No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Article 5-4 - Review of lawfulness of detention)

The applicant, a Syrian national, was born in 1993 and currently resides in Khartoum, Sudan.

On 24 April 2015 the applicant arrived in Russia, being in possession of a study visa. He enrolled in the Izhevsk State Technical University and had his registered residence in the town of Izhevsk. His visa expired on 26 April 2016.

On 4 May 2016 the applicant applied for refugee status alleging the risks to his life and safety in the light of the on-going conflict in Syria. The request and the subsequent appeals were dismissed by the Russian migration authorities and the courts.

On 8 June 2016 the applicant was arrested and put in detention by the migration authorities.

By a judgment of 9 June 2016 the Oktyabrskiy District Court of Izhevsk found the applicant in breach of migration rules, an offence under Article 18.8 § 1.1 of the Code of Administrative Offences, and ordered his expulsion. In order to facilitate enforcement, the court ordered that the applicant be placed in detention.

On 10 June 2016 the Supreme Court of the Udmurtiya Republic upheld the lower court’s judgment.

On 22 June 2016 the Court indicated to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited, expelled or otherwise involuntarily removed from Russia to Syria for the duration of the proceedings before the Court. Since that date the enforcement of the applicant’s expulsion was monthly postponed by the domestic courts.

On 13 January 2017 the Supreme Court of the Russian Federation on appeal amended the lower courts’ judgments and excluded administrative removal from the sanction, since it would have exposed the applicant’s life to risk in Syria.

On 20 January 2017 the applicant left Russia for Lebanon.


CASE OF MAGYAR HELSINKI BIZOTTSÁG v. HUNGARY

Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Egidijus Kūris;Ganna Yudkivska;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Kristina Pardalos;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Mahoney;Robert Spano;Ksenija Turković

The applicant, Magyar Helsinki Bizottság (Hungarian Helsinki Committee), is a non-governmental organisation (NGO) that was founded in 1989. It monitors the implementation of international human-rights standards in Hungary, provides legal representation to victims of alleged human-rights abuses and promotes legal education and training both in Hungary and abroad. Its main areas of activity are protecting the rights of asylum seekers and foreigners in need of international protection, and monitoring the human-rights performance of law-enforcement agencies and the judicial system. In particular, it focuses on access to justice, conditions of detention, and the effective enforcement of the right to defence.

Between 2005 and 2007 the applicant NGO conducted a project “Model Legal Aid Board Programme” aimed at developing and testing a model to overcome shortcomings in the system for the ex officio appointment of defence counsel. The study summarising the outcome of the project was published in 2007 under the title “Without Defence”, suggesting that there should be a standard set of criteria developed to assess the quality of defence counsel’s work.

In 2008, as a follow-up to its 2005-2007 survey, the applicant NGO launched a new project entitled “The Right to Effective Defence and the Reform of the ex-Officio Appointment System”. Together with the Ministry of Justice and Law Enforcement and various bar associations, the applicant NGO developed a questionnaire aimed at evaluating the performance of defence counsel. It also assessed the quality of legal representation provided by ex officio appointed and retained defence counsel, by examining the case files in 150 closed criminal cases. In parallel, the applicant NGO made a contribution in respect of Hungary to the comparative research project “Effective Defence Rights in the European Union and Access to Justice: Investigating and Promoting Best Practices” carried out in nine European countries and funded by the European Commission and the Open Society Justice Initiative.

The results of the two projects were presented at a conference in April 2009, the conclusions of which were summarised in the report “In the Shadow of Suspicion: A critical account of enforcing the right to an effective defence”.

In addition, the applicant NGO carried out continuous advocacy activities for reform of the ex officio appointments system; in cooperation with the Budapest Bar Association, it also drew up recommendations for a proposed code of professional ethics for ex officio defence counsel.

In the applicant NGO’s assessment, its research showed that the system of ex officio appointed defenders did not operate adequately, essentially because the investigative authorities, in particular the police, were free to choose defence counsel from a list compiled by the relevant bar associations. This gave rise to distrust on the part of defendants. Furthermore, according to the applicant NGO’s findings, many police departments had recourse to the same lawyers or law firms in the majority of cases, resulting in defence counsels’ dependency on ex officio appointments to earn their living. The applicant NGO also concluded that the selection system lacked transparency.

In 2009, in the framework of the project “Steps Towards a Transparent Appointment System in Criminal Legal Aid”, an experimental method was put in place, in cooperation with the applicant NGO, the county bar associations and certain county police departments. A key facet of this method was replacement of the existing system of discretionary appointments by a randomised computer-generated one.

As a feature of the project, the applicant NGO requested the names of the public defenders selected in 2008 and the number of assignments given to each lawyer from a total of twenty-eight police departments, situated in the seven Hungarian regions. The aim of the data request was to demonstrate whether there existed discrepancies in police departments’ practice in appointing defence counsel from the lists provided by the bar associations. These requests were made under section 20 (1) of Act no. LXIII of 1992 (“the Data Act”). The applicant NGO maintained that the number of defence counsel appointments was public-interest data (közérdekű adat) and that thus the names of defence counsel were data subject to disclosure in the public interest (közérdekből nyilvános adat).

Seventeen police departments complied with the request; a further five police departments disclosed the requested information following a successful legal challenge by the applicant NGO.

On 18 August 2009 the applicant NGO addressed the same request to the Hajdú-Bihar County Police Department, seeking access to information concerning the names of defence counsel appointed in the police department’s area of jurisdiction and the number of appointments given to each defence counsel.

In its response of 26 August 2009 the Hajdú-Bihar County Police Department refused the applicant NGO’s request, stating that “the names of the defence counsel are not public-interest data nor information subject to disclosure in the public interest under section 19(4) of the Data Act, since defence counsel are not members of a body performing State, municipal or public duties. Thus their names constitute private data, which are not to be disclosed under the law”. The police department also referred to the disproportionate burden the provision of the data would impose on it.

A similar request by the applicant NGO was rejected by the Debrecen Police Department on 27 August 2009.

On 25 September 2009 the applicant NGO brought an action against these two police departments, arguing that ex officio defence counsel performed a duty in the interest of the public which was financed from public funds. Data concerning them thus qualified as information subject to disclosure in the public interest.

In its counter-claim, the Hajdú-Bihar County Police Department maintained its view that the names of defence counsel constituted personal data rather than information subject to disclosure in the public interest, since they neither carried out their tasks within the scope of the duties and competences of the police departments, nor were they members of those bodies. It further maintained that processing the data requested by the applicant NGO would entail a prohibitive workload.

The Debrecen Police Department requested the discontinuation of the proceedings.

The Debrecen District Court joined the two cases. On 21 October 2009 the District Court found for the applicant NGO, ordering the respondents to release the relevant information within 60 days.

The court found that although defence counsel did not qualify as persons performing public duties, they were also not employees or agents of the respondent police departments, and the question whether defence was an activity of a public-interest nature was a matter which should be assessed with reference to its aim and role. Referring to Article 46 of the Code of Criminal Procedure on mandatory defence and to Article 48 of the same Code on the investigative authorities’ duty to appoint defence counsel under certain conditions, the court observed that the duties of the investigative authorities also included giving effect to the constitutional right to defence. The court concluded that measures concerning the exercise of mandatory defence qualified as public-interest activities, and any related data were of great importance for society and were not to be considered as a matter of personality rights or subject to the protection of private interests. The names of defence counsel and the number of their respective appointments did not therefore constitute information of a private nature, in relation to which disclosure would only be possible with the approval of the person concerned. The court went on to state that, given the public-interest nature of mandatory defence, the interest in informing society seemed to be stronger than the need to protect privacy, which in any case was not infringed since the role of defence counsel was public from the moment of indictment. The court ordered the respondents to surrender the information requested.

Both police departments appealed, reiterating in essence their argument that the names and number of appointments of defence counsel did not represent information subject to disclosure in the public interest, but personal data, since those persons did not perform State, municipal or public duties. They also maintained that the transfer of the requested information would cause an undue burden.

In its judgment of 23 February 2010, the Hajdú-Bihar County Regional Court, acting as a second-instance court, overturned the firstinstance judgment and dismissed the applicant NGO’s claim in its entirety. The court rejected the applicant NGO’s argument that ex officio defence counsel exercised public functions within the meaning of the Data Act. In the court’s view, the provisions of the Code of Criminal Procedure relied on by the applicant NGO provided for equal recognition before the law and for the right to defence and imposed a duty on the State to ensure these rights. However, the provisions did not prescribe that the activities of ex officio defence counsel were public duties, irrespective of the fact that they were financed by the State. The court held that the duty of the police to appoint defence counsel in certain cases was to be distinguished from the latter’s activities. It noted that personal data could only be processed under section 5(1) of the Data Act for a well-defined purpose in the exercise of a right or in fulfilment of an obligation, and that personal data processed by the police departments could only be transferred with the permission of the person concerned.

The applicant NGO sought review of the second-instance judgment, maintaining that although the names of the defence counsel and the number of their respective appointments were personal data, this was nevertheless information subject to disclosure in the public interest as being related to the public duties carried out by ex officio defence counsel.

The Supreme Court dismissed the applicant NGO’s petition for review on 15 September 2010. It upheld the Regional Court’s judgment in substance, partly modifying its reasoning.

