CASE OF MANGÎR AND OTHERS v. THE REPUBLIC OF MOLDOVA AND RUSSIA

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) (Russia);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) (the Republic of Moldova);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) (Russia);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (the Republic of Moldova);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) (Russia);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention;Article 5-4 - Review of lawfulness of detention) (the Republic of Moldova);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) (the Republic of Moldova);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) (Russia)

Dmitry Dedov;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants, who are police officers, were born in 1967, 1978, 1976, 1979 and 1964 respectively. The first and second applicants live in Chișinău and Caușeni and the remaining applicants live in Bender.

On 14 June 2006 officers Mangîr, Vasiliev and Condrea, who were conducting a criminal investigation in Tiraspol, were arrested by the secret service of the self-proclaimed “Moldovan Republic of Transdniestria” (“MRT”). During their arrest they managed to call the Bender police station.

The other two applicants (officers Daţco and Pohila) went to Tiraspol to clarify the reasons for the arrest of their colleagues, but were also arrested upon their arrival.

The applicants were placed in the Tiraspol Remand Centre (IVS Tiraspol).

On 17 June 2006 officers Pohila, Daţco and Vasiliev were released without charge and without any explanation for their arrest.

On 18 June 2006 officer Mangîr was allegedly beaten up and injected with an unknown substance, which rendered him unconscious for four days. After his release he was admitted for in-patient treatment in the hospital of the Ministry of Internal Affairs of the Republic of Moldova, where he was diagnosedwith, inter alia, concussion.

On 20 June 2006 the Tiraspol City Court issued a warrant for officer Mangîr to be detained for thirty days. On 23 June 2006 the “MRT” authorities released officers Mangîr and Condrea. The head of the “MRT” secret service declared in an interview that the officers had been released after Russian authorities had “given assurances” that Moldovan authorities would not “kidnap people” in the “MRT”.

The applicants were accused in the “MRT” media of being members of “black squadrons” created for the purpose of kidnapping politicians and other persons causing nuisance to the Moldovan authorities. According to the applicants, during their detention they were questioned by the “MRT” secret service and forced to declare that in Tiraspol they had been trying to kidnap “MRT” politicians. Officers Pohila, Daţco and Vasiliev were allegedly beaten on the soles of their feet and threatened with the killing of members of their families, as well as with being transferred to cells occupied by common criminals, where they would be ill-treated or even killed.

Officer Condrea was allegedly subjected to so-called “Palestinian hanging” for up to seven hours and was taken to his cell unconscious thereafter.

The applicants described as follows their conditions of detention at the Tiraspol Remand Centre. The cells in which they had been held had been in the basement and had not had access to natural light. In the absence of ventilation and because of overcrowding it had been difficult to breathe. Officer Condrea submits that he was detained in the same cell as that in which Mr Ilie Ilaşcu had been detained (for more details see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004VII).

During their detention the applicants did not have any daily exercise and were not given access to a shower; they could not receive parcels containing food from their relatives, they did not have bed linen and they were not allowed to be seen by doctors.

After the applicants’ release the Moldovan authorities initiated two sets of criminal proceedings concerning their unlawful detention and their alleged ill-treatment while in detention. However, several years later the investigation was discontinued.

The applicants were also subjected to medical check-ups, which found no traces of violence on their bodies. Only one applicant, Stefan Mangîr, was found to be suffering from the consequences of concussion.


CASE OF KÉZDISZENTKERESZTI BÍRÓ v. HUNGARY

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

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

The applicant was born in 1948 and lives in Budapest.

On 9 March 2006 the applicant submitted a request for an increase of her disability pension before the Budapest Governmental Authority (Directorate of Pension Insurance), which dismissed her claim on 21 August 2006. The applicant lodged an appeal against the decision on 10 October 2006. The Central-Hungarian Regional Insurance Directorate acting as a second-instance authority upheld the first-instance decision on 4 January 2007.

The applicant sought the judicial review of the second-instance decision within the statutory time-limit. She submitted her statement of claim on 9 February 2007 to the first-instance administrative authority, in line with the applicable procedural laws.

In the absence of any developments in the case, the applicant notified the first-instance administrative authority about upholding her claim on 18 March 2010. The first-instance administrative authority subsequently forwarded the applicant’s statement of claim to the Budapest Labour Court on 20 July 2010.

The Budapest Labour Court dismissed the applicant’s claim on 14 June 2011.


No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Jon Fridrik Kjølbro;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1954 and lives in Zagreb.

In the former Yugoslav socialist regime all employees contributed to housing funds. The funds thus obtained were used, inter alia, to build blocks of flats. The flats were distributed to employees, who acquired protected tenancies in respect of them and other already existing socially owned flats. Each publicly owned company drew up a list of persons to be granted specially protected tenancies. When a person on such a list was granted a specially protected tenancy, his or her housing needs were considered to have been met and his or her name would be removed from the list.

The applicant was employed by a socially owned company, S. All employees of S. paid contributions to a housing fund in the amount of 3% of their monthly salaries.

On 31 October 1988 company S. granted the applicant a specially protected tenancy of a flat measuring 65.08 square metres in the Zagreb suburbs, with the right to occupy it together with her husband and two daughters. However, since that decision was not yet final, company S. entered into an agreement with the applicant on 7 December 1988 giving her the right to move into the flat with her family and to care for that flat. The applicant moved into the flat and has been living there ever since.

The decision to grant the applicant a specially protected tenancy was challenged by three other employees and quashed by the Zagreb Basic Court of Associated Labour (Osnovni sud udruženog rada u Zagrebu).

On 27 March 1990 the housing committee of company S. drew up a priority list for the distribution of flats. The applicant was the first on the list. On 23 April 1990 the company’s workers’ council approved the priority list. On the basis of that list she was entitled to have a decision allocating a flat to her issued. On 27 April 1992 the flats of the company S. were transferred for management to the Zagreb Municipality.

On 9 and 15 May 1990, respectively, two other employees of company S. brought an action before the competent court, seeking to have the priority list declared null and void. Competence in the matter was subsequently transferred to the Zagreb Municipal Court, which on 3 February 1999 dismissed the claims on the merits since there was no possibility under the relevant law to bring such an action at all. A civil action could be brought to challenge the decision on allocation of a flat but not to challenge a priority list.

On 23 June 2004 the Zagreb County Court amended the judgment of 3 February 1999 so as to declare the actions inadmissible on the same grounds, namely that the priority list could not be challenged before a court of law.

Meanwhile, on 3 June 1991 Parliament had enacted the Protected Tenancies (Sale to Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo), which abolished the specially protected tenancies and regulated the sale of socially owned flats previously let under a specially protected tenancy.

On 29 November 1995 the applicant asked the Zagreb Municipality as the owner of the flat to conclude a contract for the sale of the flat with herself as the buyer. The Zagreb Municipality did not take any decision within the prescribed time-limit of sixty days.

On an unspecified date in 2005 the applicant re-submitted to the Zagreb Municipality her request to purchase the flat she occupied. The request was refused on 6 July 2005 because she had not been granted a specially protected tenancy in respect of that flat.

On 26 September 2005 the applicant brought a civil action against the City of Zagreb, which in the meantime had become the owner of the flat she occupied, seeking a judgment in lieu of the contract of sale of the flat in question.

The claim was dismissed by the Zagreb Municipal Court on 18 June 2007 on the grounds that the applicant had not acquired a protected tenancy of the flat in question, since the priority list did not constitute a decision on the granting of protected tenancies within the meaning of the Housing Act.

The judgment was upheld by the Zagreb County Court on 8 April 2008. The court held that the applicant did not have a final decision on allocation of the flat to her.

In a subsequent constitutional complaint lodged by the applicant, she complained that her right to equality before the law, her right to an appeal as well as her right to a fair trial had been violated. She argued that she had been the first on a priority list drawn up by company S. for the distribution of flats. The only reasons she had not been formally granted a specially protected tenancy of the flat she had been occupying were the challenge of the priority list by her co-workers and the delay in the civil proceedings before the Zagreb Municipal Court. However, once those proceedings had ended, all of the conditions for recognition of her specially protected tenancy of the flat at issue had been met. The one-year validity of the priority list was to be counted from the date of its being confirmed, which in the applicant’s case had occurred when the national courts had dismissed all the objections concerning that list. By not recognising her right to a specially protected tenancy, the national authorities had deprived her of the possibility to purchase the flat she occupied under favourable conditions. She also relied on some other decisions of the Constitutional Court whereby it had granted protection to persons in situations comparable to her own.

