Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in 1945 and 1935 respectively and live in Moscow and Lyubertsy.

The applicants, together with another person, were joint owners of a plot of land and the house built on it.

The first applicant owned a one-sixth share of a house constructed between 1937 and 1949 (her share amounting to some 24 sq. m, of which some 12 sq. m was living space), and 208 sq. m of land. The property had been her registered address since 2001. It appears that her title originated in the inheritance she had received after her late mother’s death in 1995.

The second applicant owned a half share in the same house (amounting to some 78 sq. m) and 625 sq. m of the same plot of land. It appears that he had first had a right of use (as part of inheritance after another person) in respect of the land and had then acquired title to it in 1993; that he had inherited his share in the house after another person in 1975.

The remainder of the house and plot of land were owned by the first applicant’s brother.

On 28 June 1999 the Ministry of Construction of the Moscow Region issued a decision to “adopt” the general plan of Lyubertsy town, “to invite the Lyubertsy municipality to continue co-operating with the authors of the general plan when preparing future projects, bearing in mind that the plan is the main legal document in relation to town planning”. In August 2005 the decision was amended to indicate that the Ministry “had adopted the plan for further approval in accordance with the established procedure” (see also paragraph 30 below).

In November 2001 the Lyubertsy municipality (“the municipality”) adopted a programme aimed at demolishing dilapidated housing.

In April 2002 the local authorities adopted draft construction guidelines for the Oktyabrskiy Proezdy district where the applicants’ house was situated. The draft guidelines were published in a local newspaper on 6 August 2002. It appears that they were eventually adopted in 2003.

A committee composed of officials attached to various public authorities was asked to make a proposal regarding a plot of land for constructing blocks of flats. The committee considered that it would be appropriate to construct blocks of flats at Kirova Street. It does not transpire from the committee’s deliberations that they considered any other plots of land. On 30 May 2002 the municipality issued a decision by which it agreed to the construction of several blocks of flats (including one on the applicants’ land) and authorised a specialised State enterprise to start the compiling of the necessary technical documents.

In September 2002 the regional administration, the Lyubertsy town administration and a State enterprise signed an investment contract for the construction of multi-storey blocks of flats in the area, including the applicants’ land. Under the terms of the contract, the enterprise would arrange to buy the land from private owners and the municipality would acquire title to it. The investor would also take measures to resettle any inhabitants and provide them with compensation. The municipality and the investor would own 5% and 95% of the newly built housing space respectively. The estimated preliminary cost of the project amounted to 14,481,000 euros (EUR).

As transpires from the available information, the block of flats to be built on the applicants’ land comprised seventeen floors, 352 flats with the total space of 21,146 sq. m. Under the investment contract, the municipality was to receive title to some thirty flats for the overall space of 1,907 sq. m.

The investor also agreed to make a contribution of funds corresponding to some 30% of the estimated costs for constructing a kindergarten for 114 children, an annex building for a school and some other amenities or facilities.

In October 2002 a private company, ORS-Grupp, replaced the State enterprise as the project investor.

In December 2002 the municipality issued an order aimed at implementing the demolition programme adopted in November 2001 and “improving the architectural appearance of the town and the resettlement of inhabitants from housing that no longer [met] sanitary requirements”. The above investment project was one of the measures by which the municipality intended to achieve those aims. In total, the order concerned some eleven investment contracts in relation to over seventy dwellings, of which some thirty properties were privately owned and the remainder was owned by the municipality.

The municipality assessed the situation as regards the private owners, including the applicants, and decided to proceed by way of expropriation for municipal needs under the Land Code (see paragraph 59 below).

On 18 March 2003 the municipality ordered the expropriation of the applicants’ house and land for municipal needs, namely the construction of a block of flats under the investment contract.

According to the Government, on 24 April 2003 the second applicant received notice of the planned expropriation.

On 19 May 2003 the municipality amended the expropriation order, indicating that pursuant to the investment contract the investor had to provide funds for paying compensation for the land being expropriated and provide inhabitants with comparable alternative housing. The investor was required to request expert valuations to determine the market value of the properties being expropriated (see paragraphs 23 and 27 below) and then buy those properties.

It appears that on 21 May 2003 the investor obtained a valuation report regarding the applicants’ house and land to determine their market value. The company used was Expert Centre, a private company licensed by the State to carry out valuation assessments (see paragraph 64 below). The Court was not provided with a copy of this valuation report.

According to the Government, on 27 and 29 May 2003 the first applicant was served with notice of the planned expropriation. In January 2004 both applicants were informed that the amended expropriation order had been officially registered.

According to the Government, on 3 July 2003 there was a meeting between Kirova Street residents and, apparently, a representative of the local authorities or the private company. The Government stated that the residents had been given access to a construction planning document for the area, documents concerning the choice of plots for such construction, the town plan and some other documents.

As no comparable plots of land were available in the area, having regard to the valuation report of 21 May 2003 (see paragraph 23 above), the first applicant was offered several options of “compensation in kind”, namely one or two-room flats in Lyubertsy or Moscow with market values of up to 150,000 United States dollars (USD), apparently with ownership title. She was also offered monetary compensation for the land and her part of the house of up to USD 50,000. However, she turned down these offers, considering them insufficient or the location of the alternative housing unsuitable. The second applicant appears to have turned down offers of plots of land in nearby areas ranging between USD 60,000 and 140,000 in value. The second applicant also turned down another offer: ownership title to two flats measuring at least 35 sq. m and 54 sq. m each together with USD 34,874. The second applicant stated that he was entitled to compensation amounting to USD 330,000. The investor then made a new offer of USD 200,000 as compensation for his part of the house and land. The second applicant did not accept it.

On 5 May 2004 the investor requested another valuation report regarding the applicants’ house and land from Expert Centre. On 14 May 2004 it issued a report indicating that the overall market value of the first and second applicant’s shares of the house and land were USD 24,488 and USD 73,463 respectively. The Court was provided with part of that report, which reads:

“[Description] of the assessment object: a residential house (a single-storey building made of wood, [measuring] 110.8 [sq. m], of which 86 [sq. m is] living space) and annexes; a plot of land [measuring] 1,249 [sq. m] ...

[Location] of the assessment object: ...

The assessment object is situated in the centre of the old town of Lyubertsy. On the one hand, there are old buildings (essentially residential houses dating back to the 1930s to 60s) and, on the other, [there are] new buildings consisting of modern blocks of flats. The town’s major traffic arteries are in the immediate proximity of the assessment object. There is a car park on one side of the street and a residential area ont the other ... They have a well-developed infrastructure, good access to transport up to Vykhino metro station, central Lyubertsy and the above residential area ...

Description of the plot of land: ...Vykhino metro station is within a ten-minute ride by public transport ...

Description of the house: ... the main building was first constructed in 1937; the remaining buildings later, until the 1970s ... The house is habitable, although it requires some superficial repairs ...”

In November 2004 the district chief architect and the local land authority informed the municipal administration that the town’s general plan of 1999 made no provision for the construction of individual housing. On 23 November 2004, in reply to an enquiry raised by the investor company, the municipality announced that it had no available plots of land that would be equivalent to the land to be expropriated from the applicants, namely those assigned for the construction of individual housing.

In late 2004 the town administration brought proceedings in the Lyubertsy Town Court of the Moscow Region (“the Town Court”) seeking judicial authorisation for the expropriation of the applicants’ house and land. In December 2004 the first applicant lodged a separate claim against the municipality, arguing that the expropriation orders of 18 March and 19 May 2003 were ultra vires and otherwise unlawful and disproportionate. On 29 December 2004 the Town Court held a hearing. After hearing evidence from a representative of the municipality, it decided to join the cases. An appeal brought by the first applicant was not processed since the procedural order was not amenable to appeal.

In the meantime, the Moscow Region Prosecutor’s Office replied to a request for information from the second applicant, informing him that the regional ministry had acted ultra vires in taking a decision on the general plan in 1999 and that no copy of it existed (see paragraph 10 above). The applicants informed the court examining their case accordingly.

The court held several hearings in the expropriation case. It appears that on 11 February 2005 the court ordered a new report from Expert Centre. The applicants did not oppose the choice of company and did not ask for any particular questions to be put to its experts.

In February 2005 a group of three experts compiled a report indicating USD 23,300 and 5,200 as the market values of the first applicant’s land and part of the house respectively, and USD 70,000 and 15,600 as the second applicant’s (compare the earlier assessment in paragraph 27 above). The land and house were therefore valued at USD 112 and 216 per sq. m respectively.

