Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo

The applicant, Ms Aurelia Wysowska, is a Polish national who was born in 1939 and lives in Cracow. She was represented before the Court by Mr R. Skowron, a lawyer practising in Cracow.

The Polish Government (“the Government”) were represented by their Agent, Mrs J.Chrzanowska of the Ministry of Foreign Affairs.

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

The applicant’s mother and father, W.S. and W.B. respectively, lived in Lwów (now Lviv’ in Ukraine) before the Second World War. They were not married as W.B already had a wife, a certain J.L. The applicant was born into her parents’ relationship on 28 September 1939.

W.B. was indicated as the applicant’s natural father (pater naturalis) in her baptism certificate of 20 July 1941.

W.B. died in Lwów on 28 September 1944. Following his death, the applicant’s mother married a certain M.S.

In 1949 the applicant’s last name was changed to that of her stepfather and in 1957 her birth certificate was again amended to include M.S.’s first name as the father’s name.

On an unknown date the applicant instituted proceedings aimed at amending further her birth certificate.

On 9 August 2007 the Cracow District Court allowed the change and put W.B. down as her father.

On 28 June 2005 the applicant instituted inheritance proceedings regarding W.B.’s estate before the Warsaw District Court. On 12 September 2005 the court found that the Cracow District Court had jurisdiction.

On 23 July 2008 the Cracow District Court dismissed the applicant’s claim. The court established that W.B. had died intestate on 28 September 1944 in Lwów. He had been married to J.L., however, they had separated. Instead, W.B had been in a relationship for ten years with the applicant’s mother. The applicant was W.B.’s only child, he had no siblings and his parents had died before him.

However, the court held that the applicant could not inherit her natural father’s estate as she had been born out of wedlock. It found that according to the Introductory Provisions of the Civil Code, the law applicable to the proceedings was the law in force at the time of W.B.’s death (see paragraph 29 below). W.B. had been a Polish citizen who had lived in Lwów. Lwów had been part of Poland until 16 April 1945 and the law in force in that province had been the Austrian Civil Code of 1811 (Algemeines bürgerliches Gesetzbuch – “the ABGB”). Under Article 754 of the ABGB illegitimate children could not inherit ab intestato from their father or father’s family. As the applicant was in that position, she could not inherit her father’s property.

The applicant appealed to the Cracow Regional Court.

On 3 February 2009 the Cracow Regional Court quashed the firstinstance decision and remitted the case. The court held that the District Court had failed to establish a list of all W.B.’s potential heirs. It further instructed the lower court to set out all the heirs, including the State Treasury.

In accordance with those instructions, the Cracow District Court summoned the State Treasury on 4 January 2011 to participate as a party to the proceedings.

On 23 February 2011 the State Treasury, represented by the Minister of the State Treasury, filed a submission that the relevant material law applicable to the proceedings was the Digest of Laws of the Russian Empire (Zwód Praw Cesarstwa Rosyjskiego).

On 8 March 2011 the Cracow District Court issued a decision and declared that the State Treasury had acquired W.B.’s estate. The District Court established that W.B. had died on 28 September 1944 in Lwów. He had been married to J.L but had separated from her. W.B. and the applicant’s mother W.S. had been in a relationship but they had never married. W.B. had no siblings and had not had any children with J.L. The applicant was his only child. He had not left a will and had no other heirs.

The court further maintained that according to the Introductory Provisions of the Civil Code the law applicable to the proceedings was the law in force at the time of a person’s death. In that regard it was first necessary to establish on which country’s territory the applicant’s father had been at the time of his death on 28 September 1944. The court held that between 1920 and 1944 Lwów had been part of Poland and the capital of Lwów Province (województwo lwowskie). On 22 July 1944 the Lwów uprising had begun, lasting until 27 July 1944. Lwów had then been occupied by the forces of the former Soviet Union. Following the Yalta Conference, the Provisional Government of National Unity (Tymczasowy Rząd Jedności Narodowej) had signed a border agreement with the government of the Soviet Union on 16 August 1945. In that treaty, Poland had formally ceded its pre-war eastern territory to the Soviet Union, agreeing to the Polish-Soviet border drawn according to the so-called Curzon Line. Consequently, Lwów had been part of Poland until 1945.

The court concluded that as Lwów had been within Polish borders at the time of W.B.’s death, the relevant law was the ABGB, the law in force in the province of Galicia. Under Article 754 of the ABGB illegitimate children could not inherit from a father who had died intestate. Consequently, the applicant could not inherit her father’s property and, as there were no other heirs, the State Treasury had acquired W.B.’s estate.

The applicant appealed, submitting that while she was aware of the provisions referred to by the District Court, she thought they were unfair and ran counter to the principles of community life (zasady współżycia społecznego) (see paragraph 31 below) and contemporary conditions.

On 20 January 2012 the Cracow Regional Court, in a briefly worded decision, dismissed the applicant’s appeal. The court referred to the reasons given by the District Court and held that there was no doubt that Article 754 of the ABGB had been applicable to the proceedings. It further considered that no matter how unfair the old regulations concerning illegitimate children might seem it was not possible to disregard them. That meant that under the Introductory Provisions of the Civil Code, the law applicable to the inheritance proceedings was the law in force when the father had died.

The applicant lodged a cassation appeal, relying in general on the case-law and provisions of the European Convention on Human Rights

On 21 November 2012 the Supreme Court refused to admit the applicant’s cassation appeal. It held that it was not justified to raise the issue of a significant legal question only by making a general reference to Convention case-law. A mere statement that the intertemporal rule – which meant that the law in force at the time of opening the succession was the relevant law – was incompatible with unspecified Convention provisions was not enough to qualify as a legal issue. The legal issue raised by the applicant had concerned in principle the interpretation of intertemporal provisions, however, she had not specified why Article LI of the Introductory Provisions (see paragraph 29 below) should not have been interpreted literally in her case. The court stated further that there were no grounds to rely on the provisions and values of the Convention as Poland had not been bound by it at the time of the opening of the succession.

On 29 December 2008 the applicant initiated proceedings under the Law on the Realisation of the Right to Compensation for Property left beyond the present Borders of the Polish State (Ustawa o realizacji prawa do rekompensaty z tytułu pozostawienia nieruchomości poza obecnymi granicami państwa polskiego) of 8 July 2005 (“the July 2005 Act”) in order to obtain compensation for property left by W.B. in Lwów.

On 21 March 2014 the Małopolski Governor (Wojewoda) refused to grant her request on the grounds that she was not W.B.’s heir.

On 25 April 2014 the Minister of the State Treasury quashed the first-instance decision on procedural grounds and remitted the case.

On 14 July 2014 the Małopolski Governor again refused the applicant’s request on the grounds that she had not inherited her father’s estate. The Governor referred to the Cracow District Court’s decision of 8 March 2011 (see paragraph 17 above). The Governor’s decision was upheld by the Minister of the State Treasury on 5 August 2014. The Minister noted that section 6(2) of the July 2005 Act provided that in the event of a former owner’s death an application for compensation should include a decision on acquiring the inheritance or on division of the inheritance. On 10 December 2014 the Warsaw Administrative Court dismissed a further appeal by the applicant.

On 3 November 2015 the Supreme Administrative Court dismissed a cassation appeal by the applicant. Referring to the decision given in the inheritance proceedings (see paragraph 17 above), the court held that the applicant had not inherited W.B.’s estate.

Article LI of the Introductory Provisions Act of 1964 (Ustawa przepisy wprowadząjace kodeks cywilny) (“the Introductory Provisions”), provides that the law applicable to inheritance proceedings is the one which was in force at the time of death.

In case of doubt as to the relevant law, Article LXIV provides that the Civil Code of 1964 should apply.

Article 5 of the Civil Code relates to the so-called “principles of community life” and reads as follows:

“Rights may not be exercised in a manner which contradicts their socioeconomic purpose (społeczno-gospodarcze przeznaczenie prawa) or the principles of community life (zasady współżycia społecznego). Such an act or omission on the part of a person so entitled shall not be considered as an exercise of that right and shall not be protected by law.”

The provisions relating to inheritance are laid out in Articles 922-1057 of the Civil Code.