On 11 May 2012 the Constitutional Court dismissed the applicant’s constitutional complaint on the grounds that the findings of the lower courts that she had not acquired a specially protected tenancy of the flat at issue had been correct. It further held that the decisions the applicant had relied on concerned persons who had had specially protected tenancies which they had subsequently lost.


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1991 and lives in Kharkiv.

On 16 May 2008 the applicant was arrested by police officers G. and B. of the drug crimes unit and taken to the Kharkiv City Police Department (“the police station”).

Officer G. drew up a report following the search of his personal effects, according to which a package containing a substance, later determined to be marijuana, was found on the applicant. The report, indicating that it was drawn up at 6.25 p.m. on 16 May 2008, was signed by the applicant and attesting witnesses L. and T.

According to the Government, when officers G. and B. began drawing up the above-mentioned report at the scene of the applicant’s arrest, the applicant attempted to escape. The officers then handcuffed him. The applicant was then taken to the police station where he and the attesting witnesses were questioned. At 10.05 p.m. the applicant was released having signed a note affirming that he had no complaints against the police.

According to the applicant, at the police station he was ill-treated to make him confess. In particular, he alleged that he was threatened with rape, kicked and hit on the head and torso, and threatened with weapons. He was subjected to a “Palestinian hanging”; with his hands cuffed behind his back he was raised to the height of one or one and a half metres and then dropped face down on the floor. He lost consciousness several times. When she arrived at the police station, the applicant’s mother found him with bruises on his face, a swollen chin and marks of handcuffs on his wrists.

At the police station the applicant wrote two notes addressed to the police dated 16 May 2008. In an “explanatory note” the applicant stated that he had acquired some marijuana for personal use and had had it when the police had stopped him. The applicant further stated that he had not been physically or psychologically pressured. In a separate note he stated that he had no complaints against the police and undertook to appear when summoned.

At 11.10 p.m. on 16 May 2008 an ambulance arrived at the police station and the applicant was examined by a paramedic, F. The paramedic noted in her report that the examination was completed at 11.40 p.m. According to the report, the applicant had no complaints and nothing abnormal was detected. According to the applicant, the head of the drug crimes unit, officer O.D., was present during this examination and spoke with the paramedic afterwards.

Following the applicant’s examination at the police station he and his mother went to the Kharkiv Regional Directorate of the Ministry of the Interior (“the Regional Directorate”), where they arrived at about 11.45 p.m. on 16 May 2008, and where the applicant lodged a complaint accusing police officers of ill-treatment.

Officer O.D. followed the applicant to the Regional Directorate and arranged for him to be examined by the medical expert on duty there.

At 00.47 a.m. on 17 May 2008 forensic medical expert A.P. examined the applicant at the Regional Directorate. According to his report, finalised on 29 May 2008, the expert had been called upon to determine the presence and seriousness of any bodily injuries. The applicant said to the expert that the police had grabbed him by the neck and arms at the time of the arrest and had handcuffed him. He complained of a headache and pain in his shoulders. The report recorded a haematoma of 1.5 cm in width on the applicant’s neck, a haematoma of 2 x 1.5 cm on the inner side of his left shoulder, and two strip-like bruises on his left wrist. The expert took the view that the injuries could have been inflicted on the date and under the circumstances described by the applicant, and that the bruises on his wrist could have been caused by handcuffs.

At 3.46 p.m. on 17 May 2008 the applicant sought medical aid at the Kharkiv City Hospital (“the hospital”) where he was diagnosed with concussion and contusion of the soft tissues of the head and the rib cage. Hospitalisation was recommended but the applicant refused.

On 19 May 2008 the applicant was examined by Dr M. at the Neurology, Psychiatry and Drug Addiction Institute of the Academy of Medical Sciences of Ukraine. He was diagnosed with a brain concussion of medium seriousness and numerous bruises on his arms, shoulder blades and spine.

On 17 May 2008 the applicant’s mother lodged a criminal complaint with the Kharkiv Regional Prosecutor’s Office (“the KRPO”) against the police officers. She alleged that excessive force had been used to arrest her son and that he had then been tortured, humiliated and threatened with rape at the police station.

On 21 May 2008 the KRPO requested an examination of the applicant and his medical documentation by forensic medical experts. On 29 May 2008 medical experts I.D. and I.P. examined the applicant and his medical documentation.

In the course of pre-investigation enquiries in respect of the allegations of ill-treatment, the KRPO obtained statements (written explanations) from a number of individuals. In particular, in his written explanation, Mr S.D., who had witnessed the applicant’s arrest, stated that at about 6.15 p.m. on 16 May 2008 a stranger, without introducing himself, had grabbed the applicant by the scruff of his neck or by the shirt collar and, threatening him with a gun, pulled him to a car. He and another stranger had then grabbed the applicant by the arms, searched him and put him into their car. Officers G. and B. stated that at the time of arrest the applicant had attempted to flee and had been handcuffed. They and officer O.D. insisted that the applicant had not been ill-treated in any way. Attesting witnesses L. and T. confirmed the statements by the police and stated that the applicant had attempted to flee while the search report was being drawn up. He had then been caught and handcuffed.

In his written explanation given to the KRPO on 28 May 2008 the applicant stated, in particular, that immediately after having stopped him a police officer had hit him on the head, stomach and ribs with the handle and muzzle of his gun. He had then been pulled by the arms to a police car. At the police station the police officers had pulled down his trousers and threatened him with rape, had subjected him to a “Palestinian hanging”, and dropped him to the floor, causing him to lose consciousness. When his mother had arrived at the police station entrance hall she had seen him with a bruised and swollen chin, haematomas and bruises on his head, arms and body.

On 6 June 2008 the KRPO, referring to the above-mentioned evidence, refused to institute criminal proceedings against the police officers for lack of a corpus delicti in their actions. The KRPO found that the applicant’s handcuffing was the only instance of the use of force in respect of the applicant and that it had been lawful under the Police Act of 20 December 1990 (“the Police Act”). The applicant’s injuries recorded at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ statements concerning the applicant’s arrest and handcuffing. The KRPO also stated that the applicant’s and his mother’s allegations were not supported by any objective data other than their own statements. The applicant’s mother appealed.

On 24 June 2008 the applicant, in a written explanation to the Kharkiv Moskovskyy District Prosecutor’s Office (“the MDPO”), largely confirmed his earlier statements and added that in the police car on the way to the police station the police officers had repeatedly hit him on the head and torso.

On 4 July 2008 forensic medical experts completed their report requested by the KRPO on 21 May 2008 and based on their examination of the applicant on 29 May 2008. They noted that the applicant had complained to them that he had been hit with a gun on the head and torso during his arrest and then ill-treated at the police station. The experts recapitulated that at the time of previous medical examinations the applicant had had a brain concussion, haematomas on his neck and left shoulder, and bruises on his left wrist. They were of the opinion that the injuries were consistent with the applicant’s statements as to their origin.

On 12 August 2008 the Kharkiv Chervonozavodskyy District Court set aside the KRPO’s decision of 6 June 2008 and remitted the materials for additional inquiry. The court held, in particular, that the KRPO’s enquiries had failed to explain the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008.

On 19 January 2009 the Kharkiv Moskovskyy District Court (“the District Court”), in the course of examination of a criminal case against the applicant for possession of drugs, ordered the MDPO to conduct, by 19 February 2009, an investigation into the applicant’s allegations of ill-treatment.

On 16 February 2009 (apparently due to a clerical error the text of the decision indicates 16 February 2008 as its date) the MDPO refused to institute criminal proceedings against the police officers on grounds similar to the KRPO’s decision. The applicant’s mother appealed.

On 30 March 2009 the District Court set aside the decision of 16 February 2009 and remitted the materials for additional inquiry. The court found, in particular, that the MDPO’s decision had fully replicated the KRPO’s decision of 6 June 2008, had not explained the reasons for which the MDPO had accepted the police officers’ version of events and had failed to explain how the applicant’s handcuffing could explain all his recorded injuries.

On 22 October 2009 the MDPO refused to institute criminal proceedings on grounds similar to the earlier decisions. It informed the District Court that by this decision it complied with the court’s ruling of 19 January 2009. The applicant’s mother appealed.

On 27 November 2009 the District Court set aside the decision of 22 October 2009 and remitted the materials for additional inquiry. The court held, in particular, that the pre-investigation enquiries had collected sufficient information that a crime had been committed. Further investigation into the origin of the applicant’s injuries required such investigative steps as a confrontation between the applicant and the police officers and a reconstruction of events, which could not be conducted within the framework of pre-investigation enquiries without the institution of criminal proceedings.