In reply to the second applicant’s complaint, on 14 March 2005 the Prosecutor’s Office provided the following reply (see also paragraphs 55 and 56 below):

“Regarding your complaint about unlawfulness relating to the adoption of Lyubertsy town plan:

I inform you that Articles 18, 28, 35, 39, 58 and 60 of the old Town Planning Code provided for a procedure relating to consultation with the local population in relation to the documents relating to town planning. At the same time, the Code did not specify any particular manner for obtaining the population’s view, and thus consultations could be done in any form. It has been established that Lyubertsy town plan was adopted on 28 June 1999 by the Ministry of Construction of the Moscow Region and not by a municipality, in breach of Article 35 of the Town Planning Code. Moreover, there is a breach of the same provision due to the fact that there is currently no Lyubetsy town plan. The municipality will be ordered to remedy the violation of the Code.”

On 7 April 2005 the municipality’s mayor wrote to the Town Court asking to speed up the court proceedings, arguing that some of the flats were to be given to the people waiting for social housing and that the procrastination of the proceedings was also prejudicial to the people who had invested in the construction project.

On 13 April 2005 the Town Court delivered a judgment, stating as follows.

The applicants appealed. They contended, inter alia, that the expert report relied on by the first-instance court had in fact been requested by the municipality and was thus biased and based on the material provided by them; no court-requested report had been prepared. The first applicant also argued that the expert report had failed to take into account the scarcity of land in Lyubertsy for individual housing; the commercially attractive location of the land, which bordered the city of Moscow; the proximity of a metro station under construction (or planned); and the intended use of the land being expropriated for commercial gain arising from the construction of blocks of flats. The applicant also contested the expert assessment regarding the value of the house to be demolished pursuant to the expropriation decision. The expert had not used the “method of prospective use” for determining the value of the house and land. The expert valuation was based on the premise that the land’s use was for a summer cottage use rather than for the use relating to multi-storey blocks of flat; this premise was inappropriate, given that the property was already surrounded by similar blocks of flats. With reference to the above considerations, the applicant’s own calculations amounted to USD 246,418 for her part of the land.

On 4 July 2005 the Moscow Regional Court upheld the first-instance judgment.

On 18 August 2005 the first applicant applied for supervisory review of the court decisions of 13 April and 4 July 2005, requesting that the enforcement proceedings be suspended.

In the meantime, on 22 August 2005 the applicants were evicted and had their belongings removed from the house. According to the Government, the first applicant’s belongings were then delivered to the social housing flat where they were then stored, under the supervision of a local public official, until December 2006 when she received the keys.

A bank account was opened for the first applicant, and the expropriation compensation was credited into it on 26 August 2005. The bank issued a certificate allowing the accountholder to use the money. On 29 August 2005 the first applicant was informed of the above.

On 31 August 2005 the Regional Court dismissed the first applicant’s application for supervisory review. The reviewing judge held that the municipality had had competence to issue the expropriation decision, referring to the available general plan and all the other necessary documents.

In November 2005 the first applicant lodged a further application for review before the President of the Regional Court. On 22 November 2005 the application was examined and rejected by another judge of the Regional Court. In March 2006 the first applicant again applied for review before the President of the Regional Court. In a letter of 10 April 2006 the President of the Regional Court dismissed her application, upholding the earlier refusals.

The first applicant lodged an application for supervisory review with the Supreme Court of Russia. On 5 July 2006 it was dismissed. The applicant challenged that decision before the Deputy President of the Supreme Court. In a letter of 11 October 2006 he agreed with the lower courts’ decisions. In April 2008, in reply to a new application, the Supreme Court informed the first applicant that she could lodge no further supervisory review applications in respect of the court decisions.

According to the Government, until November 2006 the first applicant refused to accept the keys to the flat and the bank certificate relating to the account into which the expropriation compensation had been credited.

On 1 December 2006 the applicant received the keys for the flat, the bank certificate and her belongings that had been in safekeeping.

According to the second applicant, in July 2006 the municipality resold the properties it had acquired under the investment project to the investor.

In 2005 the second applicant brought separate proceedings challenging the orders of 18 March and 19 May 2003. On 10 October 2005 the Moscow Regional Court took a final decision rejecting his claim, primarily because it was time-barred but also because the main arguments had already been dealt with in the final judgment of 13 April 2005 (see paragraph 35 above).

On 26 August 2005 the first applicant brought separate proceedings in the Town Court (i) alleging that the bailiffs had acted unlawfully in the enforcement proceedings, and (ii) claiming compensation in respect of pecuniary and non-pecuniary damage. Her claim was turned down on several occasions because she had failed to comply with the required formalities. It appears that the relevant procedural orders were annulled because they reached the applicant after the respective time limits for complying with them had expired. Several hearings were scheduled in 2007. Sometime during that year the Town Court decided that the claims for compensation should be processed separately.

In February 2007 the applicant resubmitted her claim for compensation. On 3 July 2007 the Town Court refused to deal with the case because she had failed to comply with its instructions to specify the amount of the claim, to submit calculations concerning the loss and to pay a court fee.

On 5 September 2007 the Town Court granted the first claim in part, considering that the applicant had not been informed in good time of the order launching the enforcement proceedings in 2005. She had thus been deprived of the right to contest the documents relating to the enforcement.

The applicant sued the municipality, complaining of losses she had suffered because of inflation arising from the delay in enforcement of the judgment of 13 April 2005 in the part relating to the expropriation compensation. On 10 December 2008 the Town Court awarded her 89,712 Russian roubles (RUB) in pecuniary damages arising from the fact that the judgment had actually been enforced on 1 December 2006. On 26 February 2009 the Moscow Regional Court quashed that judgment on appeal and instead awarded the applicant RUB 3,161, considering that the judgment had been enforced on 26 August 2005 when the expropriation compensation had been credited into the bank account opened for her.

In 2008 the applicant lodged a complaint with the bailiff service, requesting compensation for belongings that had either been lost or damaged during or following demolition of the house. On 22 May 2008 the District Bailiff Office replied that an inventory of her belongings had been compiled before the demolition. They had all been transferred to her social housing flat and entrusted to a public official for safekeeping; she had had three years to reclaim them. In February 2009 a new complaint by her was dismissed by the Federal Bailiff Office, which noted that the notices dated 11, 12, and 15 August 2005 of the impending demolition of the house had not been served on her personally as she had been away from her temporary address. Between August 2008 and January 2009 various courts in Moscow declined jurisdiction or turned down for procedural reasons a related civil claim by her against the Federal Ministry of Justice.


Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Trafficking in human beings);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1990 and lives in Z. Owing to problems in her family, between 2000 and 2004 she lived with a foster family. Then she moved to a public home for children and young persons, where she stayed until she completed her professional training as a waiter.

On 27 September 2012 the applicant lodged a criminal complaint with the Z. police against a certain T.M., a former policeman, alleging that in the period between the summer of 2011 and September of the same year he had physically and psychologically forced her into prostitution. He had given her a mobile telephone so that clients could contact her and had driven her to meet clients in various places. He had also forced her to give sexual services in the flat where they had lived together. During that whole period she had been under the control of T.M. When she had refused to give sexual services to other men, he had physically punished her. After she had left him, he had threatened her and her family and had attempted to contact her through a social-networking website.

The criminal record of T.M. showed that in 2005 he had been convicted of the criminal offences of pandering and rape and sentenced to six years’ and six months’ imprisonment. He was released from prison on a conditional leave in May 2009 and the conditional leave expired in June 2010.

The Z. County State Attorney’s Office opened an investigation in respect of T.M. On 10 October 2012, following an order by the Z. County Court, the police conducted a search and seizure of T.M.’s premises, where they found, inter alia, several pieces of automatic rifles, a number of mobile phones and condoms.

On 16 October 2012 the applicant gave her evidence to the prosecuting authorities. She said that T.M. had first contacted her at the beginning of 2011 through a social-networking website and that he had already known her mother and introduced himself as a friend of her parents. She had met T.M. on various occasions in cafés and she had asked him to help her in finding a job. T.M. had told her that he could find a job for her as a waitress or a shop assistant.

