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

The applicants are Serbian nationals and residents of the town of Majdanpek (their further personal details are set out in the Appendix to this decision). They were all represented before the Court by Mr D. Vasiljević, a lawyer practising in the same town. The Serbian Government (“the Government”) were initially represented by their former Agent, Mr S. Carić, and subsequently by their current Agent, Ms Vanja Rodić.

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

The imposition and collection of a specific local tax

An assembly of the Majdanpek local community (Gradska mesna zajednica Majdanpek) referred a proposal to its residents to levy a selfimposed local tax (samodoprinos, hereinafter “the SILT”) to fund the building/maintenance of certain facilities/utilities for the local community.

As a result of a ballot held between 10 June and 10 July 2006 in the Majdanpek local community, the proposal was approved.

On 11 July 2006 the Council of the Majdanpek local community (hereinafter “the Council”) enacted an Ordinance introducing the SILT and elaborating on its purpose, administration and levying. The Ordinance, inter alia,

(a) specified the persons liable for the SILT (poreski dužnici), the basis, rate and the method of its collection (in the case of taxable incomes, “deduction at source”, the tax being paid by intermediary institutions (poreski platci), that is, the taxpayers’ employers (Articles 6-10; see also paragraph 44 below);

(b) identified the local community’s current account X, held by the Majdanpek field office of the Zaječar Public Revenue Service (Uprava za javna plaćanja Zaječar, filijala Majdanpek), as the account to be used for the collection of the SILT (Article 15);

(c) identified the exact amounts to be allocated per year for services, and entrusted the Council with adopting annual plans in that regard (Articles 4.2 and 5);

(d) limited, temporarily, the local community’s power to levy the SILT to five years (Article 3) or until the resources needed to fund the designated projects had been collected (Article 4.1);

(e) designated the local community’s finance departments to carry out the necessary financial administrative tasks and to track income and expenditure in accordance with the law (Article 12);

(f) stated that if the targeted amount was collected before the expiry of the time allotted for levying the SILT, the process should be discontinued and any overpayments repaid to the intermediary institutions in order to be passed on to the SILT taxpayers (Article 16); and

(g) provided that the legislation governing tax proceedings and tax administration should be applicable, as relevant, to various issues (Article 11).

It would appear that on an unspecified date, following certain legislative changes (see paragraph 42 below), the finance department of the Majdanpek municipality (Opštinska uprava opštine Majdanpek-odeljenje za budžet, finansije i trezor) informed all of its local communities, by an instruction of 17 December 2007, that all public revenues should be paid into the municipality’s current account Y. It would appear that the Majdanpek local community received this instruction on 19 December 2007, but did not inform the applicants’ employers of it.

The applicants’ liability to pay the SILT was discharged by their employers, who withheld their contributions on a “pay-as-you-earn” basis in the form of a periodic monthly deduction from their taxable wages. It would appear that various employers, including those of the applicants, continued to pay all or most of the contributions into account X.

Discontinuation of imposition of the SILT and the related refund proceedings

On 6 October 2010 a non-governmental organisation informed the officials of the Majdanpek municipality that, in analysing the annual financial reports of the Majdanpek local community, it had discovered that by June 2010 twice the targeted amount had already been collected.

It would appear that on 13 December 2010, on receiving the above information, the Majdanpek municipality requested an opinion on the collection of the SILT from the Finance Ministry and the Ministry of State Administration and Local Self-Government.

On 7 February 2011 the Finance Ministry, referring to Article 16 of the Ordinance (see paragraph 5(f) above), stated that the Council should have monitored the collection of incomes from the SILT on a regular basis and, if the required amount was collected before the expiry of the period of five years, should have informed the taxpayers that collection of the SILT was being discontinued and that any overpayments would be refunded to them.

Following pressure from the inhabitants of Majdanpek and the re-election of the Council’s members, the newly formed Council issued a decision on 23 March 2011 to discontinue the levying of the SILT. On the same date the Council also formed a Commission to establish the total amount collected in respect of the SILT. On 6 April 2011 the levying of the SILT was discontinued.

On 16 May 2011, on the basis of the data provided by the relevant finance departments of the Majdanpek municipality and the corresponding local community, the Commission found that: (a) the targeted amount had been collected by the end of February 2009 and, thereafter, a further RSD 33,410,126.99 dinars (RSD; 335,000 euros on that date) had been collected unlawfully and without cause; (b) each taxpayer was entitled to claim a refund of the amounts deducted from his or her income after the said date; and (c) a total of RSD 3,422,524.32 remained in the current accounts into which the SILT had been paid.

On 26 August 2011 the Ministry of Finance stated that the reimbursement of the overpaid public revenues – if the ground for collection of the public income had been wrong – should be carried out in accordance with the law governing the collection of public revenues and that refunds should be made from the relevant revenue account.

On an unspecified date in 2011 the finance department of the Majdanpek municipality announced that it would refund overpayments to the SILT taxpayers once they had filed their claims in that regard.

According to a report from the finance department submitted by the Government, it dismissed twelve applications as incomplete and adopted 1,869 decisions for the refund of overpayments, of which twenty-two were the subject of appeals. Two out of the twenty-two appeals are pending, while twenty have been decided upon. The first claim was submitted on 20 June 2011 and, since then, a total amount of RSD 12,938,571.70 has been reimbursed to citizens, the latest payment being made on 22 July 2013. The finance department further clarified that it had refunded only the overpaid SILT which the taxpayers’ employers as intermediary institutions had paid into current account Y (see paragraph 6 above). Following the instruction of 17 December 2007 (ibid.), the contributions paid into current account X (see paragraph 5(b) above) could not be considered as overpaid SILT, but only as “funds paid into the wrong current account”.

According to the documents submitted by the applicants, the first four applicants and twenty-four other SILT taxpayers filed a claim with the finance department of the Majdanpek municipality requesting the refunding of overpayments made after 1 March 2009. Between 30 July 2011 and 7 May 2012 the finance department ruled on their claims as follows.

In two cases, on 30 July 2011 and 7 May 2012 respectively, the finance department refunded the claimants without making reference to any current account.

Between 8 August 2011 and 30 January 2012 the finance department, referring to its instruction of 17 December 2007, agreed to refund the other claimants, including the first four applicants, only the overpaid SILT which their employers had paid into account Y, and rejected the remainder of their claims. In so doing, it informed the first four applicants and another two claimants that they could appeal to the Niš Regional Centre of the Ministry of Finance’s Public Revenue Service, and directed the remaining claimants to appeal to the Majdanpek municipality’s executive council (Opštinsko veće Opštine Majdanpek). On 21 February 2012 the latter authority rejected all the appeals in a one-sentence decision, on the same ground as that cited by the finance department.

It would appear that the first four applicants and the other two claimants did not appeal against the first-instance decisions.

The remaining three applicants and the majority of SILT taxpayers did not institute tax proceedings, but filed civil claims instead.

The relevant civil proceedings

Between 15 July and 2 November 2011 all of the applicants filed separate civil claims for unjust enrichment (tužba zbog sticanja bez osnova) with the Negotin Court of First Instance – Majdanpek unit (Osnovni sud u Negotinu – Sudska jedinica Majdanpek; hereinafter “the Court of First Instance”), seeking a refund of the overpaid SILT from the Majdanpek municipality and the Majdanpek local community jointly, together with the statutory interest accrued. It would appear that several hundred SILT taxpayers in Majdanpek pursued the same remedy.

On 17 August 2011 the Court of First Instance ruled in favour of one of the claimants. On 16 November 2011 the Negotin High Court quashed this judgment, stating that the matter in issue should not be considered as a civil matter.

On 23 and 25 November 2011 respectively the applicants’ lawyer applied to the Court of First Instance and its President, requesting them to initiate proceedings before the Supreme Court of Cassation to resolve the issue of civil jurisdiction in respect of the SILT refunds, in order to harmonise the domestic case-law (see paragraphs 48-50 below). On 26 November 2011 he also submitted a request to the Supreme Court of Cassation urging it to adopt an opinion on that issue. He did not receive any response to his requests.

