André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant, Ms Anke Eva-Maria Krauss, is a German national who was born in 1979 and lives in Kulmbach. She was represented before the Court by Mr K. Schelling, a lawyer practising in Dornbirn. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Department at the Federal Ministry for Europe, Integration and International Affairs.

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

On 20 May 2009 at 2.08 p.m. the car registered in the applicant’s name was recorded by a radar speed detector as travelling at a speed of 133 k.p.h. on the Tauernmotorway, thus exceeding the speed limit of 100 k.p.h.

On 7 July 2009 the Tamsweg District Administrative Authority (Bezirkshauptmannschaft) issued a provisional penal order (Strafverfügung) and fined the applicant 210 euros (EUR) with a three-day suspended sentence for speeding.

On 20 July 2009 the applicant filed an (unreasoned) objection against this decision, whereupon ordinary administrative proceedings were opened.

On 22 February 2010 the District Administrative Authority dismissed the applicant’s objection and issued a penal order (Straferkenntnis) convicting the applicant of speeding and fining her EUR 210 and EUR 21 in procedural costs.

On 5 March 2010 the applicant appealed to the Salzburg Independent Administrative Panel (Unabhängiger Verwaltungssenat, hereinafter “the IAP”), submitting that the authority had not been in possession of any evidence indicating that she had been driving her car at the relevant time. Relying on Article 6 of the Convention, the applicant further complained that she had been convicted solely because she had made use of her right to remain silent and the privilege not to incriminate herself in administrative criminal proceedings. She did not dispute the speeding offence itself. Furthermore she did not request a hearing.

On 28 April 2010 the IAP asked the applicant, with reference to her general obligation as an accused to cooperate in administrative criminal proceedings, to submit concrete details regarding the driver of the car at the relevant time or to submit any other evidence to prove that she had not been driving the car. On 14 May 2010 the applicant submitted a statement in which, referring to the case Krumpholz v. Austria (no. 13201/05, 18 March 2010), she maintained that she had not been in Austria at the relevant time and that there were several other persons who could have been driving the car.

On 24 June 2010 the IAP held an oral hearing of its own motion. Even though the applicant had been summoned properly, she did not attend the hearing. However, she was represented by her lawyer Mr. K. Schelling, who substituted his mandate to F H & Partner, a law firm practising in Salzburg. The lawyer who was appointed to attend the hearing merely pointed to the written submissions of 14 May 2010 (see paragraph 8 above). According to the minutes of the hearing, no apology was made for the applicant’s absence, nor was further evidence presented and, in particular, the applicant’s representative did not request postponement of the hearing.

On 20 July 2010 the IAP dismissed the applicant’s appeal, upheld the penal order and imposed a further EUR 42 in procedural costs. In its reasoning, the IAP pinpointed the accused’s general duty to cooperate in administrative criminal proceedings, indicating at the same time that the applicant had not contested the speeding but merely denied that she had been driving the car herself. However, she had not submitted any concrete information with regard to the identity of the real driver. In particular the IAP reasoned as follows:

“As the relevant fact, namely that the speed limit had been exceeded, remained undisputed during the proceedings, this can be taken as an established fact. The accused alleges that she was not driving at the time the offence was committed, however she failed to comply with the duty to cooperate in these proceedings. In accordance with Austrian law and the unanimous jurisprudence of the Administrative Court, the accused has the duty to cooperate in the establishment of the facts. In case of traffic-related offences this encompasses the duty of the registered car keeper to be able to provide information on which persons had use of the car at a specific time. As an ultimate consequence of this jurisprudence, the inference may be drawn that the registered car keeper herself was driving the car, as long as she refuses to provide information on the fact of who had been driving the car at a certain time. In the present case the accused did not comply with her duty as she had answered the IAP’s request of 28 April 2010 by merely stating that she had not been in Austria on 20 May 2009. As various family members could have been the driver, she could not define the real driver. Since she had simply denied having been the driver in both instances without submitting any concrete evidence, the authorities were, in the absence of any other evidence, allowed to assume that the accused had committed the offence herself. (...)

The European Court of Human Rights found a violation of Article 6 § 1 and § 2 of the Convention in the case of Krumpholz as it was not permissible to draw an inference solely from the applicant’s refusal to disclose the identity of the driver. Where the authority wished to draw such an inference, an oral hearing for the purpose of obtaining a direct impression of his credibility had to be conducted.

In the present case, the applicant had not been ordered to disclose the full name and address of the person who had been driving her car. Nevertheless the IAP ordered her on 28 April 2010, indicating her duty to cooperate in the proceedings, to provide the authority with information regarding the driver of the car at the relevant time or to submit any evidence showing that she had not committed the offence. (...)

The applicant had solely denied in a very general way that she had been driving the car, without submitting any evidence. As it can be taken as an established fact that the registered keeper of a car has the most intensive relationship to the car and should therefore know who was driving the car at a relevant time, the authorities were allowed to assume – in the absence of any other evidence – that the applicant herself had committed the offence. (...)”

On 27 September 2010 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) claiming that the IAP had not been in possession of any evidence indicating that she herself had been driving her car and had thus wrongly established a prima facie case against her. Therefore, the IAP had not only shifted the burden of proof onto her, but had also violated her right to remain silent. Moreover, as the applicant had not been able to attend the hearing due to a sudden illness for which she had been excused by her representative, the IAP should have scheduled another hearing of its own motion in order to obtain a direct impression of her credibility. Thus, not only had the burden of proof been shifted onto her, but her right to remain silent had also been violated.

On 22 September 2011 the Constitutional Court dismissed the applicant’s complaint. In its reasoning the Court held that the decision was sufficiently reasoned and clear, especially since the applicant had failed to submit any credible evidence in her defence, even though she had had various opportunities to do so in the course of the proceedings. Moreover, the IAP had – contrary to Krumpholz (cited above) – held an oral hearing and had, according to the minutes of the hearing, not been informed about the applicant’s illness, and the legal representative had not requested postponement of the hearing. Therefore the Constitutional Court found that the IAP could not be blamed for not having postponed the hearing of its own motion and for assuming that the applicant had been driving the car herself. Thus, no violation of Article 6 of the Convention was found. Subsequently the case was transferred to the Administrative Court.

On 16 December 2011 the Administrative Court declined to deal with the applicant’s complaint, since the amount of the fine did not exceed the legal value threshold of EUR 750 and no important legal issue was at stake. This decision was served on the applicant’s counsel on 27 December 2011.

B. Relevant domestic law and legislation

Section 51e of the Administrative Offences Act (Verwaltungsstrafgesetz, hereinafter “the AOA”), which was in force at the relevant time, reads as follows:

“(1) The Independent Administrative Panel shall hold hearings in public.

(3) The Independent Administrative Panel may dispense with an appeal hearing if

the appeal is based solely on an incorrect legal assessment, or

the appeal is directed solely against the amount of the penalty, or

the decision being appealed against imposed a financial penalty not exceeding 500 euros

the appeal is directed against a procedural decision

and no party has requested that a hearing be held. Any request by the appellant for a hearing to be held must be made in the appeal itself...”

Section 37 of the General Administrative Procedural Act (Allgemeines Verwaltungsgesetz, hereinafter “the APA”) reads as follows:

“The main purpose of the investigation proceedings is to establish the relevant facts and to provide the parties with the opportunity to exercise their rights and legal interests. (...)”.

Section 45 of the APA reads as follows:

“„(1) Facts, which are evident or facts for which the law draws a presumption regarding their existence, do not have to be proved.

(2) Apart from that, the authority has to assess freely, giving careful consideration to the results of the investigation proceedings, whether or not a given fact is to be accepted as proved.

(3) The parties are to be informed regarding the evidence obtained and be provided with the opportunity to submit a statement.”

Section 103 (2) of the Motor Vehicles Act as amended in 1986 (Kraftfahrgesetz) provides as follows:

“The authority may request information as to who had driven a certain motor vehicle identified by the number plate .... at a certain time or had last parked such a motor vehicle ... at a certain place before a certain date. The registered car keeper (Zulassungsbesitzer’s right to require such information shall take precedence over the right to refuse to give information.”

The duty to cooperate with the authorities has been established by the Administrative Court’s jurisprudence, starting with its decision no. 96/17/20320, issued on 20 September 1996, and ever since has been applied constantly in administrative criminal proceedings. Even though it is the authorities’ duty to establish the relevant facts, the parties are not dispensed from their obligation to contribute to the establishment of these facts. That encompasses the duty to submit equally specific statements in reply and adduce the relevant evidence. The Administrative Court also agreed to draw inferences from an accused’s evasive or unspecified answer, namely that it can be assumed that the registered keeper of a car had himself committed the offence charged (Administrative Court, no. 93/03/0162, decision of 11 October 1995 [quoted in the IAP’s decision]; see also Administrative Court, no. 2001/02/0273, decision of 6 November 2002).


