Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicants, all Georgian nationals, were born in 1946, 1947 and 1957 respectively. At the material time they lived in different flats in a residential block (“the building”) constructed in 1952 and situated at 4 Uznadze Street in Tbilisi.

The building is located in the city centre, in close proximity (approximately 4 metres) to the “Tboelectrocentrali” thermal power plant (“the plant”). The plant was constructed in 1911 and reconstructed at a later date. It started operations in 1939. For several decades it burned coal to generate power, before replacing it with natural gas. The plant provided the adjacent residential areas with electricity and heat.

Several accidents have been reported throughout the plant’s history. An accident on 10 April 1996 rendered it inoperative for more than thirty days. An expert report concerning the incident disclosed that the main reason behind the accident was the fact that no major repairs had been carried out there since 1986.

On 2 November 1999 Presidential Decree No. 613 was issued, stating that the plant was to be privatised and sold directly to a private company. The privatisation agreement between the Government and the company was concluded on 6 April 2000.

On 2 February 2001 the plant partially ceased generating power owing to financial problems. However, it continued to use some of the generators.

According to the applicants, while operational the plant’s dangerous activities were not subject to the relevant regulations, as a result of which, in addition to some other alleged nuisances, it emitted various toxic substances into the atmosphere negatively affecting their well-being.

On unspecified dates the applicants and other residents of the building lodged complaints with the municipal authorities, alleging that nuisances were emanating from the plant such as air, noise and electromagnetic pollution and water leakage. By official letters dated 22 March 2000, 19 October 2000 and 16 January 2001 the Tbilisi City Hall (“the City Hall”) acknowledged that the residents of the building had been affected by the nuisances they had complained of. It advised the central Government that relocation of the plant would not be in the public interest in view of the acute energy crisis in the country and suggested that the residents of the affected area be offered electricity and heat free of charge as a form of compensation.

In the letter dated 22 March 2000 the City Hall asked the plant to implement certain environmental protection measures, including the installation of chimney filters to reduce the air pollution emanating from the plant. The request was left unaddressed.

On 1 October 2001, in an official response to a query by the applicants, the City Hall confirmed that the plant’s activities fell within the “first category” within the meaning of the Environmental Permits Act (see paragraphs 43-44 below) and that the Ministry of the Environment and Natural Resources (“the Ministry of the Environment”) was responsible for issuing the relevant permit.

On an unspecified date in the summer of 2000 the applicants and other residents of the building brought an action for damages against the plant concerning the environmental nuisances emanating from the plant. A friendly settlement was reached between the parties on 12 December 2000, according to which the claimants would renounce their claims in exchange for a commitment by the plant’s management to provide them with hot water, electricity and heat free of charge. Owing to technical difficulties and a lack of cooperation between the relevant authorities, the friendly settlement was left unenforced.

On 25 October 2001 the applicants and three other residents of the building (“the claimants”) brought a fresh action against the plant and other respondents including the Tbilisi electricity distribution company, AES TELASI JSC (“AES”), the City Hall and the Ministry of the Environment. They claimed compensation for pecuniary and non-pecuniary damage for the harm caused to their health and well-being by the air, noise and electromagnetic pollution and water leakage emanating from the plant. They relied on privately commissioned independent expert opinions in support of their complaints.

On 7 March and 23 September 2002 the Tbilisi Regional Court granted a request by the claimants and ordered the Ministry of Justice, the Ministry of Labour, Health and Social Affairs and the Ministry of the Environment to arrange a number of expert examinations. The latter were intended to measure the environmental pollution caused by the plant, clarify how the associated harmful effects had affected the claimants’ health and might have endangered human life, and identify appropriate remedies.

An expert examination dated 28 October 2002 and carried out by the Expertise and Special Research Centre at the Ministry of Justice concluded as follows:

“As the “Tboelectrocentrali” plant does not have a [buffer] zone and is immediately adjacent to a residential building, the plant’s chimneys must be equipped with appropriate filters and other equipment to protect the population from the hazardous gases.”

On 17 January 2003 the Institute of Environmental Protection (“the IEP”) at the Ministry of Environment issued an expert opinion on the air pollution and noise levels in the residential area concerned. It noted that while the plant’s equipment responsible for the emission of toxic substances stood idle, it was impossible to determine the real pollution situation with which the residents had had to cope for years and noted that “the results were considerably minimised compared to the possible real picture.”

The expert opinion disclosed that the plant’s technical compliance document was defective as it did not reveal all the chemical substances known to be emitted into the atmosphere in the course of natural gas burning. That document also incorrectly indicated the height of the chimneys as 30.8 metres instead of the actual 27 metres, which could lead to the pollution data being misleadingly decreased.

With regard to the air pollution and the possible impact upon the residents of the building, the expert opinion concluded as follows:

“Considering the fact that the plant does not have a [buffer] zone and is immediately adjacent to a residential building ..., taking into account the direction of the wind, a whole bouquet of emissions is reaching into the homes ... negatively affecting the population living in the adjacent area.”

The opinion specified that even where individual hazardous substances were considered to be within the acceptable margin, it was necessary to consider the combined impact of various substances upon the health of the population as the combined toxicity might go beyond the acceptable limits. It continued to note in this connection that the concentrated toxicity of the gases emitted by the plant was twice the norm and the residents of the building concerned had to live in conditions where the concentration of toxic substances surpassed the acceptable limits twenty-four hours a day. The IEP proposed that the competent municipal authorities either ban those industrial activities or ensure the plant’s relocation outside the town, where at least a buffer zone could be established.

On 4 March 2003 the Institute of Scientific Research in Health and Hygiene at the Ministry of Labour, Health and Social Affairs responded to a query by the applicants and listed the diseases that might potentially be caused by excessive concentrations in the air of substances such as SO2, CO, NO2, smoke and black dust. These were mucocutaneous disorders, conjunctivitis, bronchitis, bronchopulmonary and other pulmonary diseases, allergies, different types of cardiovascular disease and anoxemia (low oxygen levels in the blood), which could lead to other serious disorders.

On 17 January 2003 the IEP issued an expert opinion concerning the noise levels in the building. Without specifying the noise levels in the individual flats of the applicants, the opinion concluded in generic terms that “the residential building ... situated at 4 Uznadze Street [was] affected by noise in excess of the permissible limits.”

On 6 February 2004 the IEP expert carried out an additional investigation aimed at determining the noise levels in the individual flats of the claimants. It concluded that the permissible levels of noise were exceeded only with respect to two claimants and not in the applicants’ apartments.

An expert opinion issued by the IEP on 7 November 2002 stated that the intensity of the electromagnetic waves did not exceed the permissible levels.

The expert opinion produced by the Ministry of Labour, Health and Social Affairs on 17 January 2003 disclosed that, in some instances, the intensity of the electromagnetic fields in the vicinity of the building exceeded the permissible levels. It concluded however that it was impossible to establish the exact source of the electromagnetic pollution.

On 13 May 2003 the court ordered the Forensic Medical Examination Centre at the Ministry of Labour, Health and Social Affairs to examine the health of four of the claimants. The third applicant and another claimant were not included, without any reasons being given for their exclusion. Its experts were asked to give an opinion on whether the claimants were suffering from any diseases which might have been caused by the pollution emanating from the plant.

The Forensic Medical Examination Centre carried out the courtcommissioned examination between 7 August and 17 September 2003. A panel of experts concluded that the four claimants “[had] been affected by a combined impact of protracted exposure to harmful factors such as SO2, NO, CO2 as well as black dust, noise and electromagnetic pollution negatively impacting their health.” The first and second applicants were found to be suffering from largely similar health conditions such as neurasthenia and asthenic syndrome. The panel considered it “possible that the asthenic syndrome and neurasthenia ... [had been] caused by the prolonged and combined effect of being exposed to harmful factors.” It added that “the worsening of the health conditions of the persons examined [had not been] excluded.”

On 12 March 2004 the Tbilisi Regional Court dismissed the claims of the applicants and another claimant, but partially allowed the claims of two other claimants (“the successful claimants”) with respect to the noise pollution emitted by the plant’s generators. Relying on the expert examination of the IEP concerning the noise levels, the court found that only the two successful claimants’ flats were affected by noise in excess of the permissible limits. It awarded them 5,000 Georgian laris (GEL – equivalent to 1,981 euros (EUR)) each, holding the plant, the City Hall, and the Ministry of the Environment jointly liable:

“... Both the City Hall and the Ministry failed to fulfil the obligations imposed on them by law. That is to say, despite the claimants’ numerous requests and complaints, [the authorities concerned] failed to take specific measures to ensure an environment safe enough for the claimants’ health.”

Furthermore, acknowledging that the plant was responsible for the infiltration of water into the foundations of the building, the court ordered it to halt the leakage and make the necessary repairs to the ruptured walls.

As regards the air pollution complained of, the court found that the material before it did not prove a causal link between the emissions and the claimants’ health problems described in the Forensic Medical Examination Centre’s expert report. It further suggested that the third applicant and another claimant had refused to undergo the medical examination.

