Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Georgia);Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants are husband and wife. They were born in 1981 and 1987 respectively and live in Syktyvkar in the Komi Republic of Russia.

The first applicant, a Georgian national, arrived in Russia in 1999. On 4 May 2001 he received a first residence permit, which was subsequently extended at regular intervals.

The first applicant’s parents have lived in Syktyvkar since the early 2000s. His father and mother acquired Russian nationality in 2005 and 2008 respectively.

On 26 August 2011 the first applicant married the second applicant, a Russian national.

On 28 June 2012 the second applicant gave birth to a son.

On 14 November 2011 an operative officer of the Federal Service for Drug Control in the Komi Republic discovered that the first applicant had injected himself with desomorphine, a derivative of morphine known under the street name “krokodil”. An administrative case was instituted under Article 6.9 of the Code of Administrative Offences (“Use of narcotic substances without a medical prescription”) and the matter was referred to the Town Court.

On the following day the Syktyvkar Town Court found the first applicant guilty as charged and, pursuant to paragraph 2 of Article 6.9 concerning foreign nationals, fined him 4,000 Russian roubles (RUB) and ordered his administrative expulsion from Russia (the “expulsion order”).

Counsel for the first applicant appealed. He submitted that the penalty of expulsion was extremely severe given that the first applicant had lived in Russia for almost ten years, his wife, who was pregnant with their first child, was a Russian national and a majority of his relatives lived in Russia. In the lawyer’s opinion, the first applicant’s expulsion would destroy his family life.

On 1 December 2011 the Supreme Court of the Komi Republic rejected the appeal, upholding the first applicant’s conviction. On the alleged disruption of the first applicant’s family life, the Supreme Court pronounced as follows:

“The representative’s argument to the effect that, in the light of Mr Gablishvili’s family situation, the Town Court had wrongly ordered his administrative expulsion from the Russian Federation cannot be taken into account as paragraph 2 of Article 6.9 of the Code of Administrative Offences provides for mandatory expulsion of the offender and is not an alternative to the main penalty which may take the form of either detention or a fine.”

On 24 April 2012 the first applicant paid the fine.

On 29 March 2008 the first applicant was issued with a five-year residence permit that was valid until 8 May 2013.

On 6 June 2011 the Komi Regional Centre for AIDS Prevention and Treatment notified the Komi division of the Federal Migration Service that the first applicant had been diagnosed with HIV.

On 10 June 2011 the Migration Service revoked the first applicant’s residence permit in accordance with section 9(1)(13) of the Foreign Nationals Act, which provided for the revocation of the residence permits of HIV-positive foreign nationals. The first applicant was informed of that decision on 9 November 2011 and ordered to leave Russia within fifteen days.

Counsel for the first applicant challenged the decision before a court, claiming that it amounted to a disproportionate interference with the first applicant’s family life and also put the first applicant’s life at risk.

On 28 February 2012 the Syktyvkar Town Court set aside the decision of 10 June 2011, observing that the first applicant had strong family ties in Russia and could receive medical treatment there with the assistance and under the supervision of his family. However, the Town Court declared itself incompetent to order the reinstatement of the residence permit.

On 31 May 2012 the Supreme Court of the Komi Republic heard an appeal against the Town Court’s judgment. It endorsed its reasons for setting aside the decision of 10 June 2011 and noted that the following logical step would be to reinstate the first applicant’s residence permit. It ordered the Migration Service to proceed accordingly.

On 28 June 2012 the Federal Migration Service complied with the judgment and reinstated the first applicant’s residence permit.

On the following day the Migration Service issued a new decision to revoke the permit, referring to the Town Court’s judgment of 15 November 2011 and section 9(1)(3) of the Foreign Nationals Act, which provided for the revocation of residence permits of foreign nationals who were liable to be expelled.

On 20 January 2012 the Federal Service for Drug Control issued a decision on the undesirability of the first applicant’s presence in Russia (the “exclusion order”) which read in its entirety as follows:

“1. On the basis of the materials received from the Komi division of the Federal Service for Drug Control, and in accordance with section 25.10 of the Entry and Exit Procedures Act, to declare undesirable the presence in Russia of the Georgian national Mr Gablishvili ...

To notify the decision to the officers and employees of the drug control authorities ...”

Counsel for the first applicant challenged the exclusion order in court, claiming that it would disrupt the first applicant’s family life.

On 20 July 2012 the Syktyvkar Town Court found for the first applicant as follows:

“The grounds for issuing the said decision were the following: use of drugs by the claimant, an offence of which he had been found guilty under Article 6.9 § 2 of the Code of Administrative Offences by the Town Court’s judgment of 15 November 2011 and fined RUB 4,000, and for which his administrative expulsion had been ordered; the discontinuation of the criminal proceedings on 29 November 2003 on non-exonerating grounds in connection with his active repentance; and his repeated convictions in administrative proceedings for breaches of public order.

However, in the court’s view, these elements are not sufficient to reach the conclusion that Mr Gablishvili, who has lived in Russia for a long time and who has stable family connections and can undergo treatment under his family’s supervision, represents a real threat to national security, public order and health.

In these circumstances, taking into account the provisions of the Russian Constitution ... according to which the rights and freedoms of man and citizen are directly operative and determine the essence, meaning and implementation of laws ... and may be restricted only to the extent necessary for the protection of the foundations of the constitutional system, morality, health, the rights and lawful interests of other people, national defence and security, the court considers that the said decision is unlawful and must be quashed.”

On an appeal by the Federal Service for Drug Control, the Supreme Court of the Komi Republic quashed, on 11 October 2012, the Town Court’s judgment and rejected the first applicant’s challenge to the exclusion order, finding as follows:

“It was established by the Town Court and not disputed by the claimant that Mr Gablishvili was a drug user, that he had previously breached the criminal law and that he had been repeatedly charged with administrative offences in the period from 2003 to 2011.

Those elements, taken cumulatively, indicate that, while living in the Russian Federation, Mr Gablishvili does not respect the applicable laws and lives an immoral lifestyle which – undoubtedly – is an imminent threat to public order and to the health and morals of Russian citizens.

The [Supreme Court] considers that his stable family connections in Russia may not be a bar to deciding on the undesirability of his presence in Russia because the law provides that such a decision may be taken against a specific individual not as a punitive measure but as a means of upholding public order and if it pursues, as stated above, the aim of safeguarding the health and morals of the Russian population.”

In their submissions to the Court, the Government specified that the first applicant’s previous administrative convictions, referred to in the Supreme Court’s decision, had been in respect of the following offences:

(a) non-medical use of heroin on 29 January 2009;

(b) minor disorderly acts on 25 January and 18 June 2000, 28 October 2003, 19 April 2004 and 30 January 2011;

(c) drunkenness in a public place on 26 February 2000;

(d) failure to have his residence registered on 25 November 2004; and

(e) “non-compliance with existing procedure” on 20 May 2010.

After the Town Court’s judgment dated 15 November 2011, the first applicant was found guilty of the following administrative offences:

(a) breach of public order, public drunkenness and refusal to obey a police officer, all committed on 8 March 2012;

(b) two cases of public drunkenness and a breach of public order on 27 and 28 May 2012;

(c) breach of public order on 30 January 2013, for which the first applicant was sentenced to five-days’ detention; and

(d) two driving offences on 31 March and 7 May 2013.

According to the Government, the first applicant’s current whereabouts are not known; he does not live at home. Nor is there any information showing that either the expulsion or the exclusion order has been executed.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

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

The applicant was born in 1959 and lives in Piatra Neamţ.

On 27 November 2001 the applicant, an administrator in a small commercial company, started serving a seventeen-year prison sentence for fraud and tax evasion.

From 10 August 2010 to 22 April 2014, when he was conditionally released, the applicant was detained in Bacău, Iaşi, Galaţi, Brăila, and Vaslui Prisons.