Between 24 November 2011 and 6 January 2012 the Court of First Instance stated that it did not have competence ratione materiae to hear the applicants’ cases. In its reasoning, the court considered the SILT as a source of primary income for municipalities (izvorni prihod opštine). It observed that the Tax Proceedings and Tax Administration Act, which defined tax matters as public-law matters between the Central Revenue Service on the one hand and natural and legal persons on the other, empowered the latter to request a refund of overpaid or erroneously levied tax and ancillary contributions in tax proceedings. The court further stated that the provisions of that Act should accordingly be applicable to various SILT-related matters not specifically covered by the Local Government Act, and that, according to the Tax Proceedings and Tax Administration Act, the powers of local government departments as regards the assessment, levying and control of the primary incomes of municipalities should correspond to the powers of the Central Revenue Service. Therefore, and also given that the Majdanpek local community had never adopted a decision revoking the SILT, the present disputes could not be characterised as civil-law disputes coming within the competence ratione materiae of the civil courts.

Between 26 January 2012 and 21 February 2012 the Negotin High Court upheld the first-instance decisions on appeal.

Other civil suits

The Constitutional Court declared null and void several ordinances enacted by other local governments imposing or extending the levying of the SILT as being unlawful or unconstitutional for various reasons.

On 29 June 2006 the Constitutional Court declared null and void one such ordinance adopted by the Prijepolje local community as it had, inter alia, retroactively imposed the SILT between March 2003 and July 2006. In apparently more than three thousands cases examined between February 2010 and November 2011, the Prijepolje Court of First Instance and the Užice High Court accepted jurisdiction and upheld the claims for a refund of the above-mentioned unlawfully imposed SILT as being civil in nature. Referring to Articles 210-214 of the Obligations Act and the Local Government Finance Act (see paragraphs 60 and 45 below), the courts in question ordered the Prijepolje municipality and one of its local communities to jointly refund the claimants (see, for example, the final decisions of the Prijepolje Basic Court P. 1571/10 of 1 December 2010, P. 3124/10 of 25 November 2011 and P. 420/12 of 7 August 2012; and the decisions of the Užice High Court upholding the first-instance decisions of the Prijepolje Basic Court, Gž. 1675/10 of 13 December 2010; Gž. 65/11 of 19 January 2011; 62/11 of 21 January 2011; 58/11 of 18 January 2011; 172/11 of 4 February 2011; 70/11 of 24 January 2011 and 1234/11 of 15 July 2011).

Constitutional remedies

In a constitutional appeal of 23 March 2012 the first applicant contested the relevant judicial decisions in civil proceedings, relying on various Articles of the Constitution (see paragraph 35 below). He claimed that (i) the summary dismissal of his civil claim had arbitrarily deprived him of judicial protection and of the expected refunds; (ii) the municipal bodies had acted unlawfully, in an untimely manner and in breach of the rule of law and property rights when collecting the SILT and, thereafter, when ruling on his and others’ claims; and (iii) the divergent case-law of the competent courts in his case and of the domestic courts which had accepted jurisdiction ratione materiae in similar cases amounted to legal uncertainty, unequal protection of citizens before the law and discrimination against him. The applicant did not, however, provide the Constitutional Court with copies of any of the judgments in which the civil courts had accepted jurisdiction in cases similar to his own.

On 14 April 2012 the Constitutional Court, referring to Article 85 § 2 of the Constitutional Court Act (see paragraph 39 below), requested the applicant to provide a copy of the first-instance administrative decision in his case and, if he had appealed against it, of the second-instance decision.

On 25 April 2012 the first applicant provided a copy of the finance department’s decision of 16 August 2011, clarifying that he had not appealed against that decision to the executive council (compare and contrast with paragraph 18 above). He considered that avenue of redress to be futile in view of overall municipal policy and the rejection of claims in respect of contributions that had been paid into account X.

In its decision of 11 September 2012 the Constitutional Court held that the applicant had not been denied access to a court, given that the dispute in issue had been a “tax administrative” matter to be decided by the tax authorities rather than a civil matter for the civil courts.

It further dismissed the property-related complaints on the grounds that it “could not identify any link between the applicant’s allegations and the contested judicial decisions in civil proceedings”. Nevertheless, the Constitutional Court pursued its analysis, considering that the applicant and other SILT taxpayers should not have suffered harm on account of the Majdanpek local community’s failure to amend its Ordinance and inform the tax intermediaries in a legally valid manner of the change in the relevant current account. It concluded that “the applicant and his employer were entitled to request the reimbursement of overpayments from the Majdanpek local community in tax (administrative) proceedings, within the time-limits and prescription periods laid down by law, given that the overpayments had been paid into its current account”.

The Constitutional Court further summarily dismissed the applicant’s complaint alleging unequal protection of rights, considering that the general allegations before it, which were unsupported by evidence (paušalno izneti navodi), provided no constitutional basis for claiming a breach of that right. It also stated that there was no constitutional basis for examining the alleged violations of the general principles set out in Articles 18 to 21 (see paragraph 35 below), given that no violation of substantive constitutional rights had been found.

Throughout 2012 the other six applicants lodged constitutional appeals identical or very similar to that lodged by the first applicant. The Constitutional Court’s decisions rendered in their cases between 26 November 2012 and 18 December 2012 were summarised versions of its leading ruling in the first applicant’s case.

The relevant provisions of the Constitution relevant to the applicants’ appeals are as follows: Article 18 (direct application of guaranteed rights), Article 19 (purpose of constitutional guarantees), Article 20 §§ 1 and 3 (restriction of human rights), Article 21 §§ 1, 2 and 3 (equality and prohibition of discrimination), Article 22 § 1 (right to judicial protection of human rights), Article 32 § 1 (right to a fair trial), Article 35 § 2 (right to be awarded damages) and Article 58 §§ 1 and 4 (right to peaceful enjoyment of property).

Article 36 § 1 (3) provides, inter alia, that the Constitutional Court shall reject (odbaciće) a constitutional appeal when the appellant has failed, following an additional request issued in this regard, to furnish the court with all the relevant details indispensable for the proper conduct of the proceedings before it.

Article 36 § 1 (4) provides, inter alia, that the Constitutional Court shall reject a constitutional appeal whenever the relevant legal conditions for its examination have not been fulfilled. It is not required to issue any additional warning in this regard.

Article 85 § 1 refers to the compulsory information which must be contained in any constitutional appeal. This information includes: (a) the appellant’s personal data; (b) information concerning his or her legal counsel; (c) the particulars of the decision being challenged; (d) an indication of the relevant provisions of the Constitution; (e) a description of the violations alleged; (f) the redress sought by the appellant; and (g) the appellant’s personal signature.

Article 85 § 2 provides that appellants should also substantiate their constitutional appeals with any and all evidence of relevance for the determination of their case, provide a copy of the impugned decision, and demonstrate by means of supporting documents that all other effective remedies have already been exhausted.

According to this opinion, where a constitutional appeal lacks any of the compulsory elements (obavezni elementi) mentioned in Article 85 of the Constitutional Court Act, the appellant should be invited to provide the additional information by a certain deadline or have the appeal rejected pursuant to Article 36 § 1 (3) of the Constitutional Court Act.

