George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Zdravka Kalaydjieva

The applicants are Bulgarian nationals. A list of their names and years of birth is set out in the appendix. All of the applicants lived in Dospat, except Mr Sergey Savkov Bozov, who lives in Negovan. The applicants were represented before the Court by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. Some of the initial applicants died or transferred their properties in the course of the proceedings before the Court and their heirs or successors expressed the wish to continue the application in their stead. They also authorised Mr Ekimdzhiev, Ms Boncheva and Ms Chernicherska to represent them.

The Bulgarian Government (“the Government”) were represented by their Agents, Ms N. Nikolova and Ms A. Panova, then by Ms M. Kotseva and Ms A. Panova, from the Ministry of Justice.

The application concerns twenty-two sets of domestic proceedings to which the applicants were parties, relating to the restitution of forestry land in the area of Dospat. The facts, as submitted by the parties, may be summarised as follows.

Following the enactment of the Forests Restitution Act in 1997 (see paragraph 24 below), the applicants (or, in some cases, their predecessors) applied for the restitution of forestry land in the area of Dospat.

The applicants claimed that the documents establishing their former titles had been destroyed, so they could not present them. The claims were therefore examined under the special procedure provided for under section 14 of the Forests Restitution Act (see paragraphs 25-26 below). For the region of Smolyan, the commission provided for in section 14 (“the regional commission”) was created in October 1999 by an order of the Minister of Agriculture. It was headed by a judge of the Smolyan Regional Court and included representatives of the municipalities in the region, the Smolyan Regional Governor’s office, the Smolyan Regional Forest Authority and the local forest authorities. The order specified that the regional commission was to be assisted by representatives of the local land commissions.

The regional commission carried out an inquiry to verify the restitution claims for the area of Dospat. The Dospat forest authority made submissions to it, pointing out that as there had never been privately owned forests in the area, there was no need for restitution. Nevertheless, on 30 August 2000 the regional commission adopted a decision recognising the rights of numerous persons, including the applicants, to different plots of forestry land.

The representative of the Smolyan Regional Forest Authority signed the decision, but joined a separate opinion whereby he too stated that there had been no privately owned forests in the area prior to the process of nationalisation. He considered that if, on the other hand, the land claimed had been agricultural before nationalisation, that fact had to be expressly established by showing that the forests on the land were less than fifty years of age.

On the basis of the regional commission’s decision of 30 August 2000, in a series of decisions dated 10 May 2001 the Dospat land commission restored the applicants’ property rights to the land at issue, and the applicants took possession and started using it shortly thereafter.

In July 2001 the Dospat forest authority complained to the Smolyan regional public prosecutor’s office about the restitution process in the Dospat region. The complaint concerned seventy-five beneficiaries of the restitution process, including the applicants, and 189.9 hectares of forestry land. Non-governmental organisations also complained to the prosecution authorities that the Dospat forests had been “plundered”.

The Smolyan regional public prosecutor’s office commissioned an expert report, which established that before nationalisation the land given to the applicants had been yaylak (a Turkish term designating a high-mountain pasture). Under the law of the Ottoman Empire to which the territory had belonged until 1912, the State remained the owner of all yaylak land and private individuals could only receive the right to use it. That situation was preserved in Bulgarian law after the area had been included in Bulgarian territory. There were no documents in the public archives indicating that there had ever been privately owned forests in the area. In particular, in the tax registers for the period between 1929 and 1934, there were no data indicating that private individuals had paid land tax; there were no documents for the expropriation of forestry land in the area after the enactment of the relevant legislation in 1947; and there was no indication that at the time of expropriation anyone in the area had received compensation, which in accordance with the law had to be in the form of State bonds. Lastly, the expert pointed out that there had been no cases of restitution of forests or forestry land in the Dospat region under section 13 of the Forests Restitution Act, namely with documents establishing rights to property prior to nationalisation (see paragraph 25 below).

In November 2003 the Smolyan regional public prosecutor’s office proposed that the administrative proceedings be re-opened and the decisions of the land commission of 10 May 2001 be quashed.

In a series of decisions dated 2 and 8 December 2003, in all but four of the present cases the Dospat Agriculture and Forestry Department (the former land commission) quashed the decisions of 10 May 2001. It considered that those decisions had been adopted “in material breach of the law”, because the documents submitted by the prosecution had shown that as there had never been privately owned forests and forestry land in the area of Dospat, the preconditions for restitution had not been met.

The applicants challenged those new decisions. In judicial proceedings which all ended between 1 February and 12 April 2005, the Smolyan Regional Court and the Supreme Administrative Court quashed the decisions. Giving largely identical reasoning, they found that the Agriculture and Forestry Department’s reasons for re-opening the proceedings had not been valid and quashed its earlier decisions because the relevant time-limits for doing so, as provided for by the general rules on administrative procedure, had expired. They did not discuss the merits of the applicants’ restitution claims.

In November 2005 the Dospat forest authority, acting on behalf of the State, brought rei vindicatio claims against the applicants, arguing that the State was the lawful owner of the restored land and that the restitution had been unlawful. Following requests by the forest authority, in many of the cases the courts issued interim injunctions against the applicants, barring them from transferring their titles.

The different sets of rei vindicatio proceedings ended between 22 January 2009 and 4 March 2010. In all of them, using largely identical reasoning and relying on the legislation as in force in the 1920s and 1930s and documents from different periods, the courts found that the land at issue had been yaylak, which meant that it could not have been privately owned at the time of nationalisation of forests in Bulgaria in the 1940s. Moreover, given the age of the forests – in some cases more than a hundred years – it could not be accepted that at the time of nationalisation the land at issue had been agricultural and that it had subsequently been afforested. In some of the cases the courts pointed out that the applicants had not even claimed that they or their predecessors had been owners, but merely relied on the land commission’s respective decisions of 10 March 2001. In some cases the courts noted in addition that the regional commission’s decision of 30 August 2000 had not been signed on the part of the Dospat forest authority by the member indicated in the order of the Minister of Agriculture, but by another person.

On the basis of the above findings the courts concluded that the land at issue had not been owned by the applicants’ predecessors and could not therefore have been taken from them in the 1940s; on the contrary, the land had always been State-owned. Accordingly, the restitution legislation had not given rise to any rights for the applicants. Furthermore, the courts considered that both the regional commission’s decision of 30 August 2000 and the Dospat land commission’s decisions of 10 March 2001 had been given in breach of the law.

In addition, the courts found that the State, as represented by the Dospat forest authority, was not bound by the land commission’s decisions on restitution. For instance, in its judgment of 27 November 2007 in the case of Mr Eduard Stefanov Danailov and Mr Aleksandar Stefanov Danailov, the Smolyan Regional Court held:

“The court, in examining a rei vindicatio action, must scrutinise independently whether the right to property has arisen on valid grounds and is not bound by the administrative decision relied on – the decision of the land commission – the validity of which is to be verified through indirect judicial review where the plaintiff has not participated in the administrative proceedings.

It cannot be accepted that the participation of a representative of the Dospat forest authority in the administrative proceedings which resulted in the adoption of the land commission’s decision is sufficient to render the conclusions of those proceedings binding on the Dospat forest authority.”

Similarly, in a judgment of 18 December 2009, in the case of Mr Velin Menkov Terziev, the Supreme Court of Cassation held:

“The claimant in the rei vindicatio proceedings has not participated in the administrative proceedings concerning restitution of property and is not bound by the land commission’s decision. It can therefore challenge that decision in civil proceedings concerning its property rights.”

After the entry into force of the new Code of Civil Procedure on 1 March 2008 Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov lodged an appeal on points of law, which was examined in accordance with the rules provided for in the new Code.

As required under Articles 287 and 288 of the Code, the appeal was served on the Dospat forest authority, which lodged written submissions in reply. The submissions were not communicated to the applicants. Having considered the case file on the papers, in a final decision of 26 February 2010 a three-member panel of the Supreme Court of Cassation refused to admit the appeal for examination. It held that the appeal did not meet the requirements of Article 280 § 1 of the Code.

On unspecified dates the prosecution authorities instituted criminal proceedings against some of the beneficiaries of restitution in the Dospat region for document forgery and fraud. In six of the cases under examination, which were not specified by the parties, the applicants were indicted. In two of those cases the courts convicted the applicants.

Specific information has been provided on the case of Mr Emil Velinov Mladenov, Ms Atidzhe Salihova Uzunova, Ms Nayle Salihova Letifova and Mr Mladen Velinov Mladenov. On 25 June 2004 Mr Emil Velinov Mladenov was convicted by the Devin District Court for having forged a request for restitution submitted on behalf of the remaining applicants. This was taken into account by the courts examining the rei vindicatio action against those applicants and served as grounds to allow the action and conclude that the applicants had not become the owners of the land claimed.