According to the applicant, the detention conditions in Bacău, Iaşi, Galaţi, Brăila, and Vaslui Prisons amounted to physical and psychological torture. His detailed description of the conditions, common to all those prisons, is set out below:

– overcrowding: in Bacău Prison, he was briefly held from 10 to 13 August 2010 in the old detention block in a cell measuring 12 sq. m with fifteen other prisoners; in Iaşi Prison, in a cell measuring 24 sq. m with twenty-seven other prisoners; in Galaţi Prison, in a cell measuring 15.2 sq. m with thirteen other prisoners; and in Brăila Prison, in a cell measuring 20 sq. m with fifteen other prisoners;

– inadequate heating in the winter and inadequate insulation of the windows. In the prisons of Iaşi and Galaţi there were no glass panes in the toilet window. In addition, in Galaţi Prison the toilet had no door. The applicant alleged that he contracted rheumatic fever and skin lesions on his hands owing to the cold he had endured;

– defective sanitary installations/no proper bathrooms: the cells were usually provided with an area where two sinks, a shower and a toilet were installed. In Iaşi and Brăila Prisons there was no shower, he had to wash in the sink or carry water and wash himself in the toilet if he wanted privacy. Hot water was provided twice a week for a period of only two hours, in which there was not always time for everyone to wash;

– presence of bed bugs and other parasites: in Bacău and Iaşi Prisons he could not sleep at night because of bed bugs falling on him from the upper bed. No disinfection was ever carried out by the prison authorities and in Bacău and Iaşi Prisons the detainees were not even allowed to bring in their own disinfectants from outside;

– the prisons had no place specially designed for eating. He was forced to eat in the cells, most of which did not have the requisite furniture – there were no chairs or tables, and the distance between the bunk beds was such that he could not sit up straight on his bed;

– insufficient daylight in the cells and electricity provided only for a few hours during the day and evening, so that he was forced to read and write in the dark most of the time;

– dirty and worn-out mattresses and sheets;

– very poor quality food;

– in Vaslui Prison there was so much dampness that there was always water on the floors.

In addition, the applicant alleged that the inhuman conditions of his detention had been aggravated by his constant and unnecessary transfers between prisons and between various cells in the same prison. He also alleged that on numerous occasions he had had to share his cell with mentally ill detainees who sometimes acted strangely, terrifying him or making his life unbearable.

The Government submitted that all of the prisons mentioned by the applicant had adequate natural and electric lighting and ventilation, and that the windows had never been covered by spare beds. All of the prisons had a central heating system providing adequate heating in the winter. All of the cells in which the applicant had been held had had the requisite furniture.

The specific details submitted by the Government with respect to the prisons in question are set out below.

The applicant was held in the old detention block of Bacău Prison until 13 August 2010 in cell no. 117, which measured 27.12 sq. m and accommodated eleven prisoners (2.46 sq. m of personal space).

There were no insect infestations in the prison in 2010.

The applicant was held in Iaşi Prison for one year and two months, from 13 August 2010 to 24 September 2010 and from 26 March 2013 to 22 April 2014. During those periods he was placed in three different cells measuring from 19.3 sq. m to 33.3 sq. m, which he shared with seven and twenty-five other prisoners respectively (2.41 sq. m to 1.2 sq. m of personal space).

The cells had their own bathroom containing two toilet cabins and a sink. Cold water was available permanently. Inmates had access to the common shower area twice per week.

The block occupied by the applicant during the second period in which he stayed in that prison had been renovated in January 2012. Hence, the cells had been provided with showers, and hot water was available daily for two hours. Television sets had also been installed in the cells. A self-service canteen was created where prisoners could eat their meals in proper conditions.

As regards the presence of insects, the problem was known by the prison administration who explained that it had been caused by the high number of prisoners and their failure to maintain adequate hygiene. Disinfection operations were conducted at least twice per year, within the limits of the budget.

The Government submitted two statements written and signed by the applicant on 12 September 2013 and 27 January 2014, in which he had declared that he was satisfied with the conditions of detention in the recently renovated block of Iaşi Prison.

The applicant was held in Galaţi Prison for two years and one month, from 24 September 2010 to 23 October 2012. During that period he was placed in four different cells measuring approximately 24 sq. m, which accommodated twelve to fifteen prisoners (1.6 to 2 sq. m of personal space).

The cells had their own bathrooms with a toilet and shower. Cold water, which was also used for drinking, was available daily from 6.30 to 8.30 a.m., 2 to 4.30 p.m. and 6.30 to 9 p.m. Prisoners had access to hot showers twice per week for one hour, depending on the number of prisoners and the heating capacity of the central heating system.

Cleaning products were provided monthly within the limits of the budget. The mattresses were renewed in August 2012.

Food was usually provided in accordance with the regulations but budgetary limitations meant that certain products were sometimes missing.

The applicant was held in Brăila Prison for almost four months, from 23 October 2012 to 19 February 2013.

The applicant was placed in a cell measuring 21.73 sq. m together with twelve other prisoners (1.6 sq. m of personal space). The cell had three rows of bunk beds totalling fifteen places.

Access to hot showers was possible twice per week. The provision of personal hygiene products was sometimes reduced for budgetary reasons. Heating and food were provided in accordance with the legal norms. Prisoners were served their meals in their cells.

The applicant’s cell had two television sets on which prisoners could watch programmes during certain time slots.

The prison administration ensured the prisoners’ access to a daily walk and sports activities.

General disinfection operations were conducted four times in the course of 2012 and twice in 2013. The Government submitted that the prison had not allocated any funding for disinfectants in the budget for 2013 and had thus had to attract outside sponsorship to cover that cost.

The applicant was detained in Vaslui Prison for one month and seven days, from 19 February to 26 March 2013. During that period he was placed in three different cells measuring 14.75 sq. m, which he shared with two to five other prisoners (personal space ranging from 2.95 sq. m to 4.91 sq. m).

Renovated cells were “put in use” on 1 May 2012 and new mattresses, pillows and sheets were distributed on the same date. The cells were equipped with the requisite furniture and a television set. They also had a bathroom with a toilet, a shower, a sink and a window. Cold water was available permanently and hot water twice per week for two hours.

Hygiene products were distributed monthly, but the statutory quantities could not be respected due to budgetary limitations. In 2013 prisoners were given washing powder ten times, soap and toilet paper nine times and chlorine eight times.

Food was prepared in accordance with the legal standards, in a fully renovated area. Prisoners were served their meals in their cells.

No disinfection was necessary in the applicant’s cell during the time he spent in Vaslui Prison.

The applicant alleged that while in detention he had developed various diseases as a result of the poor conditions in which he had been held. He alleged that the prison doctors had not provided him with adequate medical treatment and that all of the prisons had lacked medicines. More specifically, the prison infirmary had been open only once a week; whenever he had had a cold, an infection or even for the rheumatic fever he contracted in prison, he had usually been given only aspirin, as other medicines had never been available at the prison infirmary. In addition, he had suffered from toothache and other associated aches and pains and, despite repeatedly asking, he had never been taken to a dentist or given any painkillers, even when he finally developed a tooth infection and suffered pain for several consecutive weeks.

On 22 July 2010 the applicant was examined at the Bacău Prison infirmary and was diagnosed with lumbago. He received one tube of Diclofenac cream.

On 28 August 2013 the applicant was admitted to Iaşi Military Emergency Hospital and was diagnosed with osteoarthritis of the hands, chronic tetany (a neurological syndrome consisting of painful muscular spasms and cramps) and lower back pain. He was released with the recommendation to avoid effort, exposure to cold and dampness, and was prescribed symptomatic medication. On 30 September and 29 October 2013 the applicant received a total of ten anti-inflammatory tablets.

With respect to the dental care available to the applicant, the Government submitted that he had been examined and diagnosed, and had undergone treatment such as extractions, fillings and dental pulp extirpations on numerous occasions. On all those occasions he had also received appropriate treatment with antibiotics and pain killers.

Lastly, the Government submitted that no complaints concerning any alleged lack of adequate medical treatment had ever been lodged by the applicant during his detention.


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

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1927 and lives in Izhevsk, the Republic of Udmurtiya.

The applicant is a retired person and a World War II veteran with a category 2 disability.

He is the owner of two-thirds of a house with outbuildings and an adjacent plot of land located in the vicinity of a public highway in Izhevsk. His wife lived there with him from 1958 until her death in 2011. They cultivated their garden to grow their own fruit and vegetables.

Between 2000 and 2002 the municipal authorities repaired the highway and raised the level of the road surface.

Since the completion of the repair works the applicant’s house and plot of land have been submerged by melted snow and groundwater every year. The house has been seriously damaged and, according to the applicant, is no longer habitable.

In 2004 the applicant brought proceedings against the municipal authorities and the municipal company that had repaired the road. He claimed that a drainage pipe had been installed in breach of technical requirements and in the absence of any specific project documentation. The authorities had not properly supervised or validated the works carried out, despite numerous technical shortcomings. This had resulted in his house being inundated by melted snow and groundwater in May 2002. Since then it had been regularly flooded. The applicant claimed compensation for the pecuniary and non-pecuniary damage he had sustained as a result of the flooding. He also asked the Industrialnyy District Court of Izhevsk (“the Industrialnyy District Court”) to order the municipal authorities to develop specific project documentation for the installation of a new drainage pipe and carry out the necessary repairs to the road.