While the court accepted the experts’ conclusions that the plant had breached certain environmental standards by not having filters and other purification equipment in place to decrease the emission of toxic substances, it refused to order the plant to install such equipment on the grounds that the sole remedy requested by the claimants had been compensation for the damage caused by the pollution.

On 4 May 2004 the claimants appealed to the Supreme Court. Relying on the Court’s judgment in the case of López Ostra v. Spain (9 December 1994, Series A no. 303C) and the findings of the courtcommissioned expert examinations at the domestic level, they reiterated their complaints about the lack of a buffer zone and the inherent risk of pollution, the absence of purification equipment over the plant’s chimneys and its impact upon their health and well-being, and the defectiveness of the plant’s technical compliance document. They further disagreed with the lower court’s findings with respect to the alleged noise pollution emanating from the plant.

On 21 April 2005 the Supreme Court delivered a final judgment in the case. It upheld the appeals of the two already successful claimants and ordered the plant’s operators, the City Hall and the Ministry of the Environment to pay them, jointly, GEL 7,000 (EUR 2,938) each for the deterioration of their health caused by the noise pollution that persisted after the partial termination of the plant’s activities on 2 February 2001 and affected them individually (see paragraphs 11 and 26 above). In addition, it ordered the plant to pay GEL 50 (EUR 21) monthly to one claimant and GEL 100 (EUR 42) to the other. It further upheld the lower court’s finding concerning the plant’s responsibility for the infiltration of water into the foundations of the building.

The Supreme Court rejected the complaint concerning the electromagnetic pollution as unsubstantiated.

As regards the submissions concerning the air pollution, the Supreme Court dismissed them as unsubstantiated. It reasoned that the claimants’ reference to violations of environmental standards, regardless of their validity, could not have served as a basis for awarding damages for air pollution considering that they had not requested that the plant’s permit be revoked, that filters be installed over the chimneys, that other environmental protection measures be implemented, or that the hazardous activities be banned or relocated.

The court further noted that the Court’s findings in the case of López Ostra v. Spain could not serve as grounds for requesting damages. It highlighted the fact that the plant in the instant case had been operational since 1939 while the flats had been built at a later date in 1952. It consequently concluded that the applicants had accepted the associated dangers when choosing to settle near the plant and were effectively barred from claiming any damages in that respect within the meaning of the Compensation for Damage Inflicted by Dangerous Substances Act (see paragraph 47 below). It thus concluded that the appellants had been under a duty to tolerate nuisances such as noise, smells, steam and gases caused by the ordinary industrial activities of the neighbouring plant, whose essential purpose had been to supply the nearby buildings with heating and hot water. The court interpreted the applicants’ unenforced friendly settlement in an earlier set of proceedings (see paragraph 16 above) as their acceptance of the ecological discomfort.

The Supreme Court further reasoned that at the time of the proceedings the plant had suspended most of its operations and had no longer been emitting any substances into the air. Consequently, the appellants were no longer being affected by the pollution. Moreover, they had failed, in the court’s opinion, to show what specific pecuniary damage, if any, had been sustained as a result of the air pollution in the previous years. It was further noted that the appellants had not specified the costs which they had incurred or would inevitably incur in the future for medical treatment for their health problems.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 7 - No punishment without law (Article 7-1 - Heavier penalty)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicant was born in 1944. At the time of lodging his application, he was detained in a Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison. He now lives in Pinneberg.

On 28 March 1994 the Lübeck Regional Court convicted the applicant of rape and sexual assault. It sentenced him to eight years’ imprisonment and ordered his preventive detention under Article 66 § 1 of the Criminal Code (see paragraph 23 below). The court found that in August 1986 the applicant, having acted with full criminal responsibility, had raped an eighteen-year-old woman whom he had lured into a forest. It noted that between 6 October 1970 and 28 May 1991 the applicant had been convicted of five counts of rape of young women, committed only a couple of months after his release from prison. Therefore, and having consulted a medical expert, the court found that the applicant had a propensity to commit serious sexual offences and was dangerous to the public.

On 10 January 2002 the applicant, who had fully served his prison sentence, was placed for the first time in preventive detention, initially in Lübeck Prison. He had thus served ten years in preventive detention by 9 January 2012.

On 2 October 2012 the Lübeck Regional Court, having heard the applicant in person as well as his lawyer, by whom he was represented throughout the proceedings, ordered the applicant’s preventive detention to continue.

The Regional Court considered that the requirements set up by Article 67d of the Criminal Code, read in the light of the Federal Constitutional Court’s judgment of 4 May 2011 (see paragraph 23 below), in order for retrospectively-extended preventive detention to continue, were met. It found that the applicant suffered from a mental disorder, for the purposes of section 1 (1) of the Therapy Detention Act (see paragraph 23 below). He had a personality and conduct disorder as described by the relevant tool for the classification of diseases, the International Statistical Classification of Diseases and Related Health Problems in its current version (ICD-10). The Regional Court endorsed the findings which psychiatric expert B. had made in his report dated 4 June 2010 on the possibility of granting relaxation of the conditions of the applicant’s detention (Vollzugslockerungen) after having examined the applicant in person. The expert had found that the applicant suffered from a profound and serious personality disorder with narcissistic elements and a lack of self-esteem. His disorder was characterised by denying and idealising conduct, total denial of his own aggression and minimisation of his criminal acts.

Furthermore, in the Regional Court’s view, there was still a high risk that the applicant, owing to the said specific circumstances relating to his person and his conduct, would commit the most serious sexual offences if released. It had repeatedly been confirmed, in particular, by expert B. and by the Hamburg-Eppendorf University hospital, that the applicant needed comprehensive therapy for sexual offenders in a social therapeutic institution. However, the applicant, who had not completed therapy, had confirmed at the hearing that he refused transfer to the prison’s social therapeutic department. Furthermore, the applicant had already raped six women and had repeatedly reoffended shortly after his release.

On 24 October 2012 the applicant lodged an appeal against the Regional Court’s decision with the Schleswig-Holstein Court of Appeal. He argued that his continued preventive detention beyond the former tenyear time-limit breached the Basic Law, as interpreted by the Federal Constitutional Court, and the Convention. He complained, in particular, that the Regional Court had failed to obtain a new report by a different expert and had relied on the report of expert B. dating back two-and-a-half years, on relaxation of the conditions of the applicant’s detention, which had not addressed the issues relevant to his continued detention.

On 21 November 2012 the Schleswig-Holstein Court of Appeal dismissed the applicant’s appeal. As regards the finding that the applicant suffered from a mental disorder for the purposes of section 1 (1) of the Therapy Detention Act, the Court of Appeal stressed that the decision to extend the applicant’s preventive detention had not only been based on the written report submitted by expert B. in 2010. The expert had been heard in person by the Regional Court in different proceedings (concerning the applicant’s transfer to a psychiatric hospital, see paragraph 19 below) on 6 June 2012 and had updated and confirmed his previous findings. His assessment had further been shared by the Hamburg-Eppendorf University hospital in its statement dated 27 March 2012 on the therapeutic progress made by the applicant. The hospital, having regard to the voluminous casefile, had confirmed expert B.’s conclusion that the applicant, who had refused any therapeutic treatment for years, suffered from a profound personality disorder as defined by the ICD-10, namely a narcissistic personality disorder with emotionally unstable and sadistic elements.

The Court of Appeal, having regard to the applicant’s previous offences and the fact that therapy to date had not yielded success, further agreed that there was still a high risk that the applicant would commit the most serious sexual offences if released. As had been confirmed by the applicant in the hearing before the Regional Court, his personal and therapeutic situation had not changed since the Court of Appeal’s last decision of 18 November 2011 in which, in periodic review proceedings, it had ordered the extension of the applicant’s preventive detention.

On 17 December 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that the extension of his preventive detention beyond the former statutory ten-year time-limit had violated his right to liberty and the protection of legitimate expectations in a State governed by the rule of law.

The applicant claimed that the restrictive criteria set up by the Federal Constitutional Court in its judgment of 4 May 2011 for a continuation of his retrospectively extended preventive detention had not been met. In particular, the order for the continuation of his preventive detention had been based on an old expert report on relaxation of the conditions of his detention, which had not addressed the criteria set up by the Federal Constitutional Court. In these circumstances, the courts had not had at their disposal a sufficient basis for concluding that he had a mental disorder for the purposes of the Therapy Detention Act. In any event, he did not suffer from a mental illness as required by Article 5 § 1 (e) of the Convention.

On 20 March 2013 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2886/12).

From 10 January 2002 until 22 May 2013 the preventive detention order against the applicant was executed in Lübeck Prison, where the applicant was detained together with persons serving their prison sentence. For as long as the applicant’s detention was executed at that prison during the time covered by the proceedings at issue, the applicant, having refused repeated offers of treatment, in particular transfer to the socialtherapeutic institution of Lübeck Prison, apparently did not undergo any therapy for sexual offenders. His occasional conversations with the prison psychologists had been discontinued in May 2012.

On 22 May 2013 the applicant was transferred to the newly-set-up Centre for persons in preventive detention in Hamburg-Fuhlsbüttel Prison. That Centre was built in order to comply with the constitutional requirement, as defined by the Federal Constitutional Court in its judgment of 4 May 2011, to differentiate between preventive detention and imprisonment. Soon after his transfer to that Centre the applicant started comprehensive therapy, including one-to-one and group therapy sessions. He was granted leave without escort from March 2014 onwards.