The provisions regarding the legal nature and administration of local taxation, including the self-imposed local tax (“the SILT”), are set out in the following legal acts which have been amended or repealed on numerous occasions over the years: (a) the Local Government Act 2002 (Zakon o lokalnoj samoupravi, published in OG RS nos. 9/02, 33/04 and 135/04); (b) the Local Government Act 2007 (OG RS no. 129/07, which came into force on 1 January 2008 and repealed the Local Government Act 2002); (c) the Local Government Finance Act (Zakon o finansiranju lokalne samouprave, OG RS nos. 62/06, 47/11 and 93/12, which came into force on 1 January 2007 and repealed Article 5, Chapter V on local government financing and Articles 77 to 104 of the Local Government Act 2002); (d) the Budgetary System Act 2002 (Zakon o buǆetskom sistemu, OG RS nos. 9/02 ... 86/06); (e) the Budgetary System Act 2009 (OG RS nos. 54/09, 73/10 and 101/10); (f) the Act on Public Income and Public Expenditure (Zakon o javnim prihodima i javnim rashodima, OG RS nos. 76/91 ... 135/04); and (g) the Tax Proceedings and Tax Administration Act (Zakon o poreskom postupku i poreskoj administraciji, OG RS nos. 80/02 ... 2/2012).

The legal status of the SILT at the relevant time for the present cases will be summarised below. With the gradual decentralisation of governmentance in the early 2000s, the assessment, collection and control of several taxes and revenues, including the SILT, were redefined and transferred entirely from central to local government level (the Local Government Finance Act, Articles 60 and 6 in that order). Accordingly, the local government units (municipalities, towns and the city of Belgrade) have, in principle, the same rights and duties as the Central Revenue Service of the Ministry of Finance with its field offices (there are certain exception which are not relevant for the present case; see Articles 2a and 62 of the Tax Proceedings and Tax Administration Act).

The SILT was initially defined as a source of primary public revenue either for local government units such as municipalities or for the lower tier of government, the local communities (mesne zajednice), depending on whether the contributions in question were collected on and for the territory of the whole municipality or only the particular local community (Articles 78 § 14 and 73 § 1.2 of the Local Government Act 2002). However, the Local Government Act 2007 and the Local Government Finance Act (Articles 75 § 1.1 and 6 § 15 respectively) stipulated that the SILT was designed as a source of primary revenue exclusively for the local government units, and that the collected funds were credited to their budgets and strictly intended for specific purposes, while funds for the functioning of the local communities were provided only under specific budget headings.

Pursuant to the Local Government Finance Act, where a majority of citizens vote in favour of imposing the SILT for specific investments (for instance, to fund the building or maintenance of utility services or buildings of value to the community), contributions become mandatory and are required from all citizens with different taxable incomes, including those who voted against the SILT or did not vote at all (Article 26). The competent local government authorities subsequently define the procedures for calculating and collecting the SILT in the relevant decision, except where this is done by applying the principle of “deduction at source”. In the latter case, the deduction of the SILT from taxable income is the responsibility of those who pay these personal incomes and/or revenues (intermediaries; poreski platci), who deduct it when paying other applicable taxes and benefits (Article 28). The Act also provides that the legislation governing tax proceedings and tax administration should be applicable, as relevant, to issues such as the manner of determination and assessment of the SILT, its collection, deadlines for payments, statutes of limitation, calculation of interest and other issues not specifically covered by the relevant legislation (Article 30).

Lastly, the municipality’s administrative departments (opštinsko uprava) and the executive council (opštinsko veće) respectively decide at first and second instance on administrative matters which fall within the competence of the municipality (Articles 52 § 3 and 46 § 5 respectively of the Local Government Act 2007).

Article 4 provides that a court of law cannot refuse to consider a claim in respect of which its jurisdiction has been established by law or by the Constitution.

Article 29 provides that the Administrative Court adjudicates in administrative matters.

Article 31 provides that the Supreme Court of Cassation, inter alia, shall adopt general legal positions in order to ensure uniform application of the law by the courts.

Article 176 provided that where there was a large number of cases pending at first instance raising the same preliminary legal issue, the court of first instance could, either of its own motion or at the request of one of the parties, institute separate proceedings before the Supreme Court requesting the latter to resolve the issue in question. The lawsuits pending at first instance were stayed in the meantime. Article 178 provided that the Supreme Court determined the request under the procedure for the adoption of its legal opinions and could refuse to examine it if the preliminary legal issue was not of prejudicial importance in a large number of pending cases.

The Civil Procedure Act 2011 entered into force on 1 February 2012, thereby repealing the 2004 Act. Articles 180 to 185 correspond, in principle, to the provisions of the 2004 Act described at paragraph 49 above, save that the Supreme Court of Cassation has competence to rule on the request within sixty days of receiving it and to adjudicate on the issue.

Under Articles 19 and 56 §§ 3 and 4, no administrative authority may take over an administrative matter which is within the jurisdiction of another authority and decide thereon, save where so provided by law. If the authority finds that it is not competent to receive written submissions, its officer shall advise the claimant or appellant accordingly and refer him or her to the competent authority. If the submission was received by mail, the authority shall immediately send the submission to the competent authority and notify the party thereof. If the authority which does not have competence cannot establish with certainty which authority is competent in the matter, it must decline competence and serve that decision immediately on the party concerned.

Article 3 of the Act provides, inter alia, that the Administrative Court adjudicates on the lawfulness of final decisions rendered in administrative matters and/or in the determination of rights, duties or direct personal interests based on the law, where judicial protection has not been secured otherwise.

Under Article 5, an administrative matter within the meaning of this Act is an individual situation of public interest where the necessity to legally and authoritatively determine the future conduct of a party arises directly from the provisions of the law.

According to Article 6, the competent authorities for the purposes of this Act are, inter alia, local government bodies.

Articles 18 § 1 and 19 provide that judicial review proceedings may be brought within thirty days from the date on which the final decision was served on the party in question, or where an appellate administrative body fails to decide on an appeal lodged more than sixty days previously and again fails to do so within a further seven days after receipt of the plaintiff’s repeated request to this effect. The competent court should, in principle, hold a public hearing and may also rule in accordance with the principle of equity (načelo pravičnosti).

Article 42 § 1 provides that if the competent court decides to uphold the action it shall quash the impugned administrative act in part or whole and order fresh consideration of the case (spor ograničene jurisdikcije). Article 43 § 1 provides, however, that the competent court may instead rule on the merits of the claim, if the facts of the case and the very nature of the dispute in question allow for this particular course of action (spor pune jurisdikcije). Articles 41 §§ 1 to 4, 61 and 62 provide details of other situations in which a claimant’s request may be decided on the merits.

When deciding in a case concerning collection of the SILT, the Administrative Court considered that the municipality rather than the local community was the creditor in respect of the SILT for the purposes of standing to sue (see 9 U. 740/11 of 30 August 2011; see also Administrative Court Bulletin no. 3/2012).

No details of the practice of the Administrative Court on SILT refunds, if any, have been provided. However, between 9 December 2010 and 15 October 2012 the Administrative Court rendered six judgments in cases concerning tax refunds. In two of these judgments it quashed the administrative acts and/or ordered fresh consideration of the case, while in four cases it rejected (odbio) the applications for judicial review (see 7 U 427/10, 9 U 23584/10, 7 U 6202/10, 9 U 9004/10, 12 U 30082/10 and I-2 U 25802/10).

Furthermore, in six judgments rendered between 8 December 1999 and 9 April 2009 the Supreme Court and the Supreme Military Court (formerly the competent courts for judicial review in administrative matters), respectively, ruled on the merits of administrative disputes concerning property-related municipal decisions, pension entitlements, disability benefits, the right to stand for election and a proposed change in the registration of persons authorised to represent political parties (see Up. br. 2530/03, Už. 133/92, Už. 11/08, U.br. 1739/08, U.br. 48/08 and U.br. 1093/02).

Articles 210 to 219 set out provisions concerning unjust enrichment (sticanje bez osnova; condictio sine causa). Under the general rule set forth in Article 210, when a part of the property of one person passes, by any means, into the property of another person and that transfer has no basis in a legal transaction or statute, the beneficiary is required to return the property. If restitution is not possible, he or she is required to provide compensation equal to the value of the benefit received. The obligation to return the property or provide compensation for its value arises even when it was received in connection with a cause which did not come into existence or which subsequently ceased to exist.


