Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant, Mr Ibragim Khasan Ogly Musayev, is an Azerbaijani national, who was born in 1992 and lived in Shopsha, Yaroslavl Region. He was represented before the Court by Ms O.A. Sadovskaya, a lawyer practising in Nizhniy Novgorod. The Russian Government were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. The Azerbaijani Government were represented by their Agent, Mr Ç. Asgarov.

On 11 September 2013 the President of the Section decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of the Russian Federation, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Azerbaijan until further notice. The President of the Section also decided to request the Governments of the Russian Federation and Azerbaijan, under Rule 54 § 2 (a) of the Rules of Court, to submit factual information regarding the extradition proceedings, the criminal prosecution of the applicant in Azerbaijan and his alleged employment by the Ministry of National Security of the Autonomous Republic of Nakhchivan (“the MNS”).

and the Governments of the Russian Federation and Azerbaijan, may be summarised as follows.

On 2 September 2012 the applicant left Azerbaijan and travelled to the Russian Federation to live with his father in the village of Shopsha, Yaroslavl Region.

On 26 November 2012 notification was sent to the applicant in Azerbaijan that he was being drafted into the armed forces. His relatives informed the authorities that he had moved to Russia. In response, on 3 December 2012 the Nakhchivan city department of the State Service for Mobilisation and Military Draft of the Nakhchivan Autonomous Republic requested the police and prosecution authorities to search for the applicant.

On 14 December 2012 the Nakhchivan City Prosecutor’s Office instituted criminal proceedings against the applicant on charges of fraud and misappropriation. According to the investigation, the crimes had been committed in July 2012 against a restaurant and a private individual. The proceeds of the crime totalled some 2,000 euros (EUR).

On the same day an investigator at the Nakhchivan City Prosecutor’s Office ordered the applicant’s search and arrest for the purpose of serving an indictment on him.

On 25 December 2012, at the request of the Nakhchivan City Prosecutor, the Nakhchivan City Court ordered the applicant’s arrest and two months’ detention from the date of his apprehension.

On an unspecified date in December 2012 the applicant told the Azerbaijani media that he was a former agent of the MNS, that he had witnessed the torture of Mr T.Z. on the premises of the MNS in Nakhchivan from 24 to 27 August 2011, and that Mr T.Z. had died as a result of torture. In this connection, he gave the names of the senior officials of the MNS who had allegedly tortured that person.

On 8 January 2013 the criminal case against the applicant was suspended pending his arrest.

In December 2012 the applicant moved from the Yaroslavl Region to Moscow for the purpose of requesting asylum.

On 16 January 2013 the applicant applied for asylum to the Moscow Department of the Federal Migration Service (“the MD FMS”). His statements to the immigration authorities and the media contained the following allegations:

On 21 January 2013 the applicant received notification from the MD FMS that his asylum request had been accepted for consideration. Subsequently, he left Moscow and went to the Yaroslavl Region without notifying the immigration authorities. The Moscow address which he had provided to the MD FMS was later discovered to be false.

On 6 February 2013 the applicant was arrested by the lawenforcement authorities in the Yaroslavl Region on the basis of the search-and-arrest warrant issued in Azerbaijan.

On 21 April 2013, having considered the merits of the applicant’s asylum request, the MD FMS decided to refuse it. The relevant parts of the decision read as follows:

“Musayev Ibragim substantiated his request by claiming that his life had been threatened by the MNS of Azerbaijan.

He confirmed his identity by [presenting his Azerbaijani passport] ...

He refused to provide his military service identification card, stating that it was ‘a state secret’...

Musayev I.G. reasoned the existence of a threat to his life ... by the fact that he had refused to comply with an order issued by the MNS to kill a person ...

[He stated that] between 2010 and 2012 he had worked as a secret agent for the MNS. He refused to answer the question whether he had followed any secret service training in the MNS, since it was ‘a state secret’.

Musayev Ibragim stated that ... as a result of his failure to comply with an order to ‘kill a person’ he had started to receive threats personally from the Minister of National Security ... [and] that to save his life he had fled to Russia ... [In Russia] he had started receiving further threats ... and four to five times he had been offered a monetary reward of [EUR 95,000 to EUR 380,000] for his ‘silence’ and keeping the state secret.

The analysis of Musayev Ibragim’s personal file demonstrates that the reason which triggered his departure from his home country and his unwillingness to return was not a threat to his life from the MNS, but a real fear of arrest for fraud.

The statements of the applicant are contradictory.

Musayev Ibragim ... was not a member of any political, civic or religious association in Azerbaijan, and was never persecuted on ethnic grounds. His employment by the MNS is not proven by any documents.

During the check of his declared place of residence in Moscow ... [it had proven to be non-existent] and this fact demonstrates the lack of sincerity in the applicant’s statements ...

The circumstances mentioned above prove that there are no reasonable grounds to believe that Musayev Ibragim would be a victim of persecution in Azerbaijan ...”.

The decision also contained an extensive section analysing the international human-rights obligations of Azerbaijan, its human-rights record as reported by NGOs and the Commissioner for Human Rights of the Council of Europe, reports on the ethnic, social and economic situation in the country, as well as migration dynamics.

The applicant’s representative, Mr S., complained against the decision to the Federal Migration Service (“the FMS”). The complaint stated that the regional immigration authorities had failed to consider two facts: first, that the applicant had left Azerbaijan before the institution of criminal proceedings against him; and secondly, that given the reports of human-rights organisations about the practice of torture and other human-rights violations in Azerbaijan, the applicant would be exposed to those risks, especially in view of the political nature of his prosecution.

On 4 July 2013 the FMS issued decision No. 1198 upholding the decision of the regional authorities. The relevant parts read as follows:

“It must be observed that the applicant’s statement that the reason for his presence in Russia is to seek asylum is not corroborated by the facts ... After arriving on 2 September 2013 he did not lodge his request until January 2013 after the period of his lawful stay [in Russia] had expired. Publications on the internet signed by him started to appear only in November 2012 (after leaving Azerbaijan and at the end of the period of lawful stay in Russia).

The asylum seeker claims that he was an agent of the MNS, but does not provide any supporting documents and only refers to information on the internet as proof.

The claim that since the spring of 2011 he has been persecuted by the leadership of the MNS as a result of his refusal to kill a woman ... has also not been proved.

In the spring of 2011 he ... obtained a passport in his name for travelling abroad ... and until his arrival in Russia in September 2012 he repeatedly travelled outside Azerbaijan, including a trip to Iran in August 2012 with his wife.

From Iran he returned with his wife to Azerbaijan, despite his allegation that his life was threatened there ... [and only one month] later left for Russia.

The analysis of the decision by the MD FMS, the case file, the allegations of the asylum seeker, and information of the FMS and the Ministry of Foreign Affairs on the situation in Azerbaijan demonstrate that ... there are no reasonable grounds for [Mr Musayev’s] alleged fear of persecution in Azerbaijan.”

On 8 August 2013 the applicant’s representative, Mr S., appealed against the above decisions to the Zamoskvoretskiy District Court of Moscow. Neither the applicant nor his representative informed the Court about the outcome of the appeal.

On 12 February 2013 the Deputy Prosecutor General of Azerbaijan forwarded to the Russian authorities an extradition request in respect of the applicant. The relevant parts of the request read as follows:

“We guarantee that in accordance with international law Musayev I.G. will be provided in Azerbaijan with all the facilities for defence, including the services a of defence counsel, he will not be tortured or subjected to any inhuman or degrading treatment or punishment (Article 3 of the European Convention, and relevant conventions of the UN and the Council of Europe).

The Prosecutor General of Azerbaijan guarantees that the extradition request has not been lodged with the aim of persecuting [the applicant] on political, racial, religious or ethnic grounds.

The Prosecutor General of Azerbaijan guarantees that in accordance with Article 66 of the Convention on legal cooperation and relations in civil, family and criminal matters of 22 January 1993 Musayev I.G. would be prosecuted only for the crime which served as the basis for this extradition request, and after his trial or, in case of conviction, after serving his sentence he would be free to leave Azerbaijan. Musayev I.G. will not be extradited, expelled or transferred to any other State without the consent of the Russian competent authorities”.

On 23 July 2013 the Deputy Prosecutor General of the Russian Federation authorised the applicant’s extradition, stating that there were no obstacles to it under international law and Russian legislation.

The applicant’s representative, Mr S., challenged the authorisation in court. The complaint stated that the asylum proceedings were still pending and that the criminal prosecution of the applicant had a political nature, because he “engages in human rights defence and reveals facts of human rights violations in Azerbaijan”.

On 6 August 2013 the applicant was released from detention on his own recognisance and immediately fled from his last known place of residence in Russia. According to the statements of his relatives and representatives, the applicant avoided any contact with the law-enforcement authorities.