Prior to the proceedings at issue, on 14 June 2012 the Lübeck Regional Court dismissed the prosecution’s request to transfer the applicant to a psychiatric hospital for the further execution of his preventive detention under Article 67a § 2 of the Criminal Code (see paragraph 23 below). Having heard psychiatric expert B., the Regional Court found that the applicant’s reintegration into society could not better be supported in a psychiatric hospital. It was necessary for the applicant to undergo therapy for sex offenders in a social-therapeutic department in prison or possibly with an external social therapist. Transferring the applicant, who was not willing to undergo therapy, to a psychiatric hospital against his will would not yield any success.

On 24 October 2013, in new review proceedings, the Hamburg Regional Court ordered the applicant’s preventive detention to continue. It had regard to the report dated 28 August 2013, submitted by psychiatric expert L., on the applicant’s mental condition and the danger he represented. Having examined the applicant in person, L. had considered that the applicant was an accentuated personality, possibly with sadistic personality traits, and lacked self-esteem. He found, however, that the applicant could not be diagnosed with a mental disorder as defined in the ICD-10; in particular, he showed no signs of sexual sadism. There was a medium risk that the applicant would again commit serious sexual offences if released.

On 29 August 2014 the Hamburg Regional Court, having regard to an additional report drawn up by expert L., declared the applicant’s preventive detention terminated and ordered his release on 1 October 2014. It found that the applicant neither suffered from a mental disorder nor was there a high likelihood that he would commit the most serious crimes of violence or sexual offences if released.


Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants, Mr Borislav Gustovarac and Ms Zdravka Gustovarac, are Croatian nationals who were born in 1943 and 1950 respectively and live in Pula. They were represented before the Court by Ms L. Štok, a lawyer practising in Pula.

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

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

In 1972 the applicants moved to a flat in Pula owned by the Yugoslav Peoples’ Army (“the YPA”) on the basis of a handwritten note signed by Ɖ.V., allegedly the person authorised by the YPA Garrison Command in Pula to dispose of the YPA’s flats. The note bore the Command’s official stamp.

The applicants paid the rent and utility bills in respect of the flat from that date onwards.

In 1974 criminal proceedings were conducted in the Pula Military Court against Ɖ.V. He was found guilty of abusing his position on the ground that he had, inter alia, unlawfully provided the applicants with the flat at issue. The first applicant was a witness in these proceedings.

After Croatia declared independence in 1991, all the YPA’s property became State property.

According to the Government, in 1994 the first applicant bought another flat in Pula, measuring 33 square metres, which he donated to his son in 1995.

On 1 March 2000 the State brought a civil action against the applicants in the Pula Municipal Court claiming repossession of the flat formerly owned by the YPA and the applicants’ eviction.

According to the Government, since 2001 the applicant’s elder son has been renting out another flat in Pula.

The Municipal Court granted the claim against the applicants on 16 May 2002. The relevant part of the judgment reads:

“... it has been established that in 1972 an authorized person from the Garrison Command of the former YPA, Ɖ.V., issued an order, handwritten on an ordinary piece of paper, instructing R.S. (an administrator of the then ‘Pula Housing Company’) to hand over the keys of the flat at issue to the first defendant, stamped it with the stamp of the Garrison Command and signed it. Subsequently, Borislav Gustovarac presented that certification to R.S., who gave him the keys to the flat. Borislav Gustovarac was employed at that time with ‘Uljanik Harbour’, and was therefore neither a member of the military personnel within the YPA nor a civilian in its service.

Had the first defendant belonged to the category of persons who could have acquired the right to use such a flat, that is to say, had he fulfilled the requirements for the granting of a specially protected tenancy of the flat at issue, nothing would have prevented the authorized person of the former Garrison Command of the YPA, Ɖ.V., from issuing him a valid decision to such effect ...

The fact that the defendants lived in the flat at issue for a long period of time with the ‘knowledge and approval’ of the provider of the flat and entirely fulfilled the obligations of protected tenants is irrelevant ... as regards their lack of status as holders of a specially protected tenancy ... because such a status could be implicitly recognised only in respect of persons who had acted in good faith. In this case it is clear that this element was missing, since the defendants knew or ought to have known that they acquired possession of the flat at issue in an illegal and unlawful manner. The fact that the provider of the flat did not ask for the eviction of the defendants cannot place them in a more favourable legal position ...”

The first-instance judgment was upheld by the Pula County Court on 31 May 2004. It endorsed the reasoning of the first-instance court and added:

“According to the case-law [of the Supreme Court] concerning the application of section 59 of the former Housing Act, a person who dwells in a flat for a long period of time with the knowledge and consent of the provider of the flat, and who fulfils all the obligations of a holder of a specially protected tenancy and acts in every respect as a person who has concluded a written contract for a protected tenancy, may be regarded as a holder of a protected tenancy even though there is actually no written contract governing the use of the flat.

However, even though the defendants have been using the flat at issue since 1972 and have paid the rent and utility bills for it, they cannot be regarded as holders of a protected tenancy of the flat since they acquired possession of it as a result of the abuse of office of the authorized person [representing] the former provider of the flat, [a fact of] which the defendants, and in particular the first defendant, had been aware and ought to have been aware [sic] because they were witnesses in the criminal proceedings conducted before the Split Military Court against the persons concerned ... Therefore, the defendants did not act in good faith, which is a condition for recognizing [them as holders of a] specially protected tenancy ...”

According to the Government, in 2005 the applicants moved to Bosnia and Herzegovina, where they have had their registered residence ever since. The second applicant rented the flat at issue to other persons between an unspecified date in 2005 and April 2011.

The applicants lodged a constitutional complaint on 30 July 2004 which was dismissed by the Constitutional Court on 22 April 2009. The Constitutional Court endorsed the lower courts’ reasoning.

According to the Government, on 7 April 2011 the applicants vacated the flat.

According to the applicants they were forcibly evicted from the flat in 2011.

The relevant part of the Housing Act (Official Gazette nos. 51/1985, 42/1986, 22/1992 and 70/1993) reads:

“A specially protected tenancy is acquired on the date the tenant moves into the flat on the basis of a final decision allocating the flat or on another valid legal basis, unless otherwise provided by this Act.”

Section 161 paragraph 1 of the Property Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette no 91/1996) reads as follows:

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


CASE OF DONČEV AND BURGOV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible;No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence;Article 6-3-d - Examination of witnesses)

Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applicants were born in 1971 and 1970 respectively and live in Strumica. They were police officers.

On 3 March 2005 the public prosecutor ordered, under sections 42(2)(2) and 142-b of the Criminal Proceedings Act (see paragraphs 31 and 32 below), special investigative measures including secret surveillance, audio-visual recording, a simulated offer of a bribe and the use of undercover agents (the last two measures were to be applied by six police officers whose identity remained undisclosed in the order). The order was valid between 15 March and 13 May 2005. It was issued on the basis of a request from the Department for Control and Professional Standards within the Ministry of the Interior, which suspected that traffic police officers had been accepting bribes from traffic offenders.

On 28 April 2005 the applicants stopped a car near Strumica, since it was being driven at more than 30 km/h over the stipulated speed limit. The driver was a certain K.N. from Skopje (“the driver”). The applicants warned the driver and registered his name and the fact that they had warned him in the official record. They did not draw up an official report (записник), nor did they press charges against him.

On 8 June 2005 the Ministry of the Interior (“the Ministry”) lodged a criminal complaint with the public prosecutor, alleging that the applicants had accepted a bribe of 500 Macedonian denars (MKD) from the driver (who was in fact an undercover agent, see paragraph 6 above) in exchange for not drawing up an official report and pressing charges against him. The complaint stated that the first applicant had fully admitted to the accusations and the second applicant had partially done so.

On 12 July 2005 an investigating judge of the Strumica Court of First Instance (“the trial court”) opened an investigation into the allegation that the applicants had accepted a bribe. In the proceedings before the investigating judge the applicants remained silent.

According to the indictment of 19 September 2005, the applicants accepted the bribe in exchange for not drawing up a report and instituting misdemeanour proceedings against the driver. The public prosecutor requested that the trial court take oral evidence from the accused and admit the evidence obtained as a result of the order of 3 March 2005 (see paragraph 6 above): four photographs; and an audio and video recording of the discussion between the applicants and the driver of 28 April 2005 (see paragraph 7 above).

On 28 November 2005 the trial court admitted the evidence produced by the prosecutor. The applicants remained silent. On 30 November 2005 the court rendered a judgment in which it convicted the applicants and sentenced them to a suspended prison term of six months. On the basis of the audio recording of the incident, the court established that the driver had exceeded the speed limit. He had offered – and the applicants had accepted – money in exchange for not pressing charges against him. In this connection, the court noted that under the law the driver was liable to a fine (between MKD 4,000 and MKD 12,000) or thirty days’ imprisonment, as well as a compulsory security measure (driving ban), for such an offence.

