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

Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1985. He resides in Germany.

At around 11 p.m. on 15 July 2005 an anti-tank mine exploded in the courtyard of a police station in Skopje, causing considerable material damage.

On 16 August 2005 an investigating judge of the Skopje Court of First Instance (“the trial court”) ordered (Kri.br.308/2005 and ID.br.921/05) a search of the home and other property belonging to the applicant’s father and the father of F.R. (a co-defendant in the ensuing criminal proceedings, see paragraph 22 below), on account of a reasonable suspicion that relevant items of evidence relating to allegations of terrorism and trafficking in arms would be found.

The search was carried out at 9.30 a.m. on the same day, in the presence of the applicant’s father and two neighbours, who acted as witnesses. According to the search record, which was signed by a police officer, the applicant’s father and the witnesses, the following objects were found: a semi-automatic weapon; a case containing nine bullets; ten TNT bullets; a slow-burning fuse and a detonator; an audio tape; CDs; six photographs of the applicant and a piece of paper with a map drawn on it. At the request of the applicant’s father, the search record indicated that he “does not know the origin of the objects found”, and at the request of the attending witnesses the record noted that they “had no comments to make on the work of the police officers”. A certificate of the seized objects was issued to the applicant’s father, which the latter signed.

The police officer who had carried out the search submitted an official note, in which he listed all the above objects found in the house of the applicant’s father. The note stated, inter alia:

“The wanted person [the applicant] was not found and according to his mother, he was on a visit, but (the mother) did not want to specify where.”

The applicant’s father was taken to a police station for an interview. On that occasion he denied that weapons found in his house belonged to him. He stated that it was possible that they belonged to the applicant, whom he had not seen since 14 August 2005 at 8 a.m., when he (the applicant) had left his house.

According to an official record (записник за задржување на лице) of the Ministry of the Interior, a copy of which was included in the file, at 12.30 a.m. on 16 August 2005 the applicant, who had no previous criminal record, was arrested near a department store in a suburb of Skopje by R.J. and P.M., police officers. The record stated the following reasons for his arrest:

“(since the applicant) was not in possession of any identification document and his suspicious movement in the vicinity of buildings which are targets for criminal offences (објекти кои се цел на извршување на кривично дело).”

At 12.45 a.m. he was taken to a police station, where he remained until 7 p.m. that day. As stated in the record, the applicant was informed about his rights; he waived the right to be represented by a lawyer; he had no visible injuries, nor were there any signs of illness, alcohol or drug addiction. The applicant signed all four pages of the record separately.

At 7 p.m. on 16 August 2005 the applicant was brought before the investigating judge under suspicion of having been involved in the incident of 15 July 2005. According to the court record of that date, which was duly signed by the applicant, he understood the charges against him; he had sufficient command of Macedonian; he had waived the right to an interpreter; and he had stated that he would testify in the absence of a lawyer. In the presence of the investigating judge and a public prosecutor, the applicant stated, inter alia:

“... (referring to the request for investigation) it is true that at 11.15 p.m. on 15 July 2005 I placed an explosive device, namely a round anti-tank mine, together with a fuse and a detonator, in the western part of the courtyard of a police station, B.P... I placed the explosive device, lit the fuse with a lighter, and immediately ran home ... R.S. gave me this explosive ... F.R. was with me all the time ... he was also with me when R.S. gave me the anti-tank device ... I would like to underline that it was a slow-burning fuse which was six to seven metres long; it took a long time to burn and to detonate the device ... I would also like to note that F.R. knew that I was going to place this anti-tank device in B.P. police station. I told him that after we had obtained the device from R.S ... F.R and I agreed to a proposal by R.S. (that we place the device in front of a police station) and went towards Skopje by taxi ... I borrowed an old car from neighbour B., telling him that I wanted to drive around. He lent me the car, which was not registered, and I (with F.R.) took the device and placed it on the floor behind the driver’s seat ... At 11.15 p.m. I left home and walked to this car; I took the anti-tank device ... and carried it as far as the B.P. police station, as I have described above, and then I detonated (the device). Some time after 10 pm. F.R. had called me to arrange to go and set up the device. Indeed, F.R. arrived ... and we both went to the car; we took the device together and we walked towards the B.P. police station. I was carrying the bag with the device. When I went into the police station F.R. left the scene: I do not know where he went. I went to the back of the police station and placed the device. Regarding weapons found in my house on the occasion of a search carried out by the police on 16 August 2005, I had in my possession a semi-automatic weapon with nine bullets; I do not know anything about the ten explosive items, the fuse or the detonator. I had stolen the semi-automatic weapon and the bullets... five days before the explosion in the B.P. police station... I was not carrying the weapon when I placed the device, and the phone that I had in my possession was switched off.”

On that day the investigating judge delivered several decisions, by means of which he appointed D.N., a lawyer, to represent the applicant; found of his own motion that the applicant’s detention had been lawful; opened an investigation against the applicant, F.R. and R.S. (the latter was from Kosovo); he also ordered that they be detained on remand for thirty days. All the decisions contained an instruction on legal remedies. They were served on the applicant the same day. They were delivered to his lawyer the next day. No appeal was submitted against any of these decisions.

On 19 August 2005, on the occasion of a regular visit of a judge responsible for the execution of sentences to Skopje detention centre, the applicant asked to give evidence before the investigating judge. On the same day, the investigating judge heard oral evidence from the applicant in the presence of the court-appointed lawyer and the public prosecutor. As indicated in the transcript of the hearing of that date, signed by the applicant, he stated, inter alia:

“I called you because on 16 August 2005 I was beaten and intimidated by the police to force me to testify. I was under duress to testify and threatened with being killed after leaving the prison. All the names they mentioned are unknown to me. I know nothing about the case of which I am accused. I have never been in conflict with the police and I have no idea what a bomb is. Regarding the home search, this is false evidence. There were no weapons or explosives there. That’s all. I agree to be represented by the court-appointed lawyer who is present at the moment. I would like to say that I have not been placed under any pressure by the court. I was just afraid and in a panic due to my previous stay in the police station. Actually, I was afraid when giving the statement ... I must say that everything I said on 16 August 2005 before the judge I was told to say by the police, and was put under strong pressure to do so. All the charges against me are false. I did not commit that crime.”