One day at the beginning of July 2011 he had told her that he would take her to one of his friends who could help her in finding a job. When they had arrived at the house of that man T.M. had told the applicant to go to a room with him. The man had then told the applicant that he had expected sexual services from her. The applicant had said that she had not wanted to do it. That man had also told her that he had answered an advertisement on the Internet under the name Smokvica (“little fig”) and that T.M. had told him that T.M. and the applicant had been a husband and wife who “[had done] such things together”. T.M., who had been eavesdropping outside the room, had stormed into the room and started to shout at her and slap her and had then told her that she had been there with a purpose, that she should not have behaved like that. The man had secretly given her 400 Croatian kunas (HRK); when she had told T.M. about that, he had then taken that money from her.

At that time she had still lived with her friend K.Č. who had no knowledge of the events at issue. T.M. had again contacted her and told her that they had needed to talk about what had happened. She had agreed to meet him but they had not discussed what had happened. A few days later T.M. had given her a mobile telephone so that clients seeking sexual services could contact her. T.M. had also told the applicant that she had had to give her physical description to men who would contact her and charge HRK 400 for half an hour of sexual services or HRK 600 for an hour, and that she had had to give half of that money to T.M.

The applicant also said that she had acquiesced to all that because she had been scared of T.M. and that he had threatened to tell all to her parents.

Some ten days after that T.M. had rented a flat, where the applicant and T.M. had then lived together. She had provided sexual services in that flat and on five to six occasions T.M. had driven her to clients. During the period in question she had had about thirty clients. Since T.M. had lived in the same flat with her, he had controlled everything she had been doing.

When she had refused to have sexual intercourse with him or when he had been dissatisfied with the manner in which she had given sexual services to clients, T.M. had beaten her. He had beaten her every couple of days.

Questioned as to why she had not contacted the police earlier, the applicant answered that she had been afraid of T.M. Once, when he had been out of the flat and had left the key, the applicant had called her friend M.I., who had known that the applicant had been giving sexual services to men for money. The applicant had asked M.I. to help her escape.

After that M.I.’s boyfriend, T., had arrived by taxi, helped the applicant to collect her things and taken her to M.I.’s home. She had stayed with M.I. for about ten days.

The applicant also said that T.M. had told her that he had previously had a girlfriend, A., whom he had “treated in the same way” and later on he had told her that after her, the applicant, he had had another girlfriend whom he had “helped in it”. T.M. had told the applicant that he had filmed those girlfriends and punished them when they had been “insolent”.

On 6 November 2012 M.I. gave her evidence to the prosecuting authorities. She said that she had never met T.M. but that the applicant was her friend and she had known her for some two years. M.I.’s last contact with the applicant, before the applicant had come to her flat, had been some eight or nine months previously. M.I. had known already at the end of 2010, beginning of 2011 that the applicant had been giving sexual services for money because the applicant had told her so.

At the end of summer 2011 the applicant had suddenly come to her home with a bag containing her things. M.I. had then learned that the applicant had agreed with M.I.’s mother to come to stay with them, but did not know any details since she (M.I.) was not in very good relations with her mother.

The applicant had told her about T.M., from whom she had escaped because she had no longer wished to be involved in prostitution “for him”. Before the applicant had come to her flat M.I. had not known where or for whom the applicant “did that”. Only then had M.I. learned that the applicant “had being doing it for T.M.”. The applicant had been very distressed and scared. She had told M.I. that T.M. had repeatedly beaten her; watched her through a key lock when she had been giving sexual services to clients and afterwards also beaten her for “not being in a position he had approved of”.

M.I. also said that in her understanding the applicant had voluntarily given sexual services because she had needed money. The applicant had told her that she had had an agreement with T.M. to work for him and to share the money, that she had had a mobile telephone for clients to call her and that there had been a small ad through which she had been contacted for appointments by clients. The applicant had said that T.M. had given her that mobile telephone and placed the advertisement.

M.I. also said that she could not remember if the applicant had told her that she had opposed T.M. It was true that the applicant had said that she had not wished to “do it” but in M.I.’s understanding that had rather meant that the applicant had been “doing it” because she had had no other means to earn money. The applicant had also told her that T.M. had slapped her for very minor reasons which she (the applicant) had not expected. When she had refused sexual relations with him T.M. would beat her and the applicant had not known what would make him “explode again”. T.M. had also told the applicant that he had had another girlfriend who had worked for him and whom he had also beaten. The applicant told M.I. that she had used the opportunity to run away from T.M. when he had been out of the flat where they had lived.

M.I.’s boyfriend, T.R., had told her that he had spoken with the applicant but he had not given any details. M.I. had broken up with him a week after that but still had his address.

M.I. also said that the applicant had stayed with her and her mother for several months and that T.M. had continued to contact the applicant through a social-networking website and had threatened her as well as her mother. He had also sent messages, saying that he had loved her and asking her to come back to him.

On 6 November 2012 the Z. County State Attorney’s Office indicted T.M. in the Z. Criminal Court on charges of forcing another to prostitution, as an aggravated offence of organising prostitution under Article 195 of the Criminal Code.

On 21 December 2012 the applicant was officially given the status of victim of human trafficking by the Office for Human and Minority Rights of the Government of Croatia (Vlada Republike Hrvatske, Ured za ljudska prava i prava nacionalnih manjina). On the same day the police contacted the Croatian Red Cross and its employees informed the applicant of her rights (accommodation, medical check-ups, psycho-social support, legal aid and material support). The applicant told them that she was not interested in the right to safe accommodation since she lived with her mother and sister. According to the Government the applicant contacted the Croatian Red Cross on twelve occasions between 17 January 2013 and 24 April 2015. She received psycho-social support through individual counselling and material support. The Croatian Red Cross also organised individual counselling for the applicant with a psychologist in the Centre for Cognitive-Behavioural Therapy. Further to this the applicant was provided legal aid by a non-governmental organisation, the R. Centre, within the legal-aid scheme supported by the State.

The summons served on the applicant contained detailed information on her rights as a victim, such as psychological and practical support and of the possibility to contact the Department for Organising and Providing Support for Witnesses and Victims within the Z. Municipal Criminal Court. Contact details of that Department were also provided.

At hearings held on 13 January and 15 February 2013 T.M. gave his evidence. He denied that he had forced the applicant into prostitution. He confirmed that he had contacted the applicant through a social-networking website because he had recognised her surname since he had known her parents. He had also known that the applicant’s mother had been a prostitute.

T.M. and the applicant had started to see each other and the applicant had told him that she had had no money and needed a job and that she had some debts. The applicant had also told him that previously she had given sexual services for money and had kept telephone numbers of her clients and asked him whether he could take her sometimes to those clients, which he had done.

He confirmed that he had been in a relationship with the applicant during that time. However, he had not lived with her in the flat she had rented but only sometimes spent a night there. He had had the keys of that flat and the applicant had had them as well and she had been free to come and go as she liked. He had also been in the flat on some of the occasions when the applicant had given sexual services there. He had known that the applicant had charged HRK 400 for half an hour and HRK 600 for a full hour but these prices had been set by her and not him. Initially he had lent her some money and from that sum she had bought a mobile telephone on which clients could contact her. Later on she had returned the money she had borrowed from him. She had also given him some money even though he had been reluctant to take it but she had insisted telling him that it had been for petrol. However, it had mostly been he who had given money to the applicant because she had constantly complained that she had had no money.

He admitted that he had slapped the applicant once when they quarrelled about her refusal to work in a bakery.

He also said that he had found her a job in a restaurant but that after he had told her about it she had disappeared.

Both the applicant and M.I. gave their evidence at a hearing held on 29 January 2013. A lawyer was provided to the applicant by the R. Centre. Before giving her evidence the applicant told the trial court that she feared the accused. The accused was then removed from the courtroom and the applicant gave evidence in his absence.

The minutes of that hearing indicate that the applicant repeated her statement given on 16 October 2012 (see paragraph 9 above) and also said that T.M. had told her that he had been a former policeman and together with her father in the war. Her father had confirmed that and had said that T.M. was “an okay person”. Her mother on the other had told her that he was not a reliable person.

After the first time T.M. had driven her to give sexual services to another man, she had sat in the backseat of his car. T.M. had been very angry and had been nagging her and at one moment he had stopped the car and slapped her. She had exited the car, attempting to run away but he had caught up with her and taken her back to the car.

She had agreed to meet him the next day because he had told her that they would discuss what had happened but they had not.

She had been afraid of him and for that reason had agreed to give sexual services to other men and also because he had threatened her that he would “tell all” to her parents and that he would “cram her mother into prison”.

