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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano

The applicant was born in 1957 and lives in Vilnius.

The applicant owned a 0.53 hectare plot of land in the village of Tarailiai (Tauragė region). In 2005 he submitted a request to the local authorities to change the classification of the land from agricultural to residential use. In accordance with the domestic law, such a request had first to be granted by the municipal council and then approved by the county administration.

Tauragė District Municipal Council granted the applicant’s request and prepared a detailed area plan (detalusis planas) (hereinafter “the plan”). The plan was subsequently submitted for approval to the Tauragė County Administration (hereinafter “the TCA”). However, on 25 November 2005 the TCA refused to approve the plan on the ground that it had not been prepared in accordance with the domestic laws governing the planning process.

The applicant submitted a complaint to the State Inspectorate for Planning and Construction (hereinafter “the Inspectorate”), which was the competent institution for out-of-court settlement of disputes arising from the planning process. On 10 August 2006 the Inspectorate held that the TCA’s refusal to approve the plan had been unfounded.

After the Inspectorate’s decision, Tauragė District Municipal Council re-submitted the plan to the TCA. However, on 13 November 2006 the TCA informed the council and the applicant that it would not review its previous decision to refuse approval.

On 22 December 2006 the Inspectorate notified the TCA that its refusal to approve the plan had been unfounded and urged it to review that decision. It appears that the TCA did not take any action in that respect.

In January 2007 the applicant lodged a claim with the Klaipėda Regional Administrative Court. He asked the court to order the TCA to approve the plan. Following the court’s suggestion, in April 2007 the applicant added a request to annul the TCA’s decision of 25 November 2005.

On 4 May 2007 the Klaipėda Regional Administrative Court dismissed the applicant’s claims. The court held that county administration’s decisions on approval of detailed area plans were valid for one year after their adoption. If the plan had not been adopted within that time, the decision became invalid and the plan had to be re-submitted for approval. Therefore, the court found that the TCA’s decision of 25 November 2005 was no longer valid and could not have any effect on the applicant’s situation. The court stated that it had no competence to examine the lawfulness of an invalid act and dismissed the claim. It also held that, as a result, there was no need to examine the applicant’s remaining claims.

The applicant appealed against that judgment. He complained, inter alia, that the first instance court had not examined his original request – to order the TCA to approve the plan.

On 15 February 2008 the Supreme Administrative Court upheld the applicant’s appeal and returned the case for re-examination by the firstinstance court. The Supreme Administrative Court noted that when a county administration refused to approve a detailed area plan, that plan could be re-submitted only after the errors indicated in the refusal had been corrected. However, if the author of the plan disagreed with the indicated errors, he or she would effectively be denied access to court if the proceedings lasted longer than a year. The court also noted that the applicant’s original request had been to order the TCA to approve the plan and that the first-instance court had not made any findings in that respect.

On 16 October 2008 the Klaipėda Regional Administrative Court, after re-examining the case, again decided to dismiss the applicant’s claims. The court held that decisions of the Inspectorate, taken during the out-of-court settlement procedure, were mandatory for county administrations (see paragraph 20 below). Accordingly, the Inspectorate’s decisions of 10 August 2006 and 22 December 2006 had repealed the TCA’s decision of 25 November 2005. As a result, the TCA’s refusal to approve the plan was no longer valid and the court had no competence to examine its lawfulness. The court also held that, as a result, there was no need to examine the applicant’s remaining claims.

The applicant appealed against that judgment, again complaining that the first-instance court had not examined his request to order the TCA to approve the plan, and that it had not followed the Supreme Administrative Court’s judgment of 15 February 2008 (see paragraph 14 above).

On 12 December 2008 the Supreme Administrative Court dismissed the applicant’s appeal. It upheld the lower court’s findings that the TCA’s decision had been repealed by the Inspectorate and that courts had no competence to examine invalid acts. The Supreme Administrative Court then held that the applicant’s request to order the TCA to approve the plan was “derived” (išvestinis) from the request to annul the TCA’s decision; having dismissed the latter, there was therefore no need to examine the former request either. Lastly the court noted that the applicant had not requested that the court order the TCA to comply with the Inspectorate’s decisions, so it would make no findings in that respect.

In 2010, following a national administrative reform, all county administrations were abolished and their planning powers were transferred to the Inspectorate. The applicant then submitted a new request to change the classification of his land and it was approved by all the relevant authorities. The classification of the land was changed to residential use in February 2012.


PROCON S.R.L. v. THE REPUBLIC OF MOLDOVA

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant, Procon S.R.L., is a company registered in Moldova. It was represented before the Court by Mr F. Nagacevschi, a lawyer practising in Chișinău.

The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

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

The applicant company rented part of the basement of a State-owned building (the Ginta-Latină theatre, “G-L”). The premises were equipped for use as a bar (“the bar”).

By decision no. 37 of 30 June 1998 the Commission for Privatisation of Rented Property (“the Commission”, a subdivision of the Department of Privatisation and Administration of State Property, “the Department”) allowed the privatisation of the bar and set the initial price at 423,390 Moldovan lei (“MDL”, the equivalent of approximately 57,373 United States Dollars (“USD”) at the time). On 21 August 1998 the Commission adopted decision no. 40 allowing the applicant company to pay the price of the bar.

On 5 October 1998 the applicant company received a letter from the Department in which it was invited to appear before it in order to receive information about the modalities of payment, failing which the bar would be offered for privatisation at an auction.

On 13 November 1998 the Commission adopted decision no. 42 (“the 1998 decision”) confirming the permission to privatise the bar and setting the final price at MDL 348,676 (the equivalent of approximately USD 47,250 at the time).

On 24 December 1998 the applicant company concluded a contract with the Department for the purchase of the bar from the State. The applicant company paid the full price indicated in the contract (MDL 348,676).

On 15 January 1999 G-L initiated court proceedings against the Department, seeking to have the 1998 decision overturned and have the bar’s activity suspended. It argued that the type of property which the Commission had allowed the applicant company to buy was part of a building constituting national cultural heritage and was one of the types of property (room with a technical lines hub, common use room for the entire building) not subject to privatisation in accordance with the law.

According to the applicant company, at its requests of 5 February and 31 May 1999 it was accepted on the latter date in the proceedings as a third party having its own claims.

Following several decisions regarding procedural matters, on 4 May 2000 the Economic Court of the Republic of Moldova rejected G-L’s claim. No appeal was lodged and the judgment became final fifteen days later.

The Prosecutor General requested the Supreme Court of Justice to reopen the proceedings as part of an extraordinary remedy. On 28 November 2001 the Supreme Court of Justice agreed and quashed the judgment of 4 May 2000, ordering a re-hearing of the case.

On 29 October 2002 G-L added to its earlier claims against the applicant company a request to declare the contract of 24 December 1998 for the sale of the bar null and void. The Department also brought a court action against the applicant company on the same day, seeking the annulment of that contract, since its object was property that could not have been lawfully privatised.

In the meantime, on 6 September 2001 the Commission adopted decision no. 89 (“the 2001 decision”) by which it annulled the part of the 1998 decision which had authorised the privatisation of the bar, without giving reasons.

On 11 October 2002 the applicant company initiated court proceedings, seeking the overturning of the Commission decision mentioned in the preceding paragraph. In that respect it noted that the relevant part of the 1998 decision allowing the privatisation of the bar had been the subject of judicial proceedings ending with the judgment of 11 October 2000 (see paragraph 25 above), which had become final.

The Economic Court of the Republic of Moldova decided to join the proceedings of the applicant company against the Commission (concerning the 2001 decision) with those brought by G-L and the Department against the applicant company (concerning the annulment of the sale of the bar).

On 18 November 2002 the same court allowed the applicant company’s claims and rejected those of the Department and G-L. It quashed the 2001 decision as unlawful. The court noted that by the final Economic Court judgment of 11 October 2000 (see paragraph 25 below) the 1999 decision had been quashed, and that that judgment confirmed the lawfulness of the decision to allow the privatisation of the bar. The court went on to examine the substance of the case, and found that the privatisation had not been contrary to any legislative provision.

The Department and G-L appealed. The applicant company submitted that it had made the purchase in good faith, and emphasised that it had been the initiative of the Department to privatise the bar and that the applicant had been warned that the bar would be sold at auction if it did not purchase it (see paragraph 6 above).

On 12 February 2003 the Supreme Court of Justice quashed the judgment of 18 November 2002. It ruled on the merits of the case and found that the lower court had incorrectly interpreted certain aspects of the relevant legislation and concluded that in accordance with the law G-L’s basement was situated in a building that was part of State property which was not subject to privatisation. Accordingly, it declared null and void the contract for the purchase of the bar from the Department, and ordered restitutio in integrum, the applicant to receive the sum paid during the privatisation.

According to the Government, the applicant company was allowed to continue renting the bar from the State.

In the meantime, while the first set of proceedings was pending, the applicant company sought to have its title to the bar entered in the Territorial Land Registry (“the TLR”), relying on the 1998 decision and the contract with the Department. The TLR rejected that request on 2 and 16 February 1999 because of the Government decision no. 39 of 22 January 1999, under which the entire building had been transferred for free to the Parliament. On 17 March 1999 the applicant company took legal action against the Department (asking for de facto transfer of the property) and against the TLR (asking it to register the company’s title to the privatised property).