Article 922, provides in so far as relevant:

“§ 1. The property rights and obligations of a deceased person pass, upon his death, to one or several persons in accordance with the provisions of this Book [Book Four, Inheritance]....”

Article 924 provides:

“The succession is opened on the date of the deceased’s death”.

Article 931 of the Civil Code provides, in so far as relevant:

“§ 1. The deceased’s children and spouse are by law admitted first to succession; they inherit in equal shares. ...”

After Poland regained its independence in 1918 different civil codes were in use in various regions. The ABGB was in force on former Austrian territory (Galicia). Its last applicable provisions were repealed on 1 January 1947.

Under Article 754, as applicable at the material time, illegitimate children could not inherit an intestate father’s estate.

Pursuant to Article 760, as in force at the material time, the estate was to pass to the State if no heir was found.

The Convention on the Legal Status of Children Born out of Wedlock, drawn up within the Council of Europe entered into force on 11 August 1978. It entered into force in respect of Poland on 22 September 1996. Article 9 provides in respect of succession rights as follows:

“A child born out of wedlock shall have the same right of succession in the estate of its father and its mother and of a member of its father’s or mother’s family, as if it had been born in wedlock.”

Article 28 of the Vienna Convention on the Law of Treaties of 23 May 1969 (“the Vienna Convention”) provides:

Non-retroactivity of treaties

“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”


Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, who is of Roma origin, was born in 1988 and lives in Gyöngyöspata, a village of 2,800 people, about 450 of whom are of Roma origin.

On 6 March 2011 the Movement for a Better Hungary (Jobbik Magyarországért Mozgalom), a right-wing political party, held a demonstration in Gyöngyöspata. Between 1 and 16 March 2011, in connection with the demonstration, the Civil Guard Association for a Better Future (Szebb Jövőért Polgárőr Egyesület) and two right-wing paramilitary groups (Betyársereg and Véderő) organised marches in the Roma neighbourhood of the village.

On 6, 9, and 10 March 2011, during the demonstration and the marches, there was a considerable police presence in Gyöngyöspata.

At around 11 a.m. on 10 March 2011 Mr J.F., the president of the local Roma minority self-governing body, informed the police that he and the mayor of the municipality had been threatened by people they did not know. The mayor reported on the same events to the police, explaining that earlier that day some fifty members of the Roma minority had confronted approximately fifteen members of the Civil Guard Association, who were joined by four or five unknown persons, one of whom had an axe and another a whip.

As it appears from the case file, at around the same time four men passed by the applicant’s house, yelling “Go inside, you damned dirty gypsies!” At this time the applicant was outside the house in her garden together with her daughter and some acquaintances. In response to the four men, the applicant and her acquaintances told them to leave, saying that it was their village. One of the men continued threatening them by yelling that he would build a house in the Roma neighbourhood “out of their blood”. He stepped towards the fence swinging an axe towards the applicant, but was held back by one of his companions.

At around 2 p.m. on the same day police officers K.K. and A.B. stopped and searched four individuals, Mr S.T., Mr F.W., Mr Cs.F., and Mr G.M. The mayor of Gyöngyöspata identified two of them, Mr S.T. and Mr F.W., as having participated in the incident that morning. The men were members of Betyársereg. Mr S.T. informed the police that he was the leader of one of the “clans” within the organisation. He said that because some members of his group, about 200 people, intended to come to Gyöngyöspata “to put the Roma situation in order”, he was there to “scout” the village. Later the same day, Mr S.T., who by then was extremely drunk, was again spotted by the police being dragged away from the Roma settlement by a female acquaintance. When questioned by the police, he said he only wanted to play football with the Roma children.

On 7 April 2011 the applicant lodged a criminal complaint against “unknown perpetrators” with the Heves County Regional Police Department, alleging offences of violence against a member of an ethnic group, harassment and attempted grievous bodily assault. The police opened an investigation on charges of violent harassment under section 176/A (2) of the Criminal Code.

In parallel, the Gyöngyös District Public Prosecutor’s Office opened an investigation on suspicion of harassment based on the report of a third person, Mr J.F., the president of the local Roma minority self-governing body.

On 12 April 2011 the applicant was heard as a witness concerning the events. She testified that three men and a woman had passed by her house and one of them, brandishing a whip, had threatened to build a house out of her blood.

At the request of her lawyer, the Gyöngyös Police Department informed the applicant that criminal proceedings had been instituted on charges of harassment on the basis of the criminal complaint lodged by Mr J.F. Subsequently, the applicant was informed that her complaint had been joined to that of Mr J.F.

On 14 July 2011 the Gyöngyös Police Department discontinued these proceedings on the grounds that harassment was punishable only if directed against a well-defined person, and that criminal liability could not be established on the basis of threats uttered “in general”.

The police also instituted minor offence proceedings on the ground that the impugned conduct was “antisocial”.

On 14 September 2011 a hearing was held in the ensuing minor offence proceedings in which Mr S.T. and five other persons, Mr C.S.F., Mr F.W., Mr G.M., Mrs A.B.I., and Mr I.N.I. appeared before the Gyöngyös District Court on charges of disorderly conduct.

All six persons subject to the proceedings denied having threatened any members of the Roma community.

Mr J.F., questioned as a witness, maintained that two of the persons subject to the proceedings had been wielding an axe and a whip and had threatened the inhabitants of the Roma settlement that they would kill them and paint the houses with their blood.

Mr L.T., the mayor of Gyöngyöspata, identified one of the persons as having been present in Gyöngyöspata on 10 March 2011, but could not confirm that the threats had been directed at the Roma.

Another witness, P.F., identified three of the persons as having participated in the incident and maintained that it was Mr I.N.I. who had threatened the inhabitants of the Roma settlement.

The applicant, who was also heard as a witness, identified Mr S.T. and Mr F.W. as having been armed and Mr S.T. as having said that he would “paint the houses with [the applicant’s] blood.”

On an unspecified date the applicant attached to the criminal file extracts from comments posted on a right-wing Internet portal in which Mr S.T. had been referred to as the man who had “enforced order among the Roma of Gyöngyöspata with a single whip”.

At a further court hearing on 5 October 2011 the applicant’s legal representative requested that the minor offence proceedings be stayed because criminal proceedings against unknown perpetrators were pending.

On 7 October 2011, following a complaint that procedural errors had been committed by the Heves County Regional Police Department in the investigation of Mr J.F.’s complaint, the Gyöngyös District Public Prosecutor’s Office informed the applicant that it had opened a separate investigation into the allegations of harassment on the basis of the applicant’s complaint.

On 20 October 2011, in the criminal proceedings on charges of harassment, the applicant’s lawyer requested the Gyöngyös District Prosecutor’s Office to open an investigation into “violence against a member of an ethnic group” under article 174/B (1) of the Criminal Code. He maintained that the motive of the threats uttered against the applicant was her Roma origin. His allegation was supported by the fact that at the material time various paramilitary groups were “inspecting” the Roma settlement with the aim of “hindering Gypsy criminality”.

On 3 November 2011 the prosecutor’s office refused the request, finding that the use of force, the objective element of the criminal offence of “violence against a member of a group” under article 174/B (1) of the Criminal Code as in force at the material time could not be established at that stage of the proceedings.

On 28 November 2011 the applicant reiterated her request, apparently without success.

The identities of the persons who had passed by the applicant’s house and that of the alleged perpetrator, Mr S.T., were established by the investigating authorities. Moreover, the Police Department questioned a number of witnesses, including the applicant’s acquaintances present during the incident, but only two of them provided statements relevant for the case. Mr S.T. refused to testify.

On 2 February 2012 the Gyöngyös Police Department discontinued the investigation into harassment on the grounds that none of the witnesses heard had substantiated the applicant’s allegation that she had been threatened. The Police Department noted that Mr S.T. had refused to testify and the witness testimony of Mrs I.B. had confirmed only that threats had been made, but not that they had been directed against a certain person.

The applicant challenged that decision, arguing that the witness testimonies had clearly stated that Mr S.T. had uttered degrading threats her. She also submitted that the investigating authorities had failed to hear Mr S.T. and two other individuals suspected of the offences.

On 21 March 2012 the Gyöngyös District Public Prosecutor’s Office upheld the first-instance decision. The Prosecutor’s Office found that it could not be established on the basis of the witness testimonies whether Mr S.T. had been armed and whether the threats and insults he had uttered had been directed at the applicant. Thus neither the criminal offence of harassment, nor “violence against a member of a group” could be established.