CASE OF RASHAD HASANOV AND OTHERS v. AZERBAIJAN

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicants’ years of birth and home addresses are listed in the Appendix.

The applicants are civil society activists. They are board members of the civic movement NIDA, a non-governmental organisation established by a group of young people in February 2011. According to its manifesto, NIDA wants liberty, justice, truth and change in Azerbaijan and it rejects violence and uses only non-violent methods of struggle. NIDA is governed by a board of members composed of seven people. The first, second and fourth applicants are also co-founders.

In January and March 2013 a number of peaceful demonstrations were held in Baku in protest against the death of soldiers in the Azerbaijani army in non-combat situations. The demonstrations were organised through social media and the applicants and other members of NIDA actively participated in organising and conducting them. One of the demonstrations was scheduled for 10 March 2013 in the city centre.

On 7 March 2013 three members of NIDA (S.N., B.G. and M.A.) were arrested by agents of the Ministry of National Security (“the MNS”). Domestic proceedings concerning the arrest and pre-trial detention of S.N. and M.A. are the subject of other applications pending before the Court (see applications nos. 70106/13 and 65583/13).

On 8 March 2013 the Prosecutor General’s Office and the MNS made a joint public statement to the press, stating that “illegal attempts to undermine the social-political stability established in the country have recently been made by some radical destructive forces” (son dövrlər radikal yönümlü bəzi destruktiv qüvvələr tərəfindən ölkədə bərqərar olmuş ictimai-siyasi sabitliyin pozulmasına yönəlmiş qanunazidd cəhdlər göstərilir). The statement was also public confirmation that S.N., B.G. and M.A. had been arrested for planning to incite violence and civil unrest during the unlawful demonstration scheduled for 10 March 2013. It also said that criminal proceedings had been instituted against S.N., B.G. and M.A. as narcotic substances had been found in their flats. It further stated that nineteen Molotov cocktails had been found in B.G.’s flat, three Molotov cocktails had been found in S.N.’s flat and twenty-eight leaflets worded “Democracy urgently needed (təcili demokratiya tələb olunur), tel: + 994, address: Azerbaijan” had been found in M.A.’s flat. In that connection, the statement said that “it was established during the preliminary investigation that since mid-2012 all three individuals, being addicted to narcotic substances and becoming members of NIDA through the Internet, had actively participated in a number of illegal activities of the organisation and prepared a flammable liquid known as Molotov cocktails, found in their flats” (İlkin istintaqla müəyyən edilmişdir ki, hər üç şəxs 2012-ci ilin ortalarından etibarən internet vasitəsilə “Nida” vətəndaş hərəkatının üzvləri və narkotika aludəçisi olmaqla, təşkilatın bir sıra qanunsuz tədbirlərində fəal iştirak etmiş və yaşadıqları mənzillərdən aşkar edilmiş “Molotov kokteyli” adlanan tez alışan maye onlar tərəfindən hazırlanmışdır).

On the same day NIDA made a public statement, saying that the arrest of S.N., B.G. and M.A. had been politically motivated and had aimed to silence the protesters by creating a feeling of fear among them before the demonstration of 10 March 2013.

It appears from the documents in the case file that on the basis of the investigator’s decision of 8 March 2013 twenty-two Molotov cocktails found in the flats of S.N. and B.G. were submitted for an expert examination, which began on 12 March 2013. Expert report no. 4503/04, dated 10 April 2013 and signed by two experts, concluded that twenty of the Molotov cocktails “were only flammable (incendiary) tools which could not be considered explosive devices”. The report further stated that the two remaining Molotov cocktails could be considered explosive devices because there had been a syringe with gunpowder attached to the bottles.

On 14 March 2013 the first applicant, on 30 March 2013 the third and fourth applicants and on 1 April 2013 the second applicant were arrested and taken to the Serious Crimes Department of the Prosecutor General’s Office.

It appears from the documents in the case file that on the respective dates of their arrest the applicants were informed that they had been charged with an offence under Article 228.3 (illegal acquisition, transfer, sale, storage, transportation and carrying of arm, its accessories, supplies, explosive substances and devices by an organised group) of the Criminal Code. The decisions charging the applicants were made on various dates but by the same investigator. They were identical in their wording except for the name of the person charged. The description of the charges consisted of a single sentence half a page long. The relevant part of the decision concerning the first applicant stated:

“... Rashad Zeynalabdin oglu Hasanov has been charged on the basis of sufficient charging evidence because in early March 2013 in Baku, in an organised group with B.G., S.N. and others with whom he had close ties, [he] unlawfully obtained twentytwo glass bottles of explosive devices known as Molotov cocktails, which are prepared with flammable liquid petrol as an explosive substance by inserting a cotton rag preventing the liquid from dispersing and evaporating, as well as acting as a fuse, [and arranged storage] until 7 March 2013 by giving nineteen of them to B.G. who lives in ... and three of them to S.N. who lives in ...

Through these actions, Rashad Zeynalabdin oglu Hasanov committed a criminal offence under Article 228.3 of the Criminal Code of the Republic of Azerbaijan.

On the respective dates of their arrest the First Deputy Prosecutor General of the Republic of Azerbaijan requested that the courts remand each applicant in custody (həbs qətimkan tədbiri). In each case, the prosecutor used the exact same wording as in the decisions charging the applicants.

On the same dates the applicants were brought before a judge of the Nasimi District Court. Referring to the official charges brought against them and the prosecutor’s requests to remand them in custody, the judges ordered their detention for a period of three months. It appears from the transcripts of the court hearings before the Nasimi District Court available in the case file that the applicants denied the charges against them, stating that their arrest was related to their social and political engagement. Although the Nasimi District Court’s decisions were delivered on various dates and by different judges, their wording was almost identical. Each time, the judges justified the applicants’ detention pending trial by the gravity of the charges and the likelihood that if released they might abscond or obstruct the investigation. Moreover, in respect of the first applicant, the judge also noted that the first applicant had avoided the investigation until his arrest on 14 March 2013 because he had been wanted by the police since 10 March 2013 on the basis of the investigator’s decision charging him with a criminal offence under Article 228.3 of the Criminal Code.

On various dates in March and April 2013 the applicants appealed against the decisions ordering their pre-trial detention. They complained that there was no evidence that they had committed a criminal offence and there had been no justification for their detention pending trial. The first applicant also submitted that he had never been informed of any decision of the investigator charging him with a criminal offence until his arrest on 14 March 2013. In that connection, he pointed out that between 10 and 14 March 2013 he had not gone into hiding and had actively participated in the political life of the country, giving an interview to a newspaper and participating in the gathering of a political movement.

On various dates in March and April 2013 the Baku Court of Appeal dismissed the applicants’ appeals, finding that the detention orders were justified. In that connection, the appellate court held that the Nasimi District Court had correctly taken into account the seriousness of the criminal offence attributed to the applicants and the likelihood that if released they might abscond or obstruct the normal functioning of the investigation.

On 26 April 2013 the first applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that his detention was not justified and that there was no reason for it to continue. In support of his request, he pointed out that he had a permanent address, had never been convicted, and that there was no risk of his absconding or obstructing the investigation.

On 27 April 2013 the Nasimi District Court dismissed the request, finding it unfounded.

On 3 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

On 29 May 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the first applicant’s pre-trial detention of three months, submitting that more time was needed to complete the investigation.

On 30 May 2013 the Nasimi District Court extended the first applicant’s detention pending trial until 7 September 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges, and the likelihood that if released the first applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings.

On 3 June 2013 the first applicant appealed against that decision. He complained, in particular, that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify the extension of his detention pending trial.

On 6 June 2013 the Baku Court of Appeal dismissed the appeal and upheld the Nasimi District Court’s decision of 30 May 2013.

No further extension decisions were included in the case file.

On 26 April 2013 the second applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration.

On 30 April 2013 the Nasimi District Court dismissed the request, finding it unfounded.

On 6 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the second applicant’s pre-trial detention for a period of three months. In that connection, he submitted that more time was needed to complete the investigation.

On 24 June 2013 the Nasimi District Court extended the second applicant’s detention pending trial by three months, until 1 October 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges and the need for additional time to carry out further investigative measures.

On 27 June 2013 the second applicant appealed against that decision, reiterating that there was no evidence that he had committed a criminal offence and that the Nasimi District Court had failed to justify his continued detention.

On 1 July 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of the second applicant’s detention pending trial was justified.

On 15 July 2013 the second applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention, reiterating his previous arguments.

