Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant in the first application, Mr Paul Lynch, is an Irish national, who was born in 1976. At the time he lodged his application he was a prisoner at Portlaoise Prison in Ireland. He was represented before the Court by Mr F. Taaffe, a lawyer practising in Co. Kildare.

The applicant in the second application, Mr Peter Whelan, is also an Irish national, who was born in 1982. He too is detained in Portlaoise Prison. He was represented before the Court by Mr J. Cuddigan, a lawyer practising in Co. Cork.

The Irish Government (“the Government”) are represented by their Agent, Mr P. White of the Department of Foreign Affairs.

Mr Lynch was convicted of murder on 10 February 1997 and was sentenced to life imprisonment pursuant to section 2 of the Criminal Justice Act, 1990. An appeal was unsuccessful. His situation was reviewed for the first time by the Parole Board in 2004. The Minister for Justice, Equality and Law Reform (now the Minister for Justice and Equality, hereafter “the Minister”) decided that Mr Lynch should not be released at that time, and that his situation should not be considered again for a further three years. The Parole Board considered Mr Lynch’s situation again in 2007, 2010 and in September 2012. In its last review of his case, the Parole Board recommended to the Minister that an escalating programme of temporary release be put in place for Mr Lynch. The Minister accepted the recommendation and the programme has since commenced. According to the Government, it entails attendance five days per week at a voluntary agency that works with offenders, and four overnight releases per month.

Mr Whelan was convicted on 2 December 2002 of the crimes of murder and attempted murder. He was sentenced to life imprisonment pursuant to section 2 of the Criminal Justice Act, 1990 and, on the same date he was also convicted of attempted murder and sentenced to a term of 15 years to be served consecutive to the life sentence. The order of sentence was subsequently reversed by the Court of Criminal Appeal. Mr Whelan completed his first sentence in July 2013, having benefitted from the standard remission of 25% of the total duration imposed at trial (fifteen years). He then commenced his consecutive life sentence. His situation was reviewed by the Parole Board in 2010 with a second consideration due to take place in 2014.

The two applicants later challenged their detention as contrary to the Constitution in a number of respects and also to the Convention. Their challenge was rejected by the High Court on 5 October 2007, and their appeal was rejected by the Supreme Court on 14 May 2010.

The Supreme Court did not accept that, by prescribing a mandatory life sentence for murder, the legislature had intruded into the domain of the judicial branch. It described murder as “the ultimate crime against society as a whole”, “a crime which may have exceptional irrevocable consequences of a devastating nature for the family of the victim” and a crime that “by its very nature has always been considered at the highest level of gravity among all forms of homicide or other crimes against the person”. It stated:

“For the reasons already indicated that crime has always and legitimately been considered to be one of profound and exceptional gravity and, in the Court’s view, one for which the State is entitled to impose generally a punishment of the highest level which the law permits. Given that it is an offence which is committed when, and only when, a person is unlawfully killed and that the person so doing intended to kill or cause serious injury it is one which can therefore properly be differentiated from all other crimes including manslaughter.

The Court is of the view that the learned trial judge was correct when she concluded “...there can be nothing offensive in the Oireachtas promoting respect for life by concluding that any murder even at the lowest end of the scale, is so abhorrent an offensive to society that it merits a mandatory life sentence ...”.”

The Supreme Court also rejected the argument that the mandatory life sentence was contrary to the principle of proportionality in sentencing. It stated:

The Supreme Court then considered the argument that, in substance, a life sentence was not a determinate sanction because the actual duration of imprisonment was decided systematically by the Minister, and that in so doing he was guided by considerations of a preventive nature. It noted, firstly, that it had been affirmed many times in case law that preventative justice or detention forms no part of Irish law. A convicted person may not be sentenced by a court or detained by an executive order for a preventative or non-punitive purpose. It was a “misconception that the punitive element of the life sentence terminates on temporary release”; “even where the release is open-ended ... the released prisoner remains liable to arrest and return to imprisonment to continue serving the life sentence should he be in breach of the conditions”. Temporary release was a privilege or a concession accorded at the discretion of the executive, not a right of a prisoner. The Supreme Court stated:

“In the Court’s view a life sentence imposed pursuant to s. 2 of the Act of 1990 is a sentence of a wholly punitive nature and does not incorporate any element of preventative detention.

It is a sentence which subsists for the entire life of the person convicted of murder. That person may, by virtue of a discretionary power vested in the executive, be temporarily released under the provisions of the relevant legislation on humanitarian or other grounds but he or she always remains liable to imprisonment on foot of the life sentence should the period of temporary release be terminated for good and sufficient reason.

It may be appropriate at this point to note that in the event of a prisoner’s privilege of temporary release being withdrawn by virtue of a breach of the conditions of that release the Minister, or any person acting on his behalf, is bound to observe fair procedures before withdrawing the privilege of temporary release ... Should the Minister fail to observe such procedures or otherwise act in an unlawful, arbitrary or capricious manner in terminating the release for a breach of his conditions or otherwise, the prisoner may seek to have that decision set aside by way of judicial review before the courts.

In all these circumstances the Court does not consider that there is anything in the system of temporary release which affects the punitive nature or character of a life sentence imposed pursuant to s. 2. In particular a decision to grant discretionary temporary release does not constitute a termination let alone a determination of the sentence judicially imposed. Any release of a prisoner pursuant to the temporary release rules is, both in substance and form, the grant of a privilege in the exercise of an autonomous discretionary power vested in the executive exclusively in accordance with the constitutional doctrine of the separation of powers ...”

The Supreme Court went on to reject the argument that because the Minister was required to have regard to, inter alia, the gravity of the offence and the risk posed by the prisoner to public safety, it made the process of temporary release akin to a sentencing exercise. Consideration of such matters did not mean that the Minister was exercising a judicial function and, in particular, it did not mean that a decision not to release because of a risk to safety converts the punitive sentence for murder into a preventative one. It stated:

“It is a necessary incident to the exercise of a purely executive discretion that the decision-maker would be bound to have, before directing a person’s release on any of the possible grounds, have regard to a whole range of matters of which some twelve are specified in s. 2 subs. 2 of the Act of 1960. Inevitably two of those considerations which ought to be taken into account in the making of any such decision are the gravity of the offence and the risk which the temporary release would pose to the public. A decision to grant temporary release even for a short period such as to permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would have for the safety of members of the public. Such a consideration is incidental to the discretionary power and its purpose. ... Refusing temporary release is a decision not to grant a privilege to which the prisoner has no right.”

The Supreme Court next considered the applicants’ arguments, based on Article 5 §§ 1 and 4 of the Convention and on certain judgments of this Court, that under Irish law a life sentence was in reality an indeterminate one, which in practice was determined by the Minister in the form of a grant of temporary release. This, it was argued, constituted executive interference in the judicial function of sentencing and was prone to arbitrariness. The court stated:

“The power of the executive, in this case the Minister, to release a prisoner ... is a distinct executive function and does not constitute a determination of what punishment a person should undergo as a consequence of his crime. It is in the form of an exercise of clemency or commutation and (sic) although it may bring to an end the period of incarceration, subject to conditions in the case of temporary release. As already pointed out the life sentence imposed by the Court continues to exist notwithstanding any conditional release and he may be required to continue serving it if there are found to be good and sufficient reasons in accordance with law to withdraw the privilege of temporary release, or the period of release simply expires.”

The Supreme Court considered that the distinction between these two functions was recognized by this Court in its judgment in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008. Having cited several passages from the judgment, it stated:

“In its analysis the Court of Human Rights made a clear distinction between the imposition of a mandatory and punitive life sentence by a court and the exercise of an executive discretion to commute, remit or grant conditional release which gives the prisoner a de facto and de jure prospect of release at some point. It clearly did not consider that the existence of an executive discretion to grant conditional release or commutation to constitute the determination or imposition of a sentence by the executive.

Provided a causal connection remains between the detention and the punishment imposed by the court of trial, the sentence cannot be considered arbitrary or in breach of Article 5(1). The discretionary power of the executive to grant conditional release on humanitarian or other grounds does not affect the lawfulness of the continued detention of a person as long as that detention is punitive by reason of its nexus with the sentence imposed following conviction.”

The Supreme Court held that on any objective analysis of the sentences currently being served by the two applicants, their detention remained, de jure and de facto, in accordance with the punishment provided by law and ordered by the court of trial.

The Supreme Court then distinguished the legal situation in Ireland from that which prevailed in the United Kingdom, the latter having been found in a number of judgments of this Court to be contrary to Article 5 of the Convention. The Supreme Court noted that the sentencing regime in the United Kingdom which was under scrutiny in the judgments relied upon by the applicants was ‘radically different’ to the sentencing regime in Ireland. The sentencing regime which was found to be incompatible with the Convention featured a dual element—a punitive element identified as the ‘the tariff’ period and the subsequent preventative element. Once the prisoner had served the punitive element of the sentence, the nexus between the crime and its punishment was terminated. In Stafford the Supreme Court noted that the prisoner had been recalled after release even though he must have been regarded as having served the punitive element for his offence of murder. That being so, his detention after recall could not be justified as ‘punishment for the original murder’ which led the Strasbourg Court to conclude that his detention on foot of the original mandatory life sentence violated Article 5 § 1 of the Convention. That was, said the Supreme Court, in stark contrast to the longstanding position in Irish law.

