No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in 1969 and lives in Hamburg. He is the brother of the late Y.C., also a Gambian national, who was born in 1987 and applied for asylum in Austria in 2004.

On 4 April 2005, the Vienna Regional Criminal Court (Straflandesgericht) convicted Y.C. of drug trafficking and sentenced him to seven months’ imprisonment. Y.C. began serving his sentence at ViennaJosefstadt Prison (Strafvollzugsanstalt). On 2 May 2005 he was transferred to Linz Prison.

On 18 April 2005 the Vienna Federal Police Authority (Bundespolizeidirektion) dismissed Y.C.’s asylum application and ordered his expulsion to the Gambia. An appeal lodged by Y.C. was dismissed by the Vienna Federal Asylum Office (Bundesasylamt) on 6 June 2005. He did not appeal against this decision and it became legally binding on 5 July 2005.

On 8 September 2005 the Linz Federal Police Authority issued an order for Y.C. to be placed in detention with a view to his expulsion.

On 12 September 2005 Y.C. was conditionally released from prison and directly transferred to the Linz police detention centre (Polizeianhaltezentrum – hereinafter “the detention centre”).

Upon his admission to the detention centre, Y.C. was examined by a police doctor (Polizeiarzt), who noted that Y.C. was in a good general state and was fit for detention. His weight was recorded at 76.5 kg and his height at 170 cm. Communication between the authorities and Y.C. took place in English.

On 26 September 2005 the police doctor, while conducting a routine examination which all detainees have to undergo at two-week intervals, again noted that Y.C.’s state of health was good and recorded his weight at 70 kg.

On 27 September 2005 Y.C. went on hunger strike. On 28 September 2005 he informed the authorities thereof. Representatives of Human Rights Association Austria (Verein Menschenrechte Österreich), a non-governmental organisation (NGO) who had already been counselling him since the day of his admission to the detention centre, came to talk to him. On the same day Y.C. was subject to an initial hunger-strike examination (Hungerstreik-Eingangsuntersuchung). Y.C. was handed an information pamphlet on hunger strikes (in English) and was also orally informed by the public medical officer of the possible consequences of a hunger strike. A medical hunger-strike protocol (Hungerstreikprotokoll) was filled out, in which his state of health was described as follows:

“Musculature in a good, well-trained state, pronounced muscles of the upper arm, six-pack like someone who practices athletic sports, appears vital, overall.”

On the hunger-strike protocol it was noted that at the outset of his hunger strike, Y.C. had weighed 67 kg. On the basis of this, Y.C.’s “critical weight” was calculated at 54 kg (see paragraph 64 below). Under the heading “reasons given for hunger strike”, it was noted that Y.C. “absolutely wanted to be transferred back to cell no. 36”. He had been placed in a different cell because he and his cellmates had allegedly tried to escape from cell no. 36.

Daily health checks of Y.C. were subsequently carried out, during which his weight was checked, his blood pressure was taken and his oxygen saturation level was measured. Until 1 October 2005, no anomalies were detected.

On 2 October 2005 the public medical officer noted that Y.C.’s tongue was slightly dry, and on 3 October 2005 that his lips were “barky” (borkig). Further, there were occasional comments on the hunger-strike form to the effect that Y.C. resisted examination and was “malingering” (simuliert) – for example, he had “pretended to fall”, “refused to be examined”, “needed to be carried by other detainees”, and “tilted over from [his] chair in an ostentatious manner”.

After examining Y.C. during the morning of 4 October 2005, Dr F.G., the police doctor in charge, noted the following:

“Pretends to be weak, has to be physically supported by two detainees – therefore weight check not possible. Dry tongue, barky lips. I request a medical assessment by a specialist. Possibly blood test, ionogram.”

On 4 October 2005 at 9.30 a.m., Y.C. was taken to Linz General Hospital (Allgemeines Krankenhaus) for examination and an assessment of whether he was fit enough for further detention. Because Y.C. resisted the examination and kicked out at a nurse, his hands and feet had to be shackled by the police officers who had accompanied him to the hospital. According to a report drawn up by the treating doctor on 4 October 2005, it was “not possible to assess the intake of liquids”, “communication [was] difficult” because Y.C. did not speak German, he had “dry lips” and had his eyes “constantly closed”, but “walking [was] possible if [he was] supported”. The hospital further noted that if his general condition worsened, he would have to be force-fed and taken to a psychiatric ward, because he “lashed out from time to time”. Taking his blood for a blood test had been difficult and risky; nevertheless, with the support of the two police officers, who secured Y.C. in a chair in the examination room, the doctor nonetheless managed to take a small amount of blood. After consulting the senior doctor, the treating doctor formally confirmed Y.C.’s fitness for detention and noted the police doctor’s telephone number in order to contact him after obtaining the results of the blood test.

Y.C. was subsequently taken back to the detention centre and at around 11 a.m. was placed alone in a security cell (Sicherheitszelle) because of his behaviour at the hospital. His shackles were removed. The security cell did not contain a water outlet, but Y.C. could request a water bottle at any time. A police officer checked on Y.C. every fifteen to thirty minutes. At 12.30 p.m., Y.C., who was lying on the bed, reacted to the police officer’s presence by lifting his head. When the officer next checked, at 12.50 p.m., he was not breathing anymore and had no pulse. At 1.20 p.m. he was declared dead by an emergency doctor who had been immediately called to the scene. The presumed time of death was 12.40 p.m. His weight was recorded at 59 kg. At 1.42 p.m. the blood test results from the hospital examination (see paragraph 17 above) were produced. They indicated that Y.C. had been dehydrated and that he should have been hydrated intravenously and placed in intensive care.