On 17 July 2013 the Nasimi District Court dismissed the request, finding that the grounds for his pre-trial detention had not changed.

On 25 July 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

On 17 September 2013 the prosecutor lodged a request with the court asking for an extension of the second applicant’s pre-trial detention for a period of two months. The prosecutor gave as the reason for the need to extend the detention the complexity of the case and the need for more time for the accused and his lawyer to familiarise themselves with the material in the case file.

On 18 September 2013 the Nasimi District Court extended the second applicant’s detention pending trial by two months, until 1 December 2013. The court substantiated the need for the extension by the complexity of the case, the gravity of the charges, the need for additional time to carry out further investigative measures and the likelihood that if released the second applicant might abscond or obstruct the investigation by influencing those participating in the criminal proceedings.

On 27 September 2013 the Baku Court of Appeal upheld the firstinstance court’s decision.

It appears from the documents in the case file that on an unspecified date in May 2013 the third applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention. In that regard the Court notes that it explicitly requested the Government to submit copies of all the documents relating to the applicants’ pre-trial detention; they failed to do so.

On 17 May 2013 the Nasimi District Court dismissed the request, finding that there was no need to use an alternative preventive measure to custody.

On 23 May 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the third applicant’s pre-trial detention for a period of three months, submitting that more time was needed to complete the investigation.

On 22 June 2013 the Nasimi District Court extended the third applicant’s remand in custody by three months, until 30 September 2013. The court substantiated the need for the extension by the gravity of the charges, the risk of his reoffending, and the likelihood that if released he might abscond or obstruct the investigation.

It appears from the documents in the case file that on an unspecified date in June 2013 the third applicant appealed against that decision. The Government did not make a copy of the appeal available to the Court.

On 27 June 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of his detention pending trial was justified.

On 30 July 2013 the third applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention. He claimed that his continued detention was not justified and that no investigative measures had been carried out since the beginning of his pre-trial detention.

On 31 July 2013 the Nasimi District Court dismissed the request.

On 7 August 2013 the Baku Court of Appeal upheld the firstinstance court’s decision.

No further extension decisions were included in the case file.

On 15 April 2013 the fourth applicant lodged a request with the Nasimi District Court asking to be put under house arrest in place of pretrial detention. He claimed, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take his personal situation into consideration.

On 17 April 2013 the Nasimi District Court dismissed the request.

On 22 April 2013 the Baku Court of Appeal upheld the first-instance court’s decision.

On 20 June 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant’s pre-trial detention for a period of three months, submitting that more time was needed to complete the investigation.

On 24 June 2013 the Nasimi District Court extended the fourth applicant’s remand in custody by three months, until 30 September 2013. The court substantiated the need for the extension by the complexity of the case, the need for additional time to carry out further investigative measures and the possibility of the fourth applicant’s absconding or influencing persons participating in the criminal proceedings.

On 25 June 2013 the fourth applicant appealed against that decision, reiterating that there was no evidence that he had committed a criminal offence and that the first-instance court had failed to justify his continued detention.

On 4 July 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of his detention pending trial was justified.

On 7 August 2013 the fourth applicant again lodged a request with the Nasimi District Court asking to be put under house arrest in place of pre-trial detention or to be released on bail. He submitted in support of his request that there was no reason justifying his continued detention and that the courts had failed to take into account his personal situation.

On 13 August 2013 the Nasimi District Court dismissed the request, finding that there was no need to use an alternative preventive measure to custody.

On 22 August 2013 the Baku Court of Appeal upheld the firstinstance court’s decision.

It appears from the documents in the case file that on an unspecified date in September 2013 the prosecutor in charge of the criminal case lodged a request with the court asking for an extension of the fourth applicant’s pre-trial detention for a period of two months. The Government did not make a copy of the request available to the Court.

On 18 September 2013 the Nasimi District Court decided to extend the fourth applicant’s detention pending trial for a period of two months, until 30 November 2013.

On 19 September 2013 the fourth applicant appealed against that decision, complaining that there was no justification for his continued detention. He reiterated that there was no reasonable suspicion that he had committed a criminal offence and that the first-instance court had failed to justify its decision.

It appears from the documents in the case file that on 4 October 2013 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 18 September 2013. The Government did not make a copy of the appellate court’s decision available to the Court.

It appears from the documents in the case file that in September 2013 the applicants were additionally charged with new criminal offences under Articles 28 (preparation of a crime) and 220.1 (mass disorder) of the Criminal Code. The Government did not make the investigator’s decisions in this respect available to the Court.

On 6 May 2014 the Baku Court of Serious Crimes found the applicants guilty on all counts and sentenced the first applicant to seven and a half years’ imprisonment, the second applicant to eight years’ imprisonment, the third applicant to seven years’ imprisonment and the fourth applicant to eight years’ imprisonment.

On 16 December 2014 the Baku Court of Appeal upheld that judgment.

On 2 June 2015 the Supreme Court upheld the appellate court’s judgment in respect of the first and third applicants.

On 15 October 2015 the Supreme Court upheld the appellate court’s judgment in respect of the second and fourth applicants.

In the meantime, on 29 December 2014 the second and third applicants were released from serving the remainder of their sentence after being pardoned by a presidential decree.

On 17 March 2016 the first and fourth applicants were also released from serving the remainder of their sentence after being pardoned by a presidential decree.


Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant is a Hungarian national who was born in Pécs and is detained in Szeged Prison.

On 12 December 2010 the applicant was placed in Pálhalma Prison. He alleged that during his time in Pálhalma Prison he had been kept in a cell measuring thirty square metres, which he had had to share with fourteen other inmates. Outdoor exercise had been limited to one hour a day and the applicant had spent the remainder of his time in the cell. Furthermore, the cell had been infected with bed bugs.

In March 2011 the applicant was transferred to the Prison of the Central Transdanubia Region, where he was first accommodated together with seventeen other inmates in a cell measuring forty-five square metres, then together with thirteen other inmates in a cell measuring twenty-five square metres. He claimed that in both cells the toilet had been separated from the living area only by a curtain. The applicant was allowed to take a five-minute shower once a week.

As of 11 January 2012, he was transferred to Baranya County Prison where he was held in a cell measuring sixty square metres and accommodating twenty eight inmates including him. Throughout this confinement he had outdoor stays for only an hour a day in a yard measuring twenty-five square metres. He spent the remainder of his time in the cell.

Between March 2015 and 15 July 2015 the applicant was detained in Veszprém County Prison. The cell where he was held measured seven square metres and accommodated three inmates. It was equipped with a separate toilet. The applicant was allowed to take a ten-minute-long shower once a week.

From 15 July 2015 to 9 July 2016 the applicant was detained in Szombathely Prison, where six persons were held in a cell measuring twelve square metres. Outdoor exercise was limited to one hour a day.

Since 9 July 2016 the applicant has been detained in Szeged Prison with eleven other detainees in a cell measuring twenty-five square metres. The applicant is allowed to move freely outside his cell.

On 25 October 2016 the Hungarian Parliament adopted Act No. CX of 2016, amending certain Acts on criminal matters in relation to the judgment adopted by the European Court of Human Rights in the case of Varga and Others v. Hungary (hereinafter, the “2016 Act” – see paragraph 15 below). This Act was promulgated on 4 November 2016 and entered into force on 1 January 2017. It was aimed at introducing preventive and compensatory remedies in cases of inadequate conditions of detention.

On 15 September 2017, the Minister of Justice of Hungary addressed to the President of the Court a letter “concerning the implementation of the pilot judgment in the case of Varga and Others v. Hungary”. The Minister noted that under the 2016 Act, a complaint alleging conditions of detention in violation of Article 3 of the Convention could be presented to the prison governor, who should, as far as practicable, take the necessary actions in order to improve the conditions or counterbalance the injury suffered (for instance: relocation, increasing the time allowed for visits or the time spent in the open air, and improvement of the sanitary facilities). According to the Minister, in view of the progress of the prison capacity expansion programme, there was a “real prospect” of finding penal institutions with sufficient capacity. A preventive remedy could, however, be used only while the detention was still ongoing. After release, and within six months of the termination of the prison sentence, only a compensatory claim could be submitted. This could lead to the granting of a sum calculated on the basis of the number of days spent in conditions contrary to Article 3 of the Convention, the daily tariff ranging from a minimum of 1,200 Hungarian forints (HUF – approximately 4 euros (EUR)) and a maximum of HUF 1,600 (approximately EUR 5.3). The judge must exercise his or her judicial discretion in order to award an amount proportionate to the gravity of the violation found, taking into account, for instance, the absence of toilets separated from the living space in the cell, in addition to a general situation of overcrowding, or to other inadequate conditions of detention. The sum thus determined must be paid within sixty days of the decision being served.