T.M. had found the flat to rent, but the applicant had signed the contract and paid the rent for the flat. She had not had the keys to that flat.

Even though on three to four occasions he had allowed her to leave the flat alone to go to a nearby shop, she had not dared to flee because T.M. had followed where she had been going from the balcony and she had been scared of him. He had set some rules for her: she had been forbidden to talk with the clients; the clients had not been able to touch her; and she had been allowed to give sexual services only in the manner ordered by T.M. When she had refused to have sexual intercourse with him or when he had been dissatisfied with the manner in which she had given sexual services to clients, T.M. had beaten her.

Questioned again as to why she had not contacted the police earlier, the applicant said that T.M. had told her that he had “connection” at the police and that he would very soon learn if she reported “anything”.

Questioned as to why she had not attempted to run away when T.M. had driven her to the clients the applicant said that she had been sure that T.M. would have found her and that she had been allowed to stay with the clients for exactly twenty-nine minutes.

When the applicant had called her friend M.I., who had known that the applicant had been giving sexual services to men for money, the applicant had asked M.I. to help her escape. She had also spoken with M.I.’s mother. T.M. had continued to contact her through a social-networking website, at first sending her love messages and then threatening to tell all to her parents. Then T.M. had sent a letter to the authorities, accusing the applicant’s mother of neglecting the applicant’s younger sister. Her mother had been asked to come to a police station on that account. The applicant had then decided to contact the police.

The applicant also explained that she had been very much scared of T.M., that she had feared for her life because he had threatened to “beat her to death”. T.M. had also threatened her with publishing naked photographs of her. She had agreed to being photographed because she had been scared of him. T.M. had also told her that as a former policeman he had known a lot of policemen and if she had reported him he would have fabricated stories about her.

Later on she had learned from her mother that T.M. and her mother had lived together for a while and that a former girlfriend of T.M. had reported him to the police for forcing her to give sexual services to other men.

M.I. repeated her statement given before the prosecuting authorities (see paragraph 10 above).

On 15 February 2013 the Z. Criminal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring in which he had recruited the applicant, it had not been established that he had forced her into prostitution. However, he had only been indicted for the aggravated form of the offence at issue and thus he could not be convicted for the basic form of organising prostitution. In finding this, the trial court in particular noted that it could not give sufficient weight to the applicant’s testimony because her statement had been incoherent, she had been unsure and that she had paused and hesitated when speaking. At the same time, given that there was no other conclusive evidence, it applied the in dubio pro reo principle and acquitted T.M. The relevant part of the first-instance judgment reads:

“On the basis of the evidence given by the accused and the victim in these criminal proceedings the following facts have been established: that the accused and the victim met through the social network Facebook when the accused contacted the victim; ... that the accused gave a mobile telephone to the victim so that she could be contacted by the clients with whom she discussed providing sexual services; that the victim indeed did provide sexual services in the flat where she lived with the accused; that on five or six occasions the accused drove the victim to the addresses of clients where she provided sexual services; that the victim charged for providing sexual services the sum of HRK 400 for half an hour and the sum of HRK 600 for an hour ...”

The State Attorney’s Office appealed against this decision, arguing that the first-instance court had erred in its factual findings concerning the charges against T.M. when it did not accept the applicant’s testimony.

On 21 January 2014 the Z. County Court dismissed the appeal of the State Attorney’s Office and upheld the first-instance judgment, endorsing its reasoning as well as the facts as established by the trial court. That decision was served on the applicant on 28 February 2014.

On 31 March 2014 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining about the manner in which the criminal-law mechanisms had been applied in her case. She relied on Articles 14, 23, 29 and 35 of the Constitution (see below paragraph 23) and Articles 3, 6, 8 and 14 of the Convention. In particular, she alleged that the national authorities had not properly investigated and addressed the element of force. Also, owing to the failure of the authorities to reclassify the offence, T.M. had not been convicted of any offence, to the applicant’s detriment. She further stressed that she had not been provided with any psychological help or assistance during the court hearing to help cope with the fear and pressure she had felt from T.M. while testifying, which all resulted in her testimony being regarded as incoherent by the trial court. The applicant also alleged a failure of the authorities to secure effective respect for her private life in particular through the domestic court’s inadequate assessment of all the relevant circumstances in which she had been recruited to T.M.’s prostitution ring.

On 10 June 2014 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the applicant had not had the right to bring a constitutional complaint concerning the criminal proceedings against T.M. since these proceedings had concerned a criminal charge against him. The decision of the Constitutional Court was served on the applicant’s representative on 1 July 2014.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants are owners or co-owners of residential buildings which comprise flats that were or still are subject to rent control. They obtained ownership of the flats by various means, such as restitution, donation, inheritance or purchase. Under the relevant legislation they had to accept that the flats were occupied by tenants with a regulated rent and that they could charge them no more than the maximum amount of rent fixed by the State. The relevant legislation precluded them from unilaterally terminating the leases, or selling the flats other than to the tenants (“the rentcontrol scheme”). The particulars of the flats affected by the rentcontrol scheme are set out in Appendixes 25 (columns AF).

The situation of the applicants is structurally and contextually the same as in Bittó and Others v. Slovakia (no. 30255/09, 28 January 2014 (merits) and 7 July 2015 (just satisfaction) and three subsequently decided cases concerning the rent controlscheme in Slovakia (Krahulec v. Slovakia, no. 19294/07; Bukovčanová and Others v. Slovakia, no. 23785/07; and Rudolfer v. Slovakia, no. 38082/07, all adopted on 5 July 2016).

It is in dispute between the parties in the present case what amount of rent the applicants would be able to receive by letting their flats under freemarket conditions. By extension, that disagreement translates into an argument over the proportion of the market rent that the regulated rent represents.

In that connection, the Government submitted an expert’s opinion drawn up in 2010 in relation to all four applications (“the Government’s expert opinion”), according to which the monthly free-market rent for flats comparable to the applicants’ was between 6.13 and 6.48 euro (EUR) per sq. m in the municipality of Bratislava-Staré Mesto and EUR 5.05 and 5.35 per sq. m in the municipality of Bratislava-Nivy. The regulated rent in the flats owned by the applicants ranged between EUR 0.80 and 1.7 per sq. m. According to those calculations therefore, the regulated rent of the flats possessed by the applicants corresponded to some 14-26% of the market rent in 2010. The relevant data are set out in Appendixes 25 (columns GI).

The applicants for their part relied on different sources of information to support their contention that the regulated rent was disproportionately low compared with similar flats to which the rent-control scheme did not apply. The data submitted by them are set out below separately in relation to each application.

The applicants maintained that in 2007 the regulated rent ranged between EUR 76 and 84 a month whereas the average free-market rent for comparable flats in a similar location was EUR 956 a month. They submitted an expert’s opinion which showed that the difference between the general rental value of the property and the regulated rent they actually received was EUR 88,431.53 for the period between 2000 and 2011.

The applicants submitted that in 2010 the regulated rent for their flats amounted to EUR 95 and 105 a month, whereas the monthly free-market rent for comparable flats was EUR 616. They relied on data from the National Association of Real Estate Agencies (“the NAREA”). Depending on the period and the relevant law in force, the regulated rent represented some 5-13% of the market rent for comparable flats in the area. They further submitted that the sum which they and the other coowners had invested in repairing the building was ten times the income they obtained from letting the flats under the rentcontrol scheme.

In 2008 the applicant was allowed to charge a monthly rent of EUR 40 to 60 for each of his flats. He submitted that the market rent in the same area in 2005 was between EUR 305 and EUR 366 a month for the single-room flat and between EUR 396 and EUR 488 a month for the two-room flats. He relied on information about average rental prices published in the press.

The applicants submitted that the regulated rent for their flats ranged between EUR 38.5 and 104 a month in 2010. Relying on data from the NAREA, they maintained that the market rent for comparable flats in the area amounted to approximately EUR 616 a month.


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

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicants were born in 1935, 1945 and 1956 respectively and live in Ploieşti.

In 1975 a group of engineers patented an invention concerning a method for separating hydrocarbon. The first applicant is one of the inventors. The second and third applicants are heirs of the other members of the group.

On 26 January 1995 the applicants lodged an action for compensation against company R., a privately-owned former State company which had used the 1975 invention between 1985 and 1988 (for details about those proceedings, see Farcaş and Others v. Romania, no. 67020/01, §§ 7-22, 10 November 2005).