On 30 June 1999 the Chişinău Economic Court ordered the TLR to register the applicant company’s title to the bar and issue it with the relevant confirmation, and the Department to transfer the property to the applicant company. The court noted that in accordance with the 1998 decision and the contract between the Department and the applicant company the latter had bought the relevant property and that the Department did not object to the applicant company’s claim, while the TLR was absent. No appeal was lodged and the judgment became final.

The Prosecutor General requested the Supreme Court of Justice to reopen the proceedings (recurs în anulare), arguing inter alia that another court action concerning the lawfulness of privatisation (the first set of proceedings) was pending. The Supreme Court of Justice rejected that request on 15 December 1999, noting that if the parallel proceedings referred to by the Prosecutor General resulted in the annulment of the contract for the sale of the relevant property, the judgment of 30 June 1999 could be reviewed in accordance with the law.

While the first set of proceedings was still pending, on 10 September 1999 the Commission adopted decision no. 59 (“the 1999 decision”) by which it quashed the part of the 1998 decision regarding the permission to privatise the bar, without giving reasons for doing so. On 21 January 2000 the Department informed the applicant company of that decision, specifying that in reaching it the Commission had taken into account the Government decision no. 39 of 22 January 1999 transferring the building to the Parliament.

On 12 July 2000 the applicant company initiated court proceedings seeking to overturn the 1999 decision. On 11 October 2000 the Economic Court of Moldova quashed the Commission’s 1999 decision as unlawful, finding that in the meantime the Government decision no. 39 mentioned above had been overturned by Government decision no. 435 of 10 May 2000. G-L was not a party to those proceedings.

On 21 November 2001 the Appeals Chamber of the Economic Court of the Republic of Moldova rejected the Department’s appeal as out of time. The judgment of 11 October 2000 became final.


No violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

The applicant was born in 1975 and was detained in Vladivostok at the relevant time.

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

On 18 April 2016 the applicant was arrested on charges of fraud. Four days later the Pervorechensky District Court of Vladivostok authorised his pre-trial detention. The detention was further extended on 15 June and 14 September 2016.

On 25 April, 20 June and 16 September 2016 the applicant appealed against the detention orders of 22 April, 15 June and 14 September 2016. The Primorye Regional Court dismissed the appeals on 1 June, 5 July and 25 October 2016, respectively.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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

The applicants complained that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties. Some applicants also raised other complaints under the provisions of the Convention.


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

Angelika Nußberger;Vincent A. De Gaetano

The applicant was born in 1973 and lives in Koper.

On 17 November 1995 the applicant instituted civil proceedings before the Koper District Court concerning the division of joint property.

On 24 September 1997 the Koper District Court rejected the applicant’s claim on procedural grounds. The applicant appealed.

On 18 February 1998 the Koper Higher Court partially upheld the appeal of the applicant and remitted the case back to the first instance court.

On 14 August 2001 the Koper District court issued a partial judgment. Both parties appealed.

On 22 October 2002 the Koper Higher Court dismissed the appeals.

On 1 March 2007 the Koper District Court issued a judgment concerning the remainder of the applicant’s claim. The applicant appealed.

On 18 November 2008 the Koper Higher Court dismissed the applicant’s appeal concerning the decision on the main issue. The court however annulled the decision on the costs of proceedings and remitted that issue back to the first instance court.

On 18 August 2008 the Koper District Court issued a decision on the costs of proceedings. The applicant appealed.

On 18 November 2008 the Koper Higher Court dismissed the applicant’s appeal. The decision was served on the applicant’s representative on 10 December 2008.

On 29 September 2008 the applicant lodged an application for settlement with the State Attorney’s Office with a view to reaching an agreement on just satisfaction on account of the delays in the civil proceedings.

On 26 May 2008 the State Attorney’s Office dismissed the applicant’s claim.

On 25 November 2009 the applicant, relying on Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), lodged a claim with the Koper Local Court seeking compensation in the amount of EUR 5,800 for non-pecuniary damage incurred as a result of the length of the civil proceedings.

On 25 November 2010 the Koper Local Court dismissed the applicant’s claim. The applicant appealed.

On 17 January 2011 the Koper Higher Court upheld the applicant’s appeal and remitted the case back to the first instance court.

In the course of proceedings, the State on 5 April 2011 acknowledged the claim of the applicant in the amount of 1,200 EUR.

On 16 November 2011 the Koper Local Court gave a judgment. The court found that the applicant’s right to a trial within a reasonable time had been breached and that, in addition to the 1,200 EUR, the State was to pay a further EUR 420 to the applicant for non-pecuniary damages and to reimburse the applicant EUR 275 in respect of costs and expenses incurred in the proceedings. In determining the amount of compensation, the court considered that the applicant had contributed to the duration of the proceedings by amending her claim several times and submitting written observations directly at the hearings which had as a consequence the adjournment of three hearings. Accordingly it deducted 10% from the amount to be awarded. The applicant appealed.

On 17 April 2012 the Koper Higher Court partially upheld the applicant’s appeal and modified the decision, ruling that the State was to pay the applicant in total EUR 2,500 as non-pecuniary damages and further EUR 586 in respect of costs and expenses incurred in the proceedings. The higher court also noted the applicant’s contribution to the duration of the proceedings.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant was born in 1953 and lives in Zagreb.

In the period between 1987 and 1989 the applicant underwent several operations in the Zagreb Clinical Hospital Centre “Sestre Milosrdnice” (Klinički bolnički centar Sestre Milosrdnice – hereinafter “the hospital”), a public health-care institution, for a middle-ear dysfunction.

Following surgery in October 1989 the applicant’s condition deteriorated, resulting in paralysis of the left side of her face. In this connection, she underwent further treatment until July 1997, when it was found that her condition was such that she would not recover. The applicant took early retirement on grounds of disability.

On 29 January 1998 the applicant lodged a civil action against the hospital and the relevant insurance company with the Zagreb Municipal Civil Court (Općinski (građanski sud) u Zagrebu), claiming damages for alleged medical malpractice.

In September 1998 the applicant urged the Zagreb Municipal Civil Court to schedule a hearing in her case.

The parties exchanged further submissions in February and March 1999. The applicant submitted an expert report drafted by V.F., according to which her medical condition had notably deteriorated in January 1997.

The first hearing before the Zagreb Municipal Civil Court was held on 17 September 1999. Following questioning of the applicant, the hearing was adjourned until further notice.

In October 1999 and May 2000 the applicant urged the Zagreb Municipal Civil Court to speed up the proceedings.

On 27 September 2000 a hearing was held at which the Zagreb Municipal Civil Court decided to commission an expert report concerning the circumstances of the applicant’s treatment.

On 14 November 2000 experts R.T. and P.S. were commissioned to write the report.

In December 2000 P.S. produced a report in which he stated that he had found no indications of medical malpractice in the applicant’s treatment.

R.T. asked to be excluded from the proceedings on the grounds that he was employed in the hospital and that therefore an issue as to his impartiality could arise. As a result of his withdrawal, on 16 January 2001 the Zagreb Municipal Civil Court commissioned a report from another expert, J.G.

In her report of 5 February 2001, J.G. found that the applicant’s condition was irreversible, but did not provide any conclusive findings as to the alleged medical negligence.

On the basis of an objection by the applicant to J.G.’s findings, on 8 March 2001 the Zagreb Municipal Civil Court invited the expert to supplement her report with findings concerning the applicant’s allegations of medical malpractice.

On 9 April 2001 J.G. submitted a supplement to her report, finding that there were no indications of medical negligence in the applicant’s treatment.

In April 2001 the applicant challenged J.G.’s findings and asked the Zagreb Municipal Civil Court to question the experts at a hearing.

On 8 November 2001 a hearing was held for the questioning of the experts, who reiterated their findings. The Zagreb Municipal Civil Court found that it was necessary to commission another expert report from the University of Zagreb Medical Faculty (Medicinski fakultet Sveučilišta u Zagrebu) concerning the question whether the applicant’s condition was a result of medical negligence.

An expert report was commissioned from the University of Zagreb Medical Faculty on 14 January 2002.

The University of Zagreb Medical Faculty produced a report on 28 April 2005. It found that the applicant’s facial paralysis was a result of complications during surgery and not medical malpractice.

In response to the expert report of the University of Zagreb Medical Faculty, the applicant specified her claim, arguing that the report established a causal connection between the surgery and the deterioration of her health. She also considered that according to the principle of objective liability, the hospital was responsible. The applicant did not express any objections concerning the report.

In September and December 2006 the applicant urged the Zagreb Municipal Civil Court to schedule a hearing.

At a hearing held on 2 February 2007 the Zagreb Municipal Civil Court questioned the applicant and ordered that the experts from the University of Zagreb Medical Faculty, N.Šp. and J.Šk., be questioned at the next hearing.

On 24 May 2007 the Zagreb Municipal Civil Court heard evidence from N.Šp. and J.Šk. They reiterated their findings, according to which the deterioration of the applicant’s condition had been a result of complications during surgery.

A further hearing was held on 16 May 2008 at which the Zagreb Municipal Civil Court decided that K.R., the doctor who had treated the applicant, would be questioned as a witness.

A hearing on 17 October 2008 was adjourned because K.R., who at the time lived in Serbia, had not been properly summoned to appear as a witness.