This decision was served on the applicant on 2 April 2012, informing the applicant of the possibility to pursue substitute private prosecution proceedings.

On 1 June 2012 the applicant, acting as substitute private prosecutor, lodged an application with the Gyöngyös District Court, which was declared admissible on 13 June 2012.

On 6 November 2012 the criminal proceedings were discontinued since the applicant had withdrawn the charges, in her submission, because of for fear of reprisals.


András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants, Mr Giuseppe Torno, Mr Ettore Giovanni Torno and Mr Alberto Torno, are Italian nationals. They were born in 1963, 1964 and 1966 respectively and live in Milan. They were represented before the Court by Mr Giorgio De Nova, Mr Daniele Maffeis and Mr Vittorio Pellegatta, lawyers practising in Milan.

On 10 February 1981 the Ministry of Cultural Heritage and Environment brought an action before the Milan District Court against the applicants’ father and his siblings, claiming that several archaeological relics – dating from Roman, Greek and Etruscan times and held in the defendants’ family house – fell within the definition of State-owned public property (patrimonio indisponibile dello Stato).

By a judgment delivered on 10 March 1986 the Milan District Court dismissed the action. The court considered that, as the principle of public ownership of items of archaeological heritage had been established for the first time by Law no. 364 of 20 June 1909, the claimant should have proved that the defendants’ possession was illegitimate, namely that the archaeological material in question came from excavations carried out after the above-mentioned law had entered into force.

The Ministry challenged the decision, contending that the application of the general principle “possideo quia possideo” in the realm of items of archaeological heritage (that is to say, the recognition that the defendants’ factual possession sufficed to prove their property right) amounted to a probatio diabolica [impossible proof] for the State, whereas for the defendants – who must have been aware of the origin of their property – the burden of adducing the proof of the lawfulness of their possession, namely that the goods in question came from excavations carried out prior to the enactment of the abovementioned law, was perfectly feasible. In any event the Ministry objected that it had produced such proof since the expert technical evidence examined at the trial had proved the unlawfulness of the applicants’ possession of two archaeological pieces and it was undisputed that the defendants’ father had assembled his collection between the 1930s and 1960s, well after Law no. 364 of 20 June 1909 had entered into force.

On 10 November 1992 the Milan Court of Appeal dismissed the Ministry’s appeal, except for the two above-mentioned pieces that had undisputedly been discovered after 1909 and were thus declared to constitute public property.

On 2 October 1995 the Court of Cassation quashed the decision and remitted the case to the Court of Appeal for retrial. The former found that the applicable legislation (Law no. 364 of 20 June 1909, Law no. 1089 of 1st June 1939, and Article 826 § 2 and Article 840 of the Civil Code) confirmed a principle that already existed in the judicial system, namely the assumption that, in general, items of archaeological heritage fell within the realm of public property. Hence – the defendants’ private property being the exception rather than the rule – pursuant to Article 2697 of the Civil Code it was up to them and not to the claimant ministry to prove their lawful possession of the goods in question, in particular their discovery and acquisition prior to the enactment of Law no. 364 of 20 June 1909. Such principle was followed in subsequent judgments on the matter (see Domestic Law and Practice below, paragraph 20).

On 18 April 1999 the applicants’ father passed away and the applicants declared their intention of continuing the proceedings as heirs.

On 20 December 2002 the Milan Court of Appeal declared that the relics were public property and ordered the defendants to hand the archaeological goods back to the claimant.

The applicants lodged an appeal on points of law against the aforementioned decision, which was dismissed by the Court of Cassation on 5 August 2008. The Court observed in particular that the interpretation of the rules governing the burden of proof in the applicants’ case was neither disproportionate nor unreasonable, especially in the light of public interest in the maintenance of artistic, historical and archaeological material. Moreover, contrary to the applicants’ assertion, the above-mentioned interpretation did not constitute de facto expropriation without compensation since it did not breach the right of access to a court or the right of defence in proceedings concerning the goods in question.

In response to a request from the Court, on 15 January 2014, the applicants stated that, notwithstanding a formal notice issued on 23 January 2009 followed by an inventory of the relics in question, the Court of Cassation judgment of 5 August 2008 had not yet been enforced.

This law regulates the status of items of historical, archaeological, paleontological or artistic interest, stating the general principle of their inalienability if they can be classified as public property.

It also sets out a number of restrictions on the free use of such items when they belong to private owners in order to ensure their preservation and avoid their exportation out of the country.

As a general principle, this law provides that items of archaeological heritage, whether discovered by mere chance or through excavation, do not belong to the owner of the land or to the finder but to the State.

This law reinforces the above-mentioned principle of the public ownership of archaeological material, imposes a series of restrictions on its free use, circulation and exportation, and declares all items of archaeological heritage discovered on Italian territory to be public property.

The appropriation of such items, and the failure to report the finding thereof, amount to criminal offences.

Moreover, any alienation or legal act executed in violation of the binding provisions of the above-mentioned law must be deemed null and void.

Under these provisions, any item of historical, archaeological, paleontological or artistic relevance found in the subsoil by anybody whatsoever and by any means whatsoever, constitutes “a non-disposable public asset” (patrimonio indisponibile dello Stato) and cannot be prevented from being designated as public property except in the cases prescribed by law.

These provisions – which make reference to the special laws concerning items of archaeological and artistic value – provide for exceptions, with specific regard to items of archaeological heritage, to the general principle of the extension of private ownership to any items discovered in the subsoil, and to the general rule governing rewards in the event of discovery of a treasure.

Under this provision the burden of proof concerning the existence of a civil law right falls on the claimant, whereas the person disputing such existence must prove the facts on which his or her objection is based.

Pursuant to this judgment, since private ownership of archaeological goods is the exception rather than the general rule, the burden of proving their lawful ownership falls on the defendant and not on the claimant ministry. In particular, the former must prove that the goods in question were discovered before Law no. 364 of 1909 entered into force (the same principle is expressed in the Court of Cassation’s judgment no. 2995 of 10 October 2006).


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

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1967 and before his conviction lived in the Volgograd Region.

On 28 March 2003 the Novoannenskiy District Court of Volgograd (“the District Court”) convicted the applicant of theft and robbery. The applicant was given a suspended sentence of four years’ imprisonment, conditional upon three years’ probation.

On 1 December 2003 the applicant was arrested on suspicion of robbery and manslaughter.

On 3 December 2003 the District Court held that the applicant should be detained on remand. The court held as follows:

“The applicant is charged with two crimes, one of which is a grave crime representing a high risk of public danger. [He] had previously been convicted of a grave crime, and had not completed his sentence. All these crimes were committed by [the applicant] in a state of alcoholic intoxication. [The applicant] has no family, does not work, and abuses alcohol. [He] has no means of subsistence, which may result in his committing other crimes.

and the [applicant’s] personality, the court has grounds to believe that if not detained [the applicant] may continue his criminal activity, and abscond from the investigation and the court ...”

On 27 December 2003 the pre-trial investigation was completed and charges were brought against the applicant under Articles 161 § 2 and 109 § 1 of the Criminal Code.

On 1 January 2004 the Novoannenskiy District Prosecutor (“the District Prosecutor”) approved the bill of indictment.

On 18 January 2004 the applicant applied to the District Court seeking to have the custodial measure replaced by an undertaking not to leave his place of residence.

On 2 February 2004 the District Court, having repeated the reasoning applied on 3 December 2003 and having noted the absence of any grounds for altering the preventive measure, dismissed the applicant’s request. On 6 April 2004 the Volgograd Regional Court (“the Regional Court”) upheld the decision of 2 February 2004 on appeal.

On 17 May 2004 the applicant’s criminal case was sent to the District Court for trial.

On 1 June 2004 the District Court scheduled the opening date of the trial and ordered that the preventive measure should remain unchanged.

On 15 June 2004 the District Court referred the case to the District Prosecutor in order to enable the applicant, his co-accused and the victims to study the case file. The court further held that the preventive measure in respect of the applicant should remain unchanged.

On 28 June 2004 the District Prosecutor resubmitted the case to the District Court for trial.

