CASE OF IUSTIN ROBERTINO MICU v. ROMANIA

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 13+5-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Procedure prescribed by law;Article 5 - Right to liberty and security);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant was born in 1969 and lives in Bucharest.

By orders of 5 and 8 March 2010 the National Anticorruption Department (“the N.A.D.”) instituted criminal proceedings against the applicant and three other co-accused, all of them border guard police officers, for bribe-taking and abetting bribe-taking. It held – on the basis of testimonial, documentary and surveillance evidence of phone conversations between one of the co-accused, his wife and a third party – that there was reasonable suspicion that on 6-7 September 2007 the applicant and his colleagues had asked seven Turkish nationals to pay them money in order to allow them to leave Romania.

On 8 March 2009 prosecutor G.B., who was attached to the N.A.D., authorised several police officers to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name and the names of the three coaccused. According to the order to appear produced by the N.A.D., the applicant’s presence was required in order for him to be heard as an accused (ȋnvinuit) in the criminal investigation instituted against him in 2008. No other reasons or considerations were stated on the order.

On 9 March 2010 two police officers went to the applicant’s workplace to enforce the warrant to appear. According to the report produced by the police officers and signed by the applicant, he was shown the warrant to appear and was informed that he would be taken to the N.A.D.’s premises. He was also informed that he could contact and retain the services of a legal representative of his own choosing. He refused to do so because he considered that he did not need one. The applicant and the escorting police officers left the applicant’s workplace at 8.40 a.m.

On the same date, at 12 noon, G.B. informed the applicant in the presence of a publicly appointed legal representative that a criminal investigation had been opened against him for bribe-taking. According to the documents submitted before the Court, and signed by the applicant and his legal representative, he had refused to retain a legal representative of his own choosing and had accepted assistance from a publicly appointed lawyer. According to the statement made before the prosecutor, he notified the authorities that he suffered from diabetes and that he needed his insulin treatment, which would have to be brought from his workplace. In addition, he requested the authorities to notify his wife in the event of his placement in police custody. He also stated that he reaffirmed the statement he had made previously concerning the events in connection with which he was being investigated. According to the record of the applicant’s statement, he was heard as an accused by the prosecutor at N.A.D.’s offices from 12 noon to 9.34 p.m.

On the same date, at 7.36 p.m., the applicant was informed that at 7.08 p.m. he had been charged with bribe-taking. According to the report produced by the authorities and signed by the applicant and his legal representative he refused to make any statement as a defendant (inculpat) and reaffirmed the statement he had made as an accused.

By an order dated 9 March 2010 the N.A.D. placed the applicant in police custody for twenty-four hours commencing at 9.15 p.m. for bribetaking. The arrest order was signed by both the applicant and his legal representative. It stated that on the basis of the available evidence there was reasonable suspicion that the applicant had accepted money from Turkish nationals for the purpose of allowing them to return to Turkey. It also stated that the offence in question was punishable by over four years’ imprisonment and his release would constitute a danger to public order, bearing in mind that he was a border guard officer and had committed the offence at his workplace.

On 10 March 2010, relying on testimonial, documentary and audio surveillance evidence, the N.A.D. asked the domestic courts to detain the applicant pending trial.

By an interlocutory judgment of 10 March 2010 the Court of Cassation dismissed the N.A.D.’s request and ordered the applicant’s release on condition that he remain in the country. It held that the available evidence was plagued by inconsistencies which should have been resolved by the investigating authorities. In addition, except for the seriousness of the offence, none of the other legal requirements for detaining the applicant pending trial had been met. In particular, there was no evidence in the file that he had attempted to abscond or to obstruct justice. Also, it had not been proven that his release would be a danger to public order, given that the events in question had occurred in 2007 and that the applicant was not responsible for the length of the criminal investigation. Consequently, it considered that the implementation of an alternative measure was more appropriate in his case.

On 8 April 2010 the Court of Cassation, sitting as a second instance court, dismissed as ill-founded an appeal by the N.A.D. against the interlocutory judgment of 10 March 2010.

By a judgment of 17 March 2011 the Bucharest Court of Appeal convicted the applicant of bribe-taking and sentenced him to three years’ imprisonment. The applicant appealed on points of law (recurs) against the judgment.

On 11 February 2013 the Court of Cassation allowed the applicant’s appeal on points of law against the judgment of 17 March 2011 and acquitted him. It also noted that he had been held in police custody for twenty-four hours from 9 to 10 March 2010.

On 21 April 2010 the applicant instituted criminal proceedings with no civil claims against the prosecutors investigating his case – in particular G.B. – for, inter alia, abuse of office by restricting certain rights, perjury, unlawful arrest and improper investigation, torture and unlawful perversion of justice (represiune nedreaptă). He argued that the prosecutor had obtained testimonial evidence against him in breach of domestic and international criminal procedure rules and had detained him for thirty-seven hours instead of the twenty-four allowed by law. In addition, there had been no reasonable suspicion that he had committed the offence, nor had the other legally-required criteria for his detention been met. Also, he had been subjected to intense physical and psychological suffering because the order to appear issued by the prosecutor had been unjustified and devoid of grounds, in breach of Article 183 (2) of the Romanian Code of Criminal Procedure (“the C.C.P.”). Lastly, he had been refused a medical examination, medical treatment and food for the entire time he was under the authorities’ control, even though he had notified them of his medical condition.

On 10 May 2010 the applicant brought proceedings seeking to have prosecutor G.B. removed from the case on the grounds that he had instituted criminal proceedings against him in April 2010.

By a final order delivered on the same date, the hierarchically superior prosecutor attached to N.A.D., namely L.P., dismissed the applicant’s action of 10 May 2010 on the ground that there was no evidence in the file that G.B. had had a personal interest in the outcome of the case or that he had had a feud with one of the parties in the case. The fact that the applicant had instituted criminal proceedings against him was not an incompatibility ground provided for by law.

By a final order of 2 July 2010 the public prosecutor’s office attached to the Court of Cassation dismissed the applicant’s criminal complaint of 21 April 2010 against the prosecutor G.B. on the grounds that the offences cited by the applicant were inexistent and that his claims amounted to a complaint against the acts and measures carried out by the prosecutor during the investigation stage of the criminal proceedings instituted against him. The purpose of a criminal complaint was not, however, to censor the acts and measures carried out by a prosecutor. The lawfulness of such measures could only be examined within the framework of a complaint lodged with the hierarchically superior prosecutor against the acts and measures carried out by the investigating prosecutor. The applicant appealed against the order before the domestic courts.

By interlocutory judgments of 16 November 2010 and 18 January 2011 the Court of Cassation ordered that the investigation file be attached to the court’s file and that G.B. be summoned before the court. According to the applicant, neither the investigation file nor G.B. was ever presented to the court.

By a final judgment of 12 April 2011 the Court of Cassation dismissed the applicant’s complaint against the order of 2 July 2010. It held that the applicant’s complaints concerned investigative acts carried out by G.B. During ongoing criminal proceedings, other legal remedies are available to the accused or the defendant(s) by virtue of the criminal procedure rules, and these could have been used here to express dissatisfaction in respect of the alleged breaches of the procedural rules and of their lawful rights. In this connection, the court identified several complaints the applicant could have lodged within the framework of the criminal proceedings instituted against him, namely a complaint against the prosecutor’s orders for preventive measures and based on Article 51 et seq., Article 64 § 2, Article 67 et seq., and Articles 140 § 2, 172 § 6, 275-278, 320 and 332 of the Romanian Criminal Procedure Code. In addition to the aforementioned legal remedies, the defendants had other lawful means of lodging complaints against the person investigating or supervising the investigation of their case. However, a criminal complaint lodged against the prosecutor who had carried out the investigation in criminal proceedings that were still pending was not one of the legal means the applicant could have used, as it opened up the possibility of having aspects of legality regarding the pending criminal trial examined outside the framework expressly provided by the Criminal Procedure Code and of examining aspects of the criminal proceedings instituted against him. Moreover, the procedure allowing the prosecutor’s orders to be challenged before domestic courts did not allow the court to substitute its judgment for that of the judicial organs charged with the examination of the pending criminal proceedings instituted against him. The applicant appealed on points of law (recurs) against the judgment.

On 28 July 2011 the applicant brought proceedings against the Court of Cassation seeking an injunction to force that court to examine both the appeal on points of law lodged by him against the final judgment of 12 April 2011 and the unconstitutionality objections raised by him after the previously mentioned judgment was delivered.

On 12 September 2011, by a final judgment delivered in private, the Court of Cassation dismissed the applicant’s appeal on points of law against the judgment of 12 April 2011 as inadmissible. It held that, following recent law reforms, judgments delivered by the domestic courts in proceedings challenging the legality of a prosecutor’s decision not to institute criminal proceedings were no longer appealable before two levels of jurisdiction.

By a judgment of 28 November 2011 the Bucharest Court of Appeal dismissed the applicant’s action of 28 July 2011. It held that ordering the Court of Cassation to examine his appeal on points of law would breach the principle of legal certainty. In addition, an unconstitutionality objection had been raised by the applicant after the proceedings had ended on 12 April 2011 and there was no legal framework that would allow the Court of Appeal to force another court to examine them. The applicant appealed on points of law against the judgment of 28 November 2011 and according to him, the appeal was dismissed as ill-founded.