On 19 March 2007 the Industrialnyy District Court examined the applicant’s claims. It established that between 2001 and 2002 the municipal authorities had carried out repair works to the public highway in the vicinity of the applicant’s house and had installed a drainage pipe. Regarding the flooding of the applicant’s house in May 2002, the court held that he had not proved the extent of the damage and that “no casual connection had been established between the actions of the municipal authorities and the damage”. Accordingly, there were no grounds to award the applicant compensation for pecuniary and nonpecuniary damage. The court also noted that according to an expert report issued in October 2006:

“... the most probable cause of the inundation of the applicant’s house in 2002 was its position below the level of the road, lack of preparatory and protective engineering measures, road construction in the absence of project documentation ...”

The Industrialnyy District Court concluded that the flooding resulted from a malfunctioning drainage pipe located under the road surface. The authorities were therefore under an obligation to arrange for works to be carried out related to the collection of wastewater from the road and the area near the applicant’s house.

On 5 July 2007 the Supreme Court of the Republic of Udmurtiya (“the Supreme Court”) quashed the part of the judgment of 19 March 2007 refusing to award the applicant compensation for pecuniary damage and adopted a new decision to that effect. It held that the case material confirmed that since 2000 the applicant’s house had been regularly inundated by surface water coming from the road, which had not been properly maintained by the town administration. As a result, his property had been damaged. The Supreme Court awarded the applicant 68,900 Russian roubles (RUB) (about 1000 euros (EUR)) in compensation for the pecuniary damage sustained as a result of his house being flooded. It upheld the remainder of the judgment of 19 March 2007.

On 12 May 2009 the bailiffs’ service initiated enforcement proceedings. On an unspecified date the town administration engaged the services of the municipal highway service to unclog the drainage pipe. According to the certificate of acceptance, the highway service finished the works in July 2009.

On 23 November 2009 the bailiffs’ service terminated the enforcement proceedings. The applicant did not lodge an appeal against that decision.

In April 2007 the applicant’s house and plot of land were again flooded. He sued the municipal authorities, claiming that his home and property had been flooded because the town administration had not complied with its obligation to install a waste water collection system for the road. He also claimed compensation for pecuniary and non-pecuniary damage.

On 20 October 2008 Oktyabrskiy District Court of Izhevsk (“the Oktyabrskiy District Court”) terminated the proceedings in respect of the applicant’s claim regarding the municipal authorities’ obligation to repair the road, since it had already been examined and decided by the Industrialnyy District Court on 19 March 2007.

On 30 October 2008 the Oktyabrskiy District Court examined the remainder of the applicant’s claims. It established that since 2000 the applicant’s house had been regularly flooded because the town administration had not carried out the necessary repairs to the road. It further established that the town administration had not enforced the final judgment of 19 March 2007 and as a result the applicant’s house had been regularly flooded since its adoption. Having regard to the above, the court concluded that the flooding of the house in spring 2007 had been the fault of the town administration, which had not properly maintained the road. The court awarded the applicant RUB 132,017 (about EUR 2,000) in compensation for pecuniary damage and dismissed his claim in respect of non-pecuniary damage.

On 21 January 2009 the Supreme Court upheld that judgment.

In September 2010 the applicant brought a new set of proceedings against the municipal authorities. He submitted that his house had been regularly flooded because of the failure of the local authorities to install a waste water collection system next to his house. The flooding had continued after the enforcement of the judgment of 19 March 2007. As a result of regular flooding his house had been almost destroyed, the living conditions did not conform to the established sanitary standards and the air inside and around the house was permanently damp. The applicant also claimed compensation for pecuniary and non-pecuniary damage.

The Oktyabrskiy District Court ordered an expert construction examination in the applicant’s case. According to the expert report dated 9 January 2013, which relied on Russian Building Regulations pertaining to roads and urban development (see paragraphs 42-48 below):

“... the installation of a drainage system ordered by the judgment of 19 March 2007 ... has not been carried out ... [the applicant’s] house has been flooded since July 2009 [up to the date] of examination of [his] case in court. The waste water is collecting in [four neighbouring] streets, including the applicant’s. The road next to the applicant’s house is essentially horizontal and the diversion of [melted snow] ... has not been technically finalised (the diameter of the pipe has not been technically justified, its route and gradient not calculated) ... The water collection system which existed previously has been modified due to the unauthorised elevation of parts of the road and its surface and the newly constructed road ...”

In the expert’s opinion, in order to protect the applicant’s house from yearly flooding it was necessary to carry out a land survey, draft a plan of the project, make the necessary calculations and perform repairs.

On 21 January 2013 the Oktyabrskiy District Court examined the applicant’s claims. It held that it was competent to do so in so far as they concerned the flooding of his house which occurred after enforcement of the judgment of 19 March 2007.

The court allowed the applicant’s claims in part. It established, in particular, that after enforcement in 2009 of the judgment of 19 March 2007 the applicant’s house had been regularly flooded as a result of the authorities’ failure to comply with their obligation to properly maintain the applicant’s street and the road near his house. The court ordered the municipal authorities to commission a project with a specialist firm for the construction of a drainage pipe on the part of the road adjacent to the applicant’s house, and to carry out construction works in accordance with that project by 1 July 2013. It dismissed the applicant’s claims in respect of pecuniary and non-pecuniary damage as there was “no causal link between the action or inaction of [the authorities] and the damage sustained [by the applicant]”.

On 22 April 2013 the Supreme Court upheld the judgment of 21 January 2013. It appears that the applicant did not lodge an appeal against that decision.

On 16 August 2013 the Oktyabrskiy District Court issued a writ of execution.

On 4 September 2013 the bailiffs’ service instituted enforcement proceedings.

On 24 February 2014, after three formal demands under the writ of execution and in the absence of any action on the part of the town administration, the bailiffs’ service found it liable for the administrative offence of non-compliance with a writ of execution, and issued a fine of RUB 5,000 (about EUR 80).

In spring 2014 the applicant’s house was again flooded.

On 13 and 16 September 2014 the town administration signed two municipal contracts under the terms of which it engaged two companies to perform road repairs and anti-flood works on the part of the road adjacent to the applicant’s house. On 13 and 31 October 2014 respectively the works were completed.

On 5 November 2014 the bailiff terminated the enforcement proceedings following an on-site inspection and determined that the judgment of 21 January 2013 had been fully enforced.

The applicant appealed against that decision, complaining that the judgment in question had not been fully enforced.

On 4 February 2015 the Oktyabrskiy District Court dismissed his appeal, finding that the judgment had been fully enforced.

On 29 April 2015 the Supreme Court quashed that decision and adopted a new decision allowing the applicant’s complaint regarding the bailiff’s decision to terminate the proceedings. It held, in particular, that that decision had been unlawful and ordered the bailiffs’ service to reopen the enforcement proceedings. On 27 May 2015 the chief bailiff overturned the decision to terminate the enforcement proceedings in the applicant’s case.

On 8 July 2015 the Oktyabrskiy District Court examined the applicant’s claim concerning the failure of the town administration to enforce the judgment of 21 January 2013 within a reasonable time. The applicant claimed RUB 98,000 (about EUR 1,600) in respect of nonpecuniary damage. The court acknowledged that he had undeniably sustained non-pecuniary damage and awarded him RUB 10,000 (about EUR 160). It also noted that the necessary repairs had been carried out in October 2014 and that the applicant’s representative, Mr K., had stated in the proceedings that the flooding of the house had stopped.

On 19 October 2015 Mr K. acknowledged in writing that the judgment had been enforced. On 20 October 2015 the bailiff terminated the enforcement proceedings.

On 16 September 2013 the applicant applied to the Interdepartmental Commission (“the Commission”) attached to the Industrialnyy District administration to have his house declared unfit for habitation on account of the damage caused by regular flooding.

On 11 October 2013 the Commission held that over the years the applicant’s house had lost a number of its features. However, it was still possible to recover them by carrying out structural repairs.

On 18 October 2013 the head of the Industrialnyy District administration approved those conclusions and held that the applicant’s house was in need of structural repairs, that it was possible to carry them out and that they should be carried out by the owner.

On 26 December 2014 the Industrialnyy District Court dismissed a complaint by the applicant regarding the Commission’s decision. On an unspecified date the Supreme Court upheld that decision on appeal.

On 10 January 2011 the applicant and his wife applied to the municipal authorities to be placed on the municipal housing list. It appears that up to the date of examination of his case by the Court the applicant has not been provided with any accommodation.


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

Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicants were spouses born in 1952 and 1954 respectively. In 2013 the first applicant died, following which the second applicant expressed the wish to continue the application both in her own name and in the name of her late husband. The second applicant lives in Bratislava.

On 11 October 2002 the applicants lodged a criminal complaint with the Bratislava V District Office of Investigation alleging that an individual, A., had obtained an amount of money from them in return for the promise of arranging for the renovation of the flat in which they lived, that she had failed to keep that promise, and that she had not even been in the possession of the appropriate business licence for so doing. They considered that the criminal offence of fraud could have been committed in that connection, alleged that they had suffered the equivalent of some 7,300 euros worth of damage, and submitted that A. had refused to compensate them.