After the completion of the rei vindicatio proceedings the Dospat forest authority brought proceedings for unlawful enrichment against some of the applicants, seeking to recover the monetary equivalent of the timber produced from the respective plots of land between 2001 and 2005.

The Restitution of Title to Forests and Forestry Land Act (Закон за възстановяване на собствеността върху горите и земите от горския фонд, “the Forests Restitution Act”) was enacted in 1997. It set out the conditions for restitution of forestry land which had been expropriated in 1946 and the following years. Under section 11 of the Act, the bodies competent to take decisions on restitution were the respective land commissions, replaced in 2002 by Agriculture and Forestry Departments (after 2008 renamed Agriculture Departments). Those are State bodies, whose members are appointed by the Minister of Agriculture. Forest authorities are also State bodies.

Former owners of forestry land wishing to have their property rights restored had to support their claims by documents establishing their title before nationalisation (section 13 of the Forests Restitution Act). Where the relevant documents had been “lost or destroyed through no fault of their own”, such claimants might still apply for restitution and their requests were to be examined under a special procedure provided for in section 14 of the Act.

Section 14 provides for the creation of regional commissions, composed of representatives of the local judicial and administrative authorities, with the task of carrying out inquiries to verify restitution claims. Where, following an inquiry, the regional commission was satisfied that the claims in question were well founded, it would take a decision to restore the former owners’ property rights. Such a decision was binding on the respective land commission/Agriculture Department, which was obliged, within six months of its receipt, to issue a formal decision on restitution. The decisions taken by the land commissions/Agriculture Departments were not amenable to judicial review, and any disputes with third parties over property rights were to be determined in separate proceedings.

On 14 January 2013 the Plenary of the Civil Chambers of the Supreme Court of Cassation delivered interpretative decision no. 5/2013 (Т.д. № 5/2011 г., Върховен съд на Република България, Общо събрание на Гражданска колегия). It found, in the first place, that court judgments ordering restitution under the Forests Restitution Act had binding effect on the State and its bodies, which could not seek the re-examination of the matter in new judicial proceedings.

The Supreme Court of Cassation found, on the other hand, that it remained open for the State, through its bodies, to challenge administrative decisions of the land commissions/Agriculture Departments allowing restitution claims. In particular, it held:

“The restitution of ... forests is carried out through administrative means. ... The procedure unfolds between the administrative body and the person who has sought restitution, and that is why it is ex parte. No disputes concerning rights to property are examined in these proceedings, and the Agriculture Department decides on the request for restitution. ...

The State is not a party to the proceedings before the Agriculture Department. Pursuant to [the relevant provisions of the Code of Administrative Procedure], the parties to proceedings concerning the issuance of an individual administrative decision are the claimant and other interested parties who were summoned or have joined the procedure. The Agriculture Department is not a party to the administrative procedure, but the body before which the procedure unfolds. ...

Where the decision given in the restitution procedure affects rights in rem of the State, it is entitled to defend them under the general civil law, by bringing an action to establish the rights claimed by it. Where an action has been brought against it, it can seek to establish that it has the right to ownership of the disputed plot. For the State this is the only means of defence against an unlawful administrative decision.”

The rules under the Code of Civil Procedure, as in force since 1 March 2008, have been summarised in the Court’s decision in the case of Valchev and Others v. Bulgaria ((dec.), nos. 47450/11, 26659/12 and 53966/12, 21 January 2014).


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6+6-3-e - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-e - Free assistance of interpreter);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicants, Mr Ömer Yaman (first applicant), Mr Mustafa Ürek (second applicant), and Mr Kerem Bilen (third applicant) were born in 1956, 1967 and 1977 respectively.

On 20 June 1999 the applicants were arrested in the course of a military operation in Şırnak. They were subsequently interrogated by the gendarmes in the absence of a lawyer. In their statements, the applicants accepted the charges against them and gave a detailed account of their involvement in the PKK (the Workers’ Party of Kurdistan, an illegal organisation).

On 23 June 1999 the applicants were brought before the Diyarbakır Public Prosecutor and subsequently before the investigating judge. The first and second applicants were provided with an interpreter during their interrogation. Before the public prosecutor and the judge, the applicants denied the charges against them. They further stated that they had signed their gendarmerie statements without reading them. Following the questioning, the investigating judge remanded the applicants in custody.

On 2 July 1999 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with that court and accused the applicants of carrying out activities for the purpose of bringing about the secession of part of the national territory, under Article 125 of the Criminal Code.

The proceedings resumed before the Diyarbakır State Security Court and the first and second applicants were authorised to have the assistance of an interpreter. In their defence submissions before the trial court, the applicants retracted the statements they had allegedly made during the preliminary investigation stage. They submitted that the gendarmes had made them sign their statements without reading them.

On 7 May 2002 the Diyarbakır State Security Court found the applicants guilty as charged and convicted them under Article 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory. It further sentenced the applicants to life imprisonment. In convicting them, the court had regard to the applicants’ statements taken by the gendarmes.

On 25 March 2003 the Court of Cassation quashed the judgment of the first-instance court on the ground that during the trial certain witness statements, which had been taken on commission before other courts, had not been read out to the applicants for comment during the trial. The case was accordingly remitted to the Diyarbakır State Security Court.

In the meantime, State Security Courts were abolished by Law no. 5190 of 16 June 2004, and therefore, the case against the applicants was transferred to the Diyarbakır Assize Court.

On 7 March 2005 the Diyarbakır Assize Court complied with the decision of the Court of Cassation and witness statements that had been taken on commission were read out to the applicants for their comments. At the end of the trial, the Diyarbakır Assize Court found the applicants guilty as charged and sentenced them to life imprisonment.

On 17 June 2005 the Principal Public Prosecutor at the Court of Cassation decided that the case file should be remitted to the Diyarbakır Assize Court for examination of whether the new Criminal Code which had entered into force on 1 June 2005 (Law no. 5297) provided more favourable provisions for the applicants. The case was thus once again examined by the Diyarbakır Assize Court in view of the recent legislative changes.

On 25 October 2005 the Diyarbakır Assize Court once again convicted the applicants under Article 125 of the former Criminal Court, finding that this provision was more favourable to them than the corresponding provision of the new criminal code.

On 30 May 2006 the Court of Cassation quashed the judgment on procedural grounds, holding in particular that certain documents which had been relied on by the first-instance court in its judgment were not of an official nature.

On 24 April 2007 the Diyarbakır Assize Court, after obtaining official copies of all the documents in the case file, convicted the applicants under Article 125 of the former Criminal Code and sentenced them to life imprisonment.

On 11 December 2007 the Court of Cassation upheld the judgment of the first-instance court.


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

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in 1965.

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

On 11 December 2002 the Jēkabpils District Court (Jēkabpils rajona tiesa) found the applicant guilty of aggravated theft. The judgment of the District Court did not indicate that the applicant had a lawyer.

The applicant was given a prison sentence of two years. Having taken into account the applicant’s seven prior convictions the District Court imposed a final prison sentence of three years and six months.

On 24 January 2003 the Zemgale Regional Court (Zemgales apgabaltiesa) partially upheld the applicant’s appeal against the above-mentioned first-instance judgment. The judgment of the District Court indicated that the applicant’s lawyer, G.L., had participated.

The Regional Court reclassified the charge as theft of a small amount and reduced the prison sentence to six months, reducing the final prison sentence to three years and one month accordingly.

On 27 January 2003 the applicant lodged an appeal on points of law against the appeal judgment with the Criminal Cases Division of the Senate of the Supreme Court. On 14 February 2003 he supplemented his appeal.

The Government submitted, and the applicant did not argue otherwise, that in his appeal on points of law the applicant had not expressed a wish to participate in the cassation hearing.

At its preparatory session on 20 February 2003 the Senate of the Supreme Court decided to accept the appeal for review on points of law and scheduled the hearing for 11 March 2003.

On 21 February 2003 the Senate of the Supreme Court wrote to the applicant informing him that the cassation hearing had been scheduled for 11 March 2003. The notification was also addressed to the lawyer, G.L.

The letter also stated that the applicant had the right to participate in the cassation hearing. However, in the event of non-appearance by the parties the hearing could be held in their absence.

On 27 February 2003 the applicant made a request to participate in the cassation hearing “in order to provide the necessary explanations”.

As submitted by the Government, on 3 March 2003 the applicant’s request was received at the registry of the Senate of the Supreme Court.

On 4 March 2003 V.E., a judge of the Senate of the Supreme Court, wrote to the director of Daugavpils Prison, where the applicant was held at the time, in the following terms:

“Concerning [the applicant’s] request about the possibility of participating in the court hearing of 11 March, please inform [him] that it is impossible to ensure [his participation].

He made no such request in his appeal on points of law. His request to participate in the hearing of 11 March was received at the Supreme Court only on 3 March. [A]s escorts from the Daugavpils Prison to Riga depart only on 4 and 12 [March], it is no longer possible to organise his transport to the hearing of 11 March.”