The Minister further stated that from 1 January to 7 August 2017, 5,447 applications for compensation had been lodged with the penal institutions, thus showing the accessibility of the new remedy. Referring to the strict time-limits provided for by the 2016 Act, the Minister argued that the remedy also satisfied the requirement of quick adjudication and underlined that the judge responsible for the execution of sentences must provide reasons for his or her decision. As to the amount of compensation, the Minister noted that the Italian legislation adopted following the pilot judgment in the case of Torreggiani and Others v. Italy (nos. 57875/09 and 6 others, 8 January 2013) fixed the sum to be granted at EUR 8 per day of detention in conditions incompatible with the requirements of Article 3 of the Convention. Having regard to the burden-bearing capacity and of the economic realities of the two countries, the choice of the Hungarian legislator to fix the daily tariff at between EUR 4 and 5 could be deemed to be reasonable.

The Minister lastly noted that out of 3,554 cases brought before the judges responsible for the execution of sentences, 248 claims had been adjudicated by 14 July 2017, awarding a total amount of HUF 153,510,900 (approximately EUR 497,040). Moreover, due to the extension of the prison capacity achieved as part of the action plan, overcrowding in Hungarian prisons had significantly dropped: whereas in 2014 the occupancy level had been 413%, in 2016 and 2017 the respective figures were 131% and 129%.

In the light of the above, the Minister urged the Court to find that the preventive and compensatory remedies provided for by the 2016 Act were effective and needed to be exhausted in accordance with Article 35 § 1 of the Convention.

In a letter of 27 September 2017 the Registry of the Court asked the applicant to indicate whether he had used the remedies provided for by the 2016 Act or intended to do so. In his reply of 12 October, the applicant stated that he had lodged a claim under the relevant domestic legislation and the proceedings were still pending before the Szeged High Court.

The 2016 Act introduced, inter alia, new sections into Act No. CCXL of 2013 on the enforcement of punishments, measures, certain coercive measures and confinement for regulatory offences. In so far as relevant, those sections read as follows:

Compensation for conditions of detention violating fundamental rights

Section 10/A

“(1) Convicts and persons detained on other grounds are entitled to compensation for not having been provided with the inmate living space specified in the law and for any other conditions of detention violating the prohibition of torture or cruel, inhuman or degrading treatment, in particular for violations caused by unseparated toilets, and lack of proper ventilation or lighting or heating and disinfection (henceforth together: conditions of detention violating fundamental rights). Compensation shall be awarded for the number of days spent in conditions of detention violating fundamental rights. Compensation shall be paid by the State.

(2) Under the head specified in subsection (1), no further indemnification or damages for infringement of personality rights shall be sought but convicts and persons detained on other grounds may apply to a civil court seeking additional damages exceeding the amount of compensation.

(3) The daily compensation tariff shall be a minimum of HUF 1,200 but a maximum of HUF 1,600.

(4) A compensation claim may be made within six months of the date on which the conditions of detention violating fundamental rights ceased to exist. This time-limit is absolute. For the purposes of this subsection, conditions of detention violating fundamental rights will not be considered to have ceased to exist where those conditions are interrupted for a short period, but for a maximum of thirty days, on account of the fact that within the term of imprisonment of the convict or person detained on other grounds the statutory living space has been provided.

(5) A compensation claim may be lodged by a convict or person detained on other grounds or by their counsel or, if the detainee has already been released, by his legal representative. The compensation claim shall be lodged in writing with the penal institution where the detention is being effected or, if the convict or person detained on other grounds has been released, with the penal institution which released him. In the application for compensation the convict or person detained on other grounds shall give a statement as to whether the European Court of Human Rights (henceforth: the ECHR) has obliged the State to pay damages to him on account of conditions of detention violating fundamental rights and whether a civil court has already awarded him indemnification or damages for infringement of personality rights. If the answer is yes, the detainee shall also state the name of the court and the case number in the application.

(6) Save for inmates undergoing involuntary treatment or temporary involuntary treatment, a further condition for the lodging of such an application for compensation is the prior submission by the convict or person detained on other grounds of a complaint under Section 144/B to the head of the organ responsible for the enforcement of the sentence about the conditions of detention violating fundamental rights. This condition shall be applicable where the number of days spent in conditions of detention violating fundamental rights has exceeded thirty (30). Where conditions of detention violating fundamental rights exist over a longer period of time, a further complaint does not need to be lodged within three months.. Where the convict or person detained on other grounds could not enforce his right of complaint for reasons beyond his control, it shall not be imputed to him.

(7) It will be possible to satisfy other claims from the compensation awarded only

(a) up to the amount of a civil claim or of an indemnification or damages for infringement of personality rights awarded under a final civil judgment in relation to the offence for the enforcement of which the compensation is awarded, and

(b) up to the amount of a child-support claim enforced in enforcement proceedings for the collection of child support.

(8) Where in the cases specified in subsection (7) the amount of compensation is not enough to satisfy all the claims, first the child-support claim, then the civil claim and the indemnification or damages for infringement of personality rights awarded on account of the offence shall be satisfied in equal proportion.

Section 10/B

(1) The minister responsible for justice shall make arrangements for the payment of the compensation awarded.

(2) In making the arrangements for the payment of the compensation, the minister responsible for justice shall, from the register kept by the office of the Hungarian Court Bailiffs’ Organisation, request data on any child-support enforcement proceedings stayed or pending against the convict or person detained on other grounds, as well as the case number and the name of the bailiff with jurisdiction in the case.

(3) Where the data received under subsection (2) or from the penitentiary judge indicate that enforcement proceedings for the collection of child support or for the satisfaction of a civil claim or for the payment of indemnification or damages for infringement of personality rights awarded against the inmate on account of the commission of the offence have been instituted, the minister responsible for justice shall inform the bailiff of the amount of compensation awarded to the debtor and the claims that may be satisfied from the compensation by way of debt collection. In such cases the compensation may, in line with Section 10/A(8), only be paid after the bailiff has taken the necessary enforcement measures for the attachment of the debt.

(4) Where in his decision the penitentiary judge orders that a partly or fully unpaid civil claim or indemnification or damages for infringement of personality rights awarded on account of the committed offence are to be deducted and paid to the beneficiaries of such claims, the remaining compensation is to be paid to the convict or person detained on other grounds. Where the available data indicate that enforcement proceedings for the collection of child support have been instituted, the compensation may only be paid after the bailiff has, in line with Section 10/A(8), taken the necessary enforcement measures for the attachment of the child support Child support shall be collected primarily from the compensation payable to the convict or person detained on other grounds.

(5) Payment may be effected via bank transfer to the bank account number given by the convict or person detained on other grounds or paid into the bank account of, or in cash to, the beneficiary of the indemnification or damages for infringement of personality rights awarded on account of the offence committed, in accordance with his or her request. Where the convict or person detained on other grounds is still detained, he may request that the compensation be transferred to a deposit account.

(6) The minister responsible for justice may process personal data obtained under subsections (2)-(4) and being related to the enforcement of a child support claim or civil claim or indemnification or damages for a violation of personality rights awarded on account of the offence committed, for thirty days from the date of payment of the compensation.

Compensation proceedings to redress damage resulting

from conditions of detention violating fundamental rights

Section 70/A

(1) A decision on whether compensation is payable to an inmate for damage resulting from conditions of detention violating fundamental rights shall be taken by the penitentiary judge at the request of the inmate or his counsel. A decision by the penitentiary judge may be taken also on the basis of documents.

(2) The penal institution shall transmit the application, together with its opinion on the application, to the penitentiary judge within fifteen days or, where several penal institutions are affected, within thirty days with the specification that if the inmate has lodged a complaint alleging conditions of detention violating fundamental rights, the penal institution’s opinion may only be transmitted after the complaint, including an application for judicial review lodged against a decision on relocation, has been determined. A summary of the inmate’s records containing data on the conditions of detention in the period complained of shall be appended to the opinion.

(3) The penitentiary judge shall, ex officio, examine whether the ECHR has obliged the State to pay damages to the inmate on account of the conditions of his detention violating fundamental rights or whether a civil court has awarded indemnification or damages for infringement of personality rights, and if the answer is yes, the penitentiary judge shall obtain the relevant decisions before taking a decision.

(4) The penitentiary judge shall evaluate the inmate’s conditions of detention in their entirety and shall determine the daily compensation tariff on the basis of the extent of the injury caused. Thereafter, compensation shall be calculated by multiplying the daily compensation tariff by the time spent in conditions of detention violating fundamental rights.