On 3 December 2002 the second applicant was questioned by an investigator. According to the transcript of the questioning, she inter alia referred to Article 43 of the 1961 Code of Criminal Procedure (Law 141/1961 Coll., as applicable at the relevant time – “the 1961 CCP” – see paragraph 19 below), submitted that she wished to join the proceedings as a civil party claiming damages, and proposed that the amount of the compensation be determined by a sworn expert.

On 23 January 2003 a criminal investigation was opened into the suspicion of the offence of fraud having been committed by one or more persons unknown in connection with the events mentioned above.

On 13 March 2003 the investigator appointed a sworn expert to establish the value of the pecuniary damage allegedly sustained by the applicants. The expert filed his report on 22 May 2003.

On 4 November 2004 A. was charged but the charges were quashed by the Bratislava V District Office of the Public Prosecution Service (“the PPS”) on 10 January 2005. The matter was thus remitted to the investigation stage.

Meanwhile, on 3 January 2005, the District Office of the PPS had informed the applicants that unjustified delay had been established in the proceedings, that it was due to the existing caseload and the staffing situation, and that the investigator’s attention had been brought to the need to accelerate the proceedings.

In a letter of 5 February 2005 the Bratislava Regional Office of the PPS responded to the applicants’ repeated complaint by accepting that there had been unjustified delay in the proceedings, which had been repeatedly indicated to the investigator. However, except for flagging up the delays to the investigator, notifying the investigator’s superior, and changing the investigator, the PPS had no means of ensuring acceleration of the proceedings.

On 21 January 2008 the District Office of the PPS responded to a further complaint from the applicants by again accepting that the investigation was in general vitiated by significant delays. This had repeatedly been indicated to the investigator’s superior, but had not produced the expected improvement. The case had not been reassigned to another investigator because this did not appear to be efficient in view of the staff shortage. However, the investigator had again been reminded of the delays and if no improvement was to be seen, a new investigator would be appointed.

On 14 January 2010 the investigator decided to terminate the proceedings. Referring to evidence from the second applicant, five witnesses and the expert, as well as to documentary evidence, he concluded that there was no criminal case to answer. This decision was upheld by the District Office of the PPS on 1 February 2010, following the applicants’ interlocutory appeal. No further appeal was available.

Meanwhile, on 6 October 2009, the applicants had lodged a complaint under Article 127 of the Constitution (Law no. 460/1992 Coll., as amended) with the Constitutional Court. They challenged the length of the proceedings on their third-party claim for damages attached to the above criminal proceedings and alleged a violation of the reasonable-time requirement under Article 6 § 1 of the Convention and its constitutional equivalent.

On 25 March 2010 the Constitutional Court declared the complaint inadmissible. As to the facts, it observed that the second applicant had attached their third-party claim for damages to the proceedings orally in the interview of 3 December 2002. As to the law, the Constitutional Court referred to the Court’s judgment in the case of Krumpel and Krumpelová v. Slovakia (no. 56195/00, 5 July 2005) and acknowledged that an aggrieved party (obeť) of a criminal offence who attached a third-party claim for damages (adhézny nárok) to the criminal proceedings was entitled to the guarantees of the civil limb of Article 6 of the Convention. However, referring to unspecified practice of the ordinary courts and to the nature of things, the Constitutional Court held that it was a condition for the aggrieved party to benefit from the guarantees in question to have made the claim against a specific person and that that person could be identified no earlier than when charges were brought against him or her. The Constitutional Court further referred to its previous case-law on the subject and held specifically that the aggrieved party claiming damages in the criminal proceedings only benefited from the right to a hearing within a reasonable time under Article 6 after a charge had been brought against a specific person. In that regard, the Constitutional Court noted that the charges against A. of 4 November 2004 had been quashed on 10 January 2005 (see paragraph 10 above). Therefore, at the time of the constitutional complaint, the applicants had no longer benefited from the constitutional guarantees relied on.

The decision was served on 12 May 2010 and no appeal lay against it.


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

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

The applicant, Ms I. S., was born in 1962 and lives in Bielefeld.

The applicant married in 1986 and had two children. In 1991 and 1992 she suffered miscarriages and a stillbirth, which caused her a long lasting psychological trauma.

In summer 1999 she became pregnant with twins after an extramarital affair. The natural father insisted on an abortion, as did the husband of the applicant. Both men threatened to leave her.

In November 1999 the husband of the applicant moved out and threatened to stop paying maintenance for his two sons and to the applicant. He put further pressure on her by threatening to break off all contact with his sons if she sued for maintenance. Instead, he offered to move back in with the applicant if she gave away the “illegitimate” children. The applicant’s sister and her mother refused to support her. The applicant felt extremely guilty for having destroyed the family situation for her two sons, yet she was determined not to have an abortion.

On 19 April 2000 the twin sisters, S. and M., were born prematurely. The applicant and the newborn children had to remain in hospital, where until 7 May 2000 the applicant cared for the children.

The applicant did not specify the identity of the natural father of the twins.

The applicant made initial contact with the Bielefeld Youth Office during her pregnancy. She allegedly initially thought about having the twins placed in foster care, due to her difficult family and financial situation. The Bielefeld Youth Office – according to the applicant – instead suggested adoption as the applicant herself or her husband would have to pay for the foster care.

From January until October 2000 the applicant received psychological treatment on the advice of her gynaecologist. According to her psychoanalyst the applicant was depressed, had suicidal tendencies, and suffered from anxiety, panic attacks and extreme feelings of guilt as well as a sleeping disorder. The applicant felt overwhelmed by the situation and the decisions to be taken. The potential adoption was a topic of discussion during the treatment.

As the applicant could not take the newborn children home she consented to having them placed in provisional care with a view to later adoption. In this way she hoped to avoid too many changes of the children’s primary carers. She was allegedly told that if placed in foster care the newborns would first be given to an emergency foster family for six months before being handed over to a long-term foster family.

From 8 May 2000 onwards a staff member from the Bielefeld Youth Office advised the applicant to stop visiting the children if she really intended to give them up for adoption.

On 19 May 2000 the children were handed over to the couple who later became their adoptive parents.

In summer 2000 the applicant personally met the future adoptive parents of the twin sisters. The applicant was allegedly so upset that she burst into tears and had to cut the visit short.

On 1 September 2000 it was legally acknowledged that the husband of the applicant was not the father of the twin sisters by judgment of the Bielefeld District Court (no. 34 F 1306/00). The applicant began to work full time in order to support herself and her two sons.

On 9 November 2000 the applicant formally consented to the adoption of the children in a deed before the civil law notary, D.R., in Bielefeld. The declaration reads as follows:

“I hereby give consent for my children, S. and M., born 19.04.2000 in Bielefeld, to be adopted by the married couple identified under no. [...] on the list of the Bielefeld City Youth Office.

I declare this for the use of the competent family court. I am aware that this declaration cannot be revoked.

I have been instructed by the civil law notary as to the legal consequences of the adoption, in particular the fact that all kinship of the children and their children to me and my relatives will cease as will all duties and rights that follow from kinship.

Although I do not know the names of the future parents of my children I trust that the Bielefeld City Youth Office has made a proper choice regarding the parents and respected the interests of the children.

In case the family court wishes to inform me about the beginning or the end of care, the beginning or the end of guardianship regarding my children or about the granting of adoption, I hereby empower the Bielefeld City Youth Office to receive that information for me.”

As the identity of the natural father of the children remained unknown, he could not consent to or object to the adoption.

After the declaration of consent had been made, the applicant, the prospective adoptive parents and the twin infants met again in person. On 25 November 2000 an oral agreement was reached between the prospective adoptive parents and the applicant at a meeting at Stormarn District Social Services in the presence of a staff member. It was considered that the adoptive parents would send a short report together with photographs of the children to the applicant once a year through the Bielefeld Youth Office. Whether this agreement laid down any rules regarding regular meetings between the children and the applicant is disputed. A personal meeting in summer 2001 was considered, but did not take place.

On 1 February 2001 the future adoptive parents declared in a deed before a civil law notary that they wished to adopt the twin sisters S. and M.

In March 2001 the District Administrator (Landrat) of Stormarn District, Department of Social Services and Adoption gave an expert opinion on the development of the children in the care of the prospective adoptive parents.