At a hearing on 4 December 2008 the Zagreb Municipal Civil Court questioned the applicant. It also found that K.R. had not been properly summoned.

On 22 April 2009 a hearing was held at which the Zagreb Municipal Civil Court questioned K.R., who explained the circumstances of the applicant’s operations and further treatment.

On 7 May 2009 the Zagreb Municipal Civil Court commissioned another expert report from D.V. with regard to the question of a causal link between the applicant’s condition and her disability pension. In a report of 8 July 2009 the expert found that there was a direct causal link between the applicant’s condition and her retirement on grounds of disability.

At a hearing on 20 January 2010 the applicant asked that experts from another European Union State be appointed as expert witnesses in her case. The Zagreb Municipal Civil Court dismissed that request and concluded the hearing.

In a further submission of the same date the applicant challenged the impartiality of the expert witnesses from Croatia, arguing that it was clear from the negligible number of cases where medical malpractice had been established that they were biased in favour of the defendants.

On 29 January 2010 the Zagreb Municipal Civil Court dismissed the applicant’s civil action, holding that in the case at issue the principle of presumed fault (presumirane krivnje) should be applied. That meant that it was for the defendants to show that the hospital had acted in accordance with professional standards and that the damage was not the result of a lack of diligence on the part of the doctor who had performed the surgery. Relying on a detailed assessment of the expert reports obtained during the proceedings, the court found that on the facts of the case, the deterioration of the applicant’s health had been a result of complications in the treatment and not of medical malpractice. It also pointed out that there was nothing putting into doubt the quality of the expert reports commissioned during the proceedings and that the applicant’s request that another expert report be commissioned from abroad would unnecessarily further prolong the proceedings and generate further expense.

On 17 March 2010 the applicant appealed against that judgment before the Zagreb County Court (Županijski sud u Zagrebu) alleging, inter alia, that the medical experts who had drafted the reports had a personal and professional conflict of interest in the proceedings, as they involved allegations of malpractice against their colleagues and the experts were financially dependent on the hospital system.

On 14 September 2010 the Zagreb County Court dismissed the applicant’s appeal as unfounded on the grounds that there was no reason to doubt the quality and findings of the expert reports.

On 11 November 2010 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), reiterating her previous arguments concerning lack of impartiality on the part of the experts and the quality of the expert reports commissioned during the proceedings.

On 31 August 2011 the Supreme Court dismissed the applicant’s appeal on points of law as unfounded, endorsing the reasoning of the lower courts.

On 2 June 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining of lack of an effective procedure before the competent civil courts to deal with her allegations of medical negligence. She also reiterated her complaints as to the lack of impartiality of the medical experts, arguing that the relevant statistics showed that it had been impossible to establish her allegations of medical negligence on the basis of the expert reports commissioned from the domestic experts.

On 26 September 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The decision of the Constitutional Court was served on the applicant on 12 October 2012.

On 7 January 2008 the applicant complained to the Zagreb County Court about the excessive length of the proceedings before the Zagreb Municipal Civil Court.

On 26 August 2008 the Zagreb County Court found a violation of the applicant’s right to a trial within a reasonable time and awarded her 11,000 Croatian kunas (HRK – approximately 1,530 euros (EUR)) in compensation. It also ordered the Zagreb Municipal Civil Court to terminate the proceedings within a further period of eight months following the service of its decision.

The decision of the Zagreb County Court was served on the Zagreb Municipal Civil Court on 22 October 2008.


No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1962 and is detained in Baku.

On 9 June 2008 the Assize Court (Ağır Cinayətlər Məhkəməsi – hereinafter “the Assize Court”), sitting as a court of first instance for serious offences, convicted the applicant and his wife of fraud. The applicant was sentenced to nine years’ imprisonment with confiscation of property, and his wife to seven years’ imprisonment, suspended for five years on probation.

On 23 January 2009 the Baku Court of Appeal (Bakı Apellyasiya Məhkəməsi – hereinafter “the Court of Appeal”) overturned the judgment of 9 June 2008, reducing the applicant’s term of imprisonment to seven years and lifting the confiscation of property sanction.

The applicant lodged a cassation appeal with the Supreme Court (Ali Məhkəmə – hereinafter “the Supreme Court”). The prosecutor lodged a cassation protest in respect of the judgment of 23 January 2009 with the Supreme Court, requesting that it be set aside and the case remitted to the Court of Appeal.

The Supreme Court scheduled the first hearing for 10 June 2009 but adjourned the proceedings until 24 June 2009 at the request of the applicant’s lawyer who pleaded that he had not enough time to familiarise himself with the case-file and collect further evidence.

At the hearing of 24 June 2009 the applicant’s lawyer requested another adjournment referring to health problems and lack of time for familiarisation with the case-file. The Supreme Court scheduled the next hearing for 1 July 2009. According to the minutes of the hearing of 24 June 2009 provided by the Government, the applicant’s lawyer was present when the court declared that his request had been granted and that the proceedings were adjourned until 1 July 2009.

On 1 July 2009, having examined the case in the absence of the applicant and his lawyer but in the presence of the prosecutor, the Supreme Court dismissed the applicant’s appeal and accepted the prosecutor’s application for supervisory review in part. The prosecutor made oral submissions during the hearing, seeking the dismissal of the applicant’s appeal.

The Supreme Court upheld the Court of Appeal’s judgment as regards the applicant’s conviction, but quashed his wife’s conviction, remitting that part of the case to the Court of Appeal for fresh examination. The Supreme Court found that proof of the applicant’s guilt had been duly established during the trial in the first-instance court and the Court of Appeal and that his actions had been properly classified under criminal law. Citing Article 419.4 of the Code of Criminal Procedure, the Supreme Court’s decision stated that the examination of the case was possible in the absence of the applicant and his lawyer given that the lawyer had failed to appear despite having been duly notified and the applicant, who was serving his prison sentence, had made no request to attend.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Reasonable time);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;Luis López Guerra

The applicant was born in 1940 and lives in Tambov.

On 8 August 2003 the Justice of the Peace of the 1st Court Circuit of the Leninskiy District of the Tambov Region ordered Municipal unitary enterprise of housing maintenance No. 1 («УМПЖХ №1», hereinafter “debtor company”) to pay 348 euros (EUR) to Ms Lisova Aleksandra Semenovna. The judgment became final on 19 August 2003.

On 11 September 2003 the Bailiffs’ Service initiated enforcement proceedings.

Following Ms Lisova’s death, on 08 July 2005 the Justice of the Peace of the 1st Court Circuit of the Leninskiy District of the Tambov Region replaced the initial applicant, Mrs Lisova, by her successor, Mrs Karpesh, in the enforcement proceedings.

The award was subsequently index-linked in the course of the enforcement proceedings by the decisions of 02 March 2006 (final on 14 March 2006), 09 April 2007 (final on 20 April 2007), 09 January 2008 (final on 22 January 2008), and 27 March 2008 (final on 08 April 2008). Each decision replaced and cancelled the previous one.

The award has not been paid to the applicant to date.

The company was incorporated as a municipal unitary enterprise set up by a decision of the local administration and provided housing maintenance services. The company had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it by the administration in order to carry out their statutory activities.

On 30 May 2008 the debtor company was declared insolvent and liquidation proceedings started. As a result, the company was liquidated on 27 May 2009.


Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1965 and lives in Ulan-Ude.

In 2007 the applicant’s wife, N., gave birth to a daughter, A.

In 2010 the applicant and N. divorced.

On 18 January 2011 the Oktyabrskiy District childcare and guardianship authority (hereafter “the childcare authority”) determined that A. would reside with the applicant during even weeks and with her mother, N., during odd weeks. In January, June, July and August A. was to live with the applicant for one week of his choice per month.

On 22 March 2011 the applicant discovered several bruises on A.’s body. Suspecting that she had been beaten and sexually abused by N.’s new partner, he refused to return A. to N.

During the following year A. lived with the applicant and her paternal grandmother. On several occasions the applicant allowed N. to visit A. in his presence.

On 25 March 2011 the applicant complained to the police and to the Oktyabrskiy District investigation committee that his daughter A. had been beaten and sexually abused by N.’s partner. The investigation committee opened a pre-investigation inquiry.

The applicant and N. both applied to the Oktyabrskiy District Court of Ulan-Ude for a residence order in respect of A.

On 25 April 2011 A. was questioned by an investigator in the presence of a psychologist, in the framework of the pre-investigation inquiry. A. stated that she wanted to live with the applicant because he was nice, whereas her mother and her mother’s new partner had treated her badly. She was again questioned by the investigator in the presence of a psychologist on 27 June and 3 August 2011, and confirmed her previous statements.

On 19 May 2011 the Oktyabrskiy District Court granted N.’s application for a residence order and refused the applicant’s similar application. The court found that both parents had taken an equal share in A.’s upbringing. They both had sufficient financial means and their standard of living was equally satisfactory. However, taking into account A.’s gender and age, it was preferable for her to be brought up by her mother. A child under the age of twelve could be separated from the mother only in exceptional circumstances. No such circumstances had been established in the present case. N. was employed and had sufficient income. There was no evidence of negligence or mistreatment on her part. A.’s bruises could have been sustained as a result of a fall or in the course of a game, and were insufficient to prove mistreatment. A criminal inquiry into the allegations of mistreatment was still pending. The court-appointed expert psychologist’s finding that A. was emotionally closer to her father and paternal grandmother than to her mother could not be taken into account in the absence of established evidence of mistreatment by the mother. The court concluded that it was therefore in A.’s best interests to live with her mother.