On 2 September 2013 the Yaroslavl Regional Court considered the complaint against the extradition authorisation in the absence of the applicant, who had avoided any contact with the Russian authorities. The Regional Court upheld the authorisation. The relevant parts of the judgment read as follows:

“The defence counsel Mr S. stated in court that there were no reasons to extradite Musayev I.G., who had been persecuted by officers of the Ministry of National Security of Azerbaijan on political grounds ... In the event of extradition the police of the Nakhichevan Autonomous Republic would subject Musayev to violence and torture ...

The defence witness Mr M. stated that his son ... had started living with him in the village of Shopsha, Yaroslavl Region in August 2012, and that according to [an unidentified] colonel of the MNS his son was an agent of the security services ...

The prosecution stated that the complaint should be dismissed, since all the arguments of the defence had been refuted during the extradition check ...

[T]he court considers the extradition authorisation ... to be reasonable and lawful ...

The arguments of the defence counsel that the asylum proceedings are not yet finished are erroneous.

... The case materials demonstrate that the decision of the Federal Migration Service [to refuse asylum] of 21 April 2013 was considered lawful and upheld on appeal on 4 July 2013 ...

The opinion of the complainant that Musayev I.G. must not be extradited to another State, since his criminal prosecution is of a political nature is arbitrary.

The case file contains no evidence proving that Musayev I.G. was employed by the Ministry of National Security, any political party or human rights organisation. The statements of Musayev and his father that [the applicant] is being persecuted as a former agent of the MNS are unsubstantiated.

The extradition request of the Prosecutor General of Azerbaijan guarantees that he will not be subjected to torture, inhuman or degrading treatment or punishment and that the request does not pursue any political motives ...

The court examined the materials submitted by the defence counsel about possible human rights violations in the Nakhichevan Autonomous Republic.

Having regard to the generally positive situation regarding respect for human rights in the State seeking extradition, the specific circumstances of the present case and the guarantees of the Azerbaijani authorities, the court does not consider that there are any reasonable grounds to believe that [the applicant would be subjected to torture, inhuman or degrading treatment]”.

The applicant’s representative allegedly appealed against the judgment to the Supreme Court of the Russian Federation. However, neither the applicant nor his representative informed the Court about the outcome of that appeal.

On 3 October 2013 the Government of the Russian Federation informed the Court that they were not aware of any documents proving the applicant’s employment by, or any other cooperation with, the MNS of the Nakhichevan Autonomous Republic. They highlighted the fact that the extradition request did not contain such information either.

On 7 October 2013 the Government of Azerbaijan stated to the Court that the applicant had never been an employee of the MNS and had not cooperated with it in any other form.

The Government of Azerbaijan also stated that the criminal investigation into the death of Mr T.Z. had been conducted by the Nakhichevan City Prosecutor’s Office, but that the applicant had no relation to the case or the investigation.

In support of the applicant’s account of events his representative submitted to the Court several letters and statements of human-rights activists and non-governmental organisations.

The statement of 12 April 2013 by the Human Rights House Foundation urged the Court to stay the applicant’s extradition to Azerbaijan in view of the risk of ill-treatment. The statement does not contain any specific information on the applicant’s case, but provides a summary of international reports on the situation in Azerbaijan in general and in the Nakhichevan Autonomous Republic in particular.

In a letter of 3 June 2013 Ms Malahat Nasibova, a well-known human-rights activist and president of the Democracy and NGO Development Resource Centre, an NGO based in Nakhichevan, asked the Russian authorities not to extradite the applicant to Azerbaijan, alleging that he had been involved in the case of Mr T.Z. and risked “serious punishment” by the authorities.

In a letter of 23 August 2013 the lawyer of the deceased Mr T.Z. stated that the applicant, according to his statements, was a “key witness” to Mr T.Z.’s death and that he had been forced to leave Azerbaijan under pressure from the authorities.


CASE OF YAVOROVENKO AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On the dates set out in the appended table domestic courts delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour. The decisions became final and enforceable. However, the applicants were unable to obtain the enforcement of the decisions in due time.

Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non-enforcement issues.


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

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev

After the regaining of independence, in 1991 property reform legislation came into force in Latvia and provided that former owners or their heirs could reclaim property nationalised in 1940.

The second applicant and two other individuals were the heirs of A.S. In 1999 they asked the Riga Regional Court to recognise their title to 30 ha of forest in Jurmala (hereinafter “the contested property”) which had allegedly belonged to A.S. and was nationalised in 1940. They also asked the court to recognise their right to receive a plot of land of the same value in Jurmala, as it had not been possible to establish the precise boundaries of the inherited land.

On 7 May 1999 the Riga Regional Court ruled in favour of the claimants. It recognised that there was no question over whether the claimants were the heirs of the late A.S., as that had been established by a court order in 1995. Referring to documents received from the State Archive and the State Land Authority (Valsts Zemes dienests), it also established that A.S. had purchased 30 ha of forest in Jurmala. Referring to section 12 of the Law on Land Reform in the Cities of the Republic of Latvia (Par zemes reformu Latvijas Republikas pilsētās), which provided that any requests after 1 June 1994 for the restoration of property rights should be decided by a court, the Riga Regional Court recognised that the second applicant owned a two-third share of the forest in Jurmala and that the other two claimants owned a sixth each. As there was no evidence of what the precise boundaries of the forest were, the court recognised the claimants’ right to receive a plot of land of the same value elsewhere.

Jurmala City Council was a defendant in the above proceedings and a representative of Jurmala City Land Commission contested the claim, arguing that in 1940 the contested property had belonged to several individuals as undivided property, and the archive documents did not show what part of that property each claimant could be entitled to.

The judgment was not appealed against and became final on 8 June 1999. In April 2000, at the claimants’ request, the Riga Regional Court adopted an additional decision specifying that the contested property had historically been part of the Bulduri estate forest.

After adoption of the above judgment, the Jurmala City Land Commission informed the claimants, the Jurmala City Council and the State Land Authority several times of problems in enforcement of the judgment. The Jurmala City Land Commission maintained that the archive material, which had been obtained after the above judgment had been adopted, did not give information as to the location of the contested property. On those grounds, in October 2000 the State Land Authority asked the Prosecutor General’s Office to lodge an application for supervisory review (protests) asking for the judgment of 7 May 1999 to be quashed.

In November 2000 the Prosecutor General’s Office dismissed the request, arguing that reassessment of evidence could not serve as grounds for triggering supervisory review proceedings.

On several occasions the second applicant complained to the Jurmala City Council and the Jurmala City Land Commission about delays in the enforcement of the judgment.

In order to comply with the judgment, on 6 December 2002 the Jurmala City Land Commission adopted decisions allocating four plots of land to the claimants.

On 27 December 2002 the title to the four plots of land was entered in the land register, and on 8 and 9 January 2003 the second applicant and the other two claimants sold their respective plots to the fifth applicant, the limited liability company Bulduru Muiža, the owner and director of which at the material time was the second applicant.

Between January 2002 and October 2003 the first applicant was the president of the fifth applicant, and between October 2003 and August 2007 the first applicant was its chairman of the board.

On 24 October 2003 the President of the Civil Division of the Senate of the Supreme Court lodged an application for supervisory review with regard to the judgment adopted on 7 May 1999 by the Riga Regional Court, arguing that there was a lack of evidence to corroborate that A.S. had owned the property before 1940. As information received from the State Archive had suggested, the contested property had consisted of undivided shares and therefore it could not be concluded that A.S. had been the sole purchaser of 30 ha of a forest.

A copy of that application was sent to the second applicant and the other two parties to the initial proceedings, inviting them to submit comments within thirty days of receipt.

At a hearing on 17 December 2003 attended by the representative of the claimants in the initial proceedings, the Senate of the Supreme Court quashed the judgment and remitted the case to the Riga Regional Court for fresh consideration. The Senate recognised that there was nothing in the case file to suggest that A.S. had owned the contested property.

In January and March 2004 the Bureau for the Prevention and Combating of Corruption (“the KNAB”) asked the Prosecutor General’s Office to initiate proceedings to reclaim the contested property from the applicants.

The fifth applicant entered into various transactions with the contested property.

On 15 and 16 December 2003 part of the property was for a total amount of 7,000 Latvian lati (LVL) (about 10,000 euros (EUR)) sold to A.V. who on 26 and 29 March 2004 sold it for the same amount to the third applicant, the limited liability company Balt Invest Group, the coowner and representative of which at the material time and until February 2007 was A.V. himself.

On 23 April and 7 May 2004 the third applicant was registered as the owner of the property in the land register.

On 12 and 19 February 2004 the fifth applicant sold two other parts of the contested property to the sixth and fourth applicants respectively for about EUR 45,000 per each transaction. The purchase contract of 19 February 2004 provided, inter alia, that the seller, namely the fifth applicant, guaranteed that the property was not subject to any dispute, and that seller would be liable for any third party claims made in respect of the transaction.

On 27 February 2004 the fifth applicant sold another part of the property to K.K, who on 18 June 2004 sold it to the first applicant for about LVL 29,000 (about EUR 41,500). The purchase contract of 18 June 2004 provided, inter alia, that the seller guaranteed that the property was not anyhow encumbered.

