Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicant was born in 1941 and lives in Staryy Oskol, Belgorod Region.

On 6 May 2005 the applicant concluded a preliminary sale agreement with Mr N. regarding a plot of land with a small house under construction situated in the Belgorod Region. After the signature of this agreement, the applicant started using the plot of land, she finalised the construction of the house and beautified the plot of land.

On 3 July 2006 Mr N. died.

On 10 October 2008 the son of the deceased, Mr N. junior, sold the plot of land to another person, who registered her property right.

Later, the applicant sought to register her property right over the plot of land and found that it already had another registered owner. She then sued Mr N. junior before courts.

On 9 April 2009 the Starooskolskiy Town Court of the Belgorod Region declared the sale contract of 10 October 2008 null and void. Mr N. junior was declared the owner of the plot of land and of the house.

On 17 June 2009 the Town Court granted the applicant’s claims against Mr N. junior and awarded her 613,280 Russian roubles (RUB) for unjust enrichment and damages corresponding to different sums invested by the applicant in the plot of land and the house as well as the reimbursement of cost and expenses.

On 4 August 2009 the Belgorod Regional Court partly modified this judgment. It decreased the amount of damages to RUB 246,569, notably quashing the part relating to unjust enrichment.

On unspecified date the applicant lodged a supervisory review application.

On 17 December 2009 the Presidium of the Belgorod Regional Court partly quashed the judgment of 4 August 2009 and sent the case for consideration anew before the second instance court. The Presidium considered that the Belgorod Regional Court misapplied the provisions of the Civil Code on unjust enrichment and miscalculated the amount of damages to which the applicant was entitled to. It concluded that these were significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect the applicant’s right to a fair trial as guaranteed by Article 46 § 1 of the Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.

On 19 January 2010 the Belgorod Regional Court restored the judgment of 17 June 2009.

On 11 May 2010 Mr N.’s son lodged a supervisory review application.

On 8 July 2010 the Presidium of the Belgorod Regional Court rejected the supervisory review application lodged by Mr N.’s son, considering that the arguments it contained were limited to a different assessment of evidence. It however quashed the judgment of 19 January 2010 and restored the judgment of 4 August 2009 on its own motion, considering that:

“In the interest of lawfulness and taking into account the principle of legal certainty recognised by the Russian Federation the Presidium considers it possible and necessary to go beyond the arguments developed in the supervisory review application.

As repeatedly indicated the European Court (Ryabykh v. Russia, no. 52854/99, §§ 5153, ECHR 2003IX, Khotuleva v. Russia, no. 27114/04, 30 July 2009) in order to preserve the aforementioned principle final judgments shall remain unchanged. The mere existence of two points of view on the same matter does not justify the reopening of the case.

Legal certainty presupposes that it is not permissible to have a second examination of the once decided case in the absence of fundamental errors.

Taking into account the aforementioned principle, the final decision in the present case should be the judgment of the Belgorod Regional Court of 4 August 2009 which granted certain damages to the claimant and rejected her claims for the rest, including as regards unjust enrichment.

In the course of the new examination by the cassation court the principles above have not been taken into account, this omission resulted in a violation of the principle of legal certainty provided by Article 6 § 1 of the Convention and undermined the stability of a binding judicial act.

The claimant’s argument that the judgment of 19 January 2010 was lawful is not deemed to be sufficient by the Presidium to disregard the aforementioned principles.

The fact that the Presidium of the Regional Court disagreed with the aforementioned judicial decision does not constitute in itself a ground for quashing of a final and binding judgment and for reopening of the proceedings.

In view of the above, the judgment of 19 January 2010 subject to the present application shall be quashed and the judgment of 4 August 2009 restored.”

On 3 November 2010 a single judge at the Supreme Court refused the applicant’s supervisory review application.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

The applicant was born in 1986 and lives in Ufa.

On 26 December 2006 a new block of flats was commissioned by the Town of Ufa at 66/2, Ulitsa Kommunarov, Ufa.

According to the documents submitted by U. to state registration authorities, on 19 July 2010 the Ordzhonikidzevskiy District Court of Ufa recognised his title to the flat at 66/2-39, Ulitsa Kommunarov, Ufa. The state registration authorities registered U.’s title.

On 30 October 2010 U. sold the flat to M. On 22 November 2010 the state registration authorities registered the said transaction and M.’s title to the flat.

On 12 February 2011 Z., acting on M.’s behalf by virtue of the power of attorney, and the applicant signed a contract according to which A. sold the flat to the applicant. Z. and the applicant submitted the documents for the registration of the transaction and the transfer of the title to the flat to the applicant.

According to the applicant, she paid the amount due under the contract to Z. and moved into the flat while her application for the registration of the transfer of the title to the flat to her was still pending.

On an unspecified date a third party brought a civil action challenging U.’s sale of the flat to M. and the latter’s title to the flat.

On 28 February 2011 the Ordzhonikidzevskiy District Court of Ufa issued an injunction in respect of the transactions with the flat.

On 3 March 2011 the state registration authorities informed the applicant that her application for the registration of the transfer of the title to the flat could not be granted pending the outcome of the civil proceedings concerning the title to the flat.

On 24 December 2012 the Supreme Court of the Republic of Bashkortostan dismissed the third party’s claims in respect of the flat in full.

On an unspecified date the Housing Foundation of the Republic of Bashkortostan brought a civil claim seeking, inter alia, the invalidation of M.’s title to the flat and the applicant’s eviction.

On 23 August 2013 the District Court granted the claims in full. It invalidated the purchase of the flat by M. and ordered the applicant’s eviction. The court considered that the applicant had not acquired the title to the flat and had no legal basis for moving into the flat and residing there.

On 7 November 2013 the Supreme Court of Republic of Bashkortostan upheld the judgment of 23 August 2013 on appeal.

On 12 May 2014 the Supreme Court rejected the applicant’s cassation appeal.

On 28 August 2014 the Supreme Court of the Russian Federation rejected the applicant’s second cassation appeal.

On an unspecified date the applicant asked the District Court to stay the eviction proceedings. She submitted that the flat had been her only place of residence and that, in view of her financial situation, she was unable to buy or rent another flat. On 24 March 2014 the District Court stayed the eviction proceedings for three months.

On 24 February 2015 the applicant was evicted.


Aleš Pejchal;Guido Raimondi;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in 1964 and lives in Turin. He is represented before the Court by Ms Caterina Malavenda, a lawyer practising in Milan.

The applicant is a journalist. On 3 October 2002, he published in the weekly magazine L’Espresso an article whose title was “Heinous agreement between the Mafia and Forza Italia” (“Patto scellerato tra mafia e Forza Italia”).