In the course of the subsequent round of pre-investigation enquiries the MDPO again obtained written explanations from the police officers and the attesting witnesses, who largely repeated their previous statements.

On 12 May 2010 the MDPO, referring to the evidence gathered, refused to institute criminal proceedings on grounds similar to the earlier decisions. The applicant’s mother appealed.

On 14 June 2010 the District Court set aside the decision of 12 May 2010 and remitted the materials for additional inquiry, holding that the MDPO had failed to comply with the court’s previous instructions.

In the course of the subsequent round of pre-investigation enquiries the MDPO obtained written explanations from several individuals. Dr M. stated, in particular, that the applicant’s injuries she had recorded on 19 May 2008 could have been sustained from 16 to 18 May 2008. The applicant’s mother largely repeated her allegations and stated that she and the applicant had travelled from the police station to the Regional Directorate in a neighbour’s car which had been followed by officer O.D.’s car.

On 25 June 2010 the MDPO refused to institute criminal proceedings against the police officers on grounds similar to the earlier decisions, referring in addition to the explanations collected in the course of the latest round of pre-investigative enquiries. The MDPO stated that the District Court’s rulings of 27 November 2009 and 14 June 2010 had been impossible to comply with since investigative actions indicated by the court could only be conducted once criminal proceedings had been initiated and not at the stage of pre-investigation enquiries. The applicant’s mother appealed.

On 27 August 2010 the District Court set aside the decision of 25 June 2010 and remitted the materials for additional inquiry. The court held in particular that the MDPO had failed to resolve the contradictions in the medical evidence. The MDPO had also failed to resolve the contradictions between the applicant’s, witness S.D.’s, and the police officers’ accounts of the circumstances of the use of force during the applicant’s arrest, which, in the court’s opinion, could explain the documented injuries.

In the course of the subsequent round of pre-investigation enquiries the MDPO obtained written explanations from paramedic F. She stated that she had not seen any signs of injury on the applicant on 16 May 2008. She had not been pressured by the police. The applicant himself had not voiced any complaints, but his mother had said that her son had been beaten up. She also stated that she was not a specialist in forensic medicine and could not speculate as to the origin of injuries which had been documented later.

On 18 October 2010 the MDPO requested an opinion of a forensic medical specialist on a number of questions concerning the applicant’s injuries, in particular whether his injuries, as recorded in the available medical documentation, could have been inflicted between 11.50 p.m. on 16 May 2008 and 00.47 a.m. on 17 May 2008.

On 25 October 2010 the MDPO refused to institute criminal proceedings. The MDPO noted, in particular, that the District Court, in the rulings of 27 November 2009, 14 June and 27 August 2010, had indicated the need to conduct certain investigative actions, namely confrontation between the applicant and the police officers and reconstruction of events with the participation of the applicant and forensic experts. The MDPO stated that these instructions had been impossible to comply with since such actions could only be conducted once criminal proceedings had been initiated and not at the stage of pre-investigation enquiries. The MDPO also stated that the applicant’s injuries recorded at 00.47 a.m. on 17 May 2008 were consistent with the police officers’ statements concerning the applicant’s arrest and handcuffing.

On 15 February 2011 the KRPO informed the MDPO that its decision of 25 October 2010 had been a “mere copy” of the decision of 25 June 2010 and had failed to comply with the District Court’s ruling of 27 August 2010. The KRPO directed the MDPO to fully comply with the District Court’s instructions. According to the Government, the MDPO had then conducted a new round of pre-investigation enquiries and as a result the decision of 25 October 2010 was allowed to stand.

On 28 February 2011 a forensic medical expert produced a report in response to the MDPO’s request of 18 October 2010 and based on the medical evidence available in the case file. The expert stated, in particular, that it could not be ruled out that the applicant’s documented injuries could have been inflicted between 11.50 p.m. on 16 May 2008 and 00.47 a.m. on 17 May 2008. The expert also took the opinion that the diagnoses of contusion of the soft tissues of the head and of the rib cage, numerous bruises of arms, shoulder blades and spine which had been noted by the hospital staff on 17 May 2008 and by Dr M. on 19 May 2008 had not been confirmed by objective forensic medical information or the results of any tests, and for these reasons could not be taken into account in the forensic medical analysis.

According to the applicant, he had first learned about the MDPO’s decision of 25 October 2010 from the Government’s observations in the present case.

On 23 July 2012 the applicant’s mother challenged the decision of 25 October 2010 before the District Court.

At the time of the most recent communication from the applicant the proceedings before the District Court were pending.


András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant, Ms G.H., is a Hungarian national. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Mr R. Kushen, acting on behalf of the European Roma Rights Centre.

On 8 February 2008, the applicant, at the time 34, a mother of seven and 22-weeks pregnant with twins, was admitted to Miskolc Hospital for an emergency delivery. The doctors found that a Caesarean section was necessary because of heavy bleeding.

The applicant mentioned to her doctors that she thought it was reasonable to tie her Fallopian tubes in order to sterilise her. The doctors repeatedly asked her if that was indeed her desire and explained that this intervention could not be subsequently undone. The applicant answered in the affirmative, confirming that she wanted no more children. These statements were made to three doctors and a midwife.

Subsequently the operation was carried out, without the applicant’s consent to the sterilisation being written down.

Later on, the applicant sued the hospital for damages, alleging that the absence of procedurally proper consent amounted to a breach of her rights to self-determination, to conceiving children, to privacy and to equal treatment.

On 12 November 2012 the Miskolc High Court partly upheld the claim, holding that the absence of written consent was a procedural irregularity giving rise to compensation in the amount of 100,000 Hungarian forints (HUF) plus interest. In addition to the medical staff involved, the court also heard the applicant’s husband, a Roma man, who stated that he and the applicant had agreed on the applicant’s future sterilisation and that once back from the hospital the applicant had told him that she had requested sterilisation from the doctors.

On appeal, on 18 April 2013 the Debrecen Court of Appeal reversed the High Court’s judgment, upheld the applicant’s claims and awarded her HUF 2,000,000 plus accrued interest. It also ordered the hospital to apologise. The Court of Appeal held that, while the applicant’s claim of racial discrimination – on account of her Roma husband – was wholly unsubstantiated, the remainder of her claims were well-founded. It was of the view that the absence of written consent was a material violation of the applicant’s rights, even if the fact that she had indeed requested the sterilisation could be not successfully challenged in the face of the multiple witness testimonies.

In review proceedings, on 4 December 2013 the Kúria reversed this judgment and reduced the amount of compensation to HUF 1,000,000 (approximately 3,300 euros). The Kúria was satisfied that the lower courts’ assessment of the testimonies supporting that the applicant had orally consented to the sterilisation was not unreasonable or arbitrary. It held that although the applicant’s consent was formally deficient, it could not be said that the sterilisation had been carried out against her will. Considering all circumstances, the Kúria reduced the award, while emphasising that the applicant had not furnished any evidence showing that she was a victim of racial discrimination either in terms of the sterilisation itself or in terms of the material conditions of her hospital stay.

On 7 April 2014 the hospital paid the compensation to the applicant and sent her a letter apologising for the breach of her rights to selfdetermination, privacy and the liberty to conceive children.


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)

The applicant was born in 1963 and lives in Čajetina.

He was employed by Raketa-Putnički Saobraćaj AD, a company based in Užice (hereinafter “the debtor”).

Since the debtor had failed to fulfil its obligations toward its employees, the applicant brought a civil claim, seeking payment of salary arrears and various social security contributions.

On 10 July 2007 the Municipal Court (Opštinski sud) in Užice rendered a decision ordering the debtor to pay him certain sum. On 7 September 2007 this decision became final.

Due to the debtor’s failure to fulfil its obligations from this decision, the applicant submitted an enforcement request. On 17 March 2009 the Municipal Court (Opštinski sud) in Požega issued an enforcement order to that effect.

On 12 July 2010 the Commercial Court (Privredni sud) in Užice opened insolvency proceedings in respect of the debtor. As a result, all of the ongoing enforcement proceedings against the debtor were terminated.

The applicant duly reported his claim based on the above-mentioned court decision to the insolvency administration.

On 8 June 2011 the court accepted the applicant’s claim.

On 31 July 2014 the applicant’s representative informed the Court that the decision at issue had been partially enforced in the insolvency proceedings.