In a report of 5 October 2005 the doctor from the hospital noted that Y.C. had been uncooperative during his examination. It had been virtually impossible to take a blood sample as the patient had resisted strongly. At that time nothing had indicated that Y.C.’s physical condition could become life-threatening. In a statement given on 14 October 2005 the doctor described Y.C. as not having been weak at all, rather, he had been physically strong and had steadily resisted treatment with all his might (nach Leibeskräften), using the whole of his body and kicking out with his legs. After examination of his tongue, pulse, respiration, heartbeat and skin, he had observed Y.C.’s dry lips, but had seen none of the other usual signs of dehydration or other abnormalities. He further stated that even as an experienced emergency unit doctor, a rapid and fatal development of Y.C.’s situation had not at all been foreseeable by him.

On 4 October 2005, the day of Y.C.’s death, the Linz public prosecutor’s office (Staatsanwaltschaft – hereinafter “the public prosecutor”) instituted a criminal investigation against “unknown offenders” and requested the Linz Regional Court (Landesgericht) to conduct a judicial investigation. The investigating judge ordered that an autopsy be conducted by a sworn and judicially certified expert (beeideter und gerichtlich zertifizierter Sachverständiger); the autopsy was conducted on 5 October 2005. On the same day, the investigating judge, in response to a request made by the public prosecutor, delivered a decision ordering the seizure of the blood samples taken from Y.C., together with the pertinent examination report.

On 5 October 2005 the Linz Federal Police Authority submitted a detailed report on the circumstances of Y.C.’s death.

On 6 October 2005 the public prosecutor requested the Office for Internal Affairs at the Ministry of the Interior (Büro für interne Angelegenheiten des Bundesministeriums für Inneres – hereinafter the “OIA”) for it to carry out an investigation. The request included that interviews be conducted with: the two police officers who had accompanied Y.C. to the hospital on the day of his death; the police doctor who had examined Y.C. on that day; the doctor at Linz General Hospital who had examined Y.C.; the police officers who had been checking on Y.C. when he was placed in the security cell; and Y.C.’s cellmate.

On 12 October 2005 the public prosecutor added to the case file a note regarding a telephone conversation between him and Dr H., the expert who had conducted the autopsy, regarding the preliminary findings of that autopsy.

The OIA subsequently conducted an investigation at the detention centre’s medical service, procured documents from the detention centre, and produced written records of the requested interviews (see paragraph 22 above). The OIA’s report was submitted to the public prosecutor on 18 October 2005.

On 24 October 2005 the investigating judge complied with a request lodged by the public prosecutor for the inclusion in the case file of the results of the investigation up until that date, as well as for Y.C.’s medical history to be obtained from the detention centre, and for these documents to be transmitted to the expert Dr H. It was further decided that the scale used to weigh Y.C. at the detention centre be seized and sent for technical examination.

On 5 November 2005 the OIA submitted a report containing the results of the supplementary investigation.

On 1 December 2005, after being supplied with all pertinent documents by the OIA, the Austrian Human Rights Advisory Board (Menschenrechtsbeirat – hereinafter “the Advisory Board” – an independent monitoring body established in 1999 at the Ministry of the Interior) issued a report on Y.C.’s death. In that report, the Advisory Board considered several points to be problematic: that Y.C., after his visit to Linz General Hospital on 4 October 2005, had been further monitored only by police officers, rather than by medical professionals; that no interpreter had been present during the said hospital visit; that a blood sample had been taken from Y.C. against his will; and that the calculation of Y.C.’s critical weight had been questionable. The issues of Y.C.’s possible dehydration and carrying sickle cell disease had not been addressed in the report, as it had been drawn up before the delivery of the final autopsy report by Dr H. (see paragraph 30 below).

On 12 December 2005 the applicant, who was represented by counsel, joined the criminal proceedings as a private party.

By an order of 14 December 2005 the investigating judge urged the expert to submit his report.

On 4 January 2006 Dr H., the forensic expert who had conducted the autopsy, submitted his final autopsy report (dated 5 October 2005), as well as his expert report on Y.C.’s death, to the Linz Regional Court. He stated in the autopsy report that Y.C.’s body had not shown signs of “significantly acute malnutrition”, nor had there been signs of “classic dehydration”.

In the more detailed expert report, Dr H. stated that Y.C.’s body had not shown signs of any injuries; therefore, death caused by the use of force could be excluded. Y.C. had been slim, but had not appeared malnourished. His body had weighed 59.3 kg; his height had been 171 cm. No typical external signs of dehydration had been visible, except for the lips appearing to be slightly dry. The results of the internal investigation had recorded a thickening of the blood, which indicated a possible alternation to the blood while Y.C. had still been alive caused by a lack of hydration. Dr H. noted that a hunger strike alone could not lead to a thickening of the blood, as long as enough fluids were consumed. As concerns the hunger strike, Dr H. stated that it was likely that Y.C. had not eaten solid food for several days, but that it was unlikely that he had engaged in a long-term total hunger strike as the large intestine had still been filled with an abundance of stool along its entire length.