On 27 April 2004 and on 16 September 2004 (with regard to the first and the third applicants) the Prosecutor General’s Office, acting on behalf of the Ministry of Finance, lodged a claim against the Jurmala City Council, the applicants, A.V. and the two other claimants in the initial proceedings. The Prosecutor General’s Office relied on the Senate’s judgment (see paragraph 17 above) and the request received from the KNAB (see paragraph 18 above). The claim stated that the second applicant and the two other claimants in the initial proceedings had no legal right of ownership over the contested property. The Riga Regional Court was asked to quash the decisions of Jurmala City Land Commission allocating the four plots of land (see paragraph 13 above). The Prosecutor General’s Office also asked for the relevant Land Registry records to be deleted and the rights of the State to the contested property to be recognised.

The claim was based on the section of the Civil Law regulating property claims, such as sections 1041, 1044 and 1063 (see paragraph 37 below).

On 30 May 2004 the Riga Regional Court decided to join the claim lodged by the Prosecutor General’s Office and the claim about the restoration of property rights (see paragraph 17 above).

On 9 September 2005 the Riga Regional Court dismissed the claim lodged by the Prosecutor General’s Office and upheld the decision recognising the second applicant and the two other claimants as owners of the contested property.

Both the Prosecutor General’s Office and the Jurmala City Council appealed against that decision.

On 22 June 2006 the Civil Division of the Supreme Court partly upheld the appeal lodged by the Prosecutor General’s Office. The court revoked the decisions of the Jurmala City Land Commission allocating the second applicant and the two other claimants the four plots of land, and ordered that the corresponding entries be deleted from the relevant Land Registry records. It established that the lower court had failed to address the fact that until 1937 the contested plots of land had been jointly owned by the former owner A.S. and seventy-six other individuals. Moreover, the joint ownership of the land had ceased after the passing of a decree in 1937, and after that date A.S. had not registered his title to the property with the Land Registry.

The appellate court also dismissed part of the claim of the Prosecutor General’s Office in which it claimed that the State (represented by the Ministry of Finance) had ownership rights over the property in question. The plots of land were returned to Jurmala Municipality in order for it to finalise the land reform.

In relation to the applicants’ argument that they had all acted in good faith when acquiring their part of the contested property, the court at the outset noted that such criteria as the date of conclusion of a contested transaction and the nature of the infringed property rights have to be considered when assessing the protection of bona fide acquirers. The court also observed that after the second applicant had sold the contested property to the fifth applicant, the owner of which was the second applicant himself, all the transactions involving the contested property (see paragraphs 19-22 above) had been concluded after the Senate of the Supreme Court had revoked the final judgment in the initial proceedings. It also noted that K.K. had sold his respective parts of the property to the first applicant despite the fact that the civil proceedings initiated by the Prosecutor General’s Office had been pending. On those grounds and on the basis of section 1055 of the Civil Law (see paragraph 38 below), the applicants were not recognised as having acted in good faith.

The first, second, fourth and fifth applicants lodged an appeal on points of law. Following an application dated 14 August 2006, the third applicant joined the cassation appeal lodged by the first applicant. The sixth applicant did not lodge an appeal on points of law.

The five appellants complained, inter alia, that the State did not have sufficient interest in the property to justify the fact that the Prosecutor General’s Office had lodged a property claim on behalf of the State.

By a final decision of 17 January 2007, the Senate of the Supreme Court upheld in essence the appellate court’s judgment. With respect to the property claim brought by the Prosecutor General’s Office, the Senate noted that even if the State’s property rights had not been infringed, that did not prevent the court from finding that the second applicant and the two other claimants in the first set of proceedings had had no rights to the contested property. The Senate also upheld the appellate court’s conclusions about the applicants acting in bad faith.

After the above judgment took effect and at Jurmala Municipality’s request the applicants’ entries were deleted from the relevant Land Registry records.

On 16 October 2012 the third applicant was declared insolvent and the Riga District Court appointed E.K. as its insolvency administrator who replaced the former board members of the third applicant. On 19 February 2013 the insolvency proceedings were terminated and on 14 May 2013 the third applicant was deleted from the company register.

On 12 April 2013 A.V., who until June 2012 had been a board member of the third applicant, on its behalf designated a legal representative in the proceedings before the Court (see paragraph 2 above).


MILOŠEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant, Mr Blage Miloševski, is a Macedonian national who was born in 1960 and lives in Skopje. He was represented before the Court by Mr S. Janev, a lawyer practising in Skopje.

The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov.

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

On 14 August 2001 J.G. (a Czech national with two office addresses, in the United Kingdom and in the Czech Republic) issued a “payment order” to Bank T., a bank incorporated in the respondent State, for payment of 1,450,000 United States dollars (USD) to the applicant, conditional upon the availability of funds in J.G.’s bank accounts in Bank T. The payment order also specified that if no funds were available in those bank accounts, J.G. would be liable to pay the applicant the pledged sum of money in cash. The relevant part of the payment order, co-signed both by J.G. and the applicant, reads as follows:

“I, Dr J.G., Trustee and Attorney with this, hereby inform and give an irrevocable order to Fiduciary bank: T. a.d. Skopje to unconditionally pay out in my name to Mr Milosevski Blage ... the amount of USD 1,450,000.00 USD (in words: USD one million four hundred and fifty thousand) in cash from either of my accounts [opened with Bank T.] immediately after the arrival of USD 4,500,000.00 in those accounts. This payment order shall constitute a firm obligation on the part of Bank T. and it shall pay out the amount stated hereunder to Mr. Milosevski Blage immediately, whenever this payment order is presented to T. a.d. Skopje.

In the event that such resources ... have not arrived in either of my accounts [specified] above in due time, I am fully legally responsible to fully pay the amount of USD 1,450,000.00 in cash to Mr Milosevski Blage at his first call and demand.”

On 29 June 2004 the applicant, through his representative, submitted the payment order to the Skopje Court of First Instance (“the first-instance court”) and requested its enforcement. In his “enforcement request” (предлог за извршување), amended on 3 November 2004, the applicant stated that both Bank T. and J.G. had failed to fulfil the provisions of the payment order. He proposed that enforcement be allowed in the following terms:

“Enforcement is allowed of the payment of USD 1,450,000.00, plus interest ... and costs ... from the debtor’s [J.G.’s] funds (парични средства), that is to say (односно) from his assets in company D., incorporated in Ireland as capital of 51% in company T.T. incorporated in the Czech Republic ... by the transmission of the [first-instance court’s] enforcement order from the Ministry of Justice [of the respondent State] to the Ministry of Justice of the Czech Republic so that the competent court in the Czech Republic might proceed further with the enforcement and transfer the above-mentioned amount to the [applicant’s] personal bank account ... in Bank T. in Skopje.

Alternatively, if no assets of company T.T. are available in the Czech Republic, enforcement is proposed in respect of those of the debtor’s funds that are available in company T.T.’s bank accounts at Bank M. in Frankfurt, Germany, or at any other institution where the debtor holds personal capital or stake in his other companies in the Czech Republic, or movable or immovable property or capital to be found at any other place.

This decision will be delivered to the [respondent State’s] Ministry of Justice, so that it can be transmitted for enforcement, via the competent [Czech] ministry, to the competent authorities in the Czech Republic.

The applicant and his representative will be notified in the event of any problems with the enforcement.”

On 9 November 2004, by affixing the standard stamp to the applicant’s enforcement proposal, the first-instance court allowed the enforcement, as proposed by the applicant (the “enforcement order”). According to the instruction contained in the text of the stamp, the debtor could object (приговор) to the enforcement order within eight days of receiving it. The enforcement order was signed by Judge V.B.

The enforcement order was transmitted in the Czech Republic, through the Ministries of Justice of the respondent State and the Czech Republic, to J.G.. On 28 February 2005 J.G. signed the delivery slip, which together with the complete file was returned to the respondent State. The fact that the file was returned was the reason for the first-instance court’s seeking further information from the relevant Ministries as to whether J.G. had indeed received the enforcement order translated into Czech. The relevant Ministry did not clarify the matter.

On 29 June 2005 the first-instance court, relying on “the general provisions and principles of the Enforcement Proceedings Act” (hereafter “the Act”), terminated the enforcement (се запира извршувањето) and quashed the enforcement measures (спроведените извршни дејствија се укинуваат). The first-instance court stated that the payment order could not be regarded as suitable for enforcement (извршна или веродостојна исправа), that the enforcement order had been issued in error (превид), and that it was in both parties’ interests that the enforcement be terminated. This decision was made by Judge Z.C., who had in the meantime been appointed to sit in the case.

On 31 May 2006 the Skopje Court of Appeal (“the second-instance court”) upheld the applicant’s appeal and remitted the case for fresh consideration. It found that the first-instance court was bound by its enforcement order of 9 November 2004 and that it was unclear why it had concluded that it was in the parties’ interests for enforcement to be terminated. In this connection it noted that the enforcement order had been served on both parties, that neither party had appealed against it, and that the first-instance court could not assess the “substantive legality” (материјалната законитост) of the enforcement order. The second-instance court added that the first-instance court, when considering the case anew, should assess whether any of the statutory conditions for the termination of the enforcement (запирање на извршувањето) had been met.