In a decision of 24 June 2002 the Braşov County Court allowed in part the action lodged by the applicants against company R., and ordered the latter to pay to the first applicant 2,284,679,617 Romanian lei (ROL), an amount representing compensation for the use, between 1985 and 1988, of the invention patented in 1975. The second and third applicants appealed, and in a decision of 8 November 2002 the Braşov Court of Appeal also awarded them compensation – ROL 2,230,620,676 to the second applicant and ROL 1,669,759,157 to the third applicant.

On 10 March 2004 the applicants and company R. signed an agreement for the payment of the compensation awarded by the court. Between 2 and 21 April 2004 the company paid about 20% of the amounts granted.

On 5 May 2005 the High Court of Cassation and Justice took note of the terms of the agreement of 10 March 2004 and concluded that company R. had withdrawn its appeal on points of law against the decision of 8 November 2002 (see paragraph 7 above), which thus became final.

Meanwhile, on 31 March 2004 company R. had sought its judicial reorganisation under a procedure provided for by Law no. 64/1995 on judicial reorganisation and bankruptcy.

On 28 April 2004 the Bacău County Court allowed the application, started the reorganisation proceedings and nominated a judicial administrator. The applicants’ claims were accepted by the County Court and recorded in the register of claims compiled by the judicial administrator in conformity with the provisions of the applicable law (tabloul creditorilor, hereinafter “the register of claims”).

The applicants lodged an objection to the register of claims, asking to be recognised as priority creditors (creditori privilegiaţi). Eleven other creditors also lodged objections against the records in the register of claims.

Meanwhile, on 24 November 2004 the judicial administrator had submitted a reorganisation plan to a vote by the creditors. It was proposed that the priority claims (creanţe privilegiate) be paid in full, and the remaining unsecured non-priority claims (creanţe chirografare) be paid at a rate of 20% of their value. In an interlocutory judgment of 8 December 2004 the Bacău County Court validated the plan after examining the objections raised by the unsecured creditors (creditori chirografari). In 2006 company R. paid its debts in accordance with the plan.

On 11 October 2007 the Braşov County Court held a hearing on the objections to the register of claims lodged by the applicants. The first applicant was present at the hearing to represent both himself and the other applicants. The County Court gave the parties until 18 October 2007 to submit written observations. On that date, in the applicants’ absence, it adjourned delivery of the judgment to 1 November 2007. The County Court gave its judgment on 1 November 2007; it found against the applicants.

On 23 January 2008, in accordance with the rules on notification in relation to court documents in insolvency proceedings (see paragraph 20 below), the judgment of 1 November 2007 was published in the Bulletin of Insolvency Proceedings (Buletinul Procedurilor de Insolvenţă, “the Bulletin”).

On an unspecified date the applicants enquired about the judgment’s date of delivery and asked the County Court to provide them with a copy of the judgment, which was sent to them on 31 January 2008; they received it on 4 February 2008. On 13 February 2008 they lodged an appeal by post.

Before the Braşov Court of Appeal, the applicants argued that, as they had not had access to the Bulletin, they had not been able to know on which date the judgment had been published.

In a final decision of 17 April 2008 the Court of Appeal dismissed that argument and concluded that the appeal had been made out of time, as it had been lodged more than ten days after 23 January 2008, the date on which the Braşov County Court’s judgment had been published (see paragraph 15 above). Relying on the Constitutional Court’s decision no. 1137 of 4 December 2007 (see paragraph 21 below), the Court of Appeal considered that the notification procedure via the Bulletin had offered sufficient safeguards to the participants in the proceedings, and had been justified by the nature of the insolvency procedure.

On 21 June 2010 the County Court closed the insolvency proceedings and noted that company R. had complied with all the obligations set out in the reorganisation plan (see paragraph 13 above), and thus it no longer had any debts.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of inadequate conditions of their detention.

In applications nos. 37198/09, 29657/10 and 14181/15 the applicants also raised other complaints under the provisions of the Convention.

Having studied the terms of the Government’s unilateral declarations made in some cases, the Court considers that the proposed declarations do not provide a sufficient basis for concluding that respect for human rights does not require it to continue its examination of these applications. The declarations are therefore rejected.


Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Tomas Leščiukaitis, is a Lithuanian national who was born in 1976 and lives in Garliava. He was represented before the Court by Mr V. Sirvydis, a lawyer practising in Kaunas.

The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

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

In 1997 the applicant was appointed a junior inspector in the police. He was responsible for the investigation of economic crimes.

On 26 March 2003 a criminal investigation was started against the applicant. He was suspected of forging documents and appropriating value added tax. The applicant was arrested on the same day and placed under arrest for a month by the decision of the Vilnius City 1st District Court of 27 March 2003.

On 2 April 2003 the applicant was suspended from performing his official duties.

On 22 March 2006 the Kaunas Regional Court found the applicant guilty of fraud and abuse of office. The court stated that the applicant and several other people had established a fictitious company, forged documents and acquired property of high value. The court also noted that the applicant had been employed at the police division which investigated economic crimes, however, he had abused his position and had wilfully appropriated value added tax. The applicant was sentenced to four years and six months’ imprisonment.

The applicant appealed, complaining that the court of first instance had made mistakes in applying the provisions of the domestic law, and that there had been no information that he had in fact received half of the value added tax appropriated by the perpetrators as alleged.

On 28 March 2008 the Court of Appeal dismissed the applicant’s appeal, finding contradictions in his statements. The applicant had denied his guilt but at the same time he had acknowledged that he had known that other people had been engaged in illegal activities and had still acted as an intermediary.

On 1 April 2008 the applicant was dismissed from the police after the judgment of the Court of Appeal became enforceable (see paragraphs 29 and 30 below).

The applicant lodged an appeal on points of law against the Court of Appeal’s judgment of 28 March 2008 (see paragraph 9 above), and on 21 October 2008 the Supreme Court returned the case to the Court of Appeal for fresh examination. The Supreme Court held that the reasoning of the Court of Appeal had been insufficient in relation to the application of the provisions of the Criminal Code and the assessment of evidence.

On 23 September 2010 the Court of Appeal found that only one witness could confirm that the applicant had received half of the value added tax appropriated by the perpetrators, but that that witness had only presented his evidence as his own view and not as a fact (ne kaip faktą). The witness had also testified that there had been no discussion with the applicant about seizing the value added tax. The Court of Appeal therefore held that it had not been proved that the applicant had gained any personal benefit. On the other hand, the court stated that the applicant, as a police officer, had undoubtedly understood the illegality of his actions, despite arguing otherwise. He had also acted as an intermediary for two other people in an illegal exchange of money and documents. However, the Court of Appeal held that the applicant’s alleged crime fell under a different provision of the Criminal Code than the one he had originally been accused under, and that the court could not assess the applicant’s crime under that specific provision without overstepping the limits of the appeal. As for abuse of office, the court held that the applicant’s participation in the crime had not been proved and that he had communicated with the other people in a personal capacity rather than an official one. The applicant was therefore acquitted of that crime.

In October 2010 the applicant asked the police to annul their dismissal decision of 1 April 2008 (see paragraph 10 above) and to reinstate him to his former position. The police refused and stated that the Court of Appeal had not expressed itself in any way regarding his reinstatement to his former position or about his dismissal being illegal.

The applicant started court proceedings before the Kaunas Regional Administrative Court to be reinstated to his former position and have his salary paid from 2 April 2003, when he had been suspended (see paragraph 6 above), until the execution of the court’s judgment, i. e. until his reinstatement to his former position. The applicant also asked for a renewal of the time-limit for submitting his complaint because the timelimit to complain about being dismissed from work was one month under domestic law (see paragraph 24 below). The applicant had been dismissed on 1 April 2008 (see paragraph 10 above), however, the grounds to annul that decision had only arisen after the court proceedings had ended on 23 September 2010 and he had been acquitted (see paragraph 12 above).

On 3 February 2011 the Kaunas Regional Administrative Court decided that the applicant had become aware of the grounds to contest the dismissal order on 23 September 2010 at the latest. He had submitted the complaint to the Kaunas Regional Administrative Court on 22 October 2010 and had therefore not missed the prescribed time-limit. The court also annulled his dismissal from the police (see paragraph 10 above), and ordered that he be reinstated to his former position and paid his average salary for the period from 2 April 2003 to the date of the judgment on 3 February 2011. The total of the average salary for the period was 122,164 Lithuanian litai (LTL, approximately 35,381 euros (EUR)).