Section 2 of the Criminal Justice Act 1990 provides:

“A person convicted of treason or murder shall be sentenced to imprisonment for life.”

The power of temporary release is regulated by Section 2 of the Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003, which provides:

“2.(1) The Minister may direct that such person as is specified in the direction (being a person who is serving a sentence of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be specified in the direction or rules under this section applying to that person—

(a) for the purpose of—

(i) assessing the person’s ability to reintegrate into society upon such release,

(ii) preparing him for release upon the expiration of his sentence of imprisonment, or upon his being discharged from prison before such expiration, or

(iii) assisting the Garda Síochána in the prevention, detection or investigation of offences, or the apprehension of a person guilty of an offence or suspected of having committed an offence,

(b) where there exist circumstances that, in the opinion of the Minister, justify his temporary release on—

(i) grounds of health, or

(ii) other humanitarian grounds,

(c) where, in the opinion of the Minister, it is necessary or expedient in order to—

(i) ensure the good government of the prison concerned, or

(ii) maintain good order in, and humane and just management of, the prison concerned, or

(d) where the Minister is of the opinion that the person has been rehabilitated and would, upon being released, be capable of reintegrating into society.

(2) The Minister shall, before giving a direction under this section, have regard to—

(a) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates.

(b) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto,

(c) the period of the sentence of imprisonment served by the person,

(d) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison,

(e) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him relates,

(f) the risk of the person failing to return to prison upon the expiration of any period of temporary release,

(g) the conduct of the person while in custody, while previously the subject of a direction under this section, or during a period of temporary release to which rules under this section, made before the coming into operation of the Criminal Justice (Temporary Release of Prisoners) Act 2003, applied,

(h) any report of, or recommendation made by—

(i) the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned,

(ii) the Garda Síochána,

(iii) a probation and welfare officer, or

(iv) any other person whom the Minister considers would be of assistance in enabling him to make a decision as to whether to give a direction under subsection (1) that relates to the person concerned.

(i) the risk of the person committing an offence during any period of temporary release,

(j) the risk of the person failing to comply with any conditions attaching to his temporary release, and

(k) the likelihood that any period of temporary release might accelerate the person’s reintegration into society or improve his prospects of obtaining employment.”

In their submissions, the Government provided information about the Parole Board. It was established on an administrative basis in April 2001. It is chaired by an independent Chairperson and includes a representative from the medical/psychiatric profession, the Probation Service, the Department of Justice and Equality, the Prison Service, a retired Prison Governor, and representatives of the wider community.

The Parole Board’s principal function is to advise the Minister in relation to the administration of long term prisoners. The Board reviews the cases of prisoners serving life sentences or determinate sentences of eight years or more. The Board, by way of recommendation to the Minister, advises of the prisoner’s progress to date, the degree to which the prisoner has engaged with the various therapeutic services and how best to proceed with the future administration of the sentence.

In the case of mandatory life sentences the Parole Board considers the initial application after the prisoner has served seven years. Subsequent reviews are conducted at intervals of no more than three years. The final decision regarding the recommendations of the Parole Board remains with the Minister who may accept them in their entirety (as occurs in the majority of cases) or accept them in part, or reject them.

In reply to a question from the Court the Government indicated that as of 31 July 2013 there were 297 persons serving a mandatory life sentence for murder, with another 18 persons serving discretionary life sentences for other very serious offences. On the same date there were 78 persons with a life sentence who were on supervised release in the community. In the period 2005 to 31 July 2013 a total of 29 persons sentenced to life imprisonment were granted temporary release. The average duration of their imprisonment was 18 years.


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

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicants were born in 1930 and 1953 respectively and live in Sofia.

Mr Popov is an heir of Mr M. and Mr Chonin is an heir of Ms F. Mr Popov is entitled to one eighth of the inheritance of Mr M., and Mr Chonin to one ninth of the inheritance of Ms F. The applicants’ two predecessors were co-owners of an afforested island in the Danube, currently named Tsibar, measuring, at the time of expropriation, 1,048,000 square metres. Ms F. owned another afforested island measuring 400,000 square metres and other forestry land on the shores of the Danube, totalling 9,300 square metres.

The above-mentioned land was nationalised in 1948.

As a result of the Danube’s fluvial activity over the years, Tsibar island’s area has increased and it currently measures about 1,500,000 square metres. The second island no longer exists.

On 21 October 1998, following the adoption of the 1997 Forests Restitution Act (see paragraph 27 below), Mr Popov and Mr Chonin’s mother, whom Mr Chonin later succeeded, applied for the restitution of their predecessors’ forests and forestry land.

By two decisions of 12 December 2000 the Valchedram land commission acknowledged that the heirs of Mr M. and Ms F. had the right to restitution or compensation. Finding that actual restitution was impossible because the forests had become “exclusive State property” (“изключителна държавна собственост”, see paragraph 28 below), the commission decided that the heirs would receive compensation bonds. Those decisions were served on the applicants on 5 October 2001.

In the meantime, legislative amendments entered into force repealing the provisions allowing the award of compensation bonds for properties falling under the Forests Restitution Act (see paragraph 27 below) and providing for a sole means of compensation, namely in the form of equivalent State-own land.

In the Valchedram district where the forests belonging to the applicants’ predecessors had been situated there was insufficient Stateowned land to compensate the applicants and the remaining heirs. In a letter dated 2 July 2003 the Ministry of Agriculture therefore instructed the relevant authorities in the neighbouring Montana district to identify appropriate land.

In two decisions of 17 October 2003 the Montana Agriculture and Forestry Department allotted to the heirs of Mr M. a plot of 542,500 square metres, and to the heirs of Ms F. a plot of 933,800 square metres in the Montana district.

On 16 March 2004 the applicants applied for judicial review of those decisions, arguing that the allotted land and the forests were not equivalent to the ones their predecessors had owned.

On 27 December 2007, the Montana District Court gave a judgment in the proceedings brought by Mr Popov. Noting that the land and the forests allotted by way of compensation to the heirs of Mr M. were not equivalent to those owned by him in the past, it quashed the respective decision of the Agriculture and Forestry Department of 17 October 2003. Furthermore, on the basis of an expert report commissioned by it, the District Court observed that there were appropriate forests in the area of the village of Gorna Byala Rechka in the adjacent Varshets district. It thus remitted the case for a fresh examination with a view to allotting land in the specified area to the heirs.

The judgment was not appealed against and entered into force on 4 March 2008.

In a new decision dated 25 February 2009 the Montana Agriculture Department (former Agriculture and Forestry Department) refused to allot the land in the Montana district to the heirs of Mr M., reasoning that the State-owned forests in that area were not sufficient and that the compensation should be provided in the neighbouring Lom district.

On an unspecified date Mr Popov challenged that decision before the Montana District Court. In a judgment of 9 November 2012 that court declared the decision null and void as it contradicted the judgment of 27 December 2007 (see paragraph 15 above). It noted, in addition, that it had already been established that there were no appropriate forests in the Lom district. On the basis of expert reports commissioned by it, the District Court identified in the adjacent districts eleven different plots that were suitable to be provided to the heirs of Mr M., and acknowledged their right to receive those plots as compensation.

That judgment does not appear to have been appealed against and entered into force on an unspecified date.

In execution of the judgment, in three decisions given in January and February 2013 the Berkovitsa and Roman Agriculture Departments allotted to the heirs of Mr M. several plots of forestry land measuring 319,984 square metres in total.

In their submissions dated 21 February 2013 the Government assured the Court that the adoption of decisions transferring the remaining land to the heirs of Mr M. was imminent.

In the judicial-review proceedings brought by Mr Chonin against the respective decision of the Montana Agriculture and Forestry Department of 17 October 2003, the Montana District Court issued a judgment on 6 July 2007. It found that the land allotted as compensation to the heirs of Ms F. was indeed of manifestly lower quality than the one previously owned by her. It also found that in the area of the village of Gorno Orizovo in the adjacent Varshets district, there was a plot of forestry land which was equivalent in quality to those previously owned by Ms F. and was even bigger in size. It thus quashed the Montana Agriculture and Forestry Department’s decision of 17 October 2003, acknowledged that the heirs of Ms F. had the right to part of the bigger plot as compensation, and held that it was for the local Agriculture and Forestry Department to apportion the allotted land.

That judgment was not appealed against and entered into force on an unspecified date.

During the applicants’ ensuing contacts with the authorities it became clear that the afforested area indicated in the judgment of 6 July 2007 was within the territory of the “Vrachanski Balkan” natural park and as such was public property; thus it could not be provided as compensation to the heirs of Ms F. That was pointed out in two letters sent to the applicants, dated respectively 26 August and 10 September 2008, by the Ministry of Agriculture and the administration of the Council of Ministers.