On 31 May 2010 the applicant brought criminal proceedings with no civil claims against the prosecutor L.P. for abuse of office against the public interest, incitement to the unlawful exercise of a profession and to perjury, incitement to unlawful perversion of justice, and incitement to the retention and destruction of documents. He claimed that, as G.B.’s hierarchically superior prosecutor, L.P. had approved the criminal-investigation measures undertaken by G.B., including the evidence dismissed and gathered by him, and had allowed G.B. to detain him and institute the criminal proceedings against him, even though he had been aware that he was innocent.

By a final order of 28 October 2010 the public prosecutor’s office attached to the Court of Cassation dismissed the applicant’s criminal complaint against L.P. on the grounds that the offences cited by the applicant were non-existent. It held that the complaints lodged by the applicant against L.P. were related to those lodged by him against G.B. In the latter’s case the public prosecutor’s office had already discontinued the criminal investigation for similar reasons. The applicant appealed against the order before the domestic courts.

By a final judgment of 28 March 2011 the Court of Cassation dismissed the applicant’s complaint against the order of 28 October 2010. It held that L.P. had neither investigated the applicant’s case nor undertaken any acts or measures in this respect. He had merely approved the proposal submitted by G.B. before the domestic courts to detain the applicant pending trial. The fact that he had examined and dismissed the applicant’s complaints in respect of the legality of the criminal proceedings instituted against him did not engage his criminal liability. In the absence of evidence to suggest that the prosecutor had acted unlawfully or that he had breached his duties, the applicant’s arguments in support of his complaint could not be assessed within the framework of a criminal investigation. Most of the applicant’s complaints were in fact arguments in his defence based on challenges to the way the evidence had been produced, the measures undertaken and the procedural flaws. According to the relevant criminal procedure rules, such complaints could be raised by the applicant before the domestic courts examining his case but could not be interpreted as constituting the elements of an offence. The applicant appealed on points of law against the judgment.

On 21 November 2011, by a final judgment delivered in private, the Court of Cassation dismissed the applicant’s appeal on points of law against the judgment of 28 March 2011 as inadmissible. It held that, following recent law reforms, judgments delivered by the domestic courts in proceedings challenging the legality of a prosecutor’s decision not to institute criminal proceedings were no longer appealable before two degrees of jurisdiction.

On 4 August 2011 the applicant brought criminal proceedings with no civil claims against prosecutors G.B. and L.P. for breach of the secrecy of his correspondence, amongst other things. He argued that the two prosecutors had unlawfully monitored his electronic mail correspondence during the spring of 2010 and in June 2010 had publicly presented the content of one of his electronic mails in court.

By a final judgment of 12 June 2012 the Court of Cassation dismissed the criminal proceedings with no civil claims that had been brought by the applicant against prosecutor G.B. for forgery and use of forged documents during the course of the criminal proceedings conducted by the said prosecutor against him. It held that the offences alleged by him were in fact allegations of breaches of procedural rules by the prosecutor investigating his case, which could have been examined by the appellate courts over the course of the criminal proceedings instituted against him, particularly since the proceedings in question were still pending before the domestic courts.

By a final order of 26 June 2012 the Prosecutor’s Office attached to the Court of Cassation dismissed criminal proceedings that had been instituted by the applicant against prosecutors G.B. and L.P. on 4 August 2011 on the grounds that no unlawful act had been committed. The applicant did not appeal against the order before the domestic courts.

By a final order of 12 September 2012, the public prosecutor’s office attached to the Court of Cassation dismissed criminal proceedings that had been instituted by the applicant against, inter alia, prosecutors G.B. and L.P. for slanderous denunciation, unlawful arrest and abusive investigation, and forgery on the grounds that, amongst other things, the available evidence did not suggest the existence of any offence committed by the aforementioned prosecutors. The applicant did not challenge the decision before the domestic courts.

According to the applicant’s medical papers he has been suffering from type-two diabetes since 1997 and has been treated with insulin since 2009.

On 9 March 2010 at 10.30 p.m., prior to being placed in a detention cell, the applicant was examined by the detention center’s medical nurse. According to the report produced on that day, the applicant’s general condition was relatively good. He informed the medical nurse that he required insulin treatment twice a day, in the morning and in the evening. He said that he had tested his own blood sugar level using his own tester at 9 p.m. and that his blood sugar level was high.

On 10 March 2010 the applicant was examined by a doctor specialising in diabetes and nutrition. According to the medical certificate produced on the same day, the applicant was following a programme of treatment involving two insulin injections per day, one in the morning and one in the evening.

Between 12 March 2010 and 16 May 2012 the applicant was examined by specialist doctors and was tested ten times. According to the medical certificates produced on those dates, he continued to receive two injections of insulin per day until November 2011, but the dosage was increased twice. In addition, doctors recommended that he take sick leave on six occasions. Furthermore, on 11 February 2011 it was recommended that he take his evening insulin dosage no earlier than 8 p.m. In November 2011 he was advised to administer three insulin injections per day.

In his initial submission to the Court on 22 June 2011 the applicant stated that on 9 March 2010 at about 7.30 a.m. the two police officers holding the warrant to appear had taken him to the N.A.D.’s office. At the N.A.D.’s office he had been left waiting in a room until 12 noon, when the police officers informed him that he needed to retain the services of a legal representative. Afterwards, he had again been left waiting for hours.

At about 7 p.m. a publicly appointed legal representative had arrived and the applicant had been questioned by prosecutor G.B. in her presence. He had been asked two short questions and afterwards he had once more been left waiting.

At about 9 p.m. prosecutor G.B. had informed the applicant that he had been placed in police custody for twenty-four hours.

At about 10 p.m. he had been handcuffed and taken to the detention center. At the detention center the police guards had taken away from him the syringe, the insulin and the device for measuring blood sugar levels he had had on him. The applicant had informed the police guards that he was suffering from diabetes and retinopathy and that he had not eaten the entire day. His request for a medical test to be carried out by a doctor had been dismissed and he had been visited by a nurse.

In his submission before the Court on 16 August 2012 the applicant stated that on 9 March 2010 after being taken to the N.A.D.’s office, he had been locked in a room and guarded by armed guards. Although he had informed the prosecutor investigating his case that he had been suffering from diabetes requiring insulin treatment and retinopathy, the latter had refused to allow him to eat for the purposes of being able to take his insulin treatment.

On the same date, according to the applicant, his two mobile phones had been confiscated by the police officers who accompanied him to the N.A.D.’s office without producing a report attesting to this confiscation measure. Also, he had been denied contact with his family and had not been allowed to retain the services of a legal representative of his own choosing. During his placement in police custody he had not been provided with food appropriate to his condition or with plates, glasses or cutlery to be able to eat the food.

On 11 April 2013 the N.A.D. informed the Government that as soon as the applicant had informed the prosecutor investigating his case that he suffered from diabetes and needed his insulin treatment ‒ which would have to be brought from his workplace ‒ steps had been taken to retrieve the applicant’s treatment from his workplace. Within thirty minutes the applicant had had access to his treatment kit and had been allowed to use it without any restriction. In addition, the police officer who had brought the treatment kit from the applicant’s workplace had also bought food for the applicant using his own money and had allowed him to eat.

On the same date the N.A.D. informed the Government that the applicant had been questioned by the prosecutor as an accused from 12 noon to 12.34 p.m. The fact that the record of the applicant’s statement mentioned 9.34 p.m. (21.34) as the time when the hearing had ended had been an error, given that the next procedural act carried out by the prosecutor had started at 12.45 p.m. In addition, the N.A.D. stated and provided evidence that for the rest of the time the prosecutor had not been hearing or carrying out procedural acts in relation to the applicant, but rather had been working on procedural acts and measures undertaken in relation to the three remaining co-accused and the available witnesses.


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant, Ms Vanja Ćalović, is a Montenegrin national who was born in 1978 and lives in Podgorica. She is an executive director of MANS, a Montenegrin NGO. Its avowed aim is, inter alia, “to increase the transparency and responsibility of institutions and improve the civil control thereof”. The applicant was represented by Mr V. Radulović, a lawyer practising in Podgorica.

The Montenegrin Government (“the Government”) were represented by their Agent, Mrs V. Pavličić.

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

On 4 September 2006 the Government adopted an Action Plan for the Fight against Corruption and Organised Crime (“the Action Plan”). The Action Plan, inter alia, provided for “ensuring connection to the databases of telecommunication services providers for the purposes of collecting data, in accordance with police powers (ovlašćenjima) as provided for by the Criminal Procedure Code”.

On 27 September 2007, in accordance with this Action Plan, the Montenegro police (Uprava policije Crne Gore) concluded an agreement with M-tel, one of the telecommunication providers operating in Montenegro, which allowed them direct and uncontrolled access to M-tel’s entire database through an adequate interface “whenever possible and necessary”, including access to lists of all calls and their duration, messages, location, date, and time.