The police and the applicant both appealed, the latter asking to be awarded approximately LTL 407,600 (about EUR 118,050) for the period of his suspension and dismissal, up to the Kaunas Regional Administrative Court’s decision of 3 February 2011. He also asked to be awarded the payment of an average salary from 3 February 2011 until his reinstatement to his former position, as well as late-payment fees and payment for unused holidays.

On 7 June 2011 the Supreme Administrative Court dismissed the applicant’s appeal. The court noted that the applicant had complained about the dismissal order of 1 April 2008 but found that although he had submitted his first complaint on 22 October 2010, he had also submitted two clarifying complaints on 13 December 2010 and 18 January 2011. The Supreme Administrative Court thus held that the date of submission was 18 January 2011, as that was when the applicant had finally formulated his complaints. The Supreme Administrative Court held that the dismissal order had been an extremely important social issue for the applicant (pareiškėjui ypatingą socialinę reikšmę turintis klausimas), that he should have started court proceedings within a month of that order, and that therefore he had missed the time-limit to lodge a complaint. The court also observed that the Kaunas Regional Administrative Court had put too much weight (neteisingai sureikšmino) on the applicant’s acquittal. The court also considered that despite the fact that the applicant had missed the time-limit for submitting his complaint, it had to express itself on the merits of the applicant’s complaint about his dismissal and found that it had never been contested by the parties that at the time of the order to dismiss him there had been factual and legal grounds for such a decision because of the Kaunas Regional Court’s judgment of 22 March 2006 (see paragraph 7 above). Lastly, the court held that monetary claims under Article 6.272 § 1 of the Civil Code (see paragraph 27 below) had to be submitted to civil courts rather than administrative courts and it therefore rejected that claim too.

Shortly before the applicant applied to the Court on 25 October 2011 he started civil proceedings for damages for his unlawful conviction before the Kaunas Regional Court. The applicant asked to be awarded LTL 244,436 (approximately EUR 70,794) in respect of pecuniary damage and LTL 100,000 (approximately EUR 28,962) in respect of non-pecuniary damage. The applicant stated that he had never been reinstated to his former position after his acquittal, had lost his main source of income, and had experienced emotional problems, not only because of his unlawful conviction but also because of the lengthy criminal proceedings against him.

On 11 April 2012 the Kaunas Regional Court satisfied the applicant’s claim in part. The court held that in order for the State’s civil liability to arise, three conditions had to be met: an unlawful act, damage and a causal link between the two. The court held that the acquittal decision had not automatically meant that all acts related to the criminal prosecution had been unlawful. The court referred to the material of the criminal case and stated that the criminal proceedings had been started against the applicant because there had been enough evidence to suspect that he had committed a criminal offence. That circumstance was confirmed by the acquittal decision, which had stated that the applicant had undoubtedly understood the illegality of his acts (see paragraph 12 above). However, the court held that while the dismissal order had been lawful at the time it had been issued, the grounds for it had disappeared after the applicant’s acquittal. The court dismissed his claim in respect of pecuniary damage, observing that although his unlawful conviction had directly influenced his dismissal, the conviction itself had been influenced by the applicant’s illegal acts. The court further held that the applicant’s unlawful conviction had caused him mental suffering and emotional distress and decided to award him LTL 10,000 (approximately EUR 2,896) for non-pecuniary damage. The court also noted that the applicant had been arrested on 26 March 2003 (see paragraph 5 above) and acquitted on 23 September 2010 (see paragraph 12 above) and that therefore the criminal proceedings against him had lasted for seven years and six months. They had been unjustifiably long and so the court awarded him a further LTL 10,000 (approximately EUR 2,896) for nonpecuniary damage.

The applicant appealed, complaining that he had not been awarded anything in respect of pecuniary damage and asking the court to increase the amount in respect of non-pecuniary damage.

On 4 November 2013 the Court of Appeal upheld the applicant’s appeal in part. It held that the acquittal had not necessarily meant that the acts of the law enforcement institutions (teisėsaugos institucijų veiksmai) had been unlawful. The court further observed that the applicant had carried out certain acts that were unlawful under “civil law”, which meant that he could not have expected the same protection when deciding on damages as a person who had not carried out such illegal acts. The court considered that the amount of compensation could be reduced in such cases and awarded him LTL 15,000 (approximately EUR 4,344) in respect of pecuniary damage, counting it as unpaid salary from the date of the decision by which he had been convicted until the date of the decision he had been acquitted. The court also held that the criminal proceedings had been lengthy, but that around twenty hearings had been postponed for reasons related to the applicant and some of the other accused. It therefore decided to award the applicant LTL 4,000 (approximately EUR 1,158) in respect of nonpecuniary damage in that part. Lastly, the court found that the applicant’s conviction had lasted for six months but that he had not started serving a sentence and so it decided to reduce the amount awarded for nonpecuniary damage to LTL 3,000 (approximately EUR 869).

The applicant was paid his compensation award – totalling LTL 22,000 (approximately EUR 6,371) – on 24 March 2014.

At the material time, Article 53 § 1 (8) of the Statute on Interior Ministry Service (Vidaus tarnybos statutas) provided that an officer could be dismissed if he had been convicted of an intentional crime or criminal act by a final court judgment.

Article 33 § 1 of the Law on Administrative Proceedings (Administracinių bylų teisenos įstatymas) provided at the time that a complaint had to be brought before an administrative court within a month of the disputed act being carried out or served on an interested party.

Article 34 § 1 of the Law on Administrative Proceedings provided that if there was a good reason for not complying with the time-limit to lodge a complaint then an applicant could seek an order from an administrative court to renew the time-limit.

Article 6.253 § 5 of the Civil Code provided at the time of the events that the acts of a victim could be grounds to reduce or remove civil liability. Such acts were those that were the fault of the victim and which led to that person suffering greater damage. They could be a victim’s consent to damage or risk. Such consent could only be grounds for exemption from civil liability if it was not contrary to mandatory legal rules, public order, good morals, and the criteria of good faith, reasonableness and justice.

At the material time, Article 6.272 § 1 of the Civil Code allowed a civil claim to be brought in respect of pecuniary and non-pecuniary damage caused by the unlawful acts of the investigating authorities or the courts. The Article in question made provision for compensation for unlawful conviction, unlawful arrest or detention or for the application of unlawful procedural measures in enforcement proceedings. The relevant part of the provision read as follows:

“1. Damage resulting either from unlawful conviction, unlawful arrest on remand, unlawful detention, the application of unlawful procedural measures in enforcement proceedings, or the unlawful imposition of an administrative penalty (arrest) shall give rise to full compensation by the State, irrespective of any fault by preliminary investigation officials, prosecution officials or courts...”

Article 6.282 § 1 of the Civil Code provided at the time that if a victim’s gross negligence had contributed to causing or increasing any damage, depending on the degree of the person’s fault, the amount of compensation could be reduced or the compensation dismissed unless the law provided otherwise.

Article 336 § 3 of the Code of Criminal Procedure provided that an appellate court judgment became enforceable from the date of issue.

Article 366 § 1 of the Code of Criminal Procedure provided that the Supreme Court had the power to examine appeals on points of law against judgments delivered by courts of first instance and appellate courts that had become final.

The Supreme Administrative Court has held that interpreting Article 53 § 1 (8) of the Statute on Interior Ministry Service (see paragraph 23 above) as precluding the reinstatement of an officer to his or her former position or an equivalent position after his or her acquittal would contradict the principles of justice, reasonableness and ex iniuria ius non oritur (decision of 5 November 2012, no. A662-2459/2012).


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1991 and lives in Szeged.

On 21 January 2011 around 4 a.m. the applicant and his girlfriend Ms D.L. were about to leave a club in Szeged, when three men in their twenties, unknown to them, started to insult them. The three men made degrading comments about the applicant’s Roma origin and about the physical appearance of his girlfriend.

Subsequently a fourth person, Mr E.D., appeared, presenting himself as a police officer. (In fact, he was a penitentiary officer.) When Mr E.D. was about to leave, the applicant questioned him about his attitude using offensive and vulgar language, upon which Mr E.D. turned back and got into a fight with the applicant, which ended due to the intervention of three persons, the applicant’s acquaintances.

Following the fight, Mr E.D. called the police. Two officers arrived. The applicant, Mr E.D. and Ms D.L. were then escorted to the local police station. They were released the day after. Although both the applicant and Mr E.D. had visible injuries, only Mr E.D. underwent a medical examination. According to the medical findings, he had bruises on his temple and a haematoma around his right eye.