On 20 May 2011 the childcare authority noted that A. wished to live with her father. An inspection of the applicant’s flat had revealed that he had created all the appropriate conditions for A.’s normal development. The childcare authority therefore found that A. should reside with the applicant.

On 22 June 2011 the Supreme Court of the Buryatiya Republic upheld the judgment of 19 May 2011 on appeal. It found that the District Court had failed to consider the childcare authority’s findings and opinion and had therefore committed a serious breach of the procedure prescribed by law. However, given that the childcare authority’s opinion was advisory rather than binding on the court, the failure to consider that opinion did not warrant reconsideration of the judgment, which was correct in substance.

On 30 June 2011 the Oktyabrskiy District investigation committee opened criminal proceedings into the alleged mistreatment and sexual abuse of A.

As the applicant continued to retain A., N. applied to the Oktyabrskiy District Court for an injunction requiring the applicant to return A. to her.

On 29 November 2011 the Oktyabrskiy District Court allowed N.’s application. It found that the applicant had refused to comply with the judgment of 19 May 2011, upheld on appeal. It ordered that, in compliance with that judgment, the applicant should return A. to N. On 30 January 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal.

On an unspecified date the applicant applied for a second time to the Oktyabrskiy District Court for a residence order in respect of A. At the same time he applied for a restriction of N.’s parental authority over A.

On 23 January 2012 the Oktyabrskiy District Court dismissed the application and confirmed its previous order to the effect that A. should live with her mother, citing the same reasons as in the judgment of 19 May 2011. The court found no reasons to restrict N.’s parental authority over A. On 2 April 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal.

On 13 March 2012 N. kidnapped A. from the applicant. She has since prevented the applicant from seeing his daughter.

On 20 March 2012 A. was again questioned by the investigator in the presence of a psychologist. She said that she liked living with her mother and that her mother was treating her well.

On 23 April 2012 A. was examined by a panel of psychologists appointed by the investigator in the framework of the criminal proceedings. They found that A. was not suffering from any learning difficulties or disorders. However, owing to her age, level of development and susceptibility to external influence, she was unable to give reliable evidence about her relationships with her mother, her father or her mother’s new partner.

On 30 April 2013 the Oktyabrskiy District investigation committee discontinued the criminal proceedings, finding that there was no evidence of mistreatment or sexual abuse and that the bruises could have been caused by a fall. According to the experts, A.’s statements that her mother’s partner had treated her badly were unreliable. The witnesses had been unable to provide any information confirming the applicant’s allegations of child abuse.

The applicant applied for a third time to the Oktyabrskiy District Court for a residence order in respect of A. He also asked that N. be deprived of parental authority over A.

While those proceedings were pending, N. lodged an application with the Oktyabrskiy District Court, contesting the applicant’s paternity of A. She requested that his name be deleted from A.’s birth certificate and that A.’s family name and patronymic be changed.

On 23 July 2012 a DNA paternity test established that the applicant was not A.’s biological father.

On 18 September 2012 the Oktyabrskiy District Court allowed N.’s claims. It found that the applicant was not A.’s biological father and terminated his parental status in respect of her. It ordered that the applicant’s name be deleted from A.’s birth certificate and that A.’s family name and patronymic be changed to a family name and a patronymic not connected with the applicant. On 19 November 2012 the Supreme Court of the Buryatiya Republic upheld that judgment on appeal.

On 16 January 2013 the Oktyabrskiy District Court discontinued the proceedings concerning the applicant’s application for a residence order and an order to deprive N. of parental authority over A. The court reasoned that as the applicant was not A.’s biological father, he had no standing under domestic law to lodge civil actions concerning parental authority over A. or A.’s residence arrangements. The applicant was absent from the hearing because he was ill.

On 27 February 2013 the Supreme Court of the Buryatiya Republic upheld that decision on appeal. According to the applicant, he had not been informed of the date of the hearing. Nor was he informed about the appeal decision until 12 March 2013.

On 31 May 2013 a judge of the Supreme Court of the Buryatiya Republic refused to refer a cassation appeal lodged by the applicant to the presidium of that court for examination, finding that no significant violations of substantive or procedural law had influenced the outcome of the proceedings. It noted, in particular, that there was proof in the case file that a letter had been sent to the applicant on 7 February 2013 informing him of the date of the appeal hearing. Information about the hearing date had also been published on the court’s official website. The applicant had therefore been duly informed of the date of the appeal hearing.


Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Mr Saleh Mohamed Hussein, claims that he is a Somali national, who was born in 1986 and is currently residing in the Netherlands. He was represented before the Court by Mr J.W.F. Noot, a lawyer practising in Dordrecht.

The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs.

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

The applicant applied for asylum in the Netherlands on 27 October 2009, claiming that he hailed from Mogadishu, Somalia and belonged to the minority Reer Hamar population group and the Ashraf clan. When he was three years old, he and his family had moved to Saudi Arabia where he had resided illegally. In 2009, the Saudi Arabian authorities had expelled the applicant to Mogadishu. His mother had accompanied him because he did not know anybody in Mogadishu. They had moved in with an uncle of the applicant’s. As the applicant was unknown to most neighbours, he had been suspected of involvement in al-Shabaab. The applicant had been abducted by some neighbours. After a ransom had been paid by his family he had been released and he had fled the country. He feared that, upon return to Somalia, he would fall victim to human rights violations by one of the warring factions there. He also claimed that, as a member of a minority clan, he had a higher risk of falling victim to human rights violations.

By decision of 15 July 2010 the Minister of Justice (minister van Justitie) rejected the asylum application, considering that the applicant’s account lacked credibility. The Minister held that the applicant had failed to establish his nationality and identity. The applicant had been unable to describe how he had been identified as a Somali national by the Somali consular authorities in Saudi Arabia. In this respect it was noted that the applicant had stated that the only Somali words he knew were ‘hello’ and ‘good afternoon’. He had further claimed that the conversation with the consular authorities had been conducted in Arabic. It was thus considered implausible that the consular authorities had been able to determine the Somali origins of the applicant. He had further been unable to describe the airports in Jeddah and Mogadishu.

The Minister further disbelieved the account of the applicant’s departure from Mogadishu. The applicant had claimed that he had been on a direct flight from Mogadishu to Nairobi, Kenya. However, according to country of origin information all flights from Mogadishu to Nairobi had to make a safety stop at Wajir, Kenya. The applicant had not mentioned this stop.

The applicant’s appeal was dismissed by the Regional Court (rechtbank) of The Hague sitting in Middelburg on 26 May 2011. His further and final appeal was dismissed on summary grounds by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) on 29 August 2012.

On 26 September 2012, a report of a linguistic analysis of the applicant’s speech concluded that he spoke deficient Somali with a Reer Hamar accent; that Somali was not his first or dominant language; and that he had grown up in a diaspora community where (Reer Hamar) Somali was spoken.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in 1947 and lives in Smederevo.

The applicant was employed by “HP Fagram DP”, a socially-owned company based in Smederevo (hereinafter – “the debtor”).

On 30 September 2003 the Smederevo Municipal Court ordered the debtor to pay the applicant certain sums in respect of salary arrears, social security contributions and procedural costs.

On 22 October 2003 the judgment became final.

On 9 January 2004 the applicant lodged an application for the enforcement of the above court decision with the Smederevo Municipal Court.

On 17 March 2003 the court allowed the application and issued an enforcement order.

On 1 September 2004 the Požarevac Commercial Court opened insolvency proceedings in respect of the debtor, which led to the ongoing enforcement proceedings before the Smederevo Municipal Court being stayed.

In 22 November 2004 the applicant duly registered a claim for the sums specified in the judgment referred to above.

On 26 April 2005 the Commercial Court accepted the applicant’s claim. His right to separate settlement from the immovable property of the debtor was contested and he was instructed to initiate separate civil proceedings in order to secure his right to separate settlement of his claim.

The applicant did not initiate separate civil proceedings.

On 3 April 2008 the Commercial Court adopted the decision on final distribution of the company’s insolvency assets, classifying the applicant into the fourth sequence of payment. In the course of the insolvency proceedings the final judgment in the applicant’s favour was partially enforced.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Aleksandrs Vdovins, is a Latvian national who was born in 1974 and lives in Valka.

The Latvian Government (“the Government”) were represented by their agent Mrs I. Reine, who was succeeded by Mrs K. Līce.

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

On 23 May 2001 at 11 p.m. the police received information about an incident in the centre of Riga in which S. had been beaten up and robbed.

According to the pre-trial statements of two police officers (A.V. and Z.O.), when they arrived at the scene the patrol team saw the victim S. lying on the ground and six young men running away. One of them, the applicant, had dropped a black jacket. S. pointed to the group as the perpetrators, so the police arrested all six of them and took them to a police station.