On 2 July 2008 the applicant, who was subscribed to M-tel’s services, filed a constitutional appeal with the Constitutional Court. She maintained that the police could obtain all the information on her telephone calls without any judicial control; that the police could directly access the computer network and database of mobile telephone operators; and that the scope of the police authority was unknown, given that the agreement was classified as “top secret” (strogo povjerljivo). In doing so, she relied on, inter alia, Article 8 of the Convention and the relevant case-law of the Court.

On 24 June 2010 the Constitutional Court rejected the applicant’s constitutional appeal as inadmissible, as it had not been lodged against any individual decision relating to her own rights. The decision was served on the applicant on 13 September 2010.

On 5 April 2016 the application was communicated to the respondent Government. In their observations dated 26 July 2016 the Government informed the Court of the following.

On 21 January 2011 the Data Protection Agency (“the Agency”) carried out an inspection at M-tel of its own motion. In a report of 4 February 2011 the Agency stated that the impugned agreement, concluded on the basis of Article 230 of the Criminal Procedure Code 2003 in force at the time (see paragraph 23 below), was contrary to certain sections of the Data Protection Act.

On 28 March 2011 the Agency, acting upon an objection by M-tel to the previous report, issued a decision ordering M-tel to discontinue providing data contrary to the Data Protection Act, a decision which was upheld by the Agency’s Council on 20 April 2011. The Agency’s Council also cited Article 8 of the Convention and some of the Court’s case-law in its decision, such as Malone v. the United Kingdom (2 August 1984, Series A no. 82), and Copland v. the United Kingdom (no. 62617/00, ECHR 2007I). None of the parties initiated a further administrative dispute before the Administrative Court.

On 17 April 2011 M-tel deactivated the login by which the police could access its data.

On 14 June 2011 the Agency carried out an inspection at the police offices. In a report of 20 June 2011 it stated that no irregularities had been found. In particular, M-tel had complied with the Agency’s decision and had deactivated the interface through which the police had direct access to its data.

Between an unspecified date in 2010 and 30 June 2016 the Agency received 106 protection requests, in relation to which it issued twenty decisions, eight of which were in favour of those who had submitted the requests. Apparently, in the remaining eighty-six cases, the Agency issued reports with recommendations which were complied with, thus no separate decision was necessary, and the proceedings were consequently terminated.

On an unspecified date the applicant and two of her colleagues instituted civil proceedings, seeking that the impugned agreement be declared null and void. They did not seek compensation.

On 19 July 2013 the Court of First Instance (Osnovni sud) in Podgorica ruled in favour of the applicant and her colleagues. It found that the agreement was contrary to, inter alia, Article 8 of the Convention and the Court’s case-law, and was thus null and void. The court analysed the agreement in detail and found that it had enabled the police to obtain direct and unrestricted access and recover all of M-tel’s data, without defining the scope of those measures or the method of their implementation, or against whom those measures could be applied or for which reasons. All of this, in the court’s opinion, represented an interference with citizens’ privacy and was not necessary within the meaning of Article 8 § 2 of the Convention. It also found that the provider’s clients had no means of establishing if any measures were in place or had been applied in the past in respect of them, nor did they have any “effective control” at their disposal, which also represented a violation of Article 8. The court cited Niemietz v. Germany (16 December 1992, Series A no. 251B); Halford v. the United Kingdom (25 June 1997, Reports of Judgments and Decisions 1997III); Lambert v. France (24 August 1998, Reports of Judgments and Decisions 1998V); and Malone (cited above).

That judgment became final on 5 August 2013.

On an unspecified date in 2011 the applicant and twenty-four colleagues filed a compensation claim against the police in relation to having their electronic communication put under surveillance in connection with the publication of a certain video on YouTube.

On 16 October 2014 the Court of First Instance in Podgorica ruled in their favour and awarded them 1,500 euros (EUR) each under section 207 of the Obligations Act (see paragraph 25 below). The court found that, on the basis of all the evidence, there was a reasonable probability that the communications of the applicant and her colleagues over the internet had been put under police surveillance for the purposes of identifying an IP address from which the said video had been put on YouTube, and that the applicant and her colleagues had never obtained the data thereby collected, even though they had explicitly asked for it. The court held that, even if the police action had been lawful, it did not meet the criterion of necessity in Article 8 § 2. It found a violation of Article 8 of the Convention and relied on the Court’s case-law, notably Gaskin v. the United Kingdom (7 July 1989, Series A no. 160), and Niemietz, Copland, and Halford (all three cited above).

On 2 March 2015 the High Court (Viši sud) in Podgorica reduced the damages awarded to EUR 500 each and upheld the remainder of the previous judgment.

On 2 July 2008 and 25 November 2011 MANS filed proposals for the assessment of the constitutionality of Article 230 of the Criminal Procedure Code 2003 and Article 257 § 2 of the Criminal Procedure Code 2009 (see paragraphs 23 and 24 below).

On 18 July 2013 and 23 July 2014 the Constitutional Court found the relevant part of those Articles unconstitutional and contrary to Article 8 of the Convention, namely the part which enabled the police to ask a telecommunication provider “to check if telecommunication addresses which established a connection at a certain time [were] identical” (see paragraph 23 below). In doing so, the Constitutional Court cited the Court’s case-law, such as Rotaru v. Romania [GC] (no. 28341/95, ECHR 2000V); Klass and Others v. Germany (6 September 1978, Series A no. 28); Kruslin v. France (24 April 1990, Series A no. 176A); Malone; and Copland (both cited above).

In accordance with this Act, a person who believes that his or her rights under this Act have been violated can file a request for protection with the Agency, an independent supervisory body, which has to make a decision on the request within sixty days (section 47(1) and (2), and sections 49-50). Those who collect, store, change, use, publish, erase or destroy information will be responsible for any damage caused by a violation of the rights provided for by this Act, in accordance with the general rules on compensation (sections 4a, 9 and 48). The Agency carries out an inspection (nadzor) of its own motion, but anybody else can also file a proposal for an inspection (section 65).

Article 230 provided, inter alia, that if there was a reasonable suspicion that a criminal offence prosecuted ex officio had been committed, the police had a duty to implement the necessary measures in order to find the perpetrator, ensure that the perpetrator or an accomplice did not flee or hide, uncover and secure the traces of the criminal offence and objects which could serve as evidence, and collect all the information which could be useful in criminal proceedings. Paragraph 2 of the same Article provided that, in order to fulfill their duties under paragraph 1, the police could ask a telecommunication services provider to “check if telecommunication addresses which established a connection at a certain time [were] identical” (zatraži provjeru identičnosti telekomunikacijskih adresa koje su u određenom vremenu uspostavile vezu). No court order was needed in this regard.

This Code entered into force on 1 September 2011 and thereby repealed the previous Code (except for Chapter XXIX, which is not relevant to the present case). The relevant part of Article 257 § 2 corresponded to Article 230 § 2 of the previous Code.

Section 151(1) provides that anyone is entitled to ask a court or another competent body to order the termination (prestanak) of an action violating his or her personal integrity, personal and family life and other personal rights (prava njegove ličnosti). Section 166(1) provides that a legal entity, including the State, is liable for any damage caused by one of “its bodies”. Sections 206-207 provide that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of personal rights (prava ličnosti) is entitled to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which might be capable” of affording adequate non-pecuniary relief. This Act entered into force on 15 August 2008.

Between 6 June 2013 and 2 October 2015 the High Court in Podgorica issued four judgments (Gž.br. 2182/13, Gž.br. 3884/13, Gž.br. 4669/14 and Gž.br. 4259/15-12) awarding damages to various plaintiffs for violations of their reputation, honour and personal rights (see paragraph 25 above). Two of the judgments were against the State, one against the city of Podgorica and one against a private person.


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

The applicant, Mr Adam Aslanbekovich Osmayev, is a Russian national, who was born in 1981. Until his release on 18 November 2014 he had been detained in Odessa. He was represented before the Court by Ms Y.V. Zaikina, a lawyer practising in Kyiv.

The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms N. Sevostianova.

The Russian Government exercised their right of third-party intervention in accordance with Article 36 § 1 of the Convention and were represented by the Representative of the Russian Federation at the European Court of Human Rights, Mr G. Matyushkin. Their submissions concerned the applicant’s complaint that he would be exposed to risk of ill-treatment in case of extradition to the Russian Federation.

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

On 8 May 2007 the Federal Security Service of the Russian Federation (“the FSB”) instituted criminal proceedings against the applicant and several other ethnic Chechens on suspicion of membership of a terrorist organisation and planning an assassination attempt on Ramzan Kadyrov, the president of the Chechen Republic, in the course of his visit to Moscow.

On an unspecified date the applicant left Russia and entered Ukraine in the winter of 2008.

On 24 March 2008 the FSB placed the applicant on the international wanted list.

On 2 April 2009 the Moscow City Court convicted some of the applicant’s co-defendants of various crimes, including planning an assassination attempt on Mr Kadyrov.

On 28 February 2012, following the applicant’s arrest in Ukraine (see paragraph 29 below), the General Prosecutor’s Office of the Russian Federation requested that its Ukrainian counterpart extradite the applicant to Russia on several charges including participation in an illegal armed group and planning an assassination attempt on a public figure. The request contained assurances that the applicant’s defence rights would be respected, that he would not be subjected to treatment contrary to Article 3 of the Convention, and would not be sentenced to the death penalty.