The article in question stated that between 1993 and 1994 a secret agreement was supposedly reached between an Italian political party, Forza Italia, and the Sicilian Mafia. The applicant reported that one of the most important political figures within the party, Mr D.U., was suspected of having promised the adoption of more lenient legislative measures favourable to individuals accused of membership of mafia-type criminal organisations, as well as the adoption of other measures beneficial to their economic interests, in exchange for votes from the areas under the Sicilian Mafia’s control.

In the article in question, the applicant contended that the existence of such a secret and illegal agreement had been revealed to colonel R. of the carabinieri by Mr I., a prominent member of the Sicilian Mafia who had close connections with some of the most influential figures within the criminal organisation.

In his article the applicant alleged that colonel R. and Mr I. had met a number of times from 1993 onwards, and that the former persuaded the latter to become a pentito (a former mafioso who has decided to cooperate with the authorities). In March 1996, Mr I. finally became a pentito and entered the witness protection programme. In this connection, he met with a carabinieri general and the anti-Mafia prosecutors at the headquarters of the Raggruppamento Operativo Speciale (Special Operations Group) in Rome. Following that meeting, a first official interrogation was scheduled by the prosecutors. However Mr I. was assassinated before it could take place.

The article went on to report that colonel R. had been questioned by the prosecutors of the Florence District Court in December 1998, in a set of related proceedings. Colonel R. gave an account of the above events and his statements were officially recorded on 21 December 1998 in the context of the latter proceedings. The magazine article suggested that, in subsequent years, colonel R. had been questioned on other occasions by the Florence District Court prosecutors and that his statements had been recorded. In drafting the impugned article, the applicant had relied largely on these statements.

The applicant mentioned that criminal proceedings had been instituted against Mr D.U. for aiding and abetting a mafia-type organisation from the outside (concorso esterno), mostly in relation to the events described above.

The article continued by providing an account of a meeting that took place in March 2001 in the office of Mr T. (a lawyer and politician active within Forza Italia) involving Mr T., Mr D.U., colonel R., and a co-accused of Mr D.U. In the meeting, Mr D.U. allegedly sought to persuade colonel R. to modify his testimony in the above-mentioned trial (see above paragraph 8) and to withhold the fact that Mr I. had told colonel R. about the involvement of Mr D.U. in the negotiations between Forza Italia and the Mafia.

Quoting part of a sentence extracted from the recorded statements made by colonel R. to the Florence District Court prosecutors, the applicant concluded his article by suggesting that another prominent figure of Forza Italia – Mr P. – had been physically present on the premises when the meeting occurred. The quotation in question reads as follows:

“On that occasion, as on others, Mr P. was also present in the chambers of Mr T.”.

On an unspecified date following publication of the article, Mr P. pressed charges against the applicant (as well as against the editor in chief of the magazine) for defamation through the press (diffamazione a mezzo stampa). He alleged that, by quoting the above-cited statement, the applicant had implied that Mr P. was actively involved in the meeting described (see paragraph 9 above). Mr P. further argued that such an allegation, which he claimed was false, had damaged his reputation, due to the illegal purpose of the meeting in question.

On 15 October 2008, the Rome District Court delivered its judgment. The court first noted that, by placing the sentence between quotation marks, the applicant generated in the reader the understanding that it was an accurate representation of colonel R.’s recorded statement. However, the District Court also noted that the statement had not been quoted in its entirety. The complete statement, as replicated by the District Court in its judgment, reads as follows:

“On that occasion, as on others, Mr P. was also present in the chambers of Mr T. Mr P.’s presence was, however, due to other reasons, linked to their common political activity and he was not present when the position of Mr D.U. in his criminal proceedings was discussed.”

The District Court found that, read in conjunction with the rest of the article, the incomplete quotation acquired a clearly defamatory character. The District Court further noted that this way of mentioning the fact that Mr P. was present on the premises was “unequivocally insinuating” (“indubbiamente insinuante”), thereby generating in the reader a suspicion as regards the role played by Mr P. and suggesting that he was involved in the above-mentioned meeting.

The District Court held that the applicant could not rely on his right to impart information (diritto di cronaca) as a justification for his conduct. The District Court reiterated that the application of such a right is dependent on the precondition that the imparted information is accurate. Based on the above arguments, the District Court found that the information conveyed was not correct and that it accordingly lacked the requirement of veracity.

The District Court further observed that the applicant’s conduct had breached his duty, as a journalist, to disseminate accurate and fair information, and that he had done so despite being aware of the harm that he would cause to Mr P.

The District Court found the applicant guilty of defamation through the press and sentenced him to eight months’ imprisonment (enforcement suspended), payment of a fine of 100 euros (EUR), payment of 20,000 EUR in compensation (to be paid, jointly, with the magazine’s editor in chief), and to bear Mr P.’s courts costs. The Court ordered that the conviction should not appear on his criminal record.

On an unspecified date, the applicant lodged an appeal against his conviction. He claimed that the impugned article had not been defamatory of Mr P., and that quoting the whole of colonel R.’s statement had been unnecessary. He further contested the penalty imposed.

In its judgment of 8 January 2010, the Rome Court of Appeal upheld the reasoning of the District Court. In particular it reaffirmed that the contested passage in the article had clearly been of a defamatory nature, and that the applicant’s conduct had been deliberate. It added that the applicant should either have refrained from mentioning Mr P. at all or should have quoted colonel R.’s statement in its entirety in order to give an accurate account of the facts as related by the original source. The fact that the applicant chose to refer to Mr P.’s presence without quoting the statement in its entirety proved his malicious intent.

The Court of Appeal thus reaffirmed the applicant’s criminal liability. However, it found the penalty imposed by the District Court excessive, as regards the suspended prison sentence, and therefore replaced it with payment of a fine of 1,000 EUR. In all other respects it upheld the sentence imposed by the District Court.

The applicant filed an appeal on points of law with the Court of Cassation, claiming that the Court of Appeal’s judgment had lacked adequate and logical reasoning.

The Court of Cassation declared the appeal inadmissible in its judgment of 28 March 2014, finding that the reasons put forward by both the District Court and the Court of Appeal were sound and sufficient.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1957 and lives in Novi Pazar.

She was employed by DP “Raška Holding Kompanija” AD, a socially-owned company based in Novi Pazar (hereinafter “the debtor”).

On 30 June 2004, 25 September 2009 and 21 December 2009 respectively, the Novi Pazar Municipal Court ordered the debtor to pay the applicant certain amounts on account of salary arrears and social insurance contributions, plus the costs of the civil proceedings. These judgments became final on 15 September 2004, 20 October 2009 and 5 October 2010 respectively.

On 5 October 2004 and 11 July 2011 respectively, upon the applicant’s request to that effect, the Novi Pazar Municipal Court ordered the enforcement of the said judgments; it further ordered the debtor to pay the applicant the enforcement costs.

On 11 September 2013 the Kraljevo Commercial Court opened preliminary insolvency proceedings against the debtor.