On 11 March 2003 the hearing took place before the Senate of the Supreme Court.

The only party present was the public prosecutor. Neither the applicant nor his lawyer participated.

The decision of the Senate of the Supreme Court dated 11 March 2003 indicated, inter alia, that the Senate had heard the prosecutor’s opinion that the lower court’s judgment should be left unmodified.

The Senate of the Supreme Court upheld the appeal judgment and dismissed the applicant’s appeal on points of law. That decision was final.

On 11 February 2004 the Jēkabpils District Court, in view of the amendments to the Criminal Law (Krimināllikums), which were applicable retroactively, decided that the applicant should be released from prison as he had already served his sentence.


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

The applicant, Mr Ion Sgaibă, is a Romanian national who was born in 1942 and lives in Poiana, Turburea administrative district. His application was lodged on 31 January 2005. The applicant’s request for selfrepresentation was granted.

The Romanian Government (“the Government”) are represented by their Agent, Ms I. Cambrea, from the Ministry of Foreign Affairs.

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

On 15 April 2003 the applicant lodged a complaint against the Gorj County Pension Authority (the “Pension Authority”), complaining about the way in which his pension had been calculated with effect from December 2002. He stated that it had been calculated by multiplying the annual average point level (punctajul mediu anual) determined for each retired person by the pension point (punct de pensie) which had been set by governmental decision. He relied on the following two arguments: firstly that the average point level used for calculating his pension with effect from December 2002 had been progressively lowered since it had first been determined on 1 April 2001, and secondly that there had been errors in the calculation of his pension, meaning that the sums which had actually been paid in the periods from June to December 2001, March to December 2002 and March to May 2003 had been lower than the sums obtained by multiplying the two relevant figures together, even taking the value set by the Pension Authority. He also contended that the lowering of the annual average point level was discriminatory as it only affected people who had retired between 1 January 1999 and 31 March 2001.

In a first-instance judgment of 23 May 2003 the Gorj County Court (“the County Court”) dismissed his complaint, holding that even though the average point level had been lowered in January 2003, this had caused no difference in the actual pension paid between December 2002 and January 2003, and that his claims were therefore ill-founded.

The applicant lodged an appeal, arguing that his claims had not been properly examined. He claimed that the County Court had not considered his allegation that the lowering of the average point level had been discriminatory and had failed to address his allegation that the pension that he had actually been paid for some periods had not corresponded to the sums produced by multiplying the two relevant figures together, even taking the value set by the Pension Authority.

In a final decision of 19 November 2003 the Craiova Court of Appeal, sitting as a panel of three judges, namely E.C., D.U. and D.S., dismissed the applicant’s appeal as ill-founded. It held that the applicant’s pension had been calculated by reference to the pension to which he had been entitled on 31 December 2002 and deducting from it his compulsory contribution to the health insurance fund.

The applicant lodged an extraordinary appeal, contending that the appellate court had failed to examine all his arguments. In a final decision of 27 January 2004, the Craiova Court of Appeal, sitting as a panel of three judges including D.S. and D.U., allowed the extraordinary appeal. It held that one of the applicant’s arguments concerning the way in which his pension rights had been calculated had not been properly examined.

The Craiova Court of Appeal kept the case for a fresh determination of the ordinary appeal and set the date for the first hearing at 24 February 2004.

The re-examination of the ordinary appeal lasted from 24 February to 15 June 2004. The court held several hearings sitting as a panel of three judges, including D.S. and D.U. The applicant attended all the hearings.

In a final decision delivered on 15 June 2004 and served on the applicant on 28 August 2004, the appellate court dismissed the applicant’s appeal as ill-founded. It held that the applicant’s pension had been correctly calculated in accordance with the applicable law. It stated that the applicant’s pension rights had not been affected after the recalculation of the annual average point level. The appellate court also noted that the applicant had brought parallel proceedings for the calculation of his pension rights and the amount of his pension had therefore already been established by a final decision of the Gorj County Court delivered on 30 May 2003.

The applicant lodged another extraordinary appeal, arguing that two of the judges considering his appeal had lacked impartiality, as they had ruled on the case on a previous occasion, and that the new decision of 15 June 2004 had contradicted the final decision of 27 January 2004, which had found that there was in fact a discrepancy between the pension which was actually paid to him and the one that would have resulted from a proper calculation. He also complained that the appellate court had dismissed the financial expert report without addressing the contradictions between that report and the new pension decision.

In a final decision of 9 November 2004 the appellate court dismissed the extraordinary appeal, holding that all of the applicant’s grounds of appeal had been duly examined.

Article 24 of the Romanian Code on Civil Procedure (CCP), as in force at the material time, provided that a judge who had already ruled on a case could not sit on the panel deciding the same case in any new set of proceedings following the quashing of a previous decision.

Under Article 29 of the CCP, parties to civil proceedings are obliged to inform the court immediately of any facts disqualifying a judge from dealing with their case.

The rules concerning a change of trial venue were laid down in Articles 37 to 40 of the CCP.

Article 317 of the CCP provided that an extraordinary appeal on points of law against final decisions of a court of appeal in cases where the appeal had been decided by a disqualified judge, or the court’s composition had been incorrect, was available only if the parties could not have invoked these grounds in an ordinary appeal.


The applicant, Mr Raitis Āboliņš, is a Latvian national, who was born in 1977 and lives in Jēkabpils.

On 1 February 2006 the applicant was arrested in connection with criminal proceedings against him. On 16 May 2006 the applicant’s criminal case was transferred to the Vidzeme Regional Court (Vidzemes apgabaltiesa) for adjudication. On 3 May 2007 the Vidzeme Regional Court convicted the applicant of aggravated murder and sentenced him to fifteen years’ imprisonment, with subsequent two-year period of police supervision. On 22 February 2008 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) rejected the applicant’s appellate complaint. The Court has no information on whether an appeal on points of law was lodged against the decision of 22 February 2008.

The applicant submitted that following his detention he was placed in a short-term detention facility located within the police station in Madona. The applicant had spent most of the pre-trial detention in Valmiera Prison, but whenever he had had to be questioned he had been brought to the short-term detention facility in Madona for between ten and twenty days. Altogether he had spent approximately 100 days in that facility.

The applicant made the following submissions on the conditions in the short-term detention facility in Madona. The applicant had not been provided with a mattress, pillow, blanket or bed linen, and had had to sleep on wooden planks. The artificial light had been too weak to permit reading or writing, and in fact had only lit one third of the cell’s total area. The noise from the ventilation machinery had been so loud as to prevent him from sleeping. The toilet had been merely a hole in a platform. Furthermore, the said platform had been fifty centimetres high, which had caused the applicant particular difficulty because he had had a category 3 disability (the least severe disability level) on account of his ankle injury. Furthermore, the applicant had been given food only once a day and had not been allowed outdoor exercise.

Following his conviction, the applicant was placed in Daugavpils Prison. The applicant submitted that he had been placed in a cell hosting ten inmates and that he had had to sleep on the top bunk of a bunk bed, despite his disability. Moreover, there had been too little space between the top bunk and the ceiling. Furthermore, the applicant had had no access to radio or television. Finally, half of his cell mates had smoked and there had been no ventilation.

On 30 July 2008, on the basis of the applicant’s inquiries, the Ministry of Health informed the applicant that in prisons it was only permitted to smoke in premises specifically set aside for that purpose.

Section 7 of the Law on Holding Procedures for Arrested Persons (Aizturēto personu turēšanas kārtības likums), which came into force on 21 October 2005, provides, inter alia, that an arrested person must be provided with food three times a day and drinking water at any time. It lays down the requisite areas of holding cells. It also requires every arrested person to be provided with a separate sleeping place, a mattress and a blanket. It further states that holding cells must be equipped with a toilet that is partitioned off from the cell. Holding cells must also have access to natural light and, during the night-time and dusk, must have artificial lighting. They also must be ventilated. Furthermore, if the detained person is placed in the short-term detention facility for more than 24 hours, she or he is entitled to at least 30 minutes’ outdoor exercise. Section 1 of the same Law states that these provisions are also applicable to detainees and prisoners who have been taken to a short-term detention facility for reasons of procedural acts falling under criminal proceedings.

The requisite conditions of detention for detainees are primarily laid down in the Law on Detention Procedure (Apcietinājumā turēšanas kārtības likums), which came into force on 18 July 2006. Section 19 of this Law sets out the minimum areas of cells, which must be ventilated, and requires detainees to be provided with an individual sleeping place. Section 13(1)(10) allows detainees to use a radio and a small television. With regard to convicted persons, similar conditions are provided for in section 471 and section 77 of the Sentence Enforcement Code (Latvijas Sodu izpildes kodekss).