On 26 June 2006 the president of the first-instance court granted a request by the applicant for the withdrawal of Judge Z.C. and appointed Judge M.N. to sit in the case. On 12 July 2006 the first-instance court again terminated the enforcement. It noted that it had received, on two occasions, a notification from Bank T. that no funds had been available on J.G.’s bank accounts to cover the applicant’s claim. By citing provisions of the Act relevant to the courts’ territorial competence for enforcement over funds, movable property and stakes in companies (see paragraph 14 below) and by taking into account the provisions of the Trade Companies’ Act regarding companies’ seats and legal status, the first-instance court concluded that the enforcement, as allowed by the enforcement order, was impossible. In this connection, it stated:

“... the enforcement sought concerned moveable property outside (the respondent State) ... It is absolutely impossible for a court in (the respondent State) to carry out enforcement against property in a foreign State in which different rules apply. It is true that the enforcement in the present case was allowed and that the (enforcement order) became final ... the court has no jurisdiction to proceed with the enforcement against shares in a foreign company in a foreign State ... the enforcement concerns shares of a foreign company from the Czech Republic, which is absolutely impossible to carry out under the Enforcement Act of the Republic of Macedonia. The Trade Companies’ Act clearly provides that the competent court ratione loci is the court in the place where the foreign company is registered.”

On 20 July 2006 the applicant appealed, arguing, inter alia, that there was no legal ground in the Act for the termination of the enforcement in the instant case. He further submitted that under the bilateral agreement applicable between the respondent State and the Czech Republic (hereafter “the Bilateral Agreement”) (see paragraphs 16 to 18 below), the enforcement order should have been transmitted through the respondent State’s Ministry of Justice to the competent Czech authorities, so that the latter could proceed further with the enforcement.

On 28 March 2007 the Skopje Court of Appeal dismissed the applicant’s appeal and confirmed the lower court’s decision. It held that the first-instance court had not terminated the enforcement proceedings, but had only terminated the enforcement. In this connection it observed that a distinction should be made between (i) the termination of enforcement proceedings (запирање на извршната постапка) as a final completion of enforcement proceedings and (ii) the termination of enforcement (запирање на извршувањето) as completion of only a stage of the enforcement proceedings, completely or regarding a particular object of enforcement. The court referred to the lack of funds in J.G.’s accounts in Bank T. and reiterated the reasons of the lower court that the Macedonian courts had no jurisdiction to proceed with the enforcement against funds and moveable property in foreign companies for which the power of enforcement was vested with the courts of the jurisdiction within which such assets were located. The applicant was served with this decision on 4 October 2007.

Subsequently, the applicant asked the first-instance court to attest to the finality and enforceability of the enforcement order (издавање на правосилност и извршност на решение). On 7 April 2008 the applicant’s request was dismissed. The first-instance court held that no such measure could be taken, since there existed a final decision on the termination of the enforcement. It further pointed out that no further enforcement measures could be taken on the basis of the enforcement order. On 3 July 2008 the second-instance court dismissed the applicant’s appeal and confirmed the first-instance court’s decision.

This Act regulated the enforcement of court decisions. Section 13 provided for the subsidiary application of the Civil Proceedings Act. Section 69 contained a general provision that an enforcement proposal concerning moveable assets should be decided by a court with jurisdiction in the territory in which such assets are located. Sections 91 and 206 specified that an enforcement proposal concerning funds or the transfer of moveable assets should be decided, respectively, by a court with jurisdiction in the territory in which the debtor in question lives or in which such moveable assets are located. Section 137-a prescribed that enforcement proposals concerning shares and stakes in companies should be decided by a court with jurisdiction in the territory in which the company concerned is registered.

Section 15 of this Act stipulated that a court should regularly and of its own motion verify that a pending case was within its competency.

Article 53 of the Bilateral Agreement, which is binding on the respondent State, stipulates that the competent court for recognition and enforcement of a court judgment delivered by courts of a Contracting State shall be the court of the State in which the judgment is to be enforced.

Article 54 provides that a request for recognition or enforcement can be submitted to the directly competent court in the State in which the judgment is to be recognised or enforced, or to the court which decided the matter at the first instance which shall, in such a case, transmit that request to the other State. Any such request shall be accompanied by a certified copy of the enforcement decision, together with an attestation that the decision has become final and enforceable (unless this stems from the decision itself).

Under Article 55, the court of the State in which the enforcement should take place shall decide and proceed with the enforcement in line with its national legislation.


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

The applicant was born in 1974 and lives in Százhalombatta.

On 11 April 2009, quoting the relevant sections of the Code of Criminal Procedure, the Pest Central District Court ordered the applicant’s pre-trial detention on charges of terrorist acts and other related offences involving abuse of firearms and explosives on the grounds that he might abscond for fear of a severe punishment, might frustrate the on-going investigation by colluding with accomplices still at large, or might execute the planned offences or re-offend.

The detention measure was extended on 8 May and again on 7 August 2009. The court reiterated its earlier reasons, adding that the risk of collusion was serious, since certain other suspects had not yet been apprehended.

A further extension was ordered on 9 November 2009. The court stated that the applicant was being prosecuted for terrorist acts committed as an associate of an organised criminal group whose plans entailed a real risk of loss of life. It was of note that the group had existed for quite some time and had been committed to carrying out terrorist acts. Moreover, the volume of evidence supporting a reasonable suspicion, as weighed individually against the applicant, was increasing.

On 9 February 2010 the applicant’s detention was again extended, the court noting that, in view of the grounds for his detention, not even his clean criminal record, family ties and settled background could provide adequate justification for a less strict measure.

On 7 April 2010 the measure was renewed, with special reference to the fact that the case was concerned with a series of crimes committed over a long period of time by a criminal organisation.

On 9 June 2010 the Budapest Regional Court ordered that the applicant be held under house arrest, holding that the danger of his re-offending was not of a degree that justified his continued detention, noting also that the investigation was about to be wrapped up and that, in any case, some accomplices in the case had already been released pending trial.

The applicant was released from detention the next day. During the ensuing period he complied with the rules of house arrest.

On 7 July 2010 the Budapest Court of Appeal again ordered the applicant’s detention. It held that the charges of several very serious offences committed over a long time in an organised group were of such gravity that they could not be addressed merely by house arrest.

The measure was extended on 4 August 2010. In addition to the previously cited reasons, the court considered that there was no reason to assume that the applicant’s political motivation behind the incriminated acts had subsided, which meant that the risk of re-offending was real.

On 24 November 2010 the Budapest Court of Appeal ordered the applicant’s house arrest, observing that the applicant had abided by the previous house arrest (see paragraph 10 above) and holding that the risk of re-offending was slight.

On 20 September 2012 the applicant’s house arrest was replaced by a restraining order, which was eventually lifted on 6 July 2014.

On 22 April 2015 the applicant was again detained on remand for the purposes of prosecution for a new offence allegedly committed during the on-going proceedings. He was accused of having threatened and harassed a relative of one of the witnesses in the main case. For want of evidence, this new investigation was discontinued on 30 October 2015.

On 18 December 2015 the applicant was released from detention and put under house arrest, which lasted until 27 July 2016.

On 30 August 2016 the applicant and his accomplices were convicted. He was sentenced to 12 years in a strict-regime prison.

Both the defendants and the prosecution appealed. The outcome of the ensuing proceedings is unknown.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano

The applicant was born in 1975 and lives in Voluntari.

In March 2014 a large-scale criminal investigation was initiated against several persons for money laundering and fiscal fraud. On 3 December 2014 the investigation was extended in respect of thirty-two other persons, including the applicant.

Within the framework of the criminal investigation, on 4 December 2014 several police officers carried out a search at the applicant’s home. According to the search report, signed by the applicant and by her appointed lawyer without any objections, the search started at 6.15 a.m. and lasted until 2 p.m.

Immediately after the search and in accordance with the provisions of Articles 265-266 of the Romanian Criminal Code of Procedure (hereinafter RCCP, see paragraph 33 below), namely on the basis of an order to appear before the investigation body, the applicant was taken by police officers to the Bucharest police headquarters.

According to the record drawn up at the time, the enforcement of the order to appear was executed between 2.10 p.m. and 2.40 p.m., when the applicant arrived at the police station.

The order to appear had been issued by the prosecutor on 3 December 2014. It mentioned that

“In the interests of the investigation ongoing in the above-mentioned criminal file [number] concerning money laundering and fiscal fraud, the questioning of [the applicant’s name and identification data] in her capacity of suspect is necessary.

The criminal investigation bodies (...) will bring the suspect to the police headquarters on 4 December 2014 for the purpose of making a statement [before the investigating authorities].”

The documents on file show that between 8.40 a.m. on 4 December 2014 and 3 a.m. the next day, the investigating authorities, namely five prosecutors and six judicial police officers, conducted interviews in respect of fourteen witnesses and twenty-five suspects and/or defendants in connection with the criminal investigation involving the applicant.

