s administrative action as unfounded. The Administrative Court held that the Ministry had properly established that the applicant had failed to meet the statutory requirements under section 29(1) of the Movement and Stay of Foreigners Act as his employment booklet did not show that he had worked for an uninterrupted period of three years. Moreover, the Administrative Court considered that nothing in the circumstances of the case suggested that the applicant should be granted permanent residence under section 29(2) of that Act.

The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decisions of the lower bodies. He argued that he had continuously lived in Croatia since 1979 and that he had worked. He argued that he should have been granted permanent residence.

Meanwhile, the applicant obtained a note from M.R., for whom he had worked, attesting that he had been employed by M.R. in the period between 1986 and 1989 and that he had proved to be a hardworking and responsible employee. M.R. also promised to employ the applicant again and to secure him accommodation should he be granted permanent residence.

On 1 October 2008 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded endorsing the reasoning of the Administrative Court.

In the period between 26 July 2011 and 27 August 2013 the police three times temporarily extended the applicant’s residence for periods of one year by reference to the humanitarian grounds under the Aliens Act (see paragraph 62 below). In the relevant decisions, the applicant was considered to be a national of Kosovo.

When extending his temporary residence permit on humanitarian grounds on 27 August 2013 for another year under section 65(1)(5) of the Aliens Act, the applicant was requested to provide a valid travel document as provided under section 52(4) of the Aliens Act (see paragraph 62 below).

On 10 June 2014 the applicant again applied for an extension of his temporary residence permit. He argued that he did not have a travel document of Kosovo as he had not been there nor did he have any interest in going there. He explained that he just wanted to regularise his status in Croatia.

In connection with his application for an extension of his temporary residence permit, in July 2014 the applicant was interviewed by the Novska police. A note on his interview indicated that the applicant was a national of Kosovo and that he had knowledge of the Albanian language. It also stated that the applicant had been employed by M.R. in the period between 1981 and 1991 and that during the war in Croatia he had worked for Z.A. repairing military and police vehicles until 1993. Since then he had been unemployed but had been earning money by helping out on the farms in the Novska area. His parents had died and the only close relative he had was a sister living in Belgium, with whom he had lost contact. The note further explained that the applicant’s neighbours had been interviewed and that they confirmed that he had been a good and hardworking person. The note also indicated that the applicant had committed several minor offences for which he had been fined and a criminal complaint had been lodged against him in connection with a road accident in which he had been involved.

On 30 July 2014 the Ministry instructed the Novska police that there were no grounds to extend the applicant’s residence since he had failed to provide a valid travel document.

The Novska police invited the applicant for an interview on 28 August 2014 at which he was informed of the Ministry’s instruction. The applicant explained that he had come to Croatia in 1979 and had no connection to Kosovo. He had had the status of a refugee from Albania until he had reached the age of eighteen, since that status had been granted to his parents. He stressed that he had lived his whole life in Novska. He also promised to contact the embassy of Kosovo in order to obtain a travel document and asked the Novska police not to dismiss his request.

On 16 September 2014 the Novska police dismissed the applicant’s application for the extension of his temporary residence on humanitarian grounds. It held that the applicant did not meet the requirements for granting further temporary residence status as he had failed to provide a valid travel document and the Ministry had not given its consent to an extension of his residence permit.

On 7 October 2014 the applicant challenged the decision of the Novska police before the Ministry, relying on Articles 8 and 14 of the Convention and Article 1 of Protocol No. 12. He argued that he had had SFRY citizenship, which he had lost in unclear circumstances following the dissolution of that country. As he had come from Kosovo to Croatia, it was possible that he was considered to be a national of Kosovo by the Croatian authorities, but in reality he did not have citizenship of that territory. The applicant also argued that he was not a classic alien but an individual who found himself in the very specific circumstances of the dissolution of the SFRY in a situation whereby he was no longer able to provide a valid travel document. He also contended that he had been erased from the register of domicile and residence in Croatia without ever being informed thereof. He was therefore unable to regularise his residence status in Croatia and thus to find employment, to move freely without valid documents or to travel, which was neither a lawful nor a proportionate interference with his Article 8 rights. Moreover, the applicant contended that there was a gap in the relevant domestic law as the status of individuals who found themselves in his situation following the dissolution of the SFRY was not regulated. Accordingly, a strict formal application of the Aliens Act could not lead to a solution in his case.

On 30 January 2015 the Ministry dismissed the applicant’s appeal. It referred to the applicant’s previous attempts to regularise his status in Croatia, which had all been unsuccessful. According to the Ministry, this showed that he had not been erased from the relevant registers without being informed. The Ministry further stressed that the applicant had been invited several times to provide a valid travel document and he had promised to contact the embassy of Kosovo in this connection but had failed to do so. Accordingly, in the Ministry’s view, his arguments that he had not been a typical alien and that the relevant authorities had formalistically applied the relevant law had been misplaced. Moreover, there was a possibility for him to obtain a temporary travel document in order to travel to his country of origin so as to obtain a valid travel document.

On 25 February 2015 the applicant challenged the Ministry’s decision before the Zagreb Administrative Court. He contended that he had been a national of the SFRY and that he had had a registered residence in Novska since he had arrived there in 1979, which had been erased at a later stage. He also relied on his available birth certificate showing that he did not have any citizenship (see paragraph 58 below). He also reiterated his complaints of an unjustified infringement of his Article 8 rights by a decision of the administrative authorities and a breach of Article 14 of the Convention and Article 1 of Protocol No. 12. On 21 April 2017 the Zagreb Administrative Court dismissed the applicant’s administrative action endorsing the reasoning of the Ministry’s decision. The applicant challenged these findings before the High Administrative Court (Visoki upravni sud Republike Hrvatske) and the proceedings are still pending.

Meanwhile, on 4 September 2015 the Novska police granted the applicant temporary residence status on humanitarian grounds for a further year inviting him to provide a valid travel document. The Novska police held that the applicant was a national of Kosovo whose parents had come from Albania to Kosovo and that they had had the status of refugees in the SFRY. It also stressed that the Ministry had given consent to the extension of the applicant’s temporary residence irrespective of the fact that he had not provided a valid travel document.

On 4 October 2016 the Novska police extended the applicant’s residence status on humanitarian grounds for a further year. It referred to the same reasons as cited above.

According to the applicant’s handwritten statement to his representative of 7 July 2015, he never had Albanian citizenship. He explained that he had contacted the Albanian embassy after he had been given an assurance that he had qualified for Croatian citizenship but they had told him that he had not been a national of that State (see paragraphs 25 and 37 above). The applicant further stressed that in his contacts with the police concerning the regularisation of his residence status, the police officers had always suggested that he had been an Albanian national. He also explained that he had been born in Kosovo and that his parents had had SFRY citizenship. He had come to Croatia in 1979. He simply wanted to regularise his status in Croatia.