On 21 June 2001 the guardianship division of the Reinbek District Court (proceedings no. 2 XVI 1/01) held a hearing with the prospective adoptive parents in the presence of the twins. The record of the hearing reads:

“It was debated how the children have been getting on in the family. Particular attention was paid to addressing anxieties resulting from the fact that the natural mother is obviously having enormous difficulties coping on a psychological level with the fact that she has given away her children. There are signs, given that a half-open adoption was agreed on, which lead to the conclusion that the mother seeks contact with the twins. However, the arrangement involving the staff of the Youth Office and the natural mother remains valid, namely, that photographs of the children are to be sent annually to the natural mother. The children will also be told early on that they were adopted.”

On the same day the Reinbek District Court concluded the adoption of S. and M. and declared them the legitimate children of the adoptive parents. The family and the given names of the children were changed accordingly.

On 11 April 2002 the applicant commenced proceedings before the Bielefeld District Court in order to declare her consent to the adoption void. The court transferred the case to the competent Reinbek District Court (no. 2 XVI 6/02). The applicant argued that the adoption was void because the father of the child had not consented to the adoption. She further argued that at the time of giving her consent she had been either in a temporary or in a pathological state of mental disturbance, which had prevented the free exercise of her will. She had not been aware of what she had been doing. She argued – referring to medical evidence – that she had been suffering from an “aggravated reactive form of depression with acute risk of suicide” since 1992, when she had been traumatised by the stillbirth.

The guardian ad litem of the children argued that a revocation of the adoption would be against the best interests of the children, as since their birth they had been almost continuously in the care of the adoptive parents who had established a very good parental relationship with them.

In reaction to the arguments of the guardian ad litem the applicant partly withdrew her application with regard to custody rights and made clear that her aim was no longer to integrate the children into her own family. She acknowledged that the children were well cared for and fully settled in the adoptive family. She underlined that her aim was to regain kinship in order to have a right to contact with the children. In her view her vulnerable situation at the time of the birth had been exploited by the Bielefeld Youth Office; she now felt that she had been unduly influenced to put the children up for adoption.

The Reinbek District Court procured a psychiatric opinion on whether the applicant had been temporarily legally incapable of acting at the time of consenting to the adoption. The expert contacted the applicant, her psychoanalyst at the time and her long-term gynaecologist. According to the psychiatric expert the applicant had been in a situation of extreme conflict from the time she had become aware of her pregnancy. This had aggravated the depression she was already suffering from due to the accidental stillbirth in 1992. He put the applicant’s decision to put the twin sisters up for adoption down to her desire to “get her husband back”. He diagnosed a certain weakness in the applicant’s personality and a dependency on male authority. However, he could not diagnose any past or present psychotic illnesses and therefore concluded that although she had been suffering from a deep inner conflict at the time of consenting to the adoption, the applicant had been legally capable of making a decision on her own.

On 4 June 2003 the court heard the applicant, who explained how, in her view, the Bielefeld Youth Office had unduly used her wish to see her children in the summer of 2000 in order to pressurise her into signing the adoption declaration.

In a decision of 10 June 2003 the Reinbek District Court dismissed the applicant’s claim. It acknowledged the situation of extreme conflict the applicant had been in at the time of consenting to the adoption and the psychological implications of that. It stated that solutions other than putting the children up for adoption might have been available to resolve the applicant’s personal crisis. In line with the expert opinion, however, the court held that the applicant had still been capable of making decisions. Furthermore, the court stated that the applicant had no legal standing to rely on the lack of consent of the children’s father to the adoption.

Since the applicant did not appeal against the decision, it became final.

On 14 November 2002 the applicant filed proceedings (no. 1 F 32/02) for contact with the children and the right to receive information about them at the Reinbek District Court. She argued that she had been promised meetings with the children every six months and letters and photos of them. A meeting with the children in June 2001 had been scheduled according to the agreement, but did not take place because the responsible member of Bielefeld Youth Office was on extended leave. No other member of the Youth Office had replaced the absent staff member. In September 2001 the applicant received photos of the children. When she mentioned that she was thinking about revoking her consent to the adoption, staff of the Bielefeld Youth Office threatened to stop her contact with the children. A letter that the applicant wrote to the adoptive parents and handed over to the Bielefeld Youth Office was returned with the remark that the applicant should seek psychological treatment. The applicant based her claim for contact on Article 1666 and additionally on Article 1685 § 2 of the Civil Code (see “Relevant domestic law” below). Her claim for the right to receive information about the children was based on Article 1686 of the Civil Code.

On 2 July 2003 the adoptive parents were heard. They opposed the claim of the applicant and asked for it to be dismissed. They referred to the legal basis of adoption under the Civil Code, which only provided for anonymous adoption. According to the hearing record the adoptive parents declared that they still intended to inform the children about the adoption before they started primary school. They had planned to see the mother of the children together with the children in spring 2001. This meeting had been set up for the sole benefit of the applicant, as the children would not have benefited from it. They had had the intention of sending letters to the applicant with information about the children. Now, in view of the court proceedings, they felt insecure and preferred to wait for the court decisions.

In a decision of 21 July 2003 the Reinbek District Court dismissed the applicant’s request for contact with the children. According to the court Article 1684 of the Civil Code was not applicable to the applicant’s case as she had lost her legal status as a parent as a result of the adoption. An analogous application of the Article was, according to a decision of the Federal Constitutional Court of 9 April 2003 (no. 1 BvR 1493/96), not possible. Article 1685 of the Civil Code was applicable, but would not grant contact rights to the applicant as she did not fulfil the legal requirements. The applicant could not be considered as a person who had cared for the children for an extended period of time. In fact, she had only cared for them for two weeks. Even if the criteria of the Federal Constitutional Court in the above-mentioned decision – whether there was a social and family relationship – were applied, the applicant could not be granted contact, as she had not created a significant social and family relationship with the children. The time of pregnancy and the two weeks after the birth did not suffice. The Civil Code grants to the adoptive parents the sole right to establish, grant or deny contact with the children even in respect of the natural mother. Furthermore, the court argued that the children, who were only three years old, might be overwhelmed by the fact that they had two mothers.

On 28 July 2003 the court also dismissed the applicant’s claim in regard to the right to receive information about the children. Article 1686 of the Civil Code was not applicable, as the applicant was not a parent any more. Insofar as Article 1686 might be construed more widely, it would not apply to the applicant as her case did not fall under the scope of Article 1685 of the Civil Code.

On 11 August 2003 the applicant filed an appeal with the Schleswig Court of Appeal. She mainly complained that the Reinbek District Court had neither decided on Article 1666 of the Civil Code as a potential basis of her claim nor on whether a contractual agreement existed; furthermore, her petition for an expert opinion on the children’s best interests had been ignored. She further argued that the criteria of a “long duration”, when applied to parent-child relationships, had to be interpreted from the perspective of the child, whose concept of time differed from that of adults. The natural mother was always a “relevant person” in the sense of Article 1685 of the Civil Code, and this evaluation did not change even after the natural mother ceased to have legal responsibilities. Regarding the right to information, she argued that although she had consented to the adoption, she remained the natural mother and the constitutional protection of the family applied to her. Even the Federal Constitutional Court had acknowledged that during pregnancy a psycho-social relationship between mother and the foetus was established (judgment of 29 January 2003 – 1 BvL 20/99 and 1 BvR 933/01). Lastly, she complained about the length of the proceedings.

On 22 October 2003 the applicant was granted legal aid.

On 30 January 2004 the Schleswig Court of Appeal (10 UF 199/03 and 10 UF 222/03) dismissed the applicant’s appeal against the decisions of the Reinbek District Court of 21 and 28 July 2003. Two hearings, one on 15 December 2003 and the other on 30 January 2004, had taken place. Regarding the length of the proceedings before the district court, the Schleswig Court of Appeal found that that court had dealt adequately with the complex case within seven and a half months. Concerning the contact rights of the applicant, the court found that only Article 1685 Civil Code was applicable. Although the applicant was the children’s natural mother, she did not belong to the circle of people who had lived in “domestic community” with the child for a long period of time. According to the court, only foster parents are covered by this terminology. Furthermore, in order to determine “a long period of time” one had to establish whether a child had come to accept that his or her “relevant surroundings” (Bezugswelt) were with the individual in question. In the present case, the time of pregnancy was irrelevant, as an unborn child does not have a concept of its surroundings. Article 1685 Civil Code was in line with the constitutional protection of the family. The natural mother ceased to have contact or custody rights at the moment of adoption. The legal provisions regarding adoption were aimed at the undisturbed development of the child, and they served the best interests of the adopted child, who had to be fully integrated into the adoptive family; the biological family became irrelevant in accordance with the law. Even if the criteria of the judgment of the Federal Constitutional Court of 9 April 2003 regarding the natural father of a child born out of wedlock were applied, the natural mother would have to have lived with the children for a considerable time, which was not the case here. As the applicant knew, the right to contact on the basis of a contractual agreement could not be enforced by the family courts, as they were not empowered to regulate such matters. Article 1666 of the Civil Code did not give grounds for a different solution.