On 23 January 2011 the applicant was examined by a general practitioner, who found that he had bruises on his chest, back, neck and face.

On 1 February 2011 the applicant lodged a criminal complaint with the Szeged Public Prosecutor’s Office against Mr E.D. He submitted that the three who had insulted him had shouted at him “Dirty gypsy, do you need a cigarette? Here is money!” and thrown cigarettes and money at him. He also maintained that Mr E.D., who presented himself as a police officer upon his arrival at the scene, had asked the others whether “[they] could not handle a dirty little gypsy” and, turning to him, had called him a gypsy. He also gave a description of the injuries he had suffered.

Furthermore, the applicant explained that the day after the incident he had identified Mr E.D. on a social network. He had extracted some of his posts and submitted them to the Prosecutor’s Office.

In these posts, Mr E.D. commented that the night before he “had been kicking in the head a gypsy lying on the ground when [he] was overcome by three of his buddies”. In reply to favourable posts by other users, Mr E.D. posted an Internet link to a video clip containing a widely known excerpt from a feature film with overtly intolerant and explicitly racist language. He added that the list of the types of people loathed by the character speaking in the clip could be completed with “some other types of rubbish living among us”.

On 7 February 2011 the Public Prosecutor’s Office opened a criminal investigation against Mr E.D. for the offence of “violence against a member of a group” within the meaning of section 170 (1) of the Criminal Code.

On 17 March 2011 the two police officers who had arrived at the scene were questioned, as well as Ms D.L. The latter corroborated the applicant’s version of the events. The testimony of the police officers’ did not contain any account of the incident; they had arrived at the scene only after the fight.

The applicant’s three acquaintances, whose intervention had ended the fight, were not questioned, their identity remaining unknown to the prosecution. The applicant was questioned about their contact details, however the only information he could provide were their nicknames.

In parallel, the Szeged Public Prosecutor’s office initiated an ex officio investigation into the same facts on charges of disorderly conduct (garázdaság). On 5 July 2011 Mr E.D. was questioned as a suspect, where he stated that the applicant had provoked him. He admitted to having pushed the applicant away in self-defence, but claimed that he had neither hit nor insulted him. He maintained that he had made no statement concerning the applicant’s Roma origin and that the fight had not taken place because the applicant’s Roma origin but because he had been attacked by the latter. As regards his comments on a social network, Mr E.D. stated that he had posted them for no particular reason and specified that “in fact [he] had not been kicking the boy’s head ... had [he] done so the [applicant] would have suffered more serious injuries”.

In a decision of 20 July 2011 the Public Prosecutor’s Office discontinued the investigation into the offence of “violence against a member of a group”, considering that there was no evidence substantiating that Mr E.D. had attacked the applicant out of racial hatred. Relying on the applicant’s complaint, Ms D.L.’s testimony, Mr E.D.’s statement given as a suspect in the parallel proceedings and the medical evidence, the Public Prosecutor’s Office concluded that it could not be established who had provoked the fight and whether there was a causal link between the insults directed against the applicant and the fight.

The applicant filed a complaint against the discontinuation on 26 July 2011.

On 8 August 2011 the applicant’s lawyer was given the opportunity to study the case-file. On the same day she requested Mr E.D. to be heard as a suspect, or at least as a witness; she also requested a confrontation (szembesítés) between the applicant and Mr E.D. This request was dismissed on the ground that Mr E.D. had already been heard as a suspect in the parallel proceedings on charges of disorderly conduct, and the records of his testimony were attached to the investigation file and used as documentary evidence.

On 16 August 2011 the applicant also challenged this decision and requested that further investigative measures to be taken.

On 8 September 2011 the Csongrád County Regional Public Prosecutor’s Office upheld the first-instance decision, considering that:

“Accepting the background of the incident, as recounted by the victim and Ms D.L., although it is likely that the action had racist motives, it cannot be proven sufficiently for establishing criminal responsibility – that is, unequivocally and beyond any doubt – that Mr E.D. ill-treated the applicant precisely because of his Roma origin. The racist motive cannot be established, in particular, since before the incident Mr E.D. had intended to leave the scene and only turned back because of the victim’s reproach, and the only information about the start of the fight originates in the contradictory statements of the victim and Mr E.D. Neither the victim nor Ms D.L. could provide further details as to the question whether after having turned back, Mr E.D. made any further racist comments before or during the fight. The Facebook post attached to the criminal complaint only reveals that Mr E.D. had insulted an unnamed and unidentifiable person of Roma origin the night before. It cannot be established unequivocally and beyond doubt, either from the post or from the subsequent messages, that [the insult] took place precisely because of the victim’s Roma origin.

Based on the above reasons and considering all available information and evidence in their entirety, Mr E.D.’s racist motive is probable at the maximum, but cannot be established beyond doubt.”

As regards further investigative measures, the Prosecutor’s Office stated that given the fundamental contradictions between the statements of Mr E.D., the applicant and Ms D.L., a confrontation between them had no prospects of success. Furthermore, Mr E.D. had given a detailed account of the facts in his testimony given as a suspect in the parallel proceedings, which rendered futile his further questioning.

On 11 May 2012 Mr E.D. was convicted of disorderly conduct by the Szeged District Court for having got into a fight with the applicant and was placed on one-year probation.


Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1951 and lives in Bucharest.

In 1999 he purchased a house and the land on which it was built, located in Bucharest. The applicant’s parcel of land was adjacent to a parcel of land purchased by two other third parties in 1948.

On 13 November 2001 the applicant lodged a civil action against the two third parties, seeking to obtain the demarcation of the adjacent parcels of land and an order requiring the defendants to return to him an 11 sq. m parcel of land which was allegedly being illegally occupied by them.

In a judgment of 4 April 2002 the Bucharest District Court held that the defendants had been illegally occupying a parcel of 10.78 sq. m of the applicant’s land since 1965. It established the boundaries of the properties on the basis of a technical report prepared by an expert and ordered the defendants to return the land in question to the applicant.

The defendants lodged an appeal with the Bucharest County Court. The court ordered a new expert report. On 22 May 2003 the court dismissed the appeal as ill-founded endorsing the reasoning of the first-instance court.

The defendants lodged an appeal on points of law on the ground that the courts had misinterpreted the facts and the applicable legal provisions.

In a final decision of 26 November 2003 the Bucharest Court of Appeal allowed the appeal on points of law, quashed the decisions of the first two courts and dismissed the applicant’s action. It held that both the applicant and the defendants had in their possession smaller areas of land than those mentioned in their respective contracts of acquisition, and invited the parties to reach a friendly settlement. It also held that the parties could bring a fresh action only if they could not reach an agreement.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

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

The applicant was born in 1973 and is currently serving a prison sentence in Bozoy, Irkutsk Region.

According to the applicant, and not contested by the Government, at approximately 11 p.m. on 5 April 2007 she was arrested on suspicion of abducting, raping and murdering S. According to the arrest record, she was arrested at 3.30 a.m. on 6 April 2007.

Following the arrest, the applicant was taken to a police station where she was questioned by an investigator in the presence of a lawyer. Prior to the questioning, she wrote a statement admitting to S.’s abduction. According to her, police officers threatened to beat her if she refused to make a written statement. She did not explain whether she had been denied access to a lawyer prior to writing the statement.

According to the applicant, on the morning of 6 April 2007 she was taken to the town prosecutor’s office. She was taken to an office where policemen started beating her and urging her to confess to S.’s murder. They hit her on the head and threatened to rape her, and then handcuffed her and pushed her to the floor. They put a hat on her head and pulled it down over her eyes. They also threw a coat over her. They punched her in the solar plexus and the stomach, and pulled her by the legs. They attached a wire to her right leg and placed a metal object between her shoulders, then subjected her to electrocution while gagging her mouth to muffle her screams.

On the same day the applicant was questioned by the investigator and confessed to S.’s abduction. She was later taken to the location where she had last seen S. alive and was questioned again afterwards. The applicant’s lawyer was present during the questioning.

Later that day the applicant was taken to a temporary detention centre, where an officer conducted a medical examination and noted numerous bruises on her belly and scratches below the right clavicle. It appears that the administration of the detention facility informed the investigator from the town prosecutor’s office accordingly, who ordered that the applicant undergo a forensic medical examination.

