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

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicant was born in 1938 and lives in Kaunas.

In October 1991 the applicant asked the authorities to establish that her father had had 7.06 hectares of land in Kaunas Region before nationalisation. The applicant indicated that she and her sister were their father’s heirs. It was indicated in her request that she and her sister would accept land in another location. A document proving that their father had owned 6.79 hectares of land was also attached to the request.

It appears that the applicant and her sister agreed that the applicant had a right to have her property rights to 3.40 hectares of their father’s land restored.

On 3 March 1993 the authorities issued a document containing a decision to return 0.66 hectares to the applicant in natura and to return the remaining 2.74 hectares to her by paying compensation.

On 16 March 1993 the Ministry of Agriculture repeated the authorities’ decision of 3 March 1993 (see paragraph 7 above).

In December 1993 and April 1994 the authorities decided to give the applicant eleven plots, each measuring 0.06 hectares.

In February 2003 the Kaunas Land Reform Division informed the applicant that she could, before 1 April 2003, declare or change her intentions regarding the method by which her property rights would be restored. She was informed that property rights to land that had been an urban area were to be restored by: giving plots of land to the citizens who had buildings on those plots – the maximum plot size was limited to a 0.2 hectares; giving plots of land in cities and rural areas where a citizen did not have land, except for the cities of Vilnius, Kaunas, Klaipėda, Šiauliai, Panevėžys, Alytus, Marijampolė, Druskininkai, Palanga, Birštonas and Neringa; legally voiding a citizen’s liabilities to the State; and paying compensation in securities.

In March 2003 the applicant asked the authorities to pay her monetary compensation “in a convertible currency at world market prices” (konvertuojama valiuta pasaulinėmis kainomis) for the remaining 2.74 hectares of land.

In January 2007 the applicant asked the authorities to pay her monetary compensation for the remaining 2.74 hectares of land or return a part of the land in natura. The applicant specified that monetary compensation should be paid in a “convertible currency at market prices”.

In September 2007 the authorities informed the applicant that they had addressed the Kaunas municipality regarding vacant plots of land in the area where her father had had the land, and had been told that the restitution process had to be carried out in accordance with the detailed plan for restitution approved in 1991.

In July 2008 the applicant complained to the authorities that her previous requests (see paragraphs 11 and 12 above) had gone missing.

In November 2008 the applicant asked the authorities not to give her any land burdened by any kind of easement.

In August 2009 the applicant wrote a letter to the authorities and stated that, in accordance with the Constitution, not only did she have a right to receive fair compensation for the land, but a vacant plot of land situated in the same area where her father’s land had been had to be returned to her. She stated that she had to be paid compensation at market prices and in accordance with the land value map for 2009. She also wrote that if the land returned to her was burdened by any kind of easement, the authorities would have to pay her compensation at full market value for her inability to use it. It appears from the Kaunas Regional Administrative Court’s decision that the authorities indicated in August 2009 that compensation at market prices was not possible (see paragraph 33 below). The value of 2.5469 hectares of land was assessed at 20,167 Lithuanian litai (LTL – approximately 5,841 euros (EUR)) if the applicant preferred to acquire land in another area, and at LTL 32,267 (approximately EUR 9,345) if the applicant preferred compensation in securities (see paragraph 36 below).

On 21 October 2009 the Kaunas County Administration changed the decision of 16 March 1993 on the restoration of the applicant’s property rights (see paragraph 8 above) and decided that her property rights to the remaining 2.74 hectares of land would be restored at a later date. By that order, the applicant’s property rights were restored by giving her two plots of land measuring 0.0807 hectares and 0.1124 hectares respectively.

It appears from the courts’ decisions that in June 2010 the authorities asked the applicant to make a decision regarding the method of restitution in respect of the remaining plot of land (see paragraphs 35 and 36 below).

In June 2010 the applicant asked the authorities to pay her monetary compensation for the remaining 2.5469 hectares of land, plus 15% interest because she was the daughter of a military volunteer.

In September 2010 the applicant asked the authorities to remove all the underground telecommunications cables that were situated on one of the plots of land that had been returned to her.

On 4 October 2010 the authorities informed the applicant that the remaining plot of land of 2.5469 hectares was State redeemable, and she could be compensated for it by receiving securities or by a new plot of land of equal value in a rural area being transferred to her. The applicant was asked to inform the authorities about her decision before 18 October 2010. Should she fail to make a decision, the compensation would be paid in securities.

On 13 October 2010 the applicant repeated her request to be paid monetary compensation plus 15% interest. Her letter also contained some other requests regarding increasing the size of one plot, transferring a pond (kūdra) to her, and paying her compensation at market prices for another plot of land.

The authorities replied in November 2010 that, when deciding on issues of restitution, they were obliged to follow the requirements of domestic law. The applicant was asked to come to the Kaunas City Land Reform Division on 6 December 2010 to deal with the issue of restoring her rights to the remaining part of her father’s land.

In December 2010 the Kaunas City Land Reform Division asked the Kaunas Municipal Administration to prepare a plan of vacant land in the area where the applicant’s father’s land had previously been situated. The same month, the Kaunas Municipal Administration replied that it was not possible to prepare additional plans of vacant land, because the schemes relating to vacant plots of land had already been approved, and a similar request submitted by the applicant’s son had already been examined.

In November 2014 the authorities informed the applicant that as of 1 November 2014, Article 21 § 4 of the Law on Restitution provided that a citizen who had already asked for his or her property rights to a plot of land to be restored could, by 1 March 2015, express or change his or her wish regarding the form in which the ownership rights to the real property were to be restored, and choose a plot of forest of equal value, provided that a final decision on restitution had not been taken or, if taken, had not yet been executed or had been executed in part.

The applicant started court proceedings, demanding compensation in respect of pecuniary damage from the Kaunas municipality. She alleged that the plot of land of 0.1124 hectares which had been returned to her (see paragraph 17 above) had electricity and gas equipment installed on it (see paragraph 20 above), and that she was prevented from using it. The applicant also asked the court to oblige the authorities to remove the underground telecommunications cables installed on her plot within two months of the court decision becoming final.

On 22 June 2012 the Kaunas Regional Administrative Court held that the applicant had not complained about the decision of the authorities of 21 October 2009 by which her property rights to the specific plots of land had been restored (see paragraph 17 above). Moreover, the applicant had claimed that she was not able to use the land, more specifically, to construct buildings on it, but she needed to have a detailed plan of the land prepared in order to start any construction on the land, which she had not done. The court further held that the applicant’s request that the authorities be obliged to remove the underground telecommunications cables was unfounded, because the cables had been installed in accordance with the provisions of domestic law. The applicant’s claim was thus dismissed.

The applicant appealed, and on 18 December 2012 the Supreme Administrative Court upheld the first-instance decision. The court held that the applicant had signed a document informing her about the borders of the land and restrictions regarding its use. There was no information indicating that either the applicant or her representative had been misled by the authorities regarding the status of the land. Moreover, the State was not obliged to restore her property rights to land with no restrictions regarding its use.

It appears that a plot of land measuring 0.0498 hectares which had been situated in the area where the applicant’s father had had his land was sold to R.N. in 1994. In November 2011 the National Land Service informed the applicant’s son that the purchase contract regarding the plot of land sold to R.N. in 1994 had been concluded in breach of the requirements of domestic law, and that the issue would be referred to a prosecutor.

In January 2012 the Kaunas Division of the National Land Service informed the prosecutor that, in accordance with domestic law, one family could purchase or rent only one plot of land for construction of an individual home in the absence of an auction. If the family was provided with a plot of land before 15 March 1992, no other member of that family could acquire another plot of land for construction of an individual home without participating in an auction. R.N. had been provided with a plot of land of 0.06 hectares for construction of an individual home in 1992. In 1993 she had purchased that plot from the State. Moreover, in 1994 R.N. had been allowed to purchase another plot of land of 0.0498 hectares in the absence of an auction, which had not been allowed. In 2002 R.N. had sold the plot of land to R.Z. The prosecutor was thus asked to start court proceedings on the matter.

In February 2012 the prosecutor decided that the National Land Service could start court proceedings, and referred the matter to it. Subsequently, the National Land Service lodged a complaint with the Kaunas District Court, asking it to annul the relevant administrative acts by which the plot of land of 0.0498 hectares had been provided to R.N. and to annul the purchase agreements regarding that plot. The complaint was dismissed by the Kaunas District Court on 8 July 2013 because the limitation period had expired (see paragraphs 49 and 51 below). That conclusion was upheld by the Kaunas Regional Court on 14 October 2013.