Violation de l'article 6 - Droit à un procès équitable (Article 6 - Procédure civile;Article 6-1 - Délai raisonnable);Violation de l'article 13 - Droit à un recours effectif (Article 13 - Recours effectif)

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1957 and lives in Louredo, Santa Maria da Feira.

On 19 December 2005 the applicant lodged an action with the Santa Maria da Feira Court (domestic proceedings no. 9835/05.7TBVFR) against different defendants regarding the right to use a water channel.

On 3 January 2006 applicant rectified the initial application upon request.

On 19 February 2006 the defendant I. lodged her submissions in reply (contestação) and informed the court that defendant A., her husband, had died in May 2005.

On 15 February 2006 defendant J. informed the Santa Maria da Feira Court that defendant A. J. had died in 1973 and that his heirs were living in Brazil.

On 5 May 2006 the Santa Maria da Feira Court stayed the proceedings, pending the outcome of the inheritance proceedings in relation to the deceased defendants, after having given the applicant a deadline to submit to the case-file the death certificates of the deceased.

On 27 November 2006 the applicant applied to the Santa Maria da Feira Court for leave to continue the proceedings against the heirs of the deceased defendants (incidente de habilitação de herdeiros). He submitted the relevant documents supporting his request on 9 January 2007, after being notified by the Santa Maria da Feira Court.

On 2 July 2007 the Santa Maria da Feira Court admitted the heirs of the concerned defendants as parties to the proceedings.

On an unknown date the court, taking into account its decision of 2 July 2007, resumed the main proceedings.

On 23 April 2008 the applicant was notified of the failure of the Santa Maria da Feira Court to summon defendant A. G.

On 27 January 2010 the Santa Maria da Feira Court interrupted the proceedings for lack of action from the parties.

On 26 January 2011 the applicant informed the court about the new address of defendant A.’s heir.

On an unknown date the proceedings were resumed.

On 24 November 2011 the Santa Maria da Feira Court adopted a decision dismissing the applicant’s claim for being time-barred.

On 6 December 2011 the applicant appealed against the decision to the Porto Court of Appeal (Tribunal da Relação do Porto).

On 4 June 2013 the Porto Court of Appeal quashed the first instance decision and ordered a new trial.

The proceedings are still pending at first instance.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

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

Mrs Marinova was born in 1972 and lives in Tervel.

In February 2006 she complained to the Child Protection Agency that the school teacher of her son, then aged fourteen, had on several occasions ill-treated and humiliated him. In particular, she alleged that the teacher had hit the child three years earlier and had since then often insulted him, had made remarks about his parents in front of other pupils, and had belittled his performance at school. Mrs Marinova argued that this had amounted to harassment, and said that her son had become demotivated. The Agency examined the complaint, heard the teacher, Mrs Marinova’s son and other witnesses, and concluded that the allegation of ill-treatment had not been made out. It found that relations between Mrs Marinova and the teacher had been strained since 2003, when the father of her son had threatened the teacher in front of other pupils. The teacher had brought a private criminal prosecution against the father in relation to that, and the proceedings were pending.

In April 2006 Mrs Marinova complained to the school’s headmaster and the police that the teacher had taken her son’s mobile telephone in class and had later refused to give it back.

The prosecuting authorities opened criminal proceedings against an unknown perpetrator in connection with this allegation and in August 2006 suspended them on the ground that the perpetrator had not been identified.

In July 2006 the teacher brought a private criminal prosecution against Mrs Marinova in connection with these three complaints. She submitted that she had not read them because the authorities dealing with them had not shown them to her. However, she had been asked to give explanations and from the questions put to her she had inferred that Mrs Marinova had accused her of having stolen a mobile telephone and described her as a biased and incompetent teacher using inappropriate disciplinary methods. At the first hearing of the case in September 2006, the teacher brought a civil claim against Mrs Marinova, seeking 5,000 Bulgarian levs (BGN) (2,556 euros (EUR)), plus interest, in non-pecuniary damages.

On 29 November 2006 the Tervel District Court found Mrs Marinova guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). The court replaced Mr Marinova’s criminal liability with an administrative fine of BGN 500 (EUR 256). It partly allowed the teacher’s claim for damages, ordering Mrs Marinova to pay her BGN 1,000 (EUR 511), plus interest. It also ordered Mrs Marinova to pay the teacher’s costs, amounting to BGN 164 (EUR 84), and part of the court fee paid by the teacher, amounting to BGN 40 (EUR 20). The court noted that relations between the teacher and Mrs Marinova had for a long time been bad. Having examined the findings of the Child Protection Agency and the prosecuting authorities in relation to Mrs Marinova’s complaints, the court concluded that her allegations, the first of which had become known to the school’s headmaster and a pedagogical counsellor in the school, had been false and therefore defamatory. The court also held, without specifying the basis for its conclusion on this point, that Mrs Marinova had acted with direct intent. In fixing the amount of the fine, the court noted, inter alia, her poor financial situation.

Mrs Marinova appealed, arguing, inter alia, that complaining about a public official to the authorities did not amount to “dissemination” within the meaning of Article 147 § 1 of the Criminal Code (see paragraph 49 below). Such complaints could, in some cases, be seen as false accusation contrary to Article 286 of the Code (see paragraph 54 below). Mrs Marinova also emphasised that she had not made her allegations publicly.

In a final judgment of 18 April 2007, the Dobrich Regional Court upheld the lower court’s judgment. It found that Mrs Marinova’s allegations that the teacher had ill-treated her son were not supported by the findings of the Child Protection Agency or her son’s or the headmaster’s testimony, and held that information was “disseminated” within the meaning of Article 147 § 1 of the Criminal Code even if only one person had become privy to it. The court found that the allegations in relation to the mobile telephone were false as well. It agreed that the statements in this respect in Mrs Marinova’s complaint to the police had amounted to a false accusation, and that the lower court had been wrong to characterise them as defamation. However, it stated that in the absence of an appeal by the teacher, it could not quash this part of the lower court’s judgment. It upheld, without giving any details, the lower court’s finding that Mrs Marinova had acted with direct intent.

To obtain payment of the award of damages and costs, the teacher brought enforcement proceedings against Mrs Marinova. It is unclear how these ended.

Mr Zlatanov was born in 1963 and lives in Sofia.

On 28 July 2008 he was stopped by two road traffic police officers. One of them recorded that Mr Zlatanov had failed to obey a stop sign. Mr Zlatanov objected, noting down in the record that the officer had refused to present himself, smelled of alcohol and staggered. In written explanations which he filed with the Shabla District Police Department on 5 August 2008, Mr Zlatanov reiterated his allegations and said that the officer had behaved aggressively.

Mr Zlatanov’s allegations triggered an internal inquiry which exonerated the officer of any wrongdoing.

In December 2008 the officer brought a private criminal prosecution against Mr Zlatanov in relation to these allegations. He also claimed BGN 5,000 (EUR 2,556) in non-pecuniary damages.

In a judgment of 6 March 2009, the Kavarna District Court found Mr Zlatanov guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). The court replaced his criminal liability with an administrative fine of BGN 500 (EUR 256). It partly allowed the officer’s claim for damages, ordering Mr Zlatanov to pay him BGN 1,500 (EUR 767), plus interest. It also ordered Mr Zlatanov to pay BGN 60 (EUR 30) in court fees. The court examined in detail the results of the internal inquiry carried out pursuant to Mr Zlatanov’s allegations, tests carried out several hours after the incident on 28 July 2008 and showing that the officer had not consumed alcohol, and the oral evidence of the other officer present at the scene and the officers’ superior. It concluded that Mr Zlatanov’s allegations did not correspond to the truth. It went on to find that Mr Zlatanov had not been certain of the truthfulness of his allegations, but had nevertheless chosen to make them, both in the record drawn up by the officer in the course of the incident on 28 July 2008 and in his subsequent written explanations.

Mr Zlatanov appealed. He argued, inter alia, that his statements, made in the exercise of his constitutional rights and only addressed to the officer’s superior, had not amounted to “dissemination” within the meaning of the Article 147 § 1 of the Criminal Code (see paragraph 49 below). He also relied, inter alia, on Article 10 of the Convention and this Court’s caselaw under this provision.