It appears that for several years after that, the authorities made no effort to enforce the judgment of 6 July 2007 or to identify other land to be provided to the heirs of Ms F. Not until 23 January 2013 did a commission consisting of members of different State bodies, appointed by the head of the Regional Directorate of Agriculture in Montana, identify thirty-four plots of land in the adjacent districts, measuring 452,024 square metres, which could be provided as compensation to the heirs of Ms F.

In their submissions dated 21 February 2013 the Government pointed out that the process would continue, and that the identification of the remaining plots to be transferred to the heirs was imminent.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Alena Poláčková;Helen Keller;Johannes Silvis

The applicant was born in 1962 and lives in Chita.

On 2 September 2004 the applicant was arrested on the charges of fraud and forgery of official documents. On 4 September 2004 the Tsentralnyy District Court of Chita authorised the applicant’s pre-trial detention. The court reasoned as follows:

“The evidence collected ... incriminated [the applicant] ... in a serious crime which entails a custodial sentence exceeding ten years. ... The court takes note of the [applicant’s] character. However, ... it considers that, if at large, [the applicant] might put pressure on victims and witnesses or otherwise interfere with administration of justice or continue criminal activities, Accordingly, ... the court considers it necessary to remand [the applicant] in custody.”

On 11 November 2004 the Chita Regional Court upheld the decision of 2 September 2004 on appeal.

The applicant remained in custody pending investigation and trial. The court extended his pre-trial detention on several occasions reiterating, in substance, the reasoning employed by the District Court on 2 September 2004.

On 4 June 2007 the District Court found the applicant guilty as charged and sentenced him to eight years’ imprisonment.


GREEK CATHOLIC PARISH PESCEANA AND OTHERS v. ROMANIA

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

The applicants in the present case are the Greek-Catholic parish of Pesceana, a religious body created on 20 January 2005 in Pesceana, as well as some of its members, Romanian nationals living in Pesceana. Their names, year of birth and place of residence appear in the first appendix to this report. The applicant Mr Victor Tudor acted as their representative.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

The Romanian Greek-Catholic Association was granted leave to intervene in the proceedings.

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

On 19 January 2005 Mr Victor Tudor, who at that time was the Orthodox priest of the Pesceana parish, decided together with 358 members of his parish, to join the Eastern Catholic Church (“the GreekCatholic Church”). The next day they were recognised as a parish by the GreekCatholic Archdiocese of Blaj (Mitropolia Româna Unită cu Roma Blaj) and Mr Tudor was ordained priest of that parish. The applicant parish thus became legitimate under the applicable laws.

On 22 January 2005 the Pesceana local authorities refused to recognise the new parish, denied its members access to the village church and cemetery, and advised the Râmnicul Orthodox Diocese (Episcopia Râmnicului) to take appropriate action against Mr Tudor. On 29 March 2005 the local council reiterated its decision. On 3 June 2005 they also refused to allow the Greek-Catholic parish to hold its religious gatherings in a deserted school building.

On 24 January 2005 Mr Tudor resigned from his previous position in the Orthodox Church. He was defrocked the next day, and the Orthodox Church sent a new Orthodox priest to the local parish.

On 27 January 2005 the Râmnicul Orthodox Diocese lodged a request, by means of the urgent procedure (ordonanţă preşedenţială), concerning ownership of Church property. In a final decision of 8 March 2005 the Vâlcea County Court ordered Mr Tudor to surrender the property belonging to the Orthodox Church to the plaintiff and to stop using the village church and cemetery for Greek-Catholic practices.

On 24 February 2005 the Ministry of Culture and Religious Affairs asked the GreekCatholic archdiocese to re-examine its decision to ordain Mr Tudor as a Greek-Catholic priest in Pesceana. They suggested that his withdrawal might facilitate the dialogue between the two parishes in the community.

On 27 May 2005 the Pesceana local authorities transferred ownership of the cemetery to the Orthodox parish. On 17 June 2005 they delivered the title deeds for the land to the Orthodox parish. However, on 10 October 2008 in proceedings instituted by the Pesceana local authorities against the Greek-Catholic Church, the Vâlcea County Court declared the deeds null and void.

Several members of the Pesceana Greek-Catholic parish lodged a complaint against the local authorities and the Orthodox community with the National Council against Discrimination. The council examined the administrative decision of 22 January 2005 and noted that the plaintiffs had been denied access to the village church and cemetery. It concluded that the local authorities had breached the applicants’ freedom of conscience and disregarded their religious autonomy. Consequently, the Council issued a warning to the local authorities. It gave its decision on 31 August 2005.

The conflicts between the two religious communities escalated. The Orthodox community prohibited the Greek-Catholics from entering the cemetery to bury their dead or honour their memory. According to the applicants, they suffered increased pressure to revert to Orthodoxy: they were asked to sign a declaration renouncing their Catholicism if they wanted the local authorities to deliver any official service; they received unjustified fines; some of them were threatened with dismissal from their jobs; and the local school organised a public demonstration against the Catholic Church. Some 300 individuals gave written statements that they had been misled by Mr Tudor into changing their faith. Some people lodged criminal complaints against those who had allegedly threatened them in order to force them to revert to Orthodoxy. The Greek-Catholic archdiocese intervened in their favour by engaging in a written exchange with the local authorities. It was, however, to no avail.

Several criminal complaints were also lodged by both parties to the conflict, mainly concerning incidents that occurred in 2005 and 2006.

On 21 March 2005, using the urgent procedure, the applicant parish sought to compel the Orthodox parish to allow Greek-Catholics the right to use the village cemetery to bury their dead and for memorial services.

On 6 September 2005 the Drăgăşani District Court found in favour of the applicant parish. On 19 January 2006 the Vâlcea County Court upheld the decision, which thus became final. The courts held that the applicant parish had been recognised by the Greek-Catholic Church and was thus legally constituted. It reiterated that, according to the Religious Freedom Act, as the village had only one cemetery, all individuals had to have access to the burial grounds, irrespective of their faith.

As the Greek-Catholics continued to be denied access to the cemetery by the Orthodox community, the applicant parish sought the services of a bailiff. On 3 February 2006 the County Court issued an enforcement order concerning the decision of 19 January 2006.

On 13 February 2006 the bailiff notified the Pesceana Orthodox Church and the Râmnicu Orthodox Diocese of his intention to enforce the above decision and sought assistance from the police. On 18 and 20 February 2006 a group of persons from Pesceana and the neighbouring villages did not allow the applicants, the bailiff or the police to enter the cemetery. Not even the police intervention on behalf of the applicants was able to deter the opposing parish. According to the bailiff’s report, the new Orthodox priest refused to assist him and the GreekCatholics of the village in the enforcement attempts or to talk with his followers. He claimed that he was engaged in other religious duties at that time. As the two parties became violent, the bailiff stopped the proceedings in order to avoid any escalation.

The Orthodox parish objected to the enforcement proceedings and on 22 February 2006 the Drăgăşani District Court temporarily suspended the enforcement order until a final ruling had been given on the objection.

On 16 May 2006 the Drăgăşani District Court held that the decision of 6 September 2005 was enforceable until the litigation concerning ownership of the cemetery had been examined (see paragraph 10 above). It nevertheless maintained the suspension of the enforcement order until a final ruling had been given on the objection. The decision became final on 3 November 2006, when the Vâlcea County Court dismissed an appeal lodged by the applicants.

On 19 May 2006 several members of the applicant parish (see appendix two below) lodged an action against the Orthodox parish and the Râmnicu Orthodox Diocese seeking access to the cemetery to bury their dead and perform the relevant rituals.

On 14 October 2008 the Vâlcea County Court partially allowed the request. A final ruling in the case was given on 26 February 2009 by the Piteşti Court of Appeal. The courts took note of the fact that the title deeds delivered to the Orthodox parish had been declared null and void. Using the same arguments as those advanced by the County Court under the urgent procedure, the courts recognised the rights of the Greek-Catholic members of the community to be buried in the Greek-Catholic tradition. The Court of Appeal further decided that persons who embraced the Greek-Catholic faith would not be allowed to perform Greek-Catholic rituals for deceased members of their families who had been buried according to the Orthodox tradition. In so deciding, the Court of Appeal considered that the person’s own convictions at the time of death should be subsequently respected by the family in the choice of rites.

After communication of the application, the Government sought information about the current situation in Pesceana. The State Secretary for Religious Affairs approached the Râmnicu Orthodox Diocese, which informed him that Greek-Catholics had free access to the cemetery and that in 2007 the Pesceana Greek-Catholic parish had received 30,000 Romanian Lei from the State budget in order to build a church.

The Pesceana mayor’s office informed the Government that neither religious community was being obstructed from using the cemetery and that the police had recorded no incidents in recent years. Statements by the two local priests were attached to the mayor’s report. The Orthodox priest explained that the Greek-Catholic priest was allowed into the cemetery in order to bury the deceased members of his community, but accused him of performing Greek-Catholic rituals for deceased Orthodox believers. Mr Tudor declared that their access was still restricted and that pressure had been exerted on members of the Greek-Catholic community to resign from their Church and join the Orthodox Church.