Asked by the public prosecutor to explain why he had not told the investigating judge previously that he had been placed under pressure and beaten by the police, the applicant stated:

“They did beat me, and I was under strong pressure not to tell anything to the judge.”

He further stated:

“They were beating me all the time while I was at the police (додека бев во полиција). I had (visible) injuries, but I could not say anything to the judge, as the police had told me not to.”

The investigating judge then requested the applicant to take off his clothes and show the injuries he had. As noted in the transcript, the investigating judge described the injuries as follows:

“A yellow-brown bruise on the left upper arm, 7 cm long, in an irregular triangle shape; a dark-red bruise can be seen on the left buttock, 15 cm long, with an irregular rectangular shape. The accused complained of severe pain in his feet, but the court cannot see any injury there ... Light-yellow bruises on both left and right thighs, 15 cm long with an irregular oval shape. No other injuries can be seen.”

On the same day the investigating judge ordered an immediate expert examination of the applicant to determine the type, origin and date of the injuries.

At 5 p.m. on that day two experts (Z.C. and G.P.) of the Forensic Institute (Институт за Судска Медицина) examined the applicant in the detention centre. In a detailed expert report dated 19 August 2005, the experts noted bruises (twenty-seven in number) on the applicant’s back, chest, stomach, both arms and legs and the left buttock (no injuries were noted on the applicant’s feet). According to the report, the bruises were mostly green and violet in colour. The report further explained that after seven days a bruise became green, and after two weeks yellow. It went on to state that:

“Having regard to (the applicant’s) statement that he had sustained the injuries while he was detained in the police station on 16 August 2005, we can say that, given the noted characteristics of the (applicant’s) injuries, especially their greenish colour, they (the injuries) could not have been inflicted on 16 August 2005. This is because only three days have passed between then and 19 August 2005, the date of the medical examination, and bruises could not acquire such a greenish colour in only three days. More precisely, the injuries noted during the examination are older, and date from at least seven days before the examination.

Given their characteristics, the bruises are mostly external (површински), except in the area of the left buttock, where there is more intensive bruising.”

The medical report concluded that the injuries sustained by the applicant had been inflicted by a “blunt dynamic force”. As regards the injuries to the applicant’s arms, the experts stated that they were the result of pressure exerted by parts of a body, including hands. While they could not determine the exact means by which the remaining injuries had been inflicted, they nevertheless specified that they had been caused by beatings. The injuries were to be regarded as bodily injuries.

On 9 September 2005 the public prosecutor lodged an indictment against the applicant and F.R. on terrorism charges. On 26 September 2005 an indictment on the same charges was lodged against R.S.

At a hearing held on 8 November 2005 the trial court decided to consider both indictments in one set of proceedings. According to depositions taken on that date, the applicant, who was represented by a lawyer of his own choosing, stated, inter alia, that:

“The accusations described in the indictment, which I contest, are wrong. At about 10.45 p.m. on 12 August 2005, 300 metres in front of my house ... members of special (police) forces jumped on my back and put me in a car ... they took me to a forest, I do not know exactly where ... When they abducted me, there were fourteen or fifteen of them ... In the forest there was a change of driver, and they hooded me and drove me far away in a different direction. We arrived in a house, where they unhooded me; it was a luxurious house. I was told to sit on a chair; uniformed people wearing masks and others in plain clothes arrived. They asked me if I knew why I had been brought there, to which I replied that I had not done anything wrong. They started insulting me ... four people started beating me with plastic bottles and a rubber tube. I stayed in the house for three days. During that time, while my hands and legs were handcuffed, I was held under water in a swimming pool. A big man was trying to force me to confess about the police station, to which I replied ‘to confess what about the police station?’. When they took me out of the pool, other people continued beating me. They ordered me to admit that I had placed the bomb in the B.P. police station. I told them that I had not done that ... they also brought a dog into the house. The dog did nothing to me. They held me under water in the pool three or four more times ... I believe that we were in Veles ... The same uniformed men, who wore masks, brought me [near the department store in Skopje, see paragraph 11 above] and told me to go home. There were other people around. I was wet and could not walk. Men in plain clothes without uniforms or masks handcuffed me and took me to K. police station. They slapped me twice and started interrogating me about the bomb in B.P. police station. I told them that I knew nothing ... They asked me if I knew R.S. and F.R., and I said that I did not know them. I stayed in K. police station from 15 August to the night of 16 August, when they brought me before the investigating judge. I note that while I was in the house in Veles I was given a blank paper which I had to sign because they had beaten me. In Veles I think I signed three blank papers and I’m sure that I saw those papers in the police station changing hands between police officers. The investigating judge also showed them to me. When the judge had them they were no longer blank, but I don’t remember what was written on them. In Veles I was told to say ‘admit that you placed the bomb and we will let you go, we will take you home’.

On 16 August 2005 ... I could not tell the investigating judge that police officers had threatened me, because they had said they would kill my family. What I said to the investigating judge on 16 August 2005 was what I had been told to say by the police officers in Veles. What I said to the investigating judge was invented by the police officers ... I want to say that I was afraid because while in Veles I heard screams and voices saying ‘we caught his father’, so I was convinced that they had captured and tortured my father. I was further told by the police that they had apprehended and taken my father to P. police station, that they had found weapons in my house, and that my father had admitted that they belonged to him. That was a stratagem of the police.”

The applicant further denied that he knew F.R. He said:

“This is the first time I have seen him. I do not know him; I do not know where he lives, I know nothing about him. I do not know R.S. nor have I ever heard about him ...”

He further stated:

“On 16 August 2005 the investigating judge asked me about weapons, a gun, and some missiles. I was shocked. The investigating judge told me that all those items had been found in my house. I saw the certificate regarding items which had been seized. I do not know who signed it ... (after the certificate was shown to him): the investigating judge did not show this certificate to me. I saw it then for the first time. The signature on it does not belong to my father. The items that the judge read aloud from the certificate had not been found in my house ... [The accused was shown a note referring to Greater Albania and he said]: Maybe I wrote that, I do not remember. Maybe someone from the school wrote it. It was found in my house. I drew it, it was a game. The words that are on the map, I am confused; the words 2010 Jihad, Rida; the interpreter says that the following is written on the map: Greater Albania, Jihad, Ilirida State, Allah Aqbar ... maybe I found this map and maybe I drew it. I do not know what that map means, it was a game ...”