In a final judgment of 20 November 2009, the Dobrich Regional Court upheld the lower court’s judgment. It found it established that the officer had not displayed any signs of inebriation, which in the court’s view meant that Mr Zlatanov had been fully aware that the officer had not been drunk but had nevertheless chosen to make his allegations, thus acting with a direct intent to discredit the officer. Those allegations, whose purpose had been to smear the officer and at the same time exonerate Mr Zlatanov from liability for the road traffic offence recorded by the officer, could not be justified by the right to defend oneself against administrative-penal charges or the right to freedom of expression. The court ordered Mr Zlatanov to pay the officer’s costs for the appellate proceedings, amounting to BGN 512 (EUR 262).

Mr Findulov was born in 1955 and lives in Burgas.

On 12 July 2009 Mr Findulov, who was driving his lorry, was stopped by two road traffic police officers. One of them allegedly requested a bribe. Mr Findulov promised to bring him the money in ten minutes and left his identity card and the vehicle’s documents with the officers. He then called the police and informed the officer on duty of the incident.

On 23 July and 3 and 14 August 2009 Mr Findulov made complaints to the Inspectorate of the Ministry of Internal Affairs, the Ombudsman of the Republic and the Minister of Internal Affairs, alleging that one of the officers who had stopped him, whose identity was not known to him, had requested a bribe and had withheld his documents.

On 13 August 2009 the Burgas Regional Directorate of the Ministry of Internal Affairs replied to Mr Findulov that his complaint was illfounded.

According to Mr Findulov, on 14 September 2009 he found his identity card in his mail box. The vehicle’s documents were never recovered.

In a decision of 12 August 2009, the Road Traffic Police Department of the Burgas Regional Directorate of the Ministry of Internal Affairs found, on the basis of a report by the two traffic police officers issued in Mr Findulov’s absence, that he had not used a seatbelt, that one of the tyres of his lorry had been worn out, that he had refused a breathalyser test, and that he had driven away in an unknown direction. It gave Mr Findulov two administrative fines of BGN 50 and one administrative fine of BGN 500, stripped him of twenty-five control points from his driving licence, and barred him from driving a motor vehicle for twelve months.

Mr Findulov sought judicial review of that decision. On 30 November 2009 the Burgas District Court found that no appeal lay against the BGN 50 fines and discontinued the proceedings in that part. It quashed the remainder of the decision of 12 August 2009, finding that the report of the traffic police officers had not been communicated to Mr Findulov. In a final judgment of 25 March 2010 the Burgas Administrative Court upheld that judgment.

On an unspecified date in 2009, the officer accused by Mr Findulov of soliciting a bribe brought a private criminal prosecution against him in relation to that allegation. He also sought BGN 10,000 (EUR 5,113) in nonpecuniary damages.

In a judgment of 11 May 2010, the Burgas District Court found Mr Findulov guilty of defaming a public official, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). It sentenced him to a fine of BGN 5,000 (EUR 2,556) and a public reprimand. It partly allowed the officer’s claim for damages, ordering Mr Findulov to pay him BGN 3,000 (EUR 1,534). It also ordered Mr Findulov to pay BGN 120 (EUR 61) in court fees. The court noted that in his complaints Mr Findulov had not named the officer, but found that he had been identifiable from the complaints, which clearly alleged that he had requested a bribe, thus accusing him of an offence before third parties. The offence of defamation did not require that those third parties – the officer’s hierarchy – had actually believed the allegations or taken any action in relation to them. Mr Findulov, who under Article 147 § 2 of the Criminal Code (see paragraph 49 above) bore the burden of proof in this respect, had failed to establish that the officer had in fact solicited a bribe. The court went on to say, without explaining the reasons for this conclusion, that Mr Findulov had acted with direct intent. When fixing the sentence, the court noted that it could not replace Mr Findulov’s criminal liability with an administrative punishment as this was a one-off possibility and Mr Findulov had previously benefited from a waiver of his criminal liability in relation to a road traffic offence. In fixing the award of non-pecuniary damages to the officer, the court noted that Mr Findulov’s allegations had been particularly damning.

Mr Findulov appealed.

In a final judgment of 14 July 2010, the Burgas Regional Court upheld the lower court’s judgment. It entirely agreed with the reasons given by that court, adding that Mr Findulov had been fully aware that his allegations against the officer were false but had nevertheless chosen to defame him. The court also ordered Mr Findulov to pay BGN 250 (EUR 128) incurred by the officer in costs for the appeal proceedings.

The public reprimand was executed, as ordered by the court, by announcing Mr Findulov’s conviction and sentence on the local radio station. To obtain payment of the award of damages and costs, the officer brought enforcement proceedings against Mr Findulov. It is unclear how these ended.

Mr Dinchev was born in 1943. Mrs Dincheva was born in 1947. Both of them live in Lovech.

The two of them had a long-running conflict with neighbours of theirs. On 14 November 2009 tensions escalated and Mr and Mrs Dinchevi called the police, complaining that they had been assaulted by the neighbours. Two officers came and warned one of the neighbours not to harass the applicants.

On 17 November 2009 Mr and Mrs Dinchevi complained to the head of the Lovech District Police Directorate against the officers, alleging that they had shown no interest in the incident and had failed to protect them, instead inviting the aggressors in the patrol car and “muttering with them”. Mr and Mrs Dinchevi sent copies of the complaint to the Lovech District Prosecutor’s Office, the head of the Lovech Fire Brigade, and the Minister of Internal Affairs. On 4 December 2009 the head of the Lovech District Police Directorate informed Mr and Mrs Dinchevi that an internal inquiry had established that their complaint was ill-founded.

On an unspecified date in 2010 the officers brought a private criminal prosecution and claims for damages against Mr and Mrs Dinchevi.

In a judgment of 20 October 2010, the Lovech District Court found Mr and Mrs Dinchevi guilty of defaming public officials, contrary to Articles 147 and 148 §§ 1 (3) and 2 of the Criminal Code (see paragraphs 49 and 50 below). It sentenced each of them to a fine of BGN 2,500 (EUR 1,278) and a public reprimand. The reprimand was to be executed by announcing the conviction and sentence on the local radio station. The court also partly allowed the officers’ claims for damages, ordering the applicants to pay each of them BGN 400 (EUR 205).

On appeal, in a final judgment of 18 April 2011 the Lovech Regional Court upheld the conviction with similar reasoning but reduced the fine imposed on each applicant to BGN 1,500 (EUR 764).

After the Government were given notice of the application (see paragraph 4 above), they brought Mr and Mrs Dinchevi’s case to the attention of the Chief Prosecutor. In December 2012 the Chief Prosecutor ad interim asked the Supreme Court of Cassation to reopen the proceedings, set aside the judgments against Mr and Mrs Dinchevi, and acquit them. He submitted that the statements in their complaint against the officers had not been defamatory but simply an expression of their disapproval of the way in which the officers had carried out their duties. Under the case-law of this Court and the case-law of the Supreme Court of Cassation, public officials could legitimately be subjected to heightened criticism. Accepting, as the Lovech courts had, that critical statements in complaints against such officials were defamatory would mean that the vast majority of claims and complaints filed with the courts and the prosecuting authorities by nonlawyers could lead to penal sanctions.

In a final judgment of 7 March 2013 (реш. № 104 от 07.03.2013 г. по н. д. № 178/2013 г., ВКС, III н. о.), the Supreme Court of Cassation allowed the request, reopened the proceedings, set the two judgments aside, acquitted Mr and Mrs Dinchevi, and dismissed the claims for damages against them. It held that their actions had not amounted to an offence. The statements in their complaints had been an expression of their disapproval of the way in which the officers had carried out their duties, and an exercise of their constitutional rights to make complaints to the authorities, express their opinion, and defend their rights. The statements had been value judgments which could not be proved or disproved, and could not be regarded as defamatory. Defamation could only consist in the imputation of concrete negative facts. The statements did not give rise to liability in damages either.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1978 and until his arrest lived in Krasnoyarsk. He is currently serving a sentence in a correctional colony in the Krasnoyarsk Region.