The insolvency proceedings in respect of the debtor are still ongoing.

The debtor, which operated as a socially-owned company, was privatised on 27 December 2002.

On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations.

Following the annulment of the debtor’s privatisation the State owned 58.18% of shares in the company.

On 11 December 2008 the State sold its shares to a private company.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Erik Møse;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1969 and lives in Moscow.

On 13 August 2008 the Taganskiy District Court of Moscow found the applicant guilty of corruption and sentenced him to three years’ imprisonment.

The applicant appealed. On 13 October 2008 the Moscow City Court modified the judgment on appeal. It characterised the offence as an abuse of power and reduced the sentence to one and a half years’ imprisonment. A prosecutor was present during the hearing and made oral submissions. The applicant also attended the hearing, but was not represented. As it happened, on the same day his lawyer had asked the City Court to examine the case in his absence.

Between 21 November 2007 and 3 November 2008 the applicant was held in remand prison IZ-77/2 in Moscow. The prison was overcrowded.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6 - Right to a fair trial (Article 6-1 - Fair hearing;Equality of arms)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1980 and lives in Samara.

At about 8.35 p.m. on 14 October 2009 the applicant was apprehended by officers of the Federal Service for Drug Control (ФСKН, “the drugs police”) during a test purchase of drugs from him. According to the applicant, he was brought to their premises at around 11 p.m. His account was corroborated by two drug police officers and two attesting witnesses. An arrest record was not compiled. Furthermore, at around 2 a.m. on the following day he was put in a cell that had not bed or stool, light, lavatory or running water, and was smeared with dirt and faeces. During his detention he had not been provided with food or drink, or permitted to use the toilet, but had had to urinate in a plastic bottle. At 6.30 p.m. a criminal case was instituted against the applicant, and thirty minutes later an investigator drew the arrest record, thus formally remanding the applicant in custody. At 11.55 p.m. on the same day he was transferred to a temporary detention centre.

On 16 October 2009 the Oktyabrskiy District Court of Samara remanded the applicant in custody. In particular, the court mentioned the following arguments: seriousness and nature of charges; previous conviction not being expunged; absence of “regular source of income”; hence possibility of continuing criminal activities or absconding or obstructing justice in any other manner. The applicant did not appeal.

On 11 December 2009 the District Court extended the applicant’s detention until 15 January 2010 finding that the grounds on which the preventive measure had previously been imposed still persisted and there was no reason to vary the preventive measure. Additionally, the court mentioned that the applicant had permanent place of residence and employment but it further stated that the applicant “did not have a regular source of income”.

On 22 December 2009 the Samara Regional Court dismissed the applicant’s appeal, endorsing the reasoning of the district court. The prosecutor was present at the appeal hearing unlike both the applicant and his counsel.

On 12 February 2010 the Kuybyshevskiy District Court of Samara found the applicant guilty of selling large quantities of narcotics and sentenced him to eight years’ imprisonment in a strict-security institution.

On 4 May 2010 the Samara Regional Court upheld the conviction. The prosecutor was present at the appeal hearing whereas both the applicant and his counsel were absent.


Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Right not to be tried or punished twice;Criminal offence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1960 and lives in Tampere.

The applicant owns 90% of the shares in a limited liability company which is active in the construction and decoration business. The applicant is the managing director and a member of the board of directors of the company.

In 2005 the tax authorities carried out a tax inspection of the company and concluded that it had failed to declare and pay a considerable amount of taxes and that it had, inter alia, paid salaries off the books and undertaken other fraudulent activity.

On 8 September 2008 the tax authorities imposed additional income tax and also tax surcharges (veronkorotus, skatteförhöjning) both on the company and on the applicant for the tax years 2002, 2003, 2005 and 2006. The applicant apparently did not appeal against those decisions and the bailiff seized the imposed sums. The period set for appeal in tax matters is five years counted from the beginning of the calendar year following the year when the initial taxation decision was taken. Therefore the taxation concerning the tax years 2002, 2003 and 2005 became final on 31 December 2008, 31 December 2009, and 31 December 2011 respectively. The period for appeal for the tax year 2006 elapsed on 31 December 2012.

In June 2007 the police started a criminal investigation into the applicant’s activities. On 6 March 2009 the prosecutor brought charges against the applicant for accounting offence (kirjanpitorikos, bokföringsbrott) and aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) on two counts. The first count concerned the tax years from 2000 to 2006 and the applicant’s activities as the managing director and a member of the board of directors of the company. The applicant was accused of aggravated tax fraud as he had deducted fabricated receipts, failed to declare the company’s real income, paid salaries off the books and, consequently, the tax imposed on the company had been too low. The second count concerned the tax years from 2000 to 2003 and from 2005 to 2006. The applicant was accused of aggravated tax fraud as he had failed to declare his own income and, consequently, the tax imposed on him had been too low. The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes.

On 9 September 2009 the District Court of Tampere (käräjäoikeus, tingsrätten) convicted the applicant of two counts of aggravated tax fraud as charged and of accounting offence. He was sentenced to imprisonment for three years and ordered to pay the tax authorities 685,080.66 euros (EUR) plus interest as compensation. It was noted that the sums already seized from the applicant in the administrative proceedings could be deducted from the compensation. In addition, he was banned from undertaking business activities for six years.

By letter dated 9 October 2009 the applicant appealed to the Court of Appeal of Turku (hovioikeus, hovrätten), requesting that the District Court’s judgment be quashed and the charges dismissed. He relied also on the principle of ne bis in idem and the Court’s case-law in that respect.

On 15 September 2010 the Court of Appeal, after having held an oral hearing, upheld the judgment for the most part, but considered in part that the accounting offence was aggravated and ordered the applicant to pay EUR 20,000 more compensation to the State. The court considered that, as long as the time-limit for appeal had not elapsed with regard to the tax years 2003, 2005 and 2006 at the moment of bringing the charges against the applicant in 2009, there was no issue of ne bis in idem. Furthermore, it considered that, as concerned the tax year 2002, the time-limit for appeal had elapsed on 31 December 2008 and thus the taxation had become final before the charges were brought against the applicant. However, as there still existed another kind of tax appeal which the applicant could have used, the Court of Appeal finally considered that the ne bis in idem principle did not prevent the examination of the charges against the applicant also concerning the tax year 2002.

By letter dated 12 October 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Court of Appeal. He also requested an interim order staying the execution of the lower court’s judgment.

On 27 February 2012 the Supreme Court dismissed, without examining the merits, that part of the criminal conviction that concerned the tax year 2002 as it considered that the fact that the tax surcharges imposed on the applicant had become final in 2008, that is, before the charges had been brought against the applicant in March 2009, prevented the examination of the matter. Otherwise the lower court’s judgment was upheld. The court considered that as long as the time-limit for appeal had not elapsed with regard to the other tax years at the moment when the charges were brought against the applicant, there was no issue of ne bis in idem. As a part of the applicant’s conviction was dismissed without examining the merits, his sentence was accordingly also lowered to imprisonment for 2 years and 10 months.

On 21 August 2012 the applicant lodged an extraordinary appeal with the Supreme Court, requesting the reopening of the case on the basis of incorrect application of the law and the prohibition on self-incrimination.

Apparently in March 2013 this extraordinary appeal was refused by the Supreme Court.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The first applicant was born in 1966 and currently lives in Mosonmagyaróvár, Hungary. She came to Austria in 1990 holding a visa and settled in Vienna. She was later issued temporary residence permits, until she was granted a permanent residence permit on 30 September 1997.

The first applicant subsequently met an Austrian citizen and married him. From that union, the second applicant was born in 2002 in Vienna. The couple later divorced, but continued to hold joint custody of their son.

Other family members of the first applicant living in Austria are her daughter from a first marriage, her daughter’s husband and child, her brother and her parents.

The second applicant has Austrian citizenship and lives in Vienna with his father. Other family members of his living in Austria are his grandparents, his uncle, his half-sister and her family.

The first applicant’s criminal record shows seven convictions.

On 12 October 1993 the Hernals District Court (Bezirksgericht) convicted the first applicant of deliberately causing bodily harm and sentenced her to pay a fine of 5.400,00 Austrian Schillings (“ATS”).

On 6 September 1994 the Vienna Regional Criminal Court (Straflandesgericht, “the Criminal Court”) convicted the first applicant of attempted aggravated fraud and sentenced her to five months’ imprisonment, suspended with a probationary period of three years.