According to the pre-trial statements of the victim S., while he was standing outside a nightclub in the centre of Riga, three young men commenced a conversation with him and afterwards they started walking down the street together. Then two of them grabbed S. by the hands (one of them, P., had his arm in a splint) and tried to drag the victim away. The victim resisted and the man with the splint hit him. Afterwards the victim was kicked in the head and body, and robbed of his jacket and a watch. When the police arrived the victim drove around with a police officer, looking for the perpetrators. The victim saw his jacket next to a group of six men. With the exception of the man with his arm in a splint he could not describe those who had inflicted injuries on him.

The victim, the applicant and two other arrested persons (Ka. and Kv.) were taken to the police station in the same car. During the first identity parade, set up soon after the arrest, the victim did not recognise the applicant as the perpetrator.

On 31 May 2001, during a second identity parade, the victim for the first time recognised the applicant and P., who had his arm in a splint, as the perpetrators of the attack. The latter two had spent a week in custody, and they were presented in the identity parade together with people brought in from the street.

On 20 June 2001 the applicant was confronted with the victim. The latter had identified him as one of the perpetrators of the attack.

In September 2001 a bill of indictment was drawn up. The applicant and another person, P., were charged with aggravated theft, committed as a group. It stated, notably, that on the critical date the applicant and P. had forced the victim to follow them. Then, with the aim of robbing him, P. had hit the applicant in the face and the applicant had kicked him on the body, inflicting minor bodily injuries on him. Afterwards they had both taken off the victim’s jacket and watch, causing him total material loss in the amount of about 50 euros (EUR). Both defendants denied the offence.

During the pre-trial investigation the other four members of the group of six were questioned. In May 2001 Kv. and Ka. testified that on the critical date the defendants and another person from their group had been talking to a man. The latter had shown no resistance to being led away down the street. After a couple of minutes the defendants came back; the applicant was carrying a black jacket. When the police arrived the jacket was on the ground. Ka. testified that he had not seen anyone drop the jacket but that it could have been the applicant. According to Kv., when the police arrived the applicant dropped the jacket. Later, when questioned by a prosecutor, Kv. and Ka. upheld and added to the statements they had made during the police questioning.

During court hearings in November 2001 and March 2002 the defendants cross-examined the victim, both police officers (A.V. and Z.O.), and four other witnesses (Ka., Kv., R.P. and R.L). The four other witnesses were all part of the group which had initially been arrested, and R.P. and R.L. had been summoned to the court at the defendants’ request.

During the hearing defence witnesses R.P. and R.L stated, inter alia, that they had not been with the defendants the whole time.

On 20 March 2002 the Riga Central District Court acquitted the defendants and released them from detention. As far as the applicant was concerned, the lower court indicated, in particular, that the scene of the alleged crime had not been identified, and the victim could not indicate who had attacked him, with the exception of co-defendant P.; that his statements concerning the applicant’s clothes and height did not match those of the applicant; and that the victim had not stated that the applicant had beaten him and on what parts of the body; similarly it was not stated that the applicant had stolen the victim’s belongings. Finally, the court refused to admit in evidence the results of the identity parade and also refused to cross-examine the victim and the defendants. It emphasised that the record of the identity parade had been drawn up contrary to the domestic law, in that the defendants were presented in the parade after having spent a week in custody, and their clothes and appearance differed considerably from those of the others in the parade; also, no photographs were taken of those in the parade and there was no statement by the victim confirming which characteristics had caused him to recognise the defendants.

The prosecution lodged a protest reiterating the arguments set out in the bill of indictment. They considered that the lower court had failed to give weight to the statements of the victim and witnesses Kv., Ka. and both police officers.

The appellate court summoned the victim and two witnesses, Kv. and Ka. The latter failed to attend the hearing. Invited by the court to express an opinion about whether the court could commence adjudication in the absence of the witness Ka., the applicant confirmed that he had no objection.

Questioned during the appellate hearing about the circumstances of the attack, the victim stated that although it was dark, at the moment of the attack he had had a clear view of the faces of his attackers, but that immediately after the arrest he could not recognise them, because it was dark and the co-defendant’s splint was not visible.

Witness Kv. retracted his statements given to the prosecutor during the pre-trial investigation. The statements of the police officers were read out.

Before summing up, defence counsel argued that the objection was also based on the statements of the two police officers, who should be summoned to the appellate court hearing. Without giving reasons, the defence also asked for R.P. and R.L. to be summoned.

The appellate court dismissed the defence’s requests for witnesses to be heard, arguing that they had all already been cross-examined. The defence did not object to the court investigation being brought to a close.

On 27 October 2003 the Rīga Regional Court convicted the defendants and sentenced the applicant to eight years’ imprisonment.

The court preferred to give weight to Kv.’s statements given during the pre-trial investigation, because, as a friend of the applicant’s co-defendant, his statements given during the hearing of the appellate court in the presence of his friend were not to be treated as objective. In relation to the statements given by Ka., the court noted that he had not changed the statements he had made during the pre-trial investigation and before the court of first instance, and that his statements did not differ in substance from those given by Kv. The court also did not consider that there were contradictions in the victim’s statements and that it was not crucial that he could not tell precisely which defendant had kicked him and how many times. The court gave weight to the fact that during the court hearing the victim could describe the situation and explained that he had tried to cover his face instead of observing the actions of each perpetrator. In connection to the varying statements about the exact place of the fight, the appellate court observed that it was explained by the fact that neither the victim nor the defendants lived in Riga. As regards statements about the visual description of the perpetrator’s clothes, the court did not consider the slight differences in the statements crucial, given that the events took place at night. The court said that even without the identification parade the defendant’s guilt had been proved by other evidence. The court noted that the victim had recognised the applicant during the confrontation.

In their appeal on points of law the applicant and his counsel based their case on the shortcomings identified by the lower court. In connection to the witnesses’ statements the applicant noted

“...the court investigated the case incompletely. [It] did not summon all the witnesses, and the statements they had given before the lower court were not read out and [were not] taken into account”.

On 13 January 2004 the Senate upheld the appellate court’s judgment. It noted that the appellate court had excluded from the evidence the contested records of the identification parade. The Senate noted that the appellate court had analysed in detail and assessed all the statements provided by the victim S., as well as the statements of Kv. provided during the pre-trial investigation and during the court hearing, and also the statements of Ka. which had been read out during the hearing, and other evidence described and analysed by the appellate court.

It noted that the question concerning the defence’s request in relation to witnesses had been examined and decided in accordance with the law.

Article 275 of the Code provides that when a court session is opened the presiding judge is to ask the defendant and his representative whether they request new witnesses to be summoned or the submission of new evidence and inclusion thereof in the criminal matter. The person who submits a request shall specify particular circumstances which should be clarified by the questioning of witnesses or the submission of other evidence. The court shall ask the opinions of other participants in the proceedings concerning each request in accordance with Article 243 of this Code, and shall make a ruling. Refusal of the request shall not deprive the person whose request has been refused of the right to submit the request during the court hearing.

Article 442 sets out that the appeal court may summon witnesses who have testified before the first-instance court to a court session if the appeal court deems it necessary.

Article 443 stipulates that parties to appeal proceedings have the right to request witnesses to be summoned who have not been heard by the first-instance court. Such witnesses may be summoned on the appeal court’s own initiative.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant, who was born in 1952, is a farmer and the head of a farming company, A. He lives in Borzna.

In the winter of 2001, S.Sh., the newly-appointed head of a private agricultural company, D., requested that the law-enforcement authorities investigate the suspected misappropriation of D.’s property. In particular, S.Sh. stated that in the autumn of 2000, K., another agricultural company, had written off a debt of 15,517 Ukrainian hryvnyas (UAH) owed to his company, although the latter had not received any payment.

On 17 and 21 March 2001 the applicant, interviewed in connection with the inquiry into the case, informed the police that in the autumn of 2000 he had received twenty concrete slabs from K. in settlement of a debt to D., of which he was a shareholder. The applicant said he had used the slabs to construct a trench for A., to which D. had also owed money. D.’s former director had been aware of that fact. The transaction had not been finalised on the books as there had been disagreements between the parties over the price of the slabs and on various procedural issues.

On 3 May 2001 the Borznyanskiy district prosecutor (the “district prosecutor”) instituted criminal proceedings against the applicant on suspicion of fraudulently appropriating slabs that he had received on D.’s behalf.

On 6 June 2001 a police investigator called the applicant in for questioning as a witness in connection with the case, but rejected his request to be assisted by a lawyer during the questioning. According to the applicant, his lawyer had accompanied him to the investigator’s office but had not been allowed to be present during the questioning.

In the course of the questioning the applicant again admitted to receiving the slabs and using them on his farm. He also explained that the transaction had not been finalised in the accounts because the parties had had debts to each other and had still been negotiating over how to write those debts off. In any event, the directors of K. and D. had been well aware that the applicant had used the slabs on his own farm and had never objected to that use. As can be seen from the copy of the record of the questioning submitted to the Court, it was apparently filed as pages 82 and 83 in the domestic case file.

On 5 July 2001 the applicant was officially indicted for the fraudulent appropriation of twenty concrete slabs transferred by the K. company to the D. company in payment of a debt. On the same date, the applicant was questioned as a defendant in the presence of his lawyer but he refused to testify and relied on his right to silence.

On 11 July 2001 the applicant was informed of the completion of the pre-trial investigation and committed to stand trial in the Borznyanskiy District Court (“the District Court”).