According to a birth certificate issued by the Kosovo authorities on 10 June 2009, the applicant’s parents had had Kosovo nationality but the applicant did not have that nationality.


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1962 and lives in Ankara.

The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

At the time of the events giving rise to the application the applicant was serving as a chief police officer in Ankara.

On 12 April 2002 a woman named S.K. filed a criminal complaint with officers at Demirfırka police station, alleging that she had been taken into a police car by two officers on the pretext of her being a suspect. Afterwards, they had driven her around in the car and finally had taken her to an empty plot of land where she had been raped in the car by one of the police officers. He had been wearing glasses and had held a police radio in his hand. She identified the vehicle’s licence plate.

The applicant and the other police officer were immediately called into the police station for questioning as they had been assigned to the vehicle which had the licence plate identified by S.K.

In his statement to the police, made in the presence of his lawyer, the applicant said that he had picked up S.K. around 2 a.m. while he was patrolling with his colleague, S.A., on Talatpaşa Boulevard. He submitted that S.K., who had looked intoxicated, had hailed them, stopped their car, and told them that she worked as a “konsomatris”, a bar hostess who entertains male guests by keeping them company. She had asked for their help to go to a safe place and the applicant had offered to take her to her home, which she had declined. According to the applicant they had also offered to take her to the police station, which she had also declined. Finally, they had taken her to S.A.’s home with the intention of sobering her up. The applicant stated that when S.A. was in the kitchen preparing something to eat, S.K. had started behaving strangely, taking off her clothes and acting in a sexually inviting manner. The applicant said that as a result of being aroused he had simply ejaculated in his own hand but had not touched her. He had then called S.A. and told him that they had to leave immediately. The applicant stated that they had left S.K. in front of a hotel at 3 a.m. and had continued with their patrol until they had been called into the police station for questioning.

S.A. confirmed the applicant’s version of events in his statement to the police on the same day.

In an additional statement to the police, also made on the same day, S.K. told the police that she could not remember whether the police officers had taken her to an apartment or some other place as she had been very intoxicated.

A forensic medical examination of S.K. was carried out on the same day, showing that she had no bruises on her body.

A forensic expert report drafted on 15 April 2002 stated that the underwear that the applicant had been wearing on the night in question had S.K.’s and his own DNA on it. Furthermore, napkins found in the rubbish bin on the balcony of S.A.’s apartment had traces of the applicant’s semen.

On 6 June 2002 the Ankara governor decided to authorise the prosecution of the applicant and S.A. for alleged rape and abuse of authority. The applicant lodged an objection with the Ankara District Administrative Court seeking annulment of the governor’s decision, but it was dismissed.

On 15 November 2002 the Ankara public prosecutor filed an indictment with the Ankara Criminal Court of First Instance, charging the applicant and S.A. with abuse of public authority and the unlawful use of a public vehicle under Article 240 of the former Turkish Criminal Code and section 16 of the Law on Vehicles (Law no. 237).

In her statement in the first-instance proceedings, S.K. said that she had flagged down a police car that day to ask for help. As she had been intoxicated, she could not remember exactly what had happened later or which officer had raped her.

The chief public prosecutor submitted an opinion on the merits and stated that the applicant’s conduct should be reclassified as rape and unlawful detention and that of S.A. as having aided and abetted those acts. He therefore argued that the case should be referred to the Ankara Assize Court, which has jurisdiction to hear such charges.

On 13 July 2004 the Ankara Criminal Court of First Instance ruled that it did not have jurisdiction to hear the case. It found that the offences committed by the applicant while performing his official duties were rape and the unlawful detention of an adult, which were governed, inter alia, by Articles 251, 416 § 1 and 429 § 1 of the former Criminal Code, and the unlawful use of a public vehicle, which came under section 16 of Law no. 237. It stated that those offences had to be tried by assize courts and it therefore referred the case to the Ankara Assize Court.

At a hearing held on 24 March 2005, the Ankara Assize Court heard S.K. who, contrary to her previous statements, submitted that the officers had not raped her and had not taken her anywhere without her consent. She then submitted that she wished to withdraw her complaint.

On 13 September 2005 the Ankara Assize Court acquitted the applicant and S.A. of all charges, holding that there was no evidence of force on S.K.’s body, one of the constituent elements of the offences of rape and unlawful detention. The court further held that despite S.K.’s statement of 24 March 2005, the forensic report of 15 April 2002 had established that the applicant had had intercourse with her. In the absence of evidence that corroborated the fact of the applicant having forced himself on S.K., it could not be established beyond doubt that the act of sexual intercourse itself had not been consensual. The court stated in that connection that even if S.K. had been drunk that night, her allegations of rape and of being held against her will needed to be supported by some sign of resistance. In the light of the conclusion that there had been no indication of a criminal offence committed by the police officers, the court then held that the applicant and S.A. could not be deemed to have committed the separate offence of the unlawful use of a public vehicle. It therefore acquitted them of all the charges.

On 21 September 2005 the acquittal became final as no appeals had been made.

In the aftermath of the events of 12 April 2002 a preliminary disciplinary investigation was launched against the applicant and S.A. on 24 April 2002.

On 2 and 29 May 2002 the applicant was questioned in relation to the allegations of rape against him. He submitted that he had not had sexual intercourse with S.K. He repeated his earlier statements that S.K. had seduced him to the point where he had had to ejaculate in his own hand. The applicant was also requested to submit a written defence statement. He wrote that he had taken S.K. into the police car with the intention of helping her and had not forced himself on her, as alleged by S.K. He pointed out that the forensic expert evidence had established that there had been no traces of violence, whether on S.K.’s body or in the form of any other type of evidence, such as damage to property or blood stains at S.A.’s apartment or inside the police car.

An investigation report dated 6 June 2002, prepared by the police investigator, concluded that the applicant had committed the offence of rape, while S.A. was guilty of the offence of conduct unbecoming and incompatible with the civil service and therefore recommended that the applicant be sanctioned with a deferral of advancement to a higher rank for a period of twenty-four months. The report further stated that a recommendation for a separate criminal investigation against the applicant and S.A. had already been submitted to the governor’s office for authorisation.