On 25 October 2013 the same court opened insolvency proceedings against the debtor.

The insolvency proceedings are still ongoing.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46-2 - General measures)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1945 and lives in Zvolen.

In 1929 the applicant’s grandfather built a house in Piešťany. His predecessors retained ownership under the communist regime. Ownership was transferred to the applicant from his mother on 21 December 1998.

The house comprises four flats. Two have a surface area of 108 sq. m each in size, while the other two measure 123 sq. m each.

At the time the application was lodged, the flats were inhabited by tenants with a regulated rent. Their or their predecessors’ right to use the flats had been established by decisions taken by the municipal authorities between 1953 and 1986. After 1 January 1992 their right of use had been transformed into tenancies with regulated rent for an indefinite period.

Under the relevant legislation, the applicant had to accept that his flats were occupied by those tenants and that he could charge them no more than the maximum amount of rent fixed by the State (“the rent-control scheme”). The applicant had no possibility of unilaterally terminating the leases on his flats.

Under the applicable legislation, the maximum monthly rent chargeable for the flats in 1999 was the equivalent of some 13 to 33 euros (EUR). After several increases in the regulated rent, in 2004 the applicant was able to charge EUR 115 monthly in respect of each of the smaller flats and EUR 124 monthly in respect of the larger ones.

The applicant contended that he, in fact, received from the tenants less than the maximum amount of rent set by the applicable legislation. To this end he led several property disputes with them and the local municipality.

The parties provided differing figures as to the market rent.

The applicant relied on data from the National Association of Real Estate Agencies (“the NAREA”) and claimed that the monthly market rent for similar flats reached EUR 600 to 800 between 2004 and 2007.

The Government submitted an expert valuation according to which the monthly market rent for the applicant’s flats in 2010 amounted to EUR 265.50 and EUR 325 respectively.

In submissions made on 16 June 2014 the applicant informed the Court that the rent control in respect of his four flats had been terminated. The first flat had been subject to rent control until May 2007, the second and third flats until August 2007, and the fourth flat until April 2008.


CASE OF POLTORATSKIY AND OTHERS v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

On 9 June 2004, the applicant, 69 at the time, was walking in the centre of Kharkiv and was hit in the face by a pellet fired from an air gun.

The applicant was admitted to hospital the same day and the pellet was removed from her face. It was subsequently seized as evidence by the police. The doctors noted in the applicant’s medical file that she had a gunshot wound on the infraorbital region of her face.

Later that day she lodged a criminal complaint with the police. The applicant alleged that the shot had been fired from a particular flat in a building in the centre of Kharkiv.

From 10 to 26 June 2004 the applicant underwent outpatient medical treatment for her injury.

On 2 July 2004, at the request of the police, she was examined by an expert, who concluded that the applicant’s injury was of a minor degree and might have been caused by a gunshot. On 31 October 2005 the applicant underwent an additional medical examination, which confirmed the previous conclusion.

By decisions of 22 March and 8 December 2005 and 9 August 2006, the police refused to open criminal proceedings, stating that it was not possible to identify the offenders and that the applicant’s allegations that the shot had been fired from a particular location were unfounded. They further found that there had been no serious breach of public order in the applicant’s case and noted that the applicant could have lodged a criminal complaint directly with a court in the framework of private prosecution proceedings. Despite her repeated requests, the applicant was not given access to the police investigation file related to the incident of 9 June 2004.

On appeal by the applicant, those decisions were annulled by different prosecutors and the courts generally on the grounds that the police enquiry had fallenpellet, and that the case contained elements of the crime defined by Article 296 of the Criminal Code (hooliganism). In particular, on 21 August 2007 the Dzerzhynskyy District Court of Kharkiv ruled that the case should be returned to the prosecutors for further investigation.

No further investigation was carried out after that date.

By a letter of 21 August 2009, the Deputy Prosecutor of the Dzerzhynskyy District of Kharkiv informed the applicant that the investigation case file had gone missing. There is no information as to any further developments in that regard.

On 7 November 2009 the applicant died. Her death was unrelated to the incident of 9 June 2004.


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

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

The particulars of the applicants appear in the appendix.

This application and three others (nos. 18803/10, 42812/10 and 48554/10) concern the regularisation of the relationship between ownership and use of real property located in the cadastral area of Košice-Sever.

Certain land in that area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. The sports centre comprises buildings and various other facilities, such as a tennis court, a grandstand, a water station and paved areas.

After the post 1989 political, constitutional and legal changes, litigation took place with a view to resolving various property claims made by the original owners (or their legal successors) against the entities that owned or operated the sports centre or various parts of it.

The land concerned is divided into a number of plots with various owners, many of whom are linked by family relations and history, and who had the same legal representation in the above-mentioned proceedings. Their lawsuits followed a similar pattern, but sometimes had varying results, and included the following proceedings.

The applicants in the present case are successors in title to a plot of land in the above-mentioned area, having inherited their title from the original owners, who died in 1970 and 1997.

On 17 May 1994 the latter of the original owners lodged an action against a sports club seeking to obtain a court order for the removal of the constructions on the land.

The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law. The applicants were therefore the lawful owners of the land in question, in particular of plots nos. 10620/1 and 10620/2 (recorded on sheet no. 6946 in the “old” records), and that the defendant had no lawful title to have the constructions on the applicants’ land.

The action was subsequently amended to state that, alternatively, the applicants sought a judicial ruling establishing an easement on their land for the benefit of the owner of the sports centre in return for financial compensation to be paid to the applicants. It was also extended to two more defendants: the municipality concerned and a private company.

The action was examined and determined at first instance by the Košice I District Court (Okresný súd). In its judgment (rozsudok) of 2 April 2009, the District Court acknowledged that (i) the expropriation of 1984 was legally ineffective on account of procedural flaws; (ii) as a consequence, the applicants were the owners of the land in question; (iii) the constructions on it had been built without a valid legal title in so far as the land was concerned; and (iv) the applicants were eligible to seek redress under general civil law, that is to say Article 135c of the Civil Code (Law no. 40/1964 Coll., as amended), which was not subject to any statute of limitation, unlike the special legislation on restitution, which contained specific time-limits (see paragraph 23 below).

The District Court further held that, for practical reasons, it was out of the question to regularise the situation by establishing the applicants as the owners of the constructions and ordering them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order the physical removal of the constructions in question.

However, contrary to the applicants’ assertions, the District Court found that no easement could be established on the land.

The bone of contention was the legal nature of the constructions concerned. Unlike in construction law, in civil law those constructions could not be considered as “buildings” (stavba) in legal terms. An easement over land could however only be established for the benefit of the owner of a building in the given sense. In that connection, the courts relied on Article 135c § 3 of the Civil Code (Law no. 40/1964 Coll., as amended) (see paragraph 20 below).