On 7 July 1995 the Donaustadt District Court convicted the first applicant of causing damage to private property and sentenced her to pay a fine of 40 daily rates (Tagessätze), in sum ATS 3.600,00.

On 7 May 2002 the Criminal Court convicted the first applicant of causing damage to private property, bodily harm and assault on a police officer and sentenced her to three months’ imprisonment, again suspended with a probationary period of three years.

On 24 April 2003 the Criminal Court convicted the first applicant and her former husband (the second applicant’s father) of partly attempted, partly completed fraud and sentenced them to two months’ imprisonment, suspended on probation.

On 28 July 2006 the Criminal Court convicted the first applicant of aggravated fraud and sentenced her to six months’ imprisonment. The probationary period for her previous conviction was extended to five years.

On 29 May 2008 the first applicant was convicted of partly attempted, partly completed aggravated fraud on a commercial basis and sentenced to three years’ imprisonment.

The first applicant started serving her sentence on 28 September 2007 and was released on 30 December 2010. During that time, the second applicant lived with his father.

In a letter dated 29 September 1994 the Aliens Police (Fremdenpolizei) warned the first applicant that, if convicted once more, an exclusion order could be issued against her (Aufenthaltsverbot).

On 25 September 2008, following her latest conviction and threeyear prison sentence, the Vienna Federal Police Authority (Bundespolizeidirektion) issued an unlimited exclusion order against the first applicant, pursuant to sections 63 § 1 and 86 § 1 of the Aliens Police Act (Fremdenpolizeigesetz). It stated that after the first applicant’s conviction in 2006, the Aliens Police had refrained from issuing an exclusion order against her, because she had already been living in Austria for over 17 years and held a permanent residence permit. The authorities stated that at that point they did not consider that she posed a serious threat to public order and security within the meaning of section 86 § 1 of the Aliens Police Act. However, her most recent conviction did justify the assumption that her further stay in Austria endangered public order and safety. The exclusion order was necessary to protect the economic wellbeing of Austria and to prevent criminal activities, hence it was in accordance with Article 8 § 2 of the Convention. It further held that even though the exclusion order constituted an interference with her private and family life, because her children and her parents lived in Austria, the public interest in her expulsion outweighed her interest in remaining in the country.

The first applicant appealed. During the oral hearing at the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat) on 28 January 2009, she provided a letter from a general practitioner, which stated that the separation from the second applicant due to her imprisonment had caused her son severe mental stress, and that it was important for his development to grow up with his mother. She stated that her son visited her frequently in prison, and that they tried their best to keep up their relationship. Furthermore, she pointed out that she also had other close family ties to Austria, with her daughter, her brother and her parents living there. She regretted her criminal convictions and requested that the exclusion order be lifted.

On 6 April 2009 the Vienna Independent Administrative Panel dismissed the appeal. It took into consideration the nature and seriousness of the offences the first applicant had committed and the resulting personality profile, reiterating that she had started her criminal activities shortly after her arrival in Austria. Her latest criminal conviction was based on numerous offences against private property, serving her as a source of income. She had therefore demonstrated that she did not respect the property of others, and that she constituted a danger to the public because of her fraudulent activities, which she had committed over a long period of time. Previous convictions for bodily harm and assault on a police officer showed that she did not shy away from attacks on life and limb either. Because she was serving her sentence at the time of the decision, it could not be assumed that the danger emanating from her person had diminished, which was why the unlimited exclusion order was justified.

Concerning her private and family life, the Independent Administrative Panel held that the first applicant was well integrated in Austria, and that many of her family members lived there, in particular her then seven-year-old son. The exclusion order therefore constituted an interference with her rights under Article 8 of the Convention. However, due to her criminal record and the serious nature of her offences, the public interest in her expulsion outweighed her personal interest in respect of her private and family life. Furthermore, because of the short distance between Bratislava and Vienna of around one hour by train, it would be possible for her family members to visit her frequently. The first applicant came to Austria when she was 24 years old, speaks the Slovak language and could easily reintegrate in her country of origin. Because of the seriousness of her crimes, and because the presence of her family members in Austria could not deter her from repeatedly committing offences, the exclusion order was proportionate to the aim pursued. Because it was not possible to assess when the first applicant would cease to represent a danger, there was no reason to limit the exclusion order. The Independent Administrative Panel added that the first applicant could apply for the lifting of the exclusion order after an appropriate interval, and in any event three years after its enforcement, if the circumstances for its issue had changed significantly.

The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) relying, inter alia, on Article 8 of the Convention.

On 16 June 2009 the Constitutional Court refused to deal with the complaint and referred it to the Administrative Court (Verwaltungsgerichtshof).

On 9 November 2009 the Administrative Court rejected her complaint due to the lack of any important legal question to be answered. It stated that the Independent Administrative Panel had not deviated from the previous jurisprudence of the Administrative Court.

On 15 July 2010 the first applicant lodged an application for the exclusion order to be lifted pursuant to section 65 of the Aliens Police Act.

On 12 January 2011 the Vienna Federal Police Authority dismissed the application.

On 12 September 2011 the Independent Administrative Panel partly granted the first applicant’s appeal and reduced the duration of the exclusion order to eight years, because the relevant legal provisions had changed in the meantime. Pursuant to section 67 (formerly section 86) of the Aliens Police Act as in force at the relevant time, an exclusion order against a citizen of the European Economic Area (EEA) may not exceed ten years in duration. Pursuant to paragraph 4 of that provision, the exclusion order would therefore cease to be in force on 29 September 2016, irrespective of whether the first applicant actually left the country.

The first applicant appealed against this decision. On unspecified dates, the Constitutional Court and the Administrative Court rejected her complaints.

The Vienna Youth and Family Office, in a statement dated 18 June 2012, noted that the separation of the applicants due to the first applicant’s imprisonment had already had a traumatizing effect on the second applicant and had strained the relationship between mother and son. Another separation would likely re-traumatize the second applicant and severely jeopardize his psychosocial development, which is why it would be in the best interest of the child to grant his mother a residence permit.

A medical report by psychologist E.G. dated 23 November 2012 attested that the second applicant was suffering from post-traumatic stress disorder, emotional disorder and separation anxiety as a result of the separation from his mother when she had to serve her time in prison. He was in need of constant psychological care and had voiced suicidal thoughts after he had learned that his mother would be expelled. Another separation from his mother would traumatise him again and have long-term effects on his mental state.

The neurologist N.F., in a report dated 16 November 2012, diagnosed the first applicant as suffering from a pre-suicidal syndrome and stress reaction and stated that any additional stress was to be avoided. Her psychologist E.G., in a statement of 23 November 2012, attested that she suffered from depression, anxiety and claustrophobia. She had also voiced suicidal thoughts.

A subsequent application by the first applicant for the exclusion order to be lifted, dated 12 August 2012, was unsuccessful.

On 4 December 2012 the first applicant was expelled to Slovakia. The second applicant has lived with his father in Vienna since then. Both parents continue to share custody.


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

The applicants, Mr Goran Petrović and Mr Igor Gajić, are Serbian nationals, who were born in 1967 and 1973 respectively. They are represented before the Court by Mr S. Protić, a lawyer practising in Zemun.

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

On 12 March 2003 Serbian Prime Minister Zoran Đinđić was assassinated. On 13 March 2003 a state of emergency was declared in Serbia. On the same day the Serbian Government issued a directive which limited civil rights during the state of emergency. Among others, habeas corpus and the right to counsel during police custody were suspended.

The applicants were arrested on 14 March 2003. They were held incommunicado at different locations until 13 May 2003. According to the applicants, during that time they were subjected to torture, notably, beatings, asphyxiation, electric shocks, mock executions and threats.

On 13 May 2003 the applicants were brought before the investigating judge who remanded them in custody pending criminal investigation against them. The applicant Goran Petrović complained before the investigating judge that he had been tortured, while the second applicant’s lawyer said that his client had “injuries on his body and certain health issues” and requested that his client receive medical examination. It would appear that no steps were taken in regard to these complaints by the investigating judge. On 23 June 2003 the applicants’ counsel requested the investigating judge to gather the medical documentation concerning the applicants from different prisons in which they had been detained.