(5) The penitentiary judge shall reject the application on the basis of the documents, without an examination on the merits, where

(a) the application has been lodged belatedly

(b) the application has been lodged by a person not entitled to lodge such an application

(c) the inmate has failed to lodge the complaint as specified in Section 144/D, or

(d) in respect of the period indicated in the application, the ECHR has obliged the State to pay compensation, or a civil court has awarded indemnification or damages for infringement of personality rights on account of the conditions of the inmate’s detention violating fundamental rights.

(6) Where the inmate has been released, proceedings shall be conducted by the penitentiary judge with jurisdiction for the location of the penal institution, but if a separate request to that effect has been made by the inmate or his defence counsel, the penitentiary judge with jurisdiction for the inmate’s place of domicile or place of residence shall proceed.

Section 70/B

(1) Where the court that dealt with the criminal case against the inmate has awarded a civil claim to the injured party or his heir or referred the enforcement of the civil claim to another legal avenue, the penitentiary judge shall invite the injured party to submit, within a time-limit of fifteen days, a statement as to whether the inmate has paid the civil claim awarded to the injured party or has paid – if the injured party lodged an action seeking to recover the damage caused by the offence or seeking the payment of damages for infringement of personality rights – the indemnification or damages for infringement of personality rights awarded by the civil court. If full payment has not been made by the inmate, the statement shall also confirm whether the injured party requests the deduction of the outstanding claim from any compensation that may be awarded to the inmate.

(2) In the case specified in subsection (1), the penitentiary judge shall also invite the injured party to state the precise amount he is claiming and to append any documents in his possession in relation to the civil claim or the indemnification or damages for infringement of personality rights awarded to him on account of the committed offence. Where the penitentiary judge adjudicates the case on the basis of documents, he shall obtain a statement from the inmate on the payment of the indemnification or damages for infringement of personality rights awarded against him on account of the committed offence.

(3) If the injured party requests the payment of the outstanding part of the indemnification or damages for infringement of personality rights awarded to him on account of the committed offence, the penitentiary judge shall request data from the register kept by the office of the Hungarian Court Bailiffs’ Organisation on any stayed or pending proceedings instituted for the collection of such claims, as well as the case number and the name of the bailiff with jurisdiction in the case.

(4) In the case specified in subsection (1), the time-limit specified in Section 50 subsection (1)(d) shall be extended by sixty days. Where the invitation to the injured party has not produced any result within sixty days, the penitentiary judge shall adjudicate the case by ignoring any outstanding amount of indemnification or damages for infringement of personality rights awarded on account of the committed offence.

(5) The penitentiary judge shall make arrangements for the payment from the compensation amount to the beneficiary of any outstanding civil claim amount or indemnification or damages for infringement of personality rights awarded on account of the committed offence, where

(a) the civil claim or the indemnification or damages for infringement of personality rights awarded to the injured party on account of the committed offence has not yet or not fully been paid by the inmate,

(b) no enforcement proceedings have been instituted for the collection of the claims specified in point (a),

(c) in examining a defence statement to that effect filed by the inmate or his counsel, the penitentiary judge has established that the limitation period specified in the Civil Code has not yet elapsed.

(6) In the decision the penitentiary judge shall oblige the State to pay the compensation and shall invite the State to effect the payment within a time-limit of sixty days from the service of the decision.

Review of a decision on the measures taken following a complaint

about conditions of detention violating fundamental rights and on relocation

Section 75/A

(1) An application by the inmate or his counsel for the judicial review of a decision on the measures taken following a complaint about conditions of detention violating fundamental rights and on relocation shall be determined by the penitentiary judge within five working days of the receipt of the application.

(2) If in the review the penitentiary judge finds that the governor of the penal institution has failed to take a measure the penitentiary judge shall, by applying – mutatis mutandis – Section 72(1)(d), instruct the governor of the penal institution to conduct the proceedings.

(3) The costs of the criminal proceedings shall be borne by the State.

Complaint about conditions of detention violating fundamental rights

Section 144/B

(1) The inmate or his counsel may submit a written complaint alleging conditions of detention violating fundamental rights directly to the governor of the penal institution.

(2) The complaint shall be determined within fifteen days of its submission. Upon receipt of the complaint, the governor of the penal institution shall, in the event of conditions of detention violating fundamental rights, take the necessary actions to improve the conditions or to counterbalance the injury suffered. With the exceptions specified in subsection (3) below, the governor of the penal institution shall issue a decision setting out the actions to be taken.

(3) Where the conditions of detention violating fundamental rights on account of the lack of statutory inmate living space cannot be terminated in the penal institution in issue, the governor of the penal institution shall, with urgency, contact the National Prison Administration’s department responsible for detention matters and shall request the inmate’s relocation to another penal institution capable of guaranteeing the statutory inmate living space.

(4) The head of the National Prison Administration’s department responsible for detention matters shall decide on the request within eight days, in a reasoned decision. If the statutory inmate living space can be guaranteed in another penal institution, the head of the National Prison Administration’s department responsible for detention matters will designate such a penal institution for serving the term of imprisonment; otherwise, it shall not issue any decision and shall inform the governor of the penal institution accordingly. In deciding on the inmate’s relocation, the inmate’s contact rights shall be taken into consideration.

(5) Where the conditions of detention violating fundamental rights on account of the lack of the statutory inmate living space can be terminated neither within the penal institution in issue, nor by relocating the inmate to another penal institution, the governor of the penal institution shall take action to counterbalance the injury, provided that no such action has yet been taken by him and that the taking of such action does not hamper the performance of tasks, and provided that the conditions thereof are ensured.

(6) The inmate and his defence counsel may apply to the penitentiary judge for a review against action taken under subsections (2) and (5) above, or for a failure to take action, and if relocation violates the inmate’s contact rights. The application for review shall have a suspensive effect on the relocation.

Section 187/A

(1) Where the purposes of the incarceration may be achieved in this way as well, if conditional release is imminent or if conditional release has been excluded, before the prospective date of his release the inmate may be placed in reintegration custody if he consents to being placed in such custody and if he has been sentenced to imprisonment for an offence committed with criminal negligence. The same applies to a person sentenced for an intentional offence, provided that he

(a) was not convicted for a violent crime committed against another person specified in Article 459(1) point 26 of the Criminal Code,

(b) was sentenced to enforceable imprisonment for the first time or is a repeat offender without being a recidivist, and

(c) is serving a term of imprisonment not exceeding five years.

(1a) Reintegration custody shall last

(a) for a maximum of one year if the inmate was sentenced to a term of imprisonment for an offence committed with criminal negligence,

(b) in cases other than the one specified in point (a), for a maximum of ten months.

Section 390

(8) Where a pre-trial detainee or his counsel has lodged a complaint alleging conditions of detention violating fundamental rights, the governor of the penal institution shall also append a consent statement by the person authorised to make decisions in respect of the pre-trial detainee to the request made under Section 144/B(3) for the relocation of the pre-trial detainee to another penal institution. In such cases the complaint shall be determined and a decision made within thirty days.

Section 436

(10) A compensation claim under Section 10/A, enacted by Section 22 of Act No. CX of 2016, may also be submitted by a convict or person detained on other grounds

(a) in respect of whom the injury having resulted from conditions of detention violating fundamental rights ceased to exist within one year preceding the entry into force of the amendment,

(b) who submitted an application to the ECHR alleging conditions of detention violating fundamental rights and the application was registered by the ECHR before the entry into force of the amendment, except where the inmate submitted his application to the ECHR after 10 June 2015 and by the date of receipt of the application, more than six months have elapsed since the termination of the violation.

(11) For the purposes of subsection (10) the absolute time-limit specified in Section 10/A (4) shall start to run on the date of the entry into force of this provision. In determining claims submitted under subsection (10), Section 10/A(6) shall not be applicable and the time-limit specified for the proceedings before the penitentiary judge under Section 50(1)d) shall be extended by thirty days.

(12) Where data are obtained indicating that before the entry into force of the compensation claim provided for in Section 10/A of Act No. CX of 2016, on account of conditions of detention violating fundamental rights

(a) proceedings were instituted before a civil court, or

(b) an application was submitted to the ECHR and the application was registered by the ECHR before the date of the entry into force of the amendment

the penitentiary judge shall suspend the proceedings until the completion of these proceedings or, if there are proceedings pending before the ECHR, until notification by the ECHR of the referral of the case to national adjudication has been received.”