Following the applicant’s arrest in Ukraine, the Russian human rights organisation “Union of Solidarity with Political Prisoners” issued a statement recalling that it had previously declared the applicant to be a person persecuted for political reasons because it believed that the criminal case against him for the planning of an assassination attempt on Ramzan Kadyrov was fabricated and politically motivated.

On 6 March 2012 the FSB instituted criminal proceedings against the applicant on suspicion of planning an assassination attempt on the Prime Minister of Russia.

On 20 March 2012 the General Prosecutor’s Office of the Russian Federation sent its Ukrainian counterpart another request for the applicant’s extradition on charges of planning an assassination attempt on a public figure and several related charges in connection with the criminal proceedings instituted against the applicant on 6 March 2012. The request contained assurances identical to those in the request of 28 February 2012.

On 26 April 2012 Ms Nadia Banchik, an American member of Amnesty International, wrote to the President of Ukraine urging him to prevent the applicant’s extradition to Russia in view of the risk of ill-treatment and an unfair trial. Relying in particular on examples from the reports of Amnesty International, she described the alleged serious ill-treatment suffered by a number of Chechens at the hands of Russian law enforcement authorities and Ramzan Kadyrov’s forces.

On 11 July 2012 the General Prosecutor’s Office of Ukraine (“the GPO”) decided to extradite the applicant to Russia.

On 23 July 2012 the applicant appealed against the extradition decision. He noted, in particular, that if extradited he would be deprived of the right to be tried in Ukraine and compensation for the damage caused to Ukrainian victims of his crimes in Ukraine would be hindered, and that he was being persecuted by Russian authorities for political reasons. He also noted that proceedings concerning his asylum request in Ukraine were pending (see paragraph 22 below) and that he faced the risk of ill-treatment contrary to Article 3 of the Convention, unfair trial and the death penalty in Russia. He referred to Nadia Banchik’s letter and the statement of the Union of Solidarity with Political Prisoners (see paragraphs 10 and 13 above).

On 30 July 2012 the applicant sent a declaration renouncing his Russian citizenship to the Federal Migration Service of the Russian Federation.

On 3 August 2012 the Odessa Malynovskyy District Court (“the Malynovskyy Court”) examined the applicant’s appeal in the presence of the applicant and his lawyer and upheld the decision. It found, in particular, that in the light of the assurances provided by the Russian authorities and the nature of the accusations against him, the applicant’s allegations concerning the risk of the death penalty, ill-treatment and politically motivated prosecution were unsubstantiated. The court also held that the publications about the occurrence of torture in Russia in general did not prove that the applicant personally would be ill-treated. The court stated that the decision of 8 June 2012 to dismiss the applicant’s request for asylum (see paragraph 24 below) proved that the applicant was not a permanent resident of Ukraine, which would prevent his extradition under domestic law. The court took no decision concerning the applicant’s detention pending extradition.

The applicant appealed against the decision of the District Court, referring to essentially the same arguments as before and also stating that he had renounced his Russian citizenship, alleging that he had been ill-treated by the police following his arrest in Ukraine, and that he was suffering from partial amnesia and was unsure of his identity.

On 14 August 2012 the Odessa Regional Court of Appeal (“the Court of Appeal”) examined the applicant’s appeal against the decision to extradite him and upheld the extradition. The court referred to the assurances provided by the Russian authorities.

On 15 August 2014 the General Prosecutor’s Office of Ukraine revoked its decision of 11 July 2012 and rejected the Russian authorities’ requests for the applicant’s extradition on the ground that if extradited, he would face a risk that his rights guaranteed by Articles 3, 6 and 14 of the Convention would not be secured.

In early 2015 a number of media outlets reported that the applicant was serving as leader of a battalion fighting on the side of Ukrainian Government forces in the eastern regions of Ukraine.

On 24 April 2012 the applicant lodged an application for political asylum with the State Migration Service of Ukraine (“the Migration Service”), maintaining that he had never been involved in any terrorist activities and that his criminal prosecution in the Russian Federation was political repression in disguise. In particular, he was a member of a prominent family which used to have considerable influence in Chechnya before Ramzan Kadyrov came to power; his father used to chair an oil company in Chechnya and his uncle used to be the Speaker of the Chechen Parliament. Following Ramzan Kadyrov’s rise to power, the family had been driven out of Chechnya. The applicant had publicly shared his dissatisfaction with the policies of Ramzan Kadyrov and the Russian authorities in respect of Chechnya. His political views, in particular his support for a free and independent Chechnya, and his being a personal enemy of Ramzan Kadyrov, were the real reasons for his persecution by the Russian authorities. He stated that numerous instances of torture and killings by Russian law-enforcement bodies and Ramzan Kadyrov’s armed groups indicated that he would be tortured and killed if he were extradited to Russia.

In a report prepared following the examination of the applicant’s asylum application, a head of section of the Odessa Regional Department of Refugee Affairs of the Migration Service recommended that the application be refused. He found that the applicant’s submissions concerning threats allegedly made against him in Russia in connection with negative statements about Ramzan Kadyrov were not credible since he had been an ordinary citizen and had not been a member of any political group and that the applicant had been misleading the Ukrainian authorities in order to delay his extradition to Russia. There were also indications of his being involved in terrorist activity, in particular because: he had shown interest in literature associated with the Wahhabi version of Islam; his life partner Ms A.O. had also displayed Wahhabi tendencies; he had acknowledged that he had had links with persons prosecuted for terrorist activities. The report also referred to an internet publication of Rosbalt, a Russian news agency, according to which the applicant’s three co-suspects had been convicted in 2009 for planning an assassination attempt on Ramzan Kadyrov. The report went on to note that there were no indications that the convicted co-suspects had been ill-treated. The report further stated that the Russian authorities had provided assurances that the applicant’s rights would be guaranteed.

On 8 June 2012 the Odessa Regional Department of Refugee Affairs refused to initiate asylum proceedings in respect of the applicant, having found that his application was manifestly inadmissible. The Department noted, in particular, that owing to the applicant’s arrival in Ukraine in 2008, the 2012 application lodged after his arrest was time-barred and that in any event his allegations of being a victim of political repression were ill-founded.

On 23 July 2012 the applicant challenged the decision of 8 June 2012 before the Odessa District Administrative Court. He argued that he had not missed the five-day time-limit for challenging the decision because the decision had been sent to his place of detention in Ukraine, without an explanation as to the procedure for challenging it. The applicant’s lawyer had only met him on 19 July 2012, and then translated the decision for the applicant and explained the procedure for challenging it.

On 7 August 2012 the Odessa District Administrative Court dismissed the applicant’s complaint without considering it on the merits. It held that the applicant had missed the five-day time-limit for challenging the decision of 8 June 2012 since the decision had been served on him on 5 July 2012 and he had had sufficient knowledge of Ukrainian to understand it. On 4 September 2012 the Odessa Administrative Court of Appeal upheld this decision.

On 4 January 2012 a private flat in Odessa, Ukraine, caught fire as a result of an explosion. On entering the flat, the firefighters discovered I.P., a Kazakh national, seriously burned, and the dead body of R.M., a Russian national. The police found traces of explosives in the flat and arrested I.P.

On 16 January 2012 the Odessa police instituted criminal proceedings against the applicant, I.P. and R.M. (deceased) on suspicion of having intentionally caused property damage and of illegal handling of explosives. On the same day the Odessa Prymorskyy District Court (“the Prymorskyy Court”) authorised the applicant’s arrest.

On 4 February 2012 the applicant was arrested in Odessa. During the arrest a passport in the name of S. Dolakov with the applicant’s photograph in it was seized.

On 7 February 2012 the Prymorskyy Court ordered that the applicant be placed in pre-trial detention for two months pending a criminal investigation against him for intentional property damage and illegal handling of explosives.

On 12 March 2012 the Security Service of Ukraine (“the SBU”) charged the applicant and I.P. with membership of a terrorist group, planning of terrorist acts, illegally handling explosives and intentionally causing property damage.

On 3 April 2012 the Prymorskyy Court extended the applicant’s pre-trial detention until 4 June 2012.

On 3 May 2012 the Court of Appeal extended the applicant’s detention pending criminal investigation until 4 August 2012.

On 18 July 2012 the SBU additionally charged the applicant with having crossed the Ukrainian border using a false identity document, while charges against him were amended from intentionally causing property damage to negligently causing property damage.

On 31 July 2012 the Court of Appeal extended the applicant’s detention until 4 October 2012.

On 25 August 2012 the applicant’s co-accused, I.P., was extradited to Russia.

On 28 September 2012 the Court of Appeal extended the applicant’s detention until 4 November 2012.

According to the Government, on 26 October 2012 the Higher Civil and Criminal Court extended the applicant’s detention until 4 February 2013.

On 1 November 2012 the investigation was completed and the applicant was given time to study the case file.

On 18 November 2014 the Prymorskyy Court convicted the applicant of illegally handling explosives, negligently causing property damage, and forgery. It sentenced him to two years, nine months and fourteen days’ imprisonment. As the length of time spent in pre-trial detention was deducted from this sentence, the applicant was released immediately.