On 4 September 2003 Amnesty International reported that the applicants had allegedly been tortured. In response to this report, the Inspectorate General’s Service (“Inspectorate”) instigated an internal investigation on 12 September 2003. On 17 September 2003 the applicants and several witnesses were questioned and a report was finalised on 6 November 2003. Among the facts mentioned in the report, it is stated that on 1 April 2003 a doctor had noted haematomae on both applicants and that on 3 April 2003 prison guards had noted “visible injuries” on both applicants. The report concluded that the allegations from the Amnesty International’s report were “partly founded”: on the one hand, the use of force against the applicants had not been lawful, but on the other hand, their treatment by the police had not amounted to torture. The Inspectorate recommended the Ministry of Interior further to investigate this case, identify the persons who had used force, examine the reasons why the force had been used, and sanction those responsible as appropriate. It is not clear whether the Ministry of Interior did so.

On 22 October 2003 the applicants filed a criminal complaint alleging torture against unknown persons. The public prosecutor requested further information concerning this case from the Kruševac Police Station.

On 9 August 2004 the Inspectorate requested more information concerning the applicants’ treatment from the Kruševac Police Station.

On 13 January 2005, the applicants supplemented the criminal complaint and asked the public prosecutor to interview certain police officers.

On 7 March 2005 the public prosecutor received a report of the Kruševac Police Station.

On 18 April 2005 the Inspectorate again requested the Kruševac Police Station to provide information concerning the applicants’ treatment.

On 22 March 2005 the public prosecutor rejected the applicants’ criminal complaint and the applicants were informed of that fact on 24 March 2005.

On 16 June 2005 the chief of the Kruševac Police Station informed the Inspectorate that force had indeed been used against the applicants but that the use of force had been lawful.

On 17 June 2005, the applicants filed another criminal complaint, indicating the names of the alleged perpetrators for the first time. The criminal complaint was rejected on 20 January 2006 and the applicants were notified of that fact on 25 January 2006. The applicants had the right to pursue a subsidiary criminal prosecution (preuzeti krivično gonjenje) within eight days of the date that decision had been served on them by filing a request for an investigation (zahtev za sprovođenje istrage). The applicants did not take over the criminal prosecution.

On 7 June 2006, upon the applicants’ request, they received a summary of the Inspectorate’s report of 6 November 2003.

On 19 December 2006, following an order by the Information Commissioner, the applicants were served with a longer version of the Inspectorate’s report of 6 November 2003.

On 15 November 2004 both applicants were sentenced to prison sentences for organised crime. During the first-instance trial and in their appeal, the applicants maintained that they had been subjected to torture in police detention.

A hearing for their appeal was scheduled before a five-judge committee of the Supreme Court of Serbia for 15 and 16 September 2005. However, on 14 September the judge rapporteur in this case was arrested and charged with accepting money from one of the applicants to quash the first-instance judgment and release the applicants from pre-trial detention. Shortly after that arrest, one of the ministers in the Serbian Government publicly stated that five other judges of the Supreme Court of Serbia should have also been arrested. The President of the Supreme Court of Serbia then appointed another judge rapporteur and scheduled a hearing for 29 and 30 September 2005.

On 30 September 2005 one of the Belgrade newspapers published an article claiming that the new judge rapporteur was also under pressure from criminal cartels through her daughter. Her daughter then made a public statement refuting those allegations.

On 30 September 2005 the Supreme Court of Serbia changed the legal qualification of the applicants’ offence and upheld the remainder of the first-instance judgment.

The applicants appealed on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude) complaining that the judges dealing with their case had acted under pressure from the executive and the media and that they had therefore lacked independence. Additionally, the applicants claimed that the new judge rapporteur had had only 14 days to prepare a case which consisted of thousands of pages of material. The applicants submitted a statement by the second judge rapporteur in their case (from the criminal trial of the first judge rapporteur) according to which she had been obliged to read up to 20 hours per day.

On 24 March 2006, the Supreme Court of Serbia, in a different formation rejected the applicants’ appeal on points of law. The Supreme Court found that the new judge rapporteur had been appointed in accordance with the law and the fact that the trial had attracted significant attention from the media and general public did not mean that the court had acted under pressure. The applicants received that decision on 9 June 2006.

The Criminal Code 1977 (published in Official Gazette of the Socialist Republic of Serbia no. 26/77, amendments published in Official Gazette of the Socialist Republic of Serbia nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant Article reads as follows:

“Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment from three months to three years.”

The Code of Criminal Procedure 2001 (published in the Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) was in force from 28 March 2002 until 15 January 2013. Most criminal offences (including ill-treatment by public officials acting in an official capacity) are subject to public prosecution, but some minor offences are only subject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that a named individual has committed a criminal offence which is subject to public prosecution. Article 61 of the Code provides that when the public prosecutor decides not to prosecute such an offence because of the lack of evidence, the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of the public prosecutor’s decision.


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

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

The applicant was born in 1963 and lives in Maryland (the United States of America).

In 1999 the applicant married A., a Slovak national. There were three children of the marriage: B., born in 1999, C., born in 2002, and D., born in 2004.

The children are all Slovak nationals, while B. is also a Peruvian national, and C. and D. also have the United States nationality.

For about eight years, until July 2010, the family lived together in one household in Maryland. A. then moved to stay with friends, took the children with her, the couple agreed on alternating custody, and they started receiving marriage counselling. Nevertheless, A. filed for divorce, but then withdrew her petition.

On 25 August 2010 A. left the United States for Slovakia, taking the children with her. The following day she informed the applicant that they had left and that she had no intention of coming back.

In September 2010 A. filed for divorce in Slovakia and requested that the children be entrusted to her custody by way of an interim measure. The status and outcome (if any) of these proceedings is not known.

On 14 October 2010 the applicant filed an application for the return of the children to the United States as the country of their habitual residence, relying on the (Slovakian) International Private and Procedural Law Act (Law no. 97/1963 Coll., as amended), the Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, and the Hague Convention.

On 25 November 2010 the applicant’s Hague Convention application was transmitted to the Bratislava I District Court, through the intermediary of the Slovak Central Authority responsible for implementing the Hague Convention.

On 21 January 2011 the District Court ordered the children’s return to the United States, having found that it was the country of their habitual residence, that they had been removed from there wrongfully, and that no obstacles to the return had been established.

On 28 April 2011 the Bratislava Regional Court dismissed an appeal filed by A. and upheld the return order. The matter thus became resolved by force of a final and binding decision on 9 May 2011.

On 31 May 2011 the applicant filed for judicial enforcement of the return order.

Upon several unsuccessful attempts at having A. comply with the order voluntarily, the Komárno District Court acceded to the petition on 28 November 2011 by issuing a warrant for the order’s enforcement.

On 29 June 2012 the Nitra Regional Court quashed the enforcement warrant following an appeal by A. It observed that, meanwhile, A. had challenged the decision of 28 April 2011 by way of a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) to the Constitutional Court; that on 15 December 2011 the Constitutional Court had declared that complaint admissible; and that, at the same time, it had suspended the enforceability of the return order pending the outcome of the proceedings on the merits of the complaint of A. (see paragraphs 20 and 21 below).

The Regional Court concluded that, in those circumstances, an essential prerequisite for the enforcement of the return order had lapsed.

Consequently, the matter was remitted to the District Court for a new decision to be taken in the light of the outcome of the constitutional complaint of A.

The applicant challenged the decision of 29 June 2012 by way of an appeal on points of law. He pointed out that there had been no hearing before the Regional Court and that it was only from the Regional Court’s decision that he had learned of the Constitutional Court’s decisions underlying it and of other new relevant facts, such as that the applicant had applied for the enforcement proceedings to be stayed.

As the Constitutional Court’s decisions had not been served on him and he had had no knowledge of those facts, he had been deprived of an opportunity to comment and to consider the taking of other legal steps.

This was contrary to the principles of adversary proceedings and equality of arms and, in the applicant’s submission, he had thereby been “prevented from acting before the court”, which constituted an admissibility ground for his appeal under Article 237 (f) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “CCP”).

On 6 December 2012 the Supreme Court declared the appeal inadmissible. It observed that the Regional Court had of its own motion obtained a copy of the Constitutional Court’s decision to suspend the enforceability of the return order, that it had based its decision on it, and that a copy of the Constitutional Court’s decision had never been served on the applicant.

However, the Supreme Court also noted that the Constitutional Court’s decision was binding upon the Regional Court and considered that, therefore, having it served on the applicant and having allowed him to comment could not have had any impact on the Regional Court’s decision.

Therefore, in the Supreme Court’s conclusion, the ground invoked by the applicant for the admissibility of his appeal had not been given.

In consequence, it became incumbent upon the District Court to rule on the applicant’s enforcement petition anew, which it did on 18 January 2013 by dismissing it.