On 28 November 2002, the Supreme Disciplinary Council found the applicant guilty of abuse of his authority as a police officer and of sexually assaulting S.K. Noting that the applicant’s appraisal scores had only been average for the years 1999 and 2000, and taking account of the shameful nature of the act he had committed, it found that the applicant could not be given a penalty that was less severe than the one decided on. The relevant parts of the decision read as follows:

“... the victim complained to the police and confirmed the event by giving the licence plate number of the vehicle and accurately describing the officer as wearing glasses and holding a police radio in his hand. The applicant, on the other hand, hid the facts by denying that he had had intercourse with S.K. [D]espite the fact that the vaginal examination of the victim did not reveal the presence of any active or passive semen, the victim’s statement that she was menstruating on the night in question and the forensic evidence finding traces of both the applicant’s and S.K.’s DNA on the applicant’s underwear and the two napkins found in S.A.’s apartment containing the applicant’s DNA, point to the conclusion that the applicant must have ejaculated prematurely before sexual intercourse. He has therefore committed the offence of ‘sexual assault’ and he furthermore used his position as a police officer by calling the victim a ‘suspect’ in order to lure her into the police car ... Criminal proceedings are pending against the applicant on charges of abuse of authority under Article 240 of the Turkish Criminal Code.

... It has been decided unanimously to dismiss the accused from the police force, in accordance with section 8(6) and (7) of the Disciplinary Regulation of the Security Forces on the grounds that it has been proven that he has committed the offence of sexual assault and of using his position as a police officer for personal ... advantage.”

On an unspecified date the applicant objected to the Supreme Disciplinary Council’s decision before the Ankara Administrative Court. The applicant argued that his dismissal on the basis of a finding that he had committed sexual assault, although he had not been found guilty of that offence by a criminal court, had violated his right to the presumption of innocence.

On 4 July 2003 the Ankara Administrative Court dismissed the applicant’s case, holding that the decision to dismiss the applicant from the police force had been in accordance with the law. The relevant parts of the judgment read as follows:

“Acts, conduct and behaviour of the kind listed in section 8(6), ‘... rape, sexual assault, ... or attempting to commit any of those offences’ and in section 8 (7), ‘using his position as a police officer for his own or another person’s advantage’, are sanctioned with dismissal from the police force.

After examination of the file, it appears that the case concerns the applicant’s dismissal from the police force on the basis of a disciplinary investigation which established that he had intercourse with a woman without her consent on the pretext of calling her a suspect .., by asking her to get into a police car so that he could verify her identity at the police station, although in the end he took her to a piece of empty land and had intercourse with her without her consent.

On the basis of the case file, statements, the forensic report and other information, the veracity of the accusation is reinforced and therefore the decision to dismiss the applicant is in accordance with the law.”

On 13 March 2006 the Supreme Administrative Court dismissed the applicant’s appeal by a majority by endorsing the reasons provided by the Ankara Administrative Court. One judge out of the five expressed a dissenting opinion, reasoning that the applicant had been acquitted of the charges in the parallel criminal proceedings, including of rape, and that therefore the disciplinary decision to dismiss him from the police force on those grounds could no longer be upheld. The dissenting judge further argued that the courts should have reclassified the applicant’s conduct as conduct that was incompatible with the reputation and trust inherent in the functions of an official and sanctioned him with the corresponding penalty of the deferral of moving to a higher rank for a period of sixteen months.

On 23 June 2006 the applicant submitted a request to rectify the decision of 13 March 2006, arguing in the main that the fact that he had been acquitted in the criminal proceedings and had been found innocent of the allegations of rape had not been taken into account in the Supreme Administrative Court’s decision. He further argued that the contradictory conclusions of the criminal and administrative courts in relation to what had happened on the night in question had cast doubt on his innocence.

The Supreme Administrative Court dismissed the applicant’s request on 17 June 2008, holding that none of the reasons for rectification he had put forth fell within the exhaustive list of permissible grounds for such a decision in section 54 (1) of the Administrative Procedure Act (Law no. 2577).

In their observations the Government submitted that on 26 November 2008 the applicant had brought proceedings against the Ministry of the Interior and had requested that the reopening of the proceedings for his dismissal from the police force. The applicant relied on the Ankara Assize Court’s final judgment of 13 September 2005, acquitting him of the charges of, inter alia, attempted rape and abuse of authority. He argued before the Ankara Administrative Court that the establishment of his innocence should be regarded as new grounds for reopening the dismissal proceedings. On 27 May 2009 the applicant’s request was dismissed. The Court was not provided with a copy of that decision; however, the Government provided a summary of parts of it, which was not contested by the applicant. According to the Government, the administrative court held that “the decision of the Assize Court was available on the dates the Supreme Administrative Court examined the applicant’s appellate review and request for rectification of the decision, and that accordingly the court in question made an assessment of the decision rendered by the Assize Court”.

According to the information submitted by the Government, the applicant did not appeal against that decision.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

The applicant was born in 1954. He lived in the Republic of Dagestan and was the mayor of Makhachkala between 1998 and 2013. He is currently detained in correctional colony no. 6 in Orenburg Region (“the correctional colony”).

In June 2013 the applicant was arrested and placed in custody pending criminal proceedings against him. He suffered from several illnesses, including a urinary condition, a rectal prolapse, hepatitis C, and type 2 diabetes. He was confined to a wheelchair and had to use catheters and enemas to urinate and defecate.

On 12 August 2013 he lodged an application with the Court complaining that he was not receiving adequate medical assistance in detention. Four days later the Court indicated to the Russian Government under Rule 39 of the Rules of Court that he should be examined by medical experts.

On 27 November 2014 the Court delivered a judgment in the case, finding, inter alia, that there had been violations of Articles 3 and 34 of the Convention on account of the authorities’ failure to provide the applicant with adequate medical care or to comply with the interim measure indicated (see Amirov v. Russia, no. 51857/13, §§ 75, 93, and 94, 27 November 2014).

Relying on Article 46 of the Convention the Court held that the authorities should admit the applicant, at that time detained in remand prison no. 4 in Rostov-on-Don, to a specialised medical facility where he should remain under constant medical supervision and should be provided with adequate medical services corresponding to his needs; alternatively, the authorities could place him in a specialised prison medical facility, if the facility could guarantee the requisite level of medical supervision and care. (see Amirov, cited above, § 118).

After 27 November 2014, the date of the Court’s judgment in the applicant’s first case, he continued being detained in the remand prison pending the completion of his trial.

According to the information from the Government, in 2014 the applicant’s cell was re-equipped to take account of his needs as a wheelchair user. Handrails were installed near his bed and the toilet, and the furniture was put at a lower level in order to be accessible. Wheelchair ramps and a lift were installed in the detention facility. A room for personal-hygiene procedures needed by the applicant was located opposite his cell with all the necessary equipment.

In 2015 he was examined by various doctors, such as a general practitioner, a neurologist, a surgeon, a urologist, and a proctologist. He underwent basic medical tests and received the treatment he had been prescribed. The prison doctors found his overall condition to be satisfactory.