The applicant denied that he had spoken on his mobile phone with F.R. and R.S. His phone had been seized by the police while he was in Veles. He confirmed that on 15 July 2005 he had been in possession of his mobile phone and denied that R.S. had called him that day. He further stated:

“... that day (15 July 2005) ... when I was sitting with my friends, we heard an explosion. Everyone went outside to see what had happened. I had some visitors. Someone said a bridge had collapsed, later someone said that a missile had been launched against B.P. police station ... At 11 p.m., the time of the explosion, I was in my neighbourhood. When the explosion happened, I did not have my mobile phone - it was charging. When I arrived home, I saw that there were no missed calls.”

Asked by the public prosecutor why he had not revealed, during his examination on 19 August 2005, that he had been abducted on 12 August 2005 and about the subsequent sequence of events, the applicant stated:

“I did not tell the investigating judge, because I was told by police officers in Veles that I should not say anything. What I said today, I also said on 19 August 2005, but the judge did not note it ... I signed the record (of 19 August 2005), but I did not read it. I do not know why the judge did not note down the whole event in Veles and then in K. police station ...”

The applicant further named four individuals, including a certain A.A. and S.A., with whom he had allegedly been at the critical time on 15 July 2005. In this connection he asked the court to examine those witnesses.

After the court read out his statement of 16 August 2005 given in the pre-trial proceedings, the applicant confirmed the part of that statement indicating that he had been threatened by the Intelligence Service to force him to make the statement.

The applicant’s father stated that the police had searched his house in his absence and that he had been forced to sign the search record and the certificate of seized objects. He confirmed that the map of Greater Albania belonged to the applicant. Lastly, he stated that on 15 July 2005, at the time of the explosion, the applicant had been in the house.

At a hearing of 29 November 2005, the applicant was shown the map of Greater Albania, which the applicant confirmed that he had found at his school. He was further shown photographs of himself wearing a military uniform and carrying a machine gun. In this connection the applicant stated that the photographs had been taken on the occasion of a religious holiday when it had been possible, for a certain price, to be photographed wearing such a uniform.

The trial court also heard oral evidence by A.A. and S.A. A.A. stated, inter alia:

“On 15 July 2005, as on any other night, we met friends outside our doors, because it was very hot. That night [the applicant] was with us ... That night (the following were present) I, S., M.J., as well as A. ... At about 11 p.m. we were outside. At 11.20 p.m. or 11.30 p.m. we were all outside, including S.A. I want to say that many other people were there as well. Then, there was an explosion, everybody went out, we did not know what was going on. At the time of the explosion, [the applicant] was with us ... Ten minutes later someone came out of the house saying he had seen on television that a bomb had exploded at B.P. police station. We stayed there talking. [The applicant] was there as well. On 12 August 2005 we noticed that [the applicant] was absent. He was not there on the 13th either. On 13 August 2005 [the applicant’s] father told us that [the applicant] had been arrested. There were rumours that he had been arrested in connection with the explosion at the police station. That is why I agreed to testify as a witness, to say that [the applicant] did not do it. No one asked me to testify. I volunteered to do it ... I gave a list of everyone who was there that night with [the applicant] to [the applicant’s] father. I gave him that list after [the applicant] had been arrested ... We wanted to vouch that [the applicant] had been with us and that he had not done it.”

On being asked by the public prosecutor how he remembered that the applicant had not been there on 12 August 2005, A.A. said:

“Since [the applicant] was normally there every night and was not there that night, his friends were wondering where he was; his friends noticed his absence; I learned about it from them.”

S.A. also confirmed that at the critical time on 15 July 2005 the applicant had been outside his house talking with other people. He stated, inter alia:

“That night [the applicant] was with us; he stayed out other nights as well, but I cannot say whether it was every night, because I go out only some nights ... I cannot say exactly whether it was 11 p.m. or 11.15 p.m. when we heard a very loud explosion ... We were standing in front of [the applicant’s] house after midnight, until 1 a.m. ... (the applicant’s) father asked me to testify as a witness... He asked me if I would like to testify in court that (the applicant) had been with us that night; I agreed.”

On 27 December 2005 Z.C., the expert doctor who had carried out and signed the medical report regarding the applicant’s injuries of 19 August 2005 (see paragraph 20 above), gave oral evidence before the trial court in the presence of the accused and their representatives. He explained the recovery process of a bruise and its colour changes. He confirmed the veracity of the written report and that the applicant’s injuries had been inflicted at least seven days (or two to three days more than that) before the date of examination.

The applicant’s lawyer stated:

“I do not contest the expert report regarding the injuries specified therein and their colour.”

At a hearing on 12 January 2006 the public prosecutor made the charge specific, and also accused the applicant and F.R. of trafficking in arms.

On 17 January 2006 the trial court convicted the applicant, F.R. and R.S. (in absentia) and sentenced them to eleven, ten and twelve years’ imprisonment respectively. The applicant was found guilty of terrorism and trafficking in arms under Articles 313 and 396 of the Criminal Code (see paragraphs 50 and 51 below). The court further ordered confiscation of the semi-automatic weapon, nine bullets and ten explosive items from the applicant. The convicts were also ordered to compensate for the damage sustained. An indefinite expulsion order (протерување странец од земјата засекогаш) was issued in respect of R.S. The court established that the applicant and F.R., together with R.S., were responsible for the explosion of 15 July 2005 in the B.P. police station, the aim of which was to endanger the constitutional order and public safety.

In the judgment, which runs to thirty-one pages, the court reproduced and analysed the statements that the applicant had given in the pre-trial proceedings (16 and 19 August 2005) and at the trial (8 November 2005), as well as the medical report dated 19 August 2005 and the oral evidence of the expert of 27 December 2005. Noting that the applicant’s statements were inconsistent, the court gave weight to his confession statement of 16 August 2005, finding that it contained a clear, complete and logical description of the events of the critical date. It was given in accordance with the law: the applicant had been informed of his rights, and he had read the written transcript of the court hearing and had signed it. It held that that statement was consistent and reliable, because the applicant had given a chronological description of the events; he had also given a detailed description of the device, the place and the means by which he had detonated it, which corresponded to the experts’ reports regarding the incident. The statement of 16 August 2005 was also corroborated with a detailed list of calls on the mobile phones confiscated from the convicted individuals, which confirmed that there had been intense communication between them before and after the incident.