Section 11 of the Law on Restrictions regarding the Sale, Advertising and Use of Tobacco Products (Likums “Par tabakas izstrādājumu realizācijas, reklāmas un lietošanas ierobežošanu”), effective since 21 January 1997, sets out the restrictions on smoking. In particular, section 11(1)(2) prohibits smoking in detention facilities, apart from in premises specially set aside for that purpose. Section 11(1)(2) adds that the internal rules of the relevant establishment may provide for the possibility of smoking outside such premises, having due regard to the physical and mental health of the inmates.

Regulation no. 827 (2005) of the Cabinet of Ministers, effective since 5 November 2005, provides that the Head of the Prisons Administration decides on legal challenges brought by private individuals against “administrative acts” issued by or “actions of a public authority” taken by its subordinate officers, unless otherwise prescribed by law (paragraph 6 and 13). The decision of the Head of the Prisons Administration can be brought to court (para 13).

The Administrative Procedure Law (Administratīvā procesa likums), which came into force on 1 February 2004, provides for the right to challenge administrative acts and actions of public authorities before the administrative courts. The relevant provisions of the Law were summarised in the case of Melnītis v. Latvia (no. 30779/05, §§ 24-26, 28 February 2012).

Section 195 of the Administrative Procedure Law, at the time of the latter’s enactment, provided that the court could order an interim measure (pagaidu noregulējums) where there was reason to believe that the execution of the court’s judgment might become difficult or impossible. With the amendments to the Administrative Procedure Law which took effect on 1 December 2006, section 195 was modified, and currently states that the court may order an interim measure where there is reason to believe that if the impugned administrative act remained in force, it could cause significant harm or damage, the prevention or restitution of which could be made very difficult or would require disproportionate resources, and where, upon examination of the information available to the court, the impugned administrative act appears prima facie unlawful. Since the enactment of the Administrative Procedure Law, the available relevant interim measures have been either a court’s ruling that would replace the requested administrative act or action by a public authority, or a court decision ordering the relevant institution to perform or refrain from a certain action, within a set time limit (section 196).


CASE OF SINIŠTAJ AND OTHERS v. MONTENEGRO

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants were born in 1959, 1964, 1968, 1946, 1980, 1948, and 1958 respectively. The first, second, fourth and fifth applicants live in Podgorica (Montenegro), the third applicant lives in Windsor (Canada), the sixth applicant lives in Farmington Hills (USA) and the seventh applicant lives in Troy (USA).

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

In the early morning hours of 9 September 2006 a special anti-terrorist unit arrested seventeen persons, including the applicants, on suspicion of associating for the purpose of anti-constitutional activities (udruživanje radi protivustavne djelatnosti), preparing actions against the constitutional order and security of Montenegro (pripremanje djela protiv ustavnog uređenja i bezbjednosti Crne Gore) and illegal possession of weapons and explosives (nedozovoljeno držanje oružja i eksplozivnih materija).

The applicants maintain that as of the moment of their arrest and during the next few days, during police detention as well as when being taken to the investigating judge, they were ill-treated with the aim of extorting statements. In particular, they were beaten, deprived of food, verbally abused, including on the basis of their ethnic origin, and threatened by police officers.

On 11 and 12 September 2006, when interrogated by the investigating judge of the High Court, the applicants made statements to that effect. The investigating judge included these statements in the interrogation minutes, as well as the following: (a) the third applicant had a bandage on his head beneath which there was a visible cut (razderotina), as well as a haematoma (krvni podliv) on the upper part of his left cheekbone (jagodica); (b) the fourth applicant admitted that he did not have any injuries; (c) the fifth applicant had a haematoma on both shoulders, in the area above both elbows, a scratch on the outside part of his left ankle (skočni zglob), and a haematoma on the left ankle as well as on the outside part of the left thigh, the dimensions of which were 10x1.5 cm; the fifth applicant also maintained that he had a pain in his right ear; and (d) the seventh applicant had scratches on his left elbow and left knee, and a haematoma on the left part of his back above the hip, and complained that his ribs hurt and that he could barely move and breathe.

On 12 September 2006 a prison doctor examined the third and sixth applicants. He noted in a medical report that the third applicant had a 5 cm long scratch on top of his head, a dark blue haematoma on the left cheekbone measuring 4x0.3 cm, a dark blue haematoma stretching from his left nipple to his armpit measuring 25x3 cm and a large hematoma above the left elbow. The doctor noted that there were no visible injuries on the sixth applicant’s body.

On 14 September 2006 the first, second, fourth, fifth and seventh applicants filed a criminal complaint (podnijeli krivičnu prijavu) with the investigating judge against unknown police officers for extorting their statements (iznuđivanje iskaza), torture and ill-treatment in the period between 9 and 11 September 2006.

Between 27 and 29 September 2006 all the applicants save for the third one signed written statements to their lawyers describing the ill-treatment they had been subjected to.

On 13 October 2006 the above criminal complaint was amended so as to include the sixth applicant’s complaint to the same effect. The applicants also expressed their readiness to identify the officers who had ill-treated them. In addition, the first and second applicants complained against police officers who had taken them to the investigating judge on 11 September and 15 September 2006 for ill-treating, beating and insulting the two of them on those occasions.

It would appear that on 28 October 2006 the third applicant lodged a criminal complaint with the investigating judge against D.R. and several other unidentified police officers. No copy of this complaint has been provided.

On 17 November 2006 the Internal Control Division of the Police Directorate issued a report concerning the legality of police actions during the arrest and pre-trial proceedings. According to the report, a special internal control team was formed, which identified all the police officers involved in the action. A total of 136 interviews were conducted, both with the police officers and with family members of some of the arrested persons, apparently including the father of the first applicant as well as the owner of the house in which the seventh applicant had been arrested. None of the two latter mentioned any force being used against the first and seventh applicants. The police officers involved denied all unlawful actions. The Special Prosecutor for Prevention of Organised Crime stated that none of the arrested persons had been tortured to her knowledge. The investigating judge stated that they had complained about torture and that their statements to that effect had been noted in the interrogation minutes. Medical reports issued in prison stated that the first, second and sixth applicants had no visible injuries, the fifth applicant had “several scratches and suffusion” and the seventh applicant “redness the size of 1 euro” on his left shoulder. The report suggested that the injuries observed in respect of two other detainees arrested on the same occasion had been inflicted when these persons had confronted the police officers during the arrest, on which a special official record had been made. On the basis of such findings the Internal Control Division could not confirm that there were any grounds for establishing the involved officers’ responsibility. However, it was decided that all the relevant documents should be submitted to the State Prosecutor for further consideration.

On 15 June 2007, during the main hearing (glavni pretres), the fourth applicant stated that he had been beaten at the police station on his head and body, and his ribs had been broken.

On 30 October 2007 the first applicant submitted to the State Prosecutor (Osnovni državni tužilac) the name of M.L., a police officer who had been on the same shift as the officer who had allegedly ill-treated him on 9 September 2006 and who therefore presumably knew the name of that officer.

On 14 January 2008 the first and second applicants urged the State Prosecution Department (Osnovno državno tužilaštvo) in Podgorica to act upon their criminal complaint. The first applicant also submitted the number of the police badge of one of the officers who allegedly had boasted in front of another detainee of having personally beaten the first applicant.

On 30 May 2008 the third applicant submitted to the Supreme State Prosecutor the name of one of the officers who had been present during his questioning in the police station. At the same time he urged the Prosecutor to deal with his criminal complaint, to identify all the officers who had been involved in his arrest as well as to establish the treatment meted out to him during police detention.

On 16 June 2008 the second applicant urged the State Prosecution Department to deal with his complaints. He also submitted the names of some of the police and prison officers who had allegedly ill-treated the applicants on 9, 11 and 12 September 2006. He reiterated that there had been other officers and special unit members who had ill-treated them, who were still unidentified.

On 25 September 2008 a prison doctor examined the seventh applicant and noted in a medical report that he had reported pain in his spine going back ten years, which pain had become more acute over the last 12 months, that he was urinating more often, his blood pressure was 110/70, he could not walk on his toes, and that his lungs were fine. A part of the medical report was illegible due to bad handwriting.

The fourth applicant submitted to the Court a medical report issued by a private hospital in Podgorica on 9 June 2010. During this medical examination the fourth applicant stated, inter alia, that he had been beaten by the police in 2006, but that he had not consulted a doctor about that. The medical report stated, inter alia, that he had an old double fracture of the fourth rib, as well as an old fracture of the right clavicle (klavikula). The doctor had diagnosed high blood pressure and prescribed treatment for him.

On 10 November 2010 the fifth applicant was examined in a private ambulance, and the medical report issued on that occasion stated that he had a chronic post-traumatic stress disorder.

It would appear that none of the above criminal complaints or their further supplements has been processed by the authorities to date.

The applicants did not lodge a compensation claim with regard to the alleged ill-treatment.