On 13 December 2005 the applicant was arrested on suspicion of aggravated kidnapping, murder, fraud and conspiracy.

On 27 December 2007 the Krasnoyarsk Regional Court found him guilty as charged and sentenced him to twenty-four years and eleven months’ imprisonment. The first seven years were to be served in a prison and the remaining term in a high-security correctional colony.

On 24 December 2008 the Supreme Court of Russia upheld his conviction and sentence on appeal.

The parties provided the Court with the applicant’s medical documents, including clinical records, discharge summaries and expert reports. Parts of the clinical records drawn up during his detention and submitted to the Court by the Government are illegible.

On several occasions before his arrest the applicant underwent inpatient and outpatient treatment in civilian hospitals. Between 1999 and 2001 he was treated for cerebral concussion, cerebral contusion, vertebral contusion, knee pain and a duodenal ulcer.

After his arrest on 13 December 2005 the applicant was taken to a police detention facility in Krasnoyarsk. Two days later he was transferred to remand prison no. 24/1 (“the remand prison”), also in Krasnoyarsk, where resident doctors carried out a general check-up, noting in the medical file that he had sustained a brain injury and suffered from a duodenal ulcer. The doctors found him fit for detention, noting that detention in northerly regions should be avoided.

According to the applicant, in 2005 and in 2006 he complained to the prison doctor about various health problems, including stomach pain, but his complaints remained unnoticed by the authorities. His medical records for the period between 2005 and 2007 did not contain any entries regarding his complaints, medical examinations or treatment in that period.

On 16 June 2007 the prison doctor saw the applicant after he complained of stomach pain and deteriorating eyesight. He diagnosed the applicant with a duodenal ulcer in the acute phase and myopia, but did not prescribe any treatment. He noted that a specific endoscopy was to be performed.

On 19 July and 13 and 16 August 2007 the trial court adjourned its hearings in the applicant’s case as he did not feel well and had complained of severe stomach pain. The court asked the detention authorities to submit detailed information on his actual state of health.

In August 2007 the applicant received injections of drotaverine allegedly provided by his mother, a retired doctor, to relieve his stomach pain. On 21 August 2007, at a court’s request, a deputy head of the prison medical ward examined the applicant and observed that he was receiving treatment for an acute duodenal ulcer. In addition, he noted that the applicant was to be transported to Regional Tuberculosis Hospital no. 1 (“the prison hospital”) for the fibrogastroduodenoscopy ordered in June 2007.

On 19 October 2007 the applicant was taken to the prison hospital. Multiple tests performed there led to him being diagnosed with first-stage myopia, a duodenal ulcer in remission and duodenitis associated with cicatricial deformation of the duodenum bulb. Omeprazole was prescribed. Insofar as the submitted medical records could be deciphered, the applicant did not receive the prescribed treatment.

In March 2009 the applicant was transported to the prison hospital for the second time. This time the doctors prescribed him medication for his myopia and neurological symptoms resulting from the trauma in 1999. The medical records did not contain any information on the actual intake of drugs by the applicant.

In October 2009 the applicant’s stomach pain came back. A fibrogastroduodenoscopy showed that he suffered from duodenitis with cicatricial deformation of the duodenum bulb and antral gastritis. The resident doctor saw him in October 2009 and January 2010, prescribing him drug treatment and a special diet. The applicant’s medical records do not contain any information indicating that the doctor’s recommendations were followed.

On 19 March 2010 the applicant underwent an in-depth medical examination in the prison hospital. It showed that in addition to his peptic problems, erosive duodenitis and antral gastritis, the applicant had developed first-stage sensorineural hearing loss and his myopia had progressed slightly. A drug programme and special diet were recommended. According to the applicant, the recommendation was not followed by the authorities. His medical documents contain no entries in this regard.

In early April 2010 the court had to adjourn several hearings in the applicant’s criminal case owing to his severe stomach pain. It ordered the detention authorities to provide him with anti-ulcer treatment. At the end of that month the applicant was examined in a civilian hospital, which diagnosed him with an aggravated ulcer and acute gastritis. Inpatient treatment was prescribed. The authorities did not admit him for it.

The next recurrence of the applicant’s ulcer occurred in autumn 2010. According to the medical records, the applicant did not receive any drugs at that time. An examination on 21 December 2010 showed that his ulcer had grown and the duodenitis and gastric disease had progressed further. A civilian doctor who visited him recommended inpatient treatment, but he remained in the remand prison. The resident doctor prescribed drug treatment in December 2010 and January and March 2011. However, the medical records contain no information concerning the actual provision of the prescribed drugs to the applicant. According to him, only one of the drugs was made available to him. His mother sent him the required drugs in June 2011 to enable him to receive at least some relief.

A new acute stomach pain attack occurred in December 2011. The applicant was immediately taken to the prison hospital for an X-ray examination and a surgical consultation. The surgeon concluded that the applicant’s condition did not call for surgery. Over the next few days the applicant was diagnosed with duodenitis and recurring acute gastritis which had passed to the chronic stage. Drug treatment was prescribed, but the Court was not given any records showing that he actually received it.

In the meantime the applicant started complaining of mild knee pain and impeded nasal breathing allegedly caused by a broken nose in 2006 while in detention on remand. He stated that he had received some medication for knee pain, but had not undergone any septal surgery.

In the beginning of 2012 the applicant underwent a magnetic resonance imaging scan of the brain and spine in a civilian hospital. He paid for the scan himself, which revealed the presence of Schmorl’s nodes, protruded discs, spondylarthrosis and a haemangioma in one of the spinal discs. It also indicated moderate changes within local tissue associated with a cerebrospinal fluid cyst in the arachnoid membrane of the brain. These diagnoses were confirmed by the prison doctor, who found that the applicant’s condition did not call for surgical treatment.

The applicant was sent to a prison to serve his sentence.

On 23 October 2012 the applicant arrived at the prison in Minusinsk in the Krasnoyarsk Region (“the prison”). On admission he was seen by a prison doctor, who considered him to be in satisfactory health. He was included on a list of detainees subject to regular medical check-ups and enhanced medical attention.

The next day he was diagnosed with acute gastritis and degenerative disc disease. He was prescribed a fibrogastroduodenoscopy and several drugs, including nonsteroidal antiinflammatory medication and medication to treat his gastritis. He refused to comply with the doctors’ recommendations pertaining to the endoscopy and anti-inflammatory drugs, insisting that they would lead to a further deterioration of his ulcer. He nevertheless took the medication prescribed for gastritis treatment. According to the medical records, the ulcer treatment continued for the following few months.

In the meantime, an independent medical specialist and neurologist, Dr M., assessed the applicant’s health and prepared a report on 5 November 2012. It stated that he should be admitted to a neurological or neurosurgical medical facility, where his spinal problems could be treated with nonsteroidal anti-inflammatory medication, neuromuscular blocking agents and painkillers. The doctor gave detailed recommendations concerning the applicant’s treatment.

On 29 November 2012 the prison doctor prescribed the applicant vitamin injections and pain-relief ointment to treat his spinal problems. Several days later the doctor authorised an additional hour’s rest from physical activity and prescribed nonsteroidal anti-inflammatory medication, spasm relief analgesics and omeprazole for his peptic problems.

In the absence of any positive developments, in January 2013 the doctor amended the spinal treatment and introduced a stronger antiinflammatory drug.

In March 2013 the applicant was transferred to the prison hospital. Tests showed that his conditions had not progressed. The gastritis and duodenal ulcer were in remission. The applicant was prescribed omeprazole and sucralfate-based medication. According to an entry made in his medical history on 26 March 2013, his attending doctor recommended testing for the bacteria Нelicobacter pylori (“H.pylori”). The test was never performed.

