CASE OF ASLLANI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Robert Spano

The applicant was born in 1962 and lives in Ohrid.

The applicant was employed by a local company owned by Z.C., which operated a bakery in Resen. At 9.30 p.m. on 20 March 2008 several police officers arrived at the bakery in order to establish whether or not the employees were in possession of the necessary work and residence permits. G.S., a police officer at the time and currently the mayor of Resen, arrived sometime later. At 1.30 a.m. the next morning the applicant arrived, after being called by Z.C. Z.C. and the applicant were taken to the Resen police station and interviewed in the office of M.G., the commander-in-chief of Resen police. The applicant alleged that during the interview G.S. had ill-treated him and that he had left the police station at about 4.15 a.m. on 21 March 2008.

On the same day the applicant was examined in the Ohrid hospital by Dr L.D.B. who issued a certificate (no. 30) in which he was diagnosed with fractura osso nosi post traumatica-in obs. On the reverse of the certificate the following handwritten text appeared:

“At 5.30 a.m., a fight (тепачка), an X-ray was taken of the nasal pyramid ... realignment and [splinting] were carried out ...”

An undated medical certificate (no. 51150) signed by Dr L.D.B. indicated the following:

“[The applicant was] admitted on 21 March 2008 at 5.30 a.m. as an urgent case. It concerned a fight. The nose pyramid and the ... right upper nostril were visibly swollen. Assuming that the nasal septum was broken, an X-ray was taken of the nasal pyramid ... The radiologist’s findings are: no traumatic changes to the nasal bone. So the obstruction of the right nasal cavity was caused by swelling. The nasal septum has been realigned to the left and a double front [splint was made] ...”

On an unspecified date between 21 and 27 March 2008 the applicant lodged a complaint of ill-treatment by the police with the public prosecutor. Furthermore, on 27 March 2008 the applicant and Z.C. complained to the DCPS that they had been ill-treated by police officers during the incident between 20 and 21 March 2008. According to the official police notes from that date, the applicant complained that after the discussion at the bakery, he had been arrested and detained (приведен и задржан) at Resen police station for questioning. During questioning, G.S. had insulted and physically assaulted him. He had taken a newspaper out of the applicant’s bag and tried to stuff it into the applicant’s mouth. He had then punched him three times, causing visible injuries, namely a broken nose and facial bruising. Police officers D.L. and M.G., the commander-in-chief of the Resen police, had been present at the time. Z.C. complained that while at the bakery, G.S. had slapped him several times in the face in front of the workers. He had also insulted him and threatened to send him “in a black plastic bag to Kosovo” unless he admitted that he had been giving money to T., a police officer from Resen.

On 27 and 28 March 2008 the applicant was examined again at Ohrid Hospital and prescribed a therapy.

On 2 April 2008 he was examined at Skopje Hospital and diagnosed with facial bruising and a broken nose. Another certificate confirming the injuries was issued by the hospital on 15 July 2008. A CT scan on 25 September 2008 confirmed that he had suffered a broken nose without bone displacement.

In letters dated 24 April, 19 May and 6 June 2008 the public prosecutor, in response to the criminal complaint lodged by the applicant, asked the DCPS to communicate any relevant material regarding the alleged incident on 21 March 2008.

On 17 June 2008 the DCPS sent the public prosecutor a “special report” (посебен извештај) regarding the case, setting out a summary of the complaints made by the applicant and Z.C. It reads as follows:

“To establish the truth regarding the allegations, the DCPS interviewed the complainants, E.A., B.J., B.T. (bakery workers), Resen labour inspector –D.Dz., as well as police officers G.S., M.G., D.L., Z.S., V.D., T.V., J.I., N.S., S.S. and J.F. On the basis of the discussions held and an inspection of the daily logbook and other official material regarding the case held at Resen police station, [the DCPS] establishes the following:

On 20 March 2008 at about 9.45 p.m. K.G., D.L., Z.S. and V.D., plain-clothed police officers, and J.I., a police officer in (official) uniform, arrived at the A. bakery. After identifying themselves to the workers, including the owner Z.C., they informed them that they would be carrying out an inspection ...

In the meantime, police officer G.S. arrived at the bakery. He joined in the discussion with Z.C. and the other workers, asking whether they had offered free bread, food and drinks to some police officers in return for their protection. He asked the owner ... Z.C., how much money he had been giving to police officer T. to protect him ... in the presence of the other workers, G.S. slapped Z.C. in the face several times. [He] then... ordered [him] to the storeroom, where G.S. continued slapping him in the face. He threatened to kill him, put him in a black plastic bag and return him to Kosovo unless he admitted to a judge that he had been giving money to T. [G.S.] insulted his ethnicity.

On 21 March 2008 at about 1.30 a.m. [the applicant], Z.C. and [six other individuals] were arrested and detained at Resen police station ... When [the applicant] took documents out of his bag concerning the bakery ... G.S. noticed a [K.D] newspaper which had on its front page Kosovo Parliament’s declaration of independence and a picture of A.J.’s face with the new flag of Kosovo. G.S. started searching [the applicant’s] bag and took the newspaper out. He tried to stuff it into [the applicant’s] mouth ... [He] continued using offensive language to insult [the applicant’s] ethnicity. He suddenly punched him three times in the nose causing him visible injuries such as bruising. [The applicant’s] nose started to bleed. This happened in the presence of Z.C., M.G. and D.L. Later, when [the applicant] and Z.C. went to police officer N.S.’s office to give details about the workers from Kosovo, N.S. noticed blood on [the applicant’s] shirt. He asked [the applicant] about the origin of the blood. [He] replied that it was not right that he had been beaten up by a police officer and that he was ready to take responsibility for his actions.

During the discussion, police officer G.S. denied the allegations made by the applicant and Z.C., explaining that he had not used any force during his conversation with them. [His] assertion was confirmed by police officers M.G., D.L., Z.S., V.D., T.V. and J.I., who [said] that no force had been used against [the applicant] or Z.C. by G.S. or any other police officer in the performance of their duties.

Regarding the inspection carried out at the A. bakery in Resen, the police officers had no plan; there was no search warrant. Besides, there was no information in the daily logbook about [the applicant’s] arrest and detention at Resen police station, or [about] the use of force against him. Nor was a report [about the use of force] drawn up.

After the interview ended and all the relevant evidence for misdemeanour proceedings had been obtained, [the applicant] was released; Z.C. and the other workers from Kosovo stayed...

Given the injuries sustained, on 21 March 2008 at about 5 a.m. [the applicant] went to Ohrid [H]ospital, where he obtained immediate medical assistance. An X-ray was then taken of the nasal pyramid and [a nasal plaster] was made. A medical certificate, no.30 ...was issued in this regard.”

As noted in the special report, it was accompanied by considerable written material, which included the applicant’s complaint; official notes regarding interviews held with G.S. and various police officers including M.G., D.L., Z.S., V.D., T.V., J.I. and J.F and N.S.; medical certificates nos. 30 and 51150 and photographs of the applicant with a neck collar and plaster on his nose. The Government did not provide copies of the official notes concerning the interviews held with the police officers listed above.