The Supreme Court held as follows:

“... [W]hat needs to be examined is whether defence counsel are to be considered ‘other persons performing public duties’. The Supreme Court considers, in compliance with Recommendation no. 1234/H/2006 of the Parliamentary Commissioner for Data Protection, that the question of whether an individual was a person performing public duties has to be determined solely on the basis of the provisions of the Data Act. Only a person vested with independent powers and competences is to be considered a person performing public duties.

In answering this question [of interpretation of the notion of ‘persons performing public duties’], the applicant’s argument concerning Article 137(2) of the Criminal Code is irrelevant, since that provision only prescribes that defence counsel were to be regarded as persons performing public duties for the purposes of the Criminal Code itself, but not for the purposes of the Data Act or for any other legal relationship.

Under Article 57 § 3 of the Constitution, the State has a duty to secure the right to defence. The courts, the prosecution services and the investigative authorities perform this task by, in particular, ensuring the right to defence (Article 5 § 3 of the Code of Criminal Procedure) and by appointing defence counsel when required under Articles 46 and 48 of the Code of Criminal Procedure. In so doing, these bodies accomplish their public duties, which are thus terminated with the appointment of defence counsel. Following his or her appointment, a defence counsel’s activities constitute private activities although they are performed in pursuance of a public goal.

The court has thus found that defence counsel cannot be regarded as ‘other persons performing public duties’, since no powers or competences defined by law are vested in them. The mere fact that procedural laws specify rights and obligations in respect of persons performing the task of defence counsel in criminal proceedings cannot be interpreted as constituting powers and competences defined by law. In respect of the right to defence, the Code of Criminal Procedure prescribes obligations only for authorities, not for defence counsel. The wording of Article 1 of the Code of Criminal Procedure, which states that prosecution, defence and adjudication are separate tasks, also supports this view.

Thus, the names and number of appointments of defence counsel constitute personal data under section 2(1) of the Data Act. Accordingly, under section 19(4) of the Data Act, the respondent police departments cannot be obliged to surrender such personal data. It follows that the second-instance court was right to dismiss the applicant’s action.”


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

András Sajó;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was the CEO (Chief Executive Officer) and majority shareholder of a commercial company, SC “L” SA, which had been Stateowned until 1995; the company was based in Târgu Jiu and between 1998 and 2002 was listed in the top three most valuable private companies in Gorj County.

Between 1997 and 2004 a number of shareholders and employees of the company lodged criminal complaints against the applicant concerning the alleged improper manner in which he conducted his professional activity as manager of the company during and after its privatisation. Several criminal investigations were accordingly conducted in respect of the applicant, which were ongoing at the time of the relevant events; none of them led to his indictment.

On 24 September 2004 C.P., a journalist with the local newspaper Impact de Gorj published an article entitled “Who do we call when we disregard the law?” (La cine apelăm când încălcăm legea?).

The article, in its relevant parts, read as follows:

“It is with regret that we have to make an absolutely necessary response to an unacceptable act of servitude of the press. A so-called journalist of the once serious Gorjeanul, decided to defend, through some completely unverified articles, the CEO of the company “L” S.A., Ovidiu Caragea, and to transform him from a dirty person into a clean one. It is true that corrupt members of the Romanian legal establishment, including county prosecutors, have cleared the CEO of S.C. “L” SA (l-au scos basma curată) in contradiction of the clear facts and the written evidence. Ovidiu Caragea has managed the company in a completely dictatorial style, to shareholders’ cost, with serving his personal interest as the only aim.

It is regrettable that colleagues from the daily Gorjeanul have taken to defending persons of dubious morality, perhaps even criminals, aiming neither to properly inform the readers nor to provide a space for regular advertising. In none of these cases has the author of the article had the courage to write under his or her true name. What the readers should know is that when an investigation is made public in the press – even though Gorjeanul invented the term “positive investigation” (assuming that such a thing could possibly exist) – the author should make their real name public so as to take responsibility and very often to be sworn at. The fact that the articles praising G.N., who brought the OJT Gorj [the County Tourist Office] to disaster, or those praising D.I.M. did not have real names in the byline, proves the lack of responsibility and the sense of shame emanating from the words written in the paper. Not only should the author be held accountable for this practice; so should the management of the publication, who should not accept it as it has nothing to do with the respect ... owed to the reader.

These statements are not an attack on our colleagues in Gorjeanul, the oldest publication in the city, but are the opinion of one man who wants to find out who is the slave (slugoiul) who signed one or other of these articles, in order to discover who is the pawn for those who cannot be portrayed positively in the press after having defrauded their business partners. It is worth mentioning that our newspaper has published a few articles relating to the irregularities in the company “L” S.A. The documents we have clearly prove that what has happened has nothing to do with legality, but these have not attracted the interest of our colleagues in the other county newspaper; their only interest is, in many cases, “brown-nosing” (“de a-i spăla la fund”) those who fail to comply with the law. We mustn’t forget the hosannas to honour N.M. and the editorial subordination shown to D.I.M. What a pity!”

On 17 November 2004 the applicant lodged before the Târgu Jiu District Court a criminal complaint for defamation against C.P., the author of the above article. The applicant argued that the expressions that had been used by the journalist, who had associated him with “persons of dubious morality, perhaps even criminals”, had damaged his good reputation and put at risk his relations with business partners on a local and national level, thus endangering the financial situation of his company. He stated that none of the charges referred to in the article had led to him being indicted.

On 28 March 2005 the court acquitted C.P. Having analysed the content of the article and the witnesses’ testimonies, it held that the journalist’s intention had not been to defame the applicant but merely to make his opinion regarding the applicant’s activity public, and to highlight the dispute with other local journalists who had written articles praising the applicant. As the disputed acts had not severely damaged the dignity and the reputation of the applicant, his request for non-pecuniary compensation was dismissed.

The applicant appealed claiming that: the journalist had previously been convicted several times for defaming other third parties in his newspaper, showing his perseverance in using the press to insult others; and the article was part of a revenge campaign by the journalist. According to the applicant, the journalist’s publishing company operated on commercial premises owned by the company “L” SA; the applicant brought a civil suit against the publishing company for rent arrears, and when the claims were granted, the journalist asked that the publisher’s debt be written off in exchange for favourable publicity in the press; the proposal was turned down; hence the appearance of the disputed article a few months later.

On 6 June 2005, the Gorj County Court dismissed the applicant’s appeal. The court stated that as the applicant had been the subject of criminal prosecution for the manner in which he had conducted his job as CEO of his company, there had been sufficient factual basis for the article, which in any case had been merely a response to another article praising the applicant published in a different newspaper. The court pointed out that the role of the press was to inform the general public and that the journalist had had no intention to defame the applicant, only to express his opinion concerning the latter’s professional activity as CEO of an important company in the city of Târgu Jiu.


Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant, Mr Ferenc Bošnjak, is a dual Serbian and Australian national who was born in 1952 and lives in Melbourne, Australia. He was represented before the Court by Mr J. Remenović.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent at the time, Ms M. Mijić.

The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

The applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“SFRY”). The present case concerns his attempt to regain possession of a flat he had bought in Sarajevo before the 1992-95 war.

The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia and Herzegovina is provided in Đokić v. Bosnia and Herzegovina (no. 6518/04, §§ 5-17, 27 May 2010), and Mago and Others v. Bosnia and Herzegovina (nos. 12959/05 et al., §§ 5-8, 3 May 2012).

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

In May 1983 the applicant was granted the right to occupy a military flat in Sarajevo.

On 10 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 211,415 Yugoslav dinars (approximately 2,510 German marks at the time).

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 1997.

On 22 August 1996 the relevant housing authority of the VJ forces rejected a request submitted by the applicant to be granted a tenancy right in respect of a military flat in Serbia.

On 10 March 1997 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat in question to M.A., a member of the Army of the Republic of Bosnia and Herzegovina.

In 1998 the applicant applied to the competent administrative authority in the Sarajevo Canton for the restitution of his flat. On 11 March 2003 his application was rejected under section 3a of the Restitution of Flats Act 1998. On 20 November 2003 the competent Ministry of the Sarajevo Canton upheld that decision.

On 28 January 2003 the restitution commission set up by Annex 7 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Peace Agreement”), before which the applicant pursued parallel proceedings, held that the applicant was neither a refugee nor a displaced person within the meaning of Annex 7, and declined jurisdiction.

On an unspecified date the applicant lodged an application with the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement). He relied on Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

On 6 July 2005 the Human Rights Commission (which had succeeded the Human Rights Chamber in 2004) found a violation of Article 6 of the Convention on account of the length of the restitution proceedings and awarded the applicant 1,000 convertible marks (BAM; approximately 500 euros (EUR)) for non-pecuniary damage in this connection. As regards the complaint under Article 1 of Protocol No. 1, the Human Rights Commission held that the situation complained of, that is, the applicant’s inability to regain possession of the flat and to register his title to it, undoubtedly amounted to a continuing interference with the peaceful enjoyment of his “possessions”. Assessing the proportionality of the interference, the Human Rights Commission held that the applicant’s continued service in the VJ forces after the 1992-95 war demonstrated his disloyalty to Bosnia and Herzegovina. Taking into consideration also the serious shortage of housing units and the compensation to which the applicant was entitled, the Human Rights Commission concluded that the interference was justified. It therefore found no violation of Article 1 of Protocol No. 1 to the Convention and considered it to be unnecessary to examine the discrimination and Article 8 complaints. However, it ordered the government of the Federation of Bosnia and Herzegovina to secure the applicant’s right to compensation for his flat under section 39e of the Privatisation of Flats Act 1997 without further delay and at the latest within three months of the delivery of that decision.