Dr H. further stated that neither Y.C.’s external appearance nor the medical reports produced until 4 October 2005 had indicated a lifethreatening situation, although there had been a significant reduction in his weight. Rather, it was more likely that a shift in the electrolyte system had commenced over a period of several days, as indicated by the results of the blood test conducted by Linz General Hospital on 4 October 2005. A post-mortem examination of Y.C.’s blood (conducted in the course of the autopsy) had shown that he had been a carrier of sickle cell trait (Sichelzellanlage). Dr H. explained that sickle cell disease (Sichelzellenkrankheit) was an inherited red blood cell disorder; while red blood cells (containing normal haemoglobin) were disc-shaped, sickle haemoglobin could form stiff rods within the cell, changing it into a sickle shape. Dr H. added that the disease was rare among the white population, occurring mostly among black people. Unlike in the case of people suffering from sickle cell disease, in Y.C.’s blood the trait had been present in the heterozygous form, which is why the disease had remained undetected during his lifetime. In cases like Y.C.’s, symptoms of sickle cell disease only manifested themselves if there were further damaging external factors, such as dehydration or a lack of oxygen.

Dr H. concluded that the cause of Y.C.’s death had been dehydration, combined with the fact that he had been a carrier of sickle cell trait, which had caused a shift in the electrolyte system and had ultimately caused his heart to stop beating. Neither the authorities nor Y.C. himself had been aware that he had been a carrier of sickle cell trait. Dr H. stated that Y.C.’s death could only have been prevented if he had been tested earlier for sickle cell trait, or if he had been aware that he was a carrier thereof. However, the hunger-strike protocol had not indicated any necessity for a blood test in that respect. The test results from the hospital on the day of Y.C.’s death would have given reason for further tests. However, the results had only been produced after Y.C.’s death.

On 12 October 2005 the public prosecutor made a note in the criminal file (Aktenvermerk) about a conversation with Dr H. The doctor had expressed the opinion that with hindsight Y.C.’s extraordinarily aggressive behaviour at the hospital on the day of his death had resembled a delirious state caused by advanced dehydration and the consequent disintegration of his blood cells.

On 13 January 2006 the public prosecutor decided to discontinue the criminal investigation into the death of Y.C., as no sufficient evidence could be found to warrant criminal proceedings. The applicant was informed that he had the right to ask the Council Chamber (Ratskammer) of the Linz Regional Court to conduct a preliminary investigation. However, he was also informed that he would have to bear the full costs of the criminal proceedings should the Council Chamber grant his request but the proceedings did not result in a criminal conviction. This decision was served on the applicant’s counsel on 19 January 2006. The applicant did not request that a preliminary investigation be instituted.

On 2 March 2006 the applicant submitted the decision of 13 February 2006 issued by the Upper Austria Independent Administrative Panel (Unabhänigiger Verwaltungssenat Oberösterreich – hereinafter “the IAP”) (see paragraph 46 below) to the public prosecutor and requested him to investigate further. On 13 March 2006 the public prosecutor replied that the documents submitted had already been made available to him, but that they could not change his assessment of the procedural results obtained so far, since every aspect of the legal question to be answered had already been clarified by Dr H.’s autopsy report and his comprehensive expert report.

On 15 November 2005 the applicant requested the IAP to review the lawfulness of Y.C.’s detention (Schubhaftbeschwerde) and at the same time lodged a complaint about the conditions of his detention (Maßnahmenbeschwerde). He submitted in particular that Y.C. should not have continued to be kept in detention because he had no longer been fit to be detained on account of his hunger strike. As regards the conditions of Y.C.’s detention, he submitted that the medical treatment of Y.C. had not been in conformity with section 10(1) of the Detention Ordinance (Anhalteordnung – see paragraph 59 below). He furthermore claimed that his brother had been placed in a security cell, without access to water, on the day of his death, in contravention of section 5(5) of the Detention Ordinance.

On 13 February 2006 the competent member of the IAP held a hearing during which he examined as witnesses the applicant, a cellmate of Y.C., one of the police doctors who had examined Y.C. during his hunger strike, and the police officers who had been in charge of examining detainees on the day of Y.C.’s death.

Y.C.’s former cellmate, H.C., stated that they had gone on hunger strike together to protest the duration of their detention, and that they had not been treated correctly by the police officers; however, he did not specify how that treatment had not been correct. He said that he did not remember the exact day on which they had begun their hunger strike, but that they had not eaten or drunk anything at all for twelve days. H.C. stated that he had had the impression that Y.C. had been “terribly weak” during the three days before his death.

According to the witness statements by employees of the NGO Human Rights Association Austria who had visited Y.C. on several occasions, Y.C. had not raised any allegations of ill-treatment during their visits. In fact, with the exception of his former cellmate, all other witnesses who had been in contact with Y.C. until his death had also stated during the IAP hearing that he had not appeared to be ill or weak, but that on the contrary, even on the day of his death he had seemed athletic and strong; which had been corroborated by photographs taken of his dead body and its description by Dr H. in the autopsy report (see paragraph 30 above).