On 5 August 2008 the High Court, in a chamber composed of three judges, found the first, second, third, sixth and seventh applicants guilty of associating for the purposes of anti-constitutional activities and preparing actions against the constitutional order and security of Montenegro. In particular, it was established that in the period between mid-2004 and 9 September 2006 the first and second applicants, with two other co-accused, had met with some members of the so-called Kosovo Liberation Army (“KLA”) in the wider area of Podgorica, Kosovo, Albania and the USA, and created an association the aim of which was to undermine the constitutional order and security of Montenegro and create within Montenegro a territory with special status, inhabited by persons of Albanian ethnicity, contrary to the Montenegrin constitutional order. Subsequently, the third, sixth and seventh applicants had become members of this organisation. The fourth and fifth applicants were found guilty of illegal possession of weapons and explosives.

The first applicant was sentenced to six years’ imprisonment, the second applicant to five years, the third, sixth and seventh applicants to three years each, the fourth applicant to three months and the fifth applicant to six months. By virtue of the same judgment a large variety of weapons, ammunition, and various other objects, such as military clothes, caps, gloves, binoculars, and flags with the KLA logo, were confiscated from the first and second applicants, as well as a diary belonging to the first applicant. A certain number of weapons and some explosives were confiscated from the fourth and fifth applicants. All the applicants, save for the third one, were ordered to pay court fees (po osnovu paušala).

The judgment was based on the following evidence: the statement made by the first applicant to the police, his diary and its translation done by the first applicant at the police station, written confirmation of the search of the first and second applicants’ flats and other premises, minutes of the searches, an official report on the weapons found, an official receipt on objects seized from the first and second applicants and relevant photo-documentation, terrain search, including in caves, weapons, ammunition and explosives found there and relevant photo-documentation, minutes of the searches of some of the other co-accuseds’ flats and other premises, statements of some of the other co-accused, evidence obtained through measures of secret surveillance, including transcripts of a number of telephone calls, reports on border crossings, the statements of three police officers who had conducted the searches, a statement of the first applicant’s police-appointed lawyer who was present during the first applicant’s interrogation at the police station, the opinion of expert witnesses and a search warrant issued by the High Court investigating judge on 8 September 2009.

The High Court did not take into account other evidence, such as, inter alia: the statements given by the second, third, fourth and fifth applicants at the police station, as these applicants had not been properly advised that they were entitled to use their own language and to have the assistance of an interpreter; and the minutes of the searches of several other co-accuseds’ flats, as the witnesses who had attended the searches were related to those whose flats had been searched (wife, son, sister-in-law).

The High Court considered that the first applicant’s rights had not been breached in the pre-trial proceedings (u pretkrivičnom postupku) and that the search of his flat and other premises had been conducted in accordance with the relevant provisions of the Criminal Procedure Code. In particular, the search warrant had been issued by the investigating judge on 8 September 2006 at 1.40 p.m., and the search had been conducted on 9 September between 6 and 8 a.m. While the search had not been attended by two witnesses, this was allowed by a relevant provision of the Criminal Procedure Code, which provided for a search without witnesses if it was impossible to secure the presence of any at once and there was a danger that the relevant action would be postponed (postoji opasnost od odlaganja). The reasons why the search had been conducted without witnesses had to be noted in the search minutes (moraju se naznačiti u zapisniku). One of the police officers who had conducted the search testified that it had been impossible to find two witnesses at the time as the search had been conducted early in the morning. According to him, this was not mentioned in the search minutes as the minutes had been made on the spot (zapisnik o pretresanju sačinjen na licu mjesta i zbog toga nijesu navedeni razlozi za pretresanje bez prisustva svjedoka). However, the search had been attended by the first applicant himself, who had duly signed the minutes and had no objections to them.

The High Court further established that the first applicant had been questioned at the police station on 9 September 2009 at 5 p.m. in the presence of a police-appointed lawyer with whom he had consulted before making a statement. The lawyer testified that the first applicant had been questioned in accordance with the law and that he had not noticed any injuries on him. The first applicant had confirmed during the questioning that he had been writing a diary, and that he could translate it as it was written in Albanian. The lawyer was present during the translation of the diary as well.

The sixth and seventh applicants were convicted on the basis of the first applicant’s statement made at the police station and the contents of his diary, the two being compatible. In particular, it was established, on the basis of these two pieces of evidence, that the seventh applicant had arrived from the USA in Albania on 30 March 2006, that he had been informed about the plans of the association and had attended a subsequent meeting. In this way, the court concluded, the seventh applicant had manifested his membership of the association and participation in its preparatory work. It was further found, on the basis of the same evidence, that on 1 September 2006 the sixth and seventh applicants had been informed that the war in the relevant part of Montenegro should begin on 10 September 2006, in which way the sixth applicant had manifested his membership of the association, as well as by accepting an invitation to go to the next meeting taking place in Skadar (Shkodër, Albania). On 4 September 2006 several persons, including the sixth and seventh applicants, had met in Skadar and had agreed on how to carry out the planned acts. In particular, the seventh applicant had expressed his support, said he had been to Kosovo himself to explore the realisation of the plan (radi izviđanja mogućnosti realizacije plana), and wondered if their plans would affect Kosovo’s independence. The meeting was concluded by another co-accused’s statement that the Kosovo army would enter Montenegro “around Saturday, that is on 9 September 2006, and [that] they want[ed] to do their job”. The High Court concluded that the first applicant’s defence during the pre-trial proceedings was in logical connection with the contents of his diary. This evidence was found to be further supported by a report on their border crossings, which data entirely coincided with the dates and times of border crossings mentioned in the first applicant’s diary and his statement made at the police station. Lastly, both the statement and the diary were further supported by an official police report of 30 November 2006, which confirmed the existence of all the objects and places described in the diary.

Finally, the first-instance court did not accept that the criminal offences contained in the indictment had been committed in an organised manner as the indictment did not claim that the motive was profit or power, this being one of the mandatory conditions for a criminal offence to fall within the notion of organised crime.

All the applicants appealed against the High Court judgment. The first, second, fifth, sixth and seventh applicants’ appeals, contained in the case-file, included a complaint about the torture and ill-treatment, and a lack of an investigation in that respect.

On 18 June 2009 the High Court judgment was upheld by the Court of Appeals. In particular, it was held that there had been no procedural violations in the first-instance proceedings and that the first-instance judgment was based on legally valid evidence, including the statement made by the first applicant at the police station, the minutes of the search conducted in his flat and other premises, as well as the evidence obtained by that search, including his diary.

The first applicant was considered to have been interrogated in accordance with all the procedural guarantees, as confirmed by his police- appointed lawyer, who had not noticed any injuries on him. The same lawyer had also been present when the first applicant had translated the diary, and had signed the interrogation minutes afterwards.

The search of the first applicant’s flat was held to have been conducted in accordance with the law and, therefore, all the evidence obtained thereby was legally valid, including the diary. In particular, the investigating judge had issued the search warrant the day before the search. The search had not been witnessed by two adults as it was impossible to find any witnesses in the early morning hours. No statement to this effect was included in the minutes as they had been drafted on the spot. This conclusion was based on the testimony of one of the officers who had conducted the search. As regards the diary, it contained a clear and convincing description of the criminal acts undertaken. The contents of the diary were further supported by the first applicant’s defence in the pre-trial proceedings, and were further compatible with the border crossing reports, the evidence obtained through measures of secret surveillance, transcripts of telephone conversations, and the weapons found on the terrain (in caves).

The first-instance court had established all the facts, in particular on the basis of the statement the first applicant had made in the pre-trial proceedings and his diary. The first applicant had admittedly changed his statement during the main hearing claiming, in substance, that what he had said during the pre-trial procedure had been extorted by torture. However, this was rebutted by a statement of his police-appointed lawyer, who had been present at the time when the statement had been made. The validity of this evidence was not called into question (nije dovedena u pitanje) by any other evidence, but was actually further supported thereby. Membership of an association could be manifested in various ways, and the sixth and seventh applicants, in particular, had manifested it by taking part in the meetings where the activities for achieving the association’s goal were discussed.

The Court of Appeals agreed that the criminal acts of which the accused were convicted had not been committed in an organised manner as the indictment did not allege that their motive was profit or power.

This decision was served on the applicants on 30 July 2009 at the earliest.

On 25 December 2009 the Supreme Court ruled on the first, second, third and fourth applicants’ appeal on points of law (zahtjev za ispitivanje zakonitosti pravosnažne presude). They challenged, inter alia, the conclusion that there had been no time to find two adults to witness the search of the first applicant’s flat and the composition of the first-instance court. The Supreme Court, in substance, endorsed the reasoning of the High Court and the Court of Appeals. In particular, the composition of the first-instance court was in accordance with the law, as Article 510 of the Criminal Procedure Code explicitly provided that a three-judge bench would try criminal acts of organised crime, and the trial of all the accused was based on an indictment of the Supreme State Prosecutor – Section for Suppression of Organised Crime, Corruption, Terrorism and War Crimes. The fifth, sixth and seventh applicants did not lodge an appeal on points of law.