On 19 April 2007 the applicant received BAM 21,868.51 (approximately EUR 11,214.62) in compensation for his flat, as ordered by the Human Rights Commission.

On 22 December 1995 all purchase contracts concluded under the Military Flats Act 1990 were declared void under legislation transferring the resources of the former SFRY to the Republic of Bosnia and Herzegovina (Zakon o preuzimanju sredstava bivše Socijalističke Federative Republike Jugoslavije u svojinu Republike Bosne i Hercegovine, Official Gazette of the Republic of Bosnia and Herzegovina nos. 6/92, 13/94, 50/95 and 2/96). Thereafter, the legislation regulating this matter, the Privatisation of Flats Act 1997 (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina (“OG FBH”) nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09) and the Restitution of Flats Act 1998 (Zakon o prestanku primjene Zakona o napuštenim stanovima, OG FBH nos. 11/98, 38/98, 12/99, 18/99, 27/99, 43/99, 31/01, 56/01, 15/02, 24/03, 29/03 and 81/09) underwent numerous changes and all such contracts were declared legally valid.

Nevertheless, two categories of buyers are not entitled to repossess their flats and to register their title to them (section 39e of the Privatisation of Flats Act 1997 and section 3a of the Restitution of Flats Act 1998). The first category concerns those who served in foreign armed forces after the 1992-95 war. The second concerns those who acquired occupancy or equivalent rights to a military flat in a successor State of the SFRY. However, they are entitled to compensation under section 39e of the Privatisation of Flats Act 1997. The compensation was initially calculated on the basis of approximately EUR 300 per square metre, adjusted in line with the age of the flat, with depreciation set at 1% of its value per year. On 11 July 2006 section 39e of the Privatisation of Flats Act 1997 was amended so that those who could not repossess their flats were entitled only to a refund of the amount paid for the flats in 1991/92, plus interest at the rate applicable to overnight deposits.

On 30 March 2012, following the Court’s judgment in the case of Đokić v. Bosnia and Herzegovina, cited above, the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) declared that section 39e as amended in July 2006 was unconstitutional and ordered the Federation of Bosnia and Herzegovina to amend it (decision no. U 15/11). The Constitutional Court stated, in particular:

“The Constitutional Court cannot determine what the compensation [for military flats] should be. That question is within the jurisdiction of the Parliament of the Federation of Bosnia and Herzegovina, which in its role of a legislative body will determine the policy concerning this matter. However, the Constitutional Court believes that in determining this matter the legislator should take into account the circumstances in which the impugned flats were purchased, the economic situation in Bosnia and Herzegovina and the fact that Article 1 of Protocol No. 1 of the European Convention does not guarantee a right to full compensation in all circumstances.”

In 2011 and 2013 the Federation of Bosnia and Herzegovina adopted action plans in response to the Court’s judgments in the cases of Đokić and Mago and Others (both cited above) with a view to identifying similar cases and introducing an adequate compensation scheme. It was established that around 800 individuals were in the same situation as the applicants in those cases (out of which 224 had purchased their flats). It was further estimated that around EUR 6 million should be secured to pay the compensation for their pre-war homes.

In March 2016 the Government of the Federation of Bosnia and Herzegovina prepared draft amendments to section 39e of the Privatisation of Flats Act 1997. The amendments provide that the amount actually paid for the flats in 1991/92, plus interest at the rate applicable to overnight deposits, will be refunded to those who acquired a tenancy right or another equivalent right to a military flat in one of the successor States of the SFRY. Those who did not acquire such rights, irrespective of whether they purchased or had an occupancy right in respect of the flats, will be entitled to compensation calculated at a rate of approximately EUR 300 per square metre, adjusted in line with the age of the flat, with depreciation set at 1% of its value per year. As explained above, the same method was used before the July 2006 legislative amendments (see paragraph 18 above). The eligible beneficiaries would be entitled to apply for compensation within 180 days of the adoption of the amendments. The compensation would be payable in two equal annual instalments.


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

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1978. He is Polish and lives in Kent, the United Kingdom. He is married to M.J., who is also Polish. In 2005 the couple moved to the United Kingdom. Their daughter was born there in January 2010. Parental responsibility was exercised jointly by both parents.

On 17 July 2012 M.J. and the child went to Poland on holiday, with the applicant’s consent. On 9 September 2012 M.J. informed the applicant that she was not coming back to the United Kingdom with the child.

On 21 September 2012 the applicant applied to the United Kingdom Central Authority for a return order for the child under the Hague Convention.

It appears that in mid-October 2012 the application was registered with the Grudziądz District Court. Judge D.K. was assigned to preside over the case.

In response to the applicant’s request, M.J. submitted that in 2011 she and her husband had become distant from each other; the applicant had lost interest in his family and had been spending his spare time playing computer games. For those reasons, and also out of fear that the child would never again be allowed to leave the United Kingdom, M.J. did not agree to her daughter’s returning to the United Kingdom alone and informed the domestic court that she did not wish to go back there with the child.

The first hearing was held on 19 December 2012 before the Grudziądz District Court, with Judge D.K. presiding. The applicant and his lawyer attended the hearing.

The second hearing was held on 4 February 2013 before the same judge. The applicant and his lawyer attended the hearing. The domestic court heard two witnesses and ordered a report of experts in psychology from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno Konsultacyjny “RODK”).

On 22 March 2013 the experts examined the applicant, M.J. and the child, who was three years old at the time. The report was issued on 17 April 2013.

The third hearing was held on 8 May 2013 before Judge D.K. At this hearing, the Grudziądz District Court decided to dismiss the applicant’s request for the child’s return (III Nsm 999/12).

The first-instance court ruled on the basis of the following evidence: testimony of the applicant, M.J. and the members of both families and the RODK experts’ report.

The RODK experts were ordered to make the following assessment:

“whether moving [the child] into her father’s care, linked with her separation from the mother, would disturb [the child’s] sense of security and would affect her emotional state in a negative way; or is it recommended, [with a view to] the adequate psycho-physical development of the child, to [put the child under the father’s care] linked with [giving] an order to surrender the child by the mother.”

The experts concluded that “the child’s return to the United Kingdom and her separation from the mother”, her primary caregiver, “would cause more emotional harm to the child than the lack of daily contact with her father.” In particular, the child’s sense of security and stability could be disturbed. To this effect the report read as follows: “Considering the [young] age and the sex of the child, it must be stated that the mother is currently best suited to satisfy her daughter’s needs.”

The experts also noted that the child was emotionally attached to both parents; she was developing well; perceived Poland and the United Kingdom on an equal footing; spoke Polish and had adapted well to her new life in Poland. It was recommended that the child should stay with her mother in Poland and have regular contact with her father.

The first-instance court considered that the RODK’s report was thorough, clear and of a high evidentiary value.

On the merits, the Grudziądz District Court considered that it was called to examine “the relationship between the child and [each of] the parents, her physical and psychological development and also, any [possible] physical or psychological harm [which could occur] in the event of the child’s return to her father without the mother.”

The domestic court attached importance to the young age of the child (who was three years and four months old at the time of the ruling) and the fact that the mother had always been the child’s primary caregiver. The reasons for the mother’s refusal to return to the United Kingdom together with the child were not discussed by the domestic court. The district court held, relying on the experts’ report, that there was a grave risk of psychological harm if she were to return to the United Kingdom without her mother. It was noted that Article 13 (b) of the Hague Convention protected abducted children to such a great extent that it did not allow for their return if that was going to place them in a “disadvantageous situation” (w niekorzystnej sytuacji).

The applicant appealed, arguing among others the following points of fact and law: the first-instance court ruled in breach of Article 13 (b) of the Hague Convention, firstly in that they concluded that in re was a grave risk that the child’s return to the United Kingdom would expose her to intolerable psychological harm and would place her in a disadvantageous situation, and secondly in that they wrongly assumed that the child would have to be separated from the mother even though the latter had not cited any objective obstacles to her returning to the United Kingdom; the first-instance court ruled in breach of Article 3 of the Convention on the Rights of the Child and its general directive that the best interest of the child be protected; the facts as established by the domestic court contradicted the evidence produced in the course of the proceedings; the court’s conclusion that the child’s return would expose her to intolerable psychological harm contradicted the findings of the expert report; and the court should not have refused to adjourn the hearing at which the applicant was not represented by a lawyer.

At the appellate hearing, the applicant also argued (6) that the experts in psychology who had drafted the RODK’s report for the firstinstance court were incompetent.

On 14 October 2013 the Toruń Regional Court dismissed the appeal (IV Ca 1865/12).

The appellate court fully relied on the findings of fact made by the first-instance court, and held that the child’s return to the United Kingdom with or without the mother would place her in an intolerable situation (“w sytuacji nie do zniesienia”). Firstly, in view of the child’s very young age and the fact that since the retention the child had been under her mother’s care practically round the clock and that her contact with the applicant had been rare, the child’s separation from her mother would cause negative and irreversible consequences. Secondly, the child’s return with her mother would not have a positive impact on the child’s development either. To this effect, it was noted that M.J. had never adapted to her life in the United Kingdom; she was in conflict with the applicant and her departure from Poland would be against her will and forced by the circumstances.