The applicant’s lawyers noticed, however, that his state of health had worsened. They solicited medical opinions on the treatment required.

On 14 July 2015 Dr W., a specialist in neurology, examined the applicant. He noted progressive muscular dystrophy, the development of leg convulsions, and urinary problems. An immediate admission to a specialised hospital for long-term treatment and urological surgery was recommended. The doctor said that further detention in prison would put the applicant’s life at risk.

On 30 October 2015 the applicant was examined by a forensic expert, Dr N., who confirmed the deterioration of his medical condition, and noted the development of bedsores. The doctor suggested that the applicant’s state of health might warrant early release on medical grounds and stated that he needed constant medical care.

On 22 January 2016 Dr N. assessed the quality of the medical care in the remand prison. He noted the absence of exercise therapy, physiotherapy, and massage, and was concerned that the prison premises were not sterile enough for hygienic procedures.

In the meantime, on 27 August 2015 the Military Court of the NorthCaucasus Circuit found the applicant guilty of having organised an act of terrorism and an attempt to murder an investigator in his case. He was sentenced to life imprisonment in a high-security correctional colony. The Supreme Court of Russia upheld the conviction and sentence on 24 March 2016.

On 1 April 2016 the applicant was sent to serve his sentence in the correctional colony.

He spent the first two weeks of his detention in an ordinary cell in the quarantine wing. According to a letter from the chairman of the Committee for Civil Rights sent to the applicant’s lawyer on 20 April 2016, the cell was not adapted to the needs of a wheelchair prisoner. The applicant depended on his fellow inmates, who assisted him in his daily needs, including helping him to perform enemas on himself.

Every day the applicant was taken, handcuffed and blindfolded, to the prison yard for exercise.

On 2 April 2016 he was examined by several prison doctors: a tuberculosis specialist, an infectious-diseases specialist, a dentist and a general practitioner. The latter recorded his illnesses, ordered blood and urine tests, and prescribed treatment, comprising of a special diet and drugs. He noted that the applicant needed regular catheterisation and enemas. Examinations by specialists in endocrinology, ophthalmology, gastroenterology, neurology, cardiology, urology, and surgery, and exercise therapy were recommended.

The applicant was regularly visited by the prison general practitioner in the quarantine wing and underwent blood and urine tests. The doctor was satisfied with his medical condition and the results of his treatment.

On 14 April 2016 the applicant was moved to medical unit no. 56 and placed in cell no. 12. He shared its space of 14 sq. m with one cellmate. The applicant was provided with a wide bed, a sink installed at a low level, and a medical couch, which he used during self-catheterisation procedures. Enemas were carried out in a separate room twice a week with the assistance of the medical unit staff. The custodial authorities continued handcuffing and blindfolding him while he was escorted to the yard.

On 11 May 2016 he was examined by several doctors: a general practitioner, an endocrinologist, a neurologist, and a urologist from the civilian hospital in Sol-Iletsk. According to the medical records kept by the doctors, his medical condition was acute. No recommendations for inpatient treatment or urgent medical measures were made. The endocrinologist ordered tests of his thyroid-gland hormones, which were carried out on the same day. The neurologist prescribed exercise. The latter prescription was endorsed by a prison doctor on 19 May 2016.

On 23 May 2016 the applicant was again examined by the endocrinologist, who noted, inter alia, the risk due to a low level of thyroid hormones. Another hormone test was prescribed for August 2016.

The applicant was examined by a medical board to establish whether he was entitled to early release on medical grounds. The board concluded that his medical condition did not warrant it.

From 6 to 8 June 2016 a commission of officials from the Russian Ombudsman’s Office, the Orenburg Ombudsman’s Office, the Orenburg prosecutor’s office, the Federal Service of the Execution for Sentences in Orenburg Region and medical unit no. 56 came to the applicant’s detention facility and examined the quality of his medical care. The commission concluded that it was adequate.

On 8 June 2016 the applicant was visited by an exercise-therapy specialist, who taught him exercises to support his health. It appears that this visit was a follow-up to previous visits by the specialist, in April and May 2016. However, the medical record does not disclose particular details of the recommendations made on those two previous occasions.

On 4 July 2016 two members of the Orenburg Regional Public Commission for Monitoring the Protection of Human Rights in Detention (Общественная наблюдательная комиссия Оренбургской области) inspected the colony. It appears that by the time of the inspection the applicant had been moved to another cell. The inspectors noted in particular, that the cell was divided into three sections by metal bars and housed six inmates. The applicant’s section measured 10.8 sq. m; it had a bath, a medical couch, a sink, and a bedside table with television set. The toilet was not partitioned from the rest of the cell and the applicant could be observed by his cellmate while using it. The correctional colony lacked wheelchair ramps, so the applicant could not freely access the yard or meeting rooms. He complained that the necessary drugs had had to be supplied by his relatives, owing to a lack of funds, which were to be allocated in the near future. Medical supervision was carried out by the general practitioner as regular examinations by other specialists had not been considered necessary. Allegedly owing to the applicant not having received medical massages, the applicant’s legs started convulsing. He was assisted by his cellmate, who helped him to get into bed. The applicant was not given a special diet.

On 11 August 25 October and 16 December 2016, and 19 April 2017 a special medical board of highly qualified civilian and prison doctors, and specialists in cardiology, endocrinology, neurology, and urology examined the applicant. They concluded that there was no need to admit the applicant to a specialist medical facility and that he could continue receiving treatment in the medical unit. The doctors were satisfied with the quality of medical care given to the applicant.

In the meantime the applicant’s lawyer complained to the Ombudsman of the Russian Federation of the applicant’s detention conditions and the poor quality of his medical treatment. The complaint was forwarded to the prosecutor’s office for the supervision of detention facilities in Orenburg Region. Having carried out enquiries, on 5 July 2016 the Office replied as follows:

“It has been established that on admission to [the correctional colony the applicant] was placed in [a cell of the quarantine wing]. It was designed for two persons and measured 12 sq. m, which satisfied the requirements of the Execution of Sentences Act ... [The applicant’s] cellmate assisted him in his daily needs, which included hygienic procedures and moving around the cell. Accordingly, [the applicant] was not restricted in his rights ...

The allegation that [the applicant] was not provided with special conditions [needed in his situation] is not true. His cell in the medical unit is furnished with a specially designed table, a bed and a sink, so he can easily access them and move freely about the cell.

[The applicant] is assisted by the medical unit staff members and inmates in his movements within the medical unit, in particular when entering/leaving buildings in a wheelchair, and in his daily needs.

As called for by [the applicant’s] disability and illnesses, he is examined by the prison doctors on a daily basis, he receives medical treatment as prescribed to the relevant medical standards, and he is provided with dietary nutrition.

