Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction)

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

The applicant was born in 1968 and lives in Târgu Mureș.

The Anti-Corruption Department of the Prosecutor’s Office (“the DNA”) started a criminal investigation against the applicant, his wife and three businessmen on suspicion of repeated corruption offences committed in his capacity as mayor of Cluj Napoca.

The prosecutor sought authorisation for the interception of the applicant’s telephone calls. The transcripts of the intercepted telephone calls were admitted as evidence against the applicant.

On 9 November 2011 police officers belonging to the DNA carried out a search at the applicant’s home. They carried out another search at the applicant’s office at Cluj Napoca Town Hall.

The applicant was taken to the DNA’s Cluj headquarters on the basis of a summons to appear before the investigative body.

Newspaper and television crews were present and the events were given widespread media coverage.

At about 8.50 p.m. on the same day the prosecutor ordered the applicant’s remand in custody.

The applicant’s pre-trial detention was ordered by an interlocutory judgment delivered the next day by the Cluj Court of Appeal. The court reasoned that it was necessary to stop the criminal activity of the applicant, who was allegedly preparing to commit a new corruption offence. The court also referred to the seriousness and the continuous nature of the offences. It stressed that the applicant had acted in his capacity as mayor when he had allegedly committed the offences. It concluded that the public would be shocked if the applicant were to be released. In assessing the concrete danger to public order if the applicant were released from detention, the court stressed that the offences had allegedly been committed over a long period of time (starting in 2009, when he had been appointed mayor, until the time of his arrest), that they were repetitive and that the perpetrator was a mayor in charge of protecting legal order. The court pointed out that as the applicant’s wife was under investigation, the applicant having used her law firm to cash the money received as bribes, his release from prison would allow him to influence her position. It concluded that his release from detention would intimidate other persons in possession of information relevant for the investigation.

The applicant appealed. On 21 November 2011 the High Court of Cassation and Justice upheld the above judgment, holding that there were strong indications from the criminal investigation file that the accused had committed the crimes.

The applicant’s pre-trial detention was regularly extended by interlocutory judgments of the Cluj Court of Appeal.

The court reasoned that the extensions were justified on account of the nature and severity of the offences for which the applicant was under investigation, and the fact that he might obstruct the course of justice by intimidating possible witnesses and the persons who had lodged complaints against him.

The applicant lodged appeals against the interlocutory judgments; all the appeals were dismissed by final decisions of the High Court of Cassation and Justice.

The applicant lodged several applications for his release from prison under judicial supervision. He mainly emphasised that he had a stable family, two minor children and an unblemished reputation. He also pointed out that he had been accused of non-violent crimes and had no criminal record.

The Cluj Court of Appeal dismissed the applicant’s requests on the grounds that the evidence in the file pointed to a strong likelihood that he had committed the corruption-related offences. It held that such offences might attract a prison sentence longer than four years. It also held that releasing the applicant would give rise to a real danger to public order, given the circumstances in which the acts had been committed, and their consequences and social impact.

The applicant appealed, pointing out that his personal situation had changed, in that he was no longer the mayor of Cluj. The appeal court’s decisions were upheld by the High Court of Cassation and Justice.

On 30 November 2011 the investigation against the applicant was extended in connection with other offences allegedly committed by him, namely trading in influence, complicity in and incitement to money laundering, and complicity in and incitement to forgery.

On 22 December 2011 the prosecutor issued an indictment concerning five co-accused, including the applicant and his wife, and the case was registered with the Cluj Court of Appeal. The applicant was charged with passive corruption, and repeated complicity in and incitement to money laundering and forgery.

Following a request lodged by the applicant, the High Court of Cassation and Justice decided on 20 February 2012 to transfer the file to the Târgu Mureș Court of Appeal in order to avoid any possible partiality on the part of the judges.

According to the latest information, the criminal proceedings are still pending.

Excerpts from conversations between the applicant and other defendants or third parties, which had been obtained through telephone tapping during a criminal surveillance operation conducted prior to the criminal prosecution, were subsequently published in several newspapers before the applicant and his co-accused had been committed for trial.

Even the headlines of the articles published in the press during that period referred to the fact that they contained excerpts of the recorded conversations. Thus on 16 December 2011, the newspaper Evenimentul zilei published an article with the headline, “Exclusive: Shocking revelations in the Apostu file. The names of all the persons under investigation and new excerpts from the telephone conversations. Evidence that M. Apostu received clothes as a bribe” (Exclusiv: Dezvăluiri tari din Dosarul Apostu. Surprize mari: numele tuturor celor cercetați și interceptări noi. Dovada că M. Apostu lua șpagă în haine).

On 16 November 2011 the newspaper Cancan published an article with the headline, “Excerpts of intercepted phone conversations: Sorin Apostu, the mayor of Cluj, acknowledged that he had at home three telephones with pre-paid cards, in order not to be intercepted” (Stenograme: Sorin Apostu, primarul Clujului, recunoaște că avea în casă trei telefoane cu cartele preplătite, ca să nu poată fi interceptate).

On the same day another article containing excerpts of the applicant’s recorded telephone conversations was published on the website of the newspaper National. It started with the following statement: “Pure coincidence, the excerpts of the telephone conversations offered for publication in the investigation of mayor Sorin Apostu for corruptionrelated offences stops, with suspense, exactly when the Romanian Prime Minister enters the scene”.

The publication of excerpts from the applicant’s recorded telephone conversations continued after the applicant had been committed for trial.

Other pieces of evidence from the prosecution file were likewise published and commented on in the press. On 18 December 2011 the newspaper Ora de Cluj published an article with the headline, “Complete document. The reasoning of the interlocutory judgment ordering the pretrial detention of mayor Sorin Apostu and businessman C. S.” (Document integral. Motivarea sentinței de arestare a primarului Sorin Apostu și a omului de afaceri C. S.).

Several press articles contained excerpts of telephone conversations between the applicant and persons not involved in the criminal proceedings. On 5 February 2012 Ora de Cluj published an article with the headline, “Interception. Three-way conversation: businessman S. D., mayor Sorin Apostu and driver J.”

Many of the press articles referred to aspects of the applicant’s private life without any connection to the criminal proceedings instituted against him. They were based on information found in his criminal file. On 6 February 2012 the newspaper Cancan published an article with the headline, “Juicy details from the private life of mayor Sorin Apostu! The mayor of Cluj, romance with a subordinate”. Only a few days later, on 10 February 2012, the daily newspaper Evenimentul zilei published an article about a search carried out at the home of the mayor’s subordinate with the headline, “Bombshell in the ‘Apostu’ file: five-hour search at home of his supposed sweetheart”.

The applicant was detained in the detention facility of Cluj police station between 9 November 2011 and 6 January 2012, except for two short periods (from 8 to 9 December and from 28 to 29 December 2011) when he was detained in the Bucharest central remand facility on account of his presence before the High Court of Cassation and Justice.

The applicant claimed that he had been detained in a small cell measuring approximately five sq m with four tiers of bunk beds. Access to a toilet was very difficult as the toilets were in the corridor. The cell lacked natural light and ventilation and the smells from the sewage system were noxious.

The applicant was held in cell no. 2, which measured 6.97 sq m, and in cell no. 3, which measured 11.31 sq m. The first cell had two metal beds, foam mattresses, bedrolls, two metallic nightstands, a table and two chairs. The second cell had three metal beds and was similarly furnished. The applicant was detained alone in both cells. Moreover, he was allowed to keep a television set in the cell.

The cells had natural and artificial light, and the applicant was allowed to use an extra lamp to improve the lighting. The cells were ventilated through windows covered with wire netting.

The sanitary facilities and the showers were in the corridor. The applicant had permanent access to the sanitary facilities and to the showers during daylight hours, whenever he requested it.

The time spent outside the cells was one hour per day.

On 6 January 2012 the applicant was transferred to Gherla Prison. He was detained there for the following periods:

between 6 and 12 January 2012;

between 17 and 30 January 2012;

between 16 February and 22 March 2012.