The applicants’ legal representatives, Ms M.G. and Mr V.Š., appealed against the judgment, arguing that there was no evidence to corroborate the applicants’ guilt. The audio evidence attested that the driver had offered the applicants money, but it did not establish that they had accepted it. Indeed, no bank notes marked in advance were found in their possession. The applicants further argued that under the applicable regulation, they had been authorised to warn the driverThe first applicant challenged the credibility of the audio recording, arguing that the transcript of the audio material was incomplete. The second applicant further complained that the trial court had neither examined the driver, nor confronted them with him.

On 28 June 2006 the Štip Court of Appeal accepted the applicants’ appeals and ordered a re-examination of the case. In so doing, it found that the lower court had incorrectly established the facts and had not provided sufficient reasons for its judgment. In this connection, it stated that neither the photographs nor the audio evidence had established that the applicants had accepted the bribe from the driver, who had not been examined. It therefore instructed the trial court to re-examine already admitted evidence and to question the driver in order to establish whether he had offered, and the applicants had accepted, MKD 500 in exchange for not pressing charges against him. It further stated:

“... other evidence should be admitted if necessary (confrontation between the accused and (the driver)).”

At a hearing, before the trial court, held on 15 May 2007, the applicants denied that they had accepted money from the driver. They stated that they had been authorised, under the law, to warn him. They further contested the audio recording, arguing that there were gaps and interruptions in it. Mr V.Š., the applicants’ legal representative, asked the court to hear oral evidence from the driver, as ordered by the Court of Appeal (see paragraph 13 above), and to obtain information from the Ministry as to whether the money had been marked.

On 21 May 2007 the trial court asked the Ministry to provide the name and address of the driver in order to examine and confront him with the applicants, “as instructed by the higher court”. It also sought information as to whether, under the order of 3 March 2005 (see paragraph 6 above), the money allegedly given to the applicants had been marked. In the absence of a reply, on 20 June 2007 the court repeated its enquiry. On 28 June 2007 the Ministry informed the court that the money had not been marked. That would have been the case had special investigative measures (audio and video recording) not been ordered. It further stated that the undercover agent (лице со прикриен идентитет) who had been used to simulate the offer of a bribe could be examined as a protected witness under section 147(2) and (3) of the consolidated version of the Criminal Proceedings Act (“the Act”), (which corresponded to section 142-c of the Act as amended in 2004, see paragraph 33 below).

In a hearing held on 5 October 2007 the applicants objected to the court’s examining the driver. In this connection, they stated that there were three persons with the same initials (K.N.) as the driver employed in the Ministry.

On 7 December 2007 the trial court examined the driver. According to the depositions taken on that date, he was regarded as a protected witness (заштитен сведок) and his examination was carried out under section 293 of the Act (which corresponds to section 270-a of the Act of 1997 as amended in 2004 (see paragraph 36 below)). The relevant parts of the court record of that date read as follows:

“The protected witness should be examined in a special room only in the presence of the judge and the public prosecutor in order to protect his identity. Since there is no such room in the court building, [the applicants] and their representatives, (as well as) the entire public, were ordered, on the basis of an advance agreement (претходен договор), to go into the waiting room.

The accused and the lawyers did not object.

The witness, whose pseudonym is K.N. (protected witness) from Skopje, fifty-years of age ... having been warned about the legal consequences of false testimony, states:

‘At 3 p.m. on 28 April 2005, in accordance with the [public prosecutor’s] order, I drove to Strumica together with two other persons ... I deliberately exceeded the speed limit assuming that there would be a road patrol ... I was stopped ... (then he described the events concerning another car which the applicants had stopped at that time, when (one of the applicants) had allegedly received MKD 500 from the driver of that car) ... the policeman who took the money from the other driver approached me and I said that it was unfair that they should punish me unlike the other (driver), who had paid ... Then the other policeman, who still had (in his hands) my (driving) documents, told me ‘Ok, we won’t punish you either’ and gave the documents back to me. I asked them whether I should also reward them for having not punished me, as the (other) driver had done, to which (one of the applicants) replied ‘It will be fine if you give something’. I asked ‘how much should I give?’, and he replied ‘There is no pricelist for that, it’s up to you’. Then, I said ‘I’ll give you as much as (the other driver), MKD 500’. I took out from my pocket MKD 500 and gave them to (one of the applicants) ... I asked them whether they would press charges against me or issue any penalty, to which (one of the applicants) replied ‘Keep your mouth shut and drive on’ ...

The public prosecutor further asked the driver whether the money had been marked, to which he replied negatively.

The record further stated:

“Since there are no further questions, the court decides to remove the protected witness from the court room and to call the accused and their lawyers. A transcript of the statement of the protected witness should be given to them so that they may put questions to him through the court, to which the protected witness should reply.

The accused and their lawyers were called to enter the court room and at that moment, they said, in a loud voice ‘We request exclusion of the adjudicating judge, the panel, the trial court and the Štip Court of Appeal, since (the judge) is conducting the proceedings unlawfully and is not following the instructions of the Appeal Court. It is so since we were removed from the court room for 45 minutes, instead of being confronted with the witness. We suspect that no one gave a statement, all the more so since the accused have already met the protected witness”.

The court ordered an adjournment. On 7 and 13 December 2007 the presidents of the trial court and the Štip Court of Appeal respectively rejected the applicants’ requests for exclusion.

A hearing held on 1 April 2008 was attended by the applicants and Ms M.G., their lawyer. The driver was absent. The court stated that there was no evidence that he had been properly summoned for the hearing. The applicants were served with a copy of the court record of 7 December 2007 and the driver’s statement. The court minutes stated:

“... (the applicants) were told that they could put questions in writing, which the court would then forward to the protected witness in order for him to reply.”

On 9 May 2008 the trial court held a hearing. It was attended by the applicants and Mr V.Š., their lawyer. The driver was not present, despite the fact that he had been properly summoned. Mr V.Š. stated:

“I decline to examine the protected witness, K.N. and I object to the court record of 7 December 2007 since it is contradictory and untrue (Се откажувам од распит на заштитениот сведок К.Н. и приговарам на записниикот од 07.12.2007 бидејќи е контрадикторен и невистинит).”

On 15 May 2008 the trial court held another hearing, at which the applicants confirmed that they had received the bill of indictment and understood the charges against them. Both applicants maintained that they would be represented by Mr V.Š. They further stated:

“I maintain the statement given at the hearing of 15 May 2007 [see paragraph 14 above] and I have nothing to add”.

The court then read aloud the driver’s statement of 7 December 2007 and admitted as evidence the public prosecutor’s order, four photographs, as well as the audio and video recording of the critical event. The applicants made no reference as to the examination of the driver.

In the concluding remarks, Mr V.Š. denied that there was any material evidence that the applicants had committed the crime imputed to them; in particular, the video and audio material did not establish that they had received any money from the driver, nor had any marked bank notes been found in their possession. He further stated that:

“... we object to the use of the term ‘protected witness’ since it is not disputed that the (applicants) and (the driver) knew each other ... they saw each other and it is unreasonable to use that person as a protected witness.”

Both applicants stated:

“I fully adhere to the concluding remarks of my representative. I want to add that I’m not guilty because I have not received any money”.

On 16 May 2008 the trial court rendered a judgment in which it found the applicants guilty and sentenced them to six months’ imprisonment, suspended for two years. It established that they had accepted the bribe from the driver, a police officer who had been following the public prosecutor’s order to use special investigative techniques. They received MKD 500 in exchange for not pressing charges, despite the fact that the relevant law provided for a fine or thirty days’ imprisonment, coupled with a security measure, for such an offence. The audio evidence established that the driver had exceeded the speed limit and had offered – and the applicants had accepted – the money. In this connection, the court stated:

“Following the instructions of the higher court, the (trial) court examined the driver with the pseudonym K.N. as a protected witness. He confirmed that he had been stopped on the day in question, since he had deliberately exceeded the speed limit ... [the applicants] had agreed to accept a bribe in the amount of MKD 500 in exchange for not drawing up a report and pressing charges.

In this context, the statement of the protected witness and the audio material are totally consistent ... In the note [of 28 June 2006], [the Ministry of the Interior] submitted that the identity of the witness K.N. was protected, i.e. that he was a protected witness. [For this reason] the court did not confront him with [the applicants].”

The applicants appealed against the judgment and maintained that there had been insufficient evidence that they had accepted the money. They argued that there had been no written warrant authorising the operation that had led to the proceedings against them; that the bank notes had not been marked; that they had not taken possession of any such bank notes; that the audio material had not established that they had accepted the bribe; and that the warning issued against the driver had been registered in the official records and had been prescribed for such offences. They further complained that their conviction had been based, to a decisive extent, on the driver’s statement and the audio material, the credibility of which they had challenged. As to the driver, they complained that it had been unreasonable to use him as a protected witness since they had already met him. They further complained that:

“The statement (of the driver) was taken in the absence of the accused and the defence ... the accused and the defence were not allowed to put questions to that person; there was no confrontation between that person and the accused”.