On 13 March and 20 June 2013 the applicant brought a claim and an amended claim for LTL 30,000 (approximately EUR 8,688) in respect of non-pecuniary damage relating to the length of the restitution proceedings. She asked the court to oblige the authorities to restore her property rights within one month of the court decision becoming final, or to pay her fair monetary compensation, calculated in accordance with the land value map for 2013. The applicant also stated that she had sustained pecuniary damage in the amount of LTL 3,616,598 (approximately EUR 1,047,439), but she was not asking for any award in this respect.

On 7 October 2013 the Kaunas Regional Administrative Court held that there was no dispute that the applicant’s rights to 2.5469 hectares had not been restored. However, it also held that her request for damages could only be satisfied if the State had acted unlawfully. The court stated that the national authorities had taken various steps: they had provided data about unoccupied land and had asked the applicant to decide how she wished her property rights to be restored. The applicant’s requests submitted to the authorities for compensation “in a convertible currency at world market prices” and for compensation at market prices in accordance with the land value map for 2009 (see paragraphs 11, 12, 16, 19 and 22 above) could not constitute a proper way of expressing her decision, because such methods of compensation had not been defined in the domestic law. The court found that her property rights had not been restored because of her inactivity. As regards her request that the authorities be obliged to restore her property rights within one month, the court noted that she had to use an out-of-court procedure, and left that complaint unexamined.

The applicant appealed and also asked to be awarded compensation in respect of pecuniary damage amounting to EUR 1,047,439. On 24 July 2014 the Supreme Administrative Court held that the first-instance court had been obliged to examine the applicant’s request to have her property rights restored, but it had not examined all the documents submitted. It therefore returned the case to the Kaunas Regional Administrative Court for fresh examination.

On 24 February 2015 the Kaunas Regional Administrative Court held that on 9 October 1991 the applicant had submitted a request to have her property rights to 7.06 hectares of her father’s land restored (see paragraph 5 above). In 1992 the applicant and her sister had agreed that the applicant had a right to have her property rights to 3.40 hectares of her father’s land restored (see paragraph 6 above). The authorities had restored her property rights to 0.66 hectares of land on 16 March 1993 (see paragraphs 7 and 8 above), and on 21 October 2009 her property rights to another 0.1931 hectares of land had been restored (see paragraph 17 above). The latter decision indicated that the applicant’s property rights to the remaining plot of 2.5469 hectares would be restored at a later date, when the land reform project had been prepared. No land reform project had been prepared, because the land in question was in an area that had been within city boundaries before 1 June 1995, so the indication in the decision about the land reform project being prepared had been a mistake. In June 2010 the applicant had been asked to choose the form of compensation (see paragraph 18 above), but she had sent several letters submitting requests that were not possible under domestic law.

The court further held that the authorities had examined numerous complaints submitted by the applicant and her son. The court further referred to the administrative proceedings regarding the applicant’s alleged inability to use one plot of land that had been returned to her (see paragraphs 26-28 above), and the civil proceedings regarding the sale of the plot of land of 0.0498 hectares to R.N., started by the National Land Service (see paragraphs 29-31 above). The court also noted that the applicant had been informed about the possibility of receiving a plot of forest of equal value (see paragraph 25 above). The court held that there was no dispute that the applicant’s property rights to 2.5469 hectares of land had not been restored. However, the applicant’s claims for compensation could only be satisfied if unlawful actions by the authorities had been established. The restitution process was carried out by the National Land Service and its territorial divisions. The court decided that, in the applicant’s case, the authorities had carried out their functions by: sending information about the methods by which the applicant’s rights could be restored; providing information about vacant land; and asking the applicant to express her choice as to the method of restitution. The relevant domestic law valid at the time the applicant had asked for compensation “in a convertible currency at world market prices” in March 2003 had provided that, before 1 April 2003, a citizen could declare or change the method of restitution. If no method was chosen, the authorities could choose for the citizen. The relevant domestic law valid at the time the applicant had asked for compensation at market prices and in accordance with the land value map for 2009 had provided that, before 31 December 2005, a citizen could change the method of restitution and choose compensation in securities instead of monetary compensation. The relevant domestic law valid at the material time when the case had been examined had provided that, until 1 March 2015, citizens could change the method of restitution and ask to have their property rights restored by being provided with a plot of forest of equal value in a rural area. If no method was chosen, property rights were restored by means of monetary compensation. The court held that the authorities could only choose the method of restitution for a citizen if he or she had not expressed his or her decision before 1 April 2003.

In the applicant’s situation, the National Land Service had not issued any decision within the required six-month time-limit, and thus the applicant had a right to receive compensation in respect of non-pecuniary damage. The court held that the applicant’s right to have her property rights to 2.5469 hectares restored had not been denied, and decided to award her EUR 600 in respect of non-pecuniary damage. The remaining part of the applicant’s complaint was dismissed as unfounded.

The applicant, the National Land Service and the State, represented by the National Land Service, appealed. On 10 July 2015 the Supreme Administrative Court held that it was clear from the case material that there was no more vacant land in the area where the applicant’s father had had his land. For this reason, the applicant’s demand that the authorities be obliged to return her father’s land in natura within one month of the court’s decision becoming final (see paragraph 32 above) was unfounded. As regards the applicant’s argument that her father’s plot of land of 0.0498 hectares had been sold to R.N. owing to unlawful actions by the National Land Service, the court held that this argument had been rebutted by the decisions issued by the domestic courts in other proceedings (see paragraph 31 above). As regards the length of the restitution process, the court decided that there was no information indicating that the authorities had acted unlawfully, and thus the firstinstance decision to award the applicant compensation of EUR 600 had been unfounded. In 1991 the applicant had expressed her wish to have her father’s land returned to her in natura (see paragraph 5 above). In 2003 she had asked for compensation “in a convertible currency at world market prices” (see paragraph 11 above); in 2009 she had asked for compensation at market prices in accordance with the land value map for 2009 (see paragraph 16 above); in 2010 she had asked for compensation at market prices plus 15% interest (see paragraphs 19 and 22 above); and in 2015 she had stated that her choice as to the method of restitution had been expressed in 1991, and she was not going to change her mind (see paragraph 37 below). The authorities had informed the applicant several times that her requested methods of compensation were not possible under domestic law. In 2003 the applicant had been informed that if a citizen did not express a decision as to a method of restitution before 1 April 2003, the authorities had to issue decisions taking into account the method indicated in the citizen’s last request (see paragraph 10 above). In June 2009 the authorities had indicated the method by which the compensation would be calculated and had stated that the value of the 2.5469 hectares of land which had to be restored to the applicant would be LTL 20,167 (approximately EUR 5,841) if the applicant preferred to acquire the land in another area, and LTL 32,267 (approximately EUR 9,345) if she preferred compensation in securities (see paragraph 16 above). In June 2010 the authorities had asked the applicant to choose the method of restitution: receiving either an area of land, forest or water of equal value (see paragraph 18 above). In October 2010 the authorities had repeatedly explained that the applicant could receive either a plot of land of equal value or compensation in securities, and should she fail to make a decision then she would be paid compensation in securities (see paragraph 21 above). In November 2010 the applicant had been asked to come to the Kaunas Division of the National Land Service to discuss the issue of restitution (see paragraph 23 above). In November 2014 the authorities had informed the applicant that it had become possible to have a plot of forest of equal value in a rural area (see paragraph 25 above). The court further held that the actions of the National Land Service had been lawful, considering that the applicant’s requests had not been possible under domestic law. Moreover, the authorities had stated that a decision to pay the applicant monetary compensation would be issued. The court therefore decided to change the first-instance decision and not award the applicant any compensation in respect of non-pecuniary damage.

In February 2015 the applicant sent a letter to the authorities stating that she had expressed her decision on the method of restitution in 1991 when she had asked for the return of her father’s land in natura. She also stated that she was not going to change her mind and would require her father’s land to be returned to her. In March 2015 the authorities replied that the remaining part of the land to which the applicant’s property rights had to be restored was State redeemable and could not be returned in natura. The authorities further stated that the applicant would be paid monetary compensation. The applicant replied to this letter in April 2015 and accused the authorities of unlawfully expropriating property. The authorities replied in May 2015 and repeated that it was not possible to return the applicant’s father’s land in natura. The applicant replied, stating that the authorities’ letter contained no substantive reasons and could not be taken into account. The applicant stated that the issue of restitution in her case would be considered in the courts, and asked the authorities not to bother her with letters containing no substantive reasons.

In November 2016 the authorities asked the applicant to come to a meeting on 5 December and familiarise herself with the draft decision restoring her property rights.