As to the remaining grounds of the applicant’s appeal, the regional court ruled in the following manner: contrary to the applicant’s impression, the RODK’s report was clear and adamant in its conclusion that the child’s best interest would be better served if she were allowed to stay in Poland with her mother; in view of the fact that the applicant’s lawyer had gone on holiday and the applicant had not agreed to be represented by a substitute lawyer, granting his motion for adjournment was not justified; and the argument about the incompetence of the RODK’s experts was, firstly, belated (the applicant had not raised that issue before the first-instance court or in his appeal) and, secondly, inconsistent with the applicant’s reliance on the impugned report in support of his remaining arguments.

At the first hearing, held on 19 December 2012 by the Grudziądz District Court, the applicant’s lawyer applied, expressly citing Article 21 of the Hague Convention, for arrangements for organising and securing the effective exercise of the applicant’s right of contact during the Hague Convention proceedings.

The domestic court did not rule on that application.

On 28 December 2012 the applicant applied to the Grudziądz District Court for a contact order in respect of the child. He did not rely on Article 21 of the Hague Convention. He asked, inter alia, for an interim order to be issued obliging M.J. for the duration of the Hague Convention proceedings to allow him to take the child to his house every second and fourth weekend of the month from 3 p.m. on Friday until 8 p.m. on Sunday, and to talk to the child by telephone or Skype every Monday, Wednesday and Friday between 4 p.m. and 7 p.m.

On 28 February 2013 the Grudziądz District Court, with D.K. as the presiding judge, decided under Article 445 1 § 1 and 2 of the Code of Civil Procedure to stay the proceedings concerning the applicant’s contact with the child until the end of the couple’s divorce proceedings, which had been instituted before the Toruń Regional Court on 14 January 2013 (III. R. Nsm 35/13).

On 25 March 2013 the divorce application lodged by M.J. (IC 117/13) was rejected by the Toruń Regional Court, with S.M. as the presiding judge accompanied by two lay judges. The regional court favoured the jurisdiction of the English courts because the last common place of residence of the couple was in Maidstone, the United Kingdom. On 24 June 2013 the Gdańsk Court of Appeal, with D.K. as the presiding judge, dismissed M.J.’s interlocutory appeal against that decision.

The applicant submitted that when the Hague Convention proceedings had been pending in Poland, he had seen his daughter on several occasions, in the mother’s house and in her presence.

On 28 November 2014 the Grudziadz District Court issued a decision on the applicant’s contact with his daughter. A copy of this decision has not been submitted to the Court. It appears that the applicant was authorised to see his daughter the second and the fourth weekend of every month; during one week of winter holidays; during two weeks of summer holidays and on selected days of Christmas and Easter holidays. It appears that the applicant did not appeal against this decision.

On 31 August 2015 the Grudziądz District Court, with D.K. as presiding judge, confirmed that the above-mentioned decision was binding and enforceable as of 8 July 2015.

Divorce proceedings are currently pending in the United Kingdom.


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani

The applicant, Mr Mojsije Vučeljić, is a Montenegrin national who was born in 1944 and lives in Podgorica.

On 28 March 2005 the applicant and his siblings (“the plaintiffs”) instituted civil proceedings against: (a) the State, as the founder of the public broadcasting service, Radio Televizija Crne Gore (“RTCG”), and (b) G.K., one of RTCG’s employees. They submitted that a television programme transmitted by the RTCG had portrayed their late father in a way which was insulting to both him and his family.

On 22 March 2011, after two remittals, the Court of First Instance (Osnovni sud) in Podgorica ruled against the plaintiffs.

On 2 April 2012 the High Court (Viši sud) in Podgorica overturned the judgment of the first-instance court and ruled partly in favour of the plaintiffs, ordering the State to pay each of them compensation in respect of non-pecuniary damage in the amount of 1,000 euros (EUR) with accompanying interest. The court dismissed their claim in respect of G.K. and ordered them to pay him the costs of the respective proceedings. On 7 December 2012 the same court issued an additional judgment ordering the State to make the High Court’s judgment of 2 April 2012 public via RTCG and to pay the plaintiffs the costs of the proceedings in connection therewith.

On 23 January 2013 the Supreme Court dismissed appeals on points of law that had been lodged by the plaintiffs.

On 25 February 2013 the plaintiffs filed an enforcement request (predlog za izvršenje). On 7 April 2014, after two remittals, the Court of First Instance issued an enforcement order, followed by an additional order of 27 May 2014.

The applicant did not file a request for review while the proceedings (both civil and enforcement) were ongoing or an action for fair redress once they were concluded (see paragraph 22 below).

On an unspecified date the plaintiffs lodged a constitutional appeal. On 22 December 2013 the Constitutional Court informed them that the constitutional appeal was incomplete and invited them to amend it within eight days or it would be rejected. On 5 January 2015 the applicant lodged another appeal with the Constitutional Court. On 21 April 2015 the Constitutional Court rejected (odbacuje se) the applicant’s constitutional appeal for not having been amended as requested and because “it [did] not contain the reasons from which it could be concluded why and in what way the applicant’s constitutional rights and freedoms were violated”.

Article 32 provides for the right to a fair trial.

Article 149 provides that the Constitutional Court will rule on any constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, once all other effective legal remedies have been exhausted.

The Constitution entered into force on 22 October 2007.

Section 48 provided that a constitutional appeal might be lodged against an individual decision of a State body, an administrative body, a local government body or a legal person exercising public authority, in respect of violations of human rights and freedoms guaranteed by the Constitution, once all other effective legal remedies had been exhausted.

Sections 49-59 provided additional details as regards the processing of constitutional appeals. In particular, section 56 provided that in cases where the Constitutional Court found a violation of a human right or freedom, it would quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which had delivered the quashed decision.

This Act entered into force in November 2008 and was repealed by the Constitutional Court Act 2015.

Section 68 provides that a constitutional appeal can be lodged by a physical person or legal entity, an organisation, a community (naselje), a group of individuals, and other forms of organisation which do not have the status of a legal entity if they consider that one of their human rights or freedoms guaranteed by the Constitution has been violated by an individual decision, action or omission of a State body, an administrative body, a local government body or a legal person exercising public authority, once all other effective legal remedies have been exhausted.

Sections 69-78 provide further details as regards the processing of constitutional appeals.

In particular, section 69 provides, inter alia, that if the complaint relates to a court’s failure to act within a reasonable time, a constitutional appeal can be lodged only if the remedies provided for by the Right to a Trial within a Reasonable Time Act have already been exhausted or if an appellant can prove that these remedies were not or would not have been effective.

Section 76 provides that if in the course of proceedings before the Constitutional Court, an impugned decision has ceased to be in force, and the Constitutional Court finds a violation of a human right or freedom, it will allow a constitutional appeal and award the appellant just satisfaction.

Section 38 provides that the Constitutional Court must deliver a decision within 18 months of the date on which the proceedings before that court were initiated.

This Act entered into force on 20 March 2015 and thereby repealed the Constitutional Court Act 2008.

This Act makes provision, under certain circumstances, for the possibility to have lengthy proceedings expedited by means of a request for review (kontrolni zahtjev), and for the opportunity for claimants to be awarded compensation by means of an action for fair redress (tužba za pravično zadovoljenje). In particular, section 33 provides, inter alia, that an action for fair redress can be lodged by a party who has previously made use of a request for review or who objectively was not able to do so. The action for fair redress must be filed with the Supreme Court no later than six months after the date of receipt of the final decision delivered in the impugned proceedings. This Act entered into force on 21 December 2007.

For the Constitutional Court’s relevant practice see Siništaj and Others v. Montenegro, nos. 1451/10, 7260/10 and 7382/10, §§ 94-98, 24 November 2015.


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

Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1944 and lives in Petrinja.

On 9 October 2000 the applicant lodged a civil action in the Sisak Municipal Court (Općinski sud u Sisku) seeking payment of unpaid pension instalments.

On 4 July 2002 the Sisak Municipal Court stayed the proceedings pending the outcome of the parallel administrative proceedings before the Croatian Pension Fund (Hrvatski zavod za mirovinsko osiguranje). The applicant appealed.

On 16 January 2003 the Sisak County Court (Županijski sud u Sisku) dismissed the applicant’s appeal.

On 5 January 2012 the Sisak Municipal Court resumed the proceedings.

On 10 February 2012 the Sisak Municipal Court adopted a judgement and the applicant appealed.

On 31 May 2012 the Sisak County Court dismissed the applicant’s appeal and upheld the first-instance judgment.

Meanwhile, on 24 November 2011 the applicant lodged a request for the protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Sisak County Court, complaining about the length of the above civil proceedings.

On 24 January 2012 the Sisak County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded him 4,500 Croatian kunas (HRK) in compensation and ordered the Sisak Municipal Court to decide on the applicant’s case within six months of the service of its decision.

Following an appeal by the State Attorney, on 4 June 2012 the threemember panel of the Supreme Court reduced the amount of compensation awarded to HRK 500.

The applicant then lodged a constitutional complaint and on 18 October 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) declared it inadmissible.

On 19 April 2001 the Croatian Pension Fund, Sisak Regional Office (Hrvatski zavod za mirovinsko osiguranje, Područni ured u Sisku) decided about the applicant’s request for payment of his pension arrears.

On 15 May 2001 the applicant appealed.

On 13 July 2001 the Croatian Pension Fund, Central Office (Hrvatski zavod za mirovinsko osiguranje, Središnji ured) dismissed the applicant’s appeal.