Further to a request by the public prosecutor dated 12 June 2008, on 30 October 2008 an investigating judge of the Resen Court of First Instance (“the trial court”) opened an investigation into the allegations that G.S. had ill-treated, threatened and insulted Z.C. and the applicant.

Between 30 October and 17 December 2008 the investigating judge heard oral evidence from the applicant, G.S., Z.C., workers B.T. and B.J., police officers N.S., D.L., M.G. and other witnesses.

The applicant stated that the police officers present at the scene had ordered him and Z.C. to go to the police station. Two of them had joined him and Z.C. in the latter’s car and had set off to go there. The applicant repeated that during his interview at the police station, G.S. had used offensive language against him, had tried to stuff a newspaper into his mouth and had punched him three times in the face and nose.

G.S. denied all the accusations made against him by the applicant and Z.C.

Z.C., who gave evidence without the applicant and his representative present, stated:

“... G.S. treated me correctly ... He did not ill-treat or insult me. It is untrue that G.S. or any other police inspector took me to [the storeroom], pushed me against the flour bags and slapped me. It is absolutely untrue ... I also want to emphasise that it is untrue that G.S. threatened to put me in a black plastic bag and send me back to Kosovo.

The whole story was a set-up by [the applicant], so to speak. He suggested that I accuse [G.S.] of ill-treating, insulting and hitting me, telling me that we would both [get] 1 million euros (EUR) compensation from the State, and EUR 100,000 from the accused., I went to Skopje and gave a statement regarding the case, a false statement accusing [G.S.] in the fear that [the applicant] could deport me to Kosovo.

An hour later, [the applicant] arrived at the bakery in a taxi from Ohrid. At the police’s request ... I went to Resen police station. I cannot say whether I went in ... with [the applicant], but what is relevant is that I, [the applicant], and five individuals from Kosovo went to Resen police station in cars and jeeps ...after a while, a policeman took me and [the applicant] into the chief-officer of Resen’s office. There was [G.S.], [another officer] and the chief-officer of Resen, I think his name is M.[G] ... At one point I noticed [the applicant] take documents and a newspaper from his bag ... I can firmly say that [G.S.] did not take the newspaper ... and did not hit [him] in the face. I do not know if there was blood on his shirt...

I can say that the whole thing is a lie constructed by [the applicant], because he forced me to say that the accused had ill-treated and insulted me. Nor did the accused hit [the applicant] at the police station ...”

Bakery workers B.T. and B.J. both confirmed that during the incident on 20 March 2008 G.S. had spoken in a loud voice and asked them who they had given bread for free. Both confirmed that G.S. and Z.C. had gone to the storeroom and that Z.C. had returned with flour on his back. B.J. confirmed that G.S. had slapped Z.C., whereas B.T. maintained that she did not hear Z.C. complain that he had been slapped or ill-treated by anyone that night.

N.S., the police officer responsible for foreigners, stated:

“after a while, Z.C. and an unknown national from the Republic of Macedonia, who said that his name was Esat Aslani [sic] and that he was the manager of the company, arrived at my office ... he literally told me ‘that’s all fine [referring to the ban on employing foreigners without a work permit], but I should not be beaten up’. I asked him who had beaten him up and pointing with his hand he said ‘[look] up here’. He showed me blood and I noticed that he had a visible blood stain, so to speak. He said that a police officer had beaten him up, but he did not specify who. I told him that it was not my job ... I did not see anything on [the applicant’s] face like a nose injury or blood ...”

Police officers D.L. and M.G. denied that G.S. had slapped Z.C. at the bakery or that G.S. had used offensive language. They confirmed that the applicant had arrived at the bakery and that both he and Z.C. had discussed the issue of illegal workers with them and G.S. in M.G.’s office at Resen police station. They also confirmed that the applicant had had a newspaper in his bag and that G.S. had enquired whose photograph was on the front page. Both denied that G.S. had hit the applicant.

A forensic medical opinion was commissioned by the trial court. On 28 January 2009 Dr Z.K., a court expert, drew up a medical report on the basis of the above-mentioned medical records and a further X-ray. The relevant parts of the report stated:

“[the applicant] suffered a broken nose without any displacement of bone fragments, as well as facial bruising. These injuries ... amount to bodily injury. These injuries ... were a result of the use of brute force on the face.”

On 24 February 2009 the public prosecutor informed the investigating judge that he was withdrawing the charges against G.S. brought by the applicant and “the Ministry of the Interior’s DCPS by way of the special report” due to the lack of evidence that G.S. had committed the crime in question.

On 2 March 2009 the investigation was closed and the applicant was advised that he could pursue the prosecution as a subsidiary prosecutor. He availed himself of that opportunity and on 13 April 2009 brought a private indictment against G.S. on charges of ill-treatment and bodily injury.

On 15 May 2009 the trial court allowed an objection by G.S. and discontinued the proceedings. On 3 November 2009 that decision was quashed by the Bitola Court of Appeal, which ordered the trial court to further investigate allegations which had meanwhile been raised, namely that the applicant had sustained certain injuries in a traffic accident that had happened before the incident on 21 March 2008. The appellate court also ordered a confrontation between the applicant, G.S. and police officers D.L, M.G. and N.S.

At a hearing on 23 December 2009 the applicant confirmed that he had sustained a neck injury in a traffic accident that had happened on 6 or 7 September 2007 and that because of this he had been wearing a neck collar. On the photographs taken at the DCPS three days after the alleged incident, he had had a neck collar. He denied that there was any connection with the injuries to his nose and eye which G.S. had caused him.

On 5 February 2010 a confrontation took place between the applicant and police officers G.S., D.L. and M.G., who denied that G.S. had punched the applicant.

N.S., who also took part, stated:

“... I noticed that [the applicant] had blood [on him], namely a small stain on his shirt.”

All the judges of the trial court, including the presiding judge, applied separately to be excluded from the case as they had already sat in a different capacity. On 1 June 2010 the Bitola Court of Appeal assigned the case to the Bitola Court of First Instance as the court with jurisdiction ratione loci.

The Bitola Court of First Instance held several hearings, in which it heard oral evidence from the applicant, G.S. and police officers D.L., M.G. and N.S. The defendant and the police officers maintained their previous statements, denying that G.S. had punched the applicant during the interview at Resen police station. N.S. stated, inter alia, that he had noticed a stain on the applicant’s shirt, but that he could not say for certain whether it had been blood. During the proceedings, the applicant asked the court to examine Z.C., who, according to official information from the Ministry of the Interior, had left the respondent State in November 2009. The court’s attempts to secure his presence at the trial were to no avail since his whereabouts remained unknown despite G.S.’s statements on 21 April and 24 December 2010 that he had been in contact with him and knew where he was living. At the hearing on 21 April 2010, the applicant stated that he had also been in contact with Z.C. who had agreed to give evidence in court and confirm his statement given to the DCPS.