According to the register kept by the police to record third parties entering the police station on a daily basis, the applicant’s appointed lawyer, Mr R.-M.S., entered the premises of the police headquarters at 4.10 p.m. The applicant contended that up until that time, her lawyer had been prevented from joining her because he had not submitted a written mandate proving that he lawfully represented her (see also paragraph 22 in fine, below).

It appears from the file that during her stay in the police station, the applicant’s phone conversations were tapped.

At an unspecified time before 7.32 p.m., a prosecutor informed the applicant that she was a suspect in an ongoing criminal investigation, and was to be charged with complicity in fiscal fraud; the applicant was also informed of the rights and obligations she had in that capacity. When invited to give a statement, she refused, claiming that she was unwell and needed medical assistance.

The minutes recording this interview do not mention the exact time of their drafting; they are signed by the applicant, who confirmed having received a copy. Her lawyer does not appear to have been present.

The Government contended that the applicant’s request for medical assistance had been part of her defence strategy, as proved, in their view, by the transcripts of a phone conversation she had had with a third party at 7.14 p.m., in which she was advised accordingly (see also paragraph 13 above). The same argument was backed, according to the Government, by the conclusions of the medical investigations, which attested to the fact that no urgent need for medical care had been identified in her case (see paragraph 16 below).

At 7.32 p.m. an ambulance was called to the police station. It arrived at 7.50 p.m. and provided medical care (mainly intravenous infusion with minerals) to the applicant until 8.31 p.m., when she was taken to the Emergency University Hospital. Accompanied by police officers, she arrived at the hospital at 8.40 p.m., and was diagnosed with lipothymia. She remained in the hospital until 00.10 a.m. the next day and several medical examinations were performed during this time, following which vitamins, calcium and analgesics were administered. The diagnosis when the applicant left the hospital, accompanied by police officers, was neurovegetative dystonia and light hypokalemia.

The applicant claimed that during the whole time she was in hospital she had been guarded by police officers, who had then escorted her back to the police headquarters.

At about 00.22 a.m. the applicant’s questioning started. In the presence of her chosen lawyer, the applicant refused to give a statement on the grounds that she was very tired, having spent the last four hours in hospital. She also referred to the fact that neither she nor her lawyer had been given the opportunity to familiarise themselves with the contents of the criminal case file in which she was a suspect.

Subsequently, at 01.10 a.m., the applicant was informed in the presence of her chosen lawyer that the prosecutor had decided to remand her in custody (reţinere) for twenty-four hours.

Her lawyer lodged a complaint with the prosecutor against the decision to remand her in custody, as well as another complaint concerning her being unlawfully deprived of her liberty as of 12.00 p.m. on 4 December 2014.

In the first complaint, it is claimed that the order to appear became effective on 4 December 2014 at 6.20 a.m., and that the applicant was de facto remanded in custody as of 2.20 p.m. It is argued that the applicant’s deprivation of liberty throughout that interval was unlawful and unjustified, aimed solely at obtaining statements from her under duress.

In the second complaint it is claimed that on 4 December 2014, as of 12.00 p.m. when the search of her home ended, the applicant’s liberty to move around was restricted, as proved by the fact that she had been accompanied by police officers not only to the police station but also to the hospital, where she had been taken under escort to obtain medical assistance. The applicant mentioned that her lawyer had not been allowed to accompany her or to assist her because he did not have a written mandate, even though the lack of such a document was objectively justified by the circumstances in which she had been taken to the police station.

The prosecutor dismissed both complaints on the same day, holding that the measure to remand the applicant in custody was lawful, necessary and proportional to the gravity of the charge. He stated that the order to appear became effective after the house search had been performed, the presence of the applicant during the search being necessary in relation to its conduct and thus outside the limits of such an order. The prosecutor further considered that the time interval during which the applicant was under medical surveillance could not be included within the eight-hour time-limit set out by Article 265 § 12, as that was an incident excluding the responsibility of the investigating authorities. The limitation of her lawyer’s access to the criminal file had been justified by the necessity to get to the truth and to obtain from the applicant a genuine statement, uninfluenced by those already given by the other suspects or witnesses.

On 5 December 2014, relying on testimonial, documentary and audio surveillance evidence, the prosecutor asked the Bucharest County Court to place the applicant in pre-trial detention (arest preventiv) for thirty days as her release posed a threat to public order.

By an interlocutory judgment delivered on 6 December 2014, the Bucharest County Court allowed the prosecutor’s request and ordered the applicant’s detention until 3 January 2015. An appeal lodged against this was dismissed by the Bucharest Court of Appeal on 15 December 2014. Her pre-trial detention was extended for another thirty days by a decision of the Bucharest County Court issued on 29 January 2015, upheld on appeal.

The applicant was released on 11 February 2015 after two months of pre-trial detention.

It appears that the proceedings on the merits are still pending.

The applicant claimed that for two months, she had been placed in a cell measuring 9 square metres, which she had shared with three other detainees. She also complained about the poor conditions of hygiene, lack of ventilation and natural light. According to the applicant, the toilet was not separated from the living area by any partition, thus offering no privacy.

The Government provided information about the applicant’s conditions of detention. They submitted that the applicant had been detained in a cell measuring 9.32 sq m, which she had occupied with two or three other detainees from 5 to 8 December 2014. From 9 December to the date of her release, the applicant had been placed in a room measuring 9.42 sq m, along with two or three others.

They stated that each cell had sanitary facilities such as a toilet and a shower, which were separated from the rest of the cell by a curtain. Both cells had access to natural and artificial light, as well as ventilation provided by a double-glazed window measuring 115cm x 77cm.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicant was born in 1956 and lives in Lublin.

The parties gave partly different descriptions of certain factual elements of the case concerning the “dangerous detainee” regime (see paragraphs 42-45 below). The remaining facts were not in dispute.

The applicant has a history of criminal convictions. For several years he was sought by the law-enforcement authorities pursuant to a “wanted” notice.

On 6 May 2005 an international search warrant was issued against the applicant on the reasonable suspicion that he had committed, as a member of an organised criminal group, several counts of robbery, extortion, uttering threats, causing bodily harm and placing an explosive with intent to damage property. Earlier, on 4 May 2005 the Lublin District Court had also ordered that the applicant be remanded in custody for a period of fourteen days.

On 24 November 2005 the applicant was arrested by the Italian police.

On 21 December 2006 the applicant was handed over to the Polish authorities.

On 28 December 2006 the Lublin District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed, as a member of an organised criminal group, several counts of robbery, extortion, uttering threats, causing bodily harm and placing an explosive with intent to damage property. It attached importance to the serious nature of those offences and the likelihood of a heavy prison sentence being imposed on the applicant. The court also considered that keeping the applicant in detention was necessary in order to secure the proper conduct of the proceedings, given the risk that he might abscond. With regard to the latter possibility, the court relied on the fact that he did not have a permanent place of residence in Poland and that he had already been hiding from the police. Finally, the court emphasised that the applicant was a member of an organised criminal group and that certain other members of that group were still at large, which increased the risk that the detainee, if released, might obstruct the proceedings.

The applicant’s appeal against the detention order, like his further appeals against decisions extending his detention and all of his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful.

On 19 March 2007 the Lublin District Prosecutor lodged a bill of indictment with the Lublin District Court. The applicant was charged with several counts of robbery, extortion, uttering threats, causing bodily harm and placing an explosive with intent to damage property. The bill of indictment comprised numerous charges against five defendants.

During the court proceedings the authorities further extended the applicant’s pre-trial detention on 14 September 2007 (to 20 December 2007) and 17 December 2007 (to 20 March 2008). The courts repeated the grounds previously given for the applicant’s continued detention. They also found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code.

On 7 March 2008 the Lublin District Court convicted the applicant as charged and sentenced him to nine years’ imprisonment and a fine.

The applicant appealed. He was kept in detention pending his appeal.

On 30 January 2009 the Lublin Regional Court (Sąd Okręgowy) heard the applicant’s appeal. It quashed the first-instance judgment and remitted the case. The court also extended the applicant’s pre-trial detention to 30 April 2009, repeating the grounds previously given.

On 27 February 2009 the case file regarding the applicant’s case was transmitted to the Lublin District Court for re-trial.

On 7 April 2009 the Lublin District Court requested the Prosecutor to complete the bill of indictment. However, on 25 June 2009 the Lublin Regional Court quashed that decision, remitted the case to the District Court and ordered it to proceed with the trial.

On 30 April 2009 the Lublin District Court further extended the applicant’s detention to 30 July 2009, repeating the grounds previously given.

On 9 July 2009 the Lublin District Court extended the applicant’s pre-trial detention to 30 October 2009. The applicant lodged an interlocutory appeal against this decision. On 23 July 2009 the Lublin Regional Court quashed the District Court’s decision, finding that it had been taken by a judge who should have been excluded ex lege from deciding in the applicant’s case.