In 2011 the Orthodox priest lodged a criminal complaint against a Greek-Catholic believer who had buried her deceased parent in the village cemetery according to Greek-Catholic rites. The prosecutor decided not to prosecute, reiterating that the Greek-Catholic believers had a right, which had been recognised by a court order, to use the cemetery; the prosecutor also noted that no damage had been done to the neighbouring graves belonging to Orthodox families. Another burial took place in 2011 and allegations of police brutality against Greek-Catholic believers in the aftermath of the religious service were dismissed as unfounded by the prosecutor.

It appears that the Pesceana local authorities have recently decided to create a new cemetery for all faiths.

Excerpts from the relevant domestic law concerning the enforcement of final judgments are given in Bogdan Vodă Greek-Catholic Parish v. Romania, no. 26270/04, §§ 31-32, 19 November 2013.

The relevant domestic law and practice concerning the general situation of recognised religious groups, and in particular the situation of the Greek-Catholic community, are described in Remetii pe Somes GreekCatholic Parish v. Romania (dec.), no. 13073/03, §§ 11-12, 9 September 2014.


CASE OF MEREUTA v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

The applicant was born in 1977 and lives in Opaci.

On 29 July 2009, the applicant was celebrating his birthday with a group of friends by a lake when they were attacked by S. who was intoxicated and carrying a hunting rifle. S. was angry because the applicant and his friends had allegedly ill-treated his uncle earlier. During the conflict, S. hit one of the applicant’s friends with the barrel of his gun and fired four gunshots at the group’s cars parked nearby. The applicant attempted to prevent S. from continuing shooting but was shot from a distance of some five metres into his right calf. The applicant’s repeated attempts to disarm S. resulted in his receiving two more gunshots from a very short distance into his already wounded leg.

As a result of the attack the applicant sustained serious injuries to his right leg which led to amputation of his leg above the knee.

On 31 July 2009 criminal proceedings were instituted against S. on charges of hooliganism with the use of a firearm resulting in the causing of severe harm to the applicant’s health.

Between 1 and 10 August 2009 twenty-five witnesses were questioned and by 12 September 2009 most of the investigative measures were completed.

On 12 August 2009 S. was declared a suspect in the criminal proceedings and on 29 December 2009 he was indicted.

On 12 January 2010 S. was heard as an accused. He acknowledged his guilt, but refused to make any declarations.

On 23 February 2010 the criminal case-file was remitted for examination from the Căușeni Police Station to the Anenii Noi Police Station.

Between March and December 2010 the Anenii Noin all the investigative measures.

On 14 December 2010 the case-file was transmitted to the Anenii Noi prosecutor’s office with the proposal to be remitted to a court for consideration.

On 20 December 2010 both the applicant and his representative were notified of the completion of the criminal investigation.

On 30 December 2010 the prosecutor’s office decided to discontinue the criminal proceedings against S. The prosecutor’s office found that according to Article 63(2) of the Code of Criminal Procedure, a person’s status as suspect cannot be maintained longer than three months. Since S. was indicted on 29 December 2009, that is four months and seventeen days later, the indictment was unlawful. Therefore, all charges against S. were dropped and the proceedings discontinued.

On 18 February 2011 at the request of the applicant’s representative, the prosecutor general’s office decided to annul its previous decision of 30 December 2010, and to resume the criminal investigation on the ground that new facts had been discovered.

On 31 March 2011 the Rascani District Court upheld S.’s objection against the prosecutor’s decision of 18 February 2011, ordering its annulment. The applicant and his representative were not summoned or informed about the proceedings.


András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant, Mr Simon Benjamin, is a Hungarian national, who was born in 1972 and is currently detained at Szombathely Prison. He was represented before the Court by Mr R. Papp, a lawyer practising in Szeged.

The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.

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

On 31 March 1998 the applicant escaped from Pálhalma Prison where he was serving a sentence for robbery. While on the run, he shot a prison guard twice in the leg. A third shot would have hit the guard’s chest and may have killed him if he had not jumped away. The applicant was caught within a few hours and transferred back to prison. He claims that the prison officers beat him on arrival, which apparently caused a rupture in his abdominal wall.

On 1 April 1999 the applicant was admitted to Pálhalma Prison Hospital in response to his complaints of vomiting bile, solar plexus pain and a swollen ankle. There is no evidence in the applicant’s medical record that he complained of beating by the police officers during his arrest.

On 9 December 1999 the Pest County Regional Court found the applicant guilty of attempted murder of a public official, escape from imprisonment and other crimes and sentenced him to life imprisonment in a strict-regime prison. The Supreme Court, acting as a second-instance court, upheld this judgment on 15 January 2001.

The applicant was initially committed to Szeged Prison and then transferred to Budapest Prison in 2003. He was placed in a single-occupancy cell, since there were grounds to believe, based on police reports, that he would attempt to escape. He was allowed to stay outside, with physical restraints, in accordance with the prison’s daily routine. He complained about these restraints and his placement to the prison governor, but the rules remained unchanged.

On 28 February 2004 the applicant escaped from Budapest Prison. He was caught and returned to prison within a few hours. On his retrieval, the prison officers allegedly handcuffed him and fettered his legs, tore his clothes off, forced him down on the ground, knelt on his head and beat him. They interrogated him for thirty to forty-five minutes about his escape while he lay naked on the cold floor. This occurred in the medical ward of the prison in the presence of a female doctor and a nurse.

After having been interrogated, the applicant was led to a prison office barefoot and then placed in a special security cell, as a disciplinary measure, where he spent 40 days in isolation with his hands tied to his belt and his legs fettered day and night. During this entire period he was allowed to wash himself only six times altogether, and the cuffs and fetters seriously lacerated his skin.

The beating by the prison officers during the interrogation apparently caused a recrudescent rupture in the applicant’s abdominal wall, and he had to undergo surgery. He submits that he still suffers from residual inguinal hernia.

On 27 September 2004 the applicant lodged a complaint with the Ministry of the Interior, Department for Supervision of Prisons, concerning his treatment at Budapest Prison. The case was first transferred to the National Headquarters of Penitentiary Institutions and, for further examination, to Budapest Prison and the Budapest Military Prosecutor’s Office. The latter opened criminal investigations on 28 October 2004, which were discontinued on 28 February 2005 for want of evidence.

In relation to his second escape, on 28 March 2006 the Pest Central District Court found the applicant guilty of vandalism and escape from imprisonment and sentenced him to one year and six months of imprisonment, non-executable due to his ongoing life term. On 12 June 2008 the President of the Republic dismissed the applicant’s plea for clemency.

On 13 August 2008 the applicant attempted to commit suicide by hanging himself in his prison cell, but his life was saved.

In December 2009 the applicant was again transferred to Szeged Prison. On admission, he was stripped in the medical ward in front of five prison officers, a doctor and a nurse, and he was required to bend over a bed with his hands handcuffed. While he was in this position the doctor performed a cavity search. When the applicant complained that he found this humiliating in front of several spectators, the prison officers laughed at him, allegedly threatening him that they might ‘assist’ the doctor in the cavity search using their metal batons.

Subsequently the applicant was transferred to another penitentiary institution, but in June 2011 he was returned to Szeged Prison for a three-week period, in order to make him available to local justice as a witness in a criminal case. On admission, the otherwise routine cavity search was again carried out in the presence of several prison officers. He complained about this to the prison governor, and on 11 July 2011 he lodged a complaint with the public prosecutor in charge of penitentiary supervision. On 13 July 2011 the applicant was moved to Márianosztra Prison and his complaint was transferred to the Pest County Chief Prosecutor’s Office, for reasons of jurisdiction. On 11 August 2011 the applicant was heard by a public prosecutor in Márianosztra Prison, where he withdrew his complaint, stating that the issue had been resolved.

The applicant submitted that he was serving his term in a special security department, in a single-occupancy cell illuminated only by artificial light. He was excluded from any courses or social events organised within the prison, and he had difficulties in receiving visitors; in particular, he could be visited by his family, living in Germany, only once a year due to the circumstances. Moreover, he was always handcuffed whenever outside his cell.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicants, Mr Jürgen Hösl-Daum, Mr Stephan Roth and Mr Robert Göpfert, are German nationals who were born in 1978, 1980 and 1982 respectively and live in Brüggen, Oybin and Zittau. They were represented before the Court by Mr S. Böhmer, a lawyer practising in Erlangen. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, succeeded by Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

The facts of the case, as submitted by the parties, may be summarised as follows. The applicants arrived in Poland on 20 July 2004. During the night of 20 to 21 July 2004 they put up posters, described below, at bus stops and poster pillars in Bolesławiec, a town near the border between Poland and Germany. On 22 July 2004 the applicants were arrested by the police when taking photographs of the places where they had put up the posters.