Between 26 March and 24 May 2010 the first, second, third and fourth applicants lodged constitutional appeals with the Constitutional Court. The third and fourth applicants complained, inter alia, about torture, inhuman and degrading treatment. On 23 July 2014 the Constitutional Court dismissed the constitutional appeal considering, in particular, that the complaint about torture, inhuman and degrading treatment was unsubstantiated given that the applicants had failed to submit any evidence in that regard. The fifth, sixth and the seventh applicants would not appear to have lodged a constitutional appeal.

The sixth applicant submitted two medical reports, issued by a prison doctor on 10 December 2007 and 16 September 2008, respectively.

The report issued in December 2007 is largely illegible. The legible part states that the sixth applicant complained about pain in his right shoulder and problems in moving it (otežane pokrete). There was a diagnosis of naevus sebaceus, i.e. a mole on a sebaceous gland.

The copy of the medical report issued on 16 September 2008 is partly illegible. The legible parts state that the applicant had pain all over his body with frequent headaches and poor sleep. His blood pressure was 140/85, walking on toes and heels was nearly impossible, and it was recommended that an X-ray of the spine be done. Two medications were prescribed together “with the usual treatment he [was] taking”. He was diagnosed with “HTA, lumbago, and suspected kind of (illegible) discus”.

The Government submitted the entire medical file of the sixth applicant. While part of the medical reports is illegible, from the legible part transpires the following.

On 12 September 2006, when he was remanded in custody, the sixth applicant was examined by a prison doctor. On that occasion the sixth applicant claimed that he had been beaten and that he had high cholesterol. The doctor noted that there were no visible injuries on the sixth applicant’s body, and that he already had the treatment prescribed for high cholesterol.

Between 2 October 2006 and 24 December 2008 the applicant was examined 35 times in total: twice in 2006, 15 times in 2007 and 18 times in 2008.

During the examinations in 2006 the applicant complained about pain in his right shoulder and in general in his arms and joints. He was diagnosed with chronic rheumatism and sinusitis, and the necessary treatment was prescribed. Both times his blood pressure was optimal, and his heart, lungs and other organs were free of any illness.

In 2007 and 2008 the sixth applicant was examined by a number of specialists including a dermatologist, a psychiatrist, a physiatrist, and a specialist in internal medicine, who all prescribed the necessary treatments. He also had a number of tests done, such as laboratory blood analysis, five ultra-sounds of the kidneys and abdomen, ECG, and an X-ray of the upper part of the spine and three X-rays of the right shoulder, and his blood pressure was checked on various occasions.

The examinations showed that the sixth applicant had slightly increased triglycerides and high cholesterol and that he had been under treatment for high blood pressure and high cholesterol for five years already; he had an ongoing ossification in his right shoulder, which was stated to be usual for his age, as well as in his neck; he also had a cyst in the right kidney, and the mole on the sebaceous gland for which the treatment was surgery but not urgently required. The medical analysis of his liver, spleen, and left kidney were fine.

Between 11 and 15 September 2006, during the interrogation by the investigating judge, and in the presence of lawyers of their own choice, the first, second and fifth applicants confirmed that their mother tongue was Albanian, but that they spoke Serbian well and that they did not need an interpreter. It is also clear from the case file that the first applicant is a school teacher of the Serbian language in Montenegro. The other applicants were interrogated with the assistance of an interpreter. The first and second applicants confirmed that they had officially-appointed lawyers in the police station. While the first applicant had consulted his police-appointed lawyer before having made a statement, the second applicant would appear to have spoken with his after having made a statement. After having consulted the lawyers of their own choice at the interrogation before the investigating judge the first, second, third and seventh applicants said they would not answer any questions or present their defence.

On 14 May 2008 the State Prosecutor indicted five police officers for torturing and ill-treating the father of the first and second applicants on the occasion of their arrest. On 21 October 2010, after a remittal, the defendants were acquitted, which judgment was upheld by the High Court on 18 May 2011. On 14 February 2014 the Constitutional Court dismissed a constitutional appeal, which had been lodged against these decisions on 15 August 2011 by the first applicant on behalf of his father, who had passed away in the meantime.

In a statement made to his lawyer on 1 February 2008 the sixth applicant wrote that the medical report issued in 2007 contained a recommendation that he should have another dermatological check-up in two months, which check-up had not taken place, and that, contrary to what was in the report, he had not had any physiotherapy. He also maintained that he could not communicate with the doctor as the doctor could not speak English or Albanian. The sixth applicant claimed that his health situation was far from regular and referred to the shoulder pain, high blood pressure, high cholesterol, permanent headache, sleeplessness, dizziness and total exhaustion. He stated that “numerous appeals” made by him personally, his lawyer and US Embassy personnel, seeking a competent medical examination, had remained unanswered. No details with regard to these appeals have been provided in the case file. There is also no evidence that this statement of the sixth applicant has ever been submitted to anyone except his lawyer.

The sixth applicant also submitted a letter addressed to the President of the High Court, apparently written by a Consular Officer of the US Embassy in Montenegro on 1 February 2008. The letter stated that the sixth applicant, during regular visits of a representative of the US Embassy, consistently complained about his medical problems, in particular about the growth of a mole on his face and a shoulder pain. It further transpires from the letter that the sixth applicant had been visited by a dermatologist on 10 December 2007, but that it was impossible to take a sample of the mole as no appropriate equipment was available in the prison. The letter went on to say that the sixth applicant had been prescribed treatment for the shoulder pain, but that he had stopped taking it as it made him nauseous. The submitted copy of the letter bears no logo of the US Embassy, no signature of an authorised person, and no stamp indicating that it has ever been submitted to the High Court.


CASE OF SANDU v. THE REPUBLIC OF MOLDOVA

Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in 1958 and lives in Chișinău.

At the time of the events the applicant was the manager of a State-owned veterinary clinic.

According to the official version of events, on 25 September 2006 a person (C.) came to the applicant’s office at around 9.10 a.m. and expressed his wish to have his dog vaccinated and to obtain a document required for travelling abroad with that dog. The applicant then told him that the process could last two to three months, but could be sped up. In exchange for 1,000 Moldovan lei (MDL, approximately 63 euros (EUR) at the time), the applicant said that he would issue C. with the relevant document without seeing the dog, knowing that it had not been vaccinated.

Immediately after that, C. went to Rîşcani police station in Chişinău and asked for help in catching the applicant in the act of receiving the bribe. In his report to the police made at that time, C. noted that he had asked for vaccination documents for his six-month old dog called “Ghera”, which was a variety of terrier.

In response to C.’s report, a number of procedural acts were carried out that same morning:

(i) V., an officer at Rîşcani police station, issued an order to initiate a criminal investigation, which was countersigned by a prosecutor on the same day at 4.40 p.m.;

(ii) a prosecutor from the Rîşcani prosecutor’s office issued an order giving subject-matter jurisdiction over the investigation of the case to Rîşcani police station, while noting that jurisdiction to handle such cases normally lay with the Centre for Fighting Economic Crime and Corruption.;

(iii) the Prosecutor General’s Office issued an order giving territorial jurisdiction to Rîşcani police station;

(iv) V. issued a search warrant for the applicant’s office (countersigned by the Rîşcani District Court’s investigating judge on 26 September 2006);

(v) V. issued a second order to trace the source of the money paid as a bribe;

(vi) a third order was issued by V., pursuant to which the money to be given as a bribe was to be marked with a special substance; and

(vii) MDL 1,000 in five banknotes of MDL 200 each was marked by V. in the presence of C. and a specialist at 11 a.m. and a record of this was drawn up.

At approximately 11.30 a.m. on the same day C. entered the applicant’s office and told him that he only had MDL 400. The applicant took the money, stamped and made the relevant notes in the dog’s passport. At around 12.30 p.m. officers from Rîşcani police station entered the applicant’s office and discovered MDL 400 in his pocket. The money was subsequently confirmed as bearing the specific mark made earlier for the purpose of proving the act of bribe taking.

On 27 September 2006 the applicant was released against an undertaking not to leave the city.

In the record of an interrogation made on 29 November 2006, it is recorded that the applicant declared that there were individuals who, for a long time, had wanted to frame him due to his past conflicts with them. He also mentioned a criminal complaint concerning an assassination attempt that took place on 4 April 2004 which had not been examined and which meant, in the applicant’s opinion, that someone had a motive for making a false accusation against him.

On 8 December 2006 the Rîşcani District Court transferred the case to the Botanica District Court in Chişinău for examination, as the latter court had territorial jurisdiction over the matter.

On 27 March 2007 the applicant’s lawyer asked the court to exclude all the evidence obtained as a result of the procedural acts of 25 September 2006, on the basis that it had been obtained in violation of territorial and subject-matter jurisdiction. The court twice postponed the hearing in order for the prosecution to submit evidence in this respect.