Following the applicant’s administrative action, on 2 March 2006 the Administrative Court (Upravni sud Republike Hrvatske) quashed the second-instance decision and remitted the case to the Central Office.

On 8 May 2006 the Central Office quashed the first-instance decision and remitted the case to the Sisak Regional Office.

On 18 September 2006 the Sisak Regional Office adopted a new decision and the applicant again appealed.

On 3 April 2007 the Central Office dismissed the applicant’s appeal.

On 7 July 2011 the Administrative Court dismissed the applicant’s subsequent administrative action.

On 12 May 2011 the applicant lodged a request for the protection of the right to a hearing within a reasonable time with the Supreme Court (Vrhovni sud Republike Hrvatske) complaining about the length of the above administrative proceedings.

By a decision of 5 October 2011 the Supreme Court found a violation of the applicant’s right to a hearing within a reasonable time and awarded him HRK 6,500 in compensation.

The applicant appealed and on 7 September 2012 the three-judge panel of the Supreme Court dismissed his appeal as ill-founded.


Preliminary objection dismissed (Article 34 - Victim);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The first applicant was born in 1948, the second applicant was born in 1976, the third applicant was born in 1980 and they all live in Slatina. The fourth applicant was born in 1956 and lives in Osijek, and the fifth applicant was born in 1949 and lives in Josipovac.

The first applicant is the husband, the second and third applicants are children, and the fourth and fifth applicants are sisters of the late M.B.B., a lawyer who was based in Slatina.

M.B.B. represented M.N. in divorce proceedings instituted in December 2001 in the Slatina Municipal Court (Općinski sud u Slatini) against her husband, A.N.

A first hearing in those proceedings was held on 12 February 2002, attended by the parties and the lawyer M.B.B. The court heard the parties’ arguments and decided to request a report from the local social services. It then adjourned the hearing until 9 April 2002.

According to A.N.’s police records, he had a history of alcohol abuse, violent behaviour and unlawful possession of firearms. In May 1993 the Slatina Police (Policijska Postaja Slatina – hereinafter “the police”) instituted minor offences proceedings against him for beating up his daughter and wife under the influence of alcohol and making serious threats using firearms. On that occasion, the police seized from A.N. a rifle with a dozen bullets and a hand grenade. There is, however, no further information on the outcome of these proceedings. Furthermore, between 2000 and 2002 A.N. was reported three times for family violence and twice for a breach of the peace and public order, and in May 2001 the police lodged a criminal complaint against him with the State Attorney’s Office for making serious death threats to his wife.

On 16 October 2000 the Slatina Minor Offences Court (Prekršajni sud u Slatini) found A.N. guilty of the minor offence of family violence and fined him 500 Croatian kunas (HRK). During the proceedings, M.N. explained that the divorce proceedings were pending before the courts and that A.N. had contested them. She also explained that she had ended up in hospital after having been severely beaten by A.N.

On 25 July 2001 the Slatina Municipal Court found A.N. guilty of the criminal offence of making serious death threats to his wife and sentenced him to two months’ imprisonment, suspended for one year.

According to a police report drawn up on 25 March 2002, M.N., accompanied by A.N., attended the police station on 21 March 2002, alleging that her husband had been harassing her. She made no other complaints of possible threats or violence. She further explained that A.N. had previously beaten her up and had been convicted in the minor offences and criminal courts. She also pointed out that their divorce proceedings were pending and that a hearing was scheduled for 9 April 2002. On the same occasion, A.N. argued that he did not want his wife to see other men. The police officer who interviewed the couple, Ž.J., warned A.N. to stop harassing his wife and instructed them to settle all their disputes in the divorce proceedings. The report also contains a note suggesting that during the interview, A.N. and M.N. showed no signs of aggression, alcohol abuse or agitation.

Afterwards, police officer Ž.J. informed his superior officer, M.Kr., of the interview. He was told to make a short note of the event in the logbook and that it was not necessary to draft a report or take any further action.

According to further police reports, at around 7 a.m. the following day, A.N. went to a bank in Slatina with the intention of withdrawing all his money. He told a bank employee, D.K., whom he had met before, that they would not see each other again. While speaking to the bank employee, A.N. was in tears. When she asked him what was troubling him, he said that “it will be talked about”. He also shook hands with several other people who then told the bank manager, F.S., to contact the police. F.S. followed A.N. out of the bank and asked him what was troubling him. A.N. responded that he was sick of everything; his wife, who was having affairs with other men, and his son, who was a drug addict, and that he was going to do something and nobody could stop him.

At 7.15 a.m. F.S. informed the police of the event, saying that he was afraid that A.N. could do something to himself or others.

At 7.17 a.m. an on-duty commanding officer, T.S., sent a patrol of two police officers, M.L. and I.B., to the bank. At the same time he checked A.N.’s police records and saw that he had a violent background. He therefore informed the police chief, M.Ko., who ordered a police patrol to be sent to A.N.’s home address. At 7.38 a.m. M.L. and I.B. were sent to look for him there.

The report submitted by police officers M.L. and I.B. indicates that they found A.N. at home. He approached them at the front of his house and said that he was sick of everything, and that he had withdrawn the money for his funeral because he was going to kill himself either that day or the next by jumping under a train, and that there was nothing they could do about it. He also said that he had already written a suicide note, and complained that the day before he had been at the police station because his wife had been seeing another man. The police officers noted in their report that A.N. had appeared sober and had not shown any signs of aggressiveness, and had not mentioned his wife or anybody else or that he might hurt anybody. They therefore advised him that everything was going to be fine and left.

Upon their arrival at the police station at 8.06 a.m. the police officers reported on the interview to the on-duty commanding officer M.T., who had taken over from T.S. (see paragraph 16 above) in the meantime.

According to a report drawn up by M.T. on 22 March 2002, M.L. and I.B, the police officers who had visited A.N. at his home (see paragraph 17 above), had reported to him that A.N. was contemplating suicide because of his family problems, and that he had mentioned his divorce and said that nobody could stop him. At 8.12 a.m. M.T. informed the deputy police chief for the criminal police, M.B., of the event who instructed him to immediately inform the Slatina Health Centre (Dom zdravlja Slatina – hereinafter “the hospital”) and Slatina Social Care Centre (Centar za socijalnu skrb Slatina). He informed the hospital doctor, I.F., at 8.15 a.m. and the Social Care Centre at 8.18 a.m. The doctor had said that he would see with a nearby psychiatric hospital whether they could admit A.N. for treatment, while an official from the Social Care Centre had said that she had known A.N.’s situation very well and told the police to contact the hospital.

Later during the investigation the police found that officer M.T. had falsified his report, as he had actually informed doctor I.F. at 9.40 a.m., not 8.15 a.m. as indicated, and had informed the Social Care Centre at 9.37 a.m., not 8.18 a.m. as indicated (see paragraph 19 above and paragraphs 35 and 46 below).

Meanwhile, sometime after 8.00 a.m., A.N. returned to the bank, shouting at F.S. for having called the police. He then went to a nearby bar for a drink and at around 9.00 a.m. went to the police station. He met the on-duty commanding officer M.T. there, and demanded to know why the police had been to see him. M.T. explained that the police had had information that he had been having some problems. A.N. replied that he was going to solve his problems himself and that he was going to do what he intended. He then left the police station.

A.N. then went in search of his wife, who started work in a bakery shop at 10 a.m. He waited for her in a nearby street he knew she had to pass when going to work. When A.N. saw her, he approached her and kicked her in the head, knocking her to the ground. He then fired one shot at her and went to leave, but then returned to shoot her a further three times. She survived, despite receiving serious injuries to her head, stomach and arm.

After shooting his wife, A.N. went to M.B.B.’s office, which was only some three hundred metres away. M.B.B. was in the office at the time with her secretary and a client, A.R. Immediately upon entering the office A.N. fired a shot in M.B.B.’s direction, but hit her desk. The client attempted to talk him round, but when A.N. threatened to kill him, he ran away. A.N. then attempted to shoot the secretary, who was calling the police, but his pistol jammed and she managed to escape. A.N. then approached M.B.B. and shot her dead by firing three bullets at her, of which two were fatal.

In the meantime, some onlookers had informed the police of the incidents and several police units were sent to search for the gunman.

At around 10.35 a.m. the police arrived at A.N.’s house and ordered him to surrender and go with them to the station in connection with the investigation into the shootings. He refused, before throwing two hand grenades at the police officers and starting to shoot at them.

When special police units stormed into A.N.’s house at around 3.26 p.m., they found him with a self-inflicted head wound, the type of weapon that had been used for the shootings, and a suicide note. He was immediately taken to hospital, but died the next day.

On the same day as the incidents occurred, an investigating judge of the Bjelovar County Court (Županijski sud u Bjelovaru) and a Deputy County State Attorney conducted crime scene investigations with the assistance of police forensic scientists. In A.N.’s house the police found another suicide note, a number of different bullets and an empty hand grenade cartridge. They also discovered that the weapon used by A.N. had been reported missing and that its owner had died in 1997.

The investigating judge ordered a forensic examination of the bodies which confirmed that M.B.B. had suffered a violent death as a result of the gunshots.

During the investigation the police interviewed a number of people who provided information concerning A.N. and the course of the events in which he had killed M.B.B. and attempted to kill his wife. The police drew up reports of the interviews but they were not signed or otherwise attested by the witnesses.