On 1 February 2011 the court acquitted G.S. for lack of evidence. It established that he and several police officers had gone to the bakery to follow up allegations that illegal workers from Kosovo were employed there, and that both Z.C. and the applicant had been questioned at the police station. However, it found that none of the witnesses examined had corroborated the applicant’s allegations of ill-treatment.

On 19 May 2011 the Bitola Court of Appeal allowed an appeal lodged by the applicant and remitted the case for fresh examination. The court held that the first-instance court had not established relevant facts regarding the applicant’s injuries, which had been supported by relevant medical evidence. Furthermore, it had not given any reasons regarding the origin of those injuries, despite the fact that investigative steps had been taken with a view to establishing whether they had been caused in the car accident that had actually happened on 2 October 2007. In this connection, it instructed the lower court to reassess the available evidence and, if needed, to arrange a confrontation with the applicant and the witnesses. The lower court was also advised to analyse the available medical evidence and to consider what time the applicant sought medical assistance.

In the new proceedings, the first-instance court again examined the defendant and the applicant. A confrontation was arranged between him and the police officers who were present at the police station at the relevant time. It also heard oral evidence from Drs L.D.B. (who confirmed the veracity of the information contained in the medical certificate, see paragraphs 7 and 8 above) and Z.K., the court expert.

The applicant submitted in evidence a written statement dated 8 December 2011, certified by the Prizren (Kosovo) Court of First Instance, in which Z.C. stated that his testimony of 1 December 2008 (see paragraph 19 above) had been incorrect and given under duress. He confirmed that the applicant had been hit by G.S. at the police station in the presence of two police officers, as a result of which he had suffered a broken nose. He confirmed his statement given to the DCPS. He stated that he would not give oral evidence in the Bitola Court of First Instance because he feared for his personal safety. However, he agreed to testify in the Prizren Court, the EULEX (EU Rule of Law Mission to Kosovo) or the Macedonian Embassy in Pristina.

On 30 October 2012 the Bitola Court of First Instance again acquitted G.S. due to the lack of evidence to support the applicant’s allegations. The court stated that it had given weight to the evidence given by all the witnesses, especially given that most of them were police officers and Dr Z.K. was an experienced court expert.

On 24 January 2013 the Bitola Court of Appeal quashed that judgment and remitted the case for fresh examination, which, as noted in the judgment, was to be held before a different panel of first-instance court judges. The court found that the lower court had again not established the facts regarding the applicant’s injuries. The available medical evidence confirmed that the injuries described in the medical reports issued soon after the alleged incident on 21 March 2008 had not resulted from the car accident in 2007. The first-instance court had merely referred to the witness statements without assessing their probative value in connection with the medical evidence. It had given no weight to the medical evidence, which should have been analysed in relation to what time the applicant had sought medical assistance. The court instructed the lower court to reassess the evidence, organise a confrontation between the applicant and the defendant, and take other steps to establish the origin of the applicant’s injuries.

In the resumed proceedings and at the request of the Bitola Court of First Instance, on 30 March 2013 Dr Z.K. supplemented the expert opinion regarding the applicant’s broken nose, saying that it could not be ruled out that he had suffered it in the traffic accident in October 2007. This was so since broken noses healed slowly and remained X-ray detectable for a long time. He further stated that with a nasal injury such as that described in the medical certificate issued by Dr L.D.B. (see paragraph 7 above), bruising should appear between fifteen and twenty minutes after being struck. The medical certificate did not indicate that there had been any bruising on the applicant’s face when he had been examined at Ohrid Hospital.

Dr L.D.B. confirmed that she had indicated in the medical certificate everything she had considered relevant regarding the applicant’s injury. The applicant stated that she had refused to specify that he had been assaulted by the police since she stated “[she] does not want to go to court”.

N.S. commented on his previous statements given to the investigating and trial judges (see paragraphs 21 and 29 above), stating that he could not confirm whether he had seen a blood stain on the applicant’s shirt.

During the proceedings the court made attempts through the Ministry of Justice to secure Z.C.’s attendance at the trial. However, his whereabouts remained unknown despite the fact that the applicant stated that he had been in contact with him and that he had agreed to testify in the Skopje or Kumanovo courts due to fear. The court did not accept that Z.C. had given evidence in these courts.

In a decision of 4 February 2014, the court did not admit in evidence Z.C.’s written statement of 8 December 2011 (see paragraph 35 above) finding that it had not been given in court and could not serve as the basis for a court judgment.

On 7 February 2014 the Bitola Court of First Instance acquitted G.S. due to lack of evidence that he had committed the imputed crimes. The court confirmed that the police, including the accused, had been involved in the inspection at the bakery. The applicant, after being called by Z.C., had arrived at the bakery at 1.30 a.m. on 21 March 2008. At Resen police station, the accused had joined police officers M.G. and D.L., who had interviewed Z.C. Soon after, the applicant had arrived at the office even though he had not been officially summoned. The court also established that there had been a discussion between the accused and the applicant about the newspaper. After the discussion, the applicant had complained to police officer N.S. that he had been hit by a police inspector, alleging that a stain on his shirt had been blood from his nose. The applicant had no visible facial injuries. The Bitola Court of First Instance further indicated that after the applicant had left the police station at about 3 a.m., he had taken part in a fight with unknown individuals at an unknown place, and at 5.30 a.m. he had asked for medical assistance at Ohrid Hospital. Dr L.D.B. had examined him, noting in the medical certificate that the injuries had been sustained in a fight. The applicant had further convinced Z.C. to charge G.S. before the DCPS. As to the latter’s special report, the court stated:

“... besides the statements of the complainants, accused and witnesses, it does not contain any indication that [the DCPS] established anything relevant for these proceedings, [including] any responsibility on the part of the accused ...”

Relying on medical evidence and statements by Drs L.D.B. and Z.K., the court established that at 5.30 a.m. on 21 March 2008, when the applicant had first been examined at Ohrid Hospital, he had had swelling on his nose, but no bruising. As specified in the medical certificate issued by Dr L.D.B., the injuries had been sustained in a fight. Given the statements the witnesses and Z.C. had given in the investigation, the court concluded that there had been no evidence to support the applicant’s allegations.

On 8 May 2014 the Bitola Court of Appeal allowed the applicant’s appeal and quashed the first-instance court’s judgment. It concluded that the lower court, notwithstanding that it had admitted considerable evidence, “had established incomplete and wrong facts” and “had drawn illogical and unreasonable conclusions”. In this connection, the court stated:

“The court observes, as already noted in its judgment of 24 January 2013, that the first-instance court disregarded the medical [records] ... and adduced evidence as to whether there was any colouring to [the applicant’s] injury. During the proceedings, an attempt was made to relate [the applicant’s] injury to a traffic accident in October 2007 [in which] he had sustained injuries and worn a neck collar for longer. This is no longer argued in the impugned judgment, but it is alleged that [the applicant’s] injury was sustained in a fight he had taken part in before asking Dr L.D.B for medical assistance. It is unclear on what basis the first-instance court had drawn this conclusion ...