On 24 July 2009 the Lublin District Court, in a different composition, again extended the applicant’s pre-trial detention to 30 October 2009. The court further extended the applicant’s detention on 27 October 2009 (to 30 January 2010), 22 January 2010 (to 30 April 2010), 21 April 2010 (to 31 July 2010), 16 July 2010 (to 31 October 2010), 28 October 2010 (to 31 January 2011), 12 January 2011 (to 30 April 2011) and 28 April 2011 (to 31 July 2011). On each occasion the court repeated the grounds previously given and found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code. In addition, the court observed that while it appeared from medical reports that the applicant was suffering from various health problems, treatment could be provided within the penitentiary facility.

In its decision of 19 November 2009 dismissing the applicant’s appeal against the decision of 27 October 2009 extending the applicant’s detention, the Lublin Regional Court addressed the applicant’s argument that his detention had exceeded the reasonable time requirement referred to in Article 5 § 3 of the Convention. The court cited the relevant provisions of the Convention and held that taking into consideration the complexity of the case and the fact that the applicant had been charged with numerous and various offences committed in cooperation with other persons the detention, although considerably long, had not exceeded the “reasonable time” within the meaning of the Convention. The court also considered that “detention was indispensable because, other, less severe preventive measures would not properly secure their aim”.

In the meantime, on 16 November 2009 the Lublin District Court examined the applicant’s request for release and dismissed it. The court relied on the same grounds as previously albeit it additionally observed that the applicant had no permanent place of residence in Poland that he had been previously convicted and once, when he had been granted home leave during his sentence, he went into hiding abroad. In Poland he used a fake passport. The court considered that in these circumstances and taking into account that the applicant still had an outstanding sentence to be served in Poland, there was a reasonable fear that he might abscond or go into hiding. The court concluded that other preventive measure, not involving deprivation of the applicant’s liberty, would not secure the proper conduct of the proceedings.

On 5 May 2011 the Lublin District Court convicted the applicant. The applicant appealed.

On 28 February 2012 the Lublin Regional Court again quashed the first-instance judgment and remitted the case.

Since 17 December 2010 the applicant has been serving a prison sentence imposed on him in another set of criminal proceedings.

On 4 May 2011 the applicant lodged a complaint with the Lublin Regional Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He claimed that the proceedings had commenced in 2005 and were still pending. He sought an acknowledgement that the proceedings had been lengthy and just-satisfaction in the amount of PLN 10,000.

On 26 May 2011 the Lublin Regional Court dismissed the applicant’s complaint. The court did not accept the applicant’s view that the proceedings had lasted since 2005. It examined only the course of the proceedings after 27 February 2009, stating that the applicant’s complaint could only refer to the current stage of the proceedings, i.e. after the Lublin Regional Court had remitted the case to the Lublin District Court and had duly transmitted the case file. As regards the period after 27 February 2009 it considered that the proceedings before the trial court had been conducted with the requisite speed, especially given the complexity of the case. In particular, the court observed that the hearings had been held frequently and at regular intervals and that only a few had been adjourned for reasons not imputable to the trial court. It further observed that at the request of the applicant, on 24 May 2010 four witnesses who had their permanent place of residence in Italy were summoned to be heard at the hearing on 9 July 2010. The four summons were returned with notes “addressee unknown”. On 9 July 2010 the applicant indicated a Polish address of one of these four witnesses. The court adjourned the hearing until 25 August 2010 and summoned the witnesses again. On 25 August the court heard one witness; the remaining three failed to appear. On the same day the applicant requested the court to hear another witness who had been deprived of his liberty in the United Kingdom. The court granted the request and decided that the witness in question be heard through the consular office. The court also observed that there had been objective difficulties in appointing expert witnesses of several specialities and that some of the expert reports obtained were incomplete and had to be returned for rectification.

On 3 January 2007 the Lublin Remand Centre Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee”. It considered that this was necessary in view of the fact that he was charged with numerous offences against human life and health. The commission also referred to the applicant’s serious lack of moral character and the fact that he was a recidivist. Finally, the commission emphasised that the applicant had already escaped twice from custody and had been hiding from the police for several years.

Every three months the commission reviewed, and upheld, its decision classifying the applicant as a “dangerous detainee”. The commission underlined that the initial grounds for imposing the special confinement measure were still valid.

The applicant appealed to the Lublin Regional Court against the decisions extending his status as a “dangerous detainee”. All his appeals were dismissed. In particular, the court gave decisions on 5 June 2008, 29 January and 10 June 2009. The authorities relied on the grounds set out in the initial decision. They laid particular emphasis on the risk posed by the seriousness of the offences and the fact that the applicant had already escaped previously from custody and had been in hiding for several years.

On 17 July 2009 the Head of Lublin Remand Centre ordered that the applicant be placed in solitary confinement for a period of 14 days as a disciplinary punishment, after he had refused to undergo a strip-search. The applicant asked the Head of Lublin Remand Centre to reconsider his decision. The penalty was implemented between 18 July and 1 August 2009.

On 24 August 2009 the Head of Lublin Remand Centre upheld his original decision, stating that it had been well-founded in view of the applicant’s refusal to strip and his aggressive behaviour towards the prison guards who were to perform a body search. The applicant appealed.

On 23 September 2009 the Lublin Regional Court dismissed the applicant’s appeal, arguing that the impugned decision had been lawful and as such could not be contested before the court.

On 17 December 2009 another disciplinary punishment was imposed on the applicant: he was refused permission to receive any food packages. The punishment was imposed on the applicant for allegedly aggressive behaviour prior to a full strip-search (kontrola osobista) on 13 December 2009.

As a “dangerous detainee”, the applicant was subjected to a full body search every time he entered or left his cell, which meant that he had to strip naked in front of three prison guards and was required to carry out deep knee-bends at least twice a day.

On several occasions the applicant complained about the full stripsearches. In particular, on 19 October 2010 he complained about a stripsearch of 13 October 2010. In reply, the Lublin Regional Inspectorate of Prison Service, after verifying the circumstances of this check, confirmed that it had been carried out in accordance with the relevant procedures.

The applicant’s visiting rights were also severely restricted. According to the list of visits submitted by the Government, which was not contested by the applicant, between 22 December 2006 and June 2012 the applicant received visits on 94 occasions. However, between 22 December 2006 and 10 December 2007 the applicant did not receive any visits. On 11 December 2007 he received a visit from his defence lawyer. From 14 April 2008 he was visited by his sisters, initially once a month and subsequently, after August 2008, twice a month. Furthermore, the applicant could leave his cell for one hour of outdoor exercise per day in a 16m² courtyard surrounded by walls.

Between 2007 and 2010 the applicant made many requests to the prison authorities, asking them to allow him to take part in training sessions, workshops, courses or other sports activities organised for the other inmates. All those requests were rejected.

On 25 November 2010 the dangerous detainee status was lifted. The prison authorities stressed that the applicant’s attitude had improved significantly and that he did not raise any security concerns.

In respect of the full strip-search, the applicant submitted that during periods when he had been detained in a cell with another inmate, the strip-search had been carried out in the cell, and consequently had occurred not only in the presence of at least three prison guards, but also in the presence of the other inmate.

The Government argued that the strip-searches had been performed in an adequately furnished separate room, which was monitored; the recording could be viewed in a duty room. Any recordings from the surveillance system had been automatically deleted after 7 days.

The applicant further maintained that whenever he was outside his cell, including during his appearances at court hearings and medical visits, he had been required to wear the so-called “joined shackles” (kajdany zespolone) on his hands and feet.

However, the Government argued that the applicant had been required to wear “joined shackles” only outside the Lublin Remand Centre and that inside the prison he had merely been handcuffed.

On 7 June 2009 the applicant asked the prison authorities to allow him to vote in the European Parliament elections, in the polling station set up for that purpose within the confines of the prison. After carrying out a basic body search with a metal detector, the prison guard took the applicant to a separate room and ordered him to strip naked. As the applicant refused to do so, requesting the guard to allow him to vote without undergoing a full strip-search, he was taken back to his cell without being allowed to vote.

On 8 June 2009 the applicant complained to the Lublin Regional Court that he had to undergo a strip-search and that consequently he had not been allowed to vote. His complaint was referred to the Head of the Lublin Remand Centre.

On 16 July 2009 the Head of the Lublin Remand Centre dismissed the applicant’s complaint. He stated that as a ‘dangerous detainee’ the applicant was subjected to a body search every time he entered or left his cell. Since the applicant had refused to undergo a full strip-search on 7 June 2009 while being taken to the prison polling station, the guards had to take him back to his cell. Later that day the applicant was again asked whether he wished to participate in the elections but he refused, stating that he would not strip naked.

On 16 July 2009 the Head of the Lublin Remand Centre confirmed that all detainees who wished to participate in the parliamentary elections on 21 October 2007 had voted.

On 21 December 2006 the applicant was sent to the Warsaw Remand Centre. From 3 January 2007 he was detained in the Lublin Remand Centre. He was subsequently detained in the Radom Remand Centre and then again in the Lublin Remand Centre.