In May 2016 [the custodial authorities] provided him with a mattress [to prevent] bedsores.

[The applicant] urinates with the help of a catheter which he inserts six to seven times per day (as recommended by [a urologist]). He defecates with the help of enemas performed every three days by medical staff from the medical unit. Detainees, who work in the medical unit, escort [the applicant] to a special room for that procedure and clean it afterwards.

The regional medical standard “Procedures for simple medical procedures, desmurgy and immobilisation”, approved by an Order of the Ministry of the Health Care and Social Development of Orenburg Region on 5 March 2010 does not require catheterisation or enemas to be carried out in a sterile room. Sterile catheters and enemas tips are used by [the applicant].

In breach of Article 30 of the Penal Institutions Act (Federal Law no. 5473-1 of 21 June 1993), [the applicant] was escorted for walks handcuffed and blindfolded until 24 May 2016.

Moreover, the inquiry, which had been performed earlier, revealed breaches of Article 101 § 7 of the Russian Code on the Execution of Sentences and Articles 10, 11, and 11.1 of the Social Protection of the Disabled in the Russian Federation Act (Federal Law of 24 November 1995 No. 181-FZ). [In accordance with the aforementioned Regulation, the applicant] should have been given the necessary devices (a wheelchair for mobility, an indoor wheelchair, a gel pillow to prevent bedsores, nappies for adults, and urinals). However, the custodial authorities have not provided him with those items. [Moreover,] the detention facility did not take measures to provide the exercise and sport therapy [for the applicant] indicated in his rehabilitation programme.

In the light of the above, on 2 June 2016 the prosecutor’s office for supervision of detention facilities in Orenburg issued a formal order to the head of the correctional colony to rectify the identified shortcomings. The order has been ... complied with ...

There are no grounds for a further intervention by the prosecutor ...”


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

Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer

The applicant was born in 1949 and lives in Budapest.

On 7 December 1995 the applicant was interrogated as suspect of breach of duty and other offences.

In the ensuing criminal proceedings, after a remittal, the Budapest Regional Court acquitted the applicant on 5 November 2008.

On appeal, the Budapest Regional Court of Appeal upheld the acquittal on 26 November 2009.


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence;Proved guilty according to law)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in 1958 and lives in Leipzig.

On 30 October 2009 the Munich II Public Prosecution Office charged the applicant with coercion to engage in sexual activity in at least 300 cases and with sexual coercion in another eighteen cases.

On 20 July 2012 the Munich II Regional Court, after taking evidence at seventeen days of hearing, issued a decision limiting the prosecution to charges concerning four incidents which had taken place between 19 and 25 August 2007. The court provisionally discontinued the proceedings in respect of all the other offences the applicant had been charged with (see paragraph 7 above), in accordance with Article 154 § 2 of the Code of Criminal Procedure (see paragraph 17 below), in view of the penalty the applicant could expect for the four remaining incidents. The applicant was further informed that if he was convicted the court could take into account findings made in respect of the other incidents when setting his sentence.

In a judgment delivered on the same day, the Regional Court convicted the applicant of four counts of coercion to engage in sexual activity, committed between 19 and 25 August 2007, and sentenced him to six years’ imprisonment.

In its findings of fact, the Regional Court stated that between January 2001 and October 2007 the applicant had forced P., aged between 29 and 35 at the relevant time and suffering from a moderate mental disorder and an autistic and speech disorder, to satisfy him manually or orally on at least fifty further occasions (out of the at least 300 offences the applicant had initially been charged with, see paragraph 7 above). The court had regard to P.’s extensive description of different incidents, which happened either in the house the applicant and P. were both living in or in the applicant’s car. P. had notably explained how the applicant had regularly, when his wife and son were absent, brought her into his apartment or in the basement boiler room, had undressed himself and had instructed her how to satisfy him, partly while playing pornographic films. The applicant had systematically threatened P. that she would have to return to a home for the disabled if she did not comply with his requests. From 19 to 25 August 2007, when the applicant’s wife and son were on holiday, the applicant had forced P. to satisfy him orally at least twice and to satisfy him manually on two further occasions in their house or in the basement boiler room. The veracity of P.´s consistent statements was confirmed by further witnesses and three psychological expert opinions on P.´s credibility and ability to testify.

The Regional Court explained that it had restricted the conviction to the four events that had taken place between 19 and 25 August 2007. It had discontinued the proceedings in respect of the at least 300 further charges under Article 154 § 2 of the Code of Criminal Procedure but was convinced that in at least fifty cases there had been incidents comparable to the four of which the applicant was formally convicted. It had simply been impossible to determine their exact time and place due to the victim’s speech disorder.

In the impugned passages of the judgment, the Regional Court found as follows:

“The chamber is convinced on the basis of the credible statement by the injured party that in addition to the four cases between January 2001 and October 2007 on which judgment was passed, at least 50 other comparable cases occurred. The injured party herself said that the applicant had coerced her to perform sexual acts from as early as 2001. From 2003, the frequency of these incidents had increased and the applicant had demanded sexual gratification from her approximately every 1½ weeks. Even if one were to disregard the years 2001 and 2002 and August and October 2007 in favour of the applicant and also to presume that from 2003 onwards, such incidents occurred only once a month there are 56 cases. Following the deduction of a further safety margin the chamber assumes that there were at least 50 more, comparable cases during the total period from January 2001 to October 2007.

On the other hand, the chamber considers as an aggravating element that it is convinced that, in addition to the four incidents in August 2007 which the accused has been convicted of, there have been at least 50 comparable incidents since January 2001. A conviction for those events was only made impossible by the victim’s incapacity to substantiate them in terms of the time and the place where they happened in a manner making it possible to define them as procedural offences (offences in the procedural sense). As it could no longer be determined with certainty in which cases the accused, by his threats, made the victim satisfy him orally or manually, the chamber will proceed on the basis that there were 50 further cases of manual satisfaction.”

(“Die Kammer ist aufgrund der glaubhaften Aussage der Geschädigten davon überzeugt, dass es neben den vier abgeurteilten Taten im Zeitraum Januar 2001 bis Oktober 2007 zu mindestens 50 weiteren, vergleichbaren Fällen kam. Die Geschädigte selbst gab an, der Angeklagte habe sie bereits ab dem Jahr 2001 zu sexuellen Handlungen genötigt. Ab dem Jahr 2003 sei die Frequenz dieser Vorfälle gestiegen und der Angeklagte habe ungefähr alle 1 ½ Wochen sexuelle Befriedigung von ihr verlangt. Selbst wenn man zugunsten des Angeklagten die Jahr 2001 und 2002 sowie den August und Oktober 2007 unberücksichtigt lässt und zudem davon ausgeht, dass es ab dem Jahr 2003 lediglich einmal im Monat zu derartigen Vorfällen kam, so ergeben sich 56 Fälle. Nach Abzug eines weiteren Sicherheitsabschlags geht die Kammer von mindestens 50 weiteren, vergleichbaren Fällen im gesamten Zeitraum von Januar 2001 bis Oktober 2007 aus.