The court also noted that it was bound by the legal classification of the applicants’ claim. It concluded that since the constructions on their specific plots of land were not buildings, the claim had to be dismissed.

The applicants challenged the first-instance judgment by means of an appeal (odvolanie) to the Košice Regional Court (Krajský súd).They argued, in particular, that the District Court had failed to appreciate that the property in question was part of a large complex serving a single purpose and that the claims raised in respect of that property were structurally identical and had been raised separately only because they concerned different plots of land with different owners.

On 10 May 2010 the Regional Court, sitting in chambers, upheld the first-instance judgment, albeit on different grounds.

It concurred with the District Court that the expropriation of 1984 was legally ineffective. As a consequence, the State was to be considered as having taken the land in question without legal title within the meaning of section 6(1)(p) of the Act on adjustment of ownership rights in respect of land and other agricultural property (Law no. 229/1991 Coll., as amended – “the Land Ownership Act”) and as having subsequently acquired its title by way of prescription.

The restitution of land in such circumstances fell under the regime of the said legislation and any claims for it had to be lodged by 31 December 1992 at the latest (see paragraphs 21 et seq. below). The applicants had failed to pursue that course of action. Asserting their property rights under general civil law, as the applicants had done, was not permissible.

In support of its conclusions, the Regional Court referred specifically to the judgments of the Supreme Court concerning appeals on points of law in unrelated but similar cases nos. 3 Cdo 120/03 (of 29 April 2004) and 4 Cdo 130/2007 (of 25 February 2009) (see paragraphs 30 et seq. below).

On 29 July 2010 the applicants lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).

They considered the dismissal of their action arbitrary and alleged that their rights under, inter alia, Article 6 § 1 of the Convention (access, fairness, adequate reasoning) and the constitutional equivalent of Article 1 of Protocol No. 1 had been violated.

Among other things, they argued that – on the specific facts – their case fell outside the purview of the restitution laws cited in the Regional Court’s judgment and that the existence of the restitution laws as leges speciales did not exclude the application of the rules on protection of property rights under the Civil Code as a lex generalis.

In addition, the applicants submitted that judicial practice had varied. They referred to the District Court’s judgment in case no. 15C 251/94 and its judgments in a number of other cases concerning the same sports centre, in which the application of general civil law in an identical context had been accepted. Their specific arguments about such differing practice had gone unanswered.

Moreover, the applicants emphasised that it had been sixteen years since the introduction of their action, a protracted period for which they bore no responsibility. They considered that, therefore, any case-law that may have meanwhile been established should not be detrimental to them.

On 12 May 2011 the Constitutional Court declared the complaint inadmissible as being manifestly ill founded.

It cited extensively from the Regional Court’s judgment and concluded that its assessment of the case conformed to the Constitution. As to the applicants’ argument concerning the differing judicial practice, the Constitutional Court noted that the applicants’ action had been lodged sixteen years before the Regional Court’s judgment; that, since then, the decision-making practice had evolved; and that, at the relevant time, it had supported the Regional Court’s interpretation.

The decision was served on the applicants’ lawyer on 28 June 2011.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1943 and lives in London.

The applicant suffered an incapacitating stroke in September 1999 which left her with severely limited mobility. In April 2006 she fell heavily, breaking her hip in several places. She then suffered two further falls, both of which resulted in further hospitalisation.

The applicant has a small and neurogenic bladder. As a result, she usually has to urinate some two to three times a night. On account of her mobility problems she is unable safely to access a toilet or commode unaided.

In March 2007, after the applicant’s third fall, she applied to the Independent Living Fund (“ILF”) for full day and night support. While the application was pending she was provided with a care package by the local authority (the Royal Borough of Kensington and Chelsea) which included seventy hours per week of night-time care. The application to the ILF was ultimately unsuccessful as the applicant ceased to be eligible for funding when she turned sixty-five in 2008.

A local authority care plan dated 27 April 2007 indicated that the applicant needed “assistance with toileting, when it’s required during the night”. Likewise, the FACE (Functional Analysis of Care Environments) Overview assessment which followed on 8 January 2008 noted that “Miss McDonald needs assistance to manage continence at night. Substantial need.”

However, the FACE Overview Assessment was subsequently amended to read “Miss McDonald needs assistance at night to use the commode. Moderate need.”

A further Needs Assessment was started on 19 February 2008 and signed off on 29 February 2008. It noted:

“Ms McDonald wanted to emphasise that she requires assistance with all transfers and when she mobilises. Ms McDonald requested night care in order [for] someone to assist her using commode during the night. This is because Ms McDonald does not wish to use incontinence pads and sheets...

Summary of Needs Assessment

Ms McDonald needs assistance to use the commode at night. Substantial need.”

A further Needs Assessment signed off on 28 October 2008 concluded that “Miss McDonald needs assistance to use the commode at night. Substantial need.” This assessment was subsequently described by Lord Dyson as “a concession” granted on a “temporary basis” (see paragraph 53 of the opinion of the Supreme Court).

On 17 October 2008 a formal decision was taken to reduce the amount allocated for the applicant’s weekly care from GBP 703 to GBP 450. This figure appears to have been assessed on the basis that the applicant would be provided with incontinence pads in lieu of night-time care. This decision was taken at a meeting between the local authority and the applicant at the applicant’s home. She was formally notified of the decision by letter dated 21 November 2008. It noted that:

“As stated at the meeting, the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the council’s Fair Access to Care Services criteria. The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources.”

On 22 December 2008 the applicant sought permission to apply for judicial review on the ground that the local authority was unreasonably and unlawfully failing to meet her assessed and eligible needs. She further submitted that the local authorities’ actions would cause her to suffer indignity which would amount to an interference with her right to respect for her private life in breach of Article 8 of the Convention.

Pending judicial consideration of the applicant’s complaints, a “holding compromise” was reached: from November 2008 to December 2008 she continued to receive night-time care five days a week and between December 2008 and September 2011 she received night-time care four nights a week. During this period the applicant’s partner stayed with her when night-time care wasn’t provided in order to assist her. In September 2011 all night-time care was withdrawn.

On 5 March 2009 the application was refused by a Deputy High Court Judge. Although the judge accepted that the local authority was obliged to meet the applicant’s assessed need, she found that the assessed need was not “assistance to use the commode at night” but rather ensuring the applicant’s safety. The judge considered there to be two ways to meet that need: the provision of a night-time carer or the provision of incontinence pads. The statutory scheme requiring that the applicant’s needs be met allowed the local authority some flexibility about how that was to be done and the local authority was therefore quite entitled to meet the need in the most economic manner. The judge further considered the applicant’s complaints under Article 8 of the Convention to be “parasitic” upon the first ground being established and did not, therefore, consider that they raised any issues which needed to be gone into.