In a public hearing held on 18 November 2008 in the presence of the applicants and their lawyers, the Štip Court of Appeal dismissed the appeal lodged by the applicants, finding no grounds to depart from the established facts and reasons given by the trial court. It found that the special investigating measures (audio-visual recording and the use of a protected witness) had been ordered by the public prosecutor in accordance with the Criminal Proceedings Act (see paragraphs 31 and 33 below). Accordingly, the judgment could be based on that evidence and the driver’s statement, as lawfully obtained evidence. The court further stated that:

“Having regard to the Court of Appeal’s judgment Кж.бр.474/06 of 28 June 2006, at the re-trial, the trial court summoned, and at a hearing (главен претрес) it examined the witness K.N., who was driving the car at the relevant time ... This witness was considered a protected witness by the court. On the basis of an agreement reached with the accused and their representatives, [the witness] was examined in their absence. However, after his examination, the court provided the accused and their representatives with the opportunity to put questions through the court.

... For the offence committed (by the driver), the accused neither drew up a report nor did they press charges against him, despite the fact that the offence was of a more serious nature ... they warned him orally, although a fine and a compulsory security measure – a driving ban – are prescribed for this offence.

The witness K.N. provides an objective and detailed description of the events ... Indeed, the MKD 500 bank note which the accused received from this witness had not been marked and secured as evidence, but the court undoubtedly established, on the basis of the statement of this witness, that he had offered – and (the applicants) had accepted – the money as a bribe. The statement of this witness is corroborated by the written transcript of the audio material ... so, the established facts are not put into question ...”

This judgment was served on the applicants on 15 and 19 December 2008 respectively.

Under section 42(2)(2) of the Act, as regards criminal offences subject to automatic prosecution by the State, the public prosecutor may order the use of a special investigative technique in pre-trial proceedings under the conditions and in the manner specified by law.

Section 142-b of the Act provides that special investigative techniques may be ordered where there are reasonable grounds for suspecting that certain criminal offences have been committed by an organised group. Secret surveillance, audio-visual recordings, a simulated offer of a bribe and the use of undercover agents (лица со прикриен идентитет) are among the special investigative techniques permitted (section 142-b(1) (3), (4) and (6)).

Section 142-c provides that information, documents and objects obtained by means of special investigative measures may be used as evidence in criminal proceedings. The undercover agents can be examined as protected witnesses. Their identity is classified (службена тајна).

Under section 142-d(3), the use of special investigative techniques at the pre-trial stage may be ordered by an investigating judge in a reasoned written decision following a reasoned written request by the public prosecutor, or by the public prosecutor in a reasoned written decision following a reasoned written request by the Ministry, but only in respect of a person whose identity is unknown.

Under section 142-e(4) of the Act, evidence obtained through special investigative techniques cannot be used at trial if the techniques were applied without an order by the investigating judge or the public prosecutor or contrary to the Act.

Under section 270-a of the Act, the public prosecutor, investigating judge or trial judge must take measures to ensure the effective protection of witnesses if there is a risk that they may be threatened or that their life, health or physical integrity may be endangered. Their protection must be guaranteed by means of special arrangements for the examination of the witnesses and their participation in the proceedings. Protected witnesses are examined in the presence of the public prosecutor, the investigating judge or the trial judge, in a location which guarantees the protection of their identity, unless they agree to be examined using special streaming media, for which a court order is needed. An unsigned copy of the witness’s statement is forwarded to the accused and his or her representative, who can put questions in writing through the court.

In accordance with section 339(1), the court decided on the basis of facts and evidence admitted at the trial.

Under section 380(3) of the Act, the trial court was bound to take all procedural actions and to discuss all disputed issues indicated in the judgment of the second-instance court.

Under section 270-b of the Act, special arrangements for the examination of a protected witness may involve concealment of his or her identity and face. If the arrangements concern the witness’s personal information, he or she may produce evidence under a pseudonym (псевдоним). Otherwise, the general rules for the examination of witnesses apply. A witness who is examined under a pseudonym may also have his or her face concealed (прикривање на изгледот) with the use of special streaming media, which distort one’s voice and face. The protected witness must be placed in a special room that is physically separated from the courtroom in which the investigating or trial judge, as well as other persons attending the examination, are present.

Under section 339(3) of the Act, the judgment cannot be based solely on evidence given by a protected witness and obtained by means of witness protection.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in 1973 and prior to his arrest lived in Moscow.

On 30 June 2004 the applicant was arrested on suspicion of drug dealing as a result of an undercover police operation. On an unspecified date the Podolskiy Town Court of the Moscow Region (“the Town Court”) remanded him in custody. He remained in detention pending the investigation and trial.

On 11 March 2005 the Town Court found the applicant and his co-defendant B., also a Tajikistani national, guilty as charged. The applicant was sentenced to fourteen and a half years’ imprisonment.

On 25 April 2005 the Moscow Regional Court (“the Regional Court”) quashed his conviction on appeal and remitted the matter to the Town Court for fresh consideration. The Regional Court noted that, in contravention of the rules of criminal procedure, the indictment had been prepared by a prosecutor who had been the spouse of one of the police officers taking part in the undercover operation leading to the applicant’s arrest and had testified as a prosecution witness. As regards the applicant’s detention, the court ruled as follows:

“Regard being had to the gravity of the charges against the defendants, their foreign nationality and illegal residence in the Russian Federation, [the court] does not consider it possible to lift the preventive measure pending trial applied and ... extends their detention.”

On 14 June 2005 the Town Court extended the applicant’s pre-trial detention until 8 November 2005. On 29 August 2005 the Regional Court upheld the relevant court order on appeal, noting as follows:

“When deciding on the preventive measure, the [trial] court legitimately referred to the gravity of the charges and the [defendants’] characters ... It further legitimately indicated that there were no grounds for the defendants’ release. If at large [the defendants], in view of the gravity of the charges, might abscond, continue criminal activities, put pressure on witnesses, or otherwise interfere with the administration of justice.”

It appears that the applicant remained in custody pending consideration of the criminal charges against him.

On 9 December 2005 the Town Court found him guilty of drug dealing and sentenced him to eleven years’ imprisonment.

On 17 April 2006 the Regional Court upheld the conviction on appeal.

On 26 September 2006 the Regional Court granted the prosecutor’s request for a supervisory review of the applicant’s conviction, noting that the charges against him had not been classified in accordance with the law.

On 14 February 2007 the Presidium of the Regional Court quashed the appeal judgment of 17 April 2006 by way of supervisory review and remitted the matter to the appellate court for fresh consideration.

On 16 April 2007 the Regional Court quashed the applicant’s conviction of 9 December 2005 and remitted the matter for a retrial. It further noted that the preventive measure applied in respect of him and his co-defendant should remain unchanged.

On an unspecified date the Town Court extended the applicant’s detention until 27 July 2007.

On 25 July 2007 it authorised his detention for a further period until 27 October 2007, noting as follows:

“When deciding the issue of extending the [defendants’] pre-trial detention and accepting the prosecutor’s argument, [the court] considers that there are no grounds for changing the preventive measure. Regard being had to the gravity of the charges against [the defendants], their foreign nationality and illegal residence in the Russian Federation, the court considers it impossible to lift the [detention] earlier applied and extends it ... ”

On 25 September 2007 the Town Court returned the case file to the prosecutor to arrange for a translation of the indictment into the defendants’ mother tongue. As regards the defendants’ detention, the court reiterated verbatim its earlier reasoning of 25 July 2007, ordering that they be detained pending the return of the case file to the court. On 4 December 2007 the Regional Court upheld this decision on appeal.

On 25 December 2007 the applicant received the translation of the indictment.

On an unspecified date the Town Court received the case file, and on 10 January 2008 fixed the date for the hearing of the case for 23 January 2008. It authorised the applicant’s detention for the period from 27 October 2007 to 27 January 2008, reiterating the reasoning contained in the court orders of 25 July and 25 September 2007. On 18 March 2008 the Regional Court upheld the relevant decision on appeal. It considered that the applicant’s pre-trial detention had been extended in accordance with the his release pending trial. He and his lawyers had to attend the trial and were not present at the appeal hearing. The court appointed lawyer B. to represent him. The prosecutor was present and made submissions to the court.

On 23 January 2008 the Town Court admitted lawyer Sh. as the applicant’s defender and adjourned the hearing to provide him with the time necessary to study the case file. The court further extended the applicant’s detention until 27 April 2008. Its reasoning in that regard remained unchanged. It appears that the applicant did not appeal against the said court order.

On 4 February 2008 the Town Court returned the case file to the prosecutor for the reasons indicated by the Regional Court in the appeal judgment of 25 April 2005 (see paragraph 8 above). The prosecutor was given five days to bring the indictment in compliance with the applicable rules of criminal procedure. Lastly, the court noted, reiterating its earlier reasoning, that the applicant should remain in custody.

On 24 April 2008 the Regional Court adjourned the hearing of the applicant’s appeal against the detention order of 4 February 2008 as his lawyers failed to appear. As regards the pre-trial detention, the court noted as follows:

“[The appellate court] considers it necessary to rule on the issue of the [defendants’, the fact that the appellate court will examine the issue of the defendants’ detention, and to ensure prompt consideration of the matter, [the court] considers it necessary to extend the [defendants’] detention for ten days, until 7 May 2008.”