After the applicant’s return to the prison his treatment continued in line with the recommendations of the prison hospital doctors. He received meloxicam and omeprazole. However, in May 2013 his duodenal ulcer again worsened. The acute phase lasted about two months.

On 17 July 2013 the applicant was examined by a number of medical specialists from a mobile prison hospital. He was diagnosed with a duodenal ulcer in remission, chronic gastritis, erosive duodenitis, osteoarthritis of the left knee, Raynaud’s syndrome, degenerative disc disease, acute back pain and second-stage myopia. He was prescribed drug treatment. The records do not indicate that he received all of the prescribed medications.

On 7 August 2013 the prison authorities received a parcel of medication from the applicant’s mother. He was treated with those drugs until 30 August 2013, when he was sent to a correctional colony.

On 11 September 2013 the applicant arrived at correctional colony no. 288/17 in Krasnoyarsk. He complained to the resident doctor of nausea and was diagnosed with an ulcer and degenerative disc disease. He was put on a list of detainees for close medical supervision. The doctor noted that the applicant required anti-recurrence ulcer treatment and in-depth examinations every six months, recording that it was necessary for him to be placed on a special diet when the ulcer recurred.

On 18 September 2013 the applicant was seen by doctors from the mobile prison hospital and underwent a fibrogastroduodenoscopy. It revealed that he had antral gastritis. According to him, his mother bought him medication for the ulcer treatment and sent it to the correctional colony.

In November 2013 the applicant had another severe attack of stomach and back pain. The prison doctor prescribed him drugs, injections of painkillers and vitamins. According to the Government, he refused to take one of the drugs, a nonsteroidal antiinflammatory. He disputed that allegation.

On 30 August 2013 the applicant filed a complaint against the prison administration, arguing that his treatment fell short of the requirements of Russian law. He stressed that the authorities had failed to properly treat his conditions.

On 16 October 2013 the Minusinsk Town Court dismissed the applicant’s complaint, finding that the authorities had provided him with adequate treatment. According to the court, he was regularly seen by a doctor and prescribed medication, including anti-inflammatory drugs and painkillers. They were given to the applicant as prescribed. His condition remained stable between 23 October 2012 and 30 August 2013.

On 17 March 2014 the Krasnoyarsk Regional Court upheld the judgment on appeal.


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

The applicant was born in 1977. He is currently serving a life sentence in Dnipro.

By the final domestic judgment of 16 July 2002, the applicant was sentenced to life imprisonment for murder and other crimes.

Until September 2004 the applicant was detained in the Cherkassy pre-trial detention centre (“the Cherkassy SIZO”) in which, he stated, cells had been overcrowded and had lacked basic amenities.

In October 2004 the applicant was transferred to Sokalska Correctional Colony no. 47 in Zhvyrka (“the Sokalska Colony”), where he remained until 15 November 2007.

The applicant stated that during his detention in the above Colony, one of his cellmates had been Mr V.M. Guk, a former applicant to the Court, with whom he had shared the cell for three years. Mr Guk’s application has already been examined by the Court, which found, in particular, a violation of Article 3 of the Convention on account of the conditions of his detention in the above Colony (see Guk v. Ukraine [Committee], no. 16995/05, §§ 83-86, 8 December 2016).

According to the applicant, during his stay in the Colony he was held in a cell, in which the living space was “extremely insufficient”. As confirmation thereof, he referred to a written statement signed by Mr Guk, which he had submitted to the Court. According to that statement, the cell measured 3.7 by 3.4 metres (12.58 square metres) including a sanitary facility measuring 1.35 by 1.3 metres (1.76 square metres).

The cell lacked basic amenities: no furniture for storage of personal belongings and food; a very small table; no rubbish container; and no toilet cleaners. The tap water was of a poor quality and water filters were not provided. Heating in the cell was inadequate; the air was damp and cold; the walls were covered with mould.

According to the Government, the equipment in the applicant’s cell corresponded to the domestic standards. Prisoners were provided with all necessary amenities. The quality of the tap water corresponded to the standards. The temperature in the cell was not less than 18 degrees Celsius and the air in the cell was neither damp nor cold.

According to the applicant, the washing unit in the Colony had no changing facilities, so the prisoners had first to undress in their cells. A guard watched them wash and hurried them up. The prisoners had to shave with poor-quality razors. Prisoners with tuberculosis washed in the same unit as healthy prisoners; no disinfection measures were taken. Sick and healthy prisoners took their daily walks in the same courtyards, which were also small, damp and dark.

Whenever the guards opened the cell, the prisoners had to retreat to its far corner, squat and put their arms behind their heads. When taken out of the cell, the applicant was handcuffed; he was required to walk in a squat or some other unnatural position; his head was covered with a black bag; handcuffs were not disinfected.

Until April 2005 the prisoners had been required to roll up their mattresses in the morning. During the daytime they had been prohibited from lying down on the beds.

In support of the above submissions, the applicant referred to the written statement of Mr Guk, which confirmed the procedure the prisoners had had to follow when the guards had opened the cell. It also stated that, when taken out of the cell, the prisoners had been handcuffed and escorted in a crouched position; a bag had often been put over a prisoner’s head. Sick and healthy prisoners washed in the same unit and walked in the same courtyard. Mattresses on the beds had to be rolled up during the daytime.

The applicant also stated that the administration had carried out searches of personal belongings, leaving them in disorder and often damaged; his watch had been stolen by an unidentified guard. Prisoners had not been provided with adequate medical assistance; they had been constantly ill-treated by the administration. In 2004-2005 the applicant had been regularly beaten by the guards. In 2004-2006 family visits had not been adequately organised. The applicant’s correspondence with relatives had been reviewed and a number of his letters had disappeared.

The Government stated that the washing unit had a changing room. Disinfection measures in the Colony had fully complied with the domestic standards. Prisoners with tuberculosis were detained in a separate cell; they washed after others, and the washing unit was disinfected afterwards.

Whenever the cell was opened, the prisoners were required to retreat to its far end, but not to squat. When escorted out of the cell, they were handcuffed, but not required to walk in a squat or with the head covered with a bag; handcuffs were in a proper condition and their disinfection was not required.

Searches were conducted pursuant to the relevant regulations, and there were no situations alleged by the applicant. Prisoners were not prohibited to use mattresses during the daytime.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicants were born in 1987 and 1986 and live in Gümüşhane and Erzincan respectively.

On 18 May 2007 the applicants participated in reading out a press statement in commemoration of İbrahim Kaypakkaya, the leader of the TKP/ML (Turkish Communist Party – Marxist/Leninist), who had died in 1973, allegedly under torture in police custody.

On 7 January 2008 the Erzurum public prosecutor initiated criminal proceedings against fifteen people, including the applicants, charging them with disseminating propaganda in favour of the TKP/ML, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, during the gathering, the second applicant had read out a press declaration containing statements praising the TKP/ML and İbrahim Kaypakkaya, and the following slogans had been chanted by the demonstrators: “İbrahim is our leader”, “Our struggle continues and shall continue”, “İbrahim Kaypakkaya is immortal”, “Down with the USA” and “We will drown fascism in the blood it has shed”. The group had also carried a banner which read “İbrahim Kaypakkaya is immortal – Partizan”.

On 31 March 2009 the Erzurum Assize Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment pursuant to section 7(2) of Law no. 3713. In its judgment, the assize court held that the applicants had disseminated propaganda in favour of the TKP/ML, given that the second applicant had read out the press statement and the first applicant had chanted slogans. The court based its judgment on a report prepared by an expert regarding a police video-recording of the public gathering in question.

Taking into account the applicants’ good behaviour during the trial and the fact that they had no previous criminal convictions, the court suspended pronouncement of the applicants’ conviction on the condition that they did not commit another intentional offence for a period of five years, under Article 231 of the Code of Criminal Procedure (hükmün açıklanmasının geri bırakılması).