According to the police reports, A.N. and M.N.’s children, E.N. and M.B., provided information about the problems in their family and the frequent violent incidents mainly caused as a result of A.N.’s alcohol abuse. The incidents were confirmed by M.N. in her interview with the police. She also stated that he had been angry at her lawyer M.B.B., but had not threatened to kill her.

M.B.B.’s secretary described the course of events in which A.N. had attempted to shoot her and killed the lawyer M.B.B., which was also confirmed by the client A.R. who had been in the office at the time (see paragraph 23 above). Another witness, N.M., a waiter in a nearby bar, described how he had heard gunshots and later found M.B.B. dead in her office.

The police also interviewed the bank employees D.K. and F.S., who provided information about A.N.’s behaviour in the bank (see paragraph 14 above), and two other witnesses, I.T. and A.K., who had also been in the bank when A.N. was there. The two bank customers stated that A.N. had seemed disturbed and looked as though he had needed some help, but had not said he was going to kill anybody.

An acquaintance of A.N., Ž.M., told police that for the past year A.N. had been saying that he was going to kill his wife. After the incidents at issue, A.N. called him and said that he killed his wife and shot her lawyer. Information to that effect was also provided by another acquaintance of A.N., I.Š., who said that when he got drunk A.N. would say that he was going to kill somebody but without specifying whom. On the morning in question he had seen A.N., who had shown him a handful of bullets.

A.N.’s brother-in-law, L.Z., stated that A.N. had complained that during a hearing in the divorce proceedings M.B.B. had prevented him from raising all his arguments before the court, and that he should do something about it but without specifying what. He had never mentioned that he was going to kill anybody. His other brother-in-law, F.Z., stated that a couple of days before the incidents his wife Ž.Z. had told him that she had seen A.N., who had told her that he was going to kill his wife and her lawyer, but she had not thought that he had really meant it. This was confirmed by Ž.Z. herself in her statement to the police.

During the investigation the police interviewed doctor I.F. who had taken the police’s call to the hospital on the morning of the incidents (see paragraph 19 above). He stated that he had received the call at around 9.40 a.m., not 8.20 a.m. as reported in the media. He also provided evidence to that effect because his telephone had the ability to record times and dates of calls. Based on the information he had received, he had attempted to contact a nearby psychiatric hospital to arrange for A.N.’s possible hospitalisation. However, he had not managed to speak to any of the doctors, as he had been told by a nurse that they had all been in a meeting which she had not been allowed to interrupt.

The results of the investigation were submitted to the Slatina Municipal State Attorney’s Office (Općinsko državni odvjetništvo u Slatini) to assess whether the police could be held liable for their actions in connection with the incidents at issue, particularly with regard to the application of section 24 of the Protection of Individuals with Mental Disorders Act. That provision stated that an individual could be admitted to a psychiatric institution where there was a reasonable suspicion that the individual posed an immediate threat to his life or health, or the life or health of others (see paragraph 81 below).

On 16 August 2002 the Slatina Municipal State Attorney’s Office issued the following statement:

“A.N. was a violent person against whom a criminal complaint had been made for making serious death threats to his wife and on several occasions was reported for the minor offences of family violence, abusive behaviour and inappropriately addressing police officers. On the day in question A.N., without any further elaboration, told police officers that he was going to kill himself because of his family problems. The police officer on duty, M.T., omitted to inform the hospital and Social Care Centre of the whole situation. Had there been coordination between the doctor and social worker, who had known the situation in A.N.’s family better, measures for the prevention of suicide could perhaps have been taken. In the circumstances, at the relevant time the police officers had no reason to treat A.N. as a mentally disturbed person within the meaning of section 24 of the Protection of Individuals with Mental Disorders Act. ...”

On 22 March 2005 the applicants, through their lawyer, lodged a criminal complaint against police officer M.T. with the Slatina Municipal State Attorney’s Office, alleging that he had falsified the police records indicating the exact time he had contacted the hospital and Social Care Centre (see paragraphs 19 and 20 above). They also lodged a criminal complaint against police chief M.Ko. for abuse of power and authority, because he had failed to institute criminal proceedings against police officer M.T.

On 30 May 2005 the Slatina Municipal State Attorney’s Office rejected the criminal complaints against the police officers on the grounds that their actions did not constitute criminal offences.

On 10 June 2005 all five applicants and K.B., the mother of M.B.B., took over the prosecution as subsidiary prosecutors and lodged an indictment against the police officers in the Slatina Municipal Court.

During the proceedings police officer M.T. stated that after officers M.L. and I.B. had returned from their interview with A.N. (see paragraph 19 above), they had told him that A.N. had been agitated and had mentioned problems in his family, but had not made any threats. Sometime at around 8 a.m. he had therefore attempted to contact police chief M.Ko. to seek further instructions. After having failed twice to reach M.Ko., who had been out of his office, he had called the deputy police chief for the criminal police, M.B., who had instructed him to contact the hospital and Social Care Centre. He had then telephoned the hospital, but the number he had dialled had not been valid, so he had only managed to get the right number later when he had spoken to doctor I.F. When he had called the hospital for the first time he had written down the exact time on a piece of paper and then later had just taken that time for his report.

Doctor I.F. also gave his oral evidence during the proceedings. He testified that after he had received the information from the police about their interview with A.N., he had told the police that he would need to examine A.N. and then decide whether compulsory psychiatric treatment would be necessary. However, the police had not known where A.N. was at the time, so he had told them to find him. Approximately fifteen minutes later the hospital had received information about the shootings.

On 3 May 2006 the Slatina Municipal Court acquitted police officer M.T. on the grounds that there had been no evidence that he had deliberately falsified his report. The court also dismissed the charges against police chief M.Ko. on the grounds that the prosecution had become time-barred.

The judgment was confirmed on appeal by the Virovitica County Court (Županijski sud u Virovitici) on 21 September 2006.

On 18 April 2002 the Ministry of the Interior opened disciplinary proceedings against police officer M.Kr. for failing to report on the interview with A.N. and his wife on 21 March 2002 even though A.N.’s background and the information concerning their relationship warranted that such action be documented (see paragraphs 12 and 13 above).

On 27 May 2002 disciplinary proceedings were also opened against police officer M.T. for failing to immediately report the situation concerning A.N. on the morning of 22 March 2002 to the hospital as he had been instructed to do by his superior, and for falsifying his report about the times he had contacted the hospital and Social Care Centre (see paragraphs 19 and 20 above).

The first-instance Osijek Disciplinary Panel of the Ministry of the Interior (Prvostupanjski disciplinski sud u Osijeku) found police officer M.Kr. guilty on 10 October 2002 and sentenced him to a 15% reduction of salary, to be applied for one month.

On 5 November 2002 the disciplinary panel found police officer M.T. guilty and sentenced him to a 10% reduction of salary, to be applied for two months.

On 22 March 2005 the five applicants and K.B. lodged a civil action against the State in the Slatina Municipal Court, seeking damages for the authorities’ failure to protect their relative’s right to life. They relied on section 13 of the State Administration Act, which provides that the State is liable to compensate damage caused to a citizen, legal entity or other party for the unlawful or wrongful conduct of a State authority (see paragraph 83 below).

A first hearing was held on 6 July 2005, at which the trial court heard evidence from bank employees F.S. and M.S.

F.S. testified that after he had seen A.N. crying, he had asked him what had happened and A.N. replied that it would be talked about. He had then called the police, who arrived soon after. When he had told them what had happened, the police had just replied that they had known A.N. very well. A.N. had appeared totally unstable that morning, which had been noticeable to F.S. because he worked with people. Everybody in the bank had noticed that A.N. had been totally crazy, and F.S. had therefore called the police because he had thought that A.N. was a danger, primarily to himself, and should get medical treatment. When A.N. had entered the bank for the second time he had not calmed down and had been yelling at F.S. for calling the police about him. This version of events was confirmed by M.S.

At a hearing on 14 September 2005 the trial court heard evidence from doctor I.F. He testified that on the morning of 22 March 2002 at around 9.45 a.m. he had been informed by the police that A.N. had been behaving strangely and that he might do something bad. The police officer had not however known where A.N. was at the time. Doctor I.F. explained that the usual practice in such cases was to examine the person and then decide whether admission to hospital was necessary. He also specified that the police officer who had called him had said that A.N. could kill somebody or do something bad. This had prompted him to believe that his and the police’s intervention had been necessary, and that A.N. should be taken to the psychiatric hospital. Had the police managed to trace A.N., he would have examined him, because that had been the practice in similar cases and also in cases where somebody had threatened suicide.

At the same hearing the trial court questioned police chief M.Ko., who explained that A.N. was known to him because he had once been held at the station for violent behaviour. On the day in question he had given orders to the on-duty commanding officer to send a police patrol to A.N.’s home address and had then left the police station to attend to some other business. He had returned to the police station at around 9.55 a.m. and had been told of the shootings.

The next hearing was held on 23 November 2005, where the trial court heard evidence from M.N. She stated that A.N. had previously had a rifle, a handgun and a bomb which had been, at some point, confiscated from him by the police. He would also say that he was saving money to buy a handgun to kill her and two other people, but she had never known exactly whom. A.N. had had a problem with alcohol and when he would get drunk he would be violent. She had called the police on more than a hundred occasions, but sometimes they would come and sometimes they would not. A.N. had contested the divorce and the day before the incidents had threatened to kill her. She had reported that on the same day to the police, but they had done nothing about it. At the same hearing the trial court questioned bank employee D.F., who explained the course of the events in the bank (see paragraph 14 above).