On 6 May 2008 the Regional Court examined the applicant’s appeal against the detention order of 4 February 2008. It upheld the findings of the lower court as regards the lawfulness and reasons underlying his detention. At the same time the Regional Court, regard being had to the fact that the defendants had been detained for a long time, the gravity of the charges and their characters, considered it possible to release them on bail. The bail set for each of them was RUB 5,000,000. Lastly, the court ruled that, should they be unable to pay the bail, they would remain in custody until 7 June 2008.

According to the applicant, he was unable to pay the bail as he had insufficient funds.

On 6 and 7 June 2008 the Town Court held a preliminary hearing in camera. After giving the applicant four warnings for improper conduct, the judge had him removed from the courtroom. The hearing was then held in his absence. His lawyers were present and made submissions to the court. The court fixed the trial date for 17 June 2008. It further extended the applicant’s pre-trial detention until 7 September 2008, noting as follows:

“When deciding the issue of extending the [defendants’] pre-trial detention and accepting the prosecutor’s argument, [the court] considers that there are no grounds for changing the preventive measure. Regard being had to the gravity of the charges against [the defendants], their foreign nationality, illegal residence in the Russian Federation and lack of permanent employment, the court considers it impossible to lift the [detention] applied and extends it ... .”

On 24 July 2008 the Regional Court upheld the decision of 7 June 2008 on appeal. The prosecutor was present and made submissions to the court. The applicant did not attend. He had to be present at the trial court examining the criminal case against him. The court considered the request filed by his lay defender Sh. to adjourn the hearing in view of his involvement in another set of proceedings but dismissed it. It appointed lawyer S. to represent the applicant, noting as follows:

“Regard being had to the [applicant’s] failure to pay the bail in accordance with the appeal decision of 6 May 2008, the gravity of the charges infringing public health and morals that amounts to a serious violation of public policy in a society which ensures human rights guarantees and in which public health is of great value, the [applicant’s] foreign nationality, illegal residence in the Russian Federation, the court at first instance has lawfully found that, pursuant to the applicable legislation, the preventive measure applied [in respect of the applicant] is not excessive. It is justified by society’s response and the social consequences [of the crime]. Given that it is necessary to ensure the effective protection of society, the court considers a deprivation of liberty to be permitted.”

On 1 August 2008 the Town Court found the applicant guilty as charged and sentenced him to ten and a half years’ imprisonment. On 19 February 2009 the Regional Court upheld his conviction on appeal.

According to the Government, on 25 April 2013 the prosecutor lodged an appeal against the court order of 10 January 2008 and the appeal decision of 18 March 2008 arguing that the applicant’s detention from 27 October 2007 to 10 January 2008 had been unlawful. The Government did not inform the Court about the outcome of the hearing of the matter.


Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-b - Secure fulfilment of obligation prescribed by law)

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1943 and lives in Sundborn.

On 8 September 2009 the Enforcement Authority (Kronofogdemyndigheten) in Falun issued a writ of execution (beslut om utmätning) attaching a mobile sawmill belonging to the applicant. It noted that the applicant’s total enforceable tax debts amounted to SEK 246,199 (roughly EUR 27,300) and that the sawmill had an estimated value of SEK 300,000 (roughly EUR 33,400). The Authority decided to leave the sawmill in the applicant’s possession but informed him that he was not allowed to sell or dispose of it or otherwise make use of it in a way that might negatively affect its value.

The applicant appealed against the decision to the District Court (tingsrätten) of Falun and also requested the Enforcement Authority to stay the sale of the sawmill while the court considered the case. The request for the interim measure was granted on 29 September 2009.

On 1 February 2010 the District Court rejected the applicant’s appeal and upheld the writ of execution. The interim measure was consequently also lifted.

Upon further appeal by the applicant, both the Svea Court of Appeal (hovrätten) and the Supreme Court (Högsta domstolen) refused leave to appeal, the latter on 6 May 2010.

On 22 April 2010 the Enforcement Authority contacted the applicant in order to plan the sale of the attached sawmill. In his reply a few days later, the applicant stated that he had removed the sawmill from his property and hidden it. He also submitted a written statement specifying that he had removed and hidden the sawmill, alone when no one else was at home.

On 5 May 2010 the Enforcement Authority visited the applicant’s property and confirmed that the sawmill was no longer there. The Authority also handed the applicant a summons for questioning on 7 May 2010 on its premises, as well as an injunction in which he was ordered to provide the Authority with the necessary information to be able to recuperate the sawmill. The injunction also informed the applicant that, according to Chapter 4, section 14, of the Enforcement Code (Utsökningsbalken), he was duty-bound to give information about his assets and their location. It further informed him of the Authority’s intention to ask the District Court to detain him if he did not cooperate.

At the questioning, the applicant acknowledged that he knew that the sawmill was attached and that he was not allowed to dispose of it in any way. However, since he considered that the basis for the attachment was wrong, he had decided to hide it. He stated that he took full responsibility for his actions and that nobody but him had been involved or knew where the sawmill was. He refused to give any information about its whereabouts but admitted that he had driven some distance with it around mid-April 2010. He further claimed that it could be only partly in his possession and that he was not sure that he could retrieve it if he wanted to. He stated that he had even considered setting fire to the sawmill. Meanwhile, the applicant’s wife was also questioned. She informed the Enforcement Authority that she had no information about where the sawmill was hidden.

On 17 May 2010 the Enforcement Authority requested the District Court to detain the applicant because he had refused to cooperate and give the required information. It relied on Chapter 2, section 16, and Chapter 4, section 14, of the Enforcement Code. On the same day, the District Court assigned a public defender for the applicant.

The applicant opposed the measure and claimed that it would be in violation of Articles 3 and 5 of the Convention to detain him and that no extraordinary reasons for such a measure existed.

On 27 May 2010, after having held an oral hearing, the District Court rejected the Enforcement Authority’s request. It first considered that Swedish legislation on this point did not contravene the said provisions in the Convention. The question was whether there were extraordinary reasons to detain the applicant. In this respect, the court noted that the writ of execution had gained legal force on 6 May 2010 when the Supreme Court refused leave to appeal. Thus, the court held, only a short time had passed since the matter had been finally resolved. It further observed that the Enforcement Authority had not resorted to any other measures in order to convince the applicant to reveal the location of the property, such as imposing a conditional fine. Whilst recognising that the applicant so far had been reluctant to give any information about the location of the sawmill, the court found that it could not be ruled out that a less severe coercive measure would alter his attitude. Consequently, the court concluded that currently there did not exist such extraordinary reasons to detain the applicant.

The Enforcement Authority appealed to the Court of Appeal, maintaining its claims and adding that, according to the preparatory works of the Enforcement Code, it was only necessary that the debtor had received an injunction but refused to comply with it. It further submitted that having regard to the applicant’s stance on the matter, the imposition of a conditional fine would most likely have no effect. Lastly, the Authority stated that it had reported the applicant to the police on the ground that he had committed a breach of an official order when he had removed and hidden the sawmill.

The applicant opposed the appeal, maintaining his claims and adding that he considered that, if he were detained, it would amount to imprisonment to obtain a confession. In his view, it would be clearly disproportionate to the aim pursued to detain him.

On 28 June 2010 the Court of Appeal quashed the lower court’s decision and granted the Enforcement Authority’s request. It stated that a debtor had to give necessary information about his assets and failure to do so could result in the debtor being detained, if there were extraordinary reasons for detention. Moreover, it was not necessary to impose a fine initially. Having regard to the size of the debts, the value of the hidden property and the fact that the applicant had maintained his refusal to reveal its location, the Court of Appeal found that there were extraordinary reasons to detain the applicant and that detention was proportionate to the aim pursued. In reaching its decision, the court found that the measure did not breach the Convention. Lastly, it noted that it should be informed as soon as the applicant had been detained in order to hold a hearing as to the continued detention.

The applicant was detained the following day. Consequently, on 30 June 2010, the Court of Appeal held an oral hearing and decided to maintain its earlier decision. At the hearing, the applicant stated that the taxes and the attachment had been imposed on him wrongly and that as long as these errors had not been corrected he would not cooperate to bring back the sawmill. The court reiterated its reasons as stated in its earlier decision and added that the applicant’s detention should be reviewed every second week and that he should be released immediately if he revealed the location of the property. Moreover, under no circumstances could the applicant be kept in detention for more than three months.

The applicant appealed to the Supreme Court which, on 6 July 2010, refused leave to appeal.

On 13 July 2010 the District Court reviewed the applicant’s detention and held a new hearing in the case as required by Chapter 2, section 16, of the Enforcement Code. The Enforcement Authority maintained that the applicant should be kept in detention since he still had not given any information about the location of the sawmill. It stated that it had not been able to undertake any investigative measures, since the applicant had stated that he had taken the sawmill far away from his property by car and its whereabouts thus were unknown to the Authority. The applicant, who requested his immediate release, maintained his refusal to give any information about the location of the sawmill and claimed, inter alia, that he suffered from high blood pressure and panic anxiety attacks, causing him difficulties sleeping. Moreover, he stated that he had recently been treated for prostate cancer and that he was not allowed to take his normal medication against his panic attacks since it contained narcotic substances. In its decision, the District Court noted that the applicant maintained his refusal to reveal the whereabouts of the sawmill and found, having regard to the proportionality of the measure, that there were extraordinary reasons for the applicant’s continued detention. Hence, the District Court decided that he should remain in custody.