The applicant complained of overcrowding. However, he did not mention the number of detainees in the cell or the size of the cell. He merely claimed that there were eighteen beds in the cell. He also claimed that the temperature had been very low and the conditions of hygiene poor. He had been allowed to take only two showers per week.

On 9 January 2012 the applicant applied for protection as a vulnerable person under Article 7 § 5 of the Rules of Application of Law no. 275/2006. Subsequently, he carried out all activities separately from the other detainees.

The applicant was detained in four different cells:

- on 6 January 2012 he was detained in cell EG 5.3 in the hospital wing, which measured 15.26 sq m, contained three beds and which he shared with only one detainee;

- between 6 and 10 January 2012 he was detained in cell EG 1.7 in the quarantine wing, which measured 43.25 sq m, contained twenty-one beds and which he shared with two other detainees;

- between 10 and 12 January and 17 and 27 January 2012 he was detained in cell EG 1.4 in the quarantine wing, which measured 16.24 sq m, contained four beds and which he shared with two other detainees;

- between 27 and 30 January and 15 February and 22 March 2012 he was detained in cell EG 3.20, which measured 16.24 sq m, contained nine beds and which he shared with three other detainees.

The prison’s central heating system was in good working order and ensured an appropriate temperature inside the prison. There were no registered complaints by the detainees in this respect.

The prisoners were entitled to two showers per week and the hygiene conditions were adequate.

The applicant spent two hours per day outside the cell.

On 12 January 2012 the applicant was transported to Rahova Prison in order to attend a hearing of the High Court of Cassation and Justice in the appeal on points of law lodged by him against an interlocutory judgment. He spent five days in that prison.

The applicant complained of overcrowding and very low temperatures in the cell. He claimed that the cell had had no heating and that he had had nothing to eat for about three days because food had been thrown into the cell by other detainees, who had made death threats against him.

On 12 January 2012 the applicant was detained in cell no. 538, reserved for vulnerable persons, which measured 19.58 sq m and which he shared with seven other detainees.

Between 13 and 16 January 2012 the applicant was detained in cell no. 219, which measured 19.3 sq m and which he shared with only one other detainee.

The cells and sanitary facilities were ventilated through double windows. The heating of the cells was ensured by radiators connected to the prison’s thermal station.

Food was served in the cells as the prison had no dining hall designed for persons under pre-trial detention. Food distribution was supervised by the prison staff and coordinated by the section head. The Government underlined that by placing the applicant in a cell for vulnerable detainees (persons who had held official functions), the prison authorities had complied with their obligation to take proper measures to ensure the safety of those persons.

All daily activities concerning the vulnerable detainees, as well as their transfer to the court, were carried out separately from other categories of detainee. Additional security measures were taken in respect of those persons.

The Government contended that the applicant had not lodged any complaint with the delegated judge against the prison staff or in connection with conflicts with other detainees during his detention in Rahova Prison.

Between 30 January and 16 February 2012 the applicant was admitted to the hospital wing of Dej Prison.

On 22 March 2012 the applicant was transferred to Târgu Mureș Prison. He did not complain about the conditions of his detention in Târgu Mureș Prison.

On 12 January 2012 the applicant was transported from Gherla Prison to Rahova Prison.

The applicant complained of the inappropriate conditions in which he had been transported in a prison van for about seventeen hours on 12 January 2012. He claimed that the prison van had been overcrowded and that the natural ventilation of the van through the hatches had been insufficient. He also complained that the van had not been heated and had had no windows or internal lighting, and that he had had no opportunity to use the toilet during the journey.

The applicant also alleged that he had been deprived of food and water during transportation.

The applicant lodged a complaint with the prison authorities regarding the conditions in which he had been transported from Gherla Prison to Rahova Prison. In a letter of 22 February 2012 the National Administration of Prisons acknowledged that he had been transported in a small-capacity van belonging to Gherla Prison, as the prison did not have at its disposal another van.

According to the Government, a special journey was for the applicant and a co-defendant in order to ensure their attendance at the hearing scheduled by the High Court and Cassation for the following day. The vehicle left Gherla Prison at 5 p.m. on 12 January 2012 and arrived at Rahova Prison at 1.30 a.m. on 13 January 2012. The vehicle was fully equipped and adapted for detainees. On 12 January 2012 the applicant and his co-defendant were the sole detainees transported.

The vehicle disposed of a heating system. The applicant benefitted from space, light and an adequate temperature. He was provided with water and food in conformity with the applicable regulation and had been allowed to carry three pieces of personal luggage and an object of value.

Smoking was forbidden during the transportation.

On 26 January 2012 the applicant lodged a request with the Gherla Prison authorities, asking them to ensure that he had appropriate conditions for preparing his defence in the presence of his lawyer. He alleged that under the current conditions he had been unable to consult the file and have direct contact with his lawyer. In a letter submitted to the prison authorities the following day he asked for direct contact with his lawyer, since at that time he had been separated from his lawyer by a glass partition and had had to speak through a microphone. He lodged another similar request on 20 March 2012.

The prison authorities justified the applicant’s separation from his lawyer by a glass partition by citing the existing legal provisions.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano

The applicant was born in 1949 and lives in Istanbul. He is a professional writer and journalist, and states that he is a human rights activist.

He published an article on the front page of issue 84 of the weekly magazine Türkiye’de Cuma (“Friday in Turkey”), which came out on 29 August 2003. His article, which was entitled “If the pashas [the generals] refuse to obey”, contained criticisms of high-ranking officers who were about to retire. He hinted that some generals in the armed forces were wont to sound false alarms concerning an alleged advance of fundamentalism and anti-secularism, which they then used as a pretext for interfering in the country’s general politics, and that they appeared to have links with certain business circles, the media, senior civil servants and even the Mafia, endeavouring to create a political atmosphere that tallied with their worldview. He suggested that the high-ranking officers in question should set up a political party on retirement and present their political projects to the people, instead of “deciding on the future of the nation on their own, in the name of the nation”. He added that in his view the army generals who he claimed were interfering in the country’s general politics were far removed from social realities and that in their approach to social affairs they lacked any empathy with and sensitivity towards the various social strata.

By an indictment of 9 January 2004, the Military Prosecutor’s Office with the Third Army Corps in Istanbul applied to the Military Court within that Corps for the applicant’s prosecution under Article 95 §§ 4 and 5 of the Military Criminal Code, which, in the Prosecutor’s view, penalised acts vis-à-vis high-ranking military officers geared to damaging hierarchical relations within the army and undermining confidence in commanding officers.

The applicant submitted an objection as to the jurisdiction of the Military Court to try him, on the grounds of his civilian status and relying on the Convention and his right to freedom of expression.

By a decision of 12 July 2004 the Military Court declined jurisdiction in favour of the Bakırköy Assize Court on the grounds that the offence at issue was not military in nature and the applicant should be tried by the non-military courts for denigration of the State armed forces, which offence was punishable under Article 159 of the former Criminal Code. The Military Court noted that by claiming that the armed forces were led by commanding officers who appeared to have links with certain business circles and even the Mafia, and to be far removed from social realities, the applicant had tarnished the image of the whole armed forces. It emphasised that the commanding officers who had been criticised were plenipotentiary representatives of the armed forces empowered to act on behalf of the latter.

On 9 August 2004 the commanding officer of the Third Army Corps lodged an appeal on points of law against the aforementioned decision to decline jurisdiction. He submitted that the impugned article constituted an act which had to be assessed under Article 95 § 4 of the Military Criminal Code. He argued that the military criminal provision in question constituted a lex specialis vis-à-vis Article 159 of the Criminal Code.

The Military Prosecutor also lodged an appeal on points of law on the same grounds, submitting that the Military Courts should have jurisdiction to adjudicate the case, and that the applicant had not targeted all the armed forces but had undeniably tarnished the image of two Generals, which was liable to undermine the confidence of the rank-and-file in these officers and thus damage hierarchical relations within the armed forces.