The court further established that in the statement of 19 August 2005 the applicant had retracted his confession of 16 August 2005, which he had stated had been given under duress, namely that he had been beaten on that date by police while detained in the police station. On the basis of that testimony, the investigating judge had ordered an expert examination of the applicant. The experts, relying on medical science and practice, had established that the applicant’s injuries had been inflicted at least seven days before the date of the examination (19 August 2005). Accordingly, the injuries had not been inflicted on 16 August 2005 when he had been arrested and detained; they had therefore not been inflicted by the police.

The court went on to say that after the expert examination the applicant had concocted another version of the events he had presented in his statement of 8 November 2005. In that statement the applicant had given another description of events, namely that he had not been detained on 16 August 2005 and beaten up in the police station, but that on 12 August 2005 the police had abducted and detained him in a luxurious house in Veles; that he had been held under water in a swimming pool; tied up; and beaten, to make him confess to the crime. The court held that nothing suggested, as implied by the defence, that there had been two periods of detention, the first unlawful (12-16 August) and the second (16 August 2005), lawful. The court held, referring to the decision of the investigating judge (see paragraph 14 above), that the applicant had been detained on 16 August 2005 in accordance with the law.

It further found that no evidence had been presented that the applicant had been arrested by the police on 12 August 2005 and ill-treated in a house in Veles. That version of events, according to the court, was fictional and invented in order to match the date when the injuries had been inflicted, as established in the expert report. The court held that the applicant’s statements of 19 August and 8 November 2005 were inconsistent and implausible. In his testimony of 19 August 2005 the applicant had made no comment as regards his alleged abduction on 12 August 2005 and interrogation in Veles. Contrary to the applicant’s argument that he had been scared and confused when he had given his confession statement on 16 August 2005, the court record of his questioning of that date suggested no disorder or lack of capacity for rational perception. Had the investigating judge noticed any indication of unsafety, fear, panic or lack of capacity on the part of the applicant, he would have terminated the questioning.

Lastly, the court concluded that the applicant’s confession statement of 16 August 2005 coincided with the motives for committing the crime and the intention to provoke fear and unsafety. The drawing of the map of Greater Albania and photographs of himself wearing military uniform and carrying weapons found in the applicant’s possession confirmed his political determination to create an imaginary, non-existent entity by 2010 through jihad. The court examined the evidence produced by A.A. and S.A., but dismissed it as unreliable, for the following reasons: the witnesses were neighbours of the applicant; the applicant’s house was in the immediate vicinity of the B.P. police station where the explosive had been placed, which had allowed him to leave the scene without being noticed; they had been instructed to provide alibis, but their statements were incoherent.

The applicant appealed against the judgment to the Skopje Court of Appeal. He submitted, inter alia, that he had been convicted on the basis of unlawfully obtained evidence, namely his testimony of 16 August 2005, which had been given under duress. That the applicant had been subjected to police brutality was confirmed by his injuries described in the expert report of 19 August 2005. Besides that medical evidence and his clear description of events as to what had happened between 12 and 16 August 2005, he could not produce any other evidence to support his allegations of abduction and ill-treatment. He further complained that he had not been legally represented when he had given the statement of 16 August 2005, notwithstanding that legal representation was obligatory. Lastly, he contested the lawfulness of the search of his father’s house.

At a public session held on 2 June 2006, Skopje Court of Appeal, sitting in a five-judge panel, upheld the trial court’s judgment and dismissed the applicant’s appeal. The court stated:

“The complaints (that the applicant’s conviction had been based on his confession statement given under duress) were the subject of a complete and careful review by the adjudicating panel, which found them unsubstantiated. The trial court did not commit a substantive violation of procedural rules ... since there had been no evidence that (the applicant’s) statement of 16 August 2005 before the investigating judge had been given under duress; ill-treatment; physical assault; or threats. That this statement was lawful was explained by the trial court in detail (on ten pages)...

The trial court, after examining all three statements of (the applicant), gave weight to his statement of 16 August 2005 given before the investigating judge, as lawfully obtained and reliable evidence. The statement of 16 August 2005 is clear; it provides a reasonable description of the entire incident; it gives a chronological account of all details of the manner and place he had met the other two co-defendants; of all activities and preparations pre-dating the incident; of the means by which the crime had been committed; also a description of the device; the length of the fuse; the role of the co-defendants R.S. and F.R.... Details regarding the place where the device had been placed, which could have been known to the applicant as the perpetrator of the crime, matched the on-site examination report; there were also photographs, as well as the expert reports regarding the nature and description of the explosive device and the place where it had been placed...

(The applicant) gave his testimony of 16 August 2005 before the investigating judge, the public prosecutor and a court interpreter, without the presence of the police; he was advised of all his rights under the Criminal Proceedings Act, including the right to remain silent and the right to an attorney; which (the applicant) waived. That he confessed to the crimes was not the result of external pressure or threats, but an act of acceptance and remorse for the unlawful actions.”

As regards the right of the applicant to be legally represented at his questioning before the investigating judge on 16 August 2005, the court held that notwithstanding that he had been informed of his right to mount a defence, including the right to an attorney, he had clearly stated that he would give his testimony without a lawyer. He did not mention to the investigating judge that he was in any particular mental state or that he was otherwise unfit to testify. After the investigating judge had ordered the applicant’s pre-trial detention, a court-appointed lawyer was appointed (see paragraph 14 above). That had been done in compliance with section 66 of the Criminal Proceedings Act (see paragraph 53 below). The search warrants had been issued, and the search records had been duly signed by the applicant’s father and the attending witnesses who had attested to the lawfulness of the search carried out in the house of the applicant’s father (see paragraphs 7 and 8 above).

The applicant and F.R. appealed against these judgments by means of a request for extraordinary review of a final judgment, which the Supreme Court, with a judgment of 14 February 2007, allowed in part and dismissed the indictment regarding trafficking in arms, which, as found by the Supreme Court, had not been submitted in accordance with the law. The court upheld the lower courts’ judgments in the remaining part and dismissed the applicant’s complaints that his conviction had been based on unlawfully obtained evidence (the statement of 16 August 2005) given allegedly under duress. The court ruled that the lower courts had examined, but nevertheless dismissed, that complaint, providing sufficient reasons for their judgments. The court concluded that the applicant’s conviction had not been based solely on his testimony of 16 August 2005. It rested also on other documentary and verbal evidence, which had been communicated to the defence.