On 6 December 2016 the National Land Service issued a decision to restore the applicant’s property rights to 2.5469 hectares of land by paying her monetary compensation of EUR 9,359.

In March 2017 the applicant asked the authorities to provide her with copies of plans of vacant land plots situated in the area in which her father had had his land, and to explain how and when her father’s land had been used. The authorities replied in April 2017 that the Kaunas Municipal Administration provided information in map form about vacant land that was not State redeemable. The relevant Kaunas division had to mark the borders of land which an owner had owned before 1940 in accordance with the information received from the Kaunas Municipal Administration. In the applicant’s case, the Kaunas Municipal Administration had provided the relevant Kaunas division with information about vacant land plots. The Kaunas land reform division had then asked the Kaunas Municipal Administration to prepare land plans. Two plots of land had been returned to the applicant in natura in 2009. In 2010 the Kaunas land reform division had asked the Kaunas Municipal Administration to additionally examine whether there was vacant land in the area where the applicant’s father had owned land before 1940, but it had been established that there was no more vacant land.

The applicant lodged a claim with the domestic court, asking it to annul the decision of the National Land Service of 6 December 2016 by which her property rights to 2.5469 hectares of land had been restored and it had been decided that she would receive monetary compensation of EUR 9,359 (see paragraph 39 above). The applicant thought that the land that had not been returned to her had not been used for public use, and that the National Land Service had not provided any information as to why all of her father’s land had not been returned in natura.

On 21 August 2017 the Kaunas Regional Administrative Court rejected the applicant’s complaints. The court held that her father’s land was not vacant, as it was occupied by cadastral areas with or without buildings, areas containing infrastructure that was relevant for roads, side roads, underground infrastructure and the protective zones surrounding them, and recreational areas. There was a public interest in using that land, thus the land was State redeemable and compensation had to be paid for it. The court further assessed the actions of the National Land Service and held that the authorities’ actions had been lawful. This was because the applicant had not agreed with the information indicating that her father’s land was not vacant, and because on one hand she had asked for her property rights to be restored in natura, and on the other hand had asked for compensation at “market” and “world market” prices, although there was no such possibility under domestic law. Fair compensation was also a way to restore property rights, as confirmed by the Constitutional Court (see paragraph 53 below). The value of the land had been calculated in accordance with the method approved by the Government (see paragraph 52 below), and the amount calculated for the applicant had been in accordance with that method. Moreover, the court referred to the case-law of the Court, where it had been established that no right to receive a higher amount of compensation was guaranteed under the applicable domestic law or by a decision of the domestic court (see paragraph 54 below). The compensation calculated for the applicant was in line with domestic law and the practice of the Court.

In October 2017 the authorities asked the applicant to provide them with her account number so they could pay her the monetary compensation of EUR 9,359. In the event that the applicant failed to do that, the monetary compensation would be transferred to a notary’s deposit account.

In November 2017 the applicant sent a letter to the National Land Service stating that she would not give the authorities her account number. Should the compensation be transferred to her or the notary’s account nevertheless, it would be transferred back to the authorities.


Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants are Turkish nationals. The applicant in the first case, Mr Ahmet Bezek, was born in 1980 and is represented before the Court by Mr U. Sommer, a lawyer practising in Cologne. The applicant in the second case, Mr Sinan Bezek, was born in 1976 and is represented before the Court by Mr G. Bogatz, a lawyer practising in Bendestorf. Both applicants are currently serving a prison sentence in Bremen.

In the night of 5/6 January 2006 a shooting took place in front of a nightclub in the Bremen entertainment district which left several persons seriously injured.

On 11 December 2007 a Chamber of the Bremen Regional Court, consisting of the presiding judge S., the judge P., one further professional judge and two lay judges, convicted G.L. of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced him to ten years and six months imprisonment.

Based on G.L.’s confession, which was supported by witness evidence, the Chamber considered that G.L. had started the shooting into a group of people standing in front of the night club, thereby accepting that he might inflict lethal injuries. The Chamber did not attach credibility to G. L.’s submissions that the applicants had not been involved in the shooting incident, but considered that G.L. had committed the offences jointly with the two applicants. Based on witness evidence and an expert examination of bullets found on the site, the Chamber considered that the first applicant had fired at least three shots and the second applicant at least one shot. The Chamber considered that G.L. and the applicants had acted upon a joint plan, resulting in each perpetrator being liable for the acts committed by his accomplices under Article 25 § 2 of the Criminal Code as joint principals (Mittäterschaft, see relevant domestic law, below).

The judgment, which was 151 pages long, inter alia contained the following references to the applicants:

“All three of them [G.L. and the two applicants] had been equipped with firearms. It was clear to them – even without an express agreement, that they would make use of the weapons they carried if the situation should arise....At that time at the latest witness Ahmed Bezek [the first applicant] carried a silver revolver with a 9 mm calibre and Sinan Bezek [the second applicant] a pistol, calibre 7.65 mm, which had been assembled from various weapon parts (p. 34 of the judgment)...Immediately after the accused had fired the first shot, Ahmet and Sinan Bezek drew their weapons and fired in the direction of the B.club (p. 36)...many persons...found themselves within the shooting range of the applicant and of Ahmed and Sinan Bezek (p. 37)...their [the witnesses’] statement is supported by the fact that the accused and the Bezek brothers [the applicants] actually carried weapons (p. 78). The establishment of the facts relating to the other shooters is based on the credible witness statements given by...[The witness] M. has stated that the accused and witnesses Ahmed and Sinan Bezek each carried a weapon in their hand (p. 100)...These statements were confirmed by the testimony given by witness K. He [reported] that he had seen that Sinan Bezek as well as Ahmet Bezek had carried a weapon. Both had shot very rapidly and had then disappeared (p. 100). ... Witness K. has stated that he had heard two shots before arriving at the scene. Shortly afterwards it had really started. He had seen how Sinan Bezek, Ahmet Bezek and the accused had shot (p. 100). Finally, witness D. had stated that he had seen weapons not only in the hands of the accused, but also in the hands of Ahmet and Sinan Bezek, but could not tell for sure whether these two had shot. The accused’s weapon as well as Sinan Bezek’s weapon was black and did not have a drum (p. 100/101). On the basis of the traces and other evidence it has been established...that the projectile with the casing numbered trace no. 28 has been shot from the weapon that had been fired by Sinan Bezek (pp. 105/106). The establishment of the fact that Sinan Bezek was one of the shooters is compatible with the witness testimony (p. 104)....These two pistols had been used by the accused and Sinan Bezek (p. 106)...Sinan Bezek’s pistol was jammed after the first shot (p. 106). The accused is guilty under Articles....of the Criminal Code of attempted manslaughter, causing serious bodily harm and unlawful carrying of a semi-automatic gun, jointly committed with the brothers Ahmet and Sinan Bezek (p. 130)....According to the established facts, the applicant and the witnesses Ahmet and Sinan Bezek had reached at least a tacit understanding to return to the entry of the “T.” [nightclub] and to use the weapons they carried in the expected confrontation with the M.group (p. 131)...The context of the proceedings demonstrates that each of the three shooters was aware of the fact that the respective other ones were armed (p. 131)...The accused’s firing of the first shot had prompted Sinan and Ahmet Bezek to use their own weapons without delay and without any apparent reason (p. 132).”

When giving an oral summary of the reasons of the judgment, the presiding judge S. also referred to the alleged involvement of the two applicants in the incident.

Both applicants were arrested on 6 January 2006 and remained in detention on remand until 21 April 2006. The second applicant was further detained on remand from 17 January 2008 to 28 January 2009 and as from 17 April 2009 until the termination of the criminal proceedings against him.

On 29 February 2008 the Bremen Public Prosecutor issued an indictment against the applicants for attempted manslaughter and violation of the Weapons Act. The Chamber adjudicating the applicants’ case comprised the presiding judge S. and the judge P. – who had both been sitting on the bench in the trial against G.L. – one further professional judge and two lay judges.

Since March 2006, the second applicant had been represented by Ms P., a defence counsel who maintained her lawyer’s offices in Frankfurt/Main. The second applicant requested the Regional Court to appoint Mr Bogatz, who also represents him before the Court, as his second counsel.

On 25/26 March 2008 the presiding judge of the Regional Court requested the applicants’ counsels to inform him about their availability from 28 April to 31 December 2008.

On 31 March 2008 Ms P. informed the Regional Court that she would be available as from May 2008 at the earliest. She further suggested scheduling hearings on two days per week, on Mondays and Fridays. She further stated that the second applicant’s defence would be assured in case Mr Bogatz was appointed as second defence counsel. She pointed out that a second defence counsel had been also appointed in the proceedings against G.L.