On 3 April 2007 the prosecution submitted the Prosecutor General’s order of 25 September 2006 (see paragraph 9 above) giving territorial jurisdiction to Rîşcani police station. The order had not been included in the file before that date. The applicant’s lawyer objected to the inclusion of that document in the file, stating that its existence had never previously been mentioned and that he had serious reasons for considering that it was backdated. According to the prosecution, the order had been mistakenly annexed to another file and had been discovered shortly before submitting it to the court. According to the Government, the applicant’s lawyer did not raise an objection during the hearing of 3 April 2007, but only did so in his final submissions to the court at a hearing on 5 April 2007.

On 17 April 2007 the Botanica District Court found the applicant guilty of soliciting and accepting a bribe. The court referred to such evidence as C.’s initial police report and subsequent statements, those of the officers at Rîşcani police station, and to the findings of the search at the applicant’s office on 25 September 2006, during which MDL 400 had been found in his pocket. The applicant was ordered to pay a criminal fine of MDL 60,000 (approximately EUR 3,550) and was prohibited from working as a veterinary surgeon for two years.

In respect of the allegation made by the applicant and his lawyer that the entire event had been the result of police entrapment, the court found as follows:

“The submission that the charges of bribe taking brought against [the applicant] were based on police entrapment is unsubstantiated, because [C.] declared under oath both during the criminal investigation and before the court that [the applicant] had solicited money from him in order to speed up his dog’s vaccination. Moreover, upon his arrest the accused took the money out of his pocket, which proves his intentional actions and [shows that it was] not entrapment”.

The applicant appealed. He noted the various procedural shortcomings concerning the timing of the issuance of the orders on 25 September 2006 and claimed that the investigative actions had taken place before the initiation of the investigation itself. He further submitted that it was strange that C. had gone to Rîşcani police station and not to the police station situated in the Botanica district, which had territorial jurisdiction to deal with the alleged offence. Nor had he gone to the police station in the district where he lived. Furthermore, according to the documents in the file, the police had given money to C. for him to bribe the applicant with, yet of the MDL 1,000 given to C. only MDL 400 had been passed on to the applicant, the remainder having disappeared. The applicant submitted that C. had been “artificially involved in the operation of handing money to me, which constitutes incitement to bribe taking”.

The applicant further claimed that C. had never had a dog and had therefore had no need to have a dog vaccinated for travel abroad. He referred to the inconsistency between C.’s description of his dog (stating initially that it was a type of terrier, but later that it was a type of pitbull, while the pet passport submitted to the court was for an English cocker spaniel dog, which, in addition, belonged to another person, G.V.). Moreover, according to the documents submitted to the court the dog had been born on 18 November 2004 and thus could not have been six months old on 25 September 2006, as stated by C. Furthermore, C. had refused to say whom he had wanted to visit abroad, even though he had previously stated that he had intended to visit friends, taking his dog with him.

On 31 May 2007 the Chişinău Court of Appeal upheld the lower court’s judgment. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower court word for word.

The applicant appealed on points of law, essentially repeating his arguments made before the lower courts.

On 24 October 2007 the Supreme Court of Justice upheld the lower courts’ judgments. In respect of the applicant’s argument of entrapment, the court repeated the reasoning of the lower courts word for word.


CASE OF KIPS DOO AND DREKALOVIĆ v. MONTENEGRO

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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The first applicant was founded in 1990 and has its seat in Podgorica. The second applicant was born in 1952 and lives in Podgorica. The second applicant is the first applicant’s founder, executive director, and the owner of 99.2698 % of its shares. The remaining 0.7302% is owned by the second applicant’s wife and son.

On 3 August and 11 November 1998 respectively the first applicant concluded two contracts with the Development Land Social Fund (Društveni fond za građevinsko zemljište, poslovni prostor i puteve Podgorica). Under the first contract the first applicant obtained the right to use (pravo korišćenja) four plots of development land (građevinsko zemljište) with a total surface of 11,443 m2, on which it planned to build a shopping centre and an office building. The second contract concerned the communal charges for the necessary infrastructure on the land at issue (naknada za uređenje građevinskog zemljišta). On an unspecified date thereafter the four plots of land were joined into one, marked as no. 2090/1036. Pursuant to sections 419 and 420 of the Property Act 2009 (see paragraph 61 below) the first applicant became the owner of the land at issue on 9 December 2011.

On 15 April 2005 the Property Administration (Uprava za nekretnine) issued a decision by which it divided the cadastral plot of land no. 2090/1036 into two, one of which kept the number 2090/1036 and had 11,365 m2, and another one which was registered as no. 2090/1220 and which had 77 m2.

On 3 March 2016 the cadastral plot of land no. 2090/1036 was further split into two, the smaller part of 44 m2 becoming a cadastral plot of land no. 2090/1581. The bigger part kept the number 2090/1036 and measured 11,321 m2.

On an unspecified date in 2004 the first applicant’s plan for the shopping centre and the office building was registered in a Detailed Urbanistic Plan (Detaljni urbanistički plan, “DUP”).

In December 2004 the DUP for the relevant area was changed, one of the changes being that the cadastral plot of land no. 2090/1036 and an adjacent plot of land of 1,557 m2, owned by the Municipality, were joined into one urban plot (urbanistička parcela).

On 6 June 2005 the President of the Municipality decided to change the relevant DUP further, which decision entered into force on 7 July 2005. Construction in the area was prohibited thereby for the next 90 days except in case of those investors who had already obtained a building permit prior to this decision.

On 6 October 2005 another decision was issued, providing that the DUP would be changed within 90 days and construction was further prohibited until the adoption of a new DUP but up to one year at most. The ban did not apply to the investors who had already obtained a building permit. This decision entered into force on 14 October 2005.

On 20 January 2006 a new decision to change the DUP was issued, revoking the previous two decisions. As regards its contents it corresponded to the decision of 6 October 2005. It entered into force on 23 January 2006.

On 21 July 2006 a new DUP was issued; it entered into force on 29 July 2006. Thereby the adjacent plot of land that had previously been added to plot no. 2090/1036 was apparently split into three: two parts became parts of two newly-formed urban plots of land and the third part remained attached to the applicant’s land and would appear to be part of a traffic route (saobraćajnica). It would also appear that in this urban plot of land the DUP planned the construction of two buildings instead of the shopping centre planned by the first applicant.

On 28 July 2010 a new decision to change the DUP was issued.

On 16 May 2013 the DUP was changed again, apparently providing for the construction of buildings similar to those initially planned to be built there by the applicants.

Following the changes of the DUP in December 2004 (see paragraph 10 above), on 25 January 2005 the first applicant contacted the Property Secretariat (Direkcija za imovinu; “the Secretariat”) in the Podgorica Municipality. It sought to “complete” the urban plot, that is to buy the adjacent cadastral plot of land which had been added to its own land, thus forming one urban plot of land; having received no reply it renewed its request on 23 May 2005 and 2 August 2005.

On 27 January 2005 the Spatial Planning Secretariat of Podgorica Municipality issued Urban Technical Conditions, which stated that the cadastral plot of land no. 2090/1036 was smaller than the relevant urban plot and that it needed to be “completed” (potrebno je izvršiti njeno dokompletiranje).

On 23 February 2005 the Ministry of Environmental Protection and Spatial Planning (“the Ministry”) granted the first applicant a location for the construction of business premises on plot no. 2090/1036, in accordance with the 2004 DUP. The decision specified that the Urban Technical Conditions of 27 January 2005 were a constituent part of this decision.

On 15 August 2005 the first applicant appealed, having received no reply from the Secretariat. The same day the Secretariat informed the first applicant that no completion of plots could be done given that the revision of the DUP was ongoing at the time, which meant “urbanistic reconsideration of the area” at issue.

By 6 April 2017 there had been at least seven remittals, either by the Municipality’s Chief Administrator (as the competent second-instance body) or the Administrative Court.

In the course of these proceedings, on 2 September 2016 the Secretariat enquired at the Property Administration if the same urban plot of land, as it had existed at the time when the first applicant had first filed a request for completion, could be formed again. On 23 September 2016 the Property Administration replied that the size of the said plot of land had been changed in the meantime and that there was no basis for re-forming the urban plot as it once had been.

On 6 April 2017 the Secretariat dismissed the first applicant’s request again. On 19 May 2017 the Chief Administrator upheld this decision, considering that due to the changes of the planning documents the completion of the said plot of land could not be done and that therefore the first applicant’s request had been correctly dismissed. On 23 June 2017 the first applicant instituted an administrative dispute before the Administrative Court, which would appear to be still pending.

On 11 July 2005 the first applicant requested the Agency for Construction and Development of Podgorica (Agencija za izgradnju i razvoj Podgorice; “the Agency”), a legal successor of the Development Land Social Fund, to calculate the final communal charges for the urban plot no. 2090/1036.