Following that decision, the local authority carried out a Care Plan Review. The review, which was dated 4 November 2009, concluded that

“It remains Social Service’s view that the use of incontinence pads is a practical and appropriate solution to Ms McDonald’s night-time toileting needs. There does not seem to be any reason why this planned reduction to provide care should not go ahead...”

After a visit to the applicant’s home on 15 April 2010, a further Care Plan Review was conducted. It was noted that “Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets (absorbent sheets) as a way of meeting her toileting needs”. The Review concluded:

“I remain of the opinion that Ms McDonald’s need to be kept safe from falling and injuring herself can be met by the provision of equipment (pads and/or absorbent sheets). She has however consistently refused this option. I am aware that she considers pads and/or sheets to be an affront to her dignity. Other service users have held similar views when such measures were initially suggested but once they have tried them, and been provided with support in using them, they have realised that the pads/sheets improve the quality of life by protecting them from harm and allowing a degree of privacy and independence in circumstances which, as the result of health problems, are less than ideal. The practicalities can be managed within the existing care package to accommodate Ms McDonald’s preferred bedtime and to allow her to be bathed in the morning and/or have sheets changed. If Ms McDonald were willing to try this option, she might similarly alter her views.

In light of her entrenched position on this, and despite the council’s view that pads and/or sheets are the best way to ensure Ms McDonald’s safety, consideration has been given to Extra Care Sheltered Housing as a means by which Ms McDonald could continue to receive support throughout the day and night. This would be consistent with her wish to receive personal care and also remain living independently in the community. It is not the recommended option because being assisted to access the toilet at night carries a risk of falls, but has been explored because of the impasse as regards the use of pads. Such accommodation will make support available 24 hours a day and reduce any longer term need to provide residential care to Ms McDonald should her needs increase in future. Ms McDonald refused this option when it was discussed with her.”

The applicant applied to the Court of Appeal for permission to appeal against the refusal of permission to apply for judicial review on the grounds first, that the reduction in funding was inconsistent with the assessment of her night-time needs; secondly, that the reduction in funding violated her rights under Article 8 of the Convention; and thirdly, that in reducing her funding the local authority had failed to comply with its obligations under the Disability Discrimination Act 1995. In particular, she argued that if forced to use incontinence pads she would “lose all sense of dignity” and, as a consequence, she would suffer considerable distress. The local authority submitted that the provision of a night-time carer would cost GBP 22,270 per year, which would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant’s borough were funded. The local authority also argued that the use of pads would ensure the applicant’s safety and provide her with greater privacy and independence in her own home. Finally, the local authority submitted that the weekly funding of GBP 450 could be used according to the applicant’s preferences. She could therefore pay for a bedtime visit for the purpose of fitting the pads, and even a subsequent visit if necessary.

Upon the applicant’s application for permission to appeal, a single Lord Justice granted permission and directed that the claim for judicial review should be heard by the Court of Appeal. In a decision dated 13 October 2010 the Court of Appeal departed from the judgment of the Administrative Court insofar as it did not consider that it was appropriate for the courts to re-categorise the applicant’s needs as assessed by the local authority. It therefore found that between 21 November 2008 (the date of the disputed decision letter) and 4 November 2009 (the date of its first care plan review) the applicant’s assessed need had been for assistance to use a commode. In failing to provide such assistance, the local authority had been in breach of its statutory duty. However, it had mitigated the breach by entering into an arrangement with the applicant’s partner. Moreover, the 21 November 2008 decision had not been put into operation and applicant’s need had been reassessed in the Care Plan Reviews of November 2009 and April 2010. As a consequence, the court found that the applicant had no substantive complaint under this head.

With regard to the complaint under Article 8 of the Convention, the Court of Appeal found that the conditions for finding a breach had not been established. Even though the local authority had failed in its duty at the time of its November 2008 decision, the error was not born of any lack of respect for the applicant’s dignity but of a concern to perform the difficult task of balancing its desire to assist the applicant with its responsibilities to all its clients within the limited resources available to it.

Finally, the court held that there had been no failure to comply with any obligations under the Disability Discrimination Act 1995.

The applicant was granted permission to appeal to the Supreme Court. She argued that: the Court of Appeal had been wrong to hold that the 2009 and 2010 Care Plan Reviews were to be read as including a reassessment of her needs; the decision to provide her with incontinence pads instead of a night-time carer had unjustifiably interfered with her rights under Article 8; and there had been a failure to comply with the Disability Discrimination Act 1995.

By a majority, the Supreme Court agreed with the Court of Appeal that the applicant’s needs had been reassessed on 4 November 2009, as the local authority had been entitled to do; that, from that date onwards, there had been no interference with the applicant’s rights under Article 8 of the Convention; and that there had been no failure to comply with the Disability Discrimination Act 1995.

With regard to the complaint under Article 8, Lord Brown observed that even if a direct link existed between the measures sought by the applicant and her private life, the clear and consistent jurisprudence of this Court established that States enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole. He went on to state that:

“There is, of course, a positive obligation under Article 8 to respect a person’s private life. But it cannot possibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and [her partner] about the appellant’s needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients. They respected the appellant’s human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ’s judgment below. Like him, I too have the greatest sympathy for the appellant’s misfortunes and a real understanding of her deepest antipathy towards using incontinence pads. But I also share Rix LJ’s view that the appellant cannot establish an interference here by the respondents with her Article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under Article 8(2) – save, of course, for the period prior to the 2009 review when the respondent’s proposed care provision was not ‘in accordance with the law’ – on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant’s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.”

In her dissenting opinion, Lady Hale considered that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the two and to meet the need for one in a manner appropriate for the other. She would therefore have allowed the appeal.


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Stefan Trechsel

The applicant was born in Ukraine in 1987 and arrived in Slovenia in 2000 with her sister and mother, who had married a Slovenian.

Between July and December 2001, at the age of 14, she was allegedly repeatedly sexually assaulted by a family friend, X, 55 years old at the time, who together with his wife often took care of her and helped her in preparations for beauty contests.

In July 2002 the applicant told her mother about the alleged sexual assaults by X, but was unwilling to talk about them with anyone else.

On 15 July 2002 a priest gave a statement to the Maribor police, in which he said that the applicant’s mother had told him about her concern that the applicant had been raped by X.

On 16 July 2002 the applicant’s mother lodged a criminal complaint against X, in which she alleged that X had forced the applicant to engage in sexual intercourse with him on several occasions.