On 2 April 2008 the presiding judge of the Regional Court informed the applicants’ counsels about the dates of the intended hearings, generally scheduled for three days per week, and asked them to confirm their respective availability. In view of the fact that each of the applicants would only be represented by one court-appointed counsel, it was of imminent importance that the respective counsels arrived in time for the hearings. He further informed the applicants’ counsels about his intention to withdraw the appointment of Ms P. as the second applicant’s court-appointed defence counsel, in view of the distance between her lawyer’s offices situated in Frankfurt/Main and the Bremen Regional Court where the hearings would take place.

On 18 April a preliminary talk took place between the presiding judge, judge P., public prosecution and the applicants’ defence counsels. According to a note to the case-file prepared by the presiding judge following this discussion, Ms P. had not been able to submit a binding declaration that she would be available on all hearing days.

On 23 April 2008 the presiding judge of the Bremen Regional Court withdrew the appointment of Ms P. as the second applicant’s counsel, rejected his request to appoint Mr Bogatz and appointed another counsel, residing in Bremen, as the second applicant’s defence counsel. The Presiding Judge observed that neither of the counsels had confirmed their availability for all the scheduled hearing days. He further observed that the special relation of confidence existing between Ms P. and the second applicant made it desirable that she could continue her assignment. The lawyer of confidence should regularly be assigned unless serious reasons militated against this. However, in the instant case, the remoteness of Ms P.’s offices made it necessary to withdraw her appointment. Under the relevant provisions of the Code of Criminal Procedure, precedence was to be given to lawyers residing in the respective court district. The proximity of the defence counsel was an important aspect of an appropriate defence and of an orderly course of the proceedings. This factor was enhanced by the fact that the accused was in detention on remand and that the proceedings would be lengthy. In spite of the requirement of special expediency in case of detention on remand, Ms P. had failed to submit a binding declaration that she would be available on all (or at least almost all) pre-scheduled hearing dates. The presiding judge finally observed that the further assignment of Ms P. would cause considerable additional expenses caused by times of absence, travel and accommodation costs.

On 9 June 2008 the Hanseatic Court of Appeal dismissed the second applicant’s complaint about this decision. The Court of Appeal considered that the presiding judge of the Bremen Regional Court, when withdrawing Ms P.’s appointment, had stayed within his margin of appreciation. That court noted that the presiding judge had given several objective reasons for his decision. The distance between the defence counsel’s offices and the court seat was an important aspect in assuring adequate defence. While it was true that Ms P. had entertained her offices in Frankfurt already at the time when she was first appointed defence counsel in July 2006, this did not rule out the withdrawal of appointment, in particular if further reasons emerged during the course of proceedings. In this respect, the Court of Appeal observed that the second applicant had been arrested in January 2008 and that his case had to be processed with the special diligence required in case of detention on remand. In spite of the presiding judge’s repeated requests, Ms P.’s had failed to submit a binding and unequivocal statement that she would be able to attend all – or almost all – of the scheduled hearings. The Hanseatic Court of Appeal finally observed that the second applicant had failed to establish a specific relation of confidence to Ms P. which would exceptionally justify the exorbitant costs which would be incurred by her appointment as the applicant’s defence counsel.

Ms P. continued to represent the second applicant as his chosen defence counsel until 3 February 2009, when her mandate was discontinued for lack of funds.

On 18 and 25 June 2008 the applicants lodged motions for bias against the two judges S. and P. on the grounds that they had both been sitting on the bench which had delivered judgment against the alleged coperpetrator G.L. They considered the Chamber adjudicating the case of G.L. had taken a definite position on the applicants’ guilt. The findings contained in the judgment against G.L. which related to the applicants’ alleged involvement had not been necessary, as G.L. had made a confession in which he had assumed the full responsibility for the shooting incident. The second applicant further referred to the withdrawal of Ms P. as his defence counsel.

On 27 June 2008 another Chamber of the Regional Court rejected the motions for bias as unfounded. The Regional Court reiterated that a mere prior involvement concerning the same matter did not as such raise doubts as to the judges’ impartiality. There were no specific circumstances which allowed drawing a different conclusion in the instant case. The references made to the applicants’ involvement in the shooting incident had been indispensable for establishing G.L.’s criminal liability within the framework of a joint criminal act. In order to establish the guilt of the accused, the trial chamber had been obliged to assign the different contributions to the different persons involved in the incident. The same applied to the oral summary of the reasoning given by the presiding judge on pronouncement of the judgment against G.L.

The Bremen Regional Court heard the applicants’ case on 119 days as from 25 June 2008.

On 4 March 2010 the Bremen Regional Court convicted the applicants, who had denied any involvement in the shooting incident, of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced the first applicant to eight years’ and the second applicant to seven years’ imprisonment. Based on witness evidence, which was corroborated by circumstantial and expert evidence, the Regional Court found it established that the two applicants had taken part in the shooting of 6 January 2006 and that the second applicant had fired one shot and the first applicant at least three shots before their weapons were jammed. The Regional Court furthermore found it established that the applicants had worked as contact persons for the Bremen police, but did not consider that this fact had an influence on their criminal liability.

The judgment, which ran over 354 pages, contained a summary of the previous proceedings. With regard to the judgment given against G.L., the judgment read as follows:

“The Jury Court I convicted him [G.L.] of attempted manslaughter, grievous bodily harm and unlawfully carrying a firearm and sentenced him to 10 years and 6 months’ imprisonment. At that time, the Jury Court I had gained the conviction that G.L., jointly with Ahmet and Sinan Bezek, who are accused here, fired a multitude of shots into a group of people standing in front of the “B.club”. The judgment against G.L. is now final. G.L. was summoned twice to give testimony as a witness in the instant proceedings. Even though he had no right to refuse to give evidence, he refused in the instant proceedings to give testimony...”

Both applicants lodged appeals on points of law against the judgment of 4 March 2010, in which they inter alia complained about the lack of impartiality of the Jury Court adjudicating their case. The second applicant further complained about the withdrawal of appointment of Ms P. as his defence counsel. On 21 June 2011 the Federal Court of Justice dismissed the applicants’ appeal on points of law.

On 3 August 2011 the Federal Constitutional Court refused to entertain the applicants’ constitutional complaints.

Article 142 § 1 of the Code of Criminal Procedure as in force at the relevant time provided:

“(1) The presiding judge of the [trial] court choses the defence counsel to be appointed preferably among the lawyers residing in the court district. The accused shall be given the opportunity to name defence counsel of his choice within a time limit to be specified. The presiding judge appoints the defence counsel designated by the accused unless there is an important reason for not doing so.”

Pursuant to Article 155 § 1 of the Code of Criminal Procedure, criminal investigations and related decisions concern only the accused and the charges brought against him or her. Article 264 § 1 stipulates that a judgment rendered in criminal proceedings shall deal with the offence set out in the bill of indictment as determined in more detail in the light of the outcome of the trial.

Article 25 of the Criminal Code provides as follows:

Principals

“(1) Any person who commits the offence himself or through another shall be liable as a principal.

(2) If more than one person commit the offence jointly, each shall be liable as a principal (joint principals).”


CASE OF BEZBORODOV AND OTHERS v. UKRAINE

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

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law.


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan)

Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1965 and has been residing in the Netherlands since 1997.

The applicant entered the Netherlands on 2 December 1997 and applied for a residence permit for the purpose of asylum as well as for reasons not related to asylum. In support of this application, he gave the following account in his interviews with immigration officials.

He had been a member of the communist People’s Democratic Party of Afghanistan (“PDPA”) since 1978/79, and had worked for the Afghan security service KhAD/WAD (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”) from 1982 to 1992. Upon the PDPA’s advice the applicant had joined the KhAD as an alternative to mandatory military service. He had been stationed in Paktia from 1982 to 1986, where he had initially performed administrative tasks for one month within KhAD’s local Political Affairs department, followed by preparing/compiling course materials for KhAD’s internal training within the same department. He had done this until 1986. He had also been involved in the organisation of cultural events for KhAD’s youth department.

In 1984 the applicant had been sent to the Union of Soviet Socialist Republics (“USSR”) for six months for training (KhAD’s organisation and the functioning of a secret service). Upon completion of this training he had been promoted to the rank of third lieutenant. In 1986 the applicant had participated in six months of political training, also in the USSR.