Andererseits wertet die Kammer zu Lasten des Angeklagten den Umstand, dass es nach Überzeugung der Kammer neben den verurteilten vier Vorfällen im August 2007 bereits ab Januar 2001 zu mindestens 50 vergleichbaren Vorfällen gekommen war. Eine Verurteilung dieser Vorfälle scheiterte lediglich an der mangelnden Fähigkeit der Geschädigten, die Vorfälle zeitlich und örtlich so zu konkretisieren, dass diese als prozessuale Taten abgrenzbar waren. Da sich nicht mehr mit Sicherheit aufklären ließ, in welchen Fällen der Angeklagte die Geschädigte durch seine Drohung zu einer oralen und in welchen zu einer manuellen Befriedigung brachte, geht die Kammer insoweit von 50 weiteren Fällen der manuellen Befriedigung aus.”)

In an appeal on points of law to the Federal Court of Justice, the applicant complained that the Regional Court had breached the presumption of innocence guaranteed by Article 6 § 2 of the Convention by taking fifty unproven incidents into account as an aggravating factor meriting a more severe sentence, despite the fact that the proceedings in relation to them had been discontinued under Article 154 of the Code of Criminal Procedure.

The Federal Public Prosecutor General argued that the Regional Court had been entitled to take account of the sexual offences committed previously by the applicant as an aggravating element as part of his previous history (Vorleben) and thus as one of the elements in setting his sentence under Article 46 § 2 of the Criminal Code (see paragraph 18 below). In accordance with the Federal Court of Justice’s case-law, the Regional Court had made sufficient findings of fact establishing a minimum level of guilt in respect to those offences.

On 6 February 2013 the Federal Court of Justice dismissed the applicant’s appeal as ill-founded, without giving specific reasons.

In a decision of 16 May 2013, which was served on the applicant’s lawyer on 28 May 2013, the Federal Constitutional Court, without giving reasons, declined to consider a constitutional complaint by the applicant, in which he had again complained of a breach of the presumption of innocence (file no. 2 BvR 575/13).


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1957 and lives in Shuya, in the Ivanovo Region.

The applicant sued her former employer (the Ministry of Internal Affairs of the Republic of Kalmykiya, hereafter “the Ministry”).

On 27 October 1999 the Elista Town Court of the Republic of Kalmykiya (“the Town Court”) awarded the applicant monthly payments as compensation for damage to her health, with subsequent index-linked adjustment in accordance with changes in the statutory minimum monthly salary. The judgment came into force on 9 November 1999.

On 26 November 2002 Federal Law No. 152-FZ was adopted, which, inter alia, amended the procedure for index-linking compensation awards for damage to health. According to the new law, such payments were to be adjusted in accordance with changes in the level of inflation. The minimum monthly salary no longer served as the basis for index-linking.

In November 2006 the Ministry applied the new method of indexlinking, and recalculated the monthly payments to be paid to the applicant. This resulted in a decrease in the actual monthly amount she received from 10,370.51 Russian roubles (RUB) to RUB 7,396.59, as established in March 2007.

The applicant initiated three sets of proceedings, claiming delay interest in respect of three distinct periods. On 22 February and 3 April 2007 (upheld on 20 July 2007) the Justice of the Peace of Elistinskiy Court Circuit no. 5 of the Republic of Kalmykiya (“the Justice of the Peace”) ordered the Ministry to pay the applicant the interest in respect of certain delays in the monthly payments, in accordance with the judgment of 27 October 1999. On 22 February 2007 the judge agreed with the applicant’s calculation of the delay interest (based on the index-linking of the monthly payments in accordance with the changes in the statutory minimum monthly salary). On 3 April 2007 the court calculated the delay interest based on the amount of the monthly payments, as index-linked in line with the rate of inflation.

On 7 May 2007 the Justice of the Peace refused the applicant’s claim for the delay interest. On 8 August 2007 the Town Court quashed the above decision and ordered the Ministry to pay the delay interest as calculated by the applicant. The court held that, in the absence of a relevant judicial decision, the Ministry had unlawfully changed the mode of index-linking ordered by the judgment of 27 October 1999.

In the meantime, on 7 May 2007 the Ministry requested clarification of the judgment of 27 October 1999 as regards the method of index-linking. On 25 June 2007 the Town Court held that, as a result of changes in the relevant legislation, as of 1 January 2003 the index-linking of the amounts in question was to be based on changes in the level of inflation. On 11 October 2007 the Supreme Court of the Republic of Kalmykiya upheld the decision of the Town Court.

In a letter received on 1 October 2009 the applicant informed the Court that in August 2009 the Ministry had stopped paying the monthly payments, owing to a lack of funds in the relevant budget.

According to the Government, the amount due to the applicant from August 2009 onwards was paid to her in full on 8 October 2009. On 11 November 2009 the Town Court awarded her delay interest for late payment in respect of the delays in payment between September and October 2009. The judgment came into force on 23 November 2009, and was executed on 9 December 2009.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant, Mr Peter Ďuračka, is a Slovak national, who was born in 1960 and lives in Bratislava. He was represented before the Court by Mr B. Jablonka, a lawyer practising in Bratislava.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

On 30 October 2008 the Supreme Court quashed a first-instance judgment convicting the applicant of an offence. In its judgment the Supreme Court convicted the applicant of fraud.

The Supreme Court also quashed a sentence which had been imposed in a different set of proceedings in 2007 and which the applicant had then been serving. It imposed a consolidated five-year prison term and a fine on the applicant. The applicant attended the hearing and the judgment became final upon its delivery on 30 October 2008.

On the same day the Supreme Court ordered that the applicant start serving his prison term immediately. On 3 November 2008 the order was received by the prison where the applicant was detained.

The Supreme Court’s judgment was served on the applicant twice. A receipt signed by the applicant indicates that the Supreme Court served the judgment on him on 10 December 2008; a second receipt indicates that the Bratislava Regional Court (which dealt with the case at first instance) served the Supreme Court’s judgment on the applicant on 12 December 2008. The Regional Court also served the judgment on the applicant’s lawyer on 10 December 2008.

On 10 February 2009 a senior judicial officer at the Bratislava Regional Court issued a decision to take into account, for the purpose of serving the consolidated prison term imposed by the Supreme Court, the period in which the applicant had been remanded in custody from 8 August 2004 to 27 January 2005 as well as the period from 21 May 2007 to 3 November 2008, when he had served a prison sentence imposed on him in a different set of criminal proceedings in 2007.