At its 1288th meeting held on 6-7 June 2017, in the ambit of the execution of the judgments Varga and Others and István Gábor Kovács v. Hungary, the Committee of Ministers of the Council of Europe adopted the following decision (CM/Del/Dec(2017)1288/H46-16; hereinafter, the “decision of June 2017”):

“The Deputies

welcomed the authorities’ commitment to resolve the problem of prison overcrowding in Hungary and noted with interest that the substantive measures taken appear to be showing the first concrete results, in particular a decrease in the rate of overcrowding and a drop in the shortage of prison places;

As regards individual measures

noted that a number of applicants are still detained in conditions not meeting the minimum standards for personal living space and reminded the authorities of their obligation to rectify the situation by ensuring that all applicants’ conditions of detention are in line with the Convention; invited them to provide the outstanding information, in particular, on other relevant aspects of the material conditions of detention where the available living space is between 3 and 4 m² per inmate;

As regards general measures

noted with interest the further extension of the application of “reintegration custody”, the facilitation of an increase in the use of house arrest, and the slight decrease in the number of defendants placed in pre-trial detention; strongly encouraged the authorities further to pursue their efforts in this regard and to find all possible means “to encourage prosecutors and judges to use as widely as possible alternatives to detention and redirect their criminal policy towards reduced use of imprisonment”; invited them to submit updated statistical information on the impact and further promotion of alternative sanctions and the reduction of overcrowding;

welcomed the fact that, in response to the Varga and Others pilot judgment, the authorities have introduced both a preventive and a compensatory remedy aimed at guaranteeing genuinely effective redress for Convention violations arising from poor material conditions of detention, which took effect on 1 January 2017; invited them to provide further detailed information (including statistical data) on the implementation and functioning of these newly introduced remedies, notably in the light of the monitoring they will undertake in this context, and more concretely on the impact of the preventive remedy on the general problem of prison overcrowding;

welcomed the information received as regards the other violations concerned by this group and invited the authorities to submit the outstanding information;

in view of the European Court’s decision to suspend the examination of the similar pending applications until 31 August 2017, invited the authorities to provide the information expected by that date, at the latest.”


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

The applicant was born in 1953 and lives in Diósjenő.

In 1996 the applicant filed for divorce and division of matrimonial property. The case was processed at first instance by the Balassagyarmat District Court and the Vác District Court; and at second instance by the Nógrád County Regional Court and the Győr-Sopron-Moson County Regional Court. The procedure ended on 6 July 2012.


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

The applicant was born in 1952 and lives in Budapest.

In 2006 the applicant concluded an employment contract with a State-owned financial institution. His contract was amended in 2009 stipulating, in case of ordinary dismissal, severance payment equal to one month’s salary and remuneration corresponding to a notice period of eight months.

On 22 June 2010 the applicant’s employment was terminated by mutual agreement. Under this agreement, on 25 June 2010 his former employer paid him, after taxes, a net amount of 17,994,127 Hungarian forints (HUF) (approximately 58,800 euros (EUR)), amounting to seven months’ salary.

Under new legislation (see paragraph 10 below) the gross amount corresponding to the above payment was subsequently taxed at a 98% rate in its part exceeding HUF 3.5 million; the income tax and social security contributions already paid (see paragraph 8 above) were deducted from the tax payable. Thus, the applicant had to pay an additional HUF 14,162,433 as special tax, until 20 May 2011.


Remainder inadmissible (Article 35-1 - Six-month period);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1986 and lives in Sofia, Bulgaria, where he apparently moved from France in November 2013.

At 12.40 a.m. on 24 January 2014 he was arrested in Sofia while breaking into cars with a view to stealing items from them. He was taken to the First District Police Station and placed under police detention. According to the applicant, he was not put in a cell, but handcuffed to a bench in the station’s corridor.

According to the applicant, throughout the whole time that he spent in the police station he was not given any food or drink, allowed to go to the toilet, or allowed to use a telephone. He was visited by an ex officio lawyer appointed for him by the authorities. However, the lawyer spoke no French and very little English – a language that the applicant is apparently familiar with – and did not explain to him anything about the procedure in his case.

In the late afternoon or the evening of 24 January 2014 the applicant was taken to a hospital for a medical examination, and then, at about 10 p.m. the same day, taken to a pre-trial detention facility in Sofia.

It appears that the next day, or one of the following days, the applicant was brought before the Sofia District Court with a view to a decision on whether he should be remanded in detention, and that it was decided that he should remain in custody pending trial. A subsequent request for release apparently made by his counsel in the end of February 2014 was rejected as well.

According to the applicant, upon his arrival in the pre-trial detention facility on the evening of 24 January 2014 (see paragraph 8 above), he was given a dirty mattress, pillow and blanket, but no bedlinen. Since he had arrived in the facility after suppertime, he could not eat or drink anything until lunchtime the following day, 25 January 2014.

According to the applicant, the cell in which he had been placed had been dirty, cold, poorly ventilated, infested with cockroaches, overcrowded, and with a toilet which was not properly separated from the rest of the cell.

According to the applicant, he was not able to maintain his personal hygiene, as he was not provided with toilet paper or other toiletries, and had had no money to purchase them. As a result, it had been impossible for him to go to the shower for two weeks. On the third day of his stay in the facility, he had seen spots erupt on his skin and had asked to be examined by a medical doctor. The doctor had come to see him three days later, and had only examined him from a distance, without entering the cell. On an unspecified date in March 2014, the applicant was given a blood test which revealed that he had a staphylococcus infection. He was given antibiotics for it but was not taken to a hospital.

According to the applicant, food had also been so poor and served so unhygienically that he had lost twenty-three kilogrammes during his stay in the detention facility. The space for out-of-cell exercise had also been so small that on many occasions he had chosen not to take his daily exercise.

In the detention facility, there was a cardphone which inmates could use to call outside numbers. It was located in the space where they could take their daily one-hour out-of-cell exercise. Since it had to be shared among them, each inmate had about six minutes to use it. As the applicant had had no money on him when arrested, he could not however purchase a phonecard. With the help of a co-detainee who spoke some English, about two weeks after his arrival in the facility he managed to obtain one minute of call time free of charge, and on 5 February 2014 contacted the consulate of France in Sofia. The consulate immediately informed the applicant’s Bulgarian girlfriend, a Bulgarian friend of his and his parents, who resided in France, that he had been arrested and detained, and the consul came to visit him. The same day the applicant’s mother, who lived in France, wired money to the consul so that she could purchase food and clothes for the applicant. The consulate also arranged for a lawyer to represent the applicant in the criminal case against him.

With the money that he received via the consulate, the applicant was able to purchase a phonecard. According to him, he had made many requests to that effect in the days after 5 February 2017, which the Government had not provided. The Government insisted that they had made available to the Court all documents in the applicant’s detention file. They submitted a declaration by him dated 24 February 2014 whereby he had asked the detention facility’s head to issue him a phonecard preloaded with 20 Bulgarian levs of credit and, as required under the relevant regulations (see paragraph 30 below), had submitted for approval a list of the persons – his Bulgarian girlfriend, a Bulgarian friend, his lawyer, and his mother and father in France – whom he wished to call. The same day the facility’s head approved the list. The applicant was apparently able to call his mother in France for the first time two days later, on 26 February 2014.

According to the applicant, the relevant order (see paragraph 31 below) had provided that detainees could purchase phonecards or recharge them twice a month. The Government did not comment on that point or submit a copy of the order. According to the official form used by the applicant to make his above-mentioned declaration, phonecards could be recharged once a month. The applicant alleged that the facility’s staff had often not complied with the recharging schedule and that on one occasion he had been unable to recharge his phonecard for five weeks. He did not provide further details in that respect, but from the documents submitted by him it appears that between 24 March and 14 April 2014, a period of three weeks, he had not spoken on the telephone to his mother in France.

Detainees in the facility could get two visits a month, each lasting up to twenty minutes. According to the Government, the applicant had received such visits on 5, 8 and 9 February and 23 March 2014. However, on one occasion on 22 March 2014 the applicant’s Bulgarian girlfriend, who had come to visit him, was turned away with the explanation that the same day he had been moved to a different wing, detainees in which could be visited on another date according to the schedule of visits. She was apparently able to visit him the next day. It appears that a Bulgarian friend of the applicant who had also come to visit him on 22 March 2014 was likewise turned away.

According to the Government, during his stay in the detention facility the applicant had been visited by his lawyer on twelve occasions in February and March 2014, and by consular staff on two occasions. He had also received parcels with food and other items on twenty-one occasions.

Throughout his stay in the detention facility, the applicant was able to correspond with his parents in France with letters passed via his lawyer or the staff of the consulate of France in Sofia.

On 17 April 2014 the applicant and the prosecution entered into an agreement whereby he pleaded guilty and accepted to serve a sentence of three months’ imprisonment. The same day the Sofia District Court approved the agreement, and the next day, 18 April 2014, the applicant was moved to Sofia Prison. Since his pre-trial detention was taken into account in calculating the amount of time that he had to serve under his sentence of imprisonment, he spent there only six days, until 24 April 2014, when he was released. According to the applicant, conditions in Sofia Prison were nearly identical to, or even worse than, those in the detention facility.