From 1987 to 1988 the applicant had worked for KhAD’s Political Affairs department in Kandahar. From 1988 to 1992 he had worked for KhAD’s “Directorate 89”, located in Kabul, where he had been given the task of internal control and research into the functioning of KhAD staff. The applicant’s highest attained military rank, through periodical promotions, was that of major.

The applicant had fled from Afghanistan to Pakistan on 5 May 1992, a week after the fall of the PDPA regime. After the applicant’s flight, his father was assaulted in Afghanistan by mujahideen who had come to ask him about the applicant’s whereabouts. The applicant’s father had to have a kidney removed as a consequence of the battering he suffered at the hands of the mujahideen. The applicant’s family had joined the applicant in Pakistan six months after the applicant’s departure from Afghanistan, but they had lived separately for safety reasons. His family had lived with relatives in Pakistan, close to the Afghan border. The applicant himself had stayed in Karachi. On an unspecified date in 1995, unidentified mujahideen had come to the applicant’s parents’ home searching for the applicant. On that occasion, the applicant’s youngest brother had been ill-treated and another brother had been taken away, tortured and killed by the mujahideen in their attempt to find the applicant.

On 21 April 1998, the Deputy Minister of Justice (Staatssecretaris van Justitie) rejected the applicant’s asylum request, holding that the applicant had failed to establish personal circumstances warranting a decision to grant him asylum. The applicant had never been approached personally by the mujahideen in Afghanistan; he had only made vague declarations about the post he had held in the KhAD, and he had lived for more than five years in Pakistan without experiencing problems and/or having been found by the mujahideen (who were said to be active in Pakistan too). Although they might have known where the applicant’s family were, it was considered implausible that the mujahideen would have been aware of the applicant’s whereabouts in Pakistan. The Deputy Minister also held that the applicant’s submissions regarding the assault on his father and killing of his brother were brief and vague.

The Deputy Minister of Justice did, however, grant the applicant a conditional residence permit (voorwaardelijke vergunning tot verblijf), valid for one year from 3 December 1997, on the basis of a temporary categorial protection policy (“categoriaal beschermingsbeleid”) in respect of Afghanistan.

On 18 May 1998 the applicant submitted an objection (bezwaar) to the Deputy Minister against the decision to reject his asylum request. On 21 January 2000, following a hearing held on 30 September 1999 before an official board of enquiry (ambtelijke commissie), the Deputy Minister rejected the applicant’s objection. The Deputy Minister found, inter alia, that the applicant had failed to establish that he had held a position within KhAD of sufficient importance to warrant the conclusion that he would run a real risk of persecution upon his return to Afghanistan. The Deputy Minister further noted that the applicant had not experienced any problems with the mujahideen either, stressing that the applicant had easily crossed a mujahideen-controlled border crossing with Pakistan in 1992. The Deputy Minister further found that the applicant had failed to demonstrate that he ran a real risk of persecution by the Taliban, who were in charge of most of Afghanistan at the time the impugned decision was taken. The Deputy Minister underlined in this regard the unlikelihood of the Taliban having been aware of the applicant’s past activities for KhAD, including the two military training programmes he had allegedly attended in the USSR. The Deputy Minister also dismissed the applicant’s argument that, in Afghanistan, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention.

The applicant lodged an appeal against this decision with the Regional Court (rechtbank) of The Hague. Pending these appeal proceedings, the applicant was informed that the Deputy Minister had decided, in view of the applicant’s involvement with the KhAD, to examine the possible applicability of Article 1F of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention) to his case and that for this reason the impugned decision of 21 January 2000 was withdrawn. Thereupon, the applicant withdrew his appeal.

Meanwhile in December 2000, the situation in Afghanistan not having sufficiently improved, the applicant’s conditional residence permit was converted ex lege into an indefinite residence permit after he had held it for a period of three years. Subsequently, with the entry into force of the Aliens Act 2000 (Vreemdelingenwet 2000) on 1 April 2001, the permit held by the applicant came to be named an indefinite residence permit for the purpose of asylum.

On 17 March and 9 April 2003, the applicant was interviewed by the immigration authorities about the nature of his activities for the KhAD.

On 22 March 2004 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the applicant of her intention (voornemen) to revoke his residence permit and to hold Article 1F of the 1951 Refugee Convention against him. The applicant’s asylum claim had been considered in the light of an official report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992), AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”) and concerning in particular the question whether, and if so which, former employees of those services should be regarded as implicated in human rights violations. On the basis of this report, the Netherlands immigration authorities had adopted the position that Article 1F of the 1951 Refugee Convention could be held against virtually every Afghan asylum seeker who, holding the rank of third lieutenant or higher, had worked during the communist regime for the KhAD or its successor the WAD.

The Minister found it established that the applicant had worked as a commissioned officer in the KhAD’s Directorate 89 from 1988 to 1992 and considered that, in his account to the Netherlands authorities, he had sought to trivialise his activities for the KhAD. She rejected the applicant’s argument that the applicability of Article 1F of the 1951 Refugee Convention ought to have been examined at an earlier stage, holding that at the relevant time (1997/98) considerably less information had been available to the Netherlands asylum authorities about the full extent of the human rights violations committed by the KhAD, notwithstanding that to a certain extent there had been a general awareness of the nature of the former communist regime in Afghanistan.

The Minister then proceeded to an analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed and so-called “knowing and personal participation” test. Noting, inter alia, the applicant’s steady career path in the KhAD, the Minister excluded the possibility of the applicant not having known or not having been involved in human rights violations committed by the KhAD. Relying on the official report of 29 February 2000, the Minister underlined the widely known cruel character of KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations as well as the climate of terror which it had spread throughout the whole of Afghan society. The Minister lastly emphasised that the applicant had done nothing to distance himself from KhAD during the ten years he had made a career there, referring to the applicant’s own statement to the effect that he had consciously chosen to stay with KhAD in order to avoid being sent to the war front. The Minister considered that the consequences of that choice were for the applicant to bear.

On 28 April 2004, the applicant submitted written comments (zienswijze) on the Minister’s intended decision and, on 19 May 2005, he was once more heard before an official board of enquiry.

On 6 January 2006 the applicant was served with an additional notice of intent in which the Minister examined whether the applicant’s expulsion to Afghanistan would be compatible with his rights under Article 3 of the Convention, as required in expulsion cases according to the case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State. The Minister noted that, according to an official report on Afghanistan issued by the Netherlands Ministry of Foreign Affairs in July 2005, the position of ex-communists and persons associated with the former communist regime was not yet entirely clear. Members of the KhAD/WAD possibly ran a risk of becoming a victim of human rights violations from the side of the authorities (except for the government) but more so from the side of the population (victims’ relatives) as they were identified with human rights violations during the communist regime. However, there were no indications that persons in Afghanistan should fear persecution merely because of their ties with the former communist regime. The Minister, therefore, held that the applicant had to demonstrate personal facts or circumstances warranting the conclusion that his return to Afghanistan would be in breach of Article 3 of the Convention, and found that the applicant had not done so. In reaching this finding, the Minister noted that the applicant’s fear of being subjected to treatment proscribed by Article 3 had remained unsubstantiated in any concrete manner and was only based on assumptions. The applicant had not specified which particular faction of the mujahideen had been looking for him shortly after he left Afghanistan, nor whether that faction was currently holding any position of power in Afghanistan. The Minister further took into account the applicant’s statement made at the hearing of 19 May 2005 that in the meantime his parents and brother had returned to Kabul. Although the applicant’s father had allegedly been approached in early 2005 by individuals asking for the applicant, the Minister held that it had not been demonstrated that the applicant’s parents and brother had experienced serious difficulties from the authorities or any groups. The Minister further considered that the mere fact that Article 1F of the 1951 Refugee Convention was being held against the applicant did not in itself warrant the conclusion that, if expelled to Afghanistan, he would have to fear treatment contrary to Article 3 of the Convention. The Minister also rejected as still unsubstantiated the applicant’s claims that he risked treatment contrary to Article 3 because he would be considered an infidel as his family was not professing Islam, as he drank alcohol and had studied, and also because of his ethnicity.

The applicant submitted additional written comments on 15 February 2006 and, on 18 May 2006, was heard once more before an official board of enquiry.

In her decision of 28 November 2006, the Minister revoked the applicant’s residence permit. The notices of intent of 22 March 2004 and 6 January 2006 were added to the decisions and formed part of them. The Minister did not deviate, in the relevant part, from her earlier conclusions in the notices of intent and went on to confirm them on all points. The applicant’s rebuttals were dismissed as not raising any new grounds. Moreover, in a letter of the same date the Minister informed the Public Prosecutor’s Office (Openbaar Ministerie) that Article 1F of the 1951 Refugee Convention had been held against the applicant and asked the Public Prosecutor’s Office to consider prosecuting the applicant under criminal law. No further information on any follow-up to this letter has been submitted.