One of the police doctors, Dr F.G., gave evidence regarding, inter alia, the reason why the calculation of the critical weight of a detainee on hunger strike was based on his or her weight at the outset of the hunger strike, and not the weight recorded upon admission to the detention centre. He stated that detainees usually lost weight slightly during their detention, but that it was also possible for them to gain weight. He acknowledged that he had not even checked Y.C.’s initial weight, as the 65.5 kg recorded on the day after Y.C. had announced his hunger strike had in principle amounted to a normal weight, given his height. Dr F.G. furthermore stated that on 3 October 2005 Y.C. had walked into the examination room without support. One day later, Y.C. had showed signs of dehydration and had come to the examination room supported by two police officers. Dr F.G. stated that he had accordingly ordered him to be examined at the hospital.

H., the police officer who had accompanied Y.C. to and from the hospital on the day of his death, stated that the reason for Y.C.’s placement in solitary confinement had been that – following Y.C.’s behaviour at the hospital – he and the other officer in charge had feared that Y.C. might harm himself or others. H. confirmed that there had been no water outlet in the security cell, but that Y.C. could have requested a water bottle at any time by ringing a bell.

B., the police officer who had been in charge of checking on Y.C. while he was being held in the security cell, stated that he had received an order to do so every fifteen to thirty minutes. During the checks, he had had to make sure that the detainee reacted when spoken to. When B. had checked on Y.C. at 12.30 p.m., the latter had moved his head. At the next check at 12.50 p.m., he had showed no reaction and had subsequently been pronounced dead by the emergency doctor, who had immediately been called to the scene.

During the IAP hearing on 13 February 2006 the applicant presented an undated and unsigned three-page statement by Dr W.G., whom he had engaged himself and who was a general practitioner in Linz with a focus on nutritional medicine. Dr W.G, who had not examined Y.C.’s body, had based his report on the autopsy report and expert report issued by Dr H., the report of the OIA (see paragraph 24 above) and the report by Linz General Hospital, and had come to the following opinion. On 12 September 2005, the day on which Y.C. had been taken into detention with a view to his expulsion, he had weighed 76.5 kg. On 28 September 2005, the day on which Y.C. had announced that he was on hunger strike, he had had a body weight of only 67 kg. The police doctor had made a mistake in taking the latter as the normal weight of Y.C. for the purposes of calculating his critical body weight. The doctor had not taken into account the fact that Y.C. had already lost 9.5 kg between 12 and 28 September 2005, meaning that Y.C. must have already started his hunger strike before he had officially announced it. From 28 September until the day of his death on 4 October 2005, Y.C. had lost a further 8 kg in body weight. However, the doctor had used Y.C.’s weight on 28 September (namely 67 kg) as a starting point, and had established his critical weight as 54 kg, which in Dr W.G.’s view was incorrect. The police doctor should have based his calculations on how much Y.C. had weighed when he had arrived at the detention centre. If he had, the correct critical weight would have been determined at 67 kg, minus 10%. Instead, Y.C. at the time of his death had already lost approximately 18% of his weight in fluids. For an adult person a loss of even 10% in fluids constituted a life-threatening situation. Dr W.G. assumed that Y.C. had died of dehydration resulting from the erroneous calculation of his body weight. He did not deal with the question of how far the sickle cell trait present in Y.C.’s blood had played a role in his death, nor did he provide any scientific source for his calculations. Dr W.G.’s opinion was later not supported by any of the official experts.

The applicant asked the IAP that the second police doctor in charge at the detention centre on the day of Y.C.’s death be questioned, and that another expert report be obtained in order to refute the expert report issued by Dr H. (see paragraphs 30-33 above). The IAP refused these requests.

The IAP, at the end of the hearing of 13 February 2006, ruled that Y.C.’s detention pending his expulsion had been unlawful and that the conditions of detention during his hunger strike had violated Y.C.’s right under Article 3 of the Convention to protection against ill-treatment. Concerning the cause of Y.C.’s death, the IAP reiterated the findings of the autopsy report and the expert report attached thereto (see paragraphs 30-33 above). The IAP argued that the State authorities had not fulfilled their role of guarantor of the applicant’s rights under Articles 3 and 5 of the Convention. It found that given the frequency of sickle cell disease among people from sub-Saharan Africa, the State was under an obligation to offer a test for sickle cell disease to all detainees from that specific geographic area, and in particular to those on hunger strike.

The Ministry of the Interior appealed against that decision.

On 30 August 2007, the Administrative Court quashed the IAP’s decision. It held that the applicant had no locus standi regarding the request for a review of the lawfulness of the detention of his brother because rights under Article 5 of the Convention were not transferable to other persons. Therefore, the IAP had not had authority to issue a decision in that respect. Concerning the complaint under Article 3 of the Convention, it held that the mere fact that a person was detained did not place any duty on the State to take measures (the need for which had not necessarily been foreseeable) because of the genetic disposition of that person without a manifest outbreak of disease in that person. Moreover, it found that the IAP had not respected certain procedural requirements, which is why the Administrative Court referred the case back to the IAP.

On 1 April 2008 the applicant lodged an application with the European Court of Human Rights concerning the above-mentioned judgment of the Administrative Court; it was registered as Ceesay v. Austria (no. 17208/08). Thereupon, the IAP decided to suspend the fresh proceedings until such time as the Court rendered its decision in respect of this complaint.

On 21 May 2010 the Court declared application no. 17208/08 inadmissible, pursuant to Article 35 §§ 1 and 4 of the Convention, as the proceedings were still pending before the IAP and the complaints lodged by the applicant with the Court were therefore premature.