At approximately 5 or 6 p.m. that evening the applicant underwent a forensic medical examination which, in addition to the injuries noted before, revealed two bruised areas on her chest, possibly caused by blunt solid objects one to two days before the examination. At the time, the applicant did not offer any explanation as to the cause of the injuries.

On 13 April 2007 the investigator questioned the applicant again the in the presence of her lawyer. She denied having any intent to kill S. According to her, it was two other co-defendants who had decided to do so.

On 10 May 2007 a local newspaper published an article about S.’s murder and the opening of the investigation. The names of the alleged perpetrators were not disclosed.

On 28 June 2007 the town prosecutor’s office received a complaint from the applicant alleging that she had been ill-treated.

On 10 March 2008 investigator T. from the town prosecutor’s office refused to open a criminal investigation into the applicant’s and her codefendants’ allegations of ill-treatment in police custody. The investigator noted as follows:

“In the course of the investigation, [the applicant and three other defendants] alleged that their initial statements had been coerced by police officers and the prosecutor’s office and were false. In addition, the medical examination conducted revealed that they had sustained injuries. However, in the course of the investigation ... the [defendants’] statements were obtained in accordance with the rules of criminal procedure. The [defendants’] allegations should be considered with criticism. They are charged with serious offences. They have not pleaded guilty and wish to evade criminal liability. Accordingly, no objective information has been found that would confirm the defendants’ allegations that they sustained injuries while in [custody].”

It appears that the applicant’s allegations of ill-treatment in police custody were subject to additional pre-investigative inquiry. On 10 September 2008 investigator M. from the regional prosecutor’s office refused to open criminal proceedings against the alleged perpetrators. He took into account the fact that the applicant had been convicted as charged (see paragraph 22 below). He further relied on statements made by the police officers involved in the applicant’s arrest and questioning, who denied having beaten or tortured her. He summarised his findings as follows:

“The analysis of the collected material shows that the [applicant’s] allegations of illtreatment are not confirmed by objective information and are refuted by the explanations provided by the police officers and investigators from the town prosecutor’s office. [The applicant] complained of ill-treatment after a considerable length of time, and only when she was charged with serious offences, even though nothing had precluded her from communicating her complaint to the investigator who had questioned her in the presence of a lawyer or during the inspection of the crime scene or subsequent questionings, etc. Furthermore, when admitted to the temporary detention facility, [the applicant] did not complain of her injuries allegedly inflicted by police officers. In the absence of a forensic medical examination, it is impossible to determine that [the applicant] sustained the injuries, the degree of their severity, the time of their infliction, or their cause. Regard being had to the above, it should be concluded that the [applicant’s] allegations of ill-treatment should be considered with criticism and viewed as an attempt by [the applicant] to avoid criminal liability for the serious crimes committed. Such a conclusion is substantiated by the [applicant’s] conviction by the Irkutsk Regional Court ... [Her] allegations of ill-treatment were subject to verification by the court, which ruled [that there was] no case to answer against the police officers and investigators from the prosecutor’s office, who had not abused their powers or infringed the [applicant’s] rights in contravention of the law.”

On 18 June 2009 investigator T. refused to institute criminal proceedings against the police officers who had allegedly subjected the defendants to ill-treatment following their arrest. The parties did not provide a copy of this decision.

On 26 October 2009 the Irkutsk Regional Court, within the framework of the trial, issued a separate ruling concerning the applicant’s and other defendants’ allegations of ill-treatment in police custody, advising the regional prosecutor that an additional inquiry should be conducted. In the ruling, the court considered that the inquiry conducted in response to the defendants’ complaints had been incomplete. In particular, the court stated as follows:

“In the course of the trial, each of the defendants alleged that they had been subjected to physical and psychological pressure by law-enforcement officers ... who demanded that they confess to [the crimes] ...

As it transpires from the material in the case file, during the preliminary investigation in the present case each of the defendants lodged complaints with the [town] and [regional] prosecutors’ offices alleging an abuse of power and the use of force by law-enforcement officers ... Following the inquiry in response to the [applicant’s] complaint, on 10 September 2008 [senior investigator M. from the investigating committee of the regional prosecutor’s office] refused to institute criminal proceedings on [the grounds that] no offence had been committed.

The court cannot subscribe to [M.’s] finding that it was impossible to establish objectively that [the applicant] had bodily injuries because [allegedly] she had not undergone a forensic medical examination ... [T]he material in the case file ... contains information showing that all the defendants had sustained bodily injuries ...

For instance, witness Sh., who saw [the applicant] immediately prior to [her] arrest ... and witness Shin., [one of the police officers] who had taken [the applicant] to [the police station] on the night of 6 April 2007 testified that [she] did not have any visible injuries and ... did not complain about her health to Sh.

The records on the initial examination and registration of provision of medical aid to detainees admitted to [the temporary detention centre] ... contain the following entries ... On 6 April 2007 [the applicant] had bruises on her body ... On 7 April 2007 [she] had bruises on the abdomen and scratches on the right clavicle.

The findings of the forensic medical experts are as follows ... [The applicant] had bruises on the abdomen and two areas of subcutaneous haemorrhage on the right side of the chest which were caused by the impact of blunt solid objects approximately one to two days ago and could not cause damage to her health. The origin of the injuries was not indicated. [The applicant] did not inform the forensic medical expert as to the origin of the bodily injuries.

In 2008, when conducting an inquiry in response to the [applicant’s] complaint, investigator M. did not examine the findings of the forensic medical expert ... at all.

Regard being had to the above, the court considers that ... investigator M. ... did not conduct a comprehensive and objective inquiry in response to the [applicant’s] allegations of [ill-treatment]. The investigator’s decision ... does not contain an answer as to how and when [the applicant] sustained bodily injuries.

In accordance with the [statutory] rules of criminal [procedure], no party to the proceedings can be subjected to abuse, torture or other inhuman or degrading treatment. Accordingly, the court draws the prosecutor’s attention to the fact that a comprehensive and thorough examination is necessary in order to verify the defendants’ allegations of ill-treatment.”

On 26 November 2009 the investigating committee of the regional prosecutor’s office informed the Irkutsk Regional Court, in response to the decision of 26 October 2009 (see paragraph 18 above), that investigators M. and T. had been subjected to a disciplinary warning and reprimand respectively for failing to properly discharge their duties. According to the first deputy head of the investigating committee, the decision of 18 June 2009 had been reversed and the committee had conducted an additional preinvestigative inquiry into the defendants’ allegations of ill-treatment. The Government did not submit a copy of this decision or state whether its content had been communicated to the applicant.

According to the Government, on 6 December 2009 the investigating committee refused to open a criminal investigation into the applicant’s allegations. The Government did not submit a copy of this decision or state whether its content had been communicated to the applicant.

On an unspecified date the investigation against the applicant and the three other co-accused was completed and the case was transferred to the Irkutsk Regional Court for trial.

On 29 August 2008 the court found the applicant guilty as charged and sentenced her to twenty years’ imprisonment.

On 31 March 2009 the Supreme Court of the Russian Federation quashed the applicant’s conviction on appeal. The court noted that the trial court had failed to ensure the defendants’ right to an adequate defence and had held hearings in the absence of defence counsel.

During the new trial, the applicant admitted that she had participated in S.’s abduction and battery but denied any involvement in organising S.’s rape and murder. She further claimed that she had been subjected to illtreatment while in police custody and forced to confess.

In response to the applicant’s allegations of ill-treatment by police officers, the trial court questioned forensic expert R., who had examined the applicant on 6 April 2007. R. confirmed his earlier findings and stated that the applicant might have sustained the injuries at least twenty hours prior to the examination. He also considered it impossible, given the nature of the applicant’s injuries, that she had been subjected to electrocution.

On 26 October 2009 the Regional Court found the applicant guilty as charged and sentenced her to sixteen years’ imprisonment. The court relied, inter alia, on her statements of 6 and 13 April 2007. As regards the written statement made prior to her first questioning by the investigator (see paragraph 7 above), the court considered it admissible in so far as she had informed the investigator about S.’s abduction. The court also considered admissible the record of the applicant’s questioning by the investigator. In this connection, it noted that prior to the questioning the applicant had been advised of her rights, and had been assisted by a lawyer throughout. The applicant appealed.

On 17 March 2010 the Supreme Court reclassified the charges against the applicant to bring them in line with amendments to the Russian Criminal Code and reduced her sentence by two years. The court also upheld on appeal the Regional Court’s findings concerning the inadequacy of the inquiry in response to the defendants’ allegations of ill-treatment.