On 11 December 2006, the Minister notified the applicant of her intention also to impose an exclusion order (ongewenstverklaring) on him. The applicant submitted written comments on this intended decision on 21 December 2006 and on 9 July 2007 was heard before an official board of enquiry.

An appeal by the applicant against the Minister’s decision of 28 November 2006 was rejected on 13 July 2007 by the Regional Court of The Hague, sitting in ‘s-Hertogenbosch. It accepted the Minister’s impugned decision to hold Article 1F against the applicant as well as the underlying reasoning. It further upheld the Minister’s decision and underlying reasoning that the applicant’s removal would not be contrary to his rights under Article 3 of the Convention.

On 19 September 2007, the Administrative Jurisdiction Division rejected a further appeal by the applicant on summary grounds, holding:

“What has been raised in the grievances ... does not provide grounds for quashing the impugned ruling. Having regard to section 91 § 2 of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of legal uniformity, legal development or legal protection in the general sense.”

No further appeal lay against this ruling.

On 28 September 2007, the Deputy Minister of Justice imposed an exclusion order on the applicant. An objection by the applicant to this decision was rejected by the Minister on 8 January 2008. On 14 January 2008, the applicant appealed to the Regional Court of The Hague. No further information about these appeal proceedings has been submitted.


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

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

The applicant was born in 1985 and lives in Vilnius.

At around 12.30 p.m. on 28 April 2006, the applicant’s motorcycle collided with a car driven by M.N. in a residential area of Vilnius. M.N. was not injured, but the applicant suffered multiple spinal fractures and serious damage to his spinal cord. As a result of the accident, he lost the ability to walk and became disabled.

On the day of the accident, 28 April 2006, the Vilnius City Police Department opened a pre-trial investigation concerning a possible violation of road traffic safety regulations resulting in an accident that caused nonsevere impairment to another person’s health (Article 281 § 1 of the Criminal Code). The pre-trial investigation was supervised by the Vilnius City District Prosecutor’s Office (hereinafter “the district prosecutor”).

On the same day M.N. was questioned as a witness. He stated that before the collision he had been driving at a speed of around 50 km/h and had decided to overtake the car in front of him. The road had two lanes. He checked that there were no cars in the left-hand lane, coming either from in front or from behind, indicated left and overtook the car. He then indicated right and began returning to the right-hand lane. At that moment he felt a blow to the back of his car but did not understand what had happened. He drove for another thirty metres and stopped the car. Then he noticed that a motorcycle and its rider were lying on the ground, and called the police and the ambulance service. He had not seen the motorcycle before the collision.

On the same day the police investigator examined the scene of the accident. The investigator’s report indicated that the accident had occurred on a sunny day, on a straight paved road which had been dry. It described the location of the applicant’s motorcycle and M.N.’s car as they had been found after the accident, as well as the presence of skid marks and fragments of glass and plastic on the road. All those elements were also indicated in a sketch drawn by the investigator. The sketch included a column for drivers to sign if they agreed that the scene of the accident had been depicted accurately, but it was not signed by either the applicant or M.N.

On the same day the investigator examined the applicant’s motorcycle and M.N.’s car. The investigator’s report described the damage to the front, back and both sides of the motorcycle, and to the back of the car. It also stated that before the accident both the motorcycle and the car had been in good technical condition and working properly.

On the same day a court medical expert took blood samples from the applicant and M.N. in order to determine whether they had been sober. The examination detected no traces of alcohol in the blood of either of them.

On 4 May 2006 the applicant was granted victim status in the investigation and questioned about the details of the accident. He stated that before the collision he had been driving at about 60 km/h and had decided to overtake a bus and two cars. Seeing that the left-hand lane was free, he began overtaking the bus and the cars and accelerated to about 70 km/h. After overtaking them, while still in the left-hand lane, he slowed down to 50 km/h, but as that lane was free, he decided to also overtake three more cars and a truck. He began to accelerate again, but then one of the three cars, which at that moment was about fifteen metres in front of him, suddenly pulled out into the left-hand lane without indicating. The applicant applied the brakes but started losing control of the motorcycle, so he released the brakes before applying them again. The front wheel of the motorcycle hit the back of the car. The applicant fell off the motorcycle and landed on the road. He did not see what happened to the motorcycle after the collision. He lay on the ground until the ambulance arrived and took him to hospital.

On 5 May 2006 a court medical expert concluded that the applicant’s injuries corresponded to severe health impairment.

On an unspecified date the legal ground for the pre-trial investigation was changed to Article 281 § 3 of the Criminal Code – violation of road traffic safety regulations, which resulted in an accident causing severe impairment to another person’s health.

From 3 to 16 May 2006 the police investigator questioned the applicant’s mother and five eyewitnesses to the accident. It appears that the eyewitnesses provided contradictory testimonies as to the location and speed of the two vehicles immediately before the collision, the distance between them and the exact account of the events leading up to the collision.

On 15 May 2006 the investigator examined the scene of the accident together with M.N. The latter indicated the trajectory of his car before the collision and the exact location of the collision.

On 20 June 2006 the applicant was informed that a forensic expert would be instructed to examine the circumstances of the accident and establish an account of the events. The applicant’s lawyer submitted additional questions to be forwarded to the expert. The relevant order adopted on 14 July 2006 by the Vilnius City Second District Court and forwarded to the expert on 1 September 2006 does not appear to have included the questions submitted by the applicant’s lawyer.

The examination was carried out by an expert from the Forensic Science Centre of Lithuania (Lietuvos teismo ekspertizės centras), a governmental institution responsible for carrying out forensic examinations required by courts and other pre-trial investigation bodies. The expert was provided with the sketch of the accident (see paragraph 9 above) and photographs of the two vehicles, and asked to determine the location of the collision, to estimate the speed of the motorcycle before the collision, and to establish who had been responsible for the accident. The expert report, delivered on 31 January 2007 (hereinafter “the first expert report”), stated that the description of the skid marks and the fragments of glass and plastic on the road indicated that the collision had occurred in the right-hand lane. The expert estimated the speed of the motorcycle immediately before the collision as at least 70.3 km/h and, assuming that the speed limit on that road was 50 km/h, noted that the applicant had exceeded that limit. The expert concluded that the accident had been caused by the applicant because he had been exceeding the speed limit and had started applying his brakes too late to avoid the collision.

On 22 February 2007 the district prosecutor instructed the police investigator to carry out a number of additional investigative actions, including:

− interviewing the officer who had sketched the accident scene (see paragraph 9 above) in order to determine whether the sketch was accurate and why it had not been signed by the applicant and M.N.;

− examining the scene of the accident together with the applicant in order to verify his account of the events leading to the collision;

− finding out whether, at the time of the accident, there were any traffic signs on the road indicating the speed limit, or any restrictions on overtaking;

− additionally questioning an eyewitness who had claimed that following the collision the applicant’s motorcycle had risen up in the air and landed in the right-hand lane, in order to clarify the details of that testimony; and

− questioning another eyewitness identified by the applicant’s mother.

On 26 February 2007 the applicant’s mother, R.K., whom the applicant had authorised to act on his behalf, complained to the district prosecutor that the pre-trial investigation was being carried out slowly and ineffectively. She claimed that the sketch of the accident was inaccurate, as proven by the absence of the drivers’ signatures. She also complained that the investigators had not questioned all the eyewitnesses to the accident and had not eliminated the contradictions between different testimonies. R.K. further complained that the questions of the applicant’s lawyer had not been forwarded to the expert examining the circumstances of the accident (see paragraph 17 above). Lastly, she complained that the prosecutor had sent that expert’s report to the wrong address, so she and the applicant had not received it. R.K. asked the court to change the investigator in charge of the pre-trial investigation and to ensure that essential investigative measures were carried out.

On 16 March 2007 the district prosecutor upheld R.K.’s complaint. The pre-trial investigation was transferred to a different investigator within the Vilnius City Police Department and the investigator was instructed to carry out the investigative measures requested by R.K. As to the forensic expert’s report, the prosecutor informed R.K. that the questions to be submitted to the expert had been approved by a court decision, which the applicant had not challenged.

On 27 March 2007 the district prosecutor notified the Vilnius City Police Department that the newly appointed investigator was conducting the pre-trial investigation “in a sluggish manner” (vangiai), contrary to the requirement to complete it in the shortest possible time.