The IAP resumed the proceedings and on 11 June 2010 again issued a decision finding a violation of Article 3 of the Convention in respect of the conditions of Y.C.’s detention. It essentially reiterated the reasoning contained in its previous decision, explaining that the proceedings were not aimed at identifying an individual who could be held culpable for Y.C.’s death but at identifying errors inherent in the detention system – specifically, the lack of a standardised test for sickle cell disease for certain high-risk groups and the lack of clear instructions for the staff of the detention centre concerning detainees on hunger strike.

The Ministry of the Interior again lodged a complaint, arguing that there had been sufficient rules and instructions in place concerning the treatment of detainees. In the present case, there had not been any indications that Y.C. had suffered from sickle cell disease. Not even hospitals conducted standardised tests for this blood anomaly where there was no concrete suspicion in that respect. It added that the death of Y.C. had nonetheless prompted the Ministry of the Interior to issue a directive to detention centre authorities instructing them to (i) inform detainees who were on hunger strike and who belonged to a high-risk group of the possible consequences of sickle cell disease, and (ii) conduct the necessary tests.

On 20 October 2011 the Administrative Court again quashed the IAP’s decision. It reminded the IAP that it was bound by the legal interpretation that the Administrative Court had expressed in its previous judgment concerning the obligations of the State under Article 3 of the Convention towards detainees (see paragraph 48 above). Moreover, it suggested that the IAP order an expert report in order to determine whether the reduced mental and physical condition of Y.C. should have given rise to an investigation into the possibility that he had been suffering from sickle cell disease and whether appropriate medical treatment from that moment onwards could have prevented the death of Y.C.

During the course of the new round of proceedings, the IAP ordered an expert report, as suggested by the Administrative Court. In a report dated 19 May 2012, as well as during the hearing of 21 June 2012, the expert in question, Dr L., confirmed that according to his findings, Y.C. had been a sickle cell trait carrier. He added that this was the case in respect of 30% of the population of countries in sub-Saharan Africa, such as the Gambia (where Y.C. had been from), and that this trait served as a protection from Malaria. The fact that a person was a carrier of sickle cell trait did not mean that he or she was ill or had a lower life expectancy. Nonetheless he or she would face a higher risk of death in the event of engaging in strenuous activities (anstrengungsassoziierte Todesfälle), and the trait could also cause rapid dehydration in the event of reduced liquid intake. Dr L. explained that sickle cell disease could only be detected through an analysis of blood samples, but that the need for such an analysis had at no point been clearly indicated in Y.C.’s case, even in the light of his reduced mental and physical condition.

The applicant submitted the same unsigned statement that he had already submitted during the hearing of 13 February 2006 (see paragraph 44 above). He did not submit any further requests. When the expert Dr L. was questioned by the IAP regarding the calculation of Y.C.’s critical weight, he stated that he was inclined to believe that Y.C.’s weight had been correctly calculated, but that that calculation had been wrongly recorded. In his opinion, it was unlikely that Y.C. could have lost 9 kg over the course of a sixteen-day hunger strike.

On 13 July 2012 the IAP dismissed the applicant’s complaint about the conditions of Y.C.’s detention, basing its decision on the finding contained in the expert report of Dr L. (see paragraph 54 above) that the need for an analysis of Y.C.’s blood in respect of sickle cell trait had not been indicated. It reiterated that according to the Administrative Court’s legal interpretation, by which it was bound, the State had no duty to take measures the need for which had not been foreseeable in respect of a person because of a certain genetic disposition without a manifest outbreak of the disease in that person. Therefore, the authorities’ conduct had not constituted a violation of Article 3.

The applicant lodged a complaint with the Constitutional Court, which was dismissed on 22 November 2013.

On 25 April 2014 the applicant lodged a complaint with the Administrative Court, which, referring to its decisions of 30 August 2007 and 20 October 2011, dismissed it. This decision was served on the applicant on 16 May 2014.


No 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;Ganna Yudkivska;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1940 and lives in Plungė.

The father of the applicant’s husband owned 9.24 hectares of land in Telšiai region. This plot was nationalised in 1940.

In 1991 the brother of the applicant’s husband applied to the national authorities for the land to be returned to him and his brothers. In 1993 the three brothers signed an agreement and decided to divide their father’s plot of land into three equal parts of 3.08 hectares and V.V., the applicant’s husband, asked for the return of his plot of land in natura.

In November 1999 V.V. participated in a meeting at the Plungė District Land Service of the Telšiai County Administration (hereinafter “the Plungė District Land Service”), where he was informed that all of his father’s land was already being used by others and could not be returned to him in natura. He was offered either monetary compensation, the restoration of his property rights in another cadastral area or a plot of land of equivalent value. V.V. did not agree to any of those offers.

In January 2000 the the Plungė District Land Service asked V.V. to choose the form of restitution of his property rights. V.V. replied that he had already chosen the form of restitution in 1991, which was restitution in natura.

In April 2002 a meeting was held at the Plungė District Land Service, where V.V. again refused to choose a different form of restitution. V.V. was also offered two plots of land of 2.5 and 0.5 hectares. He stated that he would have to think about the offer and would inform the authorities before 1 May 2002.

During a meeting at the Plungė District Land Service in May 2002, V.V. said that he had not been offered any other forms of restitution in writing but acknowledged that the matter had been discussed orally. During a meeting in June 2002, V.V. reiterated his wish to receive the land in natura and when he was asked to choose another form of restitution, he said that he would think about it.