The first-instance court now also did not sufficiently assess N.S.’s statement ... in which he clearly said that he had noticed a blood stain on [the applicant’s] shirt. In the impugned judgment, this witness’s statement is changed so that justification was given for the conclusion that [the applicant] did not sustain such an injury ... the first-instance court, in principle, accepts that [the applicant’s] injury was not a result of actions taken by the accused, but ...was sustained in a fight with unidentified persons at an unknown location immediately before the [medical] examination.

In such circumstances, the first-instance court finds that [the applicant’s] injury was caused later than the interview that took place at Resen police station ...

... there is no evidence that after the interview [at the police station the applicant] went somewhere, took part in a fight with unidentified individuals and sustained injuries before asking the doctor for a medical check-up. The reasons the first-instance court gives in support of its judgment are unclear and, to a considerable extent, contradictory and inconsistent with the evidence admitted ...”

On 18 March 2015 the Bitola Court of First Instance acquitted (ослободува од обвинение) G.S. of ill-treatment and dismissed the indictment (се одбива обвинението) as regards the accusations of bodily injury. In this latter connection, the court found that the prosecution had become time-barred. As regards the charges of ill-treatment the court found, for the same reasons as in the previous judgment, that there was insufficient evidence that the applicant’s injury to his nose had been caused by G.S. On the contrary, all the available material suggested that it had been sustained in a fight that had taken place immediately before the applicant had asked for medical assistance at Ohrid Hospital.

On 9 July 2015 the Bitola Court of Appeal allowed the applicant’s appeal and remitted the case to the first-instance court for fresh examination, which, as noted in the judgment, was to be held before a different panel of judges. The court stated that:

“... the conclusion of the first-instance court was in serious doubt and the established facts were not supported by the evidence admitted ... the first-instance court again disregarded the instructions of the Court of Appeal specified in the [previous] judgments. The first-instance court disregarded the medical [records] ... the first-instance court was previously instructed to assess [N.S.’s] statement; [the latter], which included some indications as to what had happened ... As previously stated, it is clear from [N.S.’s] statement that he had been told by [the applicant] that it had not been right to work without a permit, but that [the applicant] should not have been beaten up. Witness [N.S.] clearly stated that he had seen a blood stain [around] the applicant’s stomach [area] ...It would be necessary for [the first-instance court] to reassess evidence already admitted and pay particular attention to the instructions [specified] in this judgment and earlier judgments of the Court of Appeal, which suggest that the available evidence is sufficient [for the court] to draw a conclusion as to whether the accused had undertaken those actions and committed the crime imputed to him ...”

The fifth round of proceedings is at present pending before the first-instance court.

In a judgment of 12 November 2013, which became final on 4 December 2013, the Supreme Court allowed the applicant’s request for protection of the right to a hearing within a reasonable time (“length remedy”) and acknowledged that the criminal proceedings against G.S. had been too long. It held that the applicant had not contributed to the length of the proceedings, which had been protracted due to the fact that two courts of first-instance had adjudicated the case; the Bitola Court of First Instance had not been diligent in fixing court hearings and the case had been remitted to it twice already. It awarded the applicant the equivalent of 500 euros (EUR) in compensation and ordered the Bitola Court of First Instance to conclude the criminal proceedings as quickly as possible, but no later than six months after receipt of its judgment.


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

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

The applicant was born in 1987 and lives in Kuršanec.

By a judgment of the Čakovec County Court (Županijski sud u Čakovcu) of 19 June 2008, upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 3 February 2009, the applicant was sentenced to two years’ imprisonment for robbery.

On 2 July 2010 the Čakovec Municipal Court (Općinski sud u Čakovcu) sentenced him to one year’s imprisonment for theft, which was confirmed by the Čakovec County Court on 3 November 2010.

Following a request by the applicant, on 26 August 2011 a three-judge panel of the Čakovec County Court took into account the above two convictions and sentenced him to a single sentence of two years and eleven months’ imprisonment.

On 16 October 2009 the applicant was transferred from Turopolje State Prison (Kaznionica u Turopolju) to Bjelovar Prison (Zatvor u Bjelovaru) to serve the prison sentence originally imposed by the Čakovec County Court on 19 June 2008 (see paragraph 6 above).

He remained in Bjelovar Prison until 16 March 2011, when he was transferred to Varaždin Prison (Zatvor u Varaždinu) following a decision by the Ministry of Justice Prisons Administration (Ministarstvo pravosuđa, Uprava za zatvorski sustav) on 11 March 2011.

According to the applicant, he spent eleven months with seven other inmates in a cell measuring 18 square metres including the sanitary facilities. The cell was badly maintained, dirty and insufficiently equipped with enough lockers and chairs for all inmates. Moreover, he was not given any opportunity to engage in prison work, and in general was not provided sufficient access to recreational and educational activities.

According to the Government, while in Bjelovar Prison the applicant had at his disposal an average of 3.59 square metres of personal space. He was detained in four different cells, the conditions of which are detailed in the table below:

The Government also submitted that each cell had a toilet fully separate from the living area, each with its own air ventilation system. All cells had access to drinking water, and had windows allowing in natural light and fresh air. During the winter, cells were heated by a central heating system. They were constantly maintained and some necessary reconstruction work and improvements to the facilities had been carried out in 2007, 2009 and 2010, which the Government substantiated with photographs, floor plans and other relevant documentation. Furthermore, the inmates were provided with all the necessary hygiene and sanitary facilities. The nutrition was based on the assessment of experts and the quality of the food was constantly monitored by the competent state authorities, which the Government substantiated with the relevant documentation.

The Government also explained that for three hours per day, between 4 and 7 p.m., the applicant had been allowed to move freely outside his cell. In addition, he had been able to use the gym, which had been open between 8 a.m. and 12.30 p.m. and 2 and 6 p.m., and the basketball court, which had been open on working days between 3 and 6 p.m. and at the weekends both in the morning and afternoon. The prison had also been equipped with a badminton court, ping-pong tables and chessboards, all of which had been available to the applicant. He could have also borrowed books from the Bjelovar library, which provided its services to the prison, and he had been allowed to watch TV and borrow films.

On 24 March 2010 the applicant lodged a request with the Bjelovar Prison administration through a lawyer, asking to be transferred to Varaždin Prison for personal and family reasons.

On 26 April 2010 he complained to the Ministry of Justice Prisons Administration in general terms about the conduct of the Bjelovar Prison administration, alleging that they had never offered him the opportunity to have a meeting with the relevant officials, that his request for a transfer had been ignored, and that the prison food had been inadequate.

The applicant again reiterated his request for a transfer to Varaždin Prison on 6 May 2010, citing personal and family reasons.

On 14 July 2010 the Ministry of Justice Prison Administration replied to the applicant’s complaints, finding them ill-founded in all respects. It pointed out that he had been given sufficient opportunity to have contact with his family, that he had not been engaged in any work because there had been an insufficient number of working positions in Bjelovar Prison, that he had had seven meetings with the prison governor and twenty-five meetings with various other Bjelovar Prison officials, and that food had been prepared in consultation with experts, the prison diet having been continuously supervised by the prison doctor.