On an unspecified date the applicant presented the authorities with an agreement dated 14 April 2001 and signed by the directors of K., D. and himself. According to that document, the three parties had agreed that the value of the twenty slabs received by the applicant was UAH 2,000 and that the transfer of the slabs to the applicant covered the relevant portion of K.’s debt to D. and D.’s debt to the applicant’s farm.

By September 2001 the above agreement had been reflected in all three parties’ documents relating to accounting, tax and other matters.

In the course of the trial, the District Court questioned the applicant and numerous other individuals, including the directors and accountants of D. and K., and examined various documents. As can be seen in the minutes of the court hearings submitted by the Government, the documents examined in the course of the trial included “a letter from the farming company”, included as page 65 in the domestic case file.

During the trial, the applicant, represented by a lawyer of his own choice, reiterated that he had had no fraudulent intent in taking possession of the slabs and that the three parties had decided on all the details of the transaction in April 2001 (that is, before the criminal proceedings had been instituted against him). The transaction had also been properly accounted for in all the paperwork by September 2001 (that is, before the trial had commenced). The delay in finalising the papers had been due to various objective circumstances, including initial disagreements between the parties concerning the scope of the transaction and a fair price for the slabs, the replacement of D.’s director in November 2000, and a lengthy break in the functioning of D.’s accounts office.

On 13 August 2003 the District Court found the applicant guilty of the charges. It found that although the case had eventually been settled, there was sufficient evidence that the applicant’s initial intent had been fraudulent. In justifying that finding, the court noted, in particular, as follows:

“As regards the arguments by the defendant Loboda G.I. that ... the three-party agreement had been concluded ... before the initiation of the criminal case, and that the managers of the three entities had agreed on the price and procedure for the transfer of the concrete slabs, the court cannot accept them, as they contradict the case file materials and the evidence examined in court. It appears from the case file materials that the above-mentioned agreement was submitted by Loboda G.I. at the end of the pre-trial investigation. It can be seen from the testimony of the witnesses ... that [K.’s debt to D.], amounting to UAH 15,517, had been reinstated after having been written off ... According to ... order no. 6 of August 2001 the slabs transferred were valued at UAH 2,000 and [K.’s] debt to D. as of 1 September 2001 remained at UAH 13,517.

The aforementioned evidence shows that an understanding between the managers of [K.], [D.] and [A.] concerning the price and procedure for the transfer was reached after the criminal case had been instituted, in the course of the pre-trial investigation. These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001”.

The District Court then granted the applicant an amnesty and released him from any punishment.

On the same date the court issued a separate ruling (окрема постанова) in which it drew the attention of the district prosecutor to various procedural shortcomings in the preparation of the case for trial. It noted, in particular, as follows:

“On 3 May 2001 the [district prosecutor] initiated criminal proceedings against [the applicant]. On 6 June 2001 the [police investigator] ... questioned [the applicant] as a witness, despite ... sufficient evidence ... for him to be questioned as a defendant, in compliance with all the requirements of the Code of Criminal Procedure of Ukraine ...

With regard to the said breaches, the testimony [of the applicant] given ... during his questioning as a witness on 6 June 2001 was not taken into account by the court as evidence in the present case ....”

It appears from the case-file materials that on an unspecified date the applicant filed an appeal against his conviction, which was accepted for examination. No copy of this appeal has been provided to the Court.

On 27 August 2003 lawyer I. also filed a separate appeal in the applicant’s interests. In this appeal he challenged, primarily, the substantive conclusions of the trial court and contended that the applicant’s actions had not been criminal.

On 23 October 2003 the Chernigiv Regional Court of Appeal (“the Court of Appeal”) upheld the applicant’s conviction. Referring to statements by various witnesses and the documentary evidence on file, it concluded that the applicant had not made any reasonable and meaningful efforts to regularise his appropriation of the slabs until the criminal proceedings had been instituted.

The applicant lodged a cassation appeal, in which he complained, in particular, that his right to mount a defence had been breached on account of his being questioned without a lawyer on 6 June 2001. He argued that it was clear from the phrase, “These findings correspond to the declarations by the head of the farming company Loboda G.I. contained on pages 65 and 67 of volume 1 of the case, dated June 2001” in the District Court’s judgment of 13 August 2003, that the testimony he had given on 6 June 2001 had in fact been relied on for his conviction, in spite of the District Court’s formal decision to exclude the record of that questioning from the case file.

On 28 October 2004 the Supreme Court of Ukraine examined submissions by the applicant, in the absence of both the applicant and his lawyer. However, the prosecutor was present and advised the Panel to reject the applicant’s arguments.

On the same date the Supreme Court rejected the applicant’s cassation appeal, finding that the lower courts had correctly assessed the facts and applied the law. Without addressing directly the applicant’s complaint concerning the breach of his right to defence, it made the following general remark concerning the procedural fairness of the proceedings:

“... no breaches of the provisions of the criminal-procedure law in the course of pre-trial investigation as well as during the court proceedings can be identified”.

A copy of the Supreme Court’s ruling of 28 October 2004 was sent to the applicant by post on 29 August 2005 and, according to him, was received on 29 September 2005.

At various times the applicant made unsuccessful attempts to institute criminal proceedings against the investigator who had questioned him on 6 June 2001, and to begin administrative and civil proceedings to challenge various purported procedural omissions on the part of the District Court judge in his case.


Remainder inadmissible;No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-2 - Compulsory labour;Forced labour)

Alena Poláčková;Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1946 and is currently in detention in Regensdorf.

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

By a judgment of 4 July 2003 the Court of Appeal (Obergericht) of the Canton of Zürich sentenced the applicant to four years and four months’ imprisonment for multiple sexual acts with minors and multiple acts of sexual coercion.

On 1 March 2010 the Court of Appeal suspended the execution of the custodial sentence, replacing it with preventive detention (Verwahrung) designed to prevent the applicant from reoffending.

On 6 December 2011 the applicant requested exemption from the requirement to work in the context of custodial sentences and measures. On 19 March 2012 the Judicial Enforcements Office of the Canton of Zürich refused his request.

By a decision of 29 May 2012 the competent authority of Pöschwies Prison placed the applicant under a stricter prison regime confining him to his cell and confiscated his television and computer for fourteen days, on account of his refusal to work. That decision was revoked on 31 July 2012 by the Directorate of Justice and Internal Affairs following an appeal by the applicant.

By a decision of 20 June 2012 the Directorate of Justice and Internal Affairs of the Canton of Zürich dismissed an appeal by the applicant against the decision of 19 March 2012.

On 10 January 2013 the Administrative Court of the Canton of Zürich dismissed an appeal by the applicant against the decision of 20 June 2012.

On 15 February 2013 the applicant appealed to the Federal Court, arguing in particular that Articles 74, 75 and 81 of the Criminal Code had been wrongly applied, and alleging a violation of his human dignity and personal freedom within the meaning of Articles 7 and 10 respectively of the Federal Constitution (see paragraphs 15-17 below).

In judgment 6B_182/2013 of 18 July 2013 (published under the number ATF 139 I 180), which was notified to the applicant on 31 July 2013, the Federal Court dismissed the applicant’s appeal.

The Federal Court found that the requirement for prisoners to work was not in itself in breach of human rights, and specifically of Article 4 of the Convention (point 1.5 of the reasoning).

Hence, the purpose of compulsory work in the context of the execution of custodial sentences and measures was to develop, maintain or promote prisoners’ capacity to resume working life after their release. In the Federal Court’s view, the requirement to work contributed to the execution of sentences and fostered appropriate social behaviour and the capacity to avoid reoffending. It was also designed to occupy prisoners, lend structure to their daily lives and maintain order in the institution (point 1.6).

The Federal Court added that, as prisoners got older, greater emphasis was placed on the obligation to provide them with the necessary support (necessary support principle) and on reducing the negative impact of detention (principle of least possible harm). In the case of prisoners over the age of 65, the requirement to work served the purpose of avoiding the harmful effects of detention, for instance the isolation of persons who had reached retirement age, and preventing mental and physical deterioration. The work had to be tailored to the prisoner’s abilities, training and interests, and it was therefore necessary to avoid placing an excessive burden on prisoners over the age of 65. Lastly, in the case of persons who were less physically and mentally able, the occupation could take the form of therapeutic activity (point 1.6).

The Federal Court further held that the Old-Age and Survivors’ Insurance Act was designed to guarantee a living income to persons who were no longer able to work because of their age. However, work performed in connection with the execution of a custodial sentence or measure was not comparable to an employment contract on the competitive labour market, but rather should be regarded as an occupation within a closed system. The Federal Court therefore held that the rules governing persons of pensionable age did not apply to prisoners (point 1.8).

The Federal Court also found that an occupation carried out on a voluntary basis was not apt to fulfil the aims pursued by the requirement to work in prison (point 2.6.2).


Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicants were born in 1961, 1963 and 1966 respectively and live in the town of Taganrog.

On 2 July 2001 the Neklinovskiy District Court of the Rostov Region found the applicants guilty of various offences but declared that they need not serve their respective sentences because the case was time-barred. On 2 October 2001 the Rostov Regional Court upheld the judgment on appeal.

On 31 January 2002 the Presidium of the Rostov Regional Court quashed by way of supervisory review the decisions of 2 July and 2 October 2001 and discontinued criminal proceedings against the applicants. It found that the courts had not been in a position to decide on the applicants’ guilt because the whole case had been time-barred.