The applicant’s parents came from France to Bulgaria to see him on 25 April 2014, the day after his release. It appears that they could not do so earlier because it was not possible for his mother to take leave from work.


CASE OF HIT D.D. NOVA GORICA v. SLOVENIA

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

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Mark Villiger;Paul Martens;Vincent A. De Gaetano

The Slovenian-based applicant company operates gaming and entertainment centres.

On 19 June 1996, the applicant company’s then new managing director instituted disciplinary proceedings against one of its employees, N.N., in respect of the disciplinary offence of excessive and irresponsible use of the company’s funds. The new managing director had been informed about the alleged offence two days earlier. On 21 October 1996 the disciplinary board terminated N.N.’s employment on the grounds that she had seriously breached her employment obligations. An appeal lodged by N.N. against that decision was dismissed. On 24 December 1996 N.N. brought a claim before the Koper Labour Court, requesting that the termination of her employment be declared null and void. She alleged, inter alia, that the disciplinary proceedings against her were time-barred.

In a judgment of 30 September 1997 the Labour Court dismissed N.N.’s request. Having considered that the applicant company’s former managing director had not had sufficient knowledge of the acts constituting the disciplinary offence, the Labour Court concluded that the three-month time-limit for the institution of disciplinary proceedings had started to run from the date on which N.N.’s disciplinary offences had been discovered by the new management of the applicant company. The court therefore held that disciplinary proceedings had not been time-barred. N.N. appealed against the judgment.

On 17 December 1999 the Higher Labour and Social Court, sitting in a panel of three judges, which included judge M.K., upheld N.N.’s appeal and ordered the applicant company to reinstate her. Relying on a statement made by the applicant company’s former managing director, it concluded that he had had sufficient knowledge of N.N.’s actions to be able to institute disciplinary proceedings against her if he had considered that to be necessary. Accordingly, the higher court held that the disciplinary proceedings against N.N. had in fact been time-barred. The applicant company lodged an appeal on points of law before the Supreme Court.

On 7 November 2000 the Supreme Court upheld the applicant company’s appeal on points of law, as the higher court had established the facts differently from the first-instance court without having conducted an oral hearing. The Supreme Court therefore found that the adversarial principle had been breached in the appeal proceedings and set aside the second-instance judgment. The case was remitted to the Higher Labour and Social Court for fresh consideration.

On 7 December 2000 the Higher Labour and Social Court, sitting in a panel presided by judge M.K., held that the facts which had affected the expiry of the statutory limitation period for commencing disciplinary proceedings had not been duly established, and remitted the case to the first-instance court for fresh consideration.

On 12 April 2001 the Koper Labour Court rendered an interim judgment, finding again that the disciplinary proceedings had not been time-barred and thus dismissing N.N.’s request for annulment of the decision to terminate her employment. N.N. appealed against the judgment.

On 3 July 2003 the Higher Labour and Social Court again established quite the opposite, namely that the disciplinary proceedings had been time-barred, and upheld N.N.’s appeal. Judge M.K. did not take part in the proceedings. The applicant company appealed on points of law.

On 15 June 2004 the Supreme Court again upheld the applicant company’s appeal on the grounds that the adversarial principle had been breached in the appeal proceedings. The case was remitted for fresh consideration to the Higher Labour and Social Court, sitting in a panel composed of different judges.

On 3 February 2005 the Higher Labour and Social Court found that the facts of the case had still not been sufficiently established, and remitted the case to the first-instance court for fresh consideration.

On 10 November 2006 the Koper Labour Court found, in its third consideration of the case, that the disciplinary proceedings had been time-barred, as the former managing director had been fully informed about N.N.’s actions that had constituted the disciplinary offence. Accordingly, the court granted N.N.’s claim and declared the termination of her employment null and void. The decision on her compensation claim against the applicant company was postponed. Both parties appealed.

On 29 March 2007 the Higher Labour and Social Court upheld the appeal lodged by N.N. and dismissed the applicant company’s appeal in which it contended, inter alia, that the statements made by the former managing director of the applicant company in the later stages of the proceedings had conflicted with his earlier accounts of the facts and had obviously been made in order to exculpate N.N., with whom he had close personal ties.

The applicant company lodged an appeal on points of law. On 26 February 2008 the Supreme Court dismissed the applicant company’s appeal and reaffirmed the judgment of the lower courts that the disciplinary proceedings had been time-barred.

On 7 May 2008 the applicant company, represented by a lawyer, lodged a constitutional appeal alleging, inter alia, that in the determination of whether disciplinary proceedings against N.N. had been time-barred, the principle of equality of arms had been breached. In addition, the applicant company contended that the labour courts’ position regarding the limitation period for commencing disciplinary proceedings in the particular circumstances at issue had contravened its free economic initiative enshrined in the Constitution. It argued that if the former managing director had known about N.N.’s actions, that in itself had constituted a disciplinary offence and should not have been interpreted in her favour. On 8 May 2008 the Constitutional Court informed the applicant company that its constitutional appeal had been assigned to judge rapporteur M.M.

On 15 May 2008 the Koper Labour Court decided on N.N.’s claim for compensation for the unlawful termination of her employment. It ordered the applicant company to pay N.N. compensation for lost wages and various benefits for the period when she had not been employed or had been paid a lower salary by other employers. The remainder of N.N.’s claim was dismissed.

On 23 September 2008 the Constitutional Court, in a three-judge panel in charge of the examination of constitutional appeals in the field of administrative law, which included judge M.K., refused to accept the applicant company’s constitutional appeal for consideration, stating that its fundamental rights and freedoms had not been violated. The decision, which included the information on the composition of the panel, was taken in camera and without the attendance of the applicant company or the respondent party.

The relevant provisions of the Constitutional Court Act on the disqualification of judges read as follows:

“(1) In deciding on an individual case, the Constitutional Court may disqualify a Constitutional Court judge by applying, mutatis mutandis, the reasons for disqualification in court proceedings.

“Immediately upon a Constitutional Court judge learning of any reason for his disqualification as referred to in the preceding article, he must stop working on the case and notify the President of the Constitutional Court of such.”

“(1) A motion for disqualification may be submitted by the participants in the proceedings until the beginning of the public hearing, if such hearing is scheduled, or respectively until the beginning of the closed session of the Constitutional Court at which the case is to be decided. The motion must include a statement of reasons.

The relevant provisions of the Civil Procedure Act on this issue, applicable to the proceedings before the Constitutional Court, read as follows:

“A judge or a lay judge shall be prohibited from exercising judicial functions:

(5) if he or she participated in the same proceedings before a lower court ...”

“Immediately after learning of the existence of any ground for disqualification under clauses 1 to 5 of the preceding Article, the judge or lay judge shall discontinue forthwith any activity in the proceedings and shall notify thereupon the president of the court, who shall appoint a substitute judge or lay judge.

“The disqualification of a judge may also be requested by the parties.

A party shall be required to bring a motion to disqualify a judge or a lay judge immediately after learning of any grounds for disqualification and not later than before the end of the hearing before the competent court or, if there is no hearing, before the judgment is passed.

The Constitutional Court is composed of nine judges. In the constitutional appeal proceedings, the admissibility, and in cases involving well-established case-law also the merits, of individual cases are considered by three panels of three judges each. Pursuant to the Rules of Procedure of the Constitutional Court, information regarding the division of work by areas between the civil, criminal and administrative panels and their respective composition is accessible on the court’s website. It is also included in the “Work Schedule of the Constitutional Court” published twice a year, for the autumn and spring terms, in the Official Gazette. The work schedule includes the names of the judges who sit in the individual panels, as well as the names of the substitute judges designated to replace individual members of the three panels in the event of their absence or disqualification. According to the court’s Work Schedule, the administrative panel adjudicates on, inter alia, constitutional appeals against individual acts issued in labour dispute proceedings.


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

The first applicant is Mr Teufik Kazić, the second applicant is his wife, Mrs Nafa Kazić, and the third applicant is their son, Mr Admir Kazić. They are nationals of Bosnia and Herzegovina and were born in 1968, 1970 and 1997 respectively. They are currently in Sweden. They were represented before the Court by Mr M. Eklöf, a lawyer practising in Växjö.