There were two posters of A3 format with text in German and a number of graphic photographs of unknown origin depicting, inter alia, mass graves, massacred bodies and a group of people in an open train carriage.

The first poster read, inter alia, as follows:

“The Poles and the Czechs – a heartfelt welcome to the EU!

Our justice system is working diligently, because murder is not subject to statutory limitation.

Documents [concerning] Polish and Czech atrocities on the Germans

“From the land of the dead”

A Jewish émigré and a native Berliner – Robert Jungk – later a famous author and a critic of technologies (“Brighter than a Thousand Suns”), even before the so-called “regular” expulsion had begun, published in the Zurich “Weltwoche” a report about the conditions prevailing in the eastern regions of Germany occupied by the Poles based on his own experience. His report was entitled “From the land of the dead”.

We quote some passages:

“Whoever leaves the Polish zone and reaches the territory occupied by the Russians can immediately breathe again. He leaves behind totally looted towns, plague-stricken villages, concentration camps, barren fields, streets full of corpses, in which thieves lurk, and rob the expellees of their last belongings ... It is true that on a public square in town G. girls, women and old women were raped by relatives of the Polish militia. It is true that at the railway station in S. all trains transporting refugees were systematically looted to such an extent that the people in them had to travel west naked. It is true that in the heart of Silesia not one child under one year of age is still alive, because all of them have died of hunger or been killed. It is true that in Upper Silesia women suffering from syphilis (who were earlier raped – editor) received as a “therapy” a shot in the head. It is true that there has been a wave of suicides in the country, in some towns one-twelfth and in some even one-tenth of the population have taken their lives. It is true that in the so-called labour camps in C. and S. prisoners are made to spend the whole night up to their necks in icy water and that they are beaten until they lose consciousness.”

Was the year 1945 a liberation?

Mass deaths in the foreign extermination camps

After the end of the war 7 million Germans were robbed, expelled, raped, attacked and murdered

More Germans died in Poland and on the territories occupied by the Poles in 1,255 camps than those who died in transit following expulsion. In the Lamsdorf camp in Upper Silesia, of the 8,000 [people] held there 6,048 died. In the other labour camps in Upper Silesia unspeakable cruelty reigned too. It was common practice in the different camps to shoot, as planned in advance, those who were too old, unable to work or ill.

The forced labour and suffering in a camp cannot be compensated with money, regardless of the amount. What is necessary is awareness of those crimes in the countries where the atrocities occurred. What is also necessary is that the surviving responsible parties be judged. As for that, there is total silence surrounding the issue of the German victims.”

The second poster contained, inter alia, the following passages:

“Documents on Polish and Czech atrocities ... Are our EU-friends avoiding a new evaluation of their history?? 15,000,000 Germans were robbed and expropriated, hundreds of thousands were sent to concentration camps and to forced labour ... 3,500,000 Germans were killed ... Where there is no accuser, there is no judge ... there were only Germans ... Second-class people??

Overall 11 million Germans died, including 7 million after the end of the war.

A peaceful Europe may exist only on the foundation of law and truth. The restitution of houses and plots of land expropriated against the law of nations should be a given in the now democratic Poland and Czech Republic.”

On 28 December 2004 the prosecution filed a bill of indictment against the applicants with the Jelenia Góra Regional Court. They were charged with the commission of two offences: publicly insulting the Polish nation (Article 133 of the Criminal Code) and incitement to hatred based on national differences (Article 256 of the Criminal Code). It was alleged that between May and July 2004 the applicants had put up no less than thirtytwo posters at bus stops and on poster pillars in towns close to the Polish-German border. According to the prosecution, the posters contained untrue statements about alleged mass crimes committed by Poles against the German civilian population during and after the Second World War and graphic photographs of unknown origin. Furthermore, the applicants had created tension between the Polish and German nations on account of their demand for land and property left by the German population on Polish territory to be returned.

On 7 February 2005 the Jelenia Góra Regional Court decided that it did not have jurisdiction to examine the applicants’ case and transferred it to the Jelenia Góra District Court. It found that the acts imputed to the applicants were to be considered administrative offences against public order. The prosecution appealed against that decision. On 25 February 2005 the Wrocław Court of Appeal quashed the decision and remitted the case to the Regional Court. It held that the Regional Court could not review the soundness of the prosecution’s legal classification of the alleged offences at the preliminary stage of the proceedings to determine jurisdiction.

On 12 May 2005 the Regional Court gave judgment. It held that the applicants had committed the impugned offences and decided to suspend the criminal proceedings against them for a two-year probation period. Each applicant was ordered to pay 2,000 Polish zlotys (PLN) to a children’s home.

The Regional Prosecutor appealed against the judgment. She argued, inter alia, that the Regional Court had erred in finding that the degree of guilt and social danger of the acts imputed to the applicants had been negligible. On 14 September 2005 the Wrocław Court of Appeal quashed the Regional Court’s judgment and remitted the case.

On 7 April 2006 the Regional Court gave judgment. The applicants were convicted of insulting the Polish nation and inciting hatred between the Polish and the German nations in that on 20 July and on the night of 20 to 21 July 2004 in Bolesławiec they had put up in public places posters containing untrue statements about alleged mass crimes committed by the Poles against the German civilian population during and after the Second World War and containing graphic photographs of unknown origin; they had further created tension between the two nations by demanding the return of land and property left by the German population on Polish territory. They were also convicted of attempting to put up other similar posters.

The Regional Court sentenced the first applicant to ten months’ imprisonment and the two remaining applicants to eight months’ imprisonment. It conditionally suspended the prison sentences for a threeyear probationary period.

The court based its findings on an opinion prepared by three professors from the law, history and sociology departments of Wrocław University. Two of the experts were also members of the Commission for the Examination of Nazi Crimes in Poland.

The Regional Court, having regard to the collected evidence, found the applicants guilty of publicly insulting the Polish nation and of inciting national hatred. It found, in so far as relevant:

“The offence specified in Article 133 of the Criminal Code is committed, inter alia, by a person who publicly insults the Polish nation. The interpretation of the term “insult” can be made on the basis of the system of values existing in a given society, whereas the meaning of this word should reflect the meaning attributed to it in ordinary language. To insult is to offend somebody or something by word or act. ... It is an act which consists of showing contempt, damaging respect or reputation.

The term “insult” belongs to the category of value judgments and can have various meanings. It is accepted that the interpretation of this term should be made on the basis of criteria which are as objective as possible and of commonly accepted values. An insult amounts to an expression of contempt, humiliation and affront. (...)

The offence specified in Article 256 of the Criminal Code is committed, inter alia, by a person who publicly incites hatred on the basis of national differences. Such act consists in sowing the seeds of dislike and hostility ....”

With regard to the applicants’ motives, the court noted that they claimed to have put up posters in Bolesławiec with a view to informing the Polish public about the massacres of the German population during the period of its expulsion. It did not accept that claim as credible and held as follows:

“The posters contain many untruths concerning the Poles. It transpires from the expert opinion that the information with regard to the death rate among the Germans and to the deportations were deliberately presented in a chaotic manner – without making a distinction as to whether they took place under the Polish or Russian administration, or on the territory of Czechoslovakia – and were presented in such a way as to give grounds for accusation mainly against the Poles.

The numbers cited on the posters were taken from some biased anti-Polish political pamphlets. The information quoted from the article by R. Jungk about the situation prevailing on the territories transferred to Polish administration following the undertakings of the Potsdam Conference is untrue –information about the real perpetrators of, inter alia, the ordinary criminal acts was deliberately omitted. The information about Germans held in concentration camps in Poland after the end of the war is also untrue, since such camps did not exist, and the photographs on the posters have no documentary value and it is impossible to identify them.

The experts clearly affirmed in their opinion that the contents of the posters are untrue and are not supported by the research of Polish and German historians.

It is of particular importance that the accused were previously sentenced in Poland for the commission of an administrative offence under Article 63a § 1 of the Code of Administrative Offences, which consisted of putting up about one hundred crosses with the inscription ‘The Germans 1945-46’. This act of the accused had significant social repercussions, and the fact that they were sentenced indicates that they had to be aware of the legal and social consequences of putting up the posters.

The accused insulted the Polish nation by putting up the posters. The untruths included in the posters insult the Polish nation, since imputing to the Poles the alleged crimes – which are not scientifically proved – is an affront to the Polish nation. This interpretation of the posters is based, among other things, on the assessment of their contents by third persons and on the reactions of the people who saw the posters.”

The trial court further held:

“The contents of the posters may obviously arouse feelings of unrest, dislike or antagonism between the Polish and German nations. The emphasis in the posters on the alleged Polish crimes, and the inclusion of groundless demands for the return of houses and land left by the German population on Polish territory, may presently revive or arouse antagonism on the part of the Germans towards the Poles. In accordance with the expert opinion the inclusion in one of the posters of a photograph of a skull was solely aimed at stirring up hatred. ...

With regard to the sentence, the court had regard to the applicants’ previous conviction by a judgment of the Wrocław-Śródmieście District Court of 9 May 2003 for an administrative offence specified in Article 63a § 1 of the Code of Administrative Offences.