On 7 March 2007 the applicant lodged with the public prosecutor’s office a criminal complaint in which he alleged that he had been subjected to police brutality. In the complaint the applicant outlined his statements given on 16 and 19 August and 8 November 2005, as well as the expert report regarding his injuries admitted in evidence in the criminal proceedings against him. He alleged that an unidentified perpetrator had tortured him. He attached a copy of the medical expert report and the court record of 19 August 2005, as well as a copy of the trial court’s judgment.

As no action was taken regarding his criminal complaint, on 25 May 2010 the applicant approached the public prosecutor’s office, seeking that measures be taken to bring those responsible to justice, but he received no reply from the public prosecutor.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Constitutional proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1970 and lives in St. Gallenkappel, Switzerland.

Since 2004, the applicant and F.H. have been involved in legal disputes against each other concerning the property rights in 75% of the bearer shares in both the EMK stock corporation and the EMK Engineering stock corporation, companies resident and registered in Liechtenstein which trade in building units.

By an immediately enforceable interim injunction dated 28 December 2009, taken in accordance with Article 276 § 1 of the Act on Enforcement and Injunction Proceedings (see paragraph 36 below), the Regional Court granted F.H.’s request to prohibit the Real Property and Commercial Registry to register certain changes concerning the EMK Engineering stock corporation which had been decided in the corporation’s extraordinary shareholders’ meeting of 23 July 2004 (file no. 02.CG.2007.83). It thereby confirmed its provisional order of 21 March 2007 to that effect. The Regional Court notably prohibited registering the decisions taken in that meeting that F.H. had been voted out of his office as a representative and member of the corporation’s supervisory board with power to represent the corporation and that the applicant had been elected managing director of the corporation with power to represent the corporation alone.

On 25 March 2010 the Court of Appeal quashed that decision on the applicant’s request and the case was remitted to the Regional Court for a further investigation of the facts.

On 30 July 2010 the Regional Court issued a fresh identical interim injunction. It stated that the interim order served to secure F.H.’s claim in the main proceedings for a declaration that the decisions taken in the EMK Engineering stock corporation’s extraordinary shareholders’ meeting of 23 July 2004 were null and void and for a prohibition of the entry of those decisions in the real property and commercial register.

The Regional Court confirmed that the applicant had not obtained property of 75% of the bearer shares in the EMK Engineering stock corporation and had not therefore validly represented 75% of the shares in the corporation’s extraordinary shareholders’ meeting. The decisions taken in that meeting were thus unlawful. It further found that interim injunctions under Article 276 § 1 of the Act on Enforcement and Injunction Proceedings could also be taken in order to secure claims for a declaration (Feststellungsansprüche) if such a measure was necessary to preserve the status quo of either an object or a legal relationship. For such interim orders the restriction that interim injunctions should not anticipate the outcome of the main proceedings did not apply. In the present case, it was necessary to maintain the status quo in the commercial register in order to prevent F.H. from suffering irreversible damage. F.H. could suffer such damage if the changes in question were made in the real property and commercial register as dispositions could then be taken for the stock corporation without his participation.

On 23 September 2010 the Court of Appeal dismissed the applicant’s appeal against the order of 30 July 2010.

On 22 October 2010 the applicant lodged a constitutional complaint with the Constitutional Court against the Court of Appeal’s decision dated 23 September 2010.

On 7 November 2011 the Constitutional Court informed the applicant that judges B., Bu., S., V. and W. would deliberate on his complaint in private on 28 November 2011.

By submissions dated 18 November 2011, which were received at the court on 21 November 2011, the applicant, who was not represented by counsel at that stage of the proceedings, lodged motions for bias against all five judges called upon to decide on his complaint and against the secretary in charge (Schriftführerin), V.

The applicant argued, in particular, that the Constitutional Court had to his disadvantage not quashed previous decisions of the lower courts in related proceedings. Moreover, he complained that it had taken the Constitutional Court more than one year to assign the judges who were to decide on his complaint despite the importance of the proceedings for him and that the court discriminated against German nationals.

Furthermore, in the applicant’s submission, judges B., V. and W. and secretary V. had failed to take measures to remedy the disadvantages resulting from the fact that the commercial register did not reflect his rights concerning the EMK Engineering stock corporation and had arbitrarily disregarded his rights under Article 6 of the Convention and Article 1 of Protocol no. 1 to the Convention in previous related proceedings.

The applicant further submitted that, for different reasons, the five judges of the Constitutional Court individually were not impartial. As regards the court’s president, judge B., the applicant complained that the latter had not granted his constitutional complaint suspensory effect and had refused to order interim measures in related proceedings. Furthermore, judge B. was a member of different committees and commissions of which judges of the Supreme Court, which had given a decision contested by him in the main proceedings, and judge H., who was a judge at the Constitutional Court and F.H.’s brother, were equally members.

In the applicant’s submission, judge Bu., for his part, was biased because he worked for the Government in that he drew up expert reports on constitutional questions and taught at seminars organised by the Government. He further worked with judge H. on a regular basis.

The applicant further stressed that judge S. was a member of the supervisory board of a state-owned company and was therefore not independent and impartial.

Judge V., for his part, had been a professor at the Liechtenstein University and was, therefore, not independent as he had worked for the Government and as judges had short terms of office. Moreover, he was biased as he was a good friend of judge H., F.H.’s brother.

Finally, judge W., in his law firm, was the partner of a lawyer against whom the applicant had brought proceedings concerning an inheritance. Another lawyer of that law firm had already represented the EMK Engineering stock corporation. Moreover, judge W. had previously worked as a lawyer in judge H.’s law firm.

Three of the judges of the Constitutional Court made statements on the applicant’s motions for bias. Judge Bu. stated that he had not drawn up any expert reports for the Government since his appointment as a judge. Judge S. submitted that he did not draw considerable income from his work as a member of the supervisory board of a state-owned stock corporation. Judge W. explained that he did not have any knowledge of whether his partner in the law firm, who was currently absent, was involved in unrelated legal proceedings with the applicant. His work for judge H. dated back ten years and he had been working as a self-employed counsel for some nine years already since then.