The applicants sued the Ministry of Finance of the Russian Federation for, among other things, compensation in respect of nonpecuniary damage in connection with their prosecution.

In its judgment of 1 March 2005 the Taganrog Town Court of the Rostov Region rejected their claims. It reasoned as follows:

“... The court finds that, since the applicants’ guilt of the commission of the abovementioned crimes was established, the use of the measure of restraint was justified. This being so, the court has no reason to grant the applicants’ claims for compensation in respect of the non-pecuniary damage resulting from their unlawful detention and the obligation not to leave their usual place of residence. ...”

On 11 May 2005 the Rostov Regional Court upheld the judgment of 1 March 2005 on appeal. It stated that:

“ ... The first instance court, in reaching its decision refusing to grant the applicants’ claims for compensation in respect of non-pecuniary damage, correctly assumed that the decision of the Presidium of the Rostov Regional Court dated 31 January 2002 cleared them of liability on non-exonerating grounds. In the court’s view, since the applicants’ guilt of the commission of the above-mentioned crimes was established, the application of the measure of restraint during the investigation was justified.

The court’s conclusion is a correct one, made following the examination and proper assessment of the legally relevant...”


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant was born in 1948 and lives in Plovdiv.

In January 2000 the applicant, who had been diagnosed with invasive ductal carcinoma, underwent mastectomy of her left breast.

In the beginning of 2002 the applicant began to experience pain in the left side of her chest, for which in February 2002 she underwent a bone scintigraphy. The scintigraphy found a pathological uptake of radioactive tracer in her sixth left rib. Another bone scintigraphy in May 2002 confirmed that finding. However, a computerised axial tomography scan carried out later in May 2002 showed a suspected metastasis in the area of the eighth and ninth left ribs rather than the sixth one. The doctor who performed the scan recommended a further bone scintigraphy. Two such scintigraphies, in August 2002 and in January 2003, showed the same findings as the previous two. A radiography in February 2003 showed a suspected pathological lesion in the sixth left rib. But a second computerised axial tomography scan later in February 2003 found again that the suspected metastasis was in the area of the eighth and ninth left ribs.

On 26 February 2003 a panel of five medical doctors decided that the suspected metastasis was to be surgically removed.

Worried that the exact location of the suspected metastasis had not been fully established, the applicant asked the surgeon who was to operate on her, Dr K.M., whether further tests were required before the operation. According to the applicant, he told her that the available imaging results were sufficient and that he would be able to identify the metastasis once he had opened up her thorax. The applicant then approached the medical doctor who had performed the mastectomy in January 2000 (see paragraph 6 above). He told her that the suspected metastasis was very small, could not be localised visually, and had to be precisely localised before any surgery. The applicant shared her misgivings in that respect with Dr K.M. and reiterated her request for further tests before the operation. However, he reassured her that the available imaging results were sufficient.

Having assented to the operation by signing an informed consent form, the applicant underwent surgery on 13 March 2003. In the course of that surgery Dr K.M. removed fragments of her fourth and fifth left ribs, rather than her sixth, eighth or ninth left ribs. However, the operation report erroneously said that he had removed fragments of the eighth and ninth ribs. When talking to the applicant the next day, Dr K.M. likewise told her that he had removed fragments of those ribs, and that he had inspected her lungs.

The removed rib fragments were sent for histological testing, the results of which were ready on 25 March 2003 and showed that they did not contain cancerous tissue.

When seeing her hospitalisation report upon her discharge from hospital on 24 March 2003, the applicant was surprised to find that her sixth left rib had been left in place and that, instead, fragments of her fourth and fifth left ribs, where no lesions had been detected by the scans and where no cancerous tissue was present according to the histological tests, had been removed. She approached Dr K.M., who denied having made a mistake but agreed to prescribe a further bone scintigraphy, which was carried out in September 2003 and found an increased uptake of radioactive tracer in the sixth left rib and also in the fourth and fifth left ribs. A computerised axial tomography scan carried out the same month found that parts of the fourth and fifth left ribs had been removed and that the sixth left rib was fractured.

The applicant asked Dr K.M. to explain all that, and he apparently again denied having made any mistake.

For years after the operation, the applicant was undergoing radiotherapy and hormonal therapy.

In late 2003 the applicant complained about the operation to the Ministry of Health. The Ministry ordered the Plovdiv Regional Health Inspectorate to carry out an inquiry and, based on its findings, on 23 January 2004 informed the applicant that in view of the inconclusive results of the medical imaging tests, the operating team had chosen to make a wide opening in the thorax, enabling them to inspect the left side of the thoracic wall from the fourth to the ninth ribs. They had decided to remove parts of the fourth and fifth ribs because they had observed macroscopic changes on them; they had not found pathological changes in the sixth rib. The reference to the eighth and ninth ribs in the operation report had been a clerical mistake.

The results of the inquiry, coupled with a complaint filed by the applicant with the hospital, prompted the hospital’s ethical commission to review the case. It did not find any misconduct on the part of Dr K.M.

On 27 January 2004 the applicant brought a claim for damages against Dr K.M. and the hospital in which he was employed, a State-owned limited liability company. She alleged that he had (a) erroneously removed parts of two healthy ribs, the fourth and the fifth on the left, without having obtained her consent; (b) inspected her lungs, which had been unnecessary and unjustified; (c) fractured her sixth left rib; and (d) failed to remove the metastasis, which had been the very purpose of the operation.

On 14 April 2004 the Plovdiv Regional Court admitted a number of medical documents, including the consent form signed by the applicant before the operation. At the request of the applicant, the court ordered an expert report, to be drawn up by an oncologist, nominated by the applicant, a thoracic surgeon, nominated by Dr K.M., and a radiologist, nominated by the court, on a number of points raised by counsel for the applicant. At the request of Dr K.M., the court ordered a second expert report, to be drawn up by another thoracic surgeon.

On 2 July 2004 the court appointed a new oncologist because the one initially chosen had declined the task, ordered the applicant to present herself for examination by the experts, admitted her medical files, and heard as witnesses a surgeon who had taken part in the operation alongside Dr K.M. and another surgeon who had monitored the applicant in the hospital after the operation.

The two expert reports were filed in October 2004.

The report drawn up by the three experts described the different methods for detecting bone metastases, including bone scintigraphy, emphasising that their results had to be assessed cumulatively; said that when operating on cancer patients it was mandatory to inspect adjoining organs by palpation; described the extent, in their view limited, to which the removal of parts of the fourth and fifth left ribs had affected the applicant’s body movements; said that rib fractures were almost inevitable and very frequent in thoracotomies; said that the main principle when operating on cancer patients was that all decisions were to be made by the entire team; and opined that it would be possible to operate on the applicant again, should the need arise.

The thoracic surgeon’s report said that the operating team had not erred from a medical point of view when carrying out the operation, and that the applicant’s prognosis and quality of life would have been much worse had the operation not taken place.

On 20 October 2004 the court heard the four experts, including their answers to questions put by counsel for the applicant. The experts stood by their conclusions. The court then reserved judgment. However, on 5 January 2005 the court, finding that the applicant had not specified whether her preferred defendant was Dr K.M. or the hospital, reopened the proceedings and instructed her to do so.

On 23 March 2005 the court asked the thoracic surgeon to deal with additional questions. He filed his supplementary report in June 2006.

On 17 June 2005 the court admitted further written evidence and heard two witnesses called by the applicant. At the request of counsel for the applicant, it disqualified the thoracic surgeon on the basis that he was employed by the defendant hospital (see paragraph 51 below). The court then appointed a new expert.

In his report the new expert, a thoracic surgeon from Sofia, said that the operating team had not breached good medical practice by removing parts of the applicant’s fourth and fifth left ribs based on their visual and tactile inspection in the course of the operation, bearing in mind that histological testing of bone tissue required time and therefore no histological conclusion could be obtained during the operation; that they had correctly inspected the applicant’s lungs by palpation; that rib fractures in the course of such operations were almost inevitable; that the removal of the rib fragments had not unduly affected the applicant because they had later partly regenerated; and that it could not be categorically said that the applicant had a metastasis in her sixth rib, especially bearing in mind that no further metastases had been detected for many years after the operation.

On 26 October 2005 the court heard the new expert, including his answers to questions put by counsel for the applicant. He explained in detail why he stood by his conclusions. Counsel for the applicant requested a further expert report on the need for the operation. The court turned down the request on the basis that it went beyond the scope of the case.

In a judgment of 11 January 2006, the Plovdiv Regional Court dismissed the applicant’s claim. It referred to the conclusions of the experts but said that it would not take into account the reports drawn up by the expert who had been disqualified (see paragraphs 22, 24 and 25 above). Based on those conclusions, the court found that the precise location of the suspected metastasis had not been fully established before the operation. It went on to say that the allegation that Dr K.M. had removed parts of the applicant’s fourth and fifth left ribs without her consent was baseless, since the written consent form that she had signed before the operation, following an explanation on the proposed procedure, had not specified the rib to be operated upon. The court further held, with reference to the expert opinions, that Dr K.M. had not erred by removing parts of the fourth and fifth left ribs, as he had observed on them tissue which he had suspected to be cancerous. The fact that the histological test had later showed otherwise had not retrospectively rendered his assessment flawed. Nor had he erred by inspecting the applicant’s lungs by palpation – that was standard practice in that type of operation. Furthermore, the evidence did not categorically prove that the applicant still had a metastasis in her sixth left rib, especially bearing in mind the lack of other metastases after the operation. In particular, the experts were agreed that the medical imaging results submitted by the applicant could not be conclusive on that point in the absence of a fresh histological test. Lastly, the court found that it had not been proved that the applicant’s sixth rib had been fractured in the course of the operation and that, in any event, such a fracture was a habitual risk in that sort of operation.