On 12 July 2004 the District Court scheduled the opening date of the trial and held that the preventive measure in respect of the applicant should remain unchanged.

On 23 July 2004 the applicant submitted a written waiver of his right to legal representation.

On 4 August 2004 the District Court convicted the applicant of robbery and manslaughter and, having taken into account the applicant’s previous sentence of 28 March 2003, sentenced him to four years and six months’ imprisonment. The applicant appealed.

On 18 January 2005 the Regional Court quashed the judgment of 4 August 2004 in so far as the charges of robbery were concerned, upheld the rest of the judgment on appeal and reduced the sentence to four years and one month’s imprisonment.

Later the applicant brought proceedings seeking to have his conviction of 4 August 2004 reviewed in the light of newly-discovered circumstances. However, on 25 December 2007 the Regional Court in the final instance dismissed his request.

On 11 July 2008 the District Court convicted the applicant of robbery and illegal possession of firearms and sentenced him to four years’ imprisonment, conditional upon four years’ probation.

The applicant appealed, but later withdrew his appeal. His subsequent attempt to have the judgment reviewed by way of supervisory review was unsuccessful.

Following a request from the applicant, on 27 November 2007 the District Court recognised the applicant’s right to inherit after his mother’s death.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1974 and lives in Oradea. He has been a lawyer since 1997.

On 11 December 2008 the National Anticorruption Department instituted criminal proceedings against the applicant and a police officer for traffic of influence (trafic de influenţă). The applicant was accused, as a lawyer, of having requested and received money from a client in return for persuading certain judges, other than in the context of the judicial proceedings, to adopt a favourable judgment in his client’s case.

On the same day the case prosecutor authorised several police officers to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name on the basis of Articles 183 and 184 of the Criminal Procedure Code. According to the warrant, the applicant’s presence was required in order to be heard as a suspect (învinuit) in the criminal investigation instituted in File no. 206/P/2008. No other reasons or conditions were stated on the authorisation or the warrant itself.

On 12 December 2008 at 8 a.m. a police officer went to the applicant’s office in the city of Oradea to enforce the warrant to appear. According to the police officer’s report, the applicant was shown the warrant to appear and was escorted to the police station in the nearby town of Salonta. At 9.40 a.m. the applicant was handed over to two other police officers who escorted him to the Timişoara office of the National Anticorruption Department (T.N.A.D.). According to the escorting police officers’ report, which was signed also by the applicant, he was handed over to the prosecutor at 11.40 a.m.

According to the record of the statements the applicant made before the prosecutor, he was heard as a suspect by the prosecutor at the T.N.A.D. from 12 noon to 4.50 p.m. After the questioning the applicant was charged with the crime of traffic of influence.

According to the applicant, his phone, wallet and watch had been confiscated by the police officers and were held during this entire time. Moreover, he had been constantly guarded by the police.

By an order issued on 12 December 2008 the applicant was placed in police custody for twenty-four hours commencing at 5.10 p.m.

On 13 December 2008 the prosecutor’s request for the placement of the applicant in pre-trial detention for thirty days was allowed by the Timişoara Court of Appeal. The applicant complained before the court that he had been unlawfully deprived of his liberty from 8 a.m. to 5.10 p.m. on the previous day. He requested that the above-mentioned period be deducted from his time in custody. The court considered that it was not competent to decide on this complaint and suggested that the applicant should have used the procedure provided by Article 1401 of the Criminal Procedure Code.

The applicant lodged an appeal on points of law (recurs) against that judgment, reiterating that he had been unlawfully deprived of his liberty. On 17 December 2008 the High Court of Cassation and Justice rejected the applicant’s appeal on points of law as ill-founded without addressing his complaint regarding the lawfulness of his detention prior to his placement in police custody.

On 12 March 2010 the applicant was found guilty with final effect and given a suspended sentence of four years’ imprisonment for traffic of influence.


KOČEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant, Mr Kiril Kočevski, is a Macedonian national, who was born in 1947 and lives in Skopje. He was represented before the Court by Mr Ž. Hadži-Zafirov, a lawyer practising in Skopje.

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

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

On 10 September 1996 bankruptcy proceedings were opened against a formerly socially-owned company (“S.”).

On 13 March 2000, while the bankruptcy proceedings were still pending, the applicant was appointed acting manager of S.

By a decision which became final on 26 September 2000 the Skopje Court of First Instance upheld a claim (утврдува пријавено побарување) against S. in favour of a certain Mr D.T. (a former employee of S.) in the amount of 55,270 Macedonian denars (MKD).

On 24 December 2001 the bankruptcy proceedings against S. were stayed and consent (согласност) was given for proceedings to be instituted for the restructuring of S. under the Transformation of Socially-Owned Companies Act (see paragraph 30 below).

According to a document (аналитичка картица) issued on 26 December 2005 by S., Mr D.T. owed S. MKD 9,067,814.

On 28 April 2006 an investigating judge questioned the applicant and opened an investigation against him and four other people suspected of abuse of office (злоупотреба на службената положба и овластување).

At a hearing held on 30 November 2006, the trial court dismissed an application lodged by 203 former employees of S. to be represented as victims (оштетени) at the trial. It is not evident from the case file whether Mr D.T. was among those employees.

On 6 February 2007 the applicant was remanded in custody. Subsequently, he submitted several requests to be released on bail which were to no avail. In those requests he made no reference to his state of health.

On 22 February 2007 the Skopje Prison (“the prison authorities”) requested that the Skopje Court of First Instance (“the trial court”) allow the applicant to be medically examined as his health had deteriorated. The request referred to a note of the same date in which the prison doctor diagnosed the applicant as suffering from sindroma psihoorganicum incipiens (presumably early-stage psycho-organic syndrome). On 23 February 2007 Judge V.M. granted that request. No information was submitted as to whether the applicant was examined or the results of the examination.

On 1 March 2007 the prison authorities requested that the trial court allow the applicant to undergo a psychological examination. They referred to a note dated 28 February 2007, in which the prison doctor had made the same diagnosis (see paragraph 12 above).

At a hearing held on 12 April 2007, the applicant, who was represented by two lawyers, lodged his own request for his psychological examination. The trial court dismissed both requests on the grounds that they were not sufficiently detailed. At that hearing the court examined two witnesses. Тhe applicant questioned one of them.

On 30 April 2007 a three-judge panel of the trial court presided by Judge V.M. convicted the applicant and sentenced him to six years’ imprisonment. The court found that in the period between 2000 and 2002 the applicant had ordered the four co-accused to acknowledge false claims made by another company, E. (also undergoing bankruptcy proceedings) against S. and to transfer those claims to a third company, B., which had been owned by the applicant. The false claims had later been transformed into 98% of S.’s capital, on the basis of which B. (subsequently renamed to company S.1) became S.’s main shareholder. The court found that a programme for the financial transformation of S. (“the programme”) had been prepared at the applicant’s request. On 19 November 2001 appendices to the programme had been prepared, but they had not been presented to the creditors in the bankruptcy proceedings or to the Privatisation Agency. The court concluded that the competent institutions had taken a positive stance (позитивно се произнеле) concerning S.’s transformation, but that they had been unaware of the circumstances concerning the acknowledgment of the debt towards E. and concerning the transformation of the debt into a share in S. The judgment further stated that, as a result of the alleged debt, S. had been brought to insolvency (негативна состојба) and that without that debt, the deficit of S. would have been significantly smaller and could have been consolidated by selling some of S.’s immovable property.

On 10 May 2007 S. complained to the State Judicial Council that Judge V.M. had been biased, since Mr D.T. was the unmarried partner of Judge V.M. and a former employee of S. He had rented business premises from S. for which he owed S. approximately MKD 4,000,000 in unpaid rent. He allegedly owed S. a further MKD 271,220. A claim against S. had been established by a court decision (see paragraph 6 above).

The weekly newspaper Fokus (according to the applicant, in its edition of 11 May 2007) published an article about the criminal proceedings against the applicant. The article stated that Mr D.T. had both a claim against and a debt (which he had never paid) to S. and that he was Judge V.M.’s unmarried partner. It included a statement by the applicant’s brother according to which the applicant and his family had learnt about those facts the day the trial court’s judgment had been pronounced.