On 28 November 2011 the Constitutional Court, composed of judges B., Bu., S., V. and W., dismissed the applicant’s motion for bias against them (file no. StGH 2010/141).

The Constitutional Court stated that, in accordance with the principle that, if possible, a motion for bias should not be decided upon by the challenged judge, the challenged judges, respectively, had not participated in the deliberations and the decision on the respective motion for bias against them, which had been decided upon by the four remaining judges.

The Constitutional Court considered that the fact alone that judges B., V. and W. had already taken part in decisions finding against the applicant in related proceedings did not suffice to substantiate that there were objectively justified doubts as to their impartiality. Likewise, the fact that the judges were elected for a period of five years did not compromise their impartiality.

The independence of the judges of the Constitutional Court vis-à-vis the executive was guaranteed by the Constitution. The applicant further had not substantiated that the executive had influenced the judges of the Constitutional Court in the present proceedings in any way. The fact that some of the judges had previously worked for the executive did not suggest that the executive had influenced the present proceedings.

Finally, the fact that the challenged judges worked together with F.H.’s brother, the vice-president of the Constitutional Court, on a regular basis and were friends of the latter did not objectively cast doubts on their impartiality in the circumstances of the present case. In a small country like Liechtenstein, excessively strict standards in this respect would disproportionately obstruct the administration of justice.

The decision was served on the applicant on 19 December 2011.

On 19 December 2011 the Constitutional Court, composed of judges B., Bu., V., S. and W., allowed the applicant’s constitutional complaint in so far as he had complained under Article 6 of the Convention about the unreasonable length of the proceedings and dismissed the remainder of his complaint (file no. StGH 2010/141). The applicant complained about that judgment in a new, separate application (no. 67213/12) to the Court.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Marko Antero Malinen, is a Finnish national who was born in 1978 and lives in Hyvinkää. He was represented before the Court by Mr Jaakko Tuutti, a lawyer practising in Tampere.

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

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

The applicant is in prison. On 25 November 2011 a letter sent to the applicant was withheld by the prison authorities on the basis of Chapter 12, section 5, of the Prison Sentences Act on suspicion that it contained drugs. The letter was sent to the police for further investigation. The applicant was informed about the withholding of the letter on the same day. According to the established prison practice, the withheld letter was either given to the applicant to read or it was read to him.

On 30 December 2011 the police found that no crime had been committed as they could find only a very small amount of possible traces of drugs in the letter using the means at their disposal. For this reason, as well as for expediency and cost-effectiveness, the police decided not to forward the letter to a forensic laboratory for further testing but returned it to the prison.

The prison decided to withhold the letter still as it had not been examined properly. The applicant was informed that he would receive the letter only upon his release.

On an unspecified date the applicant sought rectification of the prison director’s decision of 25 November 2011 to withhold his letter.

On 16 January 2012 the Criminal Sanctions Agency (rikosseuraamusvirasto, brottspåföljdsverket) refused his application finding that, according to domestic law, mail sent or received by a prisoner could be withheld, inter alia, in order to prevent danger or to protect safety in prisons. Such mail was to be returned to the sender or given to the prisoner upon release.

By letter dated 6 February 2012 the applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), requesting that the prison director’s decision be quashed. Interpretation of the domestic provisions in accordance with fundamental rights should have led to the use of alternative, less restrictive means. As no traces of drugs had been found, the letter or a copy of it should have been given to the applicant.

On 13 March 2012 the Administrative Court, by a final decision, rejected the applicant’s appeal. It found that the withholding of the applicant’s letter had been necessary in order to prevent danger and crime in the prison. The letter had been singled out by a sniffer dog, which had led to a strong suspicion of the presence of drugs. In such a situation the domestic law did not oblige the prison authorities to give a copy of the withheld letter to a prisoner.

On 4 November 2013 a copy of the letter was given to the applicant.

According to Article 10 of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999), the secrecy of correspondence, telephony and other confidential communications is inviolable. Provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty, may be laid down by an Act.

According to Article 7 of the Constitution, the rights of individuals deprived of their liberty shall be guaranteed by an Act. The rights of convicted prisoners and pre-trial detainees and the necessary restrictions on these rights are regulated by the Prison Sentences Act and the Detention Act.

Chapter 12, section 1, subsection 1, of the Prison Sentences Act (vankeuslaki, fängelselagen, Act no. 767/2005) provides that a prisoner has the right of correspondence. Any sealed letter or other mail destined for the prisoner or sent by the prisoner may be checked by X-ray or by similar methods without opening the mail, in order to examine whether it contains prohibited substances or objects referred to in Chapter 9, section 1, subsection 1 or 2, of the Act.

Chapter 12, section 5, of the Act provides that a letter, mail or message sent by or destined for a prisoner may be withheld, if the withholding is necessary for the prevention or solving of crime, prevention of disorder in the prison or for the safety of the detainee or other persons. The recipient or the sender shall be immediately informed about the withholding and the reasons for it. A letter, mail or message which has not been delivered shall be returned to the sender or given to the prisoner upon release.


CASE OF DİLİPAK AND KARAKAYA v. TURKEY [Extracts]

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved

András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Peer Lorenzen;Robert Spano

The applicants were born in 1949 and 1953 respectively and live in İstanbul. They are both journalists who were working for the Akit daily newspaper at the material time.

On 25 June 2000, on the occasion of the funeral of Admiral Güven Erkaya, the former Commander-in-Chief of the navy and member of the National Security Council, Mr Karakaya published an article in the Akit daily newspaper, whose front-page headline read “We will not waive our rights”. In the article the journalist criticised the late Admiral for the role he had played in the political process triggered by the meeting of the National Security Council on 28 February 1997, which some observers have called a “post-modern coup d’état”.

On 26 June 2000 Mr Dilipak also published an article in the same newspaper on Admiral Erkaya, criticising his actions.

On 29 September 2000 the deceased’s family brought a civil action for damages in the Ankara Civil Court of First Instance (“the Civil Court”) against the applicants and the company owning the newspaper. The family also lodged a complaint with the Istanbul public prosecutor’s office.

When bringing their civil action, the Erkaya family gave the newspaper’s registered office as the defendants’ address.