The applicants filed an appeal. Firstly, they alleged that the court had committed a number of procedural errors. They claimed, inter alia, that when considering whether the offence of insulting the Polish nation had been committed, the trial court had blindly followed the expert opinion prepared by historians and failed to properly consider the matter itself and to examine the contents of the posters. Furthermore, the court had wrongly assumed that inclusion in the poster of inaccurate data related to historical events had implied that the content was insulting and incited hatred.

The applicants contested the trial court’s refusal to admit certain evidence and alleged that it had arbitrarily assessed the evidence. In particular, they challenged its refusal to admit a second expert opinion alleging that the first one had been contradictory. In their view, the trial court had erred in considering that the contents of the posters was capable of stirring up unrest, dislike and antagonism and that they had acted with the intention of insulting the Polish nation and inciting hatred.

They averred that the exaggerated manner of their expression concerning the relations between the Poles and the Germans had been exclusively aimed at prompting a discussion about their relations with a view to reconciliation, and could not be considered in any way as an insult. In this connection, they claimed that the posters contained some true historical information and some which was the subject of historical dispute.

With regard to the alleged insult to the Polish nation, they argued that the trial court had failed to distinguish between statements which were unfavourable to the Polish nation and those which were insulting. Furthermore, Article 133 of the Criminal Code should have been construed narrowly in a modern State based on the rule of law and could not be used as a tool to protect one interpretation of history.

On 30 August 2006 the Wrocław Court of Appeal dismissed the applicants’ appeal and upheld the first-instance judgment.

The Court of Appeal found that the trial court had committed no errors of procedure. The evidence collected in the case had been comprehensive and sufficient to examine the case and there was no need to admit the evidence proposed by the applicants.

The Court of Appeal noted that it had been necessary to examine the applicants’ actions in the historical context of the Second World War and the period following it. To this end the court had ordered the preparation of an opinion by professors from Wrocław University. They had been asked to consider the content of the posters and had stated that:

“the contents of the posters were entirely untrue and contained false information about the situation prevailing on the territories transferred to Polish administration following the undertakings of the Potsdam Conference. The posters also contained untrue information about German losses which did not correspond to the results of research carried out by Polish and German historians”.

The Court of Appeal dismissed the applicants’ arguments that the opinion had been incomplete and contradictory. It also rejected their view that the experts had not been in a position to assess whether the contents of the posters had been insulting to the Polish nation or had incited national hatred. The Court of Appeal noted that in historical studies there could be certain differences of opinion as regards, for example, the extent of German losses after the end of the war. The experts had, however, considered this issue, referring to the results of Polish-German research. Furthermore, it observed that although the human tragedies experienced by the Germans, occasioned by their expulsion in particular, could not be disregarded, those events could not be detached from the historical context, namely, the reasons for and the consequences of the Second World War, including the undertakings of the Potsdam Conference.

Article 14 provides as follows:

“The Republic of Poland shall ensure freedom of the press and other means of social communication.”

Article 31 § 3 of the Constitution, which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms (the principle of proportionality), provides:

“Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic State for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.”

Article 54 § 1 of the Constitution guarantees freedom of expression. It states, in so far as relevant:

“The freedom to express opinions, to acquire and to disseminate information shall be ensured to everyone.”

Article 42 § 1 of the Constitution reads:

“Only a person who has committed an act prohibited by a statute in force at the moment of commission thereof, and which is subject to a penalty, shall be held criminally responsible. This principle shall not prevent punishment of any act which, at the moment of its commission, constituted an offence within the meaning of international law.”

Article 79 § 1 of the Constitution provides as follows:

“In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.”

Article 190 of the Constitution, insofar as relevant provides as follows:

“1. Judgments of the Constitutional Court shall be universally binding and final.

Judgments of the Constitutional Court, ... shall be published without delay.

A judgment of the Constitutional Court shall take effect from the day of its publication; however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time-limit may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. ...

A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or statute, of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given, shall be a basis for re-opening of the proceedings, or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings.”

Article 133 of the Criminal Code provides as follows:

“Anyone who insults the Nation or the Republic of Poland in public shall be subject to deprivation of liberty for up to three years.”

Article 256 of the Criminal Code read, at the material time, as follows:

“Anyone who publicly promotes a fascist or other totalitarian system of state or incites hatred based on national, ethnic, racial or religious differences or for reason of lack of any religious denomination shall be subject to a fine, restriction of liberty or deprivation of liberty for up to two years.”

Article 540 § 2 of the Code of Criminal Procedure provides for reopening of the proceedings following a judgment of the Constitutional Court. It reads as follows:

“The proceedings shall be reopened to the benefit of the accused when as a result of the Constitutional Court’s judgment a provision of law which served as the basis for conviction or conditional discontinuation [of the proceedings] was abolished or amended.”


George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Ms Malka Muratspahić, is a Bosnian-Herzegovinian citizen, who was born in 1957 and lives in Goražde. She was represented before the Court by Mr N. Mulalić, a lawyer practising in Sarajevo.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović.

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

After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people lost their lives and more than 2,000,000 people were displaced in the course of the war. It is estimated that around 30,000 people went missing and that around one quarter of them is still missing. The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace in Bosnia and Herzegovina entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska.

In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed Resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”), headquartered in The Hague. More than 70 individuals have already been convicted and proceedings are ongoing for 20 accused. In the period from February 1996 until October 2004, local prosecutors in Bosnia and Herzegovina were required to submit case files to the ICTY for review; no person could be arrested on suspicion of war crimes unless the ICTY Office of the Prosecutor had received the case file beforehand and found it to contain credible charges (the “Rules of the Road” procedure). Moreover, the ICTY had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice. As part of the ICTY’s completion strategy, in early 2005 war crimes chambers were set up within the Court of Bosnia and Herzegovina (“the State Court”) with primacy over other courts in Bosnia and Herzegovina as regards war crimes. More than 100 persons have been finally convicted by the State Court. Many others have been convicted by the competent Entity courts (see paragraphs 21-22 below).

Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. Reportedly, the ICMP has so far identified by DNA more than 14,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified more than 8,000 missing persons by other methods. In 2005 the Government of Bosnia and Herzegovina and the ICMP established a Missing Persons Institute, also headquartered in Sarajevo (see paragraph 15 below). It became operational on 1 January 2008.

The applicant’s father, Sulejmen Odžaković, disappeared in unknown circumstances in an area controlled by the VRS forces (Gornja Podkozara in the vicinity of Goražde) on an unknown date in May 1992.

On 2 October 2002 Ms Biljana Plavšić, one of the war-time leading political figures of the Republika Srpska, pleaded guilty before the ICTY to having participated in the persecution of Bosniacs and Croats from certain territories of Bosnia and Herzegovina. She was sentenced to 11 years’ imprisonment.

Cases against Radovan Karadžić, the war-time civilian leader of the Republika Srpska, Ratko Mladić, the war-time military leader of that Entity, and Vojislav Šešelj, a leading political figure of Serbia in the 1990s, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from “the territories of Bosnia and Herzegovina claimed as Bosnian Serb territory” (see, for example, the third amended indictment against Radovan Karadžić, § 9).

In the absence of any information about the disappearance and death of the applicant’s father, no formal charges have been brought yet in respect of this particular case. At the same time, domestic authorities have finalised investigations into some other killings committed as a part of a widespread and systematic attack against the non-Serb civilian population of the pre-war municipality of Goražde in May 1992; an indictment has thus far been issued against one person – D. Š. – and criminal proceedings are pending.

The applicant did not seek a declaration of presumed death with respect to her father.

The applicant’s father was identified by DNA on 25 May 2005.

On 9 November 2005 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the applicant’s father and to conduct a full, meaningful, thorough and detailed investigation aimed at making known the fate or whereabouts of the applicant’s father and bringing the responsible to justice. No compensation was awarded.

The Missing Persons Act 2004 entered into force on 17 November 2004 (Official Gazette of Bosnia and Herzegovina no. 50/04). In accordance with section 3 of the Act, families have the right to know the fate of missing persons (that is, their whereabouts if they are still alive, or the circumstances of death and their place of burial, if they are dead) and to obtain their mortal remains. Under section 4 of the Act, the relevant domestic authorities have the obligation to provide any and all such information in their keeping.

Section 7 of that Act provides for the setting up of a Missing Persons Institute. In 2005 the ICMP and the Government of Bosnia and Herzegovina founded the Institute, headquartered in Sarajevo, pursuant to that provision and the Agreement on Assuming the Role of Co-founders of the Missing Persons Institute of Bosnia and Herzegovina (Official Gazette of Bosnia and Herzegovina, International Treaty Series, no. 13/05). It became operational on 1 January 2008. One of the organs of that Institute is an Advisory Board, comprised of six representatives of families of missing persons (see Article 10 of the Agreement mentioned above).