The applicant’s three representatives lodged three separate appeals against the judgment of 30 April 2007. A fourth appeal was lodged by the applicant’s son. In the appeals it was argued, inter alia, that the trial court had not been impartial given that Mr D.T., the unmarried partner of Judge V.M., owed S. money and had a claim against it. On 11 May 2007 details concerning Mr D.T.’s alleged financial relations with S. had been published in a weekly newspaper. It was further argued that the trial court had failed to obtain an expert opinion about the applicant’s poor state of health, which had affected his ability to follow the trial.

On 21 June 2007 a psychiatrist (V.V.) examined the applicant in the detention department of Skopje hospital. According to a handwritten note issued by V.V. on 25 June 2007, it was necessary to transfer the applicant to a psychiatric hospital. In view of his psychological state, he could not attend the trial, nor could his statements be considered valid until a definitive diagnosis was established.

The applicant stayed in the psychiatric hospital from 26 June to 22 October 2007.

On 5 July 2007 a psychologist drew up a report on the applicant’s psychological state, at his own request. The report stated, inter alia, that the applicant’s thinking process was slow and that he was unable to respond to complex tasks requiring an increased level of abstraction and generalisation. A memory deficit was noted. The report concluded as follows:

“The results of the psychological examination confirm affective and thought distortions of a depressive and paranoid character, as well as psycho-organic syndrome (психоорганицитет), which are deeply disrupting the mental state of the examinee resulting in profound psychological deviation. The examinee lacks insight and criticality for the condition in which he has been placed following the indictment”.

On 7 November 2007 the Skopje Court of Appeal (“the appellate court”) held a public session, which the applicant and his three representatives attended. The applicant notified the second-instance court of the deterioration in his health. The applicant’s lawyers argued that the applicant’s defence rights had been infringed at the hearing of 12 April 2007 because witnesses had been heard despite the fact that the applicant had requested a psychological examination in order to assess his capacity to follow the trial. They did not submit copies of the note of 25 June 2007 or of the report of 5 July 2007. The lawyers also repeated the arguments as to the alleged impartiality of Judge V.M. given that her partner had both a debt to and a claim against S.

On the same day, the appellate court dismissed the applicant’s appeal and upheld the first-instance judgment. The relevant parts of the judgment read as follows:

“The court assessed the complaint concerning an [alleged] substantial violation of procedural law of section 381(1)(2) of [the Criminal Proceedings Act] ... that the unmarried partner of [Judge V.M.] had a direct interest in the outcome of these criminal proceedings ... but dismissed the complaint as groundless.

Namely, under the provision of section 381(1)(2) of [the Criminal Proceedings Act], there is an absolute substantial violation of procedural law only if a judge or a lay judge who needed to be excluded (section 36(1)(5)) participated at the trial. It is obvious from the complaints in this respect that they are based on an alleged existence of a reason for exclusion under section 36(2) of the Act, that is to say outside the reasons for mandatory exclusion under the provision of section 36(1)(5) of the Act ...

Subsequently, the court assessed the complaint concerning an [alleged] substantial violation of procedural law of section 381(2) in conjunction with section 36(1)(2) of [the Criminal Proceedings Act] with the same content, but did not accept it as grounded, because on the basis of the established facts of the case it cannot be found that there existed a direct link between the pecuniary interests of the unmarried partner of [Judge V.M.] and the object of these criminal proceedings, which would be of such a nature as to put into doubt the impartiality of the Judge in the performing of her adjudicating function in the criminal proceedings.

The court assessed the complaint concerning an [alleged] substantial violation of procedural law ... that the trial court, contrary to law, had examined witnesses ... on 12 April 2007 outside the trial, ... [notwithstanding that there had been a] previous request for a psychiatric examination of the [applicant] in order to assess his mental capacity to follow the trial, but dismissed the complaint as groundless.

Namely, it is evident from the record from the witnesses’ ... questioning ... [that] all of the accused who were present at the hearing had the right to put questions to the witnesses, [and] this right was exercised by some of the accused, including [the applicant], which clearly points to the conclusion that [the applicant] was not only capable of following the trial, but he could also actively participate by putting questions to the witnesses as one of the corpus of minimum rights guaranteed to each accused by the Constitution ..., the Criminal Proceedings Act and the European Convention on Human Rights as a basic international document on the matter.”

The court further found that the bankruptcy proceedings against S. had been opened on 10 September 1996 and stayed on 24 December 2001. On the latter date, consent (согласност) had been given for the institution of proceedings for the transformation of S. on the basis of the programme for financial and ownership transformation, which had been approved by the Privatisation Agency.

The applicant challenged that judgment by means of a request for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда). He reiterated his complaints concerning the alleged lack of impartiality of Judge V.M. and concerning his request for a psychological examination. He did not submit a copy of the report of 5 July 2007 (see paragraph 21 above).

On 23 December 2009 the Supreme Court dismissed the applicant’s request and upheld the lower courts’ judgments. It referred to section 36(1) (2) of the Criminal Proceedings Act and found as follows:

“In the present case... it does not transpire (никаде не произлегува) that the unmarried partner of [Judge V.M.] submitted a compensation or [other] pecuniary claim ... in these proceedings. ... neither in the preliminary proceedings nor at the trial did the unmarried partner of [Judge V.M.] lodge a compensation claim and he does not have the status of a victim in the proceedings, within the meaning of the provisions of the Criminal Proceedings Act. In such circumstances ... the impartiality of [Judge V.M.] in the performance of her judicial function in the criminal proceedings cannot be put into doubt.

... all those convicted who attended the examination (of the witnesses) had the right to question them, [and] this right was exercised by some of the accused, including [the applicant], which leads to a conclusion that [the applicant] was not only capable of following the trial, but he was also able to participate actively by putting questions to the witnesses ...”

On 25 December 2009, the applicant, who was transferred in the meantime to Idrizovo Prison, lodged a request for extraordinary mitigation of his sentence (барање за вонредно ублажување на казната). The prison authorities immediately communicated the request to the Supreme Court. The request was accompanied by a medical report drawn up by the prison doctor on 23 December 2009 regarding the applicant’s health since 8 August 2002.

On 2 March 2010 the Supreme Court upheld the applicant’s request and reduced his sentence to five years and six months’ imprisonment. It took into account as new relevant circumstances the deterioration of his health and that of members of his family, as well as the positive opinion of the prison authorities.

The relevant provisions of the Criminal Proceedings Act in force at the material time provided as follows:

(2) Every accused person has the following minimum rights:

- to have sufficient time and possibilities (можности) to prepare his or her defence ...

(1) A judge or a lay-judge cannot perform his or her judicial function if:

(1) he or she has suffered damages as a result of the criminal offence;

(2) the accused, his or her defence lawyer, the claimant (тужителот), the damaged party or their legal or other representative is a married or unmarried partner or a relative ...;

(3) he or she is a custodian, an adoptive parent, an adoptive child ... of the accused, his or her defence lawyer, the claimant or the damaged party;

(4) he or she has undertaken investigative measures in the same criminal proceedings or has participated in assessing the indictment before the trial, or has participated in the proceedings as a claimant, defence lawyer, legal or other representative of the damaged party or the claimant, or has been heard as a witness or as an expert; and

(5) in the same proceedings, he or she has participated in the rendering of the decision by a lower court or, in the same court, he or she has participated in the rendering of the decision challenged with the appeal.

(2) A judge or a lay-judge can be excluded from performing the judicial function, apart from the cases listed under subsection (1) of this section, if evidence is submitted casting doubts as to his or her impartiality.

When he or she learns that a reason for exclusion of section 36 subsection (1) of the Act exists, a judge or a lay-judge is obliged to stop his or her work on the case and to inform the president of the court, who will name a replacement. ...

(1) Exclusion can be also sought by the parties.

(2) The parties can seek exclusion until the commencement of the main hearing, and if they found out later about the reason for exclusion, immediately after finding out.

(1) Apart from the cases explicitly provided for by this Act, the main hearing will be adjourned with a decision of the panel if it is necessary to obtain new evidence, or if during the main hearing it is established that, after the offence had been committed, the accused started suffering from a temporary psychological illness or temporary mental disorder or if there are other obstacles to the trial being conducted successfully.