A further hearing was held on 18 January 2006, at which the police officers M.L., M.T. and I.B. gave evidence.

M.L. testified that on the morning of the incident, he and police officer I.B. had been ordered to go to the bank because A.N. had been there and had been behaving strangely. In the bank, they had met someone who had called the police, who explained that A.N. had gone to the bank, had withdrawn all his money and while in tears had said “it will be talked about”. When M.L. and I.B. had reported on their findings to the on-duty commanding officer, they had been instructed to find A.N. at his home address. They had found him there and interviewed him. A.N. had not been drunk or aggressive. He had said that he was going to kill himself because of problems with his wife and son and that he would do it either that day or the next, and that nobody could stop him. He had appeared normal and calm. They had not searched him because there had been no grounds to take such action, nor had there been any reason to take him to hospital in accordance with the Protection of Individuals with Mental Disorders Act. M.L. also explained A.N. was known to him and that before seeing him, he had been informed by the on-duty commanding officer that he had already threatened to kill his wife.

In his statement I.B. confirmed M.L.’s version of events, explaining that the police could take an individual to hospital or a police station and have a doctor examine him, but they had not considered A.N. to be a danger so had not taken any such action.

Police officer M.T. stated that when officers M.L. and I.B. had returned from the bank they had said that A.N. had not been drunk or aggressive but merely agitated, and that he had threatened suicide. M.T. had then attempted to contact his superiors and had managed to get in touch with the deputy chief for the criminal police M.B., who had instructed him to inform the hospital and Social Care Centre. He had attempted to contact the hospital several times and at some point had managed to reach doctor I.F, who had said that he would try to find a place for A.N. in a psychiatric hospital. He had also asked where A.N. was, but at the time M.T. had not known. M.T. further explained that he had been familiar with the Protection of Individuals with Mental Disorders Act, which enabled the police to take a mentally disturbed individual to a psychiatric hospital, but he had considered the police to have done everything they could, although with hindsight, it would have been possible to do more, but the police could not have predicted what would happen. He had known that A.N. had a violent background but stressed that he had not been registered as insane.

At a hearing on 15 March 2006 the deputy chief for the criminal police M.B. gave his oral evidence. He explained that he had been informed that A.N. had gone to the bank where he had been behaving strangely. Later, he had been informed that the police had interviewed him and that he had appeared calm and normal but had threatened suicide. At around 8.05 to 8.10 a.m. M.B. had instructed the on-duty commanding officer, M.T., to inform the hospital and Social Care Centre. He considered the police to have done everything they could, but there had been no grounds to take any further measures given the findings of the police patrol that had interviewed A.N. at his home. He also explained that the usual practice in similar cases was to inform the hospital, who could call the police if they needed assistance.

A further hearing was held on 10 May 2006 at which police officers Ž.J. and T.S. and a customer from the bank, I.T., gave evidence.

Ž.J. stated that the day before the incidents M.N. had arrived at the police station followed by her husband A.N. Police officer Ž.J. had interviewed them but had found no grounds for the police to take further action, so he had told them to resolve their marital problems in their court proceedings. M.N. had also mentioned that after A.N. had been handed a suspended sentence, he had stopped making threats and beating her up. Ž.J. had not reported on the interview because his superior officer M.Kr. had not requested it.

Police officer T.S. had no specific knowledge about the incident. He had been off-duty at the time although he had, early in the morning, just before leaving the police station, sent a police patrol to the bank to check what had happened there and why A.N. had been behaving strangely.

The bank customer I.T. testified that he had seen A.N. in the bank on the morning in question, who had told him that he had been having some problems and that it would be talked about. He had been behaving strangely, as he had been walking around the bank in circles. He had looked nervous, and I.T. had thought that he had been ill and in need of medical attention.

On 15 September 2006 the trial court obtained a psychiatric report certifying that the first, second and third applicant and M.B.B.’s mother had all experienced mental suffering after the events. The report was confirmed by the expert at a hearing held on 21 February 2007.

On 5 March 2007 the Slatina Municipal Court allowed the civil action and ordered the State to pay damages for failing to protect the life of the applicants’ relative. The trial court held that the State’s responsibility under section 13 of the State Administration Act was objective, and that it was only necessary to establish whether the death had been a result of the unlawful or wrongful conduct of the State authorities. The relevant part of the judgment reads:

“... It is not disputed between the parties that F.S. called the police a little after 7 a.m. F.S. informed the police of what had happened in the bank and about A.N.’s appearance. This court fully accepts the statements of F.S., M.S., D.F. and I.T. as credible when they testified about A.N.’s state of mind [in the bank]. They stated that A.N. had appeared totally unstable. The conclusion of the police officers M.L. and I.B. that A.N. had been normal and calm and had not been a danger cannot be accepted as logical. They reached such a conclusion after being informed by A.N. that he had withdrawn the money for [his] funeral, and that he was going to kill himself and nobody could stop him. Taking this into account, [this court considers that] the average person could have reached the conclusion about A.N.’s state of mind referred to by witnesses [F.]S., M.S., D.F. and I.T. The police officers who needed to act with particular diligence should have also reached [this] conclusion about A.N.’s state of mind, which they failed to do. They thus failed to act in accordance with sections 22 (1), 23§(1) and 24 of the Protection of Individuals with Mental Disorders Act ... The defendant considers that there is no connection between the failures of the police and [M.B.B.’s death] and that there is therefore no liability on the Republic of Croatia. This court considers differently. Had police officer M.T. complied with the order of the deputy chief for the criminal police M.B., and informed the hospital and Social Care Centre at 8.15 a.m., as noted in the report, it is highly probable that the outcome would have been avoided, particularly taking into account the statement of witness I.F ... As the liability of the State is objective; it was for it to prove that the damage occurred as a result of a cause which could not have been avoided (vis major), or that the damage resulted exclusively from the actions of the aggrieved party or a third party which could not have been predicted and where the outcome could not have been avoided (section 177(1) and (2) of the Civil Obligations Act). Nothing of [the sort] has been proven by the defendant. ...”

The Slatina Municipal State Attorney’s Office, representing the State in the proceedings, lodged an appeal with the Virovitica County Court on 26 April 2007.

On 19 November 2007 the Virovitica County Court quashed the first-instance judgment and ordered a retrial on the grounds that the first-instance court had erred in its findings that the liability of the State was objective as it was based on the existence of a fault, namely unlawfulness. That court further found that, irrespective of the fact that A.N. had threatened suicide, there had been nothing requiring police officers M.L. and I.B. to treat the case as particularly urgent and to take A.N. to a psychiatric hospital. It also accepted the police officers’ statements that A.N. had appeared calm during the interview. The Virovitica County Court instructed the first-instance court to question witnesses I.F. and M.T. again to establish what actions doctor I.F. had intended to take, since it was not clear whether he had intended to examine A.N. or just to see whether he could be placed in a psychiatric hospital, as could be inferred from the statement of police officer M.T.

In the resumed proceedings, at a hearing held on 27 February 2008, the Slatina Municipal Court heard doctor I.F. and police officer M.T.

Doctor I.F. testified that the usual practice in similar cases was to immediately respond at the scene and to examine the person if he or she was available. The medical response team consisted of a doctor, a driver and medical technician and a nurse. They first had to examine the person and then the doctor could decide whether hospitalisation in a psychiatric hospital was necessary. Police intervention was only sought if the person could not be apprehended for the examination. As regards the case at issue, doctor I.F. explained that he had been called by a police officer who had told him that A.N. had been behaving strangely and that he could do something bad. The police officer had not known where A.N. was. Had he known, he would have immediately responded at the scene and examined him. Doctor I.F. also explained that he had to first examine the person and only then he could make a prescription for that person’s admission to hospital. There had been no reason for him to check whether there had been a place in the hospital because it was for the hospital to decide what they wanted to do with his prescription and the person in question. In the present case, the information he had received from the police suggested that it had been necessary to examine A.N. at the scene.

Police officer M.T. stated that on the day in question he had informed doctor I.F. that the police had had a person who was seriously disturbed and who should be given an injection in order to calm down. As to his further conversations with the doctor, M.T. stated:

“I cannot remember any more what doctor [I.]F. told me when I contacted him.

I don’t remember exactly, but I think he told me that he would see whether [A.N] could be placed in the psychiatric hospital and then would ask for police intervention if he needed it.

I would like to change my statement in the part where I said that doctor [I.]F. was going to first find a place in [the psychiatric hospital] and that he would then consult the police chief.

Doctor F. actually told me that he would first examine [A.]N. and that he would call the police if necessary.

In reply to the question from the defendant’s representative, I cannot explain why I changed my statement as regards what doctor [I.]F. had told me.”

On 7 March 2008 the Slatina Municipal Court obtained a police report describing the course of events later on the day of the shooting, and on 9 April 2008 concluded the trial.