Effective from 17 June 2010, a new Chapter 37 governing extradition procedures was added to the Code.

The relevant provisions of Chapter 37 of the Code read as follows:

The General Prosecutor’s Office shall be the central authority concerning extradition of the accused (suspect) where the proceedings [in the foreign State] are at the stage of pre-trial investigations.

“The extradition inquiry concerning circumstances capable of preventing the person’s extradition shall be carried out by the central authority or, upon its instructions (request), by the regional prosecutor’s office.

Extradition arrest shall be applied until a decision on the extradition of the person concerned and his actual surrender (extradition), but shall not last more than eighteen months.

Within this period, and not less than once every two months, the judge at the place of the person’s detention shall check, upon the prosecutor’s request, if there are grounds for further detention of the person or for his or her release.

“A person’s extradition to a foreign State shall be refused if:

5) the person’s extradition is incompatible with Ukraine’s undertakings under its international treaties;

6) there are other circumstances envisaged by an international treaty to which Ukraine is a party.

“Having examined the materials of the extradition inquiry, the central authority shall take a decision to extradite the person or to refuse [his or her] extradition to the foreign State. The decision shall be taken by the head of the central authority or his or her deputy.

If a decision to extradite the person is taken, that person shall be given a copy of the decision. If the decision has not been challenged before a court within seven days, actual transfer of the person to the competent authorities of the foreign State shall be organised.”

“A decision to extradite may be appealed against by the person concerned, his or her defence counsel or legal representative to a local court at the place of the person’s detention.

The appeal shall be examined in a single-judge formation within ten days of the date of its receipt by the court. The hearing shall be held in the presence of the prosecutor, the person concerned, his or her defence counsel or legal representative, if the latter participates in the proceedings.

When examining the appeal, the judge shall not consider the question of guilt and shall not review the lawfulness of procedural decisions taken by the competent authorities of the foreign State in the proceedings against the person whose extradition is requested.

Following the examination, the judge shall take a reasoned decision:

1) rejecting the appeal;

2) allowing the appeal and quashing the decision to extradite.

After the judge’s decision quashing the decision to extradite takes effect, the person concerned shall be immediately released from detention.

An appeal against the judge’s decision may be lodged with a court of appeal by the prosecutor who participated in the hearing before the court of first instance or by the person concerned, his or her defence counsel or legal representative, within seven days of the date of delivery of the impugned decision. The lodging of an appeal against the judge’s decision is of suspensive effect.”

The relevant provisions of the Code of Criminal Procedure with respect to detention pending investigation and trial can be found in the Court’s judgment in the case of Molodorych v. Ukraine (no. 2161/02, §§ 56-58, 28 October 2010).

Under section 5 of the Act, a person seeking to be recognised as a refugee or a person in need of complementary protection in view of a threat to his or her life, security or freedom in the country of origin may lodge an application for asylum with the Migration Service in Ukraine. The application must be lodged within five days of crossing the border, if the person entered Ukraine lawfully, or “without delay” in the case of unlawful entry.

Section 8 lays down the procedure for preliminary consideration of applications for asylum, which must be completed within fifteen days. In particular, the Migration Service holds interviews with the applicants, considers the information contained in the applications and relevant documents, and takes a decision on the admissibility of the applications. In taking this decision, it must decide whether “documents for the consideration of the question of granting refugee status or the status of a person in need of complementary protection are to be prepared”. The Migration Service refuses to prepare such documents in respect of applications which are manifestly ill-founded (do not concern the circumstances calling for protection), constitute an abuse of the right of application (the applicant submits false identity information), or are submitted by persons whose previous applications were rejected as unsubstantiated and where the circumstances have not changed. Within three working days written notice of the refusal, indicating the reasons on which it is based and the procedure of appeal, is given to the applicants or their official representatives. An appeal may be lodged with the courts within five days of the notification.

The relevant provisions of the Resolution read as follows:

“For the purposes of the uniform application of the legislation governing extradition to other States and the protection of fundamental human rights and freedoms, the Plenary Supreme Court resolves that:

Having regard to the fact that the current legislation does not allow the courts independently to give permission for extradition of persons and that, pursuant to Article 22 of the European Convention on Extradition and similar provisions of other international treaties to which Ukraine is a party, the extradition procedure is regulated solely by the law of the requested State; the courts are not empowered to decide on this issue.


No violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1968 and lives in Matulji.

On 8 October 2008 the applicant was arrested on suspicion of incitement to aggravated murder in that he, together with another person, had incited a person who had owed them money to kill their competitors in the security business in Rijeka, and that for that purpose they had obtained machine guns and explosive devices.

An investigation in respect of the applicant was opened in the Rijeka County Court (Županijski sud u Rijeci) on 10 October 2008.

On the same day an investigating judge of the Rijeka County Court remanded the applicant in custody under Article 102 § 1 (2), (3) and (4) of the Code of Criminal Procedure (risk of collusion, risk of reoffending and seriousness of charges). The judge held that there was a risk that the applicant might suborn several witnesses who were to be questioned during the investigation, and that his clear determination to commit the offence at issue and its possible consequences justified his detention on the grounds of risk of reoffending and the seriousness of the charges.

The applicant’s detention was extended on 7 November 2008 under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). The investigating judge found that the witnesses had already been questioned and that therefore there was no reason to remand the applicant in custody on the grounds of risk of collusion. However, the judge reiterated that the applicant’s clear determination to commit the offence and its possible consequences warranted the applicant’s detention on the grounds of risk of reoffending and the seriousness of the charges.

On 14 November 2008 the investigation in respect of the applicant was expanded to the offences of unlawful possession of firearms and explosives.

The investigating judge extended the applicant’s detention on 5 December 2008 under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges) using the same reasons as in his previous decision.

The applicant appealed on 11 December 2008, arguing that the reasons put forward by the investigating judge were not convincing justifications for his detention.

On 17 December 2008 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the investigating judge.

On 31 December 2008 the Rijeka County State Attorney’s Office (Županijsko državni odvjetništvo u Rijeci) indicted the applicant in the Rijeka County Court on charges of incitement to aggravated murder and unlawful possession of firearms and explosives. Another individual, I.F., was also indicted in the same proceedings on charges of incitement to aggravated murder. Later, on 23 January 2009, criminal proceedings against another person, V.V., on charges of trafficking in firearms were joined to the proceedings against the applicant and I.F. in the Rijeka County Court.

A three-judge panel of the Rijeka County Court extended the applicant’s detention on 7 January 2009, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and seriousness of charges). The relevant part of the decision reads:

“There is a reasonable suspicion that the accused have committed the offences at issue. The fact that the second accused, Robert Dragin, in an agreement with the first accused, I.F., twice went to the Republic of Bosnia and Herzegovina in order to find a machine gun and an explosive device suggest determination to commit the offences they are suspected of, and the fact that a larger quantity of unlawful weapons and explosive devices have been found in the possession of the second accused, Robert Dragin, suggest that they might reoffend ...

The fact that the offence of [aggravated murder] was planned to take place in Rijeka city centre near the M. bar, where a lot of young people gather, suggests to this panel that the circumstances of the offence are particularly serious ... “

On 12 January 2009 the applicant lodged an appeal against the above decision with the Supreme Court (Vrhovni sud Republike Hrvatske) arguing that the alleged offences at issue had never even been attempted and thus there was nothing which suggested that he might reoffend or that there were particularly serious circumstances warranting his detention.

The Supreme Court allowed the applicant’s appeal and on 4 February 2009 reversed the decision of the Rijeka County Court by ordering the applicant’s detention only under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). It held that the applicant’s alleged determination to commit the offences suggested that he might reoffend but that the reasons put forward by the Rijeka County Court as to the seriousness of the charges were not relevant, because all the circumstances referred to were essentially subsumed under the risk of reoffending. It also explained that the reference to the possibility that the offence of aggravated murder would be committed in a public place was irrelevant, because the offence had never been attempted, let alone executed.

On 24 February 2009 a three-judge panel of the Rijeka County Court returned the indictment to the Rijeka County State Attorney’s Office and ordered it to conduct a further investigation, as not all the relevant circumstances had been established.

During the resumed investigation, on 3 April 2009 the investigating judge of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating that his determination to commit the offences suggested that he might reoffend.

On 6 April 2009 the applicant appealed against the above decision, reiterating his previous arguments.

The applicant’s detention was further extended by a three-judge panel of the Rijeka County Court on 8 April 2009 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) relying on the alleged determination on the applicant’s part to commit the crime, and on , which suggested that the applicant might reoffend if at liberty.

On 10 April 2009 a three-judge panel of the Rijeka County Court dismissed the applicant’s appeal of 6 April 2009 (see paragraph 20 above) as ill-founded.

On 14 April 2009 the applicant lodged an appeal against the remand in custody of 8 April 2009 (see paragraph 21 above) arguing, inter alia, that it was impossible in practice for him to reoffend, because the alleged incitement to murder was in respect of a person who later became a protected witness and was at present cooperating with the prosecuting authorities.