On 24 August 2010 the applicant complained about the conditions of his detention to a sentence-execution judge of the Bjelovar County Court. He pointed out that central to his complaints was his wish to be transferred to another prison closer to his family. He also complained, inter alia, that his request to engage in prison work had not been answered, and that he was being detained with seven other inmates in cell no. 8, which measured 18 square metres in total and was inadequately equipped and maintained.

Following the applicant’s complaint, the sentence-execution judge requested a detailed report from Bjelovar Prison concerning the conditions of his detention.

After obtaining the relevant report and hearing the applicant in person, on 7 October 2010 the sentence-execution judge dismissed his complaints as ill-founded. She found, in particular, that the applicant was not detained in inadequate conditions of detention, that he was provided with sufficient hygiene and sanitary facilities, and that was not engaged in prison work since such opportunities did not exist for all prisoners in Bjelovar Prison.

On 15 October 2010 the applicant lodged an appeal against the sentence-execution judge’s decision with a three-judge panel of the Bjelovar County Court, alleging that she had erred in her factual findings, as cell no. 8 actually accommodated eight inmates.

On 21 October 2010 a three-judge panel of the Bjelovar County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the sentence-execution judge. It also explained that the required standards for personal space under the Enforcement of Prison Sentence Act, namely 4 square metres, should in principle be respected, but that there could be no automatic violation of a prisoner’s rights if such a standard was temporarily not complied with.

On 8 November 2010 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel. He argued that for the first six months since arriving at Bjelovar Prison, he had been detained in cell no. 1, measuring 17.13 square metres, where six inmates in total had been detained. He had then spent one month in cell no. 8 on the first floor with six inmates, which had measured 17.13 square metres. He had then been placed in another cell, also marked “cell no. 8”, which again measured 17.13 square metres, where he had spent six months with eight inmates. At the time of his complaint he was being held in cell no. 4 with six inmates.

On 20 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), relying on Article 14 § 2 (equality before the law), Article 26 (equality before the State authorities) and Article 29 (right to a fair trial) of the Constitution, complaining in general terms of a lack of personal space and work opportunities in Bjelovar Prison.

On 26 November 2010 the applicant complained to the Ombudsman (Pučki pravobranitelj) that he had not been granted a transfer to the prison closer to his family, and alleged in general terms that the conditions of his detention had been inadequate.

By a letter of 7 December 2010 the Ombudsman invited the applicant to further substantiate his complaints.

The applicant replied to that request on 21 December 2010, indicating that the sentence-execution judge and three-judge panel of the Bjelovar County Court had never examined his complaints properly, and that he had not been granted the 4 square metres of personal space in detention required under the Enforcement of Prison Sentences Act.

On 12 April 2011 the Ombudsman replied to the applicant’s letter that, according to the information available, his accommodation in Bjelovar Prison had fallen short of the requirements of adequate personal space under the Enforcement of Prison Sentences Act. The Ombudsman also pointed out that the cell where the applicant was being detained had been renovated in 2010, and complied with all hygiene and health standards. The Ombudsman also noted that just like ninety-two other inmates the applicant had not been engaged in prison work, as there had been an insufficient number of working positions for all prisoners.

On 5 June 2012 the Constitutional Court declared the applicant’s constitutional complaint (see paragraph 25 above) inadmissible as manifestly ill-founded. The relevant part of the decision reads:

“In his constitutional complaint, the appellant was unable to show that the Bjelovar County Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on ... “

The Constitutional Court’s decision was served on the applicant’s representative on 18 June 2012.


Inadmissible (Article 35-3-a - Ratione materiae)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Carlo Ranzoni;Egidijus Kūris;Guido Raimondi;Helen Keller;Iulia Motoc;Jon Fridrik Kjølbro;Julia Laffranque;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Marko Bošnjak;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1951 and lives in Gödöllő.

In 1991 the applicant took up the position of pastor in the Reformed Church of Hungary (Magyar Református Egyház). His rights and obligations, together with his remuneration, were set out in an appointment letter issued by the Presbytery of the Reformed Parish of Gödöllő on 14 December 2003 (the “Letter of Appointment”). The relevant part of the Letter of Appointment reads as follows:

“I. Obligations of the pastor:

The tasks defined by ecclesiastical laws and legal provisions, in particular those laid down in Statute no. II of 1994 on pastors and pastoral service and the code of conduct of the Cis-Danubian Ecclesiastical Region; the pastor is expected to perform the aforementioned tasks in the spirit of his oath and to the best of his abilities.

In addition, as required by the special needs of his ecclesiastical community, the pastor’s responsibilities include the following: exercising the rights and obligations of management, as detailed in the Hungarian Reformed Church’s Statute 1995/I on Public Education ...”

In June 2005 disciplinary proceedings were instituted against the applicant for statements he had made in a local newspaper. At the same time the first-instance ecclesiastical court suspended the applicant’s service with immediate effect pending a decision on the merits in the disciplinary proceedings. He received a letter stating that, under section 82 (1) of Statute no. I of 2000 on the jurisdiction of the Reformed Church of Hungary, during his suspension he was entitled to 50% of his service allowance.

The applicant claimed that, following his suspension, he had sent letters to the head of the congregation and to the competent bishop claiming payment of his overdue services allowances, but to no avail.

On 27 September 2005 the first-instance ecclesiastical court concluded that the applicant had committed disciplinary offences and removed him from service. On appeal, on 28 March 2006, the second-instance ecclesiastical court upheld that decision.

On 26 June 2006 the applicant took his case to the Pest County Labour Court, seeking payment of 50% of his service allowance and other benefits to which, in his view, he should have been entitled during the period of his suspension. Arguing that his suspension had reached its statutory maximum duration on 21 October 2005, he also sought the payment of the entire service allowance from that date until the termination of his service, that is, on 30 April 2006. He argued in substance that his ecclesiastical service was analogous to employment.

On 22 December 2006 the Labour Court discontinued the proceedings pursuant to Article 157 (a) in conjunction with Article 130 (1) (f) of the Code of Civil Procedure, holding that the applicant’s claim could not be enforced before domestic courts (“a felperes kereseti kérelmében foglaltak bírói úton nem érvényesíthető igények”). Under section 2 (3) of Statute no. I of 2000 on the jurisdiction of the Reformed Church of Hungary, a pastor’s service with the Church was regulated by ecclesiastical law, whereas a layman’s employment with the Church was governed by the State labour law. Accordingly, since the dispute before it concerned the applicant’s service as a pastor, the provisions of the Labour Code were not applicable in the case. This decision was upheld on appeal. The applicant did not apply for review to the Supreme Court.

On 10 September 2007 the applicant lodged a civil action against the Reformed Church of Hungary with the Pest Central District Court, the relevant parts of which read as follows:

“The Plaintiff’s service remuneration, as described in his Letter of Appointment, was .... In addition, the Plaintiff was also eligible to an age bonus equal to .... The Plaintiff was also involved in teaching for which he received ... per month.

On 23 June 2005 the Respondent suspended the Plaintiff as a pastor and reinstated him to the service roster, which meant he was exempt from all duties until further notice. The Respondent has paid the Plaintiff’s pastoral allowance until 30 June 2005 and his salary as a teacher until 1 May 2006. In view of the above, the Respondent has caused damage to the Plaintiff by not paying his dues according to their standing legal agreement.