The applicant suffers from hyperthyroidism, asthma, severe back pain, bilateral epididymal cysts and hypertension. During his detention in the Lublin Remand Centre he received pharmacological treatment. He also underwent a thyroid ultrasound (on 13 May 2008) and a testicular ultrasound. He also consulted specialist doctors.

On several occasions he complained about the delay in obtaining appointments with specialists. In reply, he was informed on 5 February 2009 that the waiting time for specialist consultations had been similar to that for the population in general.

The applicant submitted that throughout his detention he was held in conditions which fell below the basic levels of hygiene. He also alleged that his cell in Lublin Remand Centre had had no ventilation, had little natural light, poor artificial lighting and was badly furnished.

The applicant submitted three envelopes from correspondence received from his sister, bearing an illegible signature and the stamps “censored on 1 July 2010”, “censored on 12 July 2010” and “censored on 6 August 2010” respectively. In respect of the letter censored on 12 July 2010, an authorisation to receive a package containing copies of the court case files and the applicant’s medical records had been issued by the Head of the Penitentiary Department of Lublin Remand Centre and was attached to the envelope. A similar authorisation to receive a copy of the court case files had been issued in respect of the letter censored on 6 August 2010 and was also attached to the envelope.

On 6 September 2010 the Lublin District Prosecutor instituted criminal proceedings against the medical and nursing staff of the hospital ward of Lublin Remand Centre, for making false statements and forgery of the applicant’s signature.

On 29 April 2011 the Lublin District Prosecutor discontinued the proceedings.


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

The applicant was born in 1964 and lives in Budapest.

In a real estate dispute, on 19 May 2002 the applicant brought an action before the Tapolca District Court.

After two remittals, the District Court gave judgment on 9 June 2011, which was partly reversed by the Veszprém County Regional Court on 28 February 2012 (service: 14 March 2012). On 22 May 2012 the proceedings were finally terminated, by way of a rectification order.


CASE OF KOROTEYEV AND SITARSKIY v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard. They also raised other complaints under the provisions of the Convention.


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

The applicant was born in 1934 and lived in Moscow.

In June 1998 he deposited 5,187.40 United States dollars in a threemonth account with Russian Credit, a private bank.

In August 1998 the country suffered a financial crisis, the rouble fell, and the bank defaulted. In December 1998 the applicant accepted the bank’s offer to settle and close his account in return for the balance in depreciated roubles. By the time the money reached the applicant in March 1999, the rouble had depreciated further.

In October 1999 the bank went into external administration and its debt repayments were frozen pending a restructuring.

In May 2000 the bank and its creditors negotiated a group settlement of the pre-October 1999 debt and had it approved by the courts. The settlement discharged the bank from fines, penalties, default interest, and damages arising under legislation, contracts with clients, and court decisions.

In December 2001 the applicant sued the bank for the loss caused by the exchange-rate fluctuations between the day he had accepted the bank’s offer and the day the money had arrived. The bank objected to that claim on the ground that it had extinguished its obligations by repaying the deposit to the applicant. On 17 April 2002 the Golovinskiy District Court of Moscow awarded the applicant 77,603.50 Russian roubles (RUB).

In May 2003 the applicant filed a writ of execution with a bailiff.

On 17 June 2003, on the application of the bank, the District Court terminated the enforcement of its judgment in view of the group settlement. The District Court said:

Considering the nature of the legal relationship at issue, the court takes into account the fact that the enforcement proceedings have been instituted with the purpose of collecting from [Russian Credit] the liabilities that had come into existence before 18 October 1999 inclusive and, under the ... terms of the friendly settlement, are related to [the bank’s] restructured liabilities subject to novation on the terms of the friendly settlement approved by a [court decision] that had defined the procedure and terms of the extinction of the liabilities.

Pursuant to section 23 § 2 of the Federal Law on Enforcement Proceedings, the conclusion of a friendly settlement between a creditor and a debtor constitutes a ground for the termination of the enforcement proceedings, and therefore the [bank’s] application shall be granted and the [enforcement proceedings] shall be terminated.

In July 2003, in reply to the applicant’s query, the bank’s external administrator informed the applicant that his deposit had not been on the books and that under the terms of the group settlement his judgment debt could not be paid.

On 14 August 2003 the Moscow City Court upheld the District Court’s decision, finding that the applicant’s individual claim was to be settled with the group claim. The City Court said:

When terminating the [enforcement] proceedings the [District Court] has referred to the provisions of section 439 of the Code of Civil Procedure and reached the conclusion that the terms of the said friendly settlement regarding the restructuring of the credit obligations of [Russian Credit] extended also to [the applicant].

The [City Court] agrees with the said conclusion of the [District Court] as based on the provisions of the law and confirmed by the circumstances of the present case.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


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

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in Nigeria in 1975 and lives in Zölling.

In Nigeria, the applicant completed eleven years of schooling and subsequently held various jobs in Lagos. After leaving the country, he lived in Spain from 1994 to 1997, living at first on social security and later working as a day-labourer on several farms. In 1997 he arrived in Germany, where he applied for asylum under a different identity. His application was finally rejected in July 1998. He left Germany for Italy with a German national with whom he had started a relationship. In January 1999 he moved on to Spain, where he worked as a cook and waiter in various restaurants.

In October 2000 the applicant re-entered Germany. On 21 October 2000 his daughter, from his above-mentioned relationship, was born. The applicant’s daughter is a German national.

In 2000 and 2001 the applicant and the child’s mother lived together. From the outset they had, and continue to have, joint custody. On 11 December 2000, the Authority of the City of Munich issued the applicant a residence permit based on family ties, valid until 1 December 2001.

On 18 July 2001 the applicant was arrested on suspicion of having committed an offence under the Narcotics Act (Betäubungsmittelgesetz).

On 28 May 2002 the Munich Regional Court sentenced him to eight years’ imprisonment for drug trafficking on a large scale. It observed that the applicant had recruited and instructed the child’s mother as a drugs runner for two separate consignments of cocaine from South America to Europe in summer 1998 and in late 1999/early 2000. It considered, in favour of the applicant, that this was his first criminal conviction, that the first delivery had failed (the drugs did not actually enter the distribution system), and that the applicant had been detained on remand since July 2001. The Regional Court held against the applicant that he had used as drugs runners two young women who were adolescents at the time the offences were committed, and who ran the risk of a lengthy prison sentence in South America; that he had exploited the naivety of his daughter’s mother; that a large amount of cocaine was meant to be smuggled in the first case and that four kilograms of cocaine were smuggled into Europe in the second case; and that the entire undertaking had been handled very professionally. In addition, the Regional Court considered that a conviction for a third case of drug smuggling could not be envisaged for the sole reason that the precise amount of cocaine transported in a suitcase from Peru to Spain could not be determined.

The applicant submitted that his daughter and her mother had visited him in prison from 2001 to 2003 and that he had sought a court ruling on contact with his daughter, when the child’s mother discontinued the visits. On 4 July 2006, the applicant and the child’s mother agreed before the Munich Family Court that supervised meetings between him and his daughter would take place as soon as he was released from prison. As of 31 January 2008, the daughter visited the applicant regularly in prison – every four weeks for two hours at a time – in the company of a priest.

On 3 July 2009 the applicant was released, after having served his entire sentence. He was placed under supervision of conduct (Führungsaufsicht) until 3 July 2013.

After his release, the applicant was granted exceptional leave to remain (Duldung) under Section 60a of the Residence Act – according to the information available to the Court this was granted most recently in January 2017 and would last until July 2017. It meant that enforcement of the expulsion order was temporarily suspended, being impossible to execute as the applicant did not have a valid passport (see paragraphs 28, 29 and 3642 below). He began occupational re-training as a management assistant in marketing communication in April 2010, which he successfully completed in June 2012, but was not allowed to engage in gainful employment since his release.

The applicant has not lived with his daughter and her mother since his release. Since 2012 they have been living in different cities, with distances between their homes varying between thirty and seventy kilometres and the travelling time varying between forty minutes and one hour. The applicant sees his daughter on a regular basis and maintains close contact with her. It is not disputed between the parties that she spends every other weekend with him. According to a social worker’s statement, he has become an important contact person for her. Both the applicant’s daughter and her mother explicitly wish the applicant’s contact with his child to continue.

Since his release, the applicant was convicted of three offences by the Munich District Court, of fraud in 2011 and of theft in 2015 and 2016. He was sentenced to twenty, thirty and ninety day-fines, respectively. By being present on German territory without having a passport, he committed an ongoing offence under the Residence Act. Criminal proceedings in this connection were discontinued by the public prosecutor in November 2013 because the applicant’s guilt was considered to be of a minor nature and because prosecution was not in the public interest. The matter was referred to the administrative authority for treatment as an administrative offence.