The applicant appealed to the Court of Appeal which, on 20 July 2010, rejected the appeal. Upon further appeal, the Supreme Court dismissed the appeal since a new decision had already been taken by the District Court at that time.

On 27 July 2010 the District Court again reviewed the detention and held a new hearing in the case. The Enforcement Authority maintained its earlier point of view and acknowledged that no investigative measure had been possible due to the applicant’s continued refusal to cooperate. The applicant maintained his earlier position and added that he suffered from asthmatic symptoms due to the dry air in custody. Having regard to his age and health problems, he considered that it was clearly disproportionate to prolong his detention. The District Court found that there were still extraordinary reasons for the applicant’s continued detention and that it was not disproportionate to the aim pursued. It thus ordered that he should remain in custody.

The applicant appealed to the Court of Appeal which, on 2 August 2010, rejected the appeal. On 5 August 2010 the Supreme Court refused leave to appeal.

On 9 August 2010 the District Court once again reviewed the detention and held a hearing in the case. The parties maintained their earlier standpoints. The District Court found that continued detention of the applicant would be disproportionate to the measures he had taken. Hence, the District Court concluded that there were no extraordinary reasons for the applicant’s continued detention. As a consequence, the District Court ordered his immediate release and the order was implemented the same day.

The Enforcement Authority appealed to the Court of Appeal which, on 13 August 2010, rejected the appeal.

On 7 September 2010 the Supreme Court dismissed the Enforcement Authority’s further appeal and consequently, on 23 September 2010, the District Court struck the case out of its list of cases as the case was closed.

As concerns the Enforcement Authority’s police report concerning the applicant’s alleged breach of an official order pursuant to Chapter 17, section 13, of the Penal Code (Brottsbalken), the preliminary investigation was discontinued with reference to provisions on waiver of prosecution (åtalsunderlåtelse) on 13 April 2011.

On 4 October 2011 the Enforcement Authority decided to revoke the writ of execution concerning the sawmill since it considered that no additional circumstances had emerged that could reveal its location. Furthermore, it was considered that there were no other measures which could produce results to that end.

On 26 April 2012 the applicant submitted a claim for damages to the Chancellor of Justice (Justitiekanslern), pursuant to the Act on Compensation for Deprivation of Liberty and Other Coercive Measures (Lagen om ersättning vid frihetsberövande och andra tvångsåtgärder, 1998:714), in the amount of SEK 80,000 for the suffering he had endured during the 42 days he was deprived of his liberty. He further demanded to be reimbursed SEK 2,940 for costs which had been deducted from his pension during his time in detention.

On 15 October 2012 the Chancellor of Justice rejected the claim. The Chancellor noted that the decision to detain the applicant had been taken by a court of law, in accordance with relevant legal provisions. Moreover, the examination of the case showed no basis for finding that the decision had been taken on erroneous grounds and therefore was incorrect.


CASE OF ALEKSANDRAVIČIUS AND OTHERS v. LITHUANIA

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

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicants were born in 1981, 1982, 1986, 1974 and 1971 respectively. Mr Žanas Aleksandravičius, Mr Andrej Gailiun and Mr Artem Novikov are currently detained in Pravieniškės Correctional Facility. Mr Gražvydas Dūda lives in Kupiškis and Mr Darius Antonovas is detained in Alytus Correctional Facility.

The first applicant was detained in Lukiškės Remand Prison from 23 June 2011 to 30 September 2011. The documents submitted to the Court show that he was held in various different remand prison cells where most of the time he had between 1.8 and 2.46 square metres of living space, except for the following periods:

- from the evening of 24 June 2011 to the morning of 27 June 2011 he had 3.69 square metres of personal space;

- on the evening of 23 June 2011, the morning of 24 June 2011 and the morning of 31 August 2011 he had between 7.38 and 7.8 square metres of personal space.

In 2012 the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Lukiškės Remand Prison had been degrading: the cells had been overcrowded and the conditions unsanitary.

On 19 April 2012 the Vilnius Regional Administrative Court established that the applicant had been held in overcrowded cells for three months and three days, given that for that duration he had been held in cells where he had had less than 3.6 square metres of personal space. Nonetheless, the court dismissed the applicant’s complaint about unsanitary conditions in the prison as not actually proven. It noted that the applicant’s complaints had been expressed in abstract terms and that he had not provided accurate information about the conditions in question. The court awarded him 1,000 Lithuanian litai (LTL, approximately 290 euros (EUR)) in compensation for non-pecuniary damage on account of overcrowding.

The applicant appealed but on 4 December 2012 the Supreme Administrative Court upheld the first-instance decision.

From 22 October 2008 to 10 November 2010 the second applicant was detained in Lukiškės Remand Prison, except for the following periods when he was moved to Švenčionys police station:

- from 3 December 2008 to 10 December 2008;

- from 23 September 2009 to 29 September 2009;

- from 23 December 2009 to 29 December 2009;

- from 3 February 2010 to 16 February 2010.

The documents submitted to the Court show that he was held in several different remand prison cells where he had between 1.2 and 2.68 square metres of personal space, except for the following days:

- the whole of 29 October 2008, the morning of 31 October 2008, the morning of 3 March 2009, the morning of 15 June 2009, the evening of 20 July 2009, the whole of 21 July 2009, the morning of 22 July 2009, the evening of 21 September 2009, the morning of 22 September 2009, the morning of 31 December 2009, the evening of 9 March 2010, the morning of 10 March 2010, the morning of 7 April 2010, the morning of 26 April 2010, the morning of 14 June 2010, the evening of 28 June 2010, the morning of 29 June 2010, the evening of 3 November 2010 and the morning of 4 November 2010. During those periods he had between 3.74 and 3.97 square metres of personal space;

- the morning of 23 November 2008, when he had 7.94 square metres of personal space.

In 2012 the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Lukiškės Remand Prison had been degrading: the cells had been overcrowded, had had rats and insects and mould on the walls. They had also been damp and his health had deteriorated.

On 7 September 2012 the Vilnius Regional Administrative Court established that the applicant could only request compensation for the period from 3 April 2009 onwards because the applicant had missed the three-year time-limit to lodge a complaint for the preceding period. The court further held that the relevant period was 559 days, and that the applicant had been held in conditions that satisfied the personal space requirement for only 2.5 days. Nonetheless, the applicant’s complaint about unsanitary conditions was dismissed as unsubstantiated as he had not complained about them to the prison authorities. The court awarded him LTL 1,000 (approximately EUR 290) in compensation for non-pecuniary damage on account of overcrowding.

The applicant and Lukiškės Remand Prison appealed. On 25 February 2013 the Supreme Administrative Court upheld the firstinstance decision.

From 20 July 2009 to 16 June 2010 the third applicant was detained in Lukiškės Remand Prison, except for 9 June 2010 to 11 June 2010. He complained about his conditions of detention from 20 July 2009 to 16 June 2010.

The documents before the Court show that he was held in several different remand prison cells where he had:

- between 1.8 and 2.65 square metres of personal space from 23 July 2009 to the morning of 24 July 2009; from the evening of 27 July 2009 to 25 August 2009; from the evening of 1 September 2009 to 22 September 2009; from the evening of 23 September 2009 to 27 September 2009; from the evening of 28 September 2009 to 4 November 2009; from the evening of 6 November 2009 to 22 December 2009; from the evening of 23 December 2009 to 16 February 2010; on the evening of 17 February 2010 and on 18 February 2010; from the evening of 19 February 2010 to 22 February 2010; from the evening of 23 February 2010 to 2 March 2010; on the evening of 3 March 2010; from the evening of 4 March 2010 to 19 April 2010; from 21 April 2010 to 12 May 2010; from the evening of 13 May 2010 to 23 May 2010; from the evening of 11 June 2010 to the morning of 12 June 2010; on the morning of 14 June 2010;

- between 3.7 and 3.97 square metres of personal space from the evening of 24 July 2009 to the morning of 27 July 2009; from 26 August 2009 to the morning of 1 September 2009; on the morning of 23 September 2009; on the morning of 28 September 2009; on the morning of 5 November 2009; on the morning of 23 December 2009; on the morning of 17 February 2010; on the morning of 19 February 2010; on the morning of 23 February 2010; on the morning of 3 March 2010; on the morning of 4 March 2010; on 20 April 2010; on the morning of 7 May 2010; on the morning of 13 May 2010; on the evening of 12 June 2010;

- between 3.13 and 4.3 square metres of personal space from 24 May 2010 to the morning of 9 June 2010;

- between 7.24 and 7.31 square metres of personal space from 13 June 2010 to the morning of 16 June 2010.

In 2012 the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Lukiškės Remand Prison had been degrading: the cells had been overcrowded, his health had deteriorated and he had become bald.