In July 2003 the Plungė District Land Service informed V.V. that because it was impossible to restore his property rights in natura, he had to choose either a plot of land or forest of equivalent value, monetary compensation or compensation in Government bonds. V.V. was also informed that if a form of restitution was not chosen, the property rights would be restored in the form determined by the authorities.

In November 2003 V.V. was invited to participate in a meeting at the the Plungė District Land Service, concerning the territorial plan of the area and the choice of the form of restitution. V.V. did not take part in the meeting.

In May 2005 V.V. asked the authorities whether and when he would be paid damages for the failure to restore his property rights in natura or to provide him with a plot of land of equivalent value. He also suggested that the Lithuanian authorities find out what “a plot of land of equivalent value” meant because the plots offered to him had not been of equivalent value („ir būtų gerai, kad žemėtvarkininkai išsiaiškintų žodžio „lygiavertis“ prasmę ir nesiūlytų įstatymo nuostatų neatitinkančių variantų“). In June 2005 the Plungė District Land Service asked V.V. to submit a written request to obtain a plot of land of equivalent value so that the authorities could prepare a document on the transfer of the land. V.V. replied that he had never been offered any plots of land of equivalent value and would only accept the restoration of his property rights in natura or a plot of land that was truly of equivalent value. V.V. also again refused the plots of land offered to him, stating that they were not of equivalent value. In July 2005 the authorities asked V.V. to choose a form of compensation for the land. He again replied that he had chosen that the land be returned to him in natura in 1991. In August 2005 V.V. reminded the authorities that he wanted the land to be returned in natura or to receive a plot of land of equivalent value.

In October 2005 V.V.’s representative participated in a meeting at the Plungė District Land Service, where she was asked to inform the authorities which land V.V. wanted in order to restore his property rights. Two plots of land were shown to the representative and the next day she replied that she refused to accept them. In November 2005 she was informed that because V.V. and she had refused to accept the plots of land, she had to inform the authorities before 1 December 2005 whether V.V. wanted monetary compensation or compensation in Government bonds as the form of restitution. She was also informed that if no response was received, the authorities would choose the form of restitution themselves.

On 14 November 2005 V.V. died and the applicant became his heir. In April 2006 the Plungė District Land Service informed the applicant that she had to submit a written request to the authorities for the preparation of a document on the transfer of land and to actively choose a plot of land. The applicant replied that she would not submit any request if the land was not returned to her in natura or a plot of equivalent value was not provided.

In October 2006 the applicant sent two letters to the Plungė District Land Service and stated that she would accept a plot of land of equivalent value if such a plot was given to her and a preliminary agreement was prepared on the transfer of such a plot. She also refused to agree to a document on the transfer of land and repeatedly asked to have her property rights restored in natura or to be provided with a plot of land of equal value.

In November 2006 the Plungė District Land Service informed the applicant about the procedure for the assessment of the value of land and the calculation methods used, and asked the applicant to agree with the assessment. In December 2006 the Plungė District Land Service informed the applicant that in order to provide her with a plot of land, the authorities had to prepare a document on the transfer of land. The Plungė District Land Service also observed that there was no possibility to conclude the preliminary agreement requested by the applicant because it was not provided for in the domestic law. The Plungė District Land Service repeated that the document on a transfer of the land had already been prepared and the applicant had to sign it and indicate the area where she would like to receive a plot of land of equivalent value. In February 2007 the Plungė District Land Service informed the applicant about the procedure for restitution and reiterated that the applicant had to sign the document on the transfer of land. In May 2007 the applicant asked the authorities when the issue of the restoration of V.V.’s property rights in natura or by providing her a plot of land of equivalent value would be dealt with. In June and July 2007 the Plungė District Land Service repeatedly informed the applicant that she had to sign the document. The Plungė District Land Service also informed the applicant that it was not possible to provide her with the plot of land first. In response, the applicant stated that she would sign the land transfer document after she had been shown a plot of equivalent value.

In August 2007 during a meeting at the Plungė District Land Service it had been decided to include V.V.’s request to restore his property rights into the preparation of an additional territorial plan of the area. In November 2007 the Plungė District Land Service established that because the applicant had refused to clearly indicate the form of restitution, she would be paid monetary compensation for the land. It gave the applicant ten working days to change the suggested form of restitution.

The applicant repeatedly did not choose the form of restitution for the land by the time indicated by the authorities, which is by 7 May 2008, and on 13 May 2008 a decision was taken to restore V.V.’s property rights by paying monetary compensation of 3,437 Lithuanian litai (LTL, approximately 995 euros (EUR)). The compensation was then adjusted (indeksuota) and the final sum to be paid was LTL 5,499 (approximately EUR 1,593). The national authorities indicated V.V. as the person to whom the compensation had to be paid. The applicant was sent the decision on 28 May 2008. In their observations, the Government provided a document to the Court, indicating that the compensation had been paid on 2 December 2008 and 31 December 2008.

In June 2008 the applicant started court proceedings. She asked the court to annul the authorities’ decision of 13 May 2008 to restore V.V.’s property rights by paying him monetary compensation and to pay her LTL 3,000 (approximately EUR 869) in respect of pecuniary and nonpecuniary damage. She stated that she wanted the land to be returned in natura or to be provided with a plot of land of equivalent value and she did not understand why the authorities kept asking her to make a new choice on the form of restitution each year. She further asked the authorities to explain why there had been no activity from 1993 to 1999 in the process of the restitution of her property rights. Finally, she complained that compensation calculated at LTL 3,437 (approximately EUR 995) was too low.