The applicants filed an objection against the decision of 31 March 2009. In their petition, they stated that the first-instance court had erred in interpreting the facts and the law, and they asked to be acquitted of the charges against them. They further stated that their prosecution had constituted a breach of Article 10 of the Convention.

On 20 July 2009 the Diyarbakır Assize Court held that the application of Article 231 of the Code of Criminal Procedure in the case was in line with the domestic law, and rejected the applicants’ objection without examining the merits of the case. That decision was served on the applicants on 5 August 2009.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Jon Fridrik Kjølbro;Georges Ravarani;Ksenija Turković

The applicants were born in 1975 and 1976 respectively and are currently serving their prison sentence in the Tekirdağ Prison.

On 13 April 1998 the applicants were arrested on suspicion of membership of an illegal organisation. On 14 and 16 April 1998 respectively, the first applicant gave detailed police statements in the absence of a lawyer. On 15 April 1998, the second applicant was also interrogated by the police in the absence of a lawyer, and he used his right to remain silent.

On 19 April 1998 both applicants were examined at the Istanbul Forensic Medicine Institute. According to the medical report, there was no trace of ill-treatment on their bodies.

On the same day, still in the absence of a lawyer, the applicants were brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor and the investigating judge, both applicants gave statements, and the second applicant complained that he had been ill-treated in police custody. The investigating judge remanded the applicants in custody.

On 30 April 1998 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court and accused the applicants of carrying out activities for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code.

On 4 May 1998 the Istanbul State Security Court held a preparatory hearing. It decided that the applicants’ detention on remand should be continued. Between 6 July 1998 and 26 May 1999 the Istanbul State Security Court, composed of two civilian judges and a military judge, held seven more hearings. On 18 June 1999 the constitution was amended and the military judge sitting on the bench of the Istanbul State Security Court was replaced by a civilian judge. Thereafter, the court held twenty more hearings. During the hearings, the applicants alleged that they were ill-treated under police custody.

On 24 September 2003 the Istanbul State Security Court, which was composed of three civilian judges, found the applicants guilty as charged and sentenced them to life imprisonment under Article 125 of the Criminal Code. In convicting the applicants, the State Security Court had regard to the applicants’ statements to the police, the public prosecutor and the investigating judge respectively.

On 24 March 2004 the Court of Cassation upheld the judgment of the Istanbul State Security Court. This decision was deposited with the Registry of the first instance court on 22 April 2004.


CASE OF NICHIFOR v. THE REPUBLIC OF MOLDOVA

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

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicant was born in 1966 and lives in Chișinău.

The applicant was a shareholder in a limited liability company created in 2002 with a registered capital of 5,400 Moldovan lei (MDL) (the equivalent of some 396 euros (EUR)). At the time of the events he owned 50% of the company’s shares. The other half of the shares was owned by A.N.

On 13 January 2009 A.N. lodged an action with the Chişinău Economic Court seeking the applicant’s exclusion from the list of shareholders on the grounds, inter alia, that he had not paid for his part of the shares, that is to say he had only paid MDL 1,080 instead of MDL 2,700. The applicant objected, claiming that the action was time-barred: under the relevant law, it had to be introduced within three years of the creation of the company. The applicant also presented bank documents which showed that A.N. had not paid his part of the shares until September 2009.

On 14 March 2009 the Chişinău Economic Court dismissed the action against the applicant on the grounds that it was time-barred. A.N. appealed.

The hearings before the Economic Court of Appeal took place on five different dates: 30 April, 27 May, 2 June, 4 June and 9 June 2009. On 2 June 2009 A.N.’s representative submitted that the applicant had not paid his contribution and that he had been asked to do so every year since the creation of the company in 2002. When asked whether there were any minutes to confirm the contention that the applicant had been summoned to pay his contribution, he answered that he was not aware of any such minutes.

On 4 June 2009 A.N.’s representative presented for the first time minutes of a meeting of the company’s shareholders, which had allegedly taken place on 20 February 2007. The minutes showed that the applicant had admitted to not having paid for the totality of his shares and had pledged to pay within one month or lose his status as a shareholder in the company.

The applicant objected that the minutes in question had been forged. He argued, inter alia, that his first name had been spelt wrongly and that the signature was not his. He requested that an expert authentication of his signature be carried out. His request was not mentioned in the transcript of the hearing.

On 9 June 2009 the parties made their closing statements at the hearing before the Economic Court of Appeal. The applicant reiterated that the minutes of a shareholders’ meeting dated 20 February 2007 had been forged and requested that an expert authentication be carried out. A document containing his submissions was attached to the file.

On the same date the Economic Court of Appeal adopted a judgment in the case by which it upheld the appeal, reversed the judgment of the first-instance court and found in favour of A.N. In ruling on the case, the Court of Appeal relied entirely on the minutes of the shareholders’ meeting dated 20 February 2007.

Several days after the pronouncement of the judgment, the applicant had access to the case file and noted that the transcript of the hearing of 4 June 2009 did not contain a record of his request for an expert authentication of his signature. He made an official request to have the transcript corrected. However, on 17 June 2009 the Economic Court of Appeal rejected his request.

The applicant lodged an appeal on points of law with the Supreme Court of Justice claiming, inter alia, that the proceedings had been unfair because the Economic Court of Appeal had used as the main and sole piece of evidence in the ruling against him a forged document, namely the minutes of a shareholders’ meeting dated 20 February 2007. The Economic Court of Appeal had given decisive weight to that document in spite of his express statement that the signature on the document was not his. He had requested to have the document authenticated by an expert, but the court had rejected his request without giving any reasons. He stressed that A.N. had not relied on the minutes of 20 February 2007 either in his initial action or in his appeal against the judgment 14 March 2009. He had presented them for the first time during the fourth hearing before the Economic Court of Appeal. In support of his assertion that the minutes in question had been forged, the applicant submitted evidence that between 11 and 22 February 2007 he had been undergoing medical treatment in Israel and could not therefore have attended a shareholders’ meeting held on 20 February 2007. He presented documents issued by the Moldovan border authorities and Israeli stamps in his passport confirming his travel to Israel between the above-mentioned dates. He also reiterated his objection concerning the statute of limitations and urged the Supreme Court to quash the judgment of the Economic Court of Appeal and order a re-examination of the case.

In the proceedings before the Supreme Court of Justice, A.N. presented for the first time a copy of minutes of a meeting of the company’s shareholders which had allegedly taken place on 23 February 2007. In the new minutes the applicant was recorded as acknowledging that in the previous minutes dated 20 February 2007, the date had been wrongly indicated and that the correct date should have been 23 February 2007.

On 17 December 2009 the Supreme Court of Justice dismissed the applicant’s appeal on points of law, upholding the judgment of the Economic Court of Appeal. It did not respond to the applicant’s argument that A.N.’s action was time-barred or to the contention that the Economic Court of Appeal’s judgment had been based on a forged document. Nor did the Supreme Court respond to the applicant’s argument that the Economic Court of Appeal had rejected without any reasons his request for an expert authentication of the minutes of 20 February 2007. Instead, relying on the minutes of 20 February 2007, the Supreme Court concluded that the applicant had not paid the totality of his shares in the company. The Supreme Court did not mention the new minutes dated 23 February 2007 presented by A.N. in the proceedings before it.

On an unspecified date the applicant lodged a criminal complaint against A.N., alleging that he had forged the company shareholders’ minutes dated 20 February 2007. In the course of the criminal proceedings, an expert from the National Forensic Centre presented his report dated 7 August 2010, in which he concluded that the signature on the minutes of the company shareholders’ meeting dated 20 February 2007 did not belong to the applicant. The criminal proceedings are pending.


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicants complained about the excessive length of various criminal and civil proceedings (see the appendix to this judgment).

All the applicants obtained decisions by the Constitutional Court that found a violation of their right to a hearing within a reasonable time and awarded them various sums of money in respect of non-pecuniary damage (see appendix).