The District Court observed that on 16 May 2012 the Constitutional Court had quashed the decision upholding the return order and that it had remitted the appeal of A. against that order to the Bratislava Regional Court for a new determination (see paragraph 23 below). The return order was thus pending on appeal and, as such, it was no longer enforceable.

The District Court’s decision became final and binding on 8 February 2013.

On 6 July 2011 A. challenged the decision of 28 April 2011 to uphold the return order (see paragraph 13 above) by way of a complaint to the Constitutional Court. It was directed against the Regional Court and, in it, she submitted that the applicant had filed observations in reply to her appeal against the return order; that she had not been served a copy of these observations; that her appeal had been determined without a hearing; and that she had accordingly been deprived of the opportunity to comment on those observations, which was contrary to her rights under Articles 46 § 1 (right to judicial protection), 47 § 3 (equality of parties to judicial proceedings) and 48 § 2 (right to comment on the evidence assessed) of the Constitution, as well as Article 6 § 1 (fairness) of the Convention.

In addition, A. requested that the Constitutional Court indicate an interim measure to the effect that the enforceability of the contested decision be suspended.

On 15 December 2011 the Constitutional Court declared the complaint admissible and ruled that the enforceability of the decision of 28 April 2011 should be suspended pending the outcome of the constitutional proceedings on the merits.

As to the latter ruling, the Constitutional Court found (i) that the suspensive measure was not contrary to any important public interest, (ii) that not having the enforceability of the return order suspended could lead to an irreversible situation and “cause detriment to the property sphere” of A. in potential violation of her fundamental rights and freedoms, and (iii) that having the enforceability suspended “gave rise to no risk of damage to any party concerned”.

In the ensuing proceedings on the merits, the Bratislava Regional Court as the defendant of the complaint submitted, inter alia, that there was no statutory requirement for observations in reply to an appeal to be communicated to the appellant for further observations, unless the former observations had a substantial impact on the determination of the appeal. However, the applicant’s observations in reply to the appeal by A. had had no such impact.

In a judgment of 16 May 2012 the Constitutional Court found a violation of the rights of A. as identified above (see paragraph 20), quashed the decision of 28 April 2011, remitted the case to the Regional Court for a new determination of the appeal of A. against the return order, and awarded her legal costs. In principle, the Constitutional Court fully embraced the line of argument advanced by A.

The Constitutional Court also noted that the applicant had sought leave to intervene in the proceedings as a third party.

In that respect, it observed that constitutional proceedings were conducted in the procedural framework laid down in the Constitutional Court Act (Law no. 38/1993 Coll., as amended), as a lex specialis, and in the CCP, as a lex generalis. The Constitutional Court Act however envisaged no standing for third parties to intervene in proceedings on individual complaints, and its quality of a lex specialis excluded the application of the third-party-intervention rules under the CCP.

For that reason, the Constitutional Court observed specifically that it had taken no account of the submissions made by the applicant.

The applicant obtained a copy of the Constitutional Court’s judgment on 16 August 2012.

On 28 February 2013 the applicant lodged a complaint with the Constitutional Court, alleging inter alia a violation of his rights under Article 46 § 1 of the Constitution and Article 6 § 1 of the Convention (fairness) in the enforcement proceedings, in particular in their phase before the Regional Court and the Supreme Court, and raising in substance the same arguments as in his appeal on points of law (see paragraph 17 above). The applicant pointed out, in addition, that that it had been for substantially the same reasons that the Constitutional Court itself had found a violation of the rights of A. in relation to her appeal against the return order.

On 5 November 2013 the Constitutional Court declared the complaint inadmissible. It fully endorsed the reasoning behind the Supreme Court’s decision of 6 December 2012 (see paragraph 18 above) and concluded that, accordingly, the complaint was manifestly ill-founded.

The decision was served on the applicant on 9 December 2013.

Following the Constitutional Court’s judgment of 16 May 2012, on 21 September 2012, the Bratislava Regional Court decided again on the appeal by A. against the return order of 21 January 2011 by quashing that order and remitting the case to the Bratislava I District Court for a new determination.

In the subsequent period a number of hearings were held at first instance and courts at two levels of jurisdiction dealt with various procedural matters such as translations of documents into a language the applicant understood, court fees and costs of the translations, the applicant’s visiting rights in relation to his children pending the outcome of the proceedings on the merits, an injunction prohibiting A. to leave and remove the children form the territory of Slovakia, admission of the mother of A. to the proceedings as a third party, two procedural fines on A., her challenges to the first-instance judge for bias, her request for a legal-aid lawyer and establishing her whereabouts. There is no indication that any of the fines and interim rulings were actually enforced.

No decision on the merits was taken and the District Court decided to terminate the proceedings on 28 November 2014. It referred to Article 12 (last sentence) of the Hague Convention, which permits termination of the proceedings if there is an indication that the child in question has been taken to another State, and observed that A. and the children had moved to Hungary and had established residence there.

On 7 January 2015 the applicant appealed and his appeal appears to be still pending.


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

The applicant, Mr Milan Podhradský, is a Slovak national, who was born in 1937 and lives in Šaľa. He was represented before the Court by Ms D. Matušková, a lawyer practising in Bratislava.

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

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

On 22 May 2001 the applicant was abducted by masked persons. Under the threat of killing him and his daughter they obliged the applicant to sign a document on transfer of his share in a business company. He was released on 23 May 2001.

After his release the applicant contacted the Regional Directorate of the Police Corps in Nitra. He was heard several times by that authority. Subsequently the case was transferred to the Šaľa District Office of Investigation which heard the applicant again. These interviews included those on 29 May and 11 October 2001. In both, the applicant submitted that, during the incident, amounts of money in various foreign currencies had been taken away from him. In addition, in the latter questioning, he submitted that, by the forced transfer of his business share, he had suffered damage worth the equivalent of some 72,000 euros (EUR) and that he wished to join the criminal proceedings as an aggrieved party under Article 43 §§ 1 and 2 of the 1961 Code of Criminal Procedure (Law 141/1961 Coll., as applicable at the relevant time – “the 1961 CCP” – see paragraphs 18 and 19 below).

The interview of 11 October 2001 followed the opening by the Šala District Office of Investigation of a criminal investigation earlier the same day into the suspicion that the offences of extortion and unlawful restriction of personal liberty might have been committed by one or more persons unknown.

Between December 2001 and 2007 the police authority stayed the investigation and the Public Prosecution Service (“the PPS”) at several levels ordered that it be resumed on several occasions. In October 2007 the case was transferred to the Office for Combating Organised Crime (“the OCOC”).

On 29 January 2008 two persons, A. and B., were charged with extortion and restricting the applicant’s personal liberty.

On 18 April 2008 the applicant was questioned by the investigator. He submitted that, in terms of compensation, he claimed EUR 180,126 in respect of the business share and EUR 4,300 in respect of the foreign currency taken away from him.

On 16 September 2008 the proceedings against B. were terminated as her prosecution had become statute barred.

On 22 October 2008 the proceedings were split in two parts. The first set of proceedings concerned A., who was suspected of having ordered and organised the applicant’s abduction. The second set aimed at identification of the persons who had abducted the applicant. Those proceedings were stayed on 17 August 2010 but then resumed following an order by the PPS of 8 November 2012. They are still pending before the OCOC.

Meanwhile, in the first set of proceedings, on 19 March 2009 charges of extortion and restricting personal liberty had been brought against another individual, C.

On 10 May 2010 A. and C. were indicted to stand trial in the Trnava District Court on the charges mentioned above.

On 10 May 2012 the District Court discontinued the proceedings. It observed that the police and the investigative authorities had generated such delays at the pre-trial stage of the proceedings that much of the evidence had lost validity. There had been repeated unlawful and arbitrary actions by these authorities such as, for example, the discontinuation of the proceedings against B. but not against the other defendants. As a result, there was no valid evidence showing that A. and C. had committed the offences of which they stood accused.

On 8 January 2013 the Trnava Regional Court quashed the decision of 10 May 2012 and remitted the matter to the District Court for a new determination, following appeals by the applicant and the PPS.

The proceedings are still pending.

On 12 April 2010 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia, that the OCOC and several offices of the PPS involved in the above proceedings had breached his right to a fair hearing within a reasonable time.

On 29 June 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded.