On 23 October 2012 the Vilnius Regional Administrative Court held that until 10 April 2010 the statutory norm for personal space per prisoner per cell had been five square metres and that since 14 May 2010 it had been 3.6 square metres. The court also held that the applicant had been held for only ten days in conditions that had satisfied the statutory personal space requirement and awarded him LTL 800 (approximately EUR 232) in compensation for non-pecuniary damage on account of overcrowding. The applicant’s complaints about his health and baldness were dismissed as unsubstantiated as the applicant had not provided any evidence that he had ever complained to doctors or the prison authorities about those issues.

The applicant argued in an appeal that the compensation amount was too low and stated that he had asked the prison administration to take him to a doctor. Lukiškės Remand Prison argued that the applicant’s complaint was unfounded because the courts imposed sentences on people, it could not refuse to accept prisoners and thus it had no control over their number. On 5 July 2013 the Supreme Administrative Court held that the applicant had not had enough cell space for 319.5 days and increased his compensation to LTL 5,000 (approximately EUR 1,450). The court reiterated that the applicant’s complaints about his health were unsubstantiated and that the applicant himself had not been able to prove that his health had deteriorated or that he had complained to a doctor.

The fourth applicant was detained in Lukiškės Remand Prison from 25 February 2011 to 27 August 2012, except for the following periods when he was in a prison hospital:

- from 17 May 2011 to 1 June 2011;

- from 8 September 2011 to 19 September 2011;

- from 21 November 2011 to 24 November 2011;

- from 15 January 2012 to 15 February 2012;

- from 18 June 2012 until 26 June 2012;

- from 5 July 2012 to 19 July 2012;

- from 8 August 2012 to 13 August 2012.

The documents before the Court show that he was held in several different cells in the remand prison where he had:

- between 1.2 and 2.7 square metres of personal space from the evening of 25 February 2011 to the morning of 28 February 2011; from the morning of 3 March 2011 to 15 March 2011; from the evening of 16 March 2011 to 7 April 2011; from 13 May 2011 to the morning of 16 May 2011; on the evening of 1 June 2011; on 27 July 2011; on the evening of 28 July 2011; from 26 August 2011 to 29 August 2011; from 20 September 2011 to the morning of 21 September 2011; on the evening of 24 November 2011; from the evening of 30 November 2011 to 7 December 2011; from the evening of 8 December 2011 to 10 January 2012; from the evening of 11 January 2012 to 21 February 2012; from the evening of 22 February 2012 to the morning of 7 March 2012; from the evening of 8 March 2012 to 14 March 2012; from the evening of 15 March 2012 to 28 March 2012; from the evening of 29 March 2012 to 1 April 2012; from the evening of 2 April 2012 to 3 April 2012; from the evening of 4 April 2012 to 5 June 2012; from the evening of 6 June 2012 to 26 June 2012; on the evening of 26 June 2012; on the evening of 27 June 2012; from the evening of 28 June 2012 to 1 July 2012; from 19 July 2012 to 22 July 2012; from the evening of 23 July 2012 to 7 August 2012; from the evening of 16 August 2012 to the morning of 21 August 2012; from the evening of 23 August 2012 to the morning of 27 August 2012;

- between 3.27 and 4 square metres of personal space from the evening of 28 February 2011 to 2 March 2011; on the morning of 16 March 2011; from 8 April 2011 to 20 April 2011, from the evening of 21 April 2011 to the morning of 12 May 2011; on the evening of 16 May 2011; on the evening of 2 June 2011; on the evening of 3 June 2011; from 4 June 2011 to 16 June 2011; on the evening of 17 June 2011; from 18 June 2011 to 20 June 2011; on the evening of 21 June 2011; on the evening of 22 June 2011; from 23 June 2011 to the morning of 21 July 2011; from the evening of 21 July 2011 to 26 July 2011; on the morning of 28 July 2011; from the evening of 30 August 2011 to 7 September 2011; from the evening of 27 September 2011 to 9 October 2011; from the evening of 10 October 2011 to 12 October 2011; on the evening of 13 October 2011; from the evening of 14 October 2011 to 1 November 2011; from the evening of 5 November 2011 to 17 November 2011; from the evening of 18 November 2011 to 20 November 2011; from 29 November 2011 to the morning of 30 November 2011; on the morning of 11 January 2012; from the evening of 7 March 2012 to the morning of 8 March 2012; on the morning of 15 March 2012; on the morning of 29 March 2012; on the morning of 2 April 2012; on the morning of 4 April 2012; on the morning of 6 June 2012; on the morning of 27 June 2012; on the morning of 28 June 2012; from 2 July 2012 to 4 July 2012; on the morning of 23 July 2012; from the evening of 14 August 2012 to the morning of 16 August 2012; from the evening of 21 August 2012 to the morning of 23 August 2012;

- between 6 and 10.6 square metres of personal space on the morning of 8 April 2011; on the morning of 21 April 2011; on the evening of 12 May 2011; on the morning of 2 June 2011; on the morning of 3 June 2011; on the morning of 17 June 2011; on the morning of 21 June 2011; on the morning of 22 June 2011; from 29 July 2011 to 25 August 2011; on the morning of 30 August 2011; on the evening of 19 September 2011; from the evening of 21 September 2011 to the morning of 27 September 2011; on the morning of 10 October 2011; on the morning of 13 October 2011; on the morning of 14 October 2011; from 2 November 2011 to the morning of 5 November 2011; on the morning of 18 November 2011; from 25 November 2011 to 28 November 2011; on 22 February 2012; from the evening of 13 August 2012 to the morning of 14 August 2012; on the evening of 27 August 2012.

On an unspecified date the applicant instituted proceedings for damages. He argued that the conditions in which he had been held in Lukiškės Remand Prison had been degrading: the cells had been overcrowded; he had been held together with prisoners who smoked; the toilets had not been separated from the rest of the cell; and his health had deteriorated.

On 2 January 2012 the Vilnius Regional Administrative Court held that the applicant’s personal space had not corresponded to the statutory norms and awarded him LTL 1,000 (approximately EUR 290) in compensation for non-pecuniary damage on account of overcrowding. As regards his other complaints, the court held that there was no evidence that his health had deteriorated because of overcrowding and stated that his health condition, according to medical data, was hereditary. The domestic courts also held that the toilets had had a partition of at least 1.5 metres and dismissed the applicant’s complaints in this respect as unsubstantiated.

The applicant and Lukiškės Remand Prison appealed; however, the Supreme Administrative Court upheld the decision of the court of first instance on 28 May 2012.

In the application form, the fifth applicant complained about his conditions of detention in Lukiškės Remand Prison from 29 November 2007 until 9 March 2010. However, in his reply to the Government’s observations, he claimed that the period to be considered was from 10 June 2009 to 27 September 2011. The applicant was not in prison between 2 July 2009 and the morning of 13 July 2009 as he was in a prison hospital while from 12 January 2010 to the morning of 26 January 2010 he was held in Tauragė police station.

It can be seen from the documents before the Court that he was held in several different remand prison cells where he had:

- between 1.2 and 2.8 square metres of personal space from 17 June 2009 to 1 July 2009; from the evening of 13 July 2009 to 3 November 2009; from the evening of 4 November 2009 to the morning of 2 December 2009; from 3 December 2009 to the morning of 7 January 2010; from the evening of 26 January 2010 to 5 February 2010; from 8 February 2010 to 10 February 2010; from the evening of 27 February 2010 to 28 February 2010; from the evening of 1 March 2010 to the morning of 2 March 2010;

- between 3 and 3.97 square metres of personal space on the morning of 4 November 2009; from the evening of 7 January 2010 to 11 January 2011; from 6 February 2010 to 7 February 2010; from the evening of 11 February 2010 to the morning of 27 February 2010; on the morning of 1 March 2010; from the evening of 2 March 2010 to 8 March 2010;

- 7.45 square metres of personal space on the evening of 2 December 2009;

- 5.3 square metres of personal space on the morning of 11 February 2010.

On 11 June 2012 the applicant instituted proceedings for damages for the period from 29 November 2007 until 9 March 2010 when he was in Lukiškės Remand Prison. The applicant later further specified the period for which he was complaining as being from 29 November 2007 to 27 September 2011. He argued that the conditions in which he had been held in the remand prison had been degrading: the cells had been overcrowded; there had been rats and insects; and his sight had deteriorated owing to insufficient lighting. The court applied the three-year period of limitation and found that the relevant period to be considered was from 10 June 2009 to 10 June 2012. The court held that the applicant had been held in overcrowded cells for two years, although the period was nonconsecutive, and awarded him LTL 300 (approximately EUR 87) in compensation for non-pecuniary damage. The court held that the applicant had failed to substantiate his other complaints with evidence.

In an appeal, the applicant also stated that the cells had been damp and the beds uncomfortable. Lukiškės Remand Prison and the Prisons Department argued that the applicant had failed to substantiate his complaints. On 20 May 2013 the Supreme Administrative Court, without examining the additional complaints, held that the applicant had been held in overcrowded cells for a non-consecutive period of ten months and nine days. It increased the award for non-pecuniary damage to LTL 3,000 (approximately EUR 870).