(1) There is a substantial violation of procedural law if:

(2) a judge or lay-judge who had to be excluded (section 36(1)(5)) participated at the trial...

(2) There is also a substantial violation of procedural law if the court, while preparing the trial or at the trial, or in adopting its decision did not apply or wrongfully applied a provision of this Act, or violated the right to defence at the trial, which affected or could have affected the lawful and correct adjudication.

Mitigation of a finally imposed sentence is allowed when, after the judgment became final, circumstances come to light which did not exist when the judgment was pronounced, or the court was not aware of their existence, and which would obviously lead to a more lenient conviction (поблага осуда).”

The relevant provisions read as follows:

The creditors can apply to the bankruptcy panel for a temporary stay of the bankruptcy proceedings and for the company to be allowed to continue to operate.

Within sixty days the executive board adopts a programme for financial and ownership transformation, which encompasses the measures, actions and activities for long-term consolidation of the company, and in particular ...

- conversion of the debt into a permanent share (конверзијата на долгот во траен влог);

After the recovery (санирањето) and reorganisation of the debtor company, the executive board adopts a decision to transform ownership to a joint stock company (акционерско друштво) or a limited liability company (друштво со ограничена одговорност).

On the basis of an opinion of the [Privatisation Agency] on the decision mentioned in ... [the paragraph above], the bankruptcy panel adopts a decision giving consent (согласност) to the institution of transformation proceedings, which stays the bankruptcy proceedings.

If the recovery and reorganisation of the debtor company do not provide the expected results, the executive board proposes that the bankruptcy panel continue the bankruptcy proceedings.

The bankruptcy proceedings are also continued if the bankruptcy panel does not give the consent mentioned in ... this section.”


Violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Stand for election;Right to free elections-{general});Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination;Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination

The applicant was born in 1963 and lives in Sarajevo.

The applicant belongs to BiH’s Albanian ethnic minority. He actively participates in the social and political life of the country.

On 26 August 2010 the applicant obtained written confirmation by the Central Election Commission that in accordance with the Constitution of Bosnia and Herzegovina members of ethnic minorities were ineligible to stand for election to the Presidency and the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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;Civil proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicant was born in 1963 and lives in Telki.

Between 25 February 2002 and 18 May 2005, litigation was in progress between the applicant and his former employer. The latter was eventually obliged to re-employ the applicant.

The applicant did not accept the position that was offered to him in pursuit of the re-employment order. New litigation started on 5 January 2006.

On 18 November 2008 the Budapest Labour Court dismissed the applicant’s action.

On appeal, on 9 July 2010 the Budapest Regional Court reversed this decision and found for the applicant.

The respondent pursued a petition for review before the Kúria. On 29 February 2012 this court reversed the appeal judgment and found for the respondent.


ZAMET - BUDOWA MASZYN SPÓŁKA AKCYJNA v. POLAND

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicant, Zamet - Budowa Maszyn Spółka Akcyjna, is a Polish joint stock company with its registered seat in Tarnowskie Góry. It was represented before the Court by Mr J. Pałka, a lawyer practising in Gliwice.

In 2005 the applicant signed a framework contract with ING Bank Śląski S.A. (“the bank”) for currency option (opcje walutowe). The contract contained a clause stating that in case of disagreement the parties would refer their case to the Court of Arbitration by the Polish Bank Association (zapis na sąd polubowny).

On 17 July and 8 August 2008 the applicant signed with the bank two agreements on the basis of the framework contract. However, since the agreements in question were entered into by telephone by one of the employees of the applicant who apparently had no authorisation to act on its behalf, the applicant decided to withdraw from them and, on 2 February 2009, it made an appropriate statement to the bank. The bank, however, did not accept the statement and continued to demand payments from the applicant as if the agreements were still binding.

The applicant then made a request to the Gliwice Regional Court to apply an interim measure and secure its claims against the bank.

On 24 February 2009 the Gliwice Regional Court granted the request and ordered the bank, among other things, to stop executing the transactions of 17 July and 8 August 2008.

Subsequently, the applicant lodged two civil lawsuits against the bank with the civil court, and not with the Court of Arbitration, for ascertainment of non-existence or for annulment of the two transactions referred to above.

On 25 May 2009 the Gliwice Regional Court granted the applicant’s motion. The Court refused the argument relied on by the bank, that the civil avenue had been excluded in the present case because of the clause contained in the framework contract according to which all disputes between the parties should be put before the Court of Arbitration. The Court referred to Article 1157 of the Code of Civil Proceedings stipulating that only matters which may be settled by way of a friendly settlement could be put before the Court of Arbitration. The Court considered that the question of declaring a contract null and void or declaring its existence or non-existence could not be dependent on the parties’ will and therefore the case in question was not appropriate for the Court of Arbitration. The court further found that the arbitration clause contained in a framework contract should be found ineffective because it did not secure the equality of arms in the proceedings before the Court of Arbitration. In this respect the court noted that the Court of Arbitration had been set up by the Polish Bank Association, of which the defendant bank was a member and the applicant company – not being a bank – could not become a member. The Polish Bank Association was an institution which normally should support its members. The court also analysed the provisions of the Rules of the Court of Arbitration and came to the conclusion that they did not properly secure the equality of arms between the parties.

The defendant bank appealed against the decision of 25 May 2009.

On 25 August 2009 the Katowice Court of Appeal gave a decision and dismissed the arguments relied on by the first-instance court. It quashed the challenged decision and rejected the lawsuit finding the clause in the framework contract valid and considering that the dispute between the parties should have been examined by the Court of Arbitration.

The applicant lodged a cassation appeal with the Supreme Court.

On 18 June 2010 the Supreme Court dismissed the cassation appeal as regards the first lawsuit. The court considered that the Regional Court had relied on the wrong provisions of the Code of Civil Proceedings, because at the time when the parties signed the framework contract, other provisions were still in force. These provisions did not allow for the referral of a dispute to the Court of Arbitration depending on whether a particular case was appropriate for a friendly settlement or not. The decisive element was the parties’ capacity to take on obligations within the framework of a particular legal relation. Relying on the interpretation of the relevant provisions made in its own judgment of 21 May 2010 the Supreme Court refused to accept the applicant’s argument that the dispute in question could not be settled by the Court of Arbitration. It found that what was decisive was the parties’ capacity to reach, also in the form of a friendly settlement, a resolution of the dispute which had arisen between them. According to the Supreme Court the source of the plaintiff’s claims was the right which could be freely shaped by the parties and therefore the dispute in question could also be settled independently by the parties. It follows that the arbitration clause was valid and the case at hand was appropriate for a Court of Arbitration.

The Supreme Court also referred to the applicant’s arguments as regards the alleged lack of impartiality before the Court of Arbitration. It held that the fact that the Court of Arbitration had been created by the Polish Bank Association had not automatically rendered the Court dependent on banks and that in case of justified doubts as regards impartiality of particular judges the applicant could make use of the relevant provisions of the Code of Civil Proceedings concerning exclusion of judges or claims for declaring the Court of Arbitration’s judgment null and void.

On 23 November 2010 the Supreme Court, relying on its own analysis of the applicant’s previous cassation appeal, refused to examine the applicant’s cassation appeal as regards the second lawsuit finding that the case did not raise any new issue.

The relevant provisions concerning submitting disputes to courts of arbitration are contained in the Code of Civil Proceedings (“the Code”).

Article 697 of the Code at the relevant time read as follows:

“Within the limits of their ability to making obligations the parties may decide that all disputes for pecuniary rights be submitted to the court of arbitration except for disputes for maintenance and disputes concerning labour law.”

Article 1157 of the Code reads, in so far as relevant, as follows:

“If a special provision does not stipulate otherwise, the parties may decide to put before the court of arbitration a dispute concerning pecuniary or non-pecuniary rights which may be the subject of a friendly settlement.”

Article 1161 § 2 of the Code reads, in so far as relevant, as follows:

“Clauses providing that disputes be submitted to the court of arbitration which infringe the rule of equality of both parties shall be considered ineffective. This concerns, in particular, granting a right to submit disputes to the court of arbitration or to a common court to one party only.”

The judgments and decisions of courts of arbitration are subject to review by the domestic courts under certain conditions.