With reference to Article 46 § 3 of the 2005 Code of Criminal Procedure (Law 301/2005 Coll., as amended - “the 2005 CCP” - see paragraphs 20 et seq. below), it held that a person who considers to have suffered damage as a result of a criminal offence may claim to be a victim of a breach of his or her right to a hearing within a reasonable time only after charges of that offence have been brought against a specific person.

The Constitutional Court therefore had the power to examine only the proceedings subsequent to the bringing of charges against A. and B. on 29 January 2008. As the applicant’s complaint was only concerned with the pre-trial phase of the proceedings, the period under examination ended on 10 May 2010 when the case was transmitted to the District Court by way of the indictment. The period under consideration had therefore lasted two years and some three months which was not excessively long. In support of this conclusion, the Constitutional Court observed that except for one fourmonth period of inactivity the investigator had been acting expeditiously.

The decision was served on the applicant 6 September 2010.

Article 43 §§ 1 and 2 provide, inter alia, that an aggrieved party in criminal proceedings may attach a third-party claim for damages to the proceedings and request that the court convicting the person charged with a criminal offence (obvinený) order the latter to pay compensation for the damage caused to the aggrieved party by the offence.

According to a summary of the relevant judicial practice published in the Collection of Judicial Decisions and Standpoints (Zbierka súdnych rozhodnutí a stanovísk) of the Supreme Court under no. 22/1979, a thirdparty claim for damages is properly made if it specifies the defendant against whom it is made, the ground on which it is made, and its amount.

As from 1 January 2006, the 1961 CCP was entirely replaced by the 2005 Code. In so far as relevant, the 2005 Code contains provisions (Article 46 §§ 1 and 3) similar to those of the 1961 CCP.

A third-party claim must specify the ground and scope of the claim and may only be attached to the criminal proceedings if the matter of compensation has not already been decided upon in civil or other proceedings (Article 46 §§ 3 and 4).

Pursuant to Article 287 § 1, where a court convicts a person charged with an offence which has caused damage to third persons within the meaning of Article 46 § 1, as a rule it orders him or her to compensate such damage, provided that the claim has been filed correctly and in due time.

The Constitutional Court held (see for example its judgments in cases nos. I. ÚS 157/02; III. ÚS 183/05; I. ÚS 18/06 and I. ÚS 67/2010) that a third party who joined criminal proceedings with a claim for damages has the right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) as such a duly lodged claim excludes the possibility of having it decided upon in civil proceedings (Article 83 of the Code of Civil Procedure).

In a decision of 12 December 2013 in case no. II. US 660/2013, relying on its previous decisions nos. I. US 212/07, III. US 109/06, III. US 254/10, III. US 508/12 and IV. US 188/13, the Constitutional Court upheld the principle that, in accordance with the Court’s judgment in the case of Krumpel and Krumpelová v. Slovakia (no. 56195/00, 5 July 2005), an aggrieved party of a criminal offence, who had attached a third-party claim for damages to the criminal proceedings, was entitled to the guarantees of the civil limb of Article 6 of the Convention. However, the aggrieved party 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. Despite a direct argument by the complainant to that effect, the Constitutional Court gave no answer to the fact that in its judgment in the case of Bíro v. Slovakia (no. 2) (no. 57678/00, § 44, 27 June 2006), the Court had found that, as a matter for principle, civil-party claims for damages made in Slovakia jointly with or subsequently to the lodging of a criminal complaint enjoy the guarantees in question from the moment they were made.

In connection with the present application, the Constitutional Court produced a report dated 11 June 2013 concerning the applicability of the right to a hearing within a reasonable time under Article 6 § 1 of the Convention and its constitutional equivalent to third-party claims for damages attached to criminal proceedings (adhézne konanie). The report may be summarised as follows.

A party aggrieved by a criminal offence may attach a third-party claim for damages to the criminal proceedings concerning that offence under Article 46 § 1 of the 2005 CCP (see paragraphs 20 et seq. above). Neither the statue nor the case-law of the Constitutional Court make this right dependant on whether or not the defendant has been charged with the offence in question. However, it is only once a charge is brought against a specific person that a concrete legal relationship is created between the aggrieved party and the person charged and it is only then that the aggrieved party becomes entitled to assert the third-party claim against the charged person in the criminal proceedings.

Whether or not a person has been charged with the offence concerned is not a criterion for the aggrieved party’s being able to make a third-party claim in the criminal proceedings but for that party’s being able to rely on the right to a hearing within a reasonable time in relation to that claim.


ŠEREMET v. BOSNIA AND HERZEGOVINA, MONTENEGRO AND SERBIA

Ineta Ziemele;Nebojša Vučinić;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Renad Šeremet, is a citizen of Bosnia and Herzegovina, who was born in 1966 and lives in Sarajevo. He was represented before the Court by Mr D. Alagić, a lawyer practising in Sarajevo.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić. The application was not communicated to the Governments of Montenegro and Serbia.

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

After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.

In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes (for information about that court and its jurisdiction over war crimes cases, see Maktouf and Damjanović v. Bosnia and Herzegovina [GC], nos. 2312/08 and 34179/08, §§ 34-40, ECHR 2013). More than 100 persons have been finally convicted by the State Court.

Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by other methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 17 below). It became operational on 1 January 2008.

During the 1992-95 war the Grbavica neighbourhood of Sarajevo was controlled by the VRS forces. In the first several months of the war, many Bosniacs and Croats were killed, disappeared, tortured and/or raped by a paramilitary group led by Veselin Vlahović, also known as Batko. It would appear that the applicant’s parents were killed by that group on 9 July 1992.

On 2 October 2002 Ms Biljana Plavšić, one of the war-time leading political figures of the Republika Srpska, pleaded guilty before the ICTY to having participated in the persecution of Bosniacs and Croats from, among other areas, the Grbavica neighbourhood of Sarajevo. She was sentenced to 11 years’ imprisonment.

Cases against Radovan Karadžić, the war-time civilian leader of the Republika Srpska, Ratko Mladić, the war-time military leader of that Entity, and Vojislav Šešelj, a leading political figure of Serbia in the 1990s, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from, inter alia, the Sarajevo area.

As indicated in paragraph 5 above, war crimes chambers were set up within the State Court in 2005. In 2008 an international arrest warrant was issued against Veselin Vlahović, mentioned in paragraph 7. He was arrested in Spain and extradited to Bosnia and Herzegovina in 2010. On 17 February 2011 the Prosecutor of Bosnia and Herzegovina (“the State Prosecutor”) issued an indictment against him for crimes against humanity. Having heard more than 100 testimonies, on 29 March 2013 a Trial Chamber of the State Court found him guilty of participation in the commission of a number of killings, beatings, rapes and other crimes in the Grbavica neighbourhood of Sarajevo in 1992 as a part of a widespread and systematic attack against the non-Serb civilian population of that territory and sentenced him to 45 years’ imprisonment (the heaviest penalty in Bosnia and Herzegovina). On 13 June 2014 an Appeals Chamber of the State Court upheld the conviction against Veselin Vlahović and rendered its judgment, sentencing him to 42 years’ imprisonment.

On 9 November 2011 and 22 November 2013 Trial Chambers of the State Court found also two of his accomplices guilty of participation in the commission of a number of killings, beatings, rapes and other crimes in the Grbavica neighbourhood of Sarajevo in 1992 as a part of a widespread and systematic attack against the non-Serb civilian population of Grbavica and sentenced them to 18 (Saša Baričanin) and 11 years’ imprisonment (Zoran Dragičević, also known as Krompir). On 28 March 2012 and 28 February 2014, respectively, Appeals Chambers of the State Court upheld those first-instance judgments.

On 14 October 2002 the applicant sought and obtained declarations of presumed death with respect to his parents.

The applicant’s father, Fahrudin Šeremet, was identified by DNA on 28 December 2005. His mother, Zijada Šeremet, has not yet been identified.

On 3 November 2004 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the Republika Srpska to release any and all information in its custody pertaining to the fate or whereabouts of the applicant’s parents and to conduct a full, meaningful, thorough and detailed investigation aimed at making known the fate or whereabouts of the applicant’s parents and bringing the responsible to justice. Lastly, it awarded the applicant 5,000 convertible marks (BAM) for non-pecuniary damage.

By a judgment of the Sarajevo Cantonal Court of 23 September 2011 the applicant was awarded damages as regards the disappearance and death of his parents in the amount of BAM 35,000. The Republika Srpska lodged an appeal against that judgment which would appear to be still pending.

The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.

Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).

In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.

Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.

Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).

Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 18 above).

Despite the fact that the verification process outlined in paragraph 21 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; and the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09).