The applicant was not apprised of the appeals on points of law lodged by the commanding officer and the Military Prosecutor, both of which were added to the case file.

On 3 May 2005 the Military Court of Cassation, which assessed the appeals on points of law, quashed the decision declining jurisdiction and referred the case back to the Military Court. In its reasoning the Court of Cassation mentioned the need to reclassify the facts and to assess them under Article 95 § 4 of the Military Criminal Code. It specified that the provisions of Article 95 § 4 of the Military Criminal Code and (the former) Article 159 of the Criminal Code shared the same substantive and moral elements, but differed in providing protection for individuals (Article 95 § 4) and the Institution itself (Article 159), respectively. The Military Court of Cassation held that even though the applicant’s article had comprised elements of both the aforementioned criminal offences, the general tenor of the impugned article had apparently concentrated on the behaviour of two specific Generals rather than the overall armed forces. Therefore, the accusation that the officers were disobedient, that is to say that they lacked discipline, was liable to undermine the lower ranks’ confidence in them and thus damage hierarchical relations within the armed forces.

By a judgment of 1 March 2006 the Military Court of First Instance, having reconsidered the case, once again decline jurisdiction in favour of the non-military courts. It stated that new legislation on the press attributed to the non-military criminal courts jurisdiction to hear and determine offences committed via the press and specified that such offences no longer came under special legislation.

On 24 March 2006 the commanding officer of the Third Army Corps lodged a fresh appeal on points of law against the Military Court’s decision declining jurisdiction. He pointed out that the 3 May 2005 judgment of the Military Court of Cassation had been delivered after the amendment to the legislation in question and that the provisions of the Military Criminal Code (Law No. 353) enabling civilians to be tried by military courts had not been amended.

While the case was still pending before the Military Court of Cassation, Law No. 5530 of 29 June 2006 made a series of amendments to the Military Criminal Code, inter alia abolishing military court jurisdiction for trying civilians for offences such as those with which the applicant was charged. The Prosecutor with the Military Court of Cassation therefore referred the applicant’s file to the Military Court of First Instance, accompanied by an opinion to the effect that the military courts had no jurisdiction in such matters.

By a judgment of 14 November 2006 the military court once again decline jurisdiction and referred the case to the Bağcılar 2nd Criminal Court.

Meanwhile, following the merger of the Bağcılar and Bakırköy judicial districts, the case was referred to the Bakırköy 24th Criminal Court. By a judgment of 11 March 2008, the latter court declined jurisdiction and referred the case to the Bakırköy 2nd Criminal Court, which held jurisdiction for offences committed via the press. By a judgment of 26 May 2008, the Bakırköy 2nd Criminal Court referred the case to the Bakırköy 16th Criminal Court on the grounds that that court was the former Bağcılar 2nd Criminal Court. By a judgment of 12 March 2009 the Bakırköy 16th Criminal Court referred a jurisdictional dispute to the Bakırköy Assize Court. Finally, the Bakırköy Assize Court decided in favour of the Bakırköy 2nd Criminal Court in the jurisdictional dispute, and referred the case to that court.

By a judgment of 9 June 2010 the Bakırköy 2nd criminal court declared the proceedings statute-barred under Article 95 § 4 of the Military Criminal Code.


No 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 1960 and lives in Giresun.

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.

On 8 February 2006 the applicant, a caretaker employed at the Public Education Centre (Halk Eğitim Merkezi) in Giresun, was taken into police custody on suspicion of child molestation, after being caught in an allegedly indecent position with X., a 9-year-old pupil at the primary school located in the same building as the Public Education Centre.

On 8 March 2006 the Espiye Public Prosecutor lodged an indictment with the Espiye Criminal Court of First Instance, charging the applicant with the sexual abuse, sexual assault and unlawful detention of a minor, pursuant to Articles 103 § 1 (a), 109 § 3 (f) (5) and 102 §§ 1 and 3 (a) of the Turkish Criminal Code.

During the ensuing criminal proceedings, the Espiye Criminal Court of First Instance heard statements from the applicant, the parents of X., the psychiatrist who had interviewed the girl after the incident, and the teachers and personnel at the Public Education Centre and the neighbouring primary school, including the teacher E.U., who was the sole eyewitness to the incident. Denying the allegations against him, the applicant stated that on the morning in question, he had entered one of the classrooms in the building for cleaning purposes, where the alleged victim was already present with another pupil. While he was busy cleaning, X. had asked for a simit (a type of bread roll) and had attempted to hug him, as a result of which gesture he had lost his balance and fallen onto a desk with X. It was at that point that the teacher E.U. had entered the classroom.

E.U., on the other hand, testified before the trial court that as she opened the door of the classroom in question, she saw the applicant sitting on a desk in the dark with his legs apart, hugging X. who was sitting on his lap, facing the blackboard. Within a matter of seconds, upon seeing her, the applicant threw X. away in panic. E.U. stated that while she had never witnessed similar behaviour by the applicant before, the scene she had seen on the day in question looked suspicious. She also confirmed that there was another pupil in the classroom at the time.

S.P., who worked in the same primary school and was also the uncle of X.’s mother, asserted before the court that although he had never witnessed any suspicious behaviour on the part of the applicant, he had heard a colleague, İ.K., say that the applicant had engaged in indecent behaviour towards some pupils at the school where he had worked previously. However, İ.K., who was the deputy principal at the applicant’s previous school, denied giving S.P. any such information concerning the applicant or hearing any adverse rumours or complaints about him for that matter.

X.’s father alleged that according to the information he had received from M.Ö. and M.K. ‒ respectively an employee and the manager at the Public Education Centre ‒ the applicant had been dismissed from his previous job for similar behaviour. M.Ö. denied this allegation, but M.K. confirmed that the above-mentioned S.P. had given him this information, although he himself had never witnessed any indecent behaviour by the applicant.

Another witness, B.A., confirmed that the applicant had apologised to him following the incident. There is no information in the case-file as to the exact content of this apology.

The psychiatrist who interviewed X. after the incident reported that the latter lacked the mental capacity to comprehend and recount what might have taken place on the relevant day and, for that reason, it would be futile, and possibly harmful for her well-being, for the trial court to question her.

On the basis of all the evidence before it, on 18 December 2008 the Espiye Criminal Court of First Instance ordered the applicant’s acquittal, holding that it was not possible to establish beyond all reasonable doubt that he had committed the sexual acts forming the basis of the charge. The court observed that the statements of the sole eyewitness were contradictory in parts and that they included her personal interpretation of what had actually taken place on the relevant morning. It added that, despite E.U.’s allegation that the applicant had thrown X. to one side upon her entry in the room, no wounds or bruises had been detected on the girl’s body.

On 13 January 2009 the acquittal judgment became final in the absence of any appeal.

Parallel to the criminal proceedings pending before the Espiye Criminal Court of First Instance, a disciplinary investigation was conducted against the applicant in relation to allegations of harassment.

The disciplinary investigation was carried out by two inspectors who took statements from X.’s father, from M.K., the manager of the Public Education Centre, from B.A., a teacher at the primary school, from A.T., the principal of the primary school, and from the applicant, who was being held in detention in relation to the criminal proceedings at the time. The inspectors also took two separate statements from the sole eyewitness, the teacher E.U., under oath and took into account a report from the guidance counsellors of the primary school regarding the psychological and physical development of the minor X. That report, dated 7 January 2003, described the physical and social developmental attributes of the girl as weak and very timid, respectively. The medical diagnosis was stated as autism.