According to Article 1205 of the Code an applicant may lodge a complaint with the Court and ask that the judgment of the court of arbitration issued in Poland be quashed, in particular, when the arbitration clause had been invalid, when a party to the proceedings had been deprived of the possibility to defend himself or when there had been other important procedural shortcomings in the relevant proceedings, listed in details in Article 1206 of the Code.

The court shall also quash a judgement given by the court of arbitration if it finds that the particular case could not have been settled by the court of arbitration or if the judgment of the court of arbitration contravenes against basic rules of the legal order in the Republic of Poland (public order clause).

According to Article 1212 of the Code any judgment given by the court of arbitration, irrespective of the state in which it was issued is enforceable only after having been recognised by the domestic court or after having been appended with an enforceability clause. The court will refuse to recognise a judgment or to append an enforceability clause if a particular case could not have been examined by a court of arbitration or because of the public order clause referred to above.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Jukka Tapani Heinänen, is a Finnish national, who was born in 1962 and lives in Espoo. He was represented before the Court by Mr Jyrki Kuusivaara, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

The applicant owns all the shares in two limited liability companies. Apparently, in spite of their being limited liability companies, he was the only person running them.

In 2004 the tax authorities carried out a tax inspection in the first company and concluded that it had failed to declare and pay a considerable amount of tax and that it had, inter alia, paid salaries off the books and undertaken other fraudulent activities. It appeared that the company had been operating entirely on the black market.

The tax authorities carried out a tax inspection in the second company after the police investigation concerning the applicant’s activities had been concluded in 2007.

On 2 November 2007 the tax authorities imposed additional tax and tax surcharges (veronkorotus, skatteförhöjning) on the applicant for the tax years 2004 and 2005 as they found that the applicant had withdrawn cash from the second company which the tax authorities considered as disguised dividends.

On 27 January 2010 the tax authorities imposed additional taxes and tax surcharges on the applicant for the tax year 2004 as they found that the applicant had also withdrawn cash from the first company which was considered as disguised dividends.

The applicant apparently did not appeal against those decisions. The period set for appeal in tax matters is five years counted from the beginning of the calendar year following the year when the initial taxation decision was made. Therefore, the taxation concerning the tax years 2004 and 2005 became final on 31 December 2010 and 31 December 2011 respectively.

On 18 May 2005 the local tax office requested the police to investigate the applicant’s activities in relation to the first company. On 14 November 2006 the applicant was arrested. On 20 November 2006 a police investigation into the applicant’s actions in the second company was initiated.

On 29 June 2007 the prosecutor brought charges against the applicant for, inter alia, aggravated accounting offence (törkeä kirjanpitorikos, grovt bokföringsbrott) and aggravated tax fraud (törkeä veropetos, grovt skattebedrägeri) concerning his activities as the owner of the two companies.

On 11 April 2008 the District Court (käräjäoikeus, tingsrätten) delivered its judgment. The applicant appealed against this judgment to the Court of Appeal (hovioikeus, hovrätten), alleging that one of the lay judges sitting in the case had been partial. On 27 June 2008 the Court of Appeal rejected the applicant’s appeal. However, on 6 February 2009 the Supreme Court (korkein oikeus, högsta domstolen) accepted the applicant’s appeal and quashed the lower courts’ judgments. The case was referred back to the District Court for a new examination.

On 19 February 2009 the prosecutor repeated the charges. Four counts concerned the applicant’s activity in the first company from 2003 to 2005 and four counts concerned the applicant’s activity in the second company from 2004 to 2005. According to the charges, the applicant was accused of aggravated tax fraud as he had failed to submit a tax declaration for both companies and, consequently, no income tax had been paid or imposed on the companies. On another count of aggravated tax fraud the applicant was accused of not declaring the salaries paid and, consequently, the taxes and social security payments had been too low. The tax authorities joined the charges and presented a compensation claim totalling approximately the amount of avoided taxes.

On 13 November 2009 the District Court convicted the applicant, inter alia, of two counts of aggravated tax fraud for having failed to submit a tax declaration for the two companies in question for the tax years 2004 and 2005. He was sentenced to imprisonment for 2 years and 8 months and ordered, together with another convicted person, to pay the tax authorities 435,742.99 euros (EUR) plus interest in compensation. The court also ordered an extended forfeiture of the proceeds of crime. In addition, the applicant was banned from undertaking business activities for five years.

By letter dated 12 December 2009 the applicant appealed to the Court of Appeal, requesting that the District Court’s judgment be partly quashed and that a part of the charges be dismissed. He admitted some of the charges. The applicant relied also on the principle of ne bis in idem and the Court’s case-law in that respect with regard to the aggravated tax fraud and the tax surcharges imposed on him in the meantime.

On 23 December 2010, after having held an oral hearing, the Court of Appeal upheld the District Court’s judgment. It considered that, as the prosecutor had pressed charges for the first time on 29 June 2007 and the tax surcharges were imposed only after that date, the ne bis in idem principle could not prevent the examination of charges.

By letter dated 21 February 2011 the applicant appealed to the Supreme Court, reiterating the grounds of appeal already presented before the Court of Appeal.

On 20 June 2012 the Supreme Court, after having examined the question of extended forfeiture of the proceeds of crime and quashed a part of it, upheld the Court of Appeal’s judgment otherwise.

Section 57, subsection 1, of the Tax Assessment Procedure Act (laki verotusmenettelystä, lagen om beskattningsförfarande, Act no. 1558/1995, as amended by Act no. 1079/2005) provides that if a person has failed to make the required tax returns or has given incomplete, misleading or false information to the tax authorities and tax has therefore been incompletely or partially levied, the taxpayer shall be ordered to pay unpaid taxes together with additional tax and a tax surcharge.

According to Chapter 29, sections 1 and 2, of the Penal Code (rikoslaki, strafflagen, as amended by Acts no. 1228/1997 and no. 769/1990), a person who (1) gives a tax authority false information on a fact that influences the assessment of tax, (2) files a tax return concealing a fact that influences the assessment of tax, (3) for the purpose of avoiding tax, fails to observe a duty pertaining to taxation, influencing the assessment of tax, or (4) acts otherwise fraudulently and thereby causes or attempts to cause a tax not to be assessed, or too low a tax to be assessed or a tax to be unduly refunded, shall be sentenced for tax fraud to a fine or to imprisonment for a period of up to two years. If by the tax fraud (1) considerable financial benefit is sought or (2) the offence is committed in a particularly methodical manner and the tax fraud is aggravated when assessed as a whole, the offender shall be sentenced for aggravated tax fraud to imprisonment for a period between four months and four years.

The Supreme Court has taken a stand on the ne bis in idem principle in its precedent case KKO 2010:46 which concerned tax surcharges and aggravated tax fraud. In that case it found, inter alia, that even though a final judgment in a taxation case, in which tax surcharges had been imposed, prevented criminal charges being brought about the same matter, such preventive effect could not be applied to pending cases (lis pendens) crossing from administrative proceedings to criminal proceedings or vice versa. However, in July 2013 the Supreme Court reversed its line of interpretation, finding that charges for tax fraud could no longer be brought if there was already a decision to order or not to order tax surcharges in the same matter (KKO 2013:59).

The Act on Tax Surcharges and Customs Duty Surcharges Imposed by a Separate Decision (laki erillisellä päätöksellä määrättävästä veron- tai tullinkorotuksesta, lagen om skatteförhöjning och tullhöjning som påförs genom ett särskilt beslut, Act no. 781/2013) entered into force on 1 December 2013. According to the Act, the tax authorities can, when making a tax decision, assess whether to impose a tax surcharge or to report the matter to the police. The tax authorities can decide not to impose a tax surcharge. If they have not reported the matter to the police, a tax surcharge can be imposed by a separate decision by the end of the calendar year following the actual tax decision. If the tax authorities have imposed tax surcharges, they can no longer report the same matter to the police unless, after imposing the tax surcharges, they have received evidence of new or recently revealed facts. If the tax authorities have reported the matter to the police, tax surcharges can, as a rule, no longer be imposed. The purpose of the Act is thus to ensure that a tax or a customs duty matter is processed and possibly punished in only one set of proceedings. The Act does not, however, contain any transitional provisions extending its scope retroactively.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on charge;Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants were born in 1966 and 1996 respectively and live in Sheffield, the United Kingdom.