On 17 July 2002 the applicant was questioned by Maribor police officers and described how X had forced her to engage in various sexual activities. As regards the time frame of the assaults, the applicant stated that X had first attempted to kiss her before July 2001, when she had started modelling for fashion shows. She proceeded to give an account of a number of occasions when X had sexually assaulted her. On one occasion X had lain on top of her while she was sleeping at his house and had attempted to have sexual intercourse with her, spreading her legs with one hand and putting his other hand over her mouth to prevent her from screaming, but he was interrupted by his younger son coming up the stairs. On another occasion, when they were at a swimming pool, he had groped her in the water. On yet another occasion X had allegedly taken the applicant to an abandoned workshop owned by his family and performed oral sex on her. Moreover, according to the applicant, X had forced her to perform oral sex on him at least three times, once at his home, once at his company’s garage, and the third time in his van, which he had parked in woods near the town. On that last occasion the applicant had allegedly tried to escape; however, being unfamiliar with the surroundings, she had come back to the van. The applicant stated that X had on several occasions attempted to have intercourse with her, but that she had not been certain whether he had managed to achieve penetration. She further stated that she had tried to defend herself by crying and pushing X away, but without success.

The applicant was also examined by an expert in gynaecology, who found that her hymen was intact. Moreover, in the course of July and August 2002 the police questioned X, who denied any sexual relations with the applicant, and three other people.

Following a series of unsuccessful attempts to obtain specific information from the police as regards the progress of the investigation, the applicant’s mother complained to the Maribor District State Prosecutor’s Office (hereinafter “the State Prosecutor’s Office”).

On 27 June 2003 the State Prosecutor’s Office sent a letter to the Maribor police, urgently requesting a copy of the criminal complaint lodged against X.

On 18 August 2003 the police sent a report to the State Prosecutor’s Office stating that the applicant had failed to provide a detailed account of her allegations or to indicate the locations where the alleged rapes had taken place. The police noted that the applicant had given the impression of being under severe psychological stress and in fear of her mother’s reaction. They concluded that it was impossible to confirm her allegation of rape, and equally impossible to establish the reasons for her serious emotional distress.

On 28 August 2003 the State Prosecutor’s Office lodged a request for a judicial investigation in respect of X based on charges of sexual assault on a minor below the age of fifteen. The request alleged that X had forced the applicant to engage in oral sex and had had sexual intercourse with her on at least three occasions, despite her refusal and attempted resistance.

On 7 January 2005 X was summoned to appear before the investigating judge of the Maribor District Court. He refused to give an oral statement. On 10 March 2005 X, represented by a lawyer, submitted a written statement in which he denied the charges. He also submitted a medical report which indicated that his left arm had been disabled since birth.

On 26 May 2005 the investigating judge issued a decision to open a criminal investigation in respect of X. An appeal by X against this decision was rejected by the pre-trial panel of the Maribor District Court.

On 17 October 2005 the applicant was examined as a witness before the Ljubljana District Court, which had been asked to carry out the witness examination because the applicant lived in the area. The examination resumed on 8 November 2005. Neither X nor his counsel was informed of this examination. The applicant testified in detail as to when, where and how the alleged offences had taken place. She first described the assault which had occurred in X’s house, while she had been sleeping there, reiterating that X had been disturbed by his son. According to the applicant’s statement, the second assault had occurred when, instead of driving the applicant home, X had parked in the woods and started to kiss her forcefully. X had then undressed the applicant, parted her legs with one hand and held her wrists with the other and again attempted to have intercourse with her, but there had been no penetration. The applicant further recounted that X had on another occasion taken her to the family’s abandoned workshop and had performed oral sex on her. She stated that she had attempted to free herself of his grip, but that X had again pinned her wrists down and also slapped her across the face. Again, vaginal intercourse had been attempted but had not actually occurred. X had ordered her not to talk to anyone about this, or he would have her and her family deported from Slovenia. The applicant added that she remembered these three occasions well and the events had occurred just as she described them, and that there had been a number of other similar incidents between July and December 2001.

On 13 and 20 December 2005 X’s wife and another witness were examined by the investigating judge of the Maribor District Court.

On 13 January 2006 the Koper District Court, at the request of the Maribor District Court, examined witness D., who testified that the applicant had told her of the alleged rape.

On 14 April 2006 the investigating judge examined witness H., who was an employee of the company owned by X and his wife. H. testified that she had not seen X behaving improperly towards the applicant on the company’s premises.

On 16 May 2006 the investigating judge appointed an expert in gynaecology, B., in order to establish the probability that the applicant had engaged in sexual intercourse in the period between July and December 2001. The latter carried out a consultation with the applicant, who refused a clinical examination. She told B., among other things, that despite the attempts made by X there had been no actual sexual penetration. During the consultation, B. confronted the applicant with an orthopaedics report stating that X could not have used his left arm in the ways described by her, to which the applicant answered that she had seen X use it to lift heavy items. B. also presented the applicant with the police report stating that she had not been able to give a detailed account of the sexual assaults and specific locations, and asked her why she had not defended herself against X, for instance by scratching or biting. The applicant replied that she had not defended herself and had been unable to do so. On 19 June 2006 the expert prepared his report, which was based on the evidence in the file, including a gynaecological report from 2002 which showed that the applicant’s hymen was intact at that time, and the conversation with the applicant. He found that there was nothing to indicate with certainty that the applicant had had sexual intercourse with X at the material time. In addition to his medical opinion, the expert commented that there were certain inconsistencies in the applicant’s account of the events in issue. It can be seen from the report that neither of the alleged inconsistencies was related to any medical issue.

On 20 June 2006 the investigating judge appointed an expert in clinical psychology, R. The latter, after holding a consultation with the applicant, submitted her report on 4 July 2006, and concluded as follows:

“Since 2001 Y. has shown all the symptoms of a victim of sexual and other kinds of abuse (emotional, behavioural and physical symptoms) ...

In addition to the emotional consequences, the girl shows very typical behavioural patterns relating to the abuse experienced by her, and also some physical symptoms (disturbed sleep, nightmares, collapsing). The symptoms are indicated in the report ...

The gravity of the consequences – physical and sexual in particular – is difficult to assess at the present time. But, like the short-term ones, the long-term consequences can be predicted. Their real extent will become apparent at key stages of the girl’s life and in stressful situations ...

Because of these effects, which are most serious in her psychological sphere ... it is of very marginal importance whether during the perpetrator’s violent behaviour the child victim experienced hymen defloration or not ...

Sexual behavioural patterns can only be assessed properly by an expert in clinical psychology ...”

On 15 September 2006 the Maribor district prosecutor’s office indicted X for sexual assault of a child below the age of fifteen under Article 183 §§ 1 and 2 of the Criminal Code. An objection by X to the indictment was rejected by the pre-trial panel of the Maribor District Court on 20 October 2006.

The Maribor District Court scheduled a hearing for 27 June 2007. However, the hearing was adjourned at X’s request on the basis of a document which showed that he was now on sick leave for several weeks.