The applicant appealed to the Plovdiv Court of Appeal.

On 10 April 2006, at the request of counsel for the applicant, the court instructed the replacement thoracic surgeon who had acted as expert in the proceedings before the lower court (see paragraph 26 above) to draw up a supplementary report in which to address several points raised in the appeal. Counsel for the applicant also requested a fresh expert report, to be drawn up by three thoracic surgical oncologists. They asked that one of those be Dr V.T. Counsel for Dr K.M. opposed the request, arguing that Dr V.T. would be biased in favour of the applicant because he had known her for years. The court did not order the report.

The thoracic surgeon’s supplementary report said that the applicant had correctly been subjected to surgery; that the operating team had not erred by acting on the basis of the visual and tactile findings made in the course of the operation, especially bearing in mind the uncertain results of the prior medical imaging tests; that there was no universally reliable method to establish the presence of bone metastases; that it had been impossible to mark the precise spot of the suspected metastasis before the operation; and that Dr K.M. had had the requisite qualifications to operate on the applicant.

On 29 May 2006 the court admitted the report and heard the thoracic surgeon. The applicant submitted a private expert opinion which said that the removal of parts of her fourth and fifth left ribs had been needless and erroneous. This opinion could not be admitted because it had not been drawn up by court-appointed experts. The applicant however reiterated her earlier request for a fresh expert report (see paragraph 30 above), and the court acceded to it, appointing as experts two thoracic surgeons, one of whom was Dr V.T., and a thoracic surgical oncologist, all from Sofia.

The experts were divided. Dr V.T., who filed a minority report, was of the view that the operation had not been necessary and had been carelessly carried out, with the removal of parts of two healthy ribs. The other two experts expressed the same views as those set out in the thoracic surgeon’s supplementary report (see paragraph 31 above), and came to the conclusion that the operation had been required and that the operating team had not acted out of line with good medical practice.

On 18 September 2006 the court admitted the reports and heard the three experts, who each stood by the views expressed in their respective reports. On 2 October 2006 it admitted further written evidence and heard the parties’ oral argument.

On an unknown later date in 2006 the Plovdiv Court of Appeal upheld the lower court’s judgment. It said that it credited all expert opinions save that of the expert disqualified in the proceedings before the lower court (see paragraphs 22, 24 and 25 above) and that of Dr V.T. (see paragraph 33 above), which went against the remainder of the evidence. It went on to hold, by reference to the other experts’ conclusions, that the operation had been necessary, and that by removing parts of the applicant’s fourth and fifth left ribs on the basis of a visual and tactile examination Dr K.M. had acted in line with established medical practice, even though it had later transpired that they did not contain cancerous tissue. The court came to the same conclusions as the lower court with respect to the inspection of the applicant’s lungs by palpation, the alleged fracture of her sixth rib, and the question whether it had been proved that she had cancer after the operation (see paragraph 28 above). On that basis, the court held that the medical team which had operated on the applicant had not acted negligently and that it had not been categorically established that the applicant had suffered damage as a result of their actions.

The applicant appealed on points of law.

In a judgment of 29 July 2008 (реш. № 393 от 29.07.2008 г. по гр. д. № 2227/2008 г., ВКС, I г. о.), the Supreme Court of Cassation quashed the lower court’s judgment and remitted the case. It held that that court had failed duly to elucidate the facts and in particular to take on an active role in the formulation of the questions to the experts. It had thus not fully clarified whether it had been necessary to operate on the applicant, whether her sixth left rib had been fractured in the course of the operation, and why it had been necessary to remove parts of her fourth and fifth left ribs. It had likewise failed to explain fully why it had disregarded Dr V.T.’s opinion; simply saying that it went against the rest of the evidence was not enough. On remittal, the lower court had to re-visit these points by taking into account the history of the applicant’s medical condition, and inquire into the need for the operation, the presence of metastases in her ribs, and the alleged worsening of her health after the operation. In so doing, it had to obtain a fresh medical expert report and enable the parties to take part in the formulation of the questions to the experts.

On remittal, the Plovdiv Court of Appeal ordered a fresh expert report, to be drawn up by two thoracic surgeons from Sofia and a medical imaging specialist from Plovdiv.

The report said that it had been imperative to carry out the operation; that the fracture of the sixth rib had been there before the operation and had been due to the rib’s heightened fragility resulting from previous anti-cancer treatment; that the removal of parts of the fourth and fifth ribs had not been an error in view of the inconclusive prior medical imaging data, which had its limitations, and the visual observation of tissue that could at the time have been suspected to be cancerous; that there was no categorical medical data proving the presence of a metastasis in the sixth rib before or after the operation – the bone scintigraphies had only showed an increased uptake of radioactive tracer there – in spite of the medical treatment undergone by the applicant after the operation; that the applicant could be operated upon again, should the need arise; and that the applicant’s medical condition would have been much worse had she indeed had an untreated metastasis in her sixth, eighth or ninth rib for years after the operation.

On 26 November 2008 the court admitted the report and heard the three experts, including their replies to questions posed by counsel for the applicant. The experts stood by their conclusions. The court also admitted other evidence submitted by the applicant.

On 11 May 2009 the Plovdiv Court of Appeal again upheld the lower court’s judgment. It held, by reference to the reports of the three experts that it had appointed, the three experts appointed in the proceedings before the lower court, and three of the experts appointed in the first appeal proceedings (see paragraphs 21, 31, 33 and 39 above), that the operation had been required. It said that it could not follow the opinion of Dr V.T. on this point (see paragraph 33 above) because, even though the question whether it had been advisable to operate in such circumstances could be debated theoretically, the medical team treating the applicant had been faced with an exigently practical situation: the medical imaging tests had showed the presence of a suspected isolated tumour whose exact location was uncertain, and there had been for this reason only one course of action: localise the tumour using the methods of surgical diagnostics and immediately remove it. The court agreed with the experts’ conclusions that the operating team had not erred by removing parts of the applicant’s fourth and fifth ribs on the basis of their suspicion that they contained cancerous tissue, even though that had turned out not to be the case. The mention of the eighth and ninth ribs in the operation report had been a clerical mistake without incidence for the applicant’s health. Again by reference to the experts’ conclusions, the court fully agreed with the lower court’s findings with respect to the inspection of the applicant’s lungs by palpation, and held that it had not been proved that her sixth rib had been fractured in the course of the operation, or that a metastasis in that rib had erroneously not been removed. On that basis, it concluded that Dr K.M. had not acted negligently.

The applicant again attempted to appeal on points of law.

In a decision of 10 November 2009 (опр. № 1537 от 10.11.2009 г. по гр. д. № 1275/2009 г., ВКС, IV г. о.), the Supreme Court of Cassation refused to admit the appeal for examination, holding that there was no divergent case-law on the points of law decided by the lower court and that the appeal in effect concerned that court’s findings of fact.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev

The applicant was born in 1968 and lived in Balezino in the Republic of Udmurtiya prior to his arrest.

On 29 December 2005 the applicant was arrested on drug-related charges and taken to the local anti-narcotics unit. According to the applicant, he was beaten by policemen and then questioned in the absence of a lawyer.

On 8 November 2006 the Balezinskiy District Court of the Republic of Udmurtiya found the applicant guilty and sentenced him to two years and ten months’ imprisonment. It appears that the applicant did not appeal against the judgment.

During several periods between 29 December 2005 and 9 November 2006 the applicant was held in IVS Balezino, a temporary detention facility located in the Udmurtiya Republic.

The applicant submitted that the facility had been overcrowded. There were no windows in the cells where he stayed. The ventilation and water taps did not function. No mattresses or bed linen was available. Moreover, the detainees were not taken outdoor for exercise.

The applicant lodged a number of complaints seeking to bring the above issues to the attention of domestic authorities. In his reply of 5 October 2006 the district prosecutor acknowledged that the conditions of detention in the IVS had fallen short of the legal requirements. He further informed the applicant that he had brought an action against the management of the IVS for their failure to improve the conditions.

On 1 September 2006 the Balezinskiy District Court of the Republic of Udmurtiya granted the district prosecutor’s lawsuit. It found that the conditions of detention in the IVS Balezino had been characterised, inter alia, by a lack of bed linen and a possibility to take a shower and that the detainees had not been afforded daily outdoor exercise.

On 19 October 2006 the regional Ministry of Interior sent a letter to the applicant, acknowledging, in particular, that the detainees kept in the IVS had been deprived of outdor exercise and and lacked bed linen.

After some time the applicant brought a civil claim for compensation in connection with inadequate conditions of detention. By final judgment of 6 February 2008, the Supreme Court of Udmurtiya found that the applicant’s allegations had been substantiated and granted the claim, awarding him 3,000 Russian roubles.