On 22 April 2008 the Slatina Municipal Court dismissed the civil action as ill-founded, and ordered the applicants to pay HRK 80,700 in costs and expenses. The relevant part of the judgment reads:

“... The liability of the defendant is based on the principle of fault (section 154(1) of the Civil Obligations Act). Unlawful conduct is conduct which is contrary to the law or an omission in the application of the law, which is committed deliberately or by accepting that it might cause damage to a third party. ... The purpose of section 13 of the State Administration Act is to provide for the liability of the State where there is a wilful act contrary to the law with the intent of causing damage ... Acceptance [of that outcome] is conduct or an omission of a State official in the performance of his or her official duties where he or she was able to, according to his or her individual capability, take into account the objective requirements with due diligence, and which he or she failed to do. In the particular circumstances, there is no causal link between the damage and the omissions of police officer M.Kr., in his capacity as on-duty commanding officer, to report the day before [the shootings] about M.N.’s complaint that she had been followed by A.N. This court finds nothing to suggest that the police officers who intervened at the bank, and who had had no knowledge of this, would have acted differently even if they had had such information. The plaintiffs also refer to the omissions of police officers M.L. and I.B ... Under section 24 of the Protection of Individuals with Mental Disorders Act the police may, in particularly urgent cases, take a mentally disturbed individual to a psychiatric hospital without prior medical examination, provided there is a reasonable suspicion that the individual poses an immediate threat to his life or health, or the life or health of others ... The events [in the bank] suggest that the police had an obligation to act under section 23 of the Protection of Individuals with Mental Disorders Act and to secure A.N.’s medical examination, after which the doctor could decide whether to take to a psychiatric hospital. But in the particular circumstances police officers M.L. and I.B. could not have been expected to recognise that there was any particular urgency or that A.N. should be taken to a psychiatric hospital without prior medical examination ... The omission of police officer [M.T.] to inform the hospital about A.N.’s behaviour is an irregularity in the performance of his official duties. However, the dispute between the parties is whether there is a causal link between this irregularity and the event ... Even if M.T. had informed the hospital at 8.15 a.m., it is doubtful whether the doctor would have carried out an examination because at that time he had not known where A.N. was. It follows that at the time A.N. was no longer available to the police and according to the evidence [submitted by] F.S. was in the bank sometime between 8.30 and 9 a.m. There is therefore no causal link between the incidents and the omissions of police officer M.T ... “

The first, second and third applicants and K.B. lodged an appeal against the above judgment with the Virovitica County Court, arguing that the State authorities had failed to prevent the killing of their relative, and that in accordance with the relevant domestic law they should have been awarded damages.

On 7 May 2009 the Virovitica County Court dismissed the applicants’ appeal and upheld the first-instance judgment. It held, however, that the first-instance court had erred in concluding that at 8.30 a.m. the police had not known A.N.’s whereabouts, because around that time the police had interviewed him at his home. In any event, the police could have informed the hospital immediately after 7.15 a.m. when they had received the call from the bank. Nevertheless, the court held that the police had done everything they could and that it could not be concluded that only intervention by the doctor in the first few hours after the information had been received from the bank would have prevented the incidents. The court also found that, irrespective of A.N.’s violent background and the indications that he was mentally disturbed, he had not acted violently on the day of the incidents or the day before. It was true that police officers M.L. and I.B. had omitted to examine A.N. under section 49 of the Police Act, but he had not been behaving violently, so that omission could not be characterised as an irregularity in their work. Moreover, it was not certain whether A.N. had a gun at the time and therefore it was in doubt whether such a police search could have prevented the incidents.

On 29 June 2009 the first, second and third applicants and K.B. lodged an appeal on points of law against the above judgment before the Supreme Court (Vrhovni sud Republike Hrvatske).

On 11 May 2011 the Supreme Court dismissed the appeal on points of law as ill-founded and upheld the Virovitica County Court’s judgment. It found that the lower courts had misinterpreted the relevant domestic law by holding that the liability of the State was based on the principle of fault because it was in fact based on the objective principle. It was thus sufficient to establish that there was unlawful or irregular conduct on the part of the State administration and the causal link to the damage thereby caused. In the case at issue, the Supreme Court held that there had been no causal link between the irregular work of the police officers and the killing of the applicants’ relative.

On 5 January 2012 the applicants (including the fourth and fifth applicants, who had taken over the proceedings from K.B. following her death on 14 June 2010) lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) challenging the decisions of the lower courts.

On 15 March 2012 the Constitutional Court dismissed the applicants’ constitutional complaint, endorsing the reasoning of the Supreme Court. The decision of the Constitutional Court was served on the applicants’ representative on 27 April 2012.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1956 in the Tambov Region. Before his arrest he lived in St Petersburg.

The applicant was arrested on 23 August 2007. He remained in detention throughout the investigation and trial.

On 9 November 2009 the Kuybyshevskiy District Court of St Petersburg found him guilty of aggravated fraud and money laundering committed within an organised criminal group and sentenced him to fourteen years’ imprisonment. That judgment was upheld on appeal by the St Petersburg City Court on 30 March 2010.

On 6 March 2012, in another set of criminal proceedings, the Kuybyshevskiy District Court, found the applicant guilty of two counts of aggravated extortion committed within an organised criminal group and imposed a cumulative prison sentence of fifteen years. The judgment became final on 12 July 2012 when endorsed by the City Court.

In 1994 the applicant lost his right arm. He suffered heart attacks in 2000 and 2007 and a kidney affected by cancer was removed in 2003. At the time of his arrest the applicant’s diagnoses listed: ischemic disease, exertional angina of the second functional group, atherosclerotic and post infarction cardiosclerosis, third-stage hypertension with a high risk of vascular complications; cardiac failure of the second functional group; chronic post-traumatic pericarditis with effusion; remote cancer metastases requiring permanent supervision; kidney stones; concretion of the right kidney; chronic pyelonephritis; chronic kidney failure of the first degree; adenocarcinoma of the prostate gland; chronic prostatitis; chronic cystitis, and constantly recurrent multidrug-resistant infection of the urinary tract. To keep his medical condition under control, the applicant followed a daily complex drug regimen comprising up to ten medicaments and underwent an in-depth medical examination every two months in a hospital where he received necessary treatment in respect of his oncological illnesses.

On 24 August 2007 upon his admission to remand prison no. IZ77/1 in Moscow the applicant informed the prison medical authorities of his condition, submitting the full list of his diagnoses.

In September 2007 he started complaining about a number of symptoms such as a heart pain, fatigue, difficulty in breathing, and frequent urination. He received basic treatment which alleviated a part of his health problems, but the urinary condition worsened. In November 2007 he complained of a pain in the low abdomen and inability to urinate. On 20 November 2007 a surgeon recommended urinary catheterisation, that is to say the insertion of a tube into the patient’s bladder via the urethra. That procedure was performed approximately 250 times during the first year of detention. In the meantime the urinary condition became more acute.

On 4 December 2008 the applicant was examined by a urologist for the first time whilst in detention. The doctor recommended treatment with antibiotics, regular urological supervision and to avoid catheterisation in so far as possible.

Throughout 2009 the applicant’s urinary condition persisted. He urinated up to thirty-seven times per day and his nocturnal sleep was interrupted every hour or two. He had to continue resorting to urinary cauterisation. On several occasions he had a consultation with a urologist.

On 12 October 2009, at the request of the applicant’s lawyer, three medical experts prepared a report assessing the capability of the custodial authorities to properly treat the applicant. Having examined the medical file on the applicant compiled in the civilian hospital, submissions by the custodial authorities and the applicant’s own comments, the experts concluded that he required systematic treatment with amendments to the chemotherapy regimen and periodic admissions to a specialised cardiology hospital for instrumental examinations and necessary amendments to drug regimen. Given the absence of proper medical supervision, the experts also warned of a possible deterioration of the applicant’s urinary and oncological problems and a risk of those illnesses advancing to a stage requiring surgery, or to a stage with no prospects of the applicant being cured or even his life being saved. The experts observed that the medical unit of the detention facility where the applicant was kept was not equipped for treating patients in such a medical condition.

On 28 December 2009, 19 March, 15 June, 26 July, 25 August and 30 November 2010 the applicant was examined in the Moscow Scientific Institute of Urology (hereinafter “the Urology Institute”), having been diagnosed with neurogenic bladder dysfunction. The treatment provided slightly improved his condition.

On 21 December 2010 the doctors from the Urology Institute performed a surgery on the applicant. A suprapubic catheter was inserted into his bladder through a cut in the abdomen. The applicant was discharged from the hospital to a remand prison under the supervision of the resident doctor.

Three days later the applicant complained of continuous bleeding from the abdominal incision. The next day, having lost more than one litre of blood, he was sent back to the Institute, where his condition was brought under control.

In April 2011, in the remand prison, the applicant developed an acute inflammation of the urethra, which was successfully treated in the Institute.

From 2012 to 2014 the applicant’s urinary condition remained stable. He continued using the suprapubic catheter to remove the urine.

In the meantime, in December 2009 the applicant brought a court claim against the detention authorities, seeking that the lack of appropriate medical treatment be declared unlawful.

On 28 June 2010 the Preobrazhenskiy District Court of Moscow dismissed his claim. The court found as follows:

“From the [applicant’s] medical file submitted by the [remand prison] it is apparent that ... [the authorities] provided him with medical aid, subjected him to medical testing, and prescribed treatment. In particular, on 4 December 2008, 25 September and 15 November 2009 he was seen by a urologist... On 28 December 2009 he was examined in the [Urology Institute]. It is not apparent from the medical file that the authorities refused to provide [the applicant] with the medical assistance or that he was deprived of the requisite medication”.

On 24 March 2011 the Moscow City Court upheld that decision on appeal.