Having considered the claim for the right to receive information about the children under Article 1686 of the Civil Code, the court found that the applicant had ceased to be a parent at the moment of adoption. As the legal basis was unambiguous and the circle of people who had a right to such information was strictly limited to the parents, the court found no room for a different interpretation.

On 8 March 2004 the applicant raised a constitutional complaint regarding the denial of her rights to receive information about and have contact with the twin sisters after their adoption.

In a decision of 13 December 2007, served on the applicant’s representative on 19 December 2007, a panel of three constitutional judges refused to admit the constitutional complaint.

The applicant also commenced proceedings in June 2003 concerning the appointment of a guardian ad litem for the twin sisters, in order for the children to be able to raise a constitutional complaint against the adoption decision of the guardianship division of the Reinbek District Court of 21 June 2001 (no. 2 XVI 1/01). These proceedings are the issue of another complaint before this Court (application no. 30296/08).

The applicant divorced her husband and is now remarried. She had a child with her new husband in 2003.

By letter of 16 December 2011 this Court informed the applicant that on 3 December 2011 the Law on a remedy against lengthy court proceedings and criminal investigations (Federal Law Gazette Part I, 2011, page 2302 et seq.) had come into force in the Federal Republic of Germany.


Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Ms Pelageya Ivanovna Bichenok, is a Russian national, who was born in 1954 and lives in Orel.

The applicant is a former employee of a municipal unitary enterprise, the Town Housing and Maintenance Company (“МУП Городское Производственное Предприятие Жилищно-Коммунального Хозяйства” (“the company”) of Mirnyy, the Republic of Sakha (Yakutiya).

The company was set up by a decision of the administration of the town of Mirnyy (“the town administration”) and provided housing and communal services in the town. The company had “the right of economic control (“право хозяйственного ведения”) over the assets allocated to it by the town administration in order to carry out its statutory activities.

On an unspecified date the company was declared insolvent, and insolvency proceedings commenced. A liquidation commission was accordingly set up.

At some point the applicant was dismissed from the company. She challenged her dismissal in court and claimed salary arrears in two rounds of court proceedings.

On 14 February 2001 the Mirninskiy District Court of the Sakha (Yakutiya) Republic granted the applicant’s claim in part. The court found that the applicant’s dismissal had been unlawful, ordered the liquidation commission to change the date of the dismissal to the date of the judgment, to modify the grounds for the dismissal and to pay the applicant 121,767.95 Russian roubles (RUB) in salary arrears. On 26 March 2001 the judgment was upheld on appeal by the Supreme Court of the Republic of Sakha (Yakutiya) and entered into force.

On 12 April 2001 the same court awarded the applicant RUB 44,052.36 against the company in respect of salary arrears. It appears that the judgment entered into force ten days later.

The applicant received the writs of execution in respect of the judgments and sent them to the town bailiffs’ service on 12 March and 15 May 2001 respectively. On the same dates the bailiffs instituted enforcement proceedings in respect of each of the writs.

On 17 July 2001 the Commercial Court of the Republic of Sakha (Yakutiya) discontinued the insolvency proceedings and ordered the respondent company’s liquidation. The creditors’ claims, which had not been satisfied during the insolvency proceedings, including the remainder of the applicant’s claims, were considered as settled. On 30 October 2001 the liquidation was recorded in the Register of Legal Entities, and the company ceased to exist.

It appears that the judgments in the applicant’s favour have not been enforced.

On 19 June 2001 the applicant brought proceedings against the bailiffs’ service, alleging that it had been inactive and had failed to assist her in the enforcement of the judgments in her favour.

On 4 February 2002 the bailiffs’ service discontinued the enforcement proceedings because of the company’s liquidation.

By a final judgment of 5 June 2002 the Supreme Court of the Republic of Sakha (Yakutiya) dismissed the applicant’s claim. The court held that the bailiffs had taken measures to ensure enforcement of the judicial awards in her favour until the company’s liquidation on 17 July 2001. However, the bailiffs had been manifestly unable to obtain enforcement of the awards after the company had ceased to exist. Therefore, the court concluded that the decision to discontinue the enforcement proceedings had been lawful.

For a summary of the relevant domestic law and practice concerning municipal unitary enterprises see, in so far as relevant, Samsonov v. Russia ((dec.), no. 2880/10, §§ 15-44, 9 October 2014); Yershova v. Russia (no. 1387/04, §§ 35-43, 8 April 2010); and Liseytseva and Maslov v. Russia (nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014).


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in 1958 and lives in Kyiv.

On 24 February 2002 the applicant was travelling on a tram and was approached by Mr G. and Mr S., ticket inspectors employed by the Kyivpastrans municipal enterprise (“the transport company”). As subsequently established by domestic authorities in the indictment and in the judgment convicting S. (see paragraphs 31 and 34 below), there was a disagreement between the applicant and the inspectors as to whether he had a valid ticket. They insisted that the applicant pay a fine for travelling without a ticket, while he insisted that he had broken no rules. The applicant was asked to get off the tram. It was then agreed that the applicant would accompany the inspectors to a tram depot to resolve the dispute. While they were on their way to the depot S. kicked the applicant. In response the applicant sprayed the inspectors with tear gas from a can he had on him. S. then kicked the applicant in the left knee, causing a fracture. A struggle between the applicant and S. ensued. G. and S. then left the scene. The applicant could not stand up or walk following the knee fracture, he was helped to the nearby tram stop by the bystanders who called an ambulance for him. According to the applicant, he has been receiving treatment for his injury until early 2005.

On 26 February 2002 the applicant made a statement to the police describing the circumstances of the incident. In particular, he stated that on the day of the incident he had been approached by two ticket inspectors who questioned the validity of his ticket, suggesting that he appeared too old to be using a student ticket. While they insisted that he pay a fine he insisted his ticket was in order. He volunteered to go with them to a police station to resolve the dispute. In response they suggested that they go to the tram depot instead and he agreed. On the way to the depot he was kicked from behind. He turned round and sprayed the inspectors with tear gas, and was kicked in the knee. He stated that he did not know the names of the inspectors but could identify them by sight.

On 4 March 2002 a police investigator of the Svyatoshynskyy District Police Department (“the District Police Department”) refused to institute criminal proceedings into the incident. The investigator noted that the ticket inspector on duty on the tram line in question at the relevant time was identified as S. He went on to note that S. could not be contacted for an interview since he was said to be on sick leave from work and was not found at his home address. The investigator also noted that the gravity of the applicant’s injuries could only be evaluated after completion of the applicant’s treatment.

On 5 March 2002 a forensic medical expert diagnosed the applicant with a knee fracture and classified this as bodily injuries of medium gravity.

On 18 December 2002 the Svyatoshynskyy District Prosecutor’s Office (“the District Prosecutor’s Office”) quashed the decision of 4 March 2002 and instituted criminal proceedings on suspicion of deliberate infliction of bodily injuries of medium gravity. On the same day the District Prosecutor’s Office informed the applicant about this decision, also informing him that disciplinary proceedings had been initiated against the investigator who made the decision of 4 March 2002. According to the applicant, he first learned about the decision of 4 March 2002 from this letter from the District Prosecutor’s Office.

On 24 December 2002 another investigator of the District Police Department commenced the investigation.

On 28 December 2002 the investigator recognised the applicant as an aggrieved party in the criminal proceedings. On the same day the applicant was interviewed in this capacity.

On 4 April 2003 the investigator sent a letter to the transport company enquiring whether S. had been working at the relevant time as a ticket inspector and asking the company to identify who S. had been working with on the day of the incident. In April 2003 the company responded that S. had indeed been working as an inspector at the relevant time, that G. had accompanied him on the day of the incident, and that S. had been dismissed on 16 June 2002 for absenteeism.

On 9 April 2003 the applicant, in the course of a photo identification, identified S. as the person who had assaulted him.

According to the Government, on 18 April 2003 the investigation was suspended for failure to identify the perpetrator.

On 18 September 2003 the investigation was resumed.

On 9 October 2003, in the course of a photo identification, the applicant identified G. as the person who, together with S., participated in the incident.

On 14 October 2003 the investigation was suspended for failure to identify the perpetrator.

On 31 August 2004 the District Police Department informed the applicant that the investigation in his case was pending.

On 2 February 2005 the District Prosecutor’s Office quashed the decision of 14 October 2003 to suspend the investigation, finding that possible perpetrators had in fact been identified.

On 20 February 2005 the investigation was suspended for failure to identify the perpetrator.

On 5 April 2005 the investigator resumed the investigation, initiated criminal proceedings against S. and G., and joined the newly initiated proceedings with the existing case file.