In accordance with section 9 of the Act, the status of missing person comes to an end on the date of identification. Therefore, if a missing person is declared dead but the mortal remains have not been found and identified, the process of tracing continues.

Pursuant to section 11 of the Act, the families of missing persons are entitled to monthly financial support under some conditions, notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support (in other words, if they are not in paid employment and do not receive welfare benefits beyond 25% of the average salary paid in Bosnia and Herzegovina). Section 15 of the Act provides for the setting up of a Missing Persons Fund for that purpose. However, as the Fund has not yet been established, no payment has been made so far.

Families of missing persons are also entitled to, inter alia, temporary administration of the property of missing persons, burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons (section 18 of the Act).

Section 21 of the Act provides for the setting up of Central Records with the aim of verifying information about missing persons from different sources (government agencies, associations of families of missing persons, the ICMP and the International Committee of the Red Cross) and creating a single database. While Central Records were founded on 3 February 2011, it would appear that the verification process is still ongoing. Once that process is completed, all those recorded as missing will be declared dead (section 27 of the Act), but the tracing process will nevertheless continue (see paragraph 16 above).

Despite the fact that the verification process outlined in paragraph 19 above is pending, any person may request that a declaration of presumed death be issued with respect to a missing person (see the Non-Contentious Procedure Act 1998, Official Gazette of the Federation of Bosnia and Herzegovina, nos. 2/98, 39/04, 73/05; and the Non-Contentious Procedure Act 2009, Official Gazette of the Republika Srpska, no. 36/09).

War crimes cases fall, as a general rule, under the jurisdiction of the State Court, but the State Court may transfer any such case to the competent Entity court in accordance with the criteria set out in paragraph 22 below (see Article 27 of the 2003 Code of Criminal Procedure). For example, only in 2012 the State Court transferred 217 cases to 15 Entity courts.

In accordance with the Book of Rules on the Review of War Crimes Cases of December 2004 the following types of cases were, as a rule, to be heard before the State Court: (a) cases concerning genocide, extermination, multiple murders, rape and other serious sexual assaults as part of a system (such as in camps), enslavement, torture, persecution on a widespread and systematic scale, mass forced detention in camps; (b) cases against past or present military commanders, past or present political leaders, past or present members of the judiciary, past or present police chiefs, camp commanders, persons with a past or present notorious reputation, multiple rapists; (c) cases with insider or suspect witnesses; (d) if there was a risk of witness intimidation; and (e) cases involving perpetrators in an area which is sympathetic to them or where the authorities have a vested interest in preventing public scrutiny of the crimes. All other war crimes cases were, as a rule, to be heard before the Entity courts.

In December 2008 the authorities adopted the National War Crimes Strategy, providing a new set of criteria. However, they are almost identical to those outlined in paragraph 22 above. In addition, the Strategy defines the time-frames, capacities, criteria and mechanisms for managing those cases, standardisation of court practices, issues of regional cooperation, protection and support to victims and witnesses, as well as financial aspects, and supervision over the implementation of the Strategy. One of its objectives is to process the most complex and top priority cases within seven years (that is, by the end of 2015) and other war crimes cases within fifteen years (that is, by the end of 2023). In order to comply with that time-frame, the local authorities have, inter alia, almost doubled the number of State prosecutors in charge of war crimes (from 19 to 37) in the last 12 months.


No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms)

Aleš Pejchal;András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Ineta Ziemele;Ján Šikuta;Jon Fridrik Kjølbro;Josep Casadevall;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Nona Tsotsoria;Päivi Hirvelä;Paul Lemmens;Robert Spano;Vincent A. De Gaetano;Zdravka Kalaydjieva;Ksenija Turković

The applicant was born in 1954 and lives in Garkalne (Riga district). At the time of the events which are the subject of the present application he was an investment consultant.

On 4 May 1999 the applicant and F.H. Ltd., a commercial company incorporated under Cypriot law, signed an acknowledgment of debt deed before a notary. Under the terms of the deed the applicant declared that he had borrowed 100,000 United States dollars (USD) from F.H. Ltd. and undertook to repay that sum with interest by 30 June 1999. The deed also contained choice of law and jurisdiction clauses according to which it was governed “in all respects” by Cypriot law and the Cypriot courts had nonexclusive jurisdiction to hear any disputes arising out of it. The applicant’s address was given as G. Street in Riga and was indicated as follows:

“[FOR] GOOD AND VALUABLE CONSIDERATION, I, PĒTERIS AVOTIŅŠ, of [no.], G. [street], 3rd floor, Riga, Latvia, [postcode] LV-..., (‘the Borrower’) ...”

In 2003 F.H. Ltd. brought proceedings against the applicant in the Limassol District Court (Επαρχιακό Δικαστήριο Λεμεσού, Cyprus), alleging that he had not repaid the above-mentioned debt and requesting that he be ordered to pay the principal debt together with interest. In the Strasbourg proceedings the applicant submitted that he had in fact already repaid the debt before the proceedings were instituted in the Cypriot court, not by paying the sum of money in question to F.H. Ltd. but by other means linked to the capital of F.H. Ltd.’s parent company. However, he acknowledged that there was no documentary evidence of this. The respondent Government contested the applicant’s submission.

In an order dated 27 June 2003 the District Court authorised the “sealing and filing of the writ of summons”. On 24 July 2003 a “specially endorsed writ” was drawn up, describing the facts of the case in detail. It gave the applicant’s address as G. Street in Riga, the address indicated on the acknowledgment of debt deed.

Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex parte application to the same District Court on 11 September 2003 seeking a fresh order enabling a summons to be served on the applicant outside the country and requiring him to appear within thirty days from the date of issuing of the summons. The claimant company’s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in G. Street in Riga and could actually receive judicial documents at that address. The applicant, for his part, contended that it would have been physically impossible for him to receive the summons at the address in question, which was simply the address at which he had signed the loan contract and the acknowledgment of debt deed in 1999 and was not his home or business premises.

On 7 October 2003 the Limassol District Court ordered that notice of the proceedings be served on the applicant at the address provided by the claimant company. The applicant was summoned to appear or to come forward within thirty days of receiving the summons. If he did not do so the court would make no further attempt to contact him and would instead post all future announcements concerning the case on the court noticeboard.

An affidavit produced by an employee of the firm of lawyers representing F.H. Ltd. showed that, in accordance with the court order, the summons had been sent by recorded delivery to the address in G. Street in Riga on 16 November 2003. However, the copy of the summons furnished by the Latvian Government indicated that it had been drawn up on 17 November 2003. The slip produced by the Cypriot postal service stated that the summons had been sent on 18 November 2003 to the address in G. Street, and had been delivered and signed for on 27 November 2003. However, the signature on the slip did not appear to correspond to the applicant’s name. The applicant claimed never to have received the summons.

As the applicant did not appear, the Limassol District Court ruled in his absence on 24 May 2004. It ordered him to pay the claimant USD 100,000 or the equivalent in Cypriot pounds (CYP), plus interest at an annual rate of 10% of the aforementioned amount from 30 June 1999 until payment of the debt. The applicant was also ordered to pay costs and expenses in a gross amount of CYP 699.50, plus interest at an annual rate of 8%. According to the judgment, the final version of which was drawn up on 3 June 2004, the applicant had been duly informed of the hearing but had not attended. The judgment did not state whether the decision was final or indicate possible judicial remedies.

On 22 February 2005 F.H. Ltd. applied to the Riga City Latgale District Court (Rīgas pilsētas Latgales priekšpilsētas tiesa, Latvia) seeking recognition and enforcement of the judgment of 24 May 2004. In its request the company also sought to have a temporary precautionary measure applied. It stated that the applicant was the owner of real property in Garkalne (Riga district) which according to the land register was already mortgaged to a bank. Accordingly, fearing that the applicant might seek to evade enforcement of the judgment, it asked the District Court to place a charge on the property in question and record the charge in the land register. Lastly, it requested that the applicant be ordered to pay the costs. In its request the company gave as the applicant’s place of residence an address in Č. Street in Riga which differed from the address previously notified to the Cypriot court.

On 28 April 2005 the Latgale District Court adjourned examination of F.H. Ltd.’s request, informing the company that the request contained a number of defects which it had one month to correct. In particular, F.H. Ltd. had not explained why it had given an address in Č. Street when the applicant was supposedly resident in G. Street.

On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it explained, among other points, that according to the information contained in the register of residents (Iedzīvotāju reģistrs), the address in Č. Street was the applicant’s officially declared home address. As to the address in G. Street, the company’s representatives had assumed it to be the applicant’s actual residence. In that connection the Latvian Government provided the Court with a copy of a letter from the authority responsible for the register of residents according to which, prior to 19 June 2006, the applicant’s officially declared address had been in Č Street.

In an order of 31 May 2005 the Latgale District Court ruled that the corrigendum submitted by F.H. Ltd. was insufficient to remedy all the defects in its request. The court therefore declined to examine the request and sent it back to the company. The latter lodged an appeal with the Riga Regional Court (Rīgas apgabaltiesa), which on 23 January 2006 set aside the order of 31 May 2005 and remitted the case to the District Court in order for the latter to examine the request for recognition and enforcement as rectified by the corrigendum of 26 May 2005.