On 29 September 2008 the Šiauliai Regional Administrative Court established that in 1991 V.V. had asked for his property rights to be restored by being given 3.08 hectares of land in natura and that that had been a proper expression of his will. As the land in question was already being used by other people, V.V. and later the applicant had been asked to choose another form of restitution. However, they had never expressly done so. Moreover, the court held that the applicant had never changed the original wish to have the land returned in natura because she had refused to agree to the document on the transfer of land, which would have allowed her to have a plot of equivalent value returned to her. As a consequence, and in accordance with the domestic law, the national authorities had chosen monetary compensation as the form of restitution, which had not breached any requirements of the domestic law. As for damages, the court held that the authorities had acted correctly and the necessary conditions to pay damages had not been satisfied.

In October 2008 the applicant lodged an appeal. She complained that she had chosen the form of restitution because she wanted land of equal value to be returned to her in natura. She also stated that if her choice had been unclear to the authorities, they should have taken action to clarify it. She further complained that the monetary compensation was unjust and too low.

On 21 September 2009 the Supreme Administrative Court dismissed the applicant’s appeal. The court stated that V.V. had expressed a wish for his property rights to be restored to him in natura. The court also established that V.V. had been aware of the fact that there was no possibility of returning the land to him in natura because it was already being used by other people. V.V. had been asked several times by the national authorities to choose another form of restitution but he had insisted on restitution in natura. The court held that the national authorities had failed to inform V.V. about the time-limit for choosing the form of restitution, as the domestic law provided for such information to be sent before 1 March 2003 and the letter had only been sent to V.V. on 27 March 2003. The court however observed that that circumstance was not of major significance because V.V. had written on 1 March 2003 that he would never change his mind about the form of restitution. After V.V. had died, the applicant had been asked to choose the form of restitution but had persisted in asking to have the land returned to her in natura or to be provided with a plot of equivalent value. The court also held that the applicant had misinterpreted the provisions of the domestic law because she had required that she be provided with a plot of land of equivalent value and a preliminary agreement, and had stated that only then would she sign a document on the transfer of land. That had been contrary to the procedure established in the domestic law. The court also considered that although at some point the applicant had indicated that providing her with a plot of land of equivalent value was an alternative way to restore her property rights, she had tied that form to her own rules and requirements, which were not possible under the domestic law. The court further observed that the national authorities had decided to pay the applicant monetary compensation as the form of restitution. Lastly, the court held that the applicant’s argument as to the amount of compensation was unsubstantiated because she had not provided specific arguments proving that the amount of compensation had been determined in breach of domestic requirements.

On 12 September 2016 the applicant started court proceedings for debt and interest over the failure of the national authorities to pay her monetary compensation.

In reply to the request by the authorities, on 29 September 2016 the notary dealing with the inheritance procedure for V.V.’s property stated that after V.V.’s death she had issued the applicant with certificates of the right to inheritance with regard to movable and immovable property. However, she had not issued the applicant with the document allowing the applicant to get the monetary compensation paid to V.V. because the applicant had not provided her with the decision of the national authorities of 13 May 2008 to restore V.V.’s property rights.

In their comments to the applicant’s reply to the Government’s observations, the Government acknowledged that the monetary compensation had never been transferred to the applicant “due to human error”. The national authorities could not transfer the monetary compensation to the applicant because of the absence of the document proving that she was an heir of V.V. and the absence of the applicant’s account number. The applicant submitted the relevant documents together with her account number and the compensation was transferred to her account on 14 November 2016.


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

The applicants in the first case, Ms Maria Woźniak and Mr Eugeniusz Woźniak, are Polish nationals, who were born in 1932 and 1925 respectively and live in Rybno.

The applicants in the second case, Mr Stanislaw Chruśliński and Ms Janina Powodzińska, are Polish nationals, who were born in 1949 and 1952 respectively and live in Łódź.

In the past decades road construction projects were often carried out in Poland on privately owned plots of land which were de facto taken over for that purpose by the authorities despite de fact that the ownership of those plots had not been validly transferred to the State or other public bodies.

In 1998 the legislator adopted a statute specifically addressing the situation of persons whose lands had in the past been taken over for road construction purposes; in particular with a view to bringing their legal status into line with the realities of the present day and to ensure payment of compensation to former owners or their legal successors (see Relevant domestic law, paragraphs 20-23 below).

The facts of the cases, as submitted by the applicants, may be summarised as follows.

On an unspecified point in time part of the applicants’ land was taken over by the State and a road was built on it.

By virtue of the Sochaczew City Council resolution dated 25 March 1997 the road which crossed through the applicants’ property was classified as a local town road (droga lokalna miejska).

On an unspecified date the Mazowiecki Governor (Wojewoda Mazowiecki), acting ex officio, instituted proceedings concerning the land taken over from the applicants.