However, the postal service did not succeed in serving the summons and the statement of claim on the applicants at this address, as they were not to be found there. This fact was confirmed by the elected neighbourhood leader (muhtar), who countersigned the report noting that the summons could not be served on the relevant persons.

The Civil Court then asked the police to ascertain the applicants’ addresses.

According to the Civil Court, after the police had completed their inquiries, they informed it of two addresses in Istanbul: one in the Aksaray neighbourhood (Küçüklanga Caddesi no. 103), in respect of Mr Karakaya, and the other in the Mecidiyeköy neighbourhood (Mecidiye Caddesi no. 7/50 Çavuşoğlu İş Merkezi), in respect of Mr Dilipak.

The decision was subsequently taken to send fresh summonses to these addresses.

The record of the service of Mr Karakaya’s summons stated that it had been handed to a certain N.G., describing him as an “authorised employee” (yetkili personel).

In the case of Mr Dilipak, the summons could not be served on the ground that he was unknown at the stated address.

The Civil Court decided to serve the summons via publication in the press on the ground that it was impossible to ascertain Mr Dilipak’s address.

On 21 January 2003, in the absence of the defendants, who had never appeared at the hearings, the Civil Court delivered a judgment ordering them jointly to pay the sum of 30,000 Turkish liras (TRY), equivalent to some 17,000 euros (EUR), together with interest in arrears from 25 June 2000, for non-pecuniary damage.

The Civil Court considered that in his article Mr Dilipak had insinuated that the deceased would pay for his wrongdoing and that justice would be done The Civil Court noted that he had used the phrase “may your land be abundant”, which was reserved for non-Muslims. It cited the following passage in particular:

“Whatever you do, do not remind me of the injunction ‘do not speak ill of the dead’. This injunction does not apply to Hitler, Mussolini or Stalin. Otherwise the Koran would not say what it does about Nimrod and Pharaoh. Güven Erkaya was certainly not Hitler, but nonetheless he holds a particular place in the consciousness of our people.”

In the case of Mr Karakaya, the Civil Court held that he had insinuated that the circumstances surrounding the Admiral’s death –particularly his cancer – were but his due for the suffering which he had inflicted on the people. It noted that the journalist had also written that this death had not saddened him, that he would not attend the Admiral’s funeral and that he would not waive his rights over him. It also noted the following passage:

“He made the people weep, but now his family are weeping ... He invented the lie that Koranic school students swore an oath to combat the secular system and Atatürk. The Koranic schools may now be closed, but so are Erkaya’s eyes.”

The Civil Court concluded that the applicants had “exceeded the limits of criticism by launching a personal attack on the deceased on the ground of his functions”, especially since he had been a “valorous army commander who [had] served the nation”.

Furthermore, it pointed out that inquiries had been carried out into the defendants’ economic and social situation and that the turnover of the company owning the Akit newspaper had been ascertained from the tax authorities.

The judgment was not served on Mr Karakaya because he no longer lived at the latest address known to the registry (Küçüklanga Caddesi). As he had not informed the court of his change of address, the judgment was deemed to have been served in accordance with section 35 of the Notification Act (see paragraphs 57-66 below).

The record drawn up by the notifying officer stated that a local resident, R.Ö., had been questioned about Mr Karakaya’s new address, albeit in vain. A stamp used by the local muhtar indicates that the address of service was a business address which had not been recorded in his files.

In the case of Mr Dilipak, the judgment was served via publication in a newspaper on 14 April 2003. The judgment became final on 29 May 2003.

On 3 June 2003 the Civil Court added an annotation to its judgment to the effect that it was final (kesinleşme şerhi).

On 9 June 2003 the Erkaya family submitted a copy of the final judgment to the Ankara Enforcement Office and brought enforcement proceedings. On the same day the payment orders were drawn up and posted to the applicants ...

Mr Dilipak received his payment order at his home address in the Acıbadem neighbourhood in Kadıköy (Istanbul). Mr Karakaya also received his order at his home address in Beylikdüzü (Istanbul).

On an unspecified date the applicants sought leave from the Civil Court to appeal on points of law against the judgment of 21 January 2003, observing that they had been apprised of the latter on receipt of the aforementioned payment orders.

On 17 June 2003 the Civil Court rejected the applicants’ appeal (temyiz dilekçesinin reddi) on the ground that the judgment had become final.

The applicants lodged an appeal on points of law against the 17 June 2003 decision.

Mr Dilipak challenged the lawfulness of serving the documents in question by publication in the press, contending that this procedure could only be used after all other methods had failed. He pointed out that he had been residing at the same address for more than twenty years, and submitted that the requisite steps had not been taken to find his address. In his view, his address could have been easily ascertained by means of a simple letter to the Journalists’ Association (Gazeteciler Cemiyeti) or to the Directorate General of Press, Publications and Information (a department operating under the Prime Minister, with responsibility for issuing press passes).

He pointed out that the judgment had become enforceable on 3 June 2003 and that the payment order had been drawn up and sent to his home within one week of that date. Furthermore, the address had been given to the Department for the Execution of Sentences by counsel for the Erkaya family. He specified that the latter had long been in possession of his address and had deliberately refrained from saying so until the judgment had become final.

Mr Dilipak concluded that neither the summons nor the judgment had been validly served on him.

Mr Karakaya, for his part, complained that the documents had been served at another person’s address rather than his own.

He pointed out that in accordance with the law, when judicial documents were served at a business address, they could be handed over to one of the addressee’s permanent employees if, and only if, the addressee was absent. He submitted that in the present case, the documents had been served at a business address but that the person mentioned in the record had not been one of his employees. Moreover, the record did not mention the reason why the documents had not been handed over to him in person.

Lastly, he found it surprising that the claimants had considered throughout the proceedings that his address was “Küçüklanga Caddesi no: 103 – Aksaray/Istanbul” and that, less than a week after the judgment had become final, they had suddenly found his real address and given it to the Department for the Execution of Sentences.

On 24 December 2003 the Court of Cassation dismissed on the merits the appeal on points of law against the impugned judgment on the ground that the latter was “in conformity with procedural and statutory law”.

On 13 September 2004 Mr Dilipak submitted a request for rectification of the judgment.

He submitted that the Civil Court had not made any serious attempt to find his address.