The investigation report which was issued at the end of the disciplinary investigation on 3 April 2006 found the allegations of harassment against the applicant to be well-founded and recommended the dismissal of the applicant from the civil service on the grounds that his conduct constituted “shameful and disgraceful conduct incompatible with the civil service” as provided under section 125 § E (g) of Law no. 657. In coming to this conclusion, the inspectors noted the following:

“...The eyewitness, E.U., reported having seen the applicant in a position which made her suspect that he had been in the course of sexually harassing the student, [X.] She explained that the following facts ‒ in particular, the room being dark as a result of the lights having been turned off, the applicant sitting at the desk right next to the door with his legs open with the minor on his lap and the desk in front having been pushed further away, coupled with the fact that he had been caressing the body of the minor and holding her tight around her waist ‒ had led her to conclude that [the applicant] had been attempting to harass her. [She stated that] what she witnessed did not look like a regular display of affection and when she had entered the room, he had thrown the child off him in panic. In his statement, [the applicant] stated that the minor had attempted to hug him while he was cleaning the floor and that, as a result of that gesture he had lost his balance and the minor had sat on his lap. He added that when E.U. entered the room, he was trying to get the minor off him. [The applicant’s] statement that he had fallen onto a desk with the minor as a result of the latter trying to hug him corroborates E.U.’s version of the events. However, the part about him having lost his balance as a result of the minor’s attempt to hug him would be quite unusual given the physical attributes of the minor in question. Moreover, the consistent statements of E.U., taken under oath, who as a mother and an educator seems to have suffered a great deal of emotional distress from these events, give the impression that the allegations against the applicant are well-founded.

The event has shocked and distressed the town community as well as the school... The severity of this event is further exacerbated by the fact that the student in question is a mentally disabled child, ... unable to express or defend herself...This is a disgraceful thing for a civil servant. [The event] has also given rise to a criminal investigation instigated by the Espiye Public Prosecutor’s office where [the applicant], is accused of sexually abusing a minor who was born on [...] February 1993 and who was unable to defend herself due to her mental incapacity, and to the remanding in custody of [the applicant].

...we are of the opinion that [the applicant] has harassed [X.] and that this conduct, which is proven, falls under situations provided for in section 125 § E (g) of law no. 657, that is to say, “shameful and disgraceful conduct that is incompatible with the civil service”.

On 25 May 2006 the applicant submitted his written defence to the Supreme Disciplinary Council of the Ministry of Education (“the Supreme Disciplinary Council”). He requested at the outset that the investigation be postponed until the criminal proceedings against him on the same allegations had been finalised. Furthermore, denying all accusations, he challenged E.U.’s statements as being wholly subjective and distorting the facts, bearing particularly in mind that the whole incident had taken place within a matter of seconds, as she too had acknowledged, which did not realistically allow her to make the detailed observations that she had recounted to the authorities. He added that it was not logical that he would have committed the alleged act in the presence of another pupil in the classroom right before the start of the classes.

On 5 July 2006 the Supreme Disciplinary Council issued the following decision in relation to the applicant, in so far as relevant:

“Upon examination of the file ... and of the defence statement duly taken [from the applicant], the following has been decided:

On the basis of the information and documents in the file, the veracity of the act [harassment of X.] attributed to the applicant has been conclusively established... For this reason, it has been decided unanimously to accept the proposal to dismiss the applicant from the civil service in accordance with section 125 § E (g) of the Law no. 657 [on Civil Servants], ...”

On 30 October 2006 the applicant objected to the Supreme Disciplinary Council’s decision before the Ordu Administrative Court. The applicant argued that his dismissal on the basis of a finding that he had committed the act of sexual harassment of a minor, which is a criminal act, while criminal proceedings were still pending in respect of that self-same allegation violated his right to the presumption of innocence.

On 3 July 2007 the Ordu Administrative Court dismissed the applicant’s objection on the following grounds:

“The case concerns the dismissal of the [applicant,], who worked as a caretaker, on the basis of the allegations that he harassed [X.] on the premises of the primary school.

Section 125 E-g of Law no. 657 provides that shameful and disgraceful conduct that is incompatible with the civil service requires dismissal from the civil service.

Section 131 of the same Law also provides that the commencement of criminal proceedings against a civil servant shall not suspend disciplinary proceedings arising out of the same facts and that acquittal or conviction in the criminal proceedings shall not prevent the execution of disciplinary sanctions.”

Although it has been argued that the sole eyewitness’s version of the events cannot be taken as a conclusive basis on which to deem that the applicant committed the act imputed to him, on the basis of the evidence in the case-file and in consideration of the position in which the applicant was found in the classroom, as well as the fact that the classroom’s door had been shut and the lights had been turned off and the room was therefore dark as it was also very early in the morning and it was raining [...], having further regard to the statement by the principal of the neighbouring primary school, A.T., during the criminal proceedings acknowledging that the applicant had apologised to him after the incident and that he had also heard rumours about the applicant’s similar indecent behaviour in other schools where he had previously worked, the applicant’s argument has not been found to be credible.

This statement by A.T., referred to in the Ordu Administrative Court judgment, is not mentioned in the judgment of the Espiye Criminal Court of First Instance.

On 28 July 2007 the applicant appealed against the decision of the Ordu Administrative Court, which he considered to be based on groundless accusations. He argued firstly that, in circumstances where the act forming the basis of criminal and disciplinary investigations was one and the same, the criminal proceedings would be better placed to shed light on the circumstances and to arrive at an accurate conclusion regarding the facts than would be those of the disciplinary bodies, whose findings would be at best hypothetical. He pointed out that the administrative court had ignored the presence of another pupil in the classroom at the time of the incident, as well as his explanation that the door had been shut as a result of the draught from the open window. The administrative court had similarly overlooked his service record (sicil dosyası) and the fact that it made no mention of any allegations of misconduct in his previous post, which would be unimaginable if he had really been dismissed from that post for indecent behaviour. He also referred in this connection to the statements of İ.K., the deputy principal at the previous school, denying any such allegations of indecent behaviour.

On 17 November 2009 the Supreme Administrative Court dismissed the applicant’s appeal, endorsing the first-instance court’s reasoning and not mentioning the acquittal judgment which had been delivered by the Espiye Criminal Court of First Instance in the meantime.

On 7 July 2010 the Supreme Administrative Court rejected the applicant’s rectification request.

On 27 May 2013, that is to say after lodging his complaint with the Court, the applicant brought proceedings against the Ministry of Education and requested the reopening of the proceedings concerning his dismissal from the civil service. The applicant relied on the Espiye Criminal Court of First Instance’s final judgment of 18 December 2008, which acquitted him of the charges of sexual abuse, sexual assault and the unlawful detention of a minor, and argued before the Ordu Administrative Court that his right to the presumption of innocence had been violated in the course of the dismissal proceedings because he had been dismissed on the basis of allegations that he had committed offences in respect of which the criminal proceedings had not yet become final. On 24 October 2013, the Ordu Administrative Court dismissed the case, holding that the arguments put forward by the applicant for reopening proceedings did not fall within the exhaustive list of permissible grounds for this extraordinary remedy.

In their observations on 14 March 2014, the Government informed the Court that appeal proceedings were pending before the Supreme Administrative Court.


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

The applicant, Mr Zvonimir Petolas, is a Croatian national who was born in 1941 and lives in Zagreb. He was represented before the Court by Ms S. Budimir, an advocate practising in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

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

On 22 December 1972 the applicant and his wife moved into a socially-owned flat in Zagreb with a floor area of approximately 34 square metres.

On 26 June 1975 the company S., as the flat provider, invited the applicant to come to its offices with a view to signing a contract for use of the flat (ugovor o korištenju stana) and to bring along the decision whereby he had been assigned the flat in question.

On 24 March 1980 the applicant was summoned to the offices of the Department of Housing Affairs of the Novi Zagreb Municipality (Općina Novi Zagreb) for the same reason.

Since the applicant had failed to react to either of those requests, on 7 June 1984 the Novi Zagreb Municipality (which was later succeeded by the City of Zagreb [Grad Zagreb], hereafter “the local authorities”), represented by the State Attorney’s Office, brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking eviction of the applicant and his wife on the grounds that they had been occupying the flat without being entitled to do so.