On 13 May 2009 the Supreme Court dismissed the applicant’s appeal as ill-founded, noting:

“The circumstances suggesting that the accused I.F. and Robert Dragin [might reoffend] can be observed from the indictment by which they are charged with having, for the purpose of obtaining material benefit and with reprehensible motives, incited a person who owed them money to kill others who were competitors in the security business in Rijeka, and that for that purpose they had obtained machine guns and explosive devices with a remote detonator and 238 grams of plastic explosive, which they intended to plant under the vehicle of one of the putative victims. All these circumstances show particular determination on the part of the accused. Therefore, the Supreme Court, as the second-instance court, considers that they should be remanded in custody under Article 102 § 1 (3) of the Code of Criminal Procedure in order to prevent them from continuing with such activity.

that they were determined to commit a murder, that argument is of no relevance.

Furthermore, both accused submitted numerous complaints concerning the conduct of the proceedings, to which they wrongly attached great significance, arguing that the first-instance court had failed to follow the instruction to return the indictment to the State Attorney’s Office for a further investigation, and that consequently the investigation was never completed, while the maximum period of detention during the investigation had expired.

The case file shows that the accused were arrested on 8 October 2008 ... and that by extending their detention on 8 April 2009, after the investigating judge had returned the case file to the State Attorney’s Office and the latter had submitted it to a three-judge panel [of the Rijeka County Court], the time-limit under Article 106 § 3 of the Code of Criminal Procedure had not expired. In these circumstances, and given that this court, when deciding on the appeal against the decision to extend the detention, cannot go into all the complaints submitted in the appeal, all such complaints are ill-founded ... “

A three-judge panel of the Rijeka County Court on 13 July 2009 extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), holding as follows:

“The accused are charged with developing a detailed plan to commit the offence of incitement to aggravated murder under Article 91(4) and (6) in conjunction with Article 37 of the Criminal Code; it was planned that the murder would be committed by another person, who owed them money. The first accused, I.F., had arranged the purchase of the firearms and explosives and the second accused, Robert Dragin, had travelled twice to Bosnia and Herzegovina to bring them to Croatia, after which he had passed them to the other person, instructing him how to use them and telling him the time and place the killing was to take place. Then he [together with the other person] damaged the vehicle which one of the victims should have driven, to ensure that the victim would use a car under which an explosive device had been planted.

This court finds that the said circumstances show particular determination on the part of the accused, and suggest that the first accused I.F. and the second accused Robert Dragin might reoffend if at liberty, and therefore their detention is necessary under Article 102 § 1 (3) of the Code of Criminal Procedure.”

On 16 July 2009 the applicant lodged an appeal with the Supreme Court against the above decision, arguing that it was impossible in practice for him to reoffend as suggested in the reasoning of the Rijeka County Court.

The Supreme Court dismissed the applicant’s appeal on 10 August 2009 as ill-founded, reiterating its previous arguments.

On 9 October 2009 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating its previous reasoning.

The first hearing before the Rijeka County Court was held on 19 and 20 October 2009; the applicant and the other accused pleaded not guilty. The trial court questioned three witnesses and adjourned the hearing.

A further hearing was held on 30 November 2009; the trial court heard evidence from three witnesses.

On 30 December 2009 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating the reasoning from its previous decisions.

At a hearing on 21 January 2010 the trial court examined the evidence from the case file and adjourned the hearing. Another hearing was scheduled for 4 March 2010, but was adjourned because the case file was at the Supreme Court.

At a hearing on 15 March 2010 three expert witnesses gave oral evidence.

On 22 March 2010 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). The relevant part of the decision reads:

“The accused are charged with developing a detailed plan to commit the offence of incitement to aggravated murder under Article 91(4) and (6) in conjunction with Article 37 of the Criminal Code; it was intended that the murder should be committed by another person, who owed them money. The first accused, I.F., had arranged the purchase of the firearms and explosives and the second accused, Robert Dragin, had travelled twice to Bosnia and Herzegovina to bring them to Croatia, after which he passed them to the other person, instructing him how to use them and telling him the time and place the killing was to take place. Then he [together with the other person] damaged the vehicle which one of the putative victims was supposed to drive in order to ensure that the victim would use a car under which an explosive device had been planted.

The period of the alleged criminal activity and the planning of the offences, including the incitement and instructions given to Č.Đ., show a keen determination on the part of the accused to commit the offences, which suggests that the first accused I.F. and the second accused Robert Dragin might reoffend if at liberty, and therefore their detention under Article 102 § 1 (3) of the Code of Criminal Procedure is necessary.”

Further hearings were held between 12 and 14 April 2010, at which the trial court heard evidence from four witnesses and one expert witness.

Hearings were also held on 3 and 21 May 2010, at which the trial court questioned three witnesses and the third accused, V.V.

On 31 May 2010 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

At a hearing on 4 June 2010 the trial court heard evidence from one witness and the parties made their closing arguments.

On 8 June 2010 the Rijeka County Court found the applicant guilty on charges of incitement to aggravated murder and unlawful possession of firearms and explosives, and sentenced him to six years and three months’ imprisonment.

The applicant appealed to the Supreme Court against the first-instance judgment on 1 and 8 August 2010. He argued that the judgment had numerous substantive and procedural flaws.

On 10 May 2011 the Supreme Court quashed the first-instance judgment of the Rijeka County Court and ordered a retrial on the grounds of procedural errors in the way in which the evidence was taken during the trial.

The Supreme Court remanded the applicant in custody under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) referring to his determination to commit the offences and the circumstances in which the offences were allegedly committed.

On 8 July 2011 a three-judge panel of the Rijeka County Court extended the applicant’s pre-trial detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) relying on the same reasons provided in its previous decisions.

The applicant’s detention was further extended by a three-judge panel of the Rijeka County Court on 14 September 2011 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

A hearing scheduled for 14 September 2011 was adjourned because the third accused failed to appear for health reasons.

On the same day the Rijeka County State Attorney’s Office asked the Supreme Court to extend the maximum period allowed for the applicant’s detention, relying on Article 109 § 3 of the Code of Criminal Procedure. It reiterated that the applicant should be remanded in custody on the grounds of risk of reoffending.

On 19 September 2011 the applicant lodged an appeal against the decision on his detention of 14 September 2011 (see paragraph 44 above), which the Supreme Court dismissed as ill-founded on 26 September 2011.

The Supreme Court on 26 September 2011 ordered the Rijeka County Court to examine the request of the Rijeka State Attorney’s Office of 14 September 2011 (see paragraph 46 above) on the grounds that the applicant’s detention should first be extended under Article 109 § 2 of the Code of Criminal Procedure and only after the time-limit under that provision expired should it be extended under § 3 of the same Article.

On 7 October 2011 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 109 § 2 of the Code of Criminal Procedure for a further nine months. The relevant part of the decision reads:

“The accused, Robert Dragin, has been in custody since 8 October 2008. His detention was extended by a decision of this court ... on 14 September 2011 under Article 102 § 1 (3) of the Code of Criminal Procedure, while his appeal was dismissed by a decision of the Supreme Court ... of 26 September 2011. Therefore, in view of the fact that on 8 October 2011 the period of his detention will amount to three years, which under Article 109 § 1 (5) of the Code of Criminal Procedure is the maximum period of detention, and that the non-final judgment of this court ... of 8 June 2010 was quashed by the decision of the Supreme Court ... of 10 May 2011, [this panel] needs to examine whether his pre-trial detention should be extended under Article 109 § 2 of the Code of Criminal Procedure ...

This panel finds that the detention of the accused, Robert Dragin, should be extended for one-quarter [of the general maximum period of detention], that is to say nine months.

... in view of the gravity of the offences the accused is suspected of, and the prescribed sentence, [this panel], under Article 109 § 2 in conjunction with Article 109 § 1 (5) of the Code of Criminal Procedure, extends the overall period of detention for one-quarter [of the general maximum period of detention], that is to say nine months, which should be sufficient to complete the proceedings.”

On 14 October 2011 the applicant lodged an appeal with the Supreme Court, arguing that Article 109 § 2 of the Code of Criminal Procedure was inapplicable in his case, since it concerned situations where an appeal against a first-instance judgment by which an accused had been found guilty was pending before the appeal court. In his case, however, the first-instance judgment had been quashed. He also contended that the extension of the time-limits for pre-trial detention was an exceptional measure applicable only where the trial court, even with maximum diligence, was unable to terminate the proceedings in time as a result of objective impediments. In his case, he saw no such circumstances and pointed out that the Rijeka County Court had provided no reasons in that respect.

On 25 October 2011 the Supreme Court dismissed the applicant’s appeal. The relevant part of the decision reads:

“This court finds that Article 109 of the Code of Criminal Procedure allows the court, in situations where the first-instance judgment and the second-instance judgment which quashed it have been adopted within the [general] time-limit provided for in Article 109 § 1, to extend the detention first under Article 109 § 2 and then under Article 109 § 3. In such cases, the period of detention under Article 109 § 3 should be extended only when the period of detention under Article 109 § 2 has expired, irrespective of whether the judgment has been upheld in the retrial or not.

Therefore, the Supreme Court considers that, contrary to the arguments in the appeal, the first-instance court lawfully and correctly extended the overall period of detention of the accused, Robert Dragin, for a quarter [of the general maximum period of detention], that is to say nine months, under Article 109 § 2 of the Code of Criminal Procedure.”