In December 2012 the applicants applied for asylum in Sweden. They submitted essentially that the third applicant could not receive the necessary neuropediatric care in their home town, Bihać, in Bosnia and Herzegovina. They submitted that he suffered from epilepsy and had issues with his head and legs. Up until six to seven years earlier there had been a specialist physician in Bihać but after that time he had had to go to Republika Srpska for health care. No physician in the country had been willing to prescribe medicine as there was no specialist in their home town to issue a certificate. There was also no physiotherapy available in Bosnia and Herzegovina. Moreover, the third applicant had been bullied and humiliated because of his handicap and, on one occasion, the second applicant had been threatened when she had wanted to stay with the third applicant at a hospital. The first applicant also alleged that on one occasion in Republika Srpska he had been assaulted and the windshield of his car had been smashed because he was a Muslim. The applicants submitted their passports and a medical certificate concerning the third applicant.

On 24 April 2013 the Migration Agency (Migrationsverket) rejected their applications. Firstly, it found that the applicants could turn to the domestic authorities for protection if they were subjected to threats or ill-treatment by private individuals in the future. The Agency further noted that according to the medical certificate the third applicant had difficulties with his daily routines and that, according to his mother, he had been having epileptic attacks since he was two and a half years old. He received medication and the health-care authorities were examining whether he suffered from a developmental disorder. The Agency concluded that the third applicant’s health conditions were not serious enough to grant him a residence permit. He had received health care and medication in Republika Srpska, which was part of Bosnia and Herzegovina, and there was no indication that it would not be possible for him to receive health care in his home country in the future. The applicants’ applications were therefore rejected and their expulsion to Bosnia and Herzegovina was ordered.

The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), maintaining their claims and adding that the third applicant suffered from several disabilities for which he required regular care to manage his daily life. The measures which had been put in place in Sweden were beneficial to him.

On 6 May 2014 the Migration Court rejected the appeal, upholding the reasoning of the Migration Agency. It noted that according to the available country information, the family could rely on the protection of the authorities in their home country. The court further observed that the third applicant suffered from epilepsy, kyphosis, discreet scoliosis, cerebral palsy and a moderately difficult mental development disorder for which he was in need of medical treatment and constant supervision and care. However, his condition was not life-threatening and he had lived with his condition for sixteen years in his home country where he had received specialist medical treatment and care.

Upon further appeal by the applicants, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal on 8 July 2014.

Subsequently, the applicants requested that the Migration Agency stay the enforcement of the expulsion order as there were impediments due to the third applicant’s health problems, the lack of special schools in Bosnia and Herzegovina and the fact that his sister lived in Sweden. Several medical certificates were submitted which, inter alia, stated that in March 2014 the third applicant had undergone orthopaedic surgery which required several months of rehabilitation. If the rehabilitation were to be interrupted, he would run the risk of not regaining the ability to walk, which he had been able to do prior to the surgery.

On 26 November 2014 the Migration Agency granted the applicants temporary residence permits for one year. It held that there were temporary impediments to the applicants’ expulsion due to the third applicant’s age, his need for rehabilitation after the surgery and the consequences for his health if the rehabilitation were to be interrupted. It further noted that if the third applicant needed additional rehabilitation after a year, he could submit a new application for a further stay of enforcement of the expulsion order.

In November 2015 the applicants submitted a new request to the Migration Agency to stay the enforcement of the expulsion order. They stated that the third applicant was in need of further surgery and extensive and long-lasting rehabilitation owing to his kyphosis. They relied on additional medical certificates which, inter alia, indicated that the third applicant’s kyphosis had worsened and that he was deemed to be in need of surgery in the coming years.

On 7 April 2016 the Migration Agency rejected the request. It found that it had not been shown that the third applicant’s health condition was of such a nature that it would not be possible to enforce the expulsion order. The Agency noted that the third applicant had become an adult and consequently the more generous rule applicable to children, which had previously been applied to him, was no longer applicable. Moreover, it observed that the medical certificates did not support the conclusion that the third applicant’s condition was acute, that he was in immediate need of additional surgery or that the medical care in question could be expected to lead to a substantial and permanent improvement in his condition or be of a life-saving nature. Furthermore, the previous rehabilitation, after the surgery in March 2014, was deemed to have been completed. The Agency therefore concluded that the third applicant’s health condition could not be considered as being so extremely serious that it would be unreasonable to enforce the expulsion order against him.

Subsequently, the applicants again renewed their request for a stay of the enforcement of the expulsion order. They submitted more medical documents, including one from a physician in Bosnia and Herzegovina stating that the third applicant’s case was complicated and that it would not be possible to perform all the surgery he needed there owing to his health complications.

On 27 May 2016 the Migration Agency rejected the request, with essentially the same reasoning as in its previous decision. It noted that the medical document from the physician in Bosnia and Herzegovina did not show that the third applicant had no possibility to receive the necessary health care in his home country.

Another request by the applicants for a stay of enforcement of the expulsion order was rejected by the Migration Agency on 5 July 2016, with essentially the same reasoning as in its previous decisions.

On 14 July 2016 the applicants lodged their application with the Court and requested that it apply Rule 39 of the Rules of Court. On 4 August 2016 the duty judge rejected the request for interim measures.

The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions.

Chapter 5, section 1, of the Aliens Act sets out that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on the grounds of race, nationality, religious or political beliefs, or on the grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2).

Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. According to the preparatory works (Government Bill 2004/05:170, pp. 190 and 280), life-threatening physical or mental illness may be a reason to grant a residence permit in Sweden. However, regard must be had to whether it is reasonable that the required care is provided in Sweden or whether adequate care can be provided in the alien’s country of origin. Moreover, the care provided in Sweden must be expected to lead to an evident and enduring improvement in the alien’s health or be necessary for his or her survival.

According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2).

Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under this criterion, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19).

Domestic laws on health care (published in the Official Gazette of FBiH, no. 46/10, and in the Official Gazette of RS, no. 106/09, 44/15) provide for a right to health care, on an equal basis, to persons with disabilities, and provide for specific forms of health care for such persons.

As concerns social protection, domestic laws provide for the preferential employment of persons with disabilities, professional rehabilitation, as well as training and the employment of individuals with disabilities and a lowered work capacity. Moreover, it enables persons with disabilities to obtain financial and material support for the purpose of equal opportunities, including the right to the care and assistance of others for persons with the most serious forms of disability, or persons who need assistance with undertaking their basic life needs (see the Law on professional rehabilitation and employment of individuals with a disability, published in the Official Gazette of FBiH, no. 9/10 and in Official Gazette of RS, no. 37/12, 82/15; the Law on mediation in employment and the social security of unemployed individuals, published in the Official Gazette of FBiH, no. 55/00, 41/01, 22/05 and 9/08; the Law on mediation in employment and on rights during unemployment, published in the Official Gazette of RS, no. 30/10, 102/12; the Law on the foundations of social protection, the protection of civilian victims of war and the protection of families with children, published in the Official Gazette FBiH, no. 36/99, 54/04, 39/06, 14/09; and the Law on social protection, published in the Official Gazette of RS, no. 37/12).

Legislation relating to education contains principles on the prohibition of discrimination of persons with disabilities and on the provision of equal opportunities for education through inclusive education or the establishment of special institutions (see, for example, the Framework Law on pre-school upbringing and education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 88/07; the Framework Law on elementary and high school education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 18/03, 88/07; and the Framework Law on higher education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 59/07 and 59/09).


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

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

The applicants were born in 1953 and 1950 respectively and live in Ankara. They are the parents of Mr Hüseyin Başbilen, who was an engineer working for Aselsan, a defence contractor that produces technology for the Turkish Armed Forces.

On 4 August 2006, at around noon, Mr Hüseyin Başbilen’s wife informed the police that her husband had been missing since the morning of the same day.

On 5 August 2006, at around 9 p.m., the mayor of Aydıncık village, in the district of Altındağ, in Ankara, informed the gendarmerie that there was a car in the vicinity of the cemetery of the village. When the gendarmerie arrived at the scene at 9.30 p.m., they found Hüseyin Başbilen’s dead body in his car.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1946 and lives in Matosinhos (Portugal).

On 11 January 2006 the applicant started eviction proceedings against three tenants before the Court of Matosinhos (domestic proceedings no. 355/06.3TBMTS).

On 23 February 2006 the court ordered their eviction and ordered the tenants to pay 2,170 euros (EUR) for rent arrears.

On 14 September 2006 the applicant started enforcement proceedings.

The following month the court ordered the seizure (penhora) of one third of one of the tenant’s income (executado). The payment of the debt began in December.

Meanwhile, the tenant had asked the court to reduce the deducted amount to one sixth of his salary. The court ordered that reduction on 10 January 2007.

The payments stopped on 7 October 2008, when the tenant became unemployed.

Between October 2008 and September 2009 the enforcement solicitor (solicitador de execução) tried to find attachable assets.

In September 2009 the parties made an agreement according to which the debtor’s wife would continue to pay the arrears in instalments, which she did for one year.

According to the last information received by the Court on 17 April 2013, the proceedings were pending.