The applicant submitted that he had received the keys to the flat from company S., on whose waiting list for housing he had figured for ten years. He had moved into the flat at the same time as the other tenants had moved into their flats located in the same building. He claimed to have signed several copies of the contract with company S. for use of the flat, on which occasion he had been told that one of the copies would be sent to him by post. However, he had never received it. Over a period of two years he had several times enquired of the company if he might obtain a copy of the contract, but had been told that it had been misplaced. The company had later been dissolved without him ever receiving his copy. Since he had already signed the relevant contract, as explained above, he did not wish to sign another and had thus ignored both the above-mentioned requests.

In answer to the question why he had not paid any rent until he was eventually sued, the applicant replied that he had done so retrospectively.

By a judgment of 8 November 1984 the Zagreb Municipal Court ordered the applicant and his wife to vacate the flat. The court held that they had no right to occupy the flat in question. More specifically, the court held that (a) under the relevant legislation a written contract for use of a flat needed to be signed in order to acquire a specially protected tenancy (see section 14 of the 1962 Housing Act in paragraph 40 below), (b) it was against the law to move in to and occupy a flat without having signed such a contract beforehand (see section 6 of the 1962 Housing Act in paragraph 40 below), and (c) the applicant had not proved that he had ever signed such a contract.

By a judgment of 12 March 1985 the Zagreb District Court (Okružni sud u Zagrebu) dismissed an appeal lodged by the applicant and upheld the first-instance judgment, endorsing the reasons given therein. It added that the applicant had never submitted the decision assigning him the flat in question, which was a precondition for concluding the contract for use of the flat (see section 43(2) of the 1962 Housing Act in paragraph 40 below).

By a judgment of 13 November 1985 the Supreme Court (Vrhovni sud Hrvatske) allowed an appeal from the applicant on points of law (revizija), quashed the judgments of the lower courts and remitted the case to the first-instance court. That court held that the lower courts had failed to examine whether the applicant and his wife had acquired a specially protected tenancy by virtue of their long-term use of the flat, that is to say, by complying for many years with their obligations as tenants, which would have implied that there was a contract for use of the flat even though it had not been concluded in writing (see paragraphs 43 and 46 below). The relevant part of that judgment reads as follows:

“[The factual] findings of the [lower] courts are deficient to ... [the] extent that they ... do not [provide] sufficient [grounds] for concluding that the defendants have been using the flat without being entitled to do so.

It is true that the existence of a written contract for use of the flat was not established. However, circumstances may suggest that such a contract existed even though not in written form. In such cases, which entail compliance [by the occupier] with contractual obligations for many years, [in particular where the occupier] behaves like [a tenant] and pays the rent ... it is possible to acknowledge status as the holder of a specially protected tenancy in respect of a person who has occupied a flat on the basis of a contract of use for the [said] flat for many years (in this case more than 10 years) despite the non-existence of such a contract concluded in writing.”

In the resumed proceedings, at a hearing held on 2 December 1992 the local authorities withdrew their civil action in so far as it was directed against the applicant’s wife, who had ceased to live in the flat after the couple divorced.

By its judgment of 2 December 1992 the Zagreb Municipal Court dismissed the action by the local authorities. On 5 October 1993 the Zagreb District Court quashed that judgment for incompleteness of facts and remitted the case to the lower court.

On 5 November 1996 the Lease of Flats Act entered into force. It abolished the legal concept of the specially protected tenancy and provided that the holders of such tenancies who did not avail themselves of the right to purchase the flats under separate legislation were to become “protected lessees” (zaštićeni najmoprimci). Under the Act such lessees enjoy a number of protective measures, such as the duty of landlords to enter into a lease of indefinite duration, payment of a protected rent (zaštićena najamnina) ‒ the amount of which is set by the Government and significantly lower than the market rent ‒ and better protection against termination of the lease.

In its judgment of 10 October 2000 the Zagreb Municipal Court ruled in favour of the local authorities and ordered the applicant to vacate the flat. Following an appeal by the applicant, on 18 May 2004 the Zagreb County Court (Županijski sud u Zagrebu) quashed the first-instance judgment and remitted the case.

In the resumed proceedings, at a hearing held on 15 January 2008 the applicant submitted a copy of the contract for use of the flat he had allegedly signed on 22 February 1973, claiming that he had found it in the meantime. He asked the court to allow him to submit the original at a later date.

At the same hearing the applicant, relying on the Lease of Flats Act (see paragraph 15 above), also brought a counterclaim against the local authorities (the details of which he provided later) whereby he sought a judgment (a) acknowledging that he had acquired the status of a protected lessee, and (b) forcing a lease contract stipulating the protected rent.

At a hearing held on 7 April 2008 the court invited the applicant to bring to the next hearing, scheduled for 5 September 2008, the original of the contract of 22 February 1973.

The applicant did not attend in person the hearing held on 5 September 2008 nor did he submit the original of the contract, as requested by the court.

At a hearing held on 21 November 2008 the applicant’s representative stated that the applicant was unable to find the original of the contract. He explained that a friend of his from Dubrovnik had only recently found the copy of the contract and sent it to him. However, he had not found the original. The applicant’s representative therefore asked the court to adjourn the hearing and allow him additional time to find it. After hearing the applicant, the court refused that request and closed the main hearing. During his testimony the applicant explained that after 1971 he had been persecuted as a Croatian nationalist and that criminal proceedings had been instituted against him. In those proceedings he had been represented by an advocate from Dubrovnik who had in the meantime died. Because he had not felt safe in Zagreb, he had transferred all his important personal documents, including the contract in question, to that advocate for safekeeping. That was the reason why he could not find the copy of the contract earlier, and why he had been unable to find the original thus far.

By a judgment of 5 December 2008 the Zagreb Municipal Court (a) ordered the applicant to vacate the flat, (b) dismissed his counterclaim, and (c) ordered him to pay 12,215 Croatian kunas (HRK) for the costs of the proceedings. That court held that the applicant had not proved he had ever concluded a written contract for use of the flat. In particular, the court held as follows:

“It follows ... that the plaintiff proved facts on the basis of which its ownership of the flat at issue may be presumed in terms of section 166 of the [1996] Property Act. It has also proved that its right to possess the flat is stronger (in terms of section 41 of the [1980] Basic Property Act, which was in force at the time of the institution of these proceedings) than that of the defendant, in respect of whom this court ... finds that his use of the flat at issue has been without such entitlement. ...

... The defendant did not succeed in proving during the proceedings ... that he had moved into the flat at issue [on 22 December 1972] on the basis of any valid legal right to do so ... Furthermore, in this court’s view, the defendant did not succeed in proving his arguments [to the effect that he had] subsequently [on 22 February 1973] signed a written contract for use of the flat [and thereby obtained] valid legal status as the holder of a specially protected tenancy in terms of section 14 read in conjunction with section 43(2) of the [1966] Housing Act, which was in force at the [relevant] time.

In particular, the copy of the alleged ‘Contract for use of a flat of 22 February 1973’, which ... the applicant did not submit until the hearing held on 15 January 2008, cannot in the view of this court be regarded as valid evidence [that there was] a written contract for use of the flat at issue, given that the plaintiff disputed the authenticity of the said document, and the fact that the defendant had still not, by the time the main hearing was closed, submitted the original of the document in question despite being invited by the court to do so.

It is to be noted that at the hearing held on 21 November 2008 this court refused the defendant’s request to allow him additional time to submit the original of the impugned contract. [The court did so because] it found that the proposal was aimed at protracting the proceedings in this case and found unconvincing the defendant’s explanation that he had managed to find the impugned contract at the beginning of 2008 (that is to say, more than 24 years after the institution of these proceedings) and that the original is with an unnamed friend of his in Dubrovnik, who is unable to find it at this time.

The court did not give credence to the defendant’s testimony stating that he had ... signed the ... contract for use of the flat of 22 February 1973 on the premises of company S., but that he had lost it after transferring all his personal documentation to an unnamed advocate in Dubrovnik, having been persecuted as a Croatian nationalist from 1971 onwards. [The court] finds such testimony unconvincing and illogical, and contradictory of other evidence taken during these proceedings.”