In an order of 27 February 2006 issued without the parties being present, the Latgale District Court granted F.H. Ltd.’s request in full. It ordered the recognition and enforcement of the Limassol District Court’s judgment of 24 May 2004 and the entry in the Garkalne municipal land register of a charge on the property owned by the applicant in that municipality. The applicant was also ordered to pay the costs.

According to the applicant, it was not until 15 June 2006 that he learned, from the bailiff responsible for enforcement of the Cypriot judgment, of the existence of that judgment and of the Latgale District Court order for its enforcement. On the following day (16 June 2006) he went to the District Court, where he acquainted himself with the judgment and the order. The respondent Government did not dispute these facts.

The applicant did not attempt to appeal against the Cypriot judgment in the Cypriot courts. However, he lodged an interlocutory appeal (blakus sūdzība) against the order of 27 February 2006 with the Riga Regional Court, while asking the Latgale District Court to extend the time allowed for lodging the appeal. Arguing that there was nothing in the case file to confirm that he had been given notice of the hearing of 27 February 2006 or of the order issued following the hearing, he submitted that the thirty-day period laid down by the Civil Procedure Law should start running on 16 June 2006, the date on which he had taken cognisance of the order in question.

In an order of 13 July 2006 the Latgale District Court granted the applicant’s request and extended the time-limit for lodging an appeal. It noted, inter alia, as follows:

“... It is clear from the order of 27 February 2006 that the issue of recognition and enforcement of the foreign judgment was determined in the absence of the parties, on the basis of the documents furnished by the claimant, [F.H. Ltd.]. The order further states that the defendant may appeal against it within thirty days from the date of receipt of the copy [of that order], in accordance with section 641(2) of the Civil Procedure Law.

The court considers the arguments advanced by the applicant, P. Avotiņš, to be wellfounded, to the effect that he did not receive the order ... of 27 February 2006 until 16 June 2006, this being attested to by the reference in the list of consultations [appended to the case file] and by the fact that the order, served [on the applicant] by the court, was returned on 10 April 2006 ... It is apparent from the documents appended to the appeal that the applicant has not lived at the declared address in [Č.] Street since 1 May 2004; this confirms ... the statement made by his representative at the hearing, according to which the applicant no longer lives at the above-mentioned address.

Accordingly, the thirty-day period should ... run from the date on which the applicant received the order in question ...

Further, the court does not share the view of the representative of [F.H. Ltd.] that the applicant himself is responsible for his failure to receive the correspondence because he did not declare his change of address promptly, and that the time allowed [for lodging an appeal] should not therefore be extended. The fact that the applicant did not take the necessary legal steps concerning registration of residence is not sufficient to justify a refusal by the court to allow him to exercise the fundamental rights guaranteed by the State as regards access to the courts and judicial protection, including the right to appeal against a decision, with the consequences this is likely to entail. ...”

In his grounds of appeal before the Riga Regional Court the applicant contended that the recognition and enforcement of the Cypriot judgment in Latvia breached Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels I Regulation”) and several provisions of the Latvian Civil Procedure Law. He submitted two arguments in that regard.

Firstly, the applicant argued that in accordance with Article 34(2) of the Brussels I Regulation (corresponding in substance to section 637(2), third subparagraph, of the Latvian Civil Procedure Law), a judgment given in default in another Member State could not be recognised if the defendant had not been served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. He maintained that he had not been duly informed of the proceedings in Cyprus, although both the Cypriot lawyers who had represented the claimant company in the Limassol District Court and the Latvian lawyers who had represented it in the Latvian courts had been perfectly aware of his business address in Riga. In support of that allegation he submitted that he had had professional dealings with the Cypriot lawyers, who had telephoned him and sent faxes to his office, and had met the Latvian lawyers in person. Hence, they must all have been aware of his business address. He added that he could also have been reached at his home address in Garkalne, as he had a residence there that was officially declared in accordance with the law and the lawyers could have consulted the municipal land register, where the property he owned was registered under his name. However, instead of serving notice of the proceedings on him at one of those addresses, which had been known and accessible, the lawyers had given the courts an address which they should have realised could not be used.

Secondly, the applicant argued that, under the terms of Article 38(1) of the Brussels I Regulation and section 637(2), second subparagraph, of the Civil Procedure Law, a judgment had to be enforceable in the State of origin in order to be enforceable in the Member State addressed. In the instant case, there had been a threefold breach of those requirements. First, the claimant had only submitted the text of the Cypriot court judgment to the Latvian court and not the certificate required by Annex V to the Brussels I Regulation. In that connection the applicant acknowledged that under Article 55(1) of the Brussels I Regulation the court in which enforcement was sought could, in some circumstances, exempt the claimant from the obligation to produce a certificate. However, in the present case the Latgale District Court had not made clear whether it considered that the claimant could be exempted from that obligation and, if so, for what reason. Second, the Cypriot judgment had contained no reference to the fact that it was enforceable or to possible judicial remedies. Third, although a judgment had to be enforceable in the country of origin in order to be enforced in accordance with the Brussels I Regulation, the claimant company had not produced any documentary evidence demonstrating that the judgment of 24 May 2004 was enforceable in Cyprus. In view of all these circumstances, the applicant contended that the judgment could on no account be recognised and enforced in Latvia.

In a judgment of 2 October 2006 the Regional Court allowed the applicant’s appeal on the merits, quashed the impugned order and rejected the request for recognition and enforcement of the Cypriot judgment.

F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which examined it on 31 January 2007. At the start of the hearing F.H. Ltd. submitted copies of several documents to the Senate, including the certificate referred to in Article 54 of the Brussels I Regulation and Annex V thereto. The certificate was dated 18 January 2007 and had been signed by an acting judge of the Limassol District Court. It stated that the document instituting the proceedings had been served on the applicant on 27 November 2003. The last part of the certificate, intended for the name of the person against whom the judgment was enforceable, had been left blank. When asked to comment on these documents the applicant’s lawyer contended that they were clearly insufficient to render the judgment enforceable.

In a final judgment of 31 January 2007 the Supreme Court quashed and annulled the Regional Court judgment of 2 October 2006. It granted F.H. Ltd.’s request and ordered the recognition and enforcement of the Cypriot judgment and the entry in the land register of a charge on the applicant’s property in Garkalne. The relevant extracts from the judgment read as follows:

“ ... It is clear from the evidence in the case file that the Limassol District Court judgment became final. This is confirmed by the explanations provided by both parties at the Regional Court hearing on 2 October 2006, according to which no appeal had been lodged against the judgment, and by the certificate issued on 18 January 2007... As [the applicant] did not appeal against the judgment, his lawyer’s submissions to the effect that he was not duly notified of the examination of the case by a foreign court lack relevance [nav būtiskas nozīmes].

Having regard to the foregoing, the Senate finds that the judgment of the Limassol District Court (Cyprus) of 24 May 2004 must be recognised and enforced in Latvia.

Article 36 of the [Brussels I] Regulation provides that a foreign judgment may under no circumstances be reviewed as to its substance; in accordance with section 644(1) of the Civil Procedure Law, once such judgments have been recognised they are to be enforced in accordance with the conditions laid down by that Law. ...”

On 14 February 2007 the Latgale District Court, basing its decision on the Supreme Court judgment, issued a payment order (izpildu raksts). The applicant complied immediately with the terms of the order and paid the bailiff employed by the claimant company a total of 90,244.62 Latvian lati (LVL, approximately 129,000 euros (EUR)), comprising LVL 84,366.04 for the principal debt and LVL 5,878.58 in enforcement costs. He then requested that the charge on his property in Garkalne be lifted. In two orders dated 24 January 2008 the judge with responsibility for land registers (Zemesgrāmatu nodaļas tiesnesis) refused the request. The applicant lodged an appeal on points of law with the Senate of the Supreme Court, which, in an order of 14 May 2008, lifted the charge on his property.


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association)

Jon Fridrik Kjølbro;Julia Laffranque;Stéphanie Mourou-Vikström

The applicant was born in 1958 and lives in Antalya.

The applicant is a teacher in a high school. At the material time he was a member of the local branch of the trade union of Education and Science Workers (Eğitim ve Bilim Emekçileri Sendikası).

In May 2009, disciplinary proceedings were instituted against the applicant for putting up a notice encouraging the participation in a press statement published by his Union on the notice board that was set aside for that particular purpose in their office, and for distributing it in one of the common areas at school.

On 30 September 2009 the District Directorate of National Education imposed a disciplinary sanction in the form of a reprimand on him, for putting up and distributing notices produced by the trade union, of which he was a member, under Article 125 of the Law no. 657 on Civil Servants.

On 6 October 2009 the applicant objected to this decision and requested its annulment.

On 15 October 2009 the Disciplinary Board of the Kepez district governor dismissed the applicant’s objection considering that the contested decision was in accordance with law and there were no grounds for its annulment.