A hearing scheduled for 26 October 2011 was adjourned because the defence of the first accused sought the withdrawal of members of the trial panel and the prosecution, and also of the President of the Rijeka County Court. These requests were dismissed as ill-founded on 9 and 29 November 2011.

On 27 November 2011 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) about the decisions on his detention reiterating the complaints that he raised before the Supreme Court.

On 22 December 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts.

On 22 December 2011 a three-judge panel of the Rijeka County Court extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

The applicant lodged an appeal against the above decision on 30 December 2011, arguing that there were no relevant or sufficient reasons for his continued detention.

The Supreme Court dismissed the applicant’s appeal as ill-founded on 11 January 2012, endorsing the reasoning of the Rijeka County Court.

A hearing scheduled for 31 January 2012 was adjourned because one of the defence lawyers was on sick leave.

A three-judge panel further extended the applicant’s detention on 9 March 2012 under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

A hearing scheduled for 14 March 2012 was adjourned because the applicant’s defence sought the withdrawal of members of the prosecution team, on the grounds that they had abused their powers in dealing with his case.

On 14 March 2012 the applicant appealed against the decision on his detention of 9 March 2012 (see paragraph 59 above) reiterating his previous arguments.

Between 21 and 23 March 2012 the applicant’s request for the withdrawal of the prosecution team members was dismissed as ill-founded.

The Supreme Court allowed the applicant’s appeal against the decision on his detention (see paragraph 61 above) and on 23 March 2012 quashed the decision of the Rijeka County Court on the grounds that a member of the three-judge panel had previously been excluded from the case. It ordered the Rijeka County Court to re-examine the case speedily.

On 2 April 2012 a three-judge panel of the Rijeka County Court, this time in a different composition, extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating the reasons in its previous decisions.

On 10 April 2012 the applicant lodged an appeal with the Supreme Court which was dismissed on 20 April 2012 as ill-founded.

A hearing scheduled for 21 May 2012 was adjourned because the first accused was ill.

On 20 June 2012 a three-judge panel again extended the applicant’s detention under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending) reiterating the reasoning in its previous decisions.

On 26 June 2012 the applicant lodged an appeal with the Supreme Court, arguing that ever since the first-instance judgment had been quashed there had been no activity in the proceedings. He also pointed out that, in view of the overall length of his detention and the first-instance court’s lack of diligence in its conduct of the proceedings, his detention had become a prison sentence. Therefore, it was disproportionate to its purpose.

On 29 June 2012 the Rijeka County State Attorney’s Office, relying on Article 109 § 3 of the Code of Criminal Procedure, asked the Supreme Court to extend further the maximum period of the applicant’s detention already extended under Article 109 § 2 of the Code of Criminal Procedure (see paragraph 51 above).

On 6 July 2012 the Supreme Court allowed the request and extended the applicant’s detention for a further year. The relevant part of the decision reads:

“Since all [permissible] time-limits for detention under Article 109 §§ 1 (5) and 2 of the Code of Criminal Procedure have been exhausted, the conditions have been met to extend the detention of the accused, Robert Dragin, under Article 109 § 3 of the Code of Criminal Procedure. Since the proceedings at issue are now before the first-instance court, it is reasonable to expect that in order to conclude the proceedings the detention should be extended for the maximum period of a further year.”

On the same day the Supreme Court dismissed the applicant’s appeal against the decision on his detention of 20 June 2012 (see paragraphs 67 and 68 above) as ill-founded.

On 12 August 2012 the applicant lodged a constitutional complaint with the Constitutional Court, reiterating his previous arguments. He pointed out in particular that his detention could not be extended cumulatively under Article 109 §§ 2 and 3 of the Code of Criminal Procedure, since those provisions concerned two different situations. In any event, it was only possible to extend the detention for the maximum period in exceptional circumstances, which did not exist in his case. He also argued that the trial court had not conducted his case with due diligence.

On 31 August 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the Supreme Court.

A three-judge panel of the Rijeka County Court extended the applicant’s detention on 6 September 2012, under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending), reiterating its previous arguments.

On 13 September 2012 the applicant lodged an appeal with the Supreme Court, reiterating his previous arguments, particularly lack of due diligence in the conduct of the proceedings.

Another hearing, scheduled for 25 September 2012, was adjourned because the first accused was ill.

On 3 October 2012 the Supreme Court allowed the applicant’s appeal of 13 September 2012 (see paragraph 75 above) and ordered his release from detention. The Supreme Court noted that the applicant had been detained since 8 October 2008 and that ever since the first-instance judgment had been quashed no hearing had been held in the proceedings at issue, and it was uncertain when a hearing would be held. It therefore considered that the applicant should be released in order to prevent the pre-trial detention from becoming a prison sentence.

The criminal proceedings against the applicant are still pending.


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

The applicant, Mr Akif Kazim oglu Mammadov (Akif Kazım oğlu Məmmədov), is an Azerbaijani national born in 1955 and currently serving a prison sentence in Baku.

He was represented before the Court by Mr I. Ashurov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov.

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

At the time of the events, the applicant served as a police major in the Ministry of Internal Affairs. He worked for the Saatli District Police Organised Crime Department.

At around 10 p.m. on 22 March 2005, at a location near the Azerbaijani-Iranian border in the Imishli District, the applicant and an acquaintance (U.H.) received approximately 71.75 kg of marijuana from an Iranian national who had smuggled the drugs through the State border. The two accomplices put the packages of marijuana in the boot of the applicant’s car. When they attempted to drive off, a number of MNS agents, who had surveilled the operation, tried to stop the car. Shots were fired and two bullets reached the car’s interior and wounded the applicant in the left leg. Despite his bullet wounds, the applicant managed to continue driving his car and escape from the scene.

The applicant and U.H. drove several kilometres, then disposed of the packages of marijuana and abandoned the car. Shortly afterwards the applicant and U.H. were arrested by the MNS agents. The applicant was first brought to the Imishli District Department of the MNS, but due to his wounds thereafter transferred to the Imishli District Hospital for treatment.

The record of arrest compiled by the MNS agents on 23 March 2005 also described the circumstances of the operation of 22 March 2005. The relevant part of the record reads as follows:

“...Two persons who were in the car tried to escape from the scene of the crime by speeding the car towards the MNS agents. Although the MNS agents fired a warning shot into the air, the driver tried to hit them by car and at that moment shots were fired at the car’s tyres. Two persons in the car began to drive the car through the village in the direction of the fields situated in the Beylagan District...”

On 24 March 2005 criminal proceedings were instituted by the Investigation Department of the MNS in connection with above-mentioned incident, under Articles 206, 234.4.1 and 234.4.3 of the Criminal Code.

At 6.10 p.m. on 24 March 2005 an investigator from the MNS issued a record of the applicant’s detention as a suspect (tutma protokolu) in the presence of him and his lawyer. He was suspected of smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances under Articles 206, 234.4.1 and 234.4.3 of the Criminal Code. The applicant claimed his innocence and stated that he had not known that the packages had contained marijuana. He submitted that U.H. had lied to him about what they had contained, and that he had only gone to the border area at U.H.’s request. He further confirmed that after his arrest, he had first been taken to the Imishli District Department of the MNS, and then to the Imishli District Hospital, where he had been provided with medical assistance. He did not challenge the lawfulness of the force used against him during the operation of 22 March 2005.

On 26 March 2005 the applicant was officially charged with smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances. On the same day the investigator questioned him again, now as an accused, in the presence of his lawyer. The applicant reiterated his previous statement. On the same day the applicant was brought before the Sebail District Court which ordered his pre-trial detention for a period of three months.

On 28 April 2005 the applicant’s lawyer asked the investigator to order a forensic examination to determine whether the applicant’s state of health was compatible with his pre-trial detention, as he suffered from ischemic heart disease and had once suffered a heart attack.

On 29 April 2005 the investigator dismissed the request after deciding that a forensic examination of the applicant was not necessary.

On 14 June 2005 the investigator lodged the indictment with the Assize Court.

According to the applicant, on 4 July 2005 at a hearing before the Assize Court in the course of the criminal trial, he submitted that on 22 March 2005 the MNS agents had shot at his car without first firing a warning shot, as a result of which he had been wounded in the left leg. He further claimed that the agents had not been wearing vests identifying them as officers of the law-enforcement authorities and he therefore could not identify them in the darkness. The applicant also complained that he had not been provided with adequate medical assistance during the first fifteen days of his detention in the MNS detention facility.

The proceedings before the Assize Court ended on 13 July 2005 with a judgment in which the court found the applicant guilty of smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances and sentenced him to fifteen years’ imprisonment. The court also ordered that his car be confiscated as it had been used in the crime. The court did not in its judgment refer to the issues related to the operation of 22 March 2005 and the alleged lack of adequate medical assistance following his arrest, as submitted by him on 4 July 2005 (cf. paragraph 14).

In August 2005 the applicant appealed against his conviction, claiming his innocence. He complained about the assessment of the evidence by the Assize Court and argued that the lower court had not taken into account when sentencing him to fifteen years’ imprisonment.