Plaintiff’s claims are as follows:

I. For the period between 1 July 2005 and 21 October 2005, a monthly amount of ...

II. For the period between 22 October 2005 and 30 April 2006, an amount of ....

III. For the period between 1 May 2005 and 30 April 2006 (12 months) the unpaid teaching fees ...

Furthermore I submit that the Plaintiff considered the legal basis of the above dues ... as employment and went to the Labour Court to have them reimbursed. In view of the fact that the Pest County Regional Court’s final decision ... upheld the ruling of the first-instance Labour Court which, for its part, stated that my involvement with the Respondent did not qualify as employment, I, the Plaintiff, hereby seek reimbursement of my loss before the Pest Central District Court.”

On 11 December 2007 the respondent Church filed a defence, inviting the court to dismiss the applicant’s claim.

On 15 December 2007 the applicant filed another submission with the first-instance court, further elaborating on his claim. The relevant parts of that submission read as follows:

“The Plaintiff’s pastoral service was constituted ... on the basis of election by the Reformed Parish of Gödöllő and confirmed by the dean of the ecclesiastical district as well as the bishop of the ecclesiastical region. Its terms were laid down in the Letter of Appointment ... which remained in force during the period indicated in the case.

The pastoral service was carried out by the Plaintiff in person. Its content and accomplishment has not been in dispute between the parties. The Plaintiff’s pastoral activities were manifold. In particular, he was responsible for the community services of the Parish – e.g. preaching, handling the sacraments, outreach, evangelisation, maintaining the bond between the Parish and the Church and various related tasks of pastoring, teaching and administration, which included the tutoring of his assistant and deputy pastor. The Plaintiff as pastor, together with the caretaker, represented the Parish and had numerous other administrative tasks as well. As part of his pastoral duties, the Plaintiff was also obliged to take part in management and teaching.

Neither the establishment of the pastoral service relationship nor the substance of the resulting mutual obligations was the subject of any dispute between the parties involved.

As to the legal classification of the pastoral service relationship itself ... we hold that the Plaintiff’s activity is best characterised as agency because its content and nature correspond to the factual elements of an obligation of means necessitating personal involvement. For the above reason, we consider that the relevant rules are those of the Civil Code on agency contracts ...

Despite the fact that the Respondent’s dean – the Plaintiff’s immediate superior –had already confirmed in writing the legal basis and the amount of the fees due for the period of suspension, in its correspondence dated 22 June 2005 ..., these were, in fact, paid only partially. Namely, the pastoral cash allowance was paid only up until 30 June 2005 and the fee due for religious teaching only up until 30 April 2005.”

The applicant based his claim in the first place on Articles 277 (1) and 478 (1) of the Civil Code (as in force at the material time) seeking payment of overdue fees stemming from an agency contract he believed he had with the Church. He maintained that for the period from 22 October 2005, when the suspension allegedly became unlawful, until the date of termination of his appointment, he was entitled to a fee for his services, which corresponded to the service allowance set out in his Letter of Appointment. He thus sought enforcement of the agency contract. Alternatively, he based his claim on Articles 318 (1) and 339 (1) of the Civil Code, which provided for damages for breach of the agency contract he had allegedly entered into with the respondent Church.

On 2 January 2008 the Pest Central District Court dismissed the applicant’s claim, holding as follows:

“An agency contract, according to the particulars of Act IV of 1959 on the Civil Code ... is a mutual legal transaction (Article 474). Such transactions are regarded by the Civil Code as contracts of material exchange, as the Civil Code, in accordance with Article 1 (1), typically regulates pecuniary rights.

Contracts, by definition, are between parties with common material interests: they need whatever value the other has to offer. The goal of the contract is to obtain such value from each other.

Pursuant to Article 201 (1) of the Civil Code, mutual property services are contracts for valuable consideration – with the notable exception of gratuitous two-party transactions in which one party provides a material service whereas the other is not obliged to do so. The alleged agency contract between the Plaintiff and the Respondent might be gratuitous if the agent receives no payment from the principal. Except that there was no statement from the Plaintiff to that effect. Quite the contrary: he filed the lawsuit with the clear intention of obtaining material gain from the Respondent. Thus it can be said that the Plaintiff based his claim on a non-gratuitous agency contract, as provided for in Article 478 (1) of the Civil Code.

In view of the above, this required the Plaintiff to provide some sort of material service, interest or condition in return, something with clearly defined market value. The pastoral service provided by the Plaintiff (according to exhibit no. 3, it also involved preaching, handling the sacraments, outreach, evangelisation and various related tasks of pastoring, teaching etc.), however, does not qualify as material service. It is, for all intents and purposes, religious activity.

If the undertaking of mutually agreed conduct is not gratuitous, and the conduct of one of the parties has no material value, then, according to the rules of the Civil Code, there can be no civil-law contract for valuable consideration.

Agency contracts, like all contracts, are based on mutual agreement: one party makes a formal proposal containing all the key elements of the deal to another, which, in turn, issues a statement of acceptance – see Article 205 (1) and (2), and Articles 211, 213 and 214 of the Civil Code. The parties involved are free to negotiate terms on the basis of legal parity.

The documents submitted show that the Plaintiff’s appointment was an ecclesiastical process, the terms of his service were set out in a Letter of Appointment ... formulated by the Presbytery of his Parish. The Respondent and its officials exercised various rights vis-à-vis the Plaintiff (suspension, reprimand by the ecclesiastical court, relocation to service roster, demotion, etc.). Within the meaning of the Civil Code, the parties did not negotiate the details of the service, and the Plaintiff became a pastor by appointment, not as a result of a binding agreement. Due to the lack of legal parity between the Plaintiff and the Respondent, the Plaintiff did not enter as a civil-law party into a legal relationship with another civil-law party.

The lack of binding agreement means that the Plaintiff’s primary claim – with reference to Articles 277 and 478 of the Civil Code – is insufficient to support his case.

Pursuant to Article 318 of the Civil Code, the rules of tort liability are applicable to liability for breach of contract. Once again, the lack of binding agreement means there was no breach of contract nor any material damage involved. In view of this, the Plaintiff’s secondary claim is also unfounded.

The acknowledgment of debt, by legislative nature and in practice, is a contractual institution which allows one party to affirm its financial obligation towards another. Statements stemming from relationships beyond the control of civil legislation are, for that very reason, neither valid nor binding pursuant to Article 242 of the Civil Code. The letter submitted by the Plaintiff (illegible reference number) as acknowledgement of debt is, in this context, rather irrelevant: the sender does not legally represent the Respondent, which might not endorse, or even share, his opinion.

The documents and statements presented by the Plaintiff were sufficient for a review of the case. As the claim was unfounded, the amount at issue was not determined. The hearings of the bishop ... and dean ... were also deemed unnecessary as their opinions feature prominently in the documents and cover all necessary aspects.”