On 21 March 2003 the Authority of the City of Munich refused to renew the applicant’s residence permit and ordered his expulsion. It held that the applicant’s expulsion was mandatory pursuant to Section 47 § 1 of the Aliens Act (Ausländergesetz; since 2004: Section 53 of the Residence Act) which foresaw the mandatory expulsion of an alien if he or she were sentenced to either at least three years’ imprisonment for a criminal offence, or to any period of imprisonment (not on probation) for an offence under the Narcotics Act. The authority examined whether the applicant enjoyed special protection against expulsion because he was the father of a German child. It found that the applicant had lived with his daughter only for a short time prior to his imprisonment, she had thus experienced separation from the applicant and that, in the light of the applicant’s very serious criminal offences, the State’s interest in removing the applicant prevailed over his interest in enjoying family life with his daughter. He could remain in contact with her by letter or telephone and could apply for permission to enter Germany for specific periods of time (Betretenserlaubnis). It considered that the applicant’s expulsion was in conformity with Article 8 § 2 of the Convention. This decision, which also contained an unlimited re-entry ban and notice that he would be deported to Nigeria if he did not leave Germany voluntarily within four weeks after being released from prison, became final on 26 August 2003.

On 15 November 2006, after the applicant had served more than two thirds of his prison sentence, the authorities envisaged his expulsion as of 1 November 2007.

On 3 December 2007 the applicant introduced another asylum application (see paragraph 6 above). On 8 February 2008, the Federal Office for Migration and Refugees dismissed his application as manifestly illfounded under Section 30 § 3 of the Asylum Procedure Act (see paragraph 33 below) and, finding that there were no impediments to his return to his country of origin, ordered his expulsion. The decision again contained notice that he would be deported to Nigeria if he did not leave Germany voluntarily within one week after the decision became final. On 6 March 2008, the Munich Administrative Court granted suspensive effect to the applicant’s appeal in the asylum procedure. On 8 September 2009 it dismissed his appeal in the main procedure, also finding, inter alia, that the applicant’s ties to his daughter could not be taken into account in the asylum procedure. This decision became final on 1 December 2009.

On 10 September 2009 the applicant applied for a residence permit based on family ties.

On 9 February 2010 the Authority of the City of Munich rejected his application, holding that there was a final expulsion decision (of 21 March 2003) against the applicant, which precluded granting him a residence permit. No impediments arose from the fact that his daughter was a German national. The applicant could maintain contact with her through letters, telephone calls and occasional visits. His daughter was accustomed to a long-distance relationship with him. He was responsible for the renewed separation and the purpose of the expulsion order had not yet been achieved. At the same time, it reduced the re-entry ban to five years and ruled that the applicant could, starting one year after his actual expulsion, apply for permission to enter Germany twice a year for a total of four weeks.

On 14 April 2010 the Munich Administrative Court quashed that decision and ordered the administrative authority to issue a residence permit. It noted that the applicant met the requirements for a residence permit based on family ties, but that granting such a permit was precluded by the final expulsion decision. However, the applicant was entitled to a residence permit on humanitarian grounds in accordance with Section 25 § 5 of the Residence Act, with the margin of appreciation inherent in this provision being reduced to zero. Section 11 § 1 of the Residence Act was not applicable to this provision and the applicant’s departure was impossible in law due to his family life with his daughter, which was protected, inter alia, by Article 8 of the Convention.

The Administrative Court found that, despite the serious nature of the criminal offences the applicant had committed, there was no public interest that outweighed the child’s best interests and the applicant’s interest in having contact with his daughter. The relationship between the applicant and his daughter had the quality of a “family” and their ties were of benefit to the child. It considered that they could only live together in Germany, as the child could not be expected to relocate to Nigeria; that the applicant had committed the criminal offences prior to the birth of his daughter; that he had made considerable efforts as a father, as was also evidenced by his choice to remain imprisoned in Germany and to have supervised meetings with his daughter as of January 2008 rather than having his sentence suspended and being expelled as of 1 November 2007; that the latter event marked a turning point, which occurred after the expulsion order had become final in 2003 and which had not been taken into account by the administrative authorities; that the child had already been deprived of a relationship with her father for many years during his imprisonment; that the material assessment with a view to the applicant’s expulsion had been conducted on 21 March 2003, years before the developments in the fatherdaughter relationship and the moment the expulsion order would be enforced; and that the enforcement of the expulsion order in connection with a re-entry ban would deprive the child of the possibility of a normal father-daughter relationship for the remainder of her childhood.

On 27 June 2011 the Bavarian Administrative Court of Appeal overturned that judgment and denied the applicant’s right to a residence permit. It considered that his asylum application had been rejected as manifestly ill-founded under Section 30 § 3 of the Asylum Procedure Act and that, therefore, in accordance with Section 10 § 3, second sentence, of the Residence Act, he could not be granted a residence permit prior to leaving Germany (see paragraph 33 below). The exception to this rule, foreseen in the third sentence of this paragraph, was not applicable because the applicant did not have a claim to a residence permit within the meaning of that provision (see paragraph 34 below).

First, a claim to a residence permit based on family ties under Sections 27 et seq. of the Residence Act was precluded by Section 11 of the Residence Act due to the final expulsion order of 21 March 2003 (see paragraph 35 below). Second, a claim to a residence permit on humanitarian grounds under Section 25 § 5 of the Residence Act was proscribed because the applicant did not have a valid passport, which was a general requirement for the granting of a residence permit (see paragraph 32 below). As the decision to waive this requirement in cases concerning residence permits on humanitarian grounds was a discretionary one, the applicant did not have a claim to a residence permit within the meaning of Section 10 § 3, third sentence, of the Residence Act, not even if the margin of appreciation were reduced to zero (see paragraph 34 below). Third, the court found that the applicant could not base a claim to a residence permit on impediments to his return to his country of origin either, referring to the outcome of the asylum proceedings in 2008 and 2009 (see paragraph 18 above). The Court of Appeal concluded that, under these circumstances, it was not decisive whether the ties between the applicant and his daughter were such that the requirements for a residence permit on humanitarian grounds under Section 25 § 5 of the Residence Act were met, if the applicant’s asylum application had not been dismissed, and refrained from elaborating on this aspect.

On 12 September 2011 the applicant lodged an action to be granted leave to appeal on points of law, arguing that his case raised a matter of fundamental importance. He submitted that he should be granted a residence permit under Section 25 § 5 of the Residence Act because, as the father of a minor child of German nationality for whom he had joint custody, he did, in principle, have a claim to a residence permit based on family ties. The purpose of Section 10 § 3 of the Residence Act was to sanction abuse of the asylum procedure, but an abusive asylum application should not bear negative consequences where the foreigner had a claim, within the meaning of that provision, to a residence permit. In that regard, it should be decisive whether or not the substantive requirements of the respective provision for a residence permit were met, as in his case with regard to the permit based on family ties, and that the reason for the claim not being realised, in his case the final expulsion order against him, should not be relevant.

On 16 February 2012 the Federal Administrative Court rejected the applicant’s action. It noted that, according to the case-law of the domestic courts, the exception foreseen in Section 10 § 3, third sentence, of the Residence Act only applied to claims that followed directly from legislative provisions and in respect of which all requirements, general and specific, were met. A residence permit based on family ties was precluded because of the final expulsion order against the applicant. Under these circumstances, granting a residence permit on humanitarian grounds was to be considered. However, as the applicant did not have a valid passport, which was a general requirement for the granting of a residence permit from which derogations were, in cases concerning Section 25 § 5 of the Residence Act, possible only by way of a discretionary decision, the exception foreseen in Section 10 § 3, third sentence, of the Residence Act was not applicable. The decision was served on the applicant on 22 February 2012.

On 22 March 2012 the applicant lodged a constitutional complaint with the Federal Constitutional Court, alleging that the decisions of the Administrative Court of Appeal and of the Federal Administrative Court violated his right to respect for his family life with his daughter. On 18 July 2012 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint without providing reasons (no. 2 BvR 657/12).

After the Authority of the City of Munich, on 12 June 2012, had ordered the applicant to present himself to the Embassy of Nigeria in Germany so that a passport for the upcoming expulsion could be issued, the applicant refused to do so and filed an action against this order with the Munich Administrative Court. During the court hearing on 1 August 2012, the applicant and the immigration authorities agreed to the following:

“- The effect of the re-entry ban will be limited to two and a half years after leaving Germany.

- The immigration authorities will give their consent for a visa to enter Germany based on family reunion. If the applicant by then still has joint custody with the child’s mother, a residence permit on the grounds of family ties will be issued. If the applicant no longer has joint custody for his daughter, the immigration authority will use its discretion regarding the issue of a residence permit in favour of the applicant.

- All of this applies only if the applicant can show that he has not committed further criminal offences and if no other reasons for his expulsion emerge.

- A timelimit for leaving the country is set at 1 November 2012.”

In the light of this agreement, the applicant withdrew his action, and the proceedings before the Munich Administrative Court were discontinued.

On 25 September 2012 the Embassy of Nigeria in Germany declared that it would not issue a passport to the applicant as long as the proceedings before this Court were pending. On 6 November 2012 the applicant informed the immigration authorities that he would not leave Germany, contrary to his initial plans and to his declaration before the Munich Administrative Court. As a result, the agreement concluded before that court became void.