Following a complaint by the applicant, a judge rectified the above-mentioned decision on 23 March 2009. In particular, the judge noted that the applicant had started serving the sentence imposed by the Supreme Court on 30 November 2008. The period during which he had been serving a different sentence as from 21 May 2007 and which was to be taken into account as regards the term of the consolidated sentence had therefore ended on 30 November 2008. The Regional Court judge’s decision was served on the applicant on 30 March 2009.

On 27 February 2012 the applicant lodged an appeal on points of law against the Supreme Court’s judgment of 30 October 2008. The proceedings are pending.

On 12 February 2009 the applicant posted a complaint to the Constitutional Court. With reference to the criminal proceedings that had led to his conviction and detention, he alleged that his rights had been breached by the police, the prosecuting authorities and the courts, as well as by the administration of the prison where he had been detained.

In particular, the applicant alleged that his rights under Article 6 § 1 of the Convention had been breached, on a number of grounds, in the criminal proceedings leading to his conviction. The Supreme Court had delivered its final judgment no. 4 To 2/2008 on 30 October 2008. The applicant stated that that judgment had been served on him through the Bratislava Regional Court on 12 December 2008.

The applicant further alleged that Article 5 § 1 of the Convention had been breached in that he had been detained without any legal grounds from 30 October to 3 November 2008, because the order imposing the service of the prison sentence which the Supreme Court had issued on the former date had been delivered to the prison on the latter. The applicant claimed that he had lodged a complaint in that respect immediately after he had established that fact in the file.

Lastly, the applicant asked the Constitutional Court to appoint a lawyer to assist him in the proceedings.

The Constitutional Court rejected the complaint on 27 May 2009 as having been lodged outside the statutory time-limit of two months. With reference to the case file, it held that the Supreme Court’s judgment with reasons had been served on the applicant in prison on 10 December 2008. The time-limit had thus started to run on 11 December 2008 and had expired on 11 February 2009. However, the applicant had posted his complaint on 12 February 2009, that is belatedly. That conclusion was also relevant in respect of the applicant’s allegation that his rights had been breached before the above-mentioned judgment of the Supreme Court.

The Constitutional Court’s decision stated that in those circumstances it was not necessary to decide on the applicant’s request for the appointment of a lawyer. The decision was served on the applicant on 8 October 2009.

Section 53(3) of the Constitutional Court Act 1993 provides that a complaint to the Constitutional Court can be lodged within a period of two months from the date on which the decision in question has become final and binding, or on which a measure has been notified, or on which notice of other interference has been given. As regards measures and other interferences, this period commences when the plaintiff could have become aware of them.

The Constitutional Court has held that in cases where a final decision in the context of criminal proceedings is to be served on the person concerned, the time-limit of two months under section 53(3) of the Constitutional Court Act 1993 starts to run on the date of its service on that person, regardless of the date of its service on his or her lawyer (for example, decision file number IV. ÚS 131/08 of 17 April 2008, with further references).


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination;Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary

The applicant was born in 1964 and lives in Srebrenica, a town in the Republika Srpska (one of the two constituent Entities of Bosnia and Herzegovina).

The applicant declares himself as Bosniac (one of the country’s “constituent peoples”). He actively participates in the social and political life of the country. The applicant is a member of the Party for Bosnia and Herzegovina (Stranka za BiH; “the BH Party”) and a founding member of the Srebrenica Intellectuals’ Club (Klub Intelektualaca Srebrenice).

He has held several elected and appointed political positions in the Republika Srpska. At the time of lodging his application to the Court, the applicant was a member of the National Assembly of the Republika Srpska.

In 2006, as a candidate of the BH Party, the applicant submitted his candidacy for the 2006 elections to the Presidency of Bosnia and Herzegovina.

On 24 July 2006 the Central Election Commission of Bosnia and Herzegovina (“Centralna izborna Komisija Bosne i Hercegovine”; “the CEC”) rejected his candidacy. It explained that the applicant could not be elected to the Presidency from the territory of the Republika Srpska considering that he declared affiliation with Bosniacs. Pursuant to Article V of the Constitution and Article 8.1 § 2 of the Election Act 2001 the presidential candidate from that Entity must be a Serb.

On 1 August 2006 the CEC rejected the applicant’s request for the reconsideration of that decision.

On 10 August 2006 the Court of Bosnia and Herzegovina rejected the applicant’s further appeal. It held that the applicant’s candidacy was in contravention of the Constitution and the Election Act 2001.

On 20 September 2006 the BH Party and the applicant lodged a constitutional appeal relying on Article 1 of Protocol No. 12 to the Convention. On 29 September 2006 the Constitutional Court of Bosnia and Herzegovina held that there had been no violation of that provision (decision no. AP 2678/06). The relevant part of the majority opinion reads as follows (the translation has been provided by the Constitutional Court):

“...Therefore, the provision of Article 8 of the Election Law of Bosnia and Herzegovina, including Article V of the Constitution of Bosnia and Herzegovina, should be viewed in the light of the discretionary right of the State to impose certain restrictions when it comes to the exercise of individual rights. The said restrictions are justified by the specific nature of the internal order of Bosnia and Herzegovina that was agreed upon by Dayton Agreement and whose ultimate goal was the establishment of peace and dialogue between the opposing parties given that the said provision was intentionally incorporated into the Constitution so that the members of the Presidency come from amongst Bosniaks, Croats and Serbs.

There is no dispute that the provision of Article V of the Constitution of Bosnia and Herzegovina, as well as the provision of Article 8 of the Election Act 2001, have a restrictive character in that they restrict the rights of citizens, namely the candidacy of Bosniacs and Croats from the territory of the Republika Srpska and the Serbs from the territory of the Federation of Bosnia and Herzegovina to stand for election as members of the Presidency of Bosnia and Herzegovina.

However, the purpose of those provisions is to strengthen the position of the constituent peoples in order to ensure that the Presidency is composed of the representatives from these three constituent peoples. Taking into account the current situation in Bosnia and Herzegovina, the restriction imposed ... is justified at this moment since there is a reasonable justification for such reasoning.

Therefore, given the current situation in Bosnia and Herzegovina and specific nature of its constitutional order as well as the current constitutional and statutory arrangements, the challenged decisions of the Court of Bosnia and Herzegovina and the Central Election Commission did not violate the appellants’ rights under Article 1 of Protocol No. 12 to the European Convention and Article 25 of the International Covenant on Civil and Political Rights since the above-mentioned decisions are not arbitrary and are based on law. It means that they serve a legitimate aim, that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants’ rights are proportionate to the objectives of the general community in terms of preservation of the established peace, continuation of dialogue, and consequently the creation of conditions for amending the above-mentioned provisions of the Constitution of Bosnia and Herzegovina and Election Act 2001.”