On 15 September 2005 the Court of Appeal upheld the applicant’s conviction, but reduced his sentence to thirteen years’ imprisonment, taking into account certain mitigating circumstances.

In March 2007 the applicant lodged a cassation appeal. He claimed his innocence, complaining about the assessment of the evidence by the lower courts.

On 22 May 2007 the Supreme Court upheld the Court of Appeal’s judgment of 15 September 2005.

In accordance with Article 37 of the Code of Criminal Procedure (“the CCrP”), criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings could challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his counsel may challenge such actions or decisions as, inter alia, the prosecution authorities’ refusal to institute criminal proceedings or to terminate them. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure established in Articles 452 and 453 of the CCrP.


CASE OF KARIN ANDERSSON AND OTHERS v. SWEDEN

Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)

Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants own property close to Umeå, in the vicinity of a Natura 2000 area, the European network of nature protection areas established under the EU Habitats Directive of 1992 (see further below at paragraph 33). Most of them live there (permanently or on a part-time basis).

On 15 October 1999, the National Rail Administration (Banverket; hereinafter “the NRA”) applied to the Government for permission, under the Environmental Code (Miljöbalken), to construct a 10 km long railway section in a river area in the north of Sweden (constituting the final section of a railway called “Botniabanan”, the total length of which is 190 km). The NRA presented some alternative railway stretches, all located in a specified “corridor”, but recommended the one named “alternative east”. The proposed railway construction concerned certain areas which were or were going to be part of Natura 2000.

It appears that six of the present applicants own houses or land within the mentioned “corridor”: Ms Carina Granberg, Ms Agneta Holmström, Mr Gustaf Härestål, Mr Björn Höjer, Ms Inga-Britt Höjer, and Mr Christer Skoog. Ownership of Mr Skoog’s property was transferred to Ms Granberg on 7 January 2011. The properties of the other twelve applicants – houses and land in their ownership or owned houses located on non-freehold sites – are situated outside the “corridor”. The distance from their properties to the “corridor” or the specific stretch of the railway fixed in later proceedings vary; the houses appear to be situated 300 – 2500 metres away whereas the closest piece of land is located about 50 metres from the “corridor”.

On 12 June 2003 the Government, after having heard the European Commission, granted the application and allowed the construction of the railway in the proposed “corridor” under the condition, inter alia, that the NRA adopt a railway plan before 1 July 2009 and also a specific plan for the realisation of the necessary environmental compensation measures in the Natura 2000 areas. The plan on compensation measures had to be presented to the Government before the railway plan was adopted. The Government stated, inter alia, that the activity could be permitted, despite its harmful effect on the environment in a Natura 2000 area, if there were no alternative solutions and the railway had to be constructed for reasons of public interest.

A number of individual property owners, including three of the applicants in the present case – Ms Bring, Mr Bäcklund and Mr Osterman – petitioned the Supreme Administrative Court (Regeringsrätten) for a judicial review of the case and requested that the Government’s decision be quashed. The property owners claimed that the decision contradicted Swedish law as well as applicable European Union law, including the Habitats Directive. It was argued, firstly, that the decision contravened the general rule in the Environmental Code on the site to be chosen for activities and installations that may affect human health or the environment. This aspect allegedly had a direct and clear bearing on their civil rights. Secondly, they asserted that the Government’s decision violated Swedish regulations on nature conservation by failing to consider relevant alternative sites for the railway.

On 1 December 2004 the Supreme Administrative Court dismissed the petitions for a judicial review because it was not possible to determine who should be considered an interested party at that stage of the railway planning. The exact route of the railway would not be established until the railway plan had been drawn up. Until then, it could not be assessed with any certainty who would be affected to the extent that they were entitled to bring an action or what account should be taken of their interests. Further stating that the parties affected to a sufficient extent by the future railway would be able to obtain a judicial review of the later decision to adopt the railway plan, the court refused the petitioners locus standi.

One judge dissented, finding that the issue of locus standi in respect of each petitioner should be further investigated by the court in order to ensure that the individual interests were taken into account, having regard to the binding character of the Government’s decision in the later railway planning proceedings.

In 2003 and 2004 the NRA applied to the County Administrative Board (länsstyrelsen) in the County of Västerbotten for a permit to construct the railway in the specific Natura 2000 area and to the Environmental Court (miljödomstolen) in Umeå for permits to build two bridges.

The County Administrative Board granted a construction permit for the railway by a decision of 14 October 2004, which was subsequently appealed against to the Environmental Court.

The Environmental Court decided to examine the cases jointly. By judgments of 24 May 2005 and 13 June 2005, considering itself bound by the Government’s decision of 12 June 2003 on the permissibility of the railway project, the court decided to grant all the permits requested by the NRA.

On 15 June 2006 the Environmental Court of Appeal (Miljööverdomstolen) in Stockholm quashed the Environmental Court’s judgments and referred the cases back to the latter instance. The appellate court found that the Government’s decision had not contained a detailed examination of measures necessary to compensate for environmental harm caused by the railway project, and that these issues had to be settled as part of the determination of the construction permit requests.

On 26 April 2007 the Environmental Court decided anew to grant the permits requested by the NRA. The court considered itself bound by the Government’s decision as to the permissibility of the railway project and thus limited its examination to the environmental compensation measures, as indicated by the decision of the Environmental Court of Appeal.

Two applicants – Ms Granberg and Mr Skoog – appealed against the Environmental Court’s judgment in so far as it concerned the permit for the railway construction. All applicants except Mr Osterman appealed against the part which concerned the permit to construct the bridges.

By a judgment of 6 December 2007 the Environmental Court of Appeal affirmed the binding nature of the Government’s permissibility decision and approved the construction of the railway and the bridges with certain added conditions.

On 9 May 2008 the Supreme Court (Högsta domstolen) refused leave to appeal and, thus, the Environmental Court of Appeal’s judgment became final.

On 21 June 2005 the NRA adopted a railway plan for the area in question.

Twelve applicants – all but Ms Holmström, Mr Härestål, Mr Höjer, Ms Höjer, Mr Sjöstedt and Mr Stenlund – appealed to the Government against the railway plan. They essentially complained of the specific stretch of the railway, invoking, inter alia, nuisance such as noise and vibrations affecting the enjoyment of their property.

By a decision of 28 June 2007 the Government referred to its decision on permissibility of 12 June 2003. It found that the specific stretch chosen in the railway plan was situated within the permitted “corridor” and thus rejected the appeals.

All of the applicants and several other petitioners turned to the Supreme Administrative Court and requested that it, by way of a judicial review, order the quashing of the Government’s decision. They claimed, inter alia, that, although their civil rights were affected by the planned railway, they had not had these rights considered and determined by a court, in violation of the Convention. As to the chosen location of the railway, they also asserted that the Government’s decision was contrary to provisions of the Environmental Code and the EU Habitats Directive.

On 10 December 2008 the Supreme Administrative Court, after having held a hearing in the case, rejected the petition, finding that the railway plan was in line with the Government’s decision of 12 June 2003 on the permissibility of the railway project and that the proceedings for the adoption of the plan did not demonstrate any failings. The court considered that the question of permissibility of a railway project was within the power of the Government, which had to take into account public interests such as environmental, industrial, economic and regional policy. The Government’s permissibility decision was binding for the subsequent proceedings in that courts and other decision-making bodies could not examine issues that had been determined by that decision. Thus, in the proceedings concerning the construction permits requested by the NRA, the various instances could decide on conditions and other details but not on the general permissibility as defined in the Government’s decision. Similarly, in the third stage of the decision process – the adoption of the railway plan – it was for the authorities and courts to decide only on the precise location of the railway, within the area designated by the Government’s decision. The Government had not been obliged to review its decision of 12 June 2003 on the permissibility of the railway project and the designation of the “corridor” in which the railway could be located. These issues could not be examined in the third stage of the decision process. The Supreme Administrative Court further stated that, if private interests were affected by the location of a railway project, judicial review could be obtained by petitioning the court in proceedings against the Government’s permissibility decision. The fact that the court, on 1 December 2004, had concluded that no individual petitioner could be considered to have locus standi in relation to the permissibility decision did not compel it to include in its current examination of the adoption of the railway plan the issues of permissibility of the project or its general location.

One judge dissented, considering that the Supreme Administrative Court’s judgment contravened its decision of 1 December 2004. She noted, inter alia, that the adoption of a railway plan – as opposed to the construction permits – had direct consequences for the individual as it entailed a right for the railway company, under certain conditions, to expropriate land. Consequently, the court, in the instant case, should have examined all the objections presented by the appellants, including the claim that there were better alternative locations for the railway. According to the dissenting judge, a full judicial review had also been foreseen by the court in its earlier decision.

It appears from the parties’ observations in the case that at least ten of the applicants (including seven with houses or land situated outside the “corridor”) have received some form of compensation as a consequence of the railway construction, either for land requisitioned or for reduced residential value or market value. In one case, the change to noise-reducing windows was partly paid by the NRA. It is not clear whether the other applicants requested compensation. In the vicinity of some properties, whose owners have not received compensation, noise barriers have been erected in order to keep the noise from the railway below the applicable target values.