On 27 January 2008 the applicant filed an appeal against the first-instance judgment. On 12 October 2008 the respondent Church filed pleadings in reply, requesting the court to dismiss the applicant’s claim.

On 17 October 2008 the Budapest Regional Court dismissed the applicant’s appeal and upheld the first-instance decision with the following reasoning:

“The first-instance court established the facts correctly and the second-instance court agrees with its decision, but differs in its legal reasoning:

Section 13 of Act IV of 1990 provides that the Church and – in accordance with its Constitution – its self-governing bodies are independent legal entities. Pursuant to section 14(2) of the Respondent’s own Statute no. II of 1994 on the Constitution and Government of the Church, a parish is such a legal entity. Section 29 of the same Statute defines the Letter of Appointment as the service contract of Church officials.

The Plaintiff’s Letter of Appointment, detailing his pastoral duties and allowances, was issued on 14 December 2003 by the Reformed Parish of Gödöllő. It proves that a legal relationship was established between the Plaintiff and the Parish of Gödöllő, an independent legal entity.

In its pleadings ..., the Respondent referred to section 13 of Act IV of 1990 and Article 14 (2) of its own Statute II of 1994, thus confirming that the Parish of Gödöllő ... is an independent legal entity within the Hungarian Reformed Church.

In view of the above, the second-instance court came to the conclusion that the Plaintiff’s claim was unfounded vis-à-vis the Respondent, the Reformed Church of Hungary.”

On 2 June 2009 the applicant lodged a petition for review with the Supreme Court, in which he stated as follows:

“....The Budapest Regional Court held that, based on the Letter of Appointment, the Plaintiff’s legal relationship was with the Reformed Parish of Gödöllő. But, as indicated by us several times, the Letter of Appointment does not mention the lectures on ecclesiastical history the Plaintiff has been giving in a Foundation School. The fees for these lectures were paid by the Respondent to the Plaintiff directly. Our motions to take evidence were dismissed because of the decision of the first-instance court, which the Budapest Regional Court overruled – but it is the lack of this very evidence that caused the second-instance court to disregard the difference between the nature and the remuneration of the above-mentioned activities.

Pursuant to Articles 200 (1), 198 (1) and 474 of the Civil Code, a legal relationship – namely agency – is established when one party (the agent) is obliged to provide quality service and the other (the principal) is obliged to pay for the said service in accordance with the agreement. As far as teaching is concerned, the Respondent was the sole principal. The Reformed Parish of Gödöllő had nothing to do with that – which is evident from the fact that the fee was determined according to State standards ...

The decisions of the courts are, first of all, only partially compliant with Article 221 of the Civil Code, which lays down the requirement of full justification, and secondly, constitute an infringement of multiple provisions of the Civil Code, namely Articles 200 (1), 198 (1), and much of the content of Article 474. Due to the dismissal of our motions to take evidence, the contradictory decisions of the courts are not based on the true nature of the material service exchanged between the parties, and regard pastoral service and teaching in a Foundation School as one and the same, despite the fact that these activities greatly differ from each other in both nature and practice of execution ...”

The respondent Church replied to this petition in a submission dated 28 March 2009.

On 28 May 2009 the Supreme Court discontinued the proceedings, finding as follows:

“The Plaintiff commenced his action specifically in order to claim fees arising from his contractual relationship with the Gödöllő Parish, as contained in his Letter of Appointment. He did not make any reference to a contract between him and the Gödöllő Parish to provide teaching of church history, nor did he claim any fee in connection with such a contract. He submitted a claim regarding such a contract for the first time in his petition for review [to the Supreme Court]. Consequently, the fact that the lower courts did not analyse that contractual relationship between the parties and did not take evidence regarding that issue cannot be considered an omission on their part ...

In order to determine the rules applicable to the agreement in question and to the implementation of the rights and obligations arising from it, it is necessary to have regard to the very purpose of the agreement underlying the Plaintiff’s actual claim as well as the elements thereof defining the parties’ rights and obligations. The first-instance court rightly stated in its assessment that the agreement serving as the basis of the applicant’s claim was not an agency contract under civil law or concluded by and between parties enjoying personal autonomy in the marketing of [goods and services]. The Plaintiff was appointed as a pastor in an ecclesiastical procedure, and the obligations of the Respondent were defined in an appointment letter issued by the assembly of presbyters. The parties established between themselves a pastoral service relationship, governed by ecclesiastical law.

Under section 15 (1) of Act no. IV of 1990 on Freedom of Conscience and Religion and on Churches, the Church is separate from the State. Under sub-section (2), no State coercion can be used to enforce the internal laws and regulations of Churches.

Relying on the above provisions, the applicant can make a claim under the ecclesiastical law before the relevant bodies of the Reformed Church. The fact that the agreement entered into under ecclesiastical law resembles a contractual agreement under the Civil Code does not entail State jurisdiction or the enforceability of the claim in a judicial procedure within the meaning of Article 7 of the Civil Code. (In the particular case, the basic elements of an agency contract and the execution of such a contract could not be established either.)

The Labour Court reached the same conclusion in the earlier proceedings when assessing the claim under State labour law and dismissing its enforcement in judicial proceedings.

The first-instance court was right to point out that as the impugned agreement lacked a civil-law legal basis, the court could not examine the applicant’s secondary claim (compensation for breach of contract). On the basis of the above reasoning, there were no grounds to adjudicate on his claim on the merits.

The Supreme Court accordingly quashes the final judgment, including the first-instance judgment, and discontinues the proceedings under Articles 130 (1) (f) and 157 (a) of the Code of Civil Procedure ...”


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev

The applicant, Ms Andriana Klaedes, is a British national, who was born in 1978 and lives in Nicosia. She was represented before the Court by Mr L. Loucaides, a lawyer practising in Nicosia.

The applicant was born intersex and in 1992 underwent a feminising surgical procedure in the United Kingdom. The applicant is a lawyer and appeared before the British courts and in British society as a female. In 2006 she changed her legal identification documents in England so as to record her female name, Andriana. Previously she used the name of Andy-Tony Panteli Klaede.

The applicant at some stage moved to Cyprus where she is currently practising as a lawyer. For professional purposes the applicant had initially kept her original male name, Andros Klaedes, on all her cards and documents and on the Register of Advocates.

In the beginning the applicant appeared before the courts wearing trousers and signed all documents as “A. Klaedes”. In 2009 she started appearing in court in female attire.

On 11 September 2012 the applicant had a case before the Larnaca District Court (criminal jurisdiction) and appeared before Judge M. She had appeared before this judge previously in respect of other cases wearing trousers and a jacket. On the above date she was wearing a long black skirt with a black blazer and a white shirt. The applicant claims that she was publicly humiliated and degraded by Judge M. in open court.

According to the applicant, Judge M. started making derogative comments. He told her that she was not allowed to appear before him. When she asked him the reason for this he replied that this was because she was wearing a skirt, she was a man and he did not accept masquerading in his court. When the applicant responded that she had already appeared before another judge without a problem, he kept saying “you are a man, you are a man”. He also told her that on the Register of Advocates she was registered as Andros Klaedes. When the applicant stated that he was violating her human rights, he replied “you are a man and you are not allowed to appear in such attire”. The court room at the time was full of lawyers and other people (court staff and other audience) who started laughing at her. The applicant told the judge that he had publicly disclosed her personal data. The judge asked her to leave the court room which she did after stating “as you wish your honour, with your leave”.