The relevant part of the concurring opinion of Judge Feldman reads as follows:

“I agree that the special circumstances in which the Dayton Agreement was drafted and the needs of the time are capable of providing a rational and objective justification for treatment which would otherwise be discriminatory...Like Judge Grewe in her separate dissenting opinions....I regard the justification as being temporary rather than permanent, but I respectfully differ from Judge Grewe in thinking that the time has not yet arrived when the State will have completed its transition away from the special needs which dictated the unusual architecture of the State under the Dayton Agreement and the Constitution of Bosnia and Herzegovina.

However, I have another reason for joining the majority of the Constitutional Court in this case. Until the time (if it ever arrives) when Article V of the Constitution of Bosnia and Herzegovina is amended to remove the differential treatment of potential candidates for the Presidency, it seems to me that Article V leaves the drafters of the Election Law, the Central Election Commission and the courts no choice. It is not constitutionally permissible for a Law or the interpretation or implementation of a Law to be directly incompatible with the express and unambiguous requirements of Article V of the Constitution. Had the appellants succeeded in their appeal, it would have left Article V of the Constitution with no effect whatever. It would have been otiose, reduced to empty words. In my view, the Constitutional Court, required by Article VI of the Constitution to ‘uphold this Constitution’, cannot properly make a decision which makes an important part of the Constitution wholly ineffective. I accept that there different parts of the Constitution appear to have conflicting values and objectives, but constitutions are never entirely coherent. They are always shaped by, and are a compromise between, conflicting values and objectives. The task of the Constitutional Court under Article VI is to give effect to the Constitution, with all its inconsistencies, and make it as effective as possible in all the circumstances.

For this reason, I would have dismissed this appeal as ill-founded even had I disagreed with the conclusion of the majority of the Constitutional Court that there is an objective and rational justification for the difference of treatment. Whether justified or not, the difference is required by Article V of the Constitution of Bosnia and Herzegovina. An international tribunal such as the European Court of Human Rights might perhaps decide that the constitutional arrangements for electing members of the Presidency violate rights under the European Convention (and nothing I write here should be taken to lend support to that suggestion under present conditions). Such a tribunal has no duty to uphold the Constitution. The Constitutional Court has an express constitutional obligation to uphold the Constitution, and in my opinion has no power to set aside parts of it, or make them ineffective, by relying on rights arising in an international instrument in preference to the express and unambiguous terms of the Constitution itself.”

The relevant part of the dissenting opinion of Judge Grewe, joined by Judge Palavrić, reads as follows:

“...I respectfully differ from the conclusion that there is no violation of the appellant’s rights guaranteed by the European Convention, its Protocols and Additional Human Rights Agreements because of an ‘objective and reasonable justification for differential treatment’.

...I consider the exclusion of the candidate Mr. Ilijaz Pilav on the Party’s candidate list for the Presidency of Bosnia and Herzegovina inconsistent with Article 1 of Protocol No. 12 and with Article 25 of the International Covenant on Civil and Political Rights which guarantees equal right to stand for election and to be elected without unreasonable restrictions. Contrary to the statements of the majority (§ 22), it seems to me that the current situation in Bosnia and Herzegovina does not justify at this moment the differential treatment of the appellant’s candidacy in relation to the candidacy of other candidates who are the Serbs and are directly elected from the territory of the Republika Srpska, nor it serves a legitimate aim, such as preservation of peace, continuation of dialogue or creation of conditions for amending the provisions of the Constitution of BiH and Election Law. Although I think like judge Feldman in his separate concurring opinion under this decision that the State of BiH has not yet completed its transition, that it is still in a special situation requiring specific measures, I however consider that the Dayton Agreement architecture is evolving and has to adapt to the different stages of evolution in BiH. The constitutional specificity of BiH consists of the multi-ethnic character of State and public institutions. The multi-ethnicity established by the Dayton Agreement has been precised by the Constitutional Court in case U 5/98 (Official Gazette of BiH, No. 36/00), stressing the equality of all constituent peoples in both entities and excluding in consequence the minority status of any constituent people in any entity.

The coherence of this decision implies a multi-ethnic composition of the Presidency without territorial interference since the three constituent peoples are precisely equal in the whole State territory of BiH...It is the particular combination of ethnic and territorial structures which leads to unjustified discriminations since the territorial interference in presidential elections result to an ethnic separation materialized by the exclusion of the right to stand for election for all Serbs living in the Federation and for all Croats and Bosniacs living in Republika Srpska. This combination is inconsistent with the Dayton Agreement’s goal of a multi-ethnic State and with the principle of equality of constituent peoples in both entities which only justifies that the Serbs living in Federation and that the Bosniacs and the Croats living in Republika Srpska do not benefit of the status of a minority.

Therefore the only legitimate aim appropriated in the current situation in BiH consists of excluding the territorial criterion in presidential elections. Only such a solution could be a reasonable justification of differential treatment and would be consistent with the requirements of Article 1 of Protocol No. 12 that any right set forth by law shall be secured without discrimination on any ground and of Article 25 of the International Covenant on Civil and Political Rights. In other terms, the differential treatment challenged by the appeal is not justified in an objective or in a proportionate manner.

I also differ from the opinion expressed by judge Feldman in his point 4. Indeed, the European Convention and its Additional Protocols have at least the same rank as the Constitution of BiH. The Constitutional Court stated that the Constitution of Bosnia and Herzegovina was adopted as the Annex 4 to the Peace Agreement. It follows that there cannot be a conflict and possibility of dispute between that Agreement and the Constitution of BiH which form a legal unity. This implies that the Constitutional Court grants the same importance to the Peace Agreement and its annexes and thus that in case of conflict of norms, the case may only be resolved through a method of systematic interpretation. Furthermore the provisions of Articles II.2, II.3 and X.2 of Constitution place the compliance with the human rights and the European Convention among the basic pillars of the constitutional order in Bosnia and Herzegovina which have priority over any other law and cannot be restricted even by a constitutional revision.

The Constitutional Court in its role of upholding the Constitution has to take account of all these elements as well as of legal evolutions in order to guarantee concrete and effective rights. Therefore Article V.1 has to be read in light of Articles II and X of the Constitution and of Article 1 of Protocol No. 12. The Constitutional Court cannot, of course, replace or modify the present Constitution but it can request the Parliament to harmonize the text with the requirements of BiH’s international obligations.”

On 5 July 2010 the applicant again submitted his candidacy to the CEC. On 29 July 2010 it was rejected for the same reasons as before.