On 20 July 2005 the Agency replied that the calculation could not be made due to the construction ban.

On 26 July and 6 September 2005 the first applicant urged the Agency to make the necessary calculation, submitting that the ban applied only to construction and not to the calculation of charges.

On 13 September 2005 the first applicant made its own assessment of the communal charges in the amount of 131,324.65 euros (EUR) and made the payment. The payment was returned the next day as it had been made “without cause” (uplaćen bez osnova).

In the course of the proceedings the applicant repeated its request to the Agency on several occasions, including between 5 and 14 October 2005, submitting that the construction ban as the basis for refusal was unlawful and/or the ban was not in force at the relevant time.

By 1 December 2005 the applicant’s request had been refused by the Agency at least four times on the grounds that construction was banned pursuant to either the decision to change the DUP of 6 June 2005 or the decision of 6 October 2005. The Agency also held that the calculation could not be done as the first applicant had no building permit.

On 1 December 2005 the second-instance body rejected the first applicant’s appeal on the grounds that this was not a matter for administrative proceedings. The first applicant initiated an administrative dispute before the Administrative Court in this regard but in view of the opinion of the second-instance body it withdrew that claim, and instead pursued the proceedings before the Commercial Court.

On 16 September 2005 the first applicant instituted proceedings before the Commercial Court (Privredni sud) in Podgorica against the Agency for refusing to calculate the communal charges.

On 7 April 2006 the Commercial Court ruled in favour of the first applicant and ordered the Agency to calculate the charges. The court considered in particular that the first decision to change the DUP, which prohibited construction, had entered into force on 7 July and expired on 5 October 2005, while the next decision had entered into force on 14 October 2005. Therefore, there had been no construction ban before 7 July 2005 or between 5 and 14 October 2005, when the first applicant requested the communal charges to be calculated and when the Agency was bound to calculate them. The court also noted that the Agency’s reasoning for refusing the first applicant’s request, notably that “the calculation [could] not be done as the first applicant had no building permit” was illogical, since the calculation of charges was a pre-condition for getting a building permit.

The Court of Appeals and the Supreme Court upheld the previous decision on 18 April and 29 December 2008 respectively. The Supreme Court held, inter alia, that the first applicant had been granted the location for construction by the competent Ministry before it was decided that the DUP would be changed and that a decision to change the DUP could not affect the investors who had already been granted a location.

On 6 August 2008 the Agency calculated the charges. It provided for a new contract to be concluded with the first applicant, which specified that pursuant to the 1998 contract the applicant had already paid a certain amount and that the remaining amount to be paid was EUR 269,309.83.

On 13 October 2008, upon the first applicant’s request, the Commercial Court issued an enforcement order, which provided that the Agency would calculate the charges within 30 days or it would face a penalty of EUR 550, and would have to calculate the charges within the following 15 days.

On 20 October 2008 the first applicant received the above calculation from the Agency. On 22 October 2008 it requested that the contract specify in accordance with which DUP the construction would be undertaken.

On 27 October 2008 the Agency replied that the first applicant’s request was outside the Agency’s competence and that the first applicant should address bodies in charge of urban planning in that respect. On 28 October 2008 the Agency notified the Commercial Court that it had complied with its judgment and the enforcement order.

On 10 November 2008 the first applicant informed the Commercial Court that it did not consider the relevant judgment enforced as it had “serious objections” to the documents submitted by the Agency due to which it had not signed them.

On 16 February 2009 the Agency informed the Commercial Court that the first applicant had no objections in respect of the calculation itself, and noted that no statute provided for an obligation or a possibility for the first applicant to sign the calculation.

On 8 July 2005 the first applicant requested a building permit for the shopping centre from the Ministry.

On 26 July 2005 the first applicant notified the Ministry that the Agency was refusing to calculate the charges and asked the Ministry to urge that the Agency do so. On 12 August 2005 the Ministry responded that it had no competence as regards matters relating to the calculation of the charges.

On 14 September 2005 the first applicant informed the Ministry that it had done the calculation itself and had made the payment (see paragraph 27 above).

On 23 September 2005 the Ministry dismissed the first applicant’s request on the grounds that it had not paid the communal charges or completed the urban plot pursuant to the Urban Technical Conditions.

On 18 November 2005 the first applicant instituted an administrative dispute before the Administrative Court. It submitted, inter alia, that the requirement to buy an adjacent plot of land had been introduced in addition and was unnecessary given that the shopping centre was planned entirely on the cadastral plot of land no. 2090/1036. It also maintained that the refusal to calculate the charges was groundless as the ban related to construction only and not to the calculation of the charges, and that it was a deliberate obstruction.

On 29 December 2005 the Administrative Court dismissed the first applicant’s claim on the grounds that there was no contract between the first applicant and the Agency concerning the communal charges, that the first applicant had failed to submit all the evidence required by the relevant statutory provision in order to obtain a building permit, and it had failed to obtain an adjacent plot of land as required by the Urban Technical Conditions. The court did not deal with the first applicant’s explicit submission that the said requirements were unlawful and/or unnecessary.

On an unspecified date thereafter the first applicant lodged a request for judicial review before the Supreme Court, maintaining that there was a contract between itself and the Agency concluded in 1998. It also submitted that the courts had blamed the first applicant for not paying the charges and completing the plot, even though it had done everything it could to comply with these requests, and had actually complained about the unlawfulness of the relevant State bodies’ refusal to cooperate in these matters.

On 2 March 2006 the Supreme Court upheld the previous decision, considering that the first applicant had indeed failed to submit proof that it had paid the communal charges and completed the urban plot as requested.

On 29 August 2014, following the change of the DUP in 2013, the first applicant requested a building permit for “central activities building” (za izgradnju objekta centralnih djelatnosti). On 27 July 2017, after five remittals, the proceedings were still pending.

Between 15 August 2005 and 20 September 2006 the first applicant filed three motions with the Constitutional Court for the assessment of the constitutionality and legality of the decisions to change the DUP issued on 6 June 2005, 20 January and 21 July 2006 respectively.

On 30 January 2006 the Constitutional Court discontinued the proceedings (obustavlja se postupak) upon the first motion as the impugned decision of 6 June 2005 was no longer in force.

On 6 December 2006 and 27 June 2007, respectively, the Constitutional Court rejected the other two motions.

The DUP in the area at issue was subject to changes in 1990, 1996, 1997, 1999 (the changes in 1999 were done pursuant to the first applicant’s request to that effect), 2002 (entered into force in 2003), 2004 (entered into force in 2005), 2006, 2010 and 2013. The purpose of the land also changed over time, from “sports and recreation” to “central activities” (centralne djelatnosti).

Between 8 February and 8 July 2005 the first applicant obtained a number of permits related to the planned construction of the shopping centre (electro-energetic, water supply, sanitation, geo-mechanic, urbanistic, as well as those related to fire safety, environmental protection, workplace safety, traffic, etc.).

Between January and August 2005 there were at least four other requests relating to the land in respect of which the DUP was changed (three of which were also for completion of relevant plots of land). In all four cases the claimants were informed that their requests could not be met in view of the changes which the DUP was undergoing.

On 14 August 2006 the Ministry sent a letter to the mayors of all Municipalities. The letter stated, in substance, that “certain local government units” interpreted section 33 of the Spatial Planning and Development Act (Zakon o planiranju i uređenju prostora) (see paragraph 69 below), which provided for a possibility of a construction ban where appropriate, in a way that was incompatible with its contents, essence and meaning. The Ministry further explained that a decision on ‘a construction ban’ related exclusively to a ban on issuing a decision granting a location, as a document on the basis of which a building permit was issued, and that in a case where the decision on location had been issued prior to the construction ban, the competent body had a duty to issue a building permit to an investor, provided that the conditions provided in section 34 of the Construction Act (Zakon o izgradnji objekata) were fulfilled, regardless of whether the construction ban in the relevant area was in force.

Between 1 August and 8 December 2006 the first applicant was granted a location and was issued urban planning conditions for the construction of a warehouse in another part of Podgorica. It also obtained other relevant consents (concerning water supply, electricity, fire protection, traffic, ecology, sanitation, etc.) and the Ministry’s urbanistic consent to technical documentation. On 28 December 2006 it concluded a contract with the Agency concerning the charges, and on 10 January 2007 it obtained a building permit for that location. By 17 December 2007 it had built the warehouse and obtained a permit to use it (upotrebna dozvola).

On 27 August 2015, following the first applicant’s proposal to that effect, a meeting was held between the representatives of the first applicant and the Agency. The Agency undertook to study the first applicant’s submissions in relation to the urban plot of land no. 2090/1036, including the one that it had not been allowed to honour all the obligations. It would appear, however, that the first applicant never received any response from the Agency.