On the question of whether the applicant had acquired a specially protected tenancy on the basis of his long-term use of the flat, the court held as follows:

“Even though under the former Housing Act a specially protected tenancy could exceptionally have been recognised in cases where there was no written contract for use of a flat, that was possible only in cases where the long-term occupation, combined with compliance with all the obligations incumbent on the holder of a specially protected tenancy, was the result of an agreement between the provider of the flat and the person occupying [it] – the potential holder of the specially protected tenancy.

However, even leaving aside the fact that the [evidence] suggested that the defendant had moved into the flat illegally, ... from the defendant’s own testimony it follows ... that in the relevant period, [that is to say] between the time he moved in and the date when these [civil] proceedings were instituted, [he] had not paid the rent or other charges in respect of the flat. [It] was only in 1984 that he [retrospectively] paid ... the plaintiff [a certain amount] for the rent and charges [accrued] in the period between 1 January 1973 and 31 May 1984. It cannot therefore be concluded that the defendant in the relevant period had complied with the obligations incumbent on a holder of a specially protected tenancy in respect of the flat at issue. In addition, in the view of this court the fact that the defendant was paying the rent and charges after the institution of these proceedings is not decisive for their outcome because [it became evident] at the latest when these proceedings were instituted that the defendant had been using the flat without the consent of the plaintiff, it being understood that the use of a flat without entitlement does not imply using the flat for free.”

On 16 February 2009 the applicant appealed against that judgment, arguing that the evidence suggested that a written contract for use of the flat had indeed existed but had been misplaced.

By a judgment of 26 January 2010 the Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance judgment, which thereby became final. The County Court endorsed the reasons given by the Municipal Court. It added:

“Since in his appeal the defendant contests only the finding of the [first-instance] court that he did not acquire a specially protected tenancy by having signed a [written] contract for use of the flat, but [he does] not [contest] the finding ... that he did not acquire a specially protected tenancy [by long-term use of the flat] with the knowledge and the consent of the plaintiff as the provider of the flat, the first-instance court correctly ... [ruled in favour] of the plaintiff ... given that the defendant does not have any right entitling him to possess [i.e. occupy] the flat.”

The applicant then lodged an appeal on points of law (revizija) with the Supreme Court.

On 9 March 2011 the Supreme Court dismissed the applicant’s appeal on points of law in so far as the contested second-instance judgment entailed a decision dismissing his counterclaim. To the extent that the impugned second-instance judgment entailed a decision allowing the plaintiff’s action and ordering the applicant to vacate the flat, the Supreme Court declared inadmissible the applicant’s appeal on points of law because the value of the subject matter of the dispute did not reach the statutory threshold for lodging such an appeal.

On 18 May 2011 the applicant then lodged a constitutional complaint alleging violations of his constitutional rights of equality before the law, equality before the courts and fair procedure.

By a decision of 1 March 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared inadmissible the applicant’s constitutional complaint, finding that the case did not raise any constitutional law issue. It served its decision on the applicant’s representative on 19 April 2012.

Meanwhile, on 28 February 2012 the local authorities had applied to the Zagreb Municipal Court for enforcement of its judgment of 26 January 2010 (see paragraph 22 above).

On 20 February 2013 the court issued a writ of execution (rješenje o ovrsi) ordering the eviction of the applicant from the flat at issue.

On 11 June 2013 the Zagreb County Court dismissed the applicant’s appeal against writ.

By a decision of 19 September 2013 the Municipal Court, at the request of the applicant, to which the local authorities agreed, decided to postpone the enforcement (odgoda ovrhe) until 13 March 2014.

Following a motion by the local authorities, by a decision of 19 November 2013 the Municipal Court decided to stay the enforcement proceedings (prekid postupka) pending a final decision in the concurrent administrative proceedings (see paragraphs 36-39 below). The enforcement court regarded the issue to be decided in those proceedings as a preliminary question (prethodno pitanje) in the enforcement proceedings and thus grounds for stay.

It would appear that the enforcement proceedings have been stayed ever since.

Meanwhile, by a letter of 4 February 2013, the relevant department of the local authorities informed the applicant that he could regularise his status regarding the flat in question by lodging a request that it be allocated to him under a local regulation setting out the criteria and the procedure for renting out flats owned by the City of Zagreb. The letter also specified that together with his request the applicant had to submit the relevant supporting documents, namely, the proof that he had regularly paid the charges in respect of the flat and the proof that he had paid the costs of the above civil and (see paragraph 22 above) enforcement proceedings.

On 28 March 2013 the applicant lodged such request but without enclosing the relevant supporting documents.

On 22 August 2013 and 13 November 2014 the local authorities’ commission for allocation of flats informed the applicant that his request was incomplete and invited him to enclose the relevant supporting documents (see paragraph 36 above).

Since the applicant did not do so, on 11 December 2015 the commission adopted a decision whereby it declared the applicant’s request inadmissible as incomplete.

The relevant provision of the Housing Act of 1962 (Zakon o stambenim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 17/62 with subsequent amendments), which was in force between 1962 and 25 December 1974, reads as follows:

“It is against the law to move into or occupy a flat without having signed a contract for use of the [said] flat beforehand, save in the cases provided for in this Act.”

“A specially protected tenancy shall be acquired on the day [an individual] lawfully moves into a flat on the basis of a contract for use of the [said] flat, unless this Act provides otherwise.”

“(1) A contract for use of a flat in social ownership shall be concluded between a holder of a specially protected tenancy and the [respective] organisation for maintenance of residential buildings in social ownership.

(2) The contract referred to in paragraph 1 of this section shall be concluded on the basis of a decision by the provider of the flat, if the issuance of such a decision is envisaged by the agreement between the provider of the flat and the organisation for maintenance of residential buildings in social ownership.

(3) ...”

“(1) A contract for use of a flat shall be made in writing.

(2) A contract for use of a flat which was not made in writing shall have no legal effect.

(3) ...”

The relevant provision of the Housing Act of 1974 (Zakon o stambenim odnosima, Official Gazette of the Socialist Republic of Croatia no. 52/74), which was in force between 26 December 1974 and 24 December 1985, reads as follows:

“A specially protected tenancy shall be acquired by concluding a contract for use of a flat, unless this Act provides otherwise.”

“It is against the law to move into a flat and use it without a contract for use of the [said] flat, unless this Act provides otherwise.”

(2) A contract which was not made in writing shall be null and void.”

The relevant provisions of the Housing Act of 1985 (Zakon o stambenim odnosima, Official Gazette of the Socialist Republic of Croatia nos. 51/85 and 42/86, and Official Gazette of the Republic of Croatia 22/92 and 70/93), which was in force between 25 December 1985 and 4 November 1996, and read as follows:

“A specially protected tenancy shall be acquired on the day [an individual] lawfully moves into a flat relying on a final decision assigning the flat for use, or another valid legal basis, unless this Act provides otherwise.”

The relevant provision of the Obligations Act of 1978 (Zakon o obveznim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 29/78, 39/85 and 57/89, and Official Gazette of the Republic of Croatia nos. 53/91, 73/91, 111/93, 3/94, 7/96, 91/96, 112/99 and 88/01 – “the 1978 Obligations Act”), which was in force between and 1 October 1978 and 31 December 2005, read as follows:

“Where the law requires that a contract be made in written form, it shall be considered valid even if it was not made in that form if the contracting parties have complied, entirely or in major part, with the obligations that arise from it, provided that the purpose for which the form is prescribed clearly does not suggest otherwise.”

The relevant provisions of the Basic Ownership Relations Act (Zakon o osnovnim vlasničkopravnim odnosima, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 6/1980 and 36/1990, and Official Gazette of the Republic of Croatia no. 53/1991, “the 1980 Basic Property Act”), which was in force between 1 September 1980 and 31 December 1996, read as follows:

“An owner may by bringing a civil action to seek repossession of [his or her] property from a person in whose possession it is.”