On 14 April 2005 the investigator charged S. with infliction of bodily injuries of medium gravity, committed in conspiracy with G. The investigator placed S. and G. on the list of wanted persons, and suspended the investigation as the whereabouts of the accused were unknown.

On 20 February and 4 May 2006 the investigator decided to resume the investigation, and on 22 February and 4 May 2006 respectively to suspend it again.

On 10 June 2006 the investigation was resumed.

On 12 June 2006 a face-to-face confrontation was conducted between G. and the applicant, and the applicant was interviewed separately. The applicant stated that S. had kicked him on the knee. While he was not certain that G. had assaulted him, he was assuming that it was G. who had kicked him in the back on 24 February 2002.

On 14 June 2006 the investigator discontinued the criminal proceedings against G. for lack of corpus delicti in his actions. He relied on the testimony of G., who denied assaulting the applicant, and the testimony of the applicant to the effect that it was S. and not G. who had assaulted him. On the same day he suspended the remaining part of the investigation for failure to identify the perpetrator.

According to the Government, on 24 September 2007 S. was arrested. On the same day the investigation was resumed and the charges were announced to S.

On 25 September 2007 a face-to-face confrontation was conducted between S. as the accused and the applicant as the aggrieved party.

On 20 October 2007 the investigator charged S. with infliction of bodily injuries of medium gravity.

According to the Government, on an unspecified date, upon completion of the pre-trial investigation in S.’s case, the applicant was offered an opportunity to study the case file but refused it. According to the applicant, he was not informed about the completion of the investigation or any of the subsequent developments in the criminal proceedings.

On 29 October 2007 the District Prosecutor’s Office approved the bill of indictment indicting S. for infliction of bodily injuries of medium gravity.

On 9 November 2007 the Svyatoshynskyy District Court of Kyiv (“the trial court”) held a preliminary hearing in S.’s case, in which S., his lawyer and a prosecutor participated. The record of the hearing states that the applicant was not present at the hearing.

On 20 November 2007 the trial court examined the case on the merits in the presence of S., his lawyer and the prosecutor and in the absence of the applicant. The trial court, after obtaining favourable opinions from all parties present, ruled that the hearing should proceed in the absence of the applicant and witness G. who, the court stated, “had been duly notified about the hearing”. The court further ruled that, should their presence prove necessary, measures would be taken to ensure the applicant’s and G.’s appearance. In the course of the hearing the court heard a statement from S.. S. did not contest the charges and admitted his guilt. The court ruled that in view of S.’s confession and admission of guilt there was no call to examine any other evidence.

On the same day the trial court convicted S. as charged and sentenced him to two years’ imprisonment, suspended for two years with probation. In sentencing S. the court took into account that S. had admitted his guilt and expressed remorse, the fact that he had no prior convictions, was employed and had positive references from his then-current place of employment.

According to the information submitted by the Government, the domestic case file in S.’s case does not contain any copies of summonses or notices sent to the applicant in the course of examination of the case by the trial court or any documents indicating that such summonses or notices were sent.

On 7 February 2005 the applicant lodged a civil claim with the Holosiyivskyy District Court of Kyiv, against the transport company, seeking damages for the unlawful actions of its employees.

On 15 November 2005 the court rejected his claim on the ground that he had not proved that he had been injured by the employees of the defendant in the performance of their duties. The court noted that the applicant had failed to explain why the individuals identified by him had not yet been charged or convicted, and that the criminal case in connection with the incident was still under investigation.

On 24 January 2006 the Kyiv City Court of Appeal upheld the judgment of the first-instance court.

On 30 November 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 15 November 2005 and 24 January 2006.


Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1940 and lives in Zsámbék.

The applicant lodged a compensation claim for medical negligence against a hospital on 10 October 2006.

The Pest Central District Court dismissed the action.

On appeal, the Budapest Regional Court upheld the firstinstance decision on 29 November 2011.

The applicant lodged a petition for review. The Kúria upheld the decision on 13 March 2013. The judgment was served on the applicant on 30 May 2013.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque

The applicant was born in 1967 and lives in Khabarovsk.

On 6 October 2004 the applicant, who was then a police officer, was arrested on suspicion of extortion. On 8 October 2004 the Khabarovsk Zheleznodorozhniy District Court (“the District Court”) remanded him in custody, finding as follows:

“There is a reasonable suspicion in the present criminal case, supported by the enclosed documents: statements by B. [the alleged victim of the extortion]; the crime scene report; the report on the marking and examination of the banknotes; the report on the search of and seizure of money from O. [a co-accused]; minutes of interviews with B., the prime suspect O., and K, a witness. When deciding on the remand matter, the court is not required to evaluate whether the existing evidence is sufficient for a finding of guilt.

[The applicant], a police officer, is suspected of having masterminded and supervised the commission of a serious crime by a criminal group which included other police officers. It follows from the statements by B. and K. that, after they had complained to the police about extortion, they continued to receive threats of physical violence from [the applicant], Sh. and Z. In these circumstances, [the applicant] must be remanded in custody because a more lenient restrictive measure cannot be imposed.”

On 21 October 2004 the Khabarovsk Regional Court (“the Regional Court”) upheld the decision of 8 October 2004 on appeal.

On an unspecified date the applicant was charged with organising and facilitating prostitution.

On 3 December 2004 the District Court extended the applicant’s pretrial detention until 6 February 2005. The court noted as follows:

“Regard being had to the submissions made by the parties, the case file, and the fact that, as a police officer, [the applicant], if not in custody, might abscond, put pressure on victims and witnesses who identified him as a person who had committed a crime, or otherwise interfere with the administration of justice ... The judge does not consider that the restrictive measure imposed on [the applicant] can be replaced with a more lenient one ...”

On 16 December 2004 the Regional Court upheld the decision of 3 December 2004 on appeal.

On 4 February 2005 the District Court extended the applicant’s detention until 6 April 2005 indicating as follows:

“Having studied the case file and having listened to the parties to the proceedings, the court does not discern circumstances that would justify the replacement of the restrictive measure imposed on [the applicant].

[The applicant] is charged with a serious offence. He has organised a criminal group and has been its leader. If not in custody, he can put pressure on the parties to the proceedings.

The above presumption as to the [applicant’s] potential conduct is based on the information about the [applicant’s] character and his modus operandi.”

On 5 April 2005 the District Court extended the applicant’s detention until 7 May 2005, noting as follows:

“... [The] court takes into account the seriousness of the crime [the applicant] is charged with ... The court considers that, as an active police officer able to use his position, [the] applicant might put pressure on victims and witnesses who directly identified him as an offender, or otherwise interfere with the establishment of the truth. Furthermore, the [applicant’s] assertion that he is suffering from a serious disease ... cannot be taken into account by the court. No medical report has been submitted to show whether [the applicant] was fit or not for detention.”

On 5 May 2005, the District Court extended the applicant’s detention until 6 July 2005 arguing as follows:

in particular that the criminal investigation is being conducted into a group of persons and that [the applicant] is a police officer, the court concludes that he, if not in custody, might abscond, continue criminal activities, put psychological or physical pressure on the victim or witnesses, destroy evidence or, otherwise interfere with the administration of justice.”

On 27 June 2005 the District Court extended the applicant’s pre-trial detention until 28 September 2005, reiterating that the applicant might put pressure on victims and witnesses. On 12 July 2005 the Regional Court upheld this decision on appeal, but only extending the applicant’s detention until 6 September 2005.

On 18 August 2005 the District Court extended the applicant’s pretrial detention until 28 September 2005. The court reiterated its previous reasoning that the applicant might put pressure on victims and witnesses.

On 5 September 2005 the applicant was charged with organisation of a criminal group, accepting bribes, and abuse of position. It appears that the charges of extortion and of organising and facilitating prostitution were dropped.

On 15 September 2005 the prosecution submitted the case against the applicant and three co-defendants to the Regional Court for trial.

Following a request from the prosecution, on 23 September 2005 the Regional Court allowed the return of the case file to the prosecutor on the grounds that the defendants had not been able to study it. The court dismissed the defendants’ request to release them on bail finding that “the circumstances underlying their remand in custody [were] still present” and extended their detention until 28 November 2005. On 22 December 2005 the Supreme Court of the Russian Federation upheld the decision of 23 September 2005 on appeal. In response to the applicant’s argument that the maximum statutory period of pre-trial detention had expired and he should therefore be released, the court noted that, pursuant to the applicable rules of criminal procedure, the applicant could be detained for eighteen months pending investigation, owing to the seriousness of the charges against him.