On 19 September 2012 the President of the Cyprus Bar Association issued an affirmation that Mrs Andriana Klaedes had been entered in the Register of Advocates on 6 March 1997 and had renewed her licence from 1997 until 2012.

On or around 24 September 2012, the applicant appeared before the same judge for a second time wearing a skirt. She submitted that the judge had reprimanded her and had stated that she was a man and she was not allowed to appear before him for the same reasons he had told her before. Although she informed the judge that she had obtained a certificate by the Cyprus Bar Association with her female name, the judge laughed and replied that her name had not been altered in the register and that she had to leave the court room and provide him with a certificate from the Supreme Court. The court room was full of lawyers and other people who were laughing at her. The applicant left the court room humiliated.

The applicant submitted that these incidents had received wide publicity through the mass media for several days adding further humiliation to the applicant, her family and friends. She was subjected to mockery, ridicule, contempt and was harassed by the journalists and other people. She also had suicidal tendencies.

The President of the District Court of Larnaca advised her not to appear before the said judge even though she had several cases before him.

On 24 October 2012, following the lodging of the present application with the Court, the applicant appeared before Judge M. who informed her that he had stepped down in respect of the cases in which she was a lawyer. Her cases were transferred to another judge of the same court. However, the applicant claimed that when she appeared before the new judge, he also treated her in a similar manner, called her by her male name and addressed her as “sir” in an unnecessary repetitive manner which amounted to mockery.

The applicant stated that the Larnaca District Court did not keep minutes of the relevant incidents and of the conversations set out above.

Section 4 (4) of the Civil Wrongs law provides that no action shall be brought against any judge of any court in the Republic, other than the Supreme Court, nor against any person lawfully performing the duties of a judge of such court, nor against any official receiver, nor any member of any court martial nor against any arbitrator nor other judicial officer in respect of any civil wrong committed by him/her in his/her judicial capacity if this act caused the civil wrong within his/her jurisdiction.

The 1960 Constitution, which came into force when the Republic of Cyprus was established, provided for the existence of both a High Court and a Supreme Constitutional Court. These Courts were composed of Greek, Turkish and neutral judges, that is, judges from a foreign country other than Greece and Turkey. The two neutral judges presided over the Courts. After the intercommunal troubles of 1964, the Administration of Justice (Miscellaneous Provisions) Law no. 33/64 was enacted on the basis of the law of necessity. By virtue of this law, the two highest courts were merged into one, the Supreme Court of Cyprus, to which the various jurisdictions and powers of the two pre-existing courts were transferred.

The Supreme Court was originally composed of five judges, but the number of judges was gradually increased by legislation to its current number of thirteen judges. The judges of the Supreme Court are appointed by the President of the Republic (Article 153.2 of the Constitution). The district judges, senior district judges, presidents of district courts and judges of the courts exercising specialised jurisdiction are appointed by the Supreme Council of Judicature, a body consisting of the judges of the Supreme Court (Articles 153.8(1) and (2) and 157 of the Constitution).

Pursuant to Article 157.2 of the Constitution the Supreme Council of Judicature has exclusive authority over the appointment, promotion, transfer, termination of appointment, dismissal and disciplinary matters of judicial officers of the inferior courts. It has the power to terminate the appointment of any judge, on account of mental or physical incapacity (Article 153.7(3)) or to dismiss a judge on the ground of misconduct (Article 153.7 (4)).

On 14 July 2000 the Supreme Court issued Rules on the basis of Article 163.2 (f) of the Constitution and section 17 of the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law 33/64, as amended), setting out the practice and procedure to be followed by the Supreme Council of Judicature in the exercise of its competence with regard to disciplinary matters relating to judicial officers. The relevant rules stipulate in detail the disciplinary procedure to be followed in the event a complaint is made that a judge may have become incapable, have displayed inappropriate behaviour (misconduct) or committed a disciplinary offence (Rule 3). If it is considered that an investigation is justified, an investigating judge is appointed by the Supreme Court to carry this out (Rules 4 -7). After the completion of the investigation, the Supreme Court decides, on the basis of the report submitted by the investigating judge and the statements which were taken during the investigation, whether the referral of the judge under investigation to the Supreme Council of Judicature is justified (Rules 8 and 9). If a decision is taken to proceed against the judge for misconduct or the commission of a disciplinary offence, the Supreme Court files a charge or charges against the judge in question who is called to appear before the Supreme Council of Judicature. Disciplinary proceedings are then carried out before that body (Rules 10-26). If the Supreme Council of Judicature decides that the charge or charges against the judge in question have not been proved, it shall acquit and exonerate him (Rule 23). Otherwise, a judge who is found to be guilty of misconduct shall be heard before the Supreme Council of Judicature proceeds further (Rule 26).

The penalty for misconduct under the Rules is dismissal (Article 153.7(4) of the Constitution and Rule 27) and for committing a disciplinary offence, a reprimand or a reprimand published in the Official Gazette of the Republic (Rule 28).

Section 17 of the Administration of Justice (Miscellaneous Provisions) Law of 1964 (Law 33/64, as amended) provides that the Supreme Court can make Rules to be published in the official Gazette of the Republic for the better carrying out of this Law into effect. Article 163.2 (f) of the Constitution provides that the Supreme Court may make Rules of Court for prescribing the practice and procedure to be followed by the Supreme Council of Judicature in the exercise of its competence with regard to disciplinary matters relating to judicial officers.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1968 and, prior to his conviction, lived in Yaroslavl.

On 15 April 2008 the applicant was arrested on suspicion of fraud. Subsequently, he was charged with fraud, attempted fraud, embezzlement, tax evasion and a breach of duties in his work as a tax agent.

On 16 April 2008 the Kirovskiy District Court of Yaroslavl remanded the applicant in custody pending investigation. The judge found that (1) the applicant was suspected of serious crimes, (2) he might abscond, (3) he might put pressure on witnesses, or (4) he might interfere with the investigation.

On 25 April 2008 the Yaroslavl Regional Court upheld the detention order of 16 April 2008 on appeal.

The applicant remained in detention pending investigation and trial. The courts extended his detention, using the same stereotyped formula as described above.

On 16 March 2009 he was committed for trial before the Kirovskiy District Court of Yaroslavl.

On 27 October 2009 he was convicted of the charges and sentenced to seven years’ imprisonment.

On 29 December 2009 the Yaroslavl Regional Court quashed the judgment on appeal and remitted the case to the first-instance court for a fresh examination.

On 25 January 2010 the trial court ordered his release on bail.

On 27 January 2010 the bail was paid and the applicant was released.

On 20 July 2010 the applicant was convicted of fraud and attempted fraud and sentenced to five years and six months’ imprisonment.

On 19 October 2010 the Yaroslavl Regional Court upheld the judgment on appeal.