“A person who has acquired ... a property on the basis of [valid] legal title ... (the presumed owner) shall have the right to seek its repossession even from a possessor in good faith who possesses it without a title or on the basis of weaker title.”

The relevant provisions of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no. 91/96 with subsequent amendments – “the 1996 Property Act”), which has been in force since 1 January 1997, read as follows:

“An owner has the right to seek repossession of his or her property from a person in whose possession it is.”

“(1) Anyone who in proceedings before a court or other relevant authority proves his legal title ... shall be considered to be the owner of that property (the presumed owner) against a person who possesses it without title or on the basis of weaker title.

(2) A possessor who has no title or has a weaker title must surrender the property to its presumed owner at his or her request ...”

In its decisions no. Rev 1799/1997-2 of 9 February 2000, no. Rev 1483/01-2 of 18 December 2001 and no. Rev-x 513/11-2 of 13 July 2011, the Supreme Court held as follows:

“... a person who uses housing premises for a number of years with the knowledge and approval of the flat provider [and who] meets all the obligations of a holder of a specially protected tenancy and generally acts as a person who has concluded a contract for use of that flat or who possesses some other written entitlement, shall be considered to be the holder of a specially protected tenancy irrespective of the fact that he or she does not have a written contract for use of the flat [he or she occupies] or some other deed conferring a specially protected tenancy ...”


Violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty;Nulla poena sine lege;Retroactivity);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1979 and is detained in Dob pri Mirni.

On 23 April 1999 the 1999 Amendment to the 1994 Criminal Code entered into force (see paragraph 21 below).

On 17 September 2004 the applicant was convicted of robbery by the Ljubljana District Court and sentenced to four years in prison. He began serving his sentence on 7 December 2007 and completed it on 7 December 2011.

On 1 November 2008 the 2008 Criminal Code came into force (see paragraph 22 below).

On 16 June 2009 the applicant was convicted by the Ljubljana District Court of having paid with a bad cheque and of fraudulent use of a bank card in the period between 19 January and 19 August 2005. He was sentenced to five months’ imprisonment. The judgment became final on 7 October 2009. The applicant started to serve the sentence on 7 December 2011.

In the meantime, on 9 April 2009 the Ljubljana District Court found the applicant guilty of murder committed together with another person on 15 September 2002. He was sentenced to thirty years in prison, the maximum penalty provided for under the 1994 Criminal Code applicable at the time at which the offence was committed. The conviction was upheld on appeal by the Ljubljana Higher Court on 9 December 2009 and became final on the same day.

On 28 November 2011 the applicant applied to the Ljubljana District Court to have the three prison terms joined in an overall sentence.

On 13 January 2012 the Ljubljana District Court, by means of a judgment, joined the three above-mentioned prison sentences, including the one for robbery which the applicant had already completed, in an overall sentence. Applying the 2008 Criminal Code as applicable before the introduction of the 2011 Amendment (see paragraphs 22 and 23 below), the court noted that the applicant should have had an overall sentence imposed on him as the conditions under Article 53 of the 2008 Criminal Code (see paragraph 22 below) had been met but the provision had not been applied in his case. While acknowledging that Article 53 § 2 (2) of the 2008 Criminal Code applied to the case (see paragraph 22 below), the District Court sentenced the applicant to an overall term of thirty years’ imprisonment. In its reasoning, it noted that the principle of the rule of law required, inter alia, that criminal-law provisions be drafted in a clear and precise manner in order to avoid sentences being imposed arbitrarily. It went on to note that the legislation applicable to the present case was unclear, ambiguous and deficient for the following reasons. Although the maximum sentence applicable under the 2008 Criminal Code had been thirty years’ imprisonment and the rules on combining multiple sentences in an overall sentence, enshrined in Article 53 § 2 (2) of the 2008 Criminal Code, provided that the overall sentence must exceed each of the individual sentences, these same rules prescribed a maximum sentence of twenty years. The court took the view that the legislature had not intended to enact legislation enabling those offenders who had been sentenced to thirty years’ imprisonment for one of the offences for which they subsequently had had their sentences joined to benefit from an overall sentence that would have been ten years lower than the highest individual sentence to which the offender had been sentenced. In support of its view, the District Court pointed out that the 1994 Criminal Code (see paragraph 21 below) had provided that in cases where an offender had been due to serve thirty years’ imprisonment along with sentences for other offences, the overall sentence would have consisted only of that term. Therefore, the District Court considered that the legislature had made an obvious error in Article 53 § 2 (2) of the 2008 Criminal Code, which had, however, been rectified in the meantime by the 2011 Amendment. The court found that the latter made the rules on the determination of an overall sentence certain, clear and complete and that “[o]nly the so amended provisions therefore prevent[ed] arbitrary sanctioning of criminal offenders for multiple criminal offences as required by the principle of legality”.

The applicant appealed against the judgment, arguing that the District Court’s decision lacked a legal basis and was in breach of the principle of the rule of law and the principle nullum crimen et nulla poena sine lege. He also claimed that the primary method of interpreting legal texts should be semantic interpretation. It was only where that method proved unsatisfactory in determining how a certain rule should be applied that other methods of interpretation should be applied. Lastly, the applicant agreed with the District Court that the provision in question could be regarded as unclear, ambiguous and deficient, but pointed out that any possible ambiguities or deficiencies should not be interpreted to his detriment.

On 29 May 2012 the Ljubljana Higher Court rejected the appeal lodged by the applicant and upheld the first-instance judgment, reiterating the lower court’s reasoning. In the Higher Court’s opinion, the District Court had correctly assessed that the legislature had not intended to permit individuals convicted of several offences from benefiting from a lower maximum term of imprisonment than they would have had to serve if they had been convicted of only one of those offences. According to the Higher Court, such an interpretation would lead to a situation “defying the law as well as common sense”.

The applicant applied to the Supreme Court for the protection of legality (an extraordinary legal remedy), reiterating his arguments. He also argued that the rule of law was a principle which should not be applied at the courts’ discretion.

On 6 December 2012 the Supreme Court by its judgment I Ips 58203/2011 rejected the application for the protection of legality, disagreeing with the applicant that semantic interpretation should take precedence over all other methods of legal interpretation. The Supreme Court referred to the Higher Court’s judgment, pointing out that the latter court’s reasoning evidently showed that the historical interpretation of the rule on combining multiple sentences also had to be taken into account in assessing the aim of the legislature in enacting the provision at issue. That method of interpretation entailed the examination of not only the provision in its original form, as relied on by the applicant, but also the subsequent amendment, which showed the true aim of the provision. In addition, the Supreme Court relied on the systematic interpretation of the rule in question, emphasising that it could not be interpreted entirely separately from the provisions prescribing that individual prison sentences for various criminal offences must be combined to form an overall sentence. Since under the un-amended 2008 Criminal Code a prison sentence could be imposed for a term not shorter than fifteen days and not longer than thirty years, it was not logical that an overall sentence combining several prison terms, one of which was for thirty years, could be ten years lower than the highest individual prison sentence imposed. According to the Supreme Court, the rules on multiple offences were aimed not at reducing the general maximum prison sentence, but at ensuring that the overall length of several sentences did not exceed the general maximum prison sentence, which in the applicant’s case was thirty years.

The applicant lodged a constitutional complaint, reiterating that the imposition of an overall sentence of thirty years’ imprisonment contravened Article 53 § 2 (2) of the Criminal Code, which clearly provided that such a sentence could not exceed twenty years. In the applicant’s opinion, the purpose of the provision at issue could be drawn from interpreting it semantically and no additional means of interpretation were therefore required in order to understand the legislature’s intention.

On 24 April 2013 the Constitutional Court dismissed the applicant’s complaint, finding that it did not concern an important constitutional question or entail a violation of human rights with serious consequences for the applicant.