In March and April 2007 the police investigator carried out the additional investigative measures ordered by the district prosecutor (see paragraph 19 above).

On 18 April 2007, in response to R.K.’s complaint, the district prosecutor informed her that the police officer who had drawn up the sketch of the accident had been questioned and confirmed its accuracy, so there were no grounds to suspect that the sketch had been falsified. The prosecutor also noted that an internal inquiry had been opened concerning the absence of the drivers’ signatures on the sketch of the accident.

Subsequently, in his order to the Vilnius City Police Department the district prosecutor pointed out that the absence of the drivers’ signatures on the sketch had given R.K. legitimate doubts as to its accuracy, and asked the police to look into the officers’ actions when drawing up the sketch. On 29 May 2007 the inquiry found that the police investigator who had carried out the initial investigative measures and who had been responsible for ensuring that the drivers signed the sketch had not performed her duties properly. However, the investigator was not given a disciplinary penalty because more than one year had passed since the breach and she was no longer working in the interior affairs system.

On 21 May 2007 R.K. complained to the Prosecutor General’s Office that the district prosecutor was not properly supervising the pre-trial investigation, which was slow and ineffective. She raised similar complaints to those she had raised before (see paragraph 20 above) and asked for the removal of the prosecutor who had been in charge of supervising the investigation. On 15 June 2007 the Prosecutor General’s Office dismissed R.K.’s complaint, finding no serious breaches in the prosecutor’s actions. The Prosecutor General’s Office also held that although the prosecutor had sent some documents to an incorrect address, those same documents had also been sent to the applicant’s lawyer, so the applicant had in fact received them.

On 10 December 2007 the Vilnius City Second District Court ordered an additional forensic examination of the circumstances of the accident. The examination was carried out by the same expert from the Forensic Science Centre as before (see paragraph 18 above). The expert report, delivered on 16 June 2008 (hereinafter “the second expert report”), did not make a fresh estimate of the speed of the applicant’s motorcycle but relied on the findings of the first expert report and considered that the applicant had been travelling at a speed of at least 70.3 km/h. It found that the speed limit at the location of the accident had been 60 km/h and not 50 km/h, as assumed in the first expert report, which nonetheless meant that the applicant had exceeded the speed limit. Having examined the sketch of the accident and the damage to both vehicles, the second report confirmed the conclusion of the first report that the collision had occurred in the righthand lane, while the motorcycle was moving into it from the left-hand lane. It found no data indicating that M.N. had been driving at speeds in excess of the speed limit or that he had done anything which might have caused the accident. The report concluded that the accident had been caused by the applicant: the main cause had not been the speed of the motorcycle but the difference between the speed of the two vehicles, and the fact that the applicant had not started to brake in time to avoid the collision.

On 13 August 2008 the district prosecutor discontinued the pre-trial investigation on the grounds that M.N.’s actions had not amounted to a crime as provided for by Article 281 § 3 of the Criminal Code. R.K. appealed against that decision before a senior prosecutor, arguing that the investigation had been biased and incomplete. She stressed in particular that the sketch of the accident had been inaccurate, as proven by the absence of the drivers’ signatures (see paragraph 9 above). She also submitted that the prosecutor had disregarded the testimonies of some eyewitnesses that the collision had occurred in the left-hand lane and that it had caused the applicant’s motorcycle to rise up in the air and land in the other lane (see paragraph 19 above). Her appeal, however, was dismissed. The senior prosecutor pointed out that two expert reports had concluded that the accident had been caused not by M.N. but by the applicant himself, and that the testimonies of several eyewitnesses had confirmed that conclusion.

R.K. appealed before the Vilnius City First District Court. She again argued that the sketch of the accident was inaccurate, as proven by the absence of the drivers’ signatures. She also submitted an opinion by a specialist in the field of road traffic accidents, issued at R.K.’s request on 17 October 2008 (hereinafter “the specialist’s opinion”), which had concluded that although both the applicant and M.N. had exceeded the speed limit, that fact had not been the cause of the accident. The specialist considered that the accident had occurred in the left-hand lane and that it had been caused by M.N. suddenly entering that lane – despite the applicant’s attempts to brake and slow down, it had not been objectively possible for him to avoid the collision.

On 20 November 2008 the Vilnius City First District Court upheld R.K.’s appeal and reopened the pre-trial investigation. The court noted the contradictory findings of the expert reports on one hand and the specialist’s opinion on the other hand, and considered that it was necessary to conduct a fresh forensic examination by a different expert in order to eliminate those contradictions.

On 23 February 2009 the police investigator ordered a fresh examination of the circumstances of the accident. The examination was carried out by a different expert from the Forensic Science Centre. In his report, delivered on 15 May 2009 (hereinafter “the third expert report”), the expert examined the sketch of the accident and photographs of the two vehicles, and estimated that immediately before the collision the applicant had been travelling at a speed of at least 70 km/h, and that it was not possible to determine the speed at which M.N. had been driving. The report also stated that the motorcycle had hit the right side of the car, so even if, as claimed by the applicant, the car had entered the left-hand lane suddenly and unexpectedly, that would not have caused the collision, which had occurred in the right-hand lane. The report concluded that the accident had been caused by the applicant, who had exceeded the speed limit and had not slowed down in time to avoid the collision.

On 3 June 2009 the district prosecutor discontinued the pre-trial investigation on the grounds that M.N.’s actions had not amounted to the crime stipulated in Article 281 § 3 of the Criminal Code. On 7 July 2009 a senior prosecutor upheld that decision, noting that the third expert report had confirmed that the accident had been caused by the actions of the applicant and not of M.N.

R.K. lodged an appeal with the Vilnius City Second District Court, submitting that the third expert report was inaccurate, in particular because it concluded that the collision had occurred in the right-hand lane, which was contrary to the material in the case file. She also submitted that the third expert report had not refuted the conclusions of the specialist’s opinion. R.K. further argued that the testimonies of some eyewitnesses had clearly demonstrated that the accident had been caused by M.N. (see paragraph 28 above), but they had not been properly considered by the prosecutor.

On 5 August 2009 the Vilnius City Second District Court upheld the appeal and reopened the pre-trial investigation. The court held that it was necessary to address the arguments presented in R.K.’s appeal and that the third expert report had to be assessed together with the other available evidence, such as reports concerning the location of the accident and eyewitness testimonies.

On 23 November 2009 the Vilnius City Second District Court ordered a fresh expert examination of the circumstances of the accident. The order was forwarded to the Forensic Science Centre on 4 March 2010, together with the specialist’s opinion. The examination was carried out by a different expert from the Forensic Science Centre. The expert report, delivered on 11 June 2010 (hereinafter “the fourth expert report”), examined the sketch of the accident and photographs of the two vehicles, and estimated that immediately before the collision the applicant had been travelling at a speed of at least 70.3 km/h. It found that although it was not possible to estimate the speed at which M.N. had been driving, the fact that the motorcycle had hit the back of the car meant that the car had been going slower than the motorcycle. The expert considered that it was not possible to determine the trajectory of the two vehicles before the collision. However, even if the applicant’s version was to be believed and M.N.’s car had suddenly entered the left-hand lane at a distance of fifteen metres from the applicant’s motorcycle (see paragraph 12 above), the applicant could have slowed down and avoided the collision. The fourth expert report concluded that the accident had occurred in the right-hand lane and that it had been caused by the applicant who had exceeded the speed limit and had not slowed down in time to avoid the collision.

In January and February 2010 the police investigator again questioned the applicant, M.N. and some of the eyewitnesses questioned previously.

R.K. was informed about the findings of the fourth expert report on 2 August 2010. She complained to the district prosecutor that she had not been given the opportunity to submit additional questions to the expert, in particular, whether having collided with the car, the motorcycle could have risen up in the air and landed in a different lane, as claimed by some eyewitnesses (see paragraph 28 above). R.K. also complained that the expert had relied on low-quality photographs of the motorcycle but had not examined the motorcycle itself, and that the report’s findings had been incorrect. On 8 September 2010 the district prosecutor upheld R.K.’s complaint and ordered the police investigator to examine the applicant’s motorcycle and to forward R.K.’s questions to the expert who had conducted the fourth examination. On 18 October 2010 the expert responded that the description of the location of the accident showed that during the collision the motorcycle had not risen up into the air.

On 2 November 2010 the district prosecutor again discontinued the pre-trial investigation on the grounds that M.N.’s actions had not amounted to the crime stipulated in Article 281 § 3 of the Criminal Code. On 22 December 2010 a senior prosecutor upheld that decision, considering that the fourth expert report had assessed all the material collected during the pre-trial investigation, including the specialist’s opinion, and that R.K. had been given sufficient opportunity to present her questions to the expert.