A hearing was then scheduled for 3 October 2007, but adjourned at X’s counsel’s request. The next hearing was to be held on 12 November 2007. However, owing to the absence of a jury member, the hearing was adjourned. Subsequently, X informed the court that he was about to go on a business trip, for which reason the next hearing was postponed until 16 January 2008.

On 16 January 2008 X failed to appear before the court. On 17 January 2008 he submitted a sick-leave certificate.

On 25 January 2008 X’s counsel informed the court that X had revoked his power of attorney and that he would be represented by another lawyer, M., from then on. However, the court received no new power of attorney authorising M. to act as X’s counsel. Since X was accused of a criminal offence requiring mandatory representation, on 28 January 2008 the court appointed M. as counsel for X .

On 14 March 2008 the court held a hearing, from which the public was excluded on the grounds of protection of privacy and public morals. The court heard evidence from X. At the hearing the applicant’s counsel sought to have M., X’s counsel, disqualified on the ground that in 2001 the applicant and her mother had sought advice from him on the matters in issue. Furthermore, the applicant’s mother had been intimately involved with him. M. denied that he had ever seen the applicant or her mother and said that he only knew that the lawyer at whose firm he had been working at that time had represented the applicant’s mother’s estranged husband in divorce proceedings. The panel dismissed the application, ruling that no statutory grounds existed for disqualifying M. as counsel.

On 14 March 2008 X submitted written pleadings, claiming that he would have been unable to use physical force on the applicant, as his left arm had been seriously disabled since birth and was 15 cm shorter than his right arm. X alleged that he had practically no use of his disabled arm. Moreover, he asserted that he and his family had been helping the applicant and her sister to integrate into their new community and learn Slovene, while their mother had been busying herself with her private activities. According to X, the charges of sexual assault were prompted by the applicant’s mother, who wished to extort money from him.

On 14 April 2008 the court held a second hearing in the case. X was questioned by the State prosecutor, mostly about the use of his left arm, and in this connection conceded that, although he usually drove automatic cars, he did occasionally drive a smaller manual transmission car. However, when asked whether he had ever driven a truck, X replied that this had no bearing on the case, acknowledging nevertheless that he had a licence to drive all categories of road vehicles. Then the applicant was summoned to testify, the court granting her request for X to be absent from the hearing room. While recounting the instances of sexual abuse by X, the applicant cried repeatedly and the hearing was adjourned for a few minutes on that account. X’s counsel M. then questioned the applicant, asking her how tall she had been and how much she had weighed at the material time. The applicant became very agitated and asked M. why, having been the first to hear her story, he was asking those questions and was now acting as X’s counsel. M. commented that this was part of the tactics. The hearing was then adjourned owing to the applicant’s distress.

On 9 May 2008 the court held a third hearing. The questioning of the applicant continued in the absence of X. When asked how she felt about the situation with hindsight, she cried and said that no one had helped her and that the proceedings had been dragging on for several years, during which she had had to keep reliving the trauma.

On 27 August 2008 the applicant lodged a supervisory appeal under the Protection of the Right to a Hearing without Undue Delay Act of 2006 (hereinafter “the 2006 Act”) with a view to accelerating the proceedings.

On 26 September 2008 the court held a fourth hearing, from which the public was excluded, at which X personally asked the applicant over a hundred questions, starting with a comment in the form of a question “Is it true that you have told and showed me that you could cry on cue and then everybody would believe you?” It does not appear from the record of the hearing that the applicant made any reply. X then asked the applicant a series of questions aimed at proving that they had seen each other mainly at gatherings of their families or when the applicant, in need of transport or other assistance, had actively sought his company. Among the questions asked by X were the following: “Is it true that I could not have abused you on the evening of the event as you stated on 14 April?”, “Is it true that if I had wished to satisfy my sexual needs, I would have called you at least once?”; “Why did you call me in September and ask me to take you out of town if I had already raped you five times before that date?”, “Why were you calling me, because I certainly never called you?”, or “Is it true that you specifically asked that we drive out of town alone, because you wished to talk to me and to celebrate your success at a beauty pageant?” The applicant insisted that she had not called X, nor had she initiated any outings with him, but that he had called her. X also asked the applicant whether she had told him that, once she had a boyfriend, she would always be on top, as she wanted to be the mistress.

Moreover, X claimed that the charges of rape were fabrications by the applicant’s mother. Hence, he asked the applicant numerous questions about her mother, including about her knowledge of Slovene, her work, and her personal relationships. Further, X confronted the applicant with the medical report which indicated that his left arm was seriously disabled. The applicant insisted that she had seen X using his left arm in his daily life, including driving cars, lifting and carrying his children and their school bags, and carrying boxes and bottles. Throughout the questioning, X disputed the accuracy and credibility of the applicant’s answers, extensively commenting on the circumstances described by her and rejecting her version of events. He continued to do so even after the presiding judge explained to him that he would have the opportunity to make his comments after the applicant’s questioning.

During the cross-examination, X repeated a number of questions and was eventually warned against doing this by the presiding judge. Moreover, the presiding judge ruled out of order seven questions that she perceived had no bearing on the case in issue.

On three occasions, when the applicant became agitated and started crying, the court ordered a short recess. After one of these recesses X asked the applicant whether she would feel better if they all went to dinner, just as they used to, and maybe then she would not cry so much.

At one point the applicant requested the court to adjourn the hearing as the questions were too stressful for her. However, after being told by X that the next hearing could not be held until after 19 November 2008 when he would be back from a business trip, the applicant said, while crying, that he should continue with his questioning as she wanted to get it over with. Eventually, after four hours of cross-examination of the applicant, the presiding judge adjourned the hearing until 13 October 2008.

X’s wife, mother-in-law and an employee of his company were examined at the next hearing, all three of them asserting that X had very little use of his left arm and certainly could not lift any burdens.

On 24 November 2008 a sixth hearing was held. The questioning of the applicant by X took an hour and a half. When questioned by X’s counsel M., the applicant again asserted that she had told him the whole story a long time ago. M. denied this, stating that if he had been informed he would have advised the applicant to go to hospital and to the police. Once the applicant’s questioning was over, her mother was questioned, mostly about her private relationships.

At the end of the hearing X’s counsel M. confirmed that he had encountered the applicant’s mother when he was working at a law firm with a lawyer who had represented her in certain court proceedings. He also stated that he would inform the court within three days as to whether he would request leave to withdraw from representing X in the proceedings in issue. On 25 November 2008 M. requested leave from the court to withdraw from the case, as he had been personally affected by certain statements made by the applicant’s mother.

At a hearing of 15 December 2008 the court dismissed the request by X’s counsel M., finding that there were no statutory grounds disqualifying him from representing M. The gynaecologist, B., was examined as a witness. He acknowledged that in order to clarify the circumstances he had also addressed certain issues in his report that had not been part of the investigating judge’s request. Moreover, he reiterated that the applicant’s hymen had been intact at the material time.