On 24 March 2015 the applicant was convicted of another murder committed on an undefined date between 30 June and 15 September 2002. For that murder he was sentenced to thirty years’ imprisonment, but a new overall sentence of thirty years was imposed. The latter overall sentence covered the previous overall sentence imposed by the judgment of 13 January 2012 (see paragraph 13 above), another sentence of four months imprisonment, which in the meantime had been imposed on him following a conviction for yet another criminal offence, and the thirty years’ imprisonment imposed by that last judgment of 24 March 2015. An appeal and an application for the protection of legality by the applicant were dismissed, the latter by the Supreme Court on 2 June 2016.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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

The applicants complained of the excessive length of their pre-trial detention. In application no. 8344/12 the applicant submitted also a complaint under Article 5 § 4 of the Convention.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Ms R.A., is a Polish national, who was born in 1973. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 3). She is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warszawa.

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

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

In July 2010 the applicant filed with the Warszawa-Praga Regional Court a claim for the protection of her personal rights against the company S. which publishes the newspaper “Nasz Dziennik”, its editor-in-chief E.S. and journalist M.S. She referred to an article published in this newspaper in January 2008 which, in the applicant’s submission, had breached her rights protected by Articles 23 and 24 of the Civil Code. She sought compensation in the amount of 60,000 Polish zlotys (PLN) in respect of non-pecuniary damage caused by disclosing information about her private life accompanied by denigrating and untrue statements and views about the applicant published in the newspaper in an article written by M.S. She further requested that all three defendants publish apologies, on the newspaper’s website for seven consecutive days and in a Sunday edition of a countrywide daily newspaper Gazeta wyborcza, for damage caused by describing her in a mendacious and wrongful manner (w sposób nieprawdziwy i krzywdzący).

By a decision of 22 July 2010 the court ordered the applicant to provide the court with the private addresses (miejsce zamieszkania) of E.S. and M.S. within seven days, referring to Article 126 para. 1 of the Code of Civil Procedure.

In her pleadings of 4 August 2010 the applicant submitted that it was impossible for her to establish the defendants’ private addresses and even less so within seven days. It was true that it was possible for her to ask the Ministry of Internal Affairs for the addresses of private persons, but such a request had to be accompanied by the statistical numbers (PESEL) of the persons concerned. The applicant did not know these numbers and had no way of obtaining them. She argued that in her statement of claim (pozew) she had provided the court with the newspaper’s publisher’s official address which should be sufficient for effective service of the court correspondence both on the journalist and the editor-in-chief working there. She submitted ’ private addresses amounted to an undue restriction of her right of access to court.

On 27 September 2010 the applicant requested the court to lift the order of 22 July 2010, referring to the Court’s judgment in the case of Nowiński v. Poland (no. 25924/06, 20 October 2009). She submitted that the domestic court’s approach was unduly formalistic as no proper regard had been had to the practicalities of the situation, in particular to the difficulties in establishing the defendants’ private addresses. She argued that it was in fact possible to ensure effective service of the court correspondence on the editor and journalist at the newspaper’s official address.

By a decision of 29 September 2010 the court, referring to Article 130 of the Code of Civil Procedure, returned the statement of claim to the applicant (zwrot pozwu) in so far as it concerned the editor-in-chief and the journalist. The court referred to the applicant’s failure to give their private addresses and refused to entertain her claim. The court referred to the Supreme Court’s decision given in 1989 to the effect that in the protection of personal rights cases in the context of press publications the requirements of Article 126 of the Code of Civil Procedure were to be understood as imposing on plaintiffs an obligation to submit private addresses of journalists to the court in the statement of claim (II CZ 167/89). Article 135 of the CCP providing for service of court pleadings at the employer’s address (doręczenie zastępcze) could not be applied.

The applicant appealed. She reiterated that she had indicated the publisher’s address in her statement of claim and that both the editor and journalist could easily be contacted at that address and the court correspondence served on them. Hence, it was possible for the court to establish an effective channel of communication with the two defendants and to ensure effective protection of their rights without the need for their private addresses being indicated to the court.

By a decision of 10 May 2011 the Court of Appeal dismissed the applicant’s appeal. It was of the view that the contested decision was lawful given that Article 126 para. 1 of the Code of Civil Procedure required that the private address (miejsce zamieszkania) of a defendant who was a natural person was indicated in the statement of claim and in the pleadings. The court observed that the Court’s judgment in the case of Nowiński v. Poland was irrelevant to the circumstances of the present case. The Court had found a violation of Article 6 of the Convention in respect of a situation where the court obliged the plaintiff who did not have a permanent private address to give such an address for the purposes of judicial proceedings. The present case was different in that it concerned private addresses of defendants who had permanent addresses.

On 28 September 2010 the applicant requested the newspaper’s publisher, S. company, to provide her with E.S.’s and M.S.’s private addresses, referring to the civil claim lodged with the WarszawaPraga Regional Court. There was no reply to this letter.

On 19 October 2010 the applicant submitted a request to the General Inspector for Personal Data Protection (Generalny Inspektor Ochrony Danych Osobowych) to oblige the publisher to provide her with the addresses concerned. She argued that the courts in the Warsaw region had developed an unduly restrictive practice requiring plaintiffs to give the personal addresses of defendants in all cases and had regard neither to practical difficulties in establishing these addresses, nor to the fact that in many cases, like in her case, it was in fact possible to proceed with the case as other addresses of the defendants, such as their employer’s permanent addresses, were available. Establishing effective communication between the court and the plaintiff was therefore feasible.

On 24 March 2011 the Inspector allowed her request.

The S. company appealed, submitting that the addresses were not necessary for the purposes relied on by the applicant. The applicant could find the necessary data in the press titles register run by the WarszawaPraga Regional Court. The publisher was further of the view that disclosure of the personal addresses of the journalist and the editor without their consent would have amounted to a breach of the legislation on the protection of personal data.

Following the publisher’s appeal, on 27 May 2011 the Inspector reexamined the case and upheld the contested decision. He noted that the lack of consent on the part of persons whose personal data were to be disclosed was not a single or decisive factor determining the lawfulness of such a disclosure. Personal data could be disclosed also when it was necessary for the protection of legally protected interests of third parties. In the present case the personal addresses of the journalists were necessary for the applicant to pursue her civil case against them. Hence, the publisher, in its capacity of administrator of its employees’ personal data, was obliged to disclose them.

On 20 February 2012 the Warsaw Regional Administrative Court dismissed the appeal brought to it by the publishing company, essentially reiterating the reasoning of the administrative authority.

On 10 April 2012 the publisher’s lawyer lodged a cassation appeal with the Supreme Administrative Court against that judgment. It was argued, inter alia, that there was no legitimate aim that would justify the disclosure of the journalist’s and editor’s addresses to the applicant, regard being had to the fact that the WarszawaPraga Regional Court had already returned the applicant’s statement of claim (see paragraph 7 above). In the absence of any pending case between the applicant on the one hand and E.S. (who had in the meantime married and her new name was E.N. – K.) and M.C. on the other, the disclosure would not serve any practical purpose.

On 5 December 2013 the Supreme Administrative Court dismissed the publisher’s appeal. It shared the reasoning and conclusions reached by the administrative authority and by the first-instance court.

On 25 July 2012 the Warszawa-Praga Regional Court allowed the applicant’s claim in so far as it was directed against the publisher company. It ordered it to publish apologies in their newspaper, for seven consecutive days, for having breached her personal rights by disclosing and publishing details of her personal life and describing them in a mendacious and wrongful manner (w sposób nieprawdziwy i krzywdzacy). It further ordered that the article should be removed from the newspaper’s website within 14 days from the judgment becoming final. The applicant was awarded compensation in the amount of PLN 30,000.

Article 25 of the Civil Code of 23 April 1964 provides:

“The personal address of a natural person shall be the town where that person resides with the intention of remaining permanently.”

Article 126 of the Code of Civil Procedure specifies the information that pleadings in civil cases should contain. Paragraph 2 provides, in particular, that the first pleading submitted to a court in a case directed against a natural person should indicate the parties’ personal addresses.