On an unspecified date the prosecutor forwarded the case file to the court and on 24 November 2005 the Regional Court again granted the prosecutor’s request and returned the case file to the prosecution for five days on the grounds that the defendants had not studied the case file in its entirety. It also extended the applicant’s and his co-defendants’ detention until 28 December 2005, referring to the earlier particularities justifying the defendants’ remand in custody and to the fact that the case involved anonymous witnesses and victims. On 16 March 2006 the Supreme Court upheld the decision of 24 November 2005 on appeal.

On 20 December 2005 the Regional Court received the case file and on 27 December 2005, for a third time, it decided to return the case to the prosecutor at his request, reiterating its earlier reasoning. The court extended the defendants’ detention until 28 March 2006, holding as follows:

“Since the period of detention of [the applicant], Z. and Sh. ends on 28 December 2005, this period must be extended by three months so as to remedy a violation of the rights of the defence which resulted from the impossibility for defendants and counsel to study the case-file, as well as to allow the investigator to decide subsequently on the restrictive measure in respect of those individuals.”

On 7 March 2006 the case was re-submitted for trial.

On 20 March 2006 the Regional Court extended the defendants’ detention until 7 September 2006. The court reasoned as follows:

“Having discussed with the parties the issue of the [defendants’] detention, regard being had to the seriousness of the charges against them, the court considers that, if not in custody, the defendants might influence the victims and witnesses, abscond or reoffend. It considers it necessary to extend the earlier imposed detention ...”

On 24 March 2006 the Regional Court fixed the trial date for 24 April 2006 and noted that the detention earlier imposed on the defendants should remain unchanged. On 26 May 2006 the Supreme Court upheld the decision of 24 March 2006 on appeal.

On 8 June 2006 the Supreme Court upheld the decision of 27 December 2005 on appeal.

On 11 August 2006 the Regional Court extended the applicant’s detention until 7 December 2006 reiterating, in substance, its earlier reasoning.

On 26 October 2006 the jury delivered a not-guilty verdict in the applicant’s case and on 27 October 2006 the Regional Court issued the relevant judgment and ordered the applicant’s immediate release.

On 28 August 2007 the Supreme Court upheld the judgment of 27 October 2006 on appeal.

On an unspecified date the applicant brought an action for compensation for pecuniary damage resulting from the criminal prosecution. The applicant’s claims included: lost income, legal fees, his lawyer’s travel expenses in connection with the appeal hearing in Moscow, reimbursement of the cost of food, a television set and a refrigerator his family had sent to him while he had been in detention.

On 9 April 2008 the Regional Court granted the applicant’s claims in part and awarded him 285,516 Russian roubles (RUB) for legal fees and his lawyer’s travel expenses and RUB 314,634.64 for loss of income. The applicant did not appeal.

On an unspecified date the applicant brought a civil claim seeking compensation for non-pecuniary damage in connection with the criminal prosecution. In particular, he alleged that he had been detained pending criminal proceedings against him in the absence of relevant evidence and sufficient reasoning. The applicant claimed RUB 2,000,000 in this respect.

On 8 October 2014 the Khabarovsk Tsentralniy District Court granted the applicant’s claims in part and awarded him RUB 500,000. The court noted, in particular, that an acquittal in the criminal proceedings had been a catalyst for the restoration of his good name and position before the trial (реабилитация, hereinafter “rehabilitation”)

“...’s] claims should be granted in part.

In the present case, the court takes into consideration that the decisions to detain [the applicant] pending trial were authorised by court orders which were subject to review by superior courts which examined their lawfulness and the underlying reasons and upheld [said decisions] on appeal.”

On 14 January 2015 the Regional Court upheld the judgment of 8 October 2014 on appeal.


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

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 civil proceedings and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Fair hearing;Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant institute is a private institute that carries out research in the field of social sciences. Its registered office is in Ljubljana.

In June 2003, the Ministry of Education, Science and Sport (hereinafter “the Ministry”) made two calls for tenders for the purpose of making awards for scientific research projects; one call was directed at private entities and the other at public research organisations. The Ministry announced that in 2004 it would finance 100,000 research hours, which were estimated to amount to 750,000,000 Slovenian tolars (SIT – approximately 3,130,000 euros (EUR)). The research projects were to be evaluated under the Rules on Quality Assessment and Funding of the Public Research Organisation Programme. The applicant institute submitted a tender for research in the field of social sciences.

Subsequently, the Ministry seems to have joined the proceedings for the two tenders, but no formal decision regarding the joinder appears to have been made. On 17 February 2004 the Ministry decided that the applicant institute would not be awarded any funding.

The applicant institute applied to the Administrative Court of the Republic of Slovenia (“the Administrative Court”), seeking the setting aside of the Ministry’s decision. The action was granted by a decision of 4 April 2007 and the case was remitted to the Ministry for reconsideration.

On 19 October 2009 the applicant institute lodged another action before the Administrative Court on account of the Ministry’s failure to adopt a decision within the prescribed time-limit.

On 30 March 2010 the Ministry again decided that the applicant institute would not be awarded any funding. It explained that the institute’s research programme had been ranked fifth among the research programmes in the field of political sciences and that only four programmes in that group would receive funding. The Ministry pointed out that it was presumed that no conflict of interests existed, even when evaluators worked in the same institution whose tenders they were evaluating and that this was a common European practice. It was further noted that evaluators had signed a declaration of confidentiality and an undertaking to withdraw in the event that a conflict of interests was found.

In order to reflect the fact that the Ministry had adopted the decision of 30 March 2010, the applicant institute supplemented its action of 19 October 2009, which it had originally lodged on account of the Ministry’s failure to adopt a decision (see paragraph 9 above), with a request that the Ministry’s decision be set aside. It further urged the Administrative Court to decide that it would be awarded funding. It complained that the Ministry had joined the proceedings that had initially been intended for consideration of tenders from private research organisations to the proceedings for consideration of tenders from public research organisations, without issuing a formal decision to that effect. It also complained of errors in the evaluation of the competing programmes, because not all of the criteria specified in the Rules on Quality Assessment and Funding of the Public Research Organisation Programme had been taken into account. It argued, inter alia, that the evaluation procedure had been unfair because some of the evaluators had been biased, as they had been evaluating research programmes which were competing with the very programmes in which they themselves participated. This provoked a distortion of the results of the procedure, as shown by the fact that only those research programmes in which the evaluators were leaders or members of research teams obtained financing. The applicant institute expressly requested a hearing at which witnesses could be heard with regard to the alleged procedural errors in the evaluation of the programmes. Additionally, it submitted a letter of 2 December 2003 which one of the witnesses, K., had sent to the Minister of Education, Science and Sport and several other addressees. In the letter K. notified them of problems he had detected in the tender proceedings in which he had participated as an evaluator.

After the parties had exchanged a number of written submissions, the Administrative Court, without holding a hearing, dismissed the action. In its decision of 2 February 2011 the court gave an extensive account of the proceedings before the Ministry and the submissions of both parties. The reasons for the decision were given on a single page. Invoking section 71(2) of the Administrative Dispute Act (Zakon o upravnem sporu – hereinafter “the ADA”, see paragraph 23 below), the Administrative Court chiefly referred to the submissions of the Ministry. It considered, among other things, that the Ministry had not acted unlawfully in joining the proceedings. It accepted the Ministry’s submission that its decision had been dictated by the nature of the research and infrastructural programmes, taking into account the guidelines of the National Research and Development Programme. The court also pointed out that the procedural rules for the evaluation of research programmes adopted by the National Scientific and Research Council clearly defined the stages of the evaluation procedure, the participants in it and their tasks. Regarding the alleged conflict of interests, the court stated that it agreed with the Ministry as to why no such conflict existed and cited section 71(2) of the ADA (see paragraph 23 below). As to the alleged errors in the evaluation of the competing programmes, the court merely disagreed with the applicant institute that not all criteria had been taken into account and again cited section 71(2) of the ADA.

No reasons were given for not holding a hearing. None of the evidence relied on by the applicant institute in their appeal (see paragraph 11 above) was acknowledged or referred to in the court’s reasoning.

On 31 March 2011 the applicant institute lodged an appeal on points of law. It complained that the Administrative Court had not held a hearing even though the facts of the case had been contested and the applicant institute had explicitly requested a hearing at which witnesses could be heard. It also argued that the Administrative Court had failed to address its allegations that errors had been made in the evaluation procedure, and complained that insufficient reasoning had been given for the decision.

On 1 September 2011 the Supreme Court rejected the appeal as inadmissible. No reasons were given in its decision on the merits of the applicant institute’s complaints.

The applicant institute then lodged a constitutional complaint, arguing, among other things, that the decisions of the Ministry and the domestic court had been arbitrary and that the courts had failed to address its allegations that errors had been made in the evaluation procedure. It reiterated that the witnesses it had proposed had not been heard and that no hearing had been held.

On 19 November 2012 the Constitutional Court dismissed the applicant institute’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 institute.