Mr Dilipak pointed out that the court had indeed submitted a request to the police and that the report sent to the court had indicated one address for each of the other two defendants, but that neither of these addresses had concerned him. He specified that the document in the case file contained a handwritten entry “Mutakil San Is. Ad.Dem, M.Köy” alongside his name, that the author of this entry was unknown, and that the judge had, strangely enough, considered that it referred to the address “Mecidiye Cad. no: 7/50 Cavuşoğlu Iş Merkezi Mecidiyeköy Istanbul”, to which he had decided to send the summons made out to him.

Explaining that according to the law and the case-law of the Court of Cassation the court should have made enquiries among the relevant government departments and institutions and not confined itself to police searches, he accused the court of having failed to take the necessary action. In this connection, he produced letters from the civil status register, the Press Council (Basın Konseyi), the Journalists’ Association, the Directorate General of Press, Publications and Information, and an employers’ organisation (MÜSIAD), stating that according to their files, he was a long-term resident of the Acıbadem neighbourhood in Istanbul. He also submitted a document from the elected leader of the Acıbadem neighbourhood to the effect that he had been living at the same address in that neighbourhood since 22 July 1989.

Mr Dilipak also presented a letter from the Istanbul Governor’s Office confirming that he had been assigned a bodyguard. In his view this meant that his address was known to the police.

Moreover, the Social Security Department, the Land Registry and the Municipal Council had all been aware of his address.

He also submitted that the Erkaya family must have known his address because it had been mentioned in the case file for the criminal proceedings which they had jointed as intervening parties, the summons had been sent to him at that address and he had stated the same address at his hearing before the Ankara Criminal Court.

He based his whole line of reasoning on the case-law of the Court of Cassation, including a judgment delivered by its Joint Civil Chambers on 29 September 1999 (1991/1-609 E – 1999/744 K). In this judgment the court had stressed the importance of judicial notices, which were closely linked to the rights of the defence. It had held that efforts to ascertain an address should be very wide-ranging, covering enquiries to government bodies such as municipal councils, civil status and land registries and various professional bodies, and that such action should not be confined to police investigations.

On an unspecified date Mr Karakaya also submitted a request for rectification of the judgment.

On 14 February 2005 the court dismissed the applicants’ requests on the ground that the conditions had not been met for rectifying the judgment.

On 5 February 2007 the Ministry of Justice invited the Public Prosecutor at the Court of Cassation to lodge an appeal in the interests of the law against the judgment of 21 January 2003 on the ground that the rules on notification of judicial documents had been infringed. He backed up his arguments by citing the aforementioned judgment adopted on 29 September 1999 by the Joint Civil Chambers of the Court of Cassation.

On 2 April 2007 the Court of Cassation dismissed the appeal in the interests of the law lodged by the Public Prosecutor’s Office.

On 3 August 2012 the applicants applied for the reopening of the proceedings before the Ankara Civil Court of First Instance and a stay of execution of the judgment of 21 January 2003. In support of their application, they submitted that criminal proceedings for an attempted coup d’état had been instituted against senior army officers who had been on the National Security Council in February 1997, and that those concerned had been taken into pre-trial detention. According to the applicants, this was a new fact that had been unknown to the court at the time of the judgment. They pointed out that this fact was liable to cast doubt on the court’s use of such laudatory expressions as “valorous army commander who served the nation” in connection with the deceased. Furthermore, the applicants submitted that the applications which they had lodged with the Court were currently under examination and that a finding of a violation of the Convention was a ground for reopening the proceedings. They therefore invited the court to order a stay of execution of the judgment until the Court had heard and determined their applications.

By an order of 16 August 2012, the Civil Court decided to suspend the enforcement procedure on condition of payment of a surety of TRY 164,000 (approximately EUR 74,500 at the time).

No information has been provided on the action taken on this order.


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicants complained of the excessive length of different administrative and civil proceedings under Article 6 § 1 of the Convention.

All applicants obtained decisions of the Constitutional Court of Serbia, which found a violation of their right to a hearing within reasonable time.

As regards the applicant Mr Nikola Ković, according to the regulations applicable at that time, the Constitutional Court established his right to seek compensation for non-pecuniary damage before the Commission for Damage Compensation. Mr Ković submitted his request for damages to the Commission on 26 December 2010, but he has not received the response to date.

As regards the applicants Mr Zoran Ranković and Mr Ivan Bojanić, the Constitutional Court awarded them certain sums in respect of the non-pecuniary damage suffered (see appendix to this judgment).


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1962 and lives in Moscow.

On 1 February 1994 F. bought a 19.3 square metre flat at 22-2-68 Nagatinskaya Naberezhnaya, Moscow. On 23 July 1997 F. died intestate and without heirs. According to the Government, his flat was locked and sealed by the housing maintenance company.

On an unspecified date N. brought a civil action seeking recognition as F.’s heir-at-law. The City of Moscow authorities took part in the proceedings as a respondent. On 8 February 2010 the Simonovskiy District Court of Moscow granted her claim and recognised her title to F.’s flat. The judgment came into force on 19 February 2010.

On 14 May 2010 N. sold the flat to K. The transaction was registered by the Federal Registration Service.

On 24 June 2010 the Moscow City Court quashed the judgment of 8 February 2010 on appeal and dismissed N.’s claims.

On 6 July 2010 K. sold the flat to the applicant. On 21 July 2010 the Federal Registration Service registered the sale agreement and the transfer of the title to the flat to the applicant.

On an unspecified date the Housing Department brought a civil action claiming that N. had been erroneously recognised as F.’s heir-at-law and that the City of Moscow should inherit his property instead.

On 8 November 2012 the District Court granted the Housing Department’s claims. It ordered the transfer of title to the flat to the City and the requisition of the flat from the applicant. The court also considered that the applicant had not demonstrated due diligence when buying the flat from K. and could not be recognised as a bona fide purchaser.

On 4 February 2013, following an appeal by the applicant, the Moscow City Court upheld the judgment of 8 November 2012.

On 15 April 2015 the District Court granted the Housing Department’s claims against the applicant and ordered her eviction.

According to the Government, the applicant has not been evicted and continues to reside in the flat.

On 20 March 2014 the Moscow City Court upheld the judgment of 9 December 2013 on appeal.

According to the Government, the bailiff failed to establish K.’s whereabouts or locate any of his assets. The judgment in the applicant’s favour remains unenforced. The enforcement proceedings are still pending.