On 22 January 2009 the court held an eighth hearing in the case and examined the expert in clinical psychology, R., who again stated that sexual abuse which had happened long ago could not be proved by any material evidence, and that only the psychological consequences could be assessed. She further reiterated that the applicant displayed clear symptoms of sexual abuse.

On 20 February 2009 the court appointed T., another expert in gynaecology, to give an opinion on whether the applicant could have had sexual intercourse at the material time, given the results of her medical examination (see paragraph 11 above). On 10 March 2009 the expert submitted his report, which stated that those results were not inconsistent with the applicant’s account of the events in issue.

On 16 March 2009 the court held a hearing at which it appointed N., an expert in orthopaedics, to prepare an opinion as to whether, in view of his disabled left arm, X could have performed the acts described by the applicant.

On 5 May 2009 N. submitted his report, in which he found that X’s left arm was severely disabled, and that for those reasons some of the events could not have happened in the way described by the applicant.

On 8 June 2009 the court held a hearing at which N. was questioned. Further to questions put by the applicant’s counsel, N. explained that he had based his opinion on the documents in X’s medical file, the X-rays brought to him by X, and an examination of X.

A hearing was held on 9 July 2009. The applicant requested that N. be questioned further.

On 29 September 2009 the court held the twelfth and last hearing in the case. At the hearing the applicant and the State Prosecutor questioned N., who stated, inter alia, that X could only use his left arm to assist the right arm in carrying out specific tasks, and that he had practically no strength in his left arm. In the expert’s opinion, X would not have been able to spread the applicant’s legs with his left arm, and neither would he have been able to take off his trousers as alleged by her. After being asked by the prosecutor whether his assessment was based on the assumption that the applicant had used all her strength to resist X, N. stated: “I did not base my conclusion on that assumption, as I did not know whether she had resisted or whether she had willingly submitted.” After being asked whether the applicant, who was 14 years old at the time, could have resisted X, who had allegedly been lying on top of her, he said he believed so. N. also testified that although X had more than ordinary strength in his right arm, he could not have assaulted the applicant in the way she alleged.

After the examination of N., the applicant, who had sought and obtained an opinion from another orthopaedist outside the court proceedings which indicated that X might still have limited use of his left arm, asked for another orthopaedics expert to be appointed, on the grounds that there was doubt about N.’s conclusions. This request was rejected by the court as unnecessary, as was the applicant’s request for the court also to call as witnesses her sister and her mother’s former husband, who had allegedly seen X rowing with both arms. A request by the prosecutor for the applicant to be examined again was also rejected.

At the end of the hearing the court pronounced judgment, acquitting X of all charges. In view of this verdict, the court recommended that the applicant pursue her claim for damages, which she had submitted in the course of the proceedings, before the civil court.

On 15 December 2009 the applicant lodged a new supervisory appeal under the 2006 Act. On 22 December 2009 she received a reply from the court informing her that the reasoning of the judgment had been sent to her that day.

In the written grounds the court explained that the expert orthopaedics report contested X’s ability to carry out certain acts described by the applicant, for which he would have had to use both arms. As explained by the expert, X was not capable of even moving his left hand in a position which would have allowed him to take his trousers off or spread the applicant’s legs. According to the court, the fact that some of the applicant’s allegations were disproved by the expert raised some doubts as to her entire version of the events. On the basis of the principle that any reasonable doubt should benefit the accused (in dubio pro reo), the court had acquitted X. As regards the report by the expert in psychology R., which found that the applicant had suffered sexual abuse, the court noted that it could not ignore the judgment delivered in another set of proceedings concerning the applicant’s mother’s estranged husband, in which the competent court had accepted that he had engaged in sexual activity in front of the applicant and her sister and had also behaved inappropriately towards the applicant.

On 30 December 2009 the State Prosecutor lodged an appeal, in which she criticised the court for not considering the fact that owing to his age, gender and body mass X was much stronger than the applicant, and was also in a position of power on account of his economic and social status. Moreover, she pointed out that X had operated manual transmission vehicles, which required him to use both his arms. The prosecutor further argued that the criminal offence in question did not require the sexual act to have been committed by force; it was sufficient that the applicant opposed it. She also stressed that the proceedings had already been pending for eight years, which had aggravated the trauma suffered by the applicant.

The appeal was dismissed by the Maribor Higher Court on 26 May 2010, which found that the reasoning of the first-instance court’s judgment was clear and precise regarding the doubt that X had committed the alleged criminal acts.

The applicant subsequently asked the Supreme State Prosecutor to lodge a request for the protection of legality (an extraordinary remedy). On 28 July 2010 the Supreme State Prosecutor informed the applicant that the aforementioned request could only concern points of law and not the facts, which the applicant had called into question.

On 11 February 2011 the applicant and the Government reached an out-of-court settlement under the 2006 Act in the amount of 1,080 euros (EUR), covering all pecuniary and non-pecuniary damage incurred by the applicant as a result of a violation of her right to a trial without undue delay in the criminal proceedings in issue. The applicant also received EUR 129.60 in respect of the costs incurred in the proceedings.


No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

A list of the applicants is set out in the appendix.

On 23 December 2011 the applicants, political activists, participated in a demonstration organised by the political party “Politics Can Be Different’” (Lehet Más a Politika). The demonstrators blocked the entrance of a car park adjacent to the Parliament building by chaining themselves to each other and to concrete columns situated next to the entrance.

Following the incident the Budapest main police department opened criminal investigations against twenty-nine persons, including the applicants, on charges of violation of personal liberty under Article 175(1) of Act no. IV on the [old] Criminal Code.

On 9 March 2012 Parliament enacted Act no. XII of 2012 (“the Amnesty Act”) (see paragraph 12 below), which entered into force on 10 March 2012.

On 29 March 2012 the Budapest main police department discontinued the criminal investigation against the twenty-nine suspects, pursuant to Article 190 §§ 1 (e) and 2 of the Code on Criminal Procedure on the grounds that they had been granted amnesty. The applicants did not appeal against that decision.

On 6 September 2012 six of the applicants, Ms Bende, Ms Kalocsai, Ms Ámon, Ms Székelyné Rákosi, Mr Moldován and Mr Gajárszki, lodged a constitutional complaint requesting the Constitutional Court to declare sections 1, 2 and 4 of the Amnesty Act unconstitutional as infringing the right to their reputation and the principle of presumption of innocence.

The Constitutional Court declared the complaint inadmissible. It reasoned that the complaint did not raise any constitutional-law issues of “fundamental importance”, since it was based on an erroneous interpretation of the law. The Constitutional Court pointed out that the language employed by the Act could not be interpreted as establishing that the applicants had indeed committed the offence. In any event, the complaint was time-barred since it had been lodged outside the statutory 180 days’ time-limit following the entry into force of the legislation.