On 17 February 2011 the Vilnius City Second District Court dismissed an appeal lodged by R.K. and upheld the prosecutor’s decision. The court considered that expert reports and eyewitness testimonies demonstrated that M.N. had entered the left-hand lane within a safe distance from the applicant’s motorcycle, and thus had not violated road traffic safety regulations. Although there had been contradictory eyewitness testimonies as to the exact distance between M.N.’s car and the applicant’s motorcycle, the court considered that any doubts had to be interpreted in M.N.’s favour. The court also held that the conclusions of the specialist’s opinion that the collision had occurred in the left-hand lane had been contrary to the description of the location of the accident as provided in the sketch (see paragraph 9 above).

On 22 March 2011 the Vilnius Regional Court quashed the lower court’s decision and reopened the pre-trial investigation. It held that the decision to discontinue the investigation had not been based on a comprehensive assessment of all the collected material but had relied exclusively on evidence favourable to M.N., disregarding the applicant’s statements, eyewitness testimonies, and the specialist’s opinion. The court disagreed with the conclusion that M.N. had started overtaking within a safe distance from the applicant’s motorcycle, and noted that M.N. had also had an obligation to make sure that none of the drivers behind him had started overtaking, so it was possible that he had committed the crime stipulated in Article 281 § 3 of the Criminal Code. The court observed that the question of M.N.’s criminal responsibility would be best determined by a court examining the case on the merits.

On 30 May 2011, at R.K.’s request, another expert from the Forensic Science Centre submitted an opinion that, judging from the damage to both vehicles, there were no grounds to believe that the motorcycle had risen up in the air when it had collided with M.N.’s car.

On 31 May 2011 the district prosecutor discontinued the pre-trial investigation as time-barred, while also observing that the investigation had not identified any grounds to believe that a crime may have been committed (the prosecutor did not refer to the Vilnius Regional Court’s decision of 22 March 2011 – see paragraph 40 above). The prosecutor’s decision does not appear to have been appealed against.

On 18 August 2011 the applicant submitted a civil claim for damages against M.N. He stated that the accident and the resulting injuries and disability had caused him significant distress, inconvenience and emotional trauma. The applicant claimed 600,000 Lithuanian litai (LTL − approximately 173,772 euros (EUR)) in non-pecuniary damages and LTL 76,739.37 (EUR 22,225) in pecuniary damages for medical expenses and rehabilitation.

On 26 September 2012 the Vilnius Regional Court dismissed the applicant’s claim. It relied on the expert reports delivered during the pretrial investigation and noted that all of them had established that the accident had been caused not by M.N. but by the applicant himself. Although the specialist’s opinion, delivered at the request of the applicant’s mother, had reached a different conclusion, the court considered that the fourth expert report had taken its findings into consideration, and that it was thus unnecessary for the court to discuss the specialist’s findings separately. It also observed that the judgment of the Vilnius Regional Court of 22 March 2011 (see paragraph 39 above) could not be interpreted as affirming M.N.’s responsibility for the accident. As a result, the court concluded that it had not been established that M.N. had breached any legal requirements, which was a pre-condition for his civil liability to arise. The court also noted that the applicant had bought the motorcycle only two days before the accident, that he had not had any prior experience in driving that kind of vehicle, and that the motorcycle had not undergone a technical examination before the accident. Accordingly, the court found that the applicant himself may have breached road traffic safety regulations. The civil claim was dismissed and the applicant was ordered to pay LTL 1,521 (EUR 440.5) in legal expenses to M.N. and the State.

On 2 December 2013 the Court of Appeal upheld the judgment of the lower court in its entirety.


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1950 and currently lives in Traun.

On 21 January 2005 the Linz Regional Court convicted the applicant of having deliberately caused severe bodily harm and sentenced him to six years’ imprisonment. The court found that the applicant had beaten his 80year-old mother by kicking and punching her face, head and thorax, which resulted in a severe and lasting infirmity. The applicant had been convicted on seven previous occasions, four of which involved similar offences of violence. Relying on a report by a psychiatric expert, the court found that even though the applicant was responsible for his acts, he was suffering from a grave mental disorder, was dangerous to the public and was likely to re-offend. For these reasons, the court ordered the applicant’s detention in an institution for mentally ill offenders in accordance with section 21 § 2 of the Criminal Code, in addition to the term of imprisonment. Given the time the applicant had served in detention on remand, the Court stated that the applicant’s detention pursuant to the prison sentence was likely to end on 7 May 2010.

On 7 June 2005 the Linz Court of Appeal (“the Court of Appeal”) dismissed the applicant’s appeal against his sentence. On the same day the applicant was placed in Garsten detention centre, an institution for mentally ill offenders.

On 31 March 2006, in a first set of proceedings in which the applicant requested his conditional release from the institution, the Steyr Regional Court (“the Regional Court”) ordered that the applicant remain in the institution. The Court of Appeal dismissed the applicant’s appeal against this decision on 9 May 2006.

On 10 January 2007 the applicant applied for the lifting of the order to detain him at Garsten detention centre (under section 21 § 2 of the Criminal Code) in order to serve his sentence in an ordinary prison.

On 12 January 2007 the Regional Court asked the Garsten prison administration and its psychiatric and psychological service to transmit further information on the applicant, which it received on 9 March 2007. On 12 March 2007 it ordered a fresh psychiatric expert report and instructed the expert to submit the report before 11 June 2007.

On 23 June 2007 the applicant filed an application with the Court of Appeal for the setting of a time-limit (Fristsetzungsantrag) under section 91 of the Court Act (Gerichtsorganisationsgesetz) for the Regional Court to decide on his application, as the last determination of the continuing need to detain him had taken place on 9 May 2006, and he had not yet received a decision concerning his application of 10 January 2007.

On an unspecified date, the applicant was transferred to a psychiatric institution in Vienna. It appears, however, that this transfer was only temporary, and on an unspecified date, the applicant was transferred back to Garsten detention centre.

After having been urged by the Regional Court to deliver her report, the expert replied on 3 July 2007 that she would submit it as soon as possible. She did so on 10 July 2007 and explained that the applicant had meanwhile been transferred to an institution in Vienna, for which reason she had not been able to examine him earlier. She found that the applicant, even though he had started to respond positively to his therapy, was still suffering from a serious mental disorder and that there was still the risk that the applicant would commit dangerous acts of violence.

On 30 July 2007 the Court of Appeal granted the applicant’s application under section 91 of the Court Act and ordered the Regional Court to take a decision by 3 August 2007 at the latest. It held that in the light of the chronology of events in this case, the Regional Court had not fulfilled its duty to take a decision within a reasonable amount of time.

On 31 July 2007, after having held an oral hearing with the applicant present, the Regional Court ordered the continuation of his detention in an institution for mentally ill offenders. On the basis of the expert opinion obtained, the court found that the applicant was still dangerous and likely to re-offend. It dismissed the applicant’s request for the hearing of two prison officers as witnesses, since these persons could not make a relevant assessment in this respect and that therefore the applicant’s request lacked a relevant issue on which evidence should be taken (relevantes Beweisthema).

On 16 August 2007 the applicant appealed against this decision to the Court of Appeal maintaining his view that the placement in a psychiatric institution was no longer justified. He maintained, furthermore, that the length of the proceedings for the determination of this issue was in breach of Articles 5 and 6 of the Convention.

On 10 September 2007 the Court of Appeal dismissed the applicant’s appeal. On the basis of the evidence obtained, the expert report of a psychiatrist, reports by the head of Garsten detention centre and its psychiatric and psychological service, it found that despite progress in the applicant’s therapy he still suffered from a grave mental disorder and was likely to commit acts of violence in the future. The Court of Appeal also considered that the Regional Court had correctly dismissed the applicant’s request for the taking of further evidence. As to the applicant’s argument that the proceedings related to his request had lasted an unreasonably long time, the Court of Appeal found that, according to the relevant caselaw, the condition under section 25 § 3 of the Penal Code for annual review of the further necessity of detention in an institution was complied with if such a review had been started by the competent court within the one-year period, whereas it was not necessary that the decision following the review be taken within that time-limit.

On 28 February 2008 the applicant again applied for the order for psychiatric detention to be lifted, and to be transferred to an ordinary prison. After a further application by the applicant under section 91 of the Court Act, the application was finally examined on 10 September 2009, when the Regional Court ordered the termination of the applicant’s psychiatric detention, suspended the remaining seven months of his prison sentence and released him subject to a number of conditions.