On 8 November 2010 the applicants arrived in Turkey from Iran. They were planning to fly to Manchester (the United Kingdom) from Istanbul Atatürk Airport on the next day.

At around 11 a.m. on 9 November 2010 the applicants were about to board the plane for Manchester, but were prevented from doing so by officers from the private airport security company. It was alleged that the second applicant’s passport photograph did not resemble him and could belong to someone else. Both applicants were taken to the “problematic passenger room” at the office of the passport police for an examination of the second applicant’s passport.

At 4 p.m. on the same day the applicants signed documents entitled “Report of apprehension and custody/rights of suspects and accused persons”, which set out their rights within the context of their arrest. According to the report which the first applicant signed, she had been apprehended on account of “being an accomplice to false identity”. The reports stated that a public prosecutor had been informed of the apprehension. However, the prosecutor did not order that the applicants be taken into police custody. The reports signed by the applicants do not bear the signature of an interpreter.

According to a report drafted by two police officers at 4 p.m. the same day, the police asked one of the public prosecutors at the Bakırköy public prosecutor’s office for instructions on how to proceed. The public prosecutor ordered that the photographs, fingerprints and statements of the first applicant, S.T., be taken; that the second applicant, K.A., be transferred to the Bakırköy police station juvenile department and that the passport in question be seized for an examination of its authenticity.

The second applicant was kept at the office of the passport police at Atatürk Airport until 10.50 p.m. on 9 November 2010. He was then transferred to the Bakırköy police station juvenile department following the instructions of the public prosecutor, before being sent to the police criminal laboratory in order to establish his identity.

On 10 November 2010 the Bakırköy Magistrates’ Court decided to confiscate the second applicant’s passport.

On the same day the second applicant was taken to the Bakırköy public prosecutor’s office. His statements were taken by the public prosecutor, who decided to impose an administrative sanction under the Misdemeanors Act and to release him.

Later on the same day the police criminal laboratory issued a report establishing the authenticity of the second applicant’s passport.

Subsequently, the police received instructions from one of the prosecutors from the Bakırköy public prosecutor’s office to either hand the second applicant over to a family member or transfer him to social services.

At around 4 p.m. on 11 November 2010 the second applicant was handed over to one of his relatives, Mr. B.M., who was also the first applicant’s husband. At the same time his passport was given back to him as its authenticity had been proved.

Meanwhile, following the arrest of the first applicant at the airport on 9 November 2010, her photograph and fingerprints were taken. At 9 p.m. on the same day she was questioned by two police officers at Istanbul Atatürk Airport with the help of another police officer, who acted as an interpreter. The first applicant was informed that she had been brought to the office of the passport police on suspicion that she had helped the second applicant to travel abroad with a passport which had not belonged to him. In her statements, the applicant maintained that the second applicant was a relative of her husband and that his mother was a British citizen. She denied the veracity of the allegations against her.

The first applicant continued to be detained at the airport detention facility until 12 November 2010.

At 4 p.m. on 12 November 2010 the first applicant was transferred from the airport detention facility to the Kumkapı Foreigners’ Removal Centre.

At 9.20 p.m. on 13 November 2010 the first applicant was deported to the United Kingdom.

On 12 November 2010 the applicants’ lawyer lodged a criminal complaint with the Bakırköy public prosecutor’s office against D.Ö., N.G. and Y.A., officers on duty at the time of the applicants’ detention at Istanbul Atatürk Airport. He requested that an investigation be initiated against the aforementioned officers who had abused their power and unlawfully deprived his client of her liberty. The lawyer submitted that the authenticity of the second applicant’s passport had been established and that the first applicant had been detained at the airport without a legal basis. He stressed that if his client had been suspected of having committed an offence, the police should have kept her for only twenty-four hours. He requested that his client be brought before a public prosecutor or be released. In his petition, the lawyer also complained of overcrowding and the material conditions of the airport detention room where his client had been held.

On 20 January 2011 the Bakırköy public prosecutor took statements from two police officers who had been on duty at the time of the first applicant’s detention. Both officers maintained that the first applicant had been kept in detention pending her transfer to the Kumkapı Foreigners’ Removal Centre attached to the Istanbul security directorate.

On 22 January 2011 the Bakırköy public prosecutor decided not to bring criminal proceedings against those police officers. In his decision, the public prosecutor noted that the first applicant had been subject to a criminal investigation following the instructions of the public prosecutor on duty and that she had been held at the foreigners’ detention centre (misafirhane - guesthouse) at the airport. The public prosecutor considered that the delay in the first applicant’s release had occurred on account of the administrative procedure regarding her deportation and that the police officers had not acted with the intention of committing the offence of abuse of power.

On 23 February 2011 the applicants’ lawyer objected to the decision of 22 January 2011. In his petition he brought to the attention of the Assize Court the issues of the alleged unlawfulness of the first applicant’s detention, the absence of information given to the first applicant about her arrest, the unlawfulness of her deportation without being notified by a deportation order and the alleged poor conditions of detention.

On 14 March 2011 the Istanbul Assize Court dismissed the first applicant’s objection, holding that the decision of 22 January 2011 had been in accordance with the law.

In the meantime, following the criminal complaint lodged by the first applicant, a disciplinary inquiry was initiated into D.Ö., N.G. and Y.A. by the Istanbul security directorate. On 16 February 2011 the Istanbul security directorate decided not to bring disciplinary proceedings against the officers in view of the Bakırköy public prosecutor’s decision of 22 January 2011. In the decision, it was noted that the applicants had been subject to misdemeanour proceedings and that the first applicant had not been in police custody but had been held in the foreigners’ detention centre (misafirhane - guesthouse) at the airport.

On 28 February 2011 the applicants’ lawyer objected to the decision of 16 February 2011. In his petition, he submitted the same arguments as those he had submitted to the Istanbul Assize Court on 23 February 2011.

On 2 June 2011 the Istanbul Regional Administrative Court held that it did not have jurisdiction to render a judgment on the merits of the first applicant’s objection, given that the decision of 16 February 2011 had not refused authorisation to bring criminal proceedings against the police officers. The court noted that in order to annul the administrative decision in question, the applicant should have lodged an action with the administrative courts.

The first applicant claimed that the detention room at Istanbul Atatürk Airport had been overcrowded at the time of her detention, which had lasted seventy-seven hours. She submitted that she had been kept in a room measuring approximately 32 sq. m, which had been divided into two sections by a partition. One of the sections had a window but the other one received no natural light. The applicant claimed that she had been kept in the latter section with at least twenty other people at a time. There was no fresh air and the overcrowding of the room led to problems of hygiene. The applicant also claimed that there had been no furniture in the room suitable for sleeping on, and that in any case it had been impossible to lie down due to the overcrowding. She also claimed that she had had no access to fresh air throughout her detention at the airport and that she had been unable to go to the toilets unless she had been accompanied by officers.

The Government maintained that the applicant had been detained in a waiting room located in the legal services department of the airport security directorate. The room in question measured 32 sq. m. It received direct sunlight through windows and had a ventilation system. They noted that the room had a padded sitting area for rest and sleep, and was cleaned every day. The Government contended that detainees used the toilet of the security directorate. According to the Government’s submissions, in total eighty-seven persons were detained in that room between 9 and 12 November 2010.

The Government submitted a black-and-white photograph of the room where the first applicant had been detained. The photograph shows two separate areas divided by a partition. The area on the right side of the photograph has two windows, two divans and three chairs. This part of the room appears to be well lit. The left side of the photograph shows a dark area without a window in which there are seven chairs and a divan. Both areas appear to be clean.

The Government further submitted two lists to the Court containing the names of the detainees kept in police custody at the Istanbul Atatürk airport detention facility on 9 and 12 November 2010, the reasons for their detention, the nationality of the detainees, and the date and time of their arrest. According to those lists, at 7 p.m. on 9 November 2010 a total of thirty-eight persons were detained at Istanbul Atatürk Airport (thirty-one men and seven women), whereas at 8 a.m. on 12 November 2010, there were forty-nine detainees in custody (thirty-seven men and twelve women). The first applicant’s name appears on the list of 9 November 2010 but not on the list dated 12 November 2010.