On 2 July 2009 the Governor (Wojewoda Mazowiecki) issued a decision confirming the acquisition ex lege by the municipality with effect from 1 January 1999 of the part of the property covered by the road. This decision was based on section 73 (1) of the Act of 13 October 1998 – the Public Administration Reform (Introductory Provisions) Act, hereinafter the Introductory Provisions Act 1998 (Ustawa -przepisy wprowadząjace ustawy reformujące administrację publiczną), regulating the status of properties taken over in the past by the State for the purposes of constructing public roads (see Relevant domestic law below, paragraph 21). Under this Act, owners whose land had ex lege become the State’s or local municipalities’ property on 1 January 1999 under its section 73(1), were entitled to request compensation if they applied for it between 1 January 2001 and 31 December 2005. On the latter date the period for submitting the compensation claim would expire.

On 14 August 2009 the applicants requested compensation for the land to which the decision of 2 July 2009 pertained.

On 28 September 2009 the Mayor of the Sochaczew District discontinued the proceedings for compensation, finding that the applicants’ request for compensation had been lodged after the period for submitting their claim had expired. The applicants appealed.

On 3 December 2009 the Mazowiecki Governor quashed the decision of 28 September 2009 in so far as it had discontinued the proceedings and refused to allow the applicants’ request for compensation, finding that the period for submitting their claim had expired on 31 December 2005.

On 10 November 2010 the Warsaw Regional Administrative Court dismissed the applicants’ appeal, considering that they should have sought compensation prior to 31 December 2005. The judgment was served on the applicants’ lawyer on 27 January 2011.

On 27 February 2011 the lawyer informed the applicants that there were no grounds on which to bring a cassation appeal before the Supreme Administrative Court as their entitlement to claim compensation claim had been extinguished under the provisions of the Introductory Provisions Act 1998. It followed that the cassation appeal would not have offered any prospects of success.

On 1 March 2007 the Łódź Regional Office informed the applicants that administrative proceedings had been instituted ex officio with a view to giving a decision confirming the ex lege expropriation with effect from 1 January 1999 of land taken from them prior to 1989 for road construction purposes.

On 13 March 2007 the applicants requested that compensation be paid to them.

On 2 July 2009 the Łódź Governor (Wojewoda Łódzki) issued a decision confirming the acquisition ex lege by the municipality with effect from 1 January 1999 of the land covered by the road. It was based on section 73 (1) of the Introductory Provisions Act of 13 October 1998

On 2 July 2008 the Łódź County Sheriff (Starosta) refused to pay compensation to the applicants, referring to section 73 (4) of the 1998 Act. The applicants appealed, relying on the constitutional protection of their right to the peaceful enjoyment of their possessions. They argued that the authorities had failed to deal with their case speedily, since the proceedings to confirm expropriation had not been instituted until 2006, eight years after the Introductory Provisions Act 1998 had entered into force. As a result, they had been deprived of their entitlement to compensation. Had the authorities instituted the proceedings before the relevant expiry date, the applicants would not have lost their entitlement. They referred in particular to their advanced age and to the fact that the second applicant was in poor health, which made it extremely difficult for her to take the relevant steps, in particular in the absence of any information about her legal situation.

On 25 May 2009 the Łódź Governor dismissed their appeal. The applicants appealed to the Regional Administrative Court. On 27 October 2009 the Łódź Regional Administrative Court stayed the proceedings, pending the outcome of the case No. K 20/09 instituted by the Ombudsperson which was at that time being examined by the Constitutional Court (see below, Relevant domestic law).

The proceedings were resumed at a later date. By a judgment of 24 August 2011 served on the applicants on 12 September 2011 the administrative court dismissed their appeal, referring to section 73(4) of the Introductory Provisions Act and to the judgments of the Constitutional Court (see paragraphs 27-33 below). It held that the period for submitting the compensation claim had expired in accordance with the terms specified in the Act.

As well as introducing general reforms to public administration, the Public Administration Reform (Introductory Provisions) Act 1998 of 13 October (Przepisy wprowadzające ustawy reformujące administrację publiczną) regulated the legal status of land taken over in the past for the purposes of road construction without a formal transfer of ownership of the land.

Section 73(1) of that Act conferred ex lege on the State Treasury or on the relevant local municipality ownership of such lands with effect from 1 January 1999 based on de facto possession. It further stipulated that the former owners had a right to compensation.

Section 73(4) of the 1998 Act provided that the former owners could submit compensation claims to the administrative authorities between 1 January 2001 and 31 December 2005. After 31 December 2005 the compensation claim had to expire. The original wording of this provision referred to a future statute which would govern the principles and procedures for the determination of the compensation to be awarded. It was amended in 2000 and the general reference to a “separate Act” therein was replaced by the specific reference to the Land Administration Act 1997 (see paragraphs 24-26 below).

The Act was published in the Journal of Laws of the Republic of Poland in 1998, no. 133, as item no. 872. It entered into force on the day of its publication, 29 October 1998.

On 1 January 1998 the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the Land Administration Act”) entered into force. It provides a generally applicable legal framework for expropriations. Although some of its provisions were modified in recent years, the substance of the provisions relevant to the present case remained unchanged.

In accordance with section 128 § 1 of the Act, compensation for expropriation has to correspond to the value of the property right concerned. Under section 130 § 1 of the Act, the amount of compensation is fixed regard being had to the status and value of the property on the day on which the expropriation decision was given. The value of the property is estimated on the basis of an opinion prepared by a certified expert.

Section 134 of the Act provides for the market value of the expropriated property to serve as a basis on which the amount of compensation is fixed. The following criteria are to be taken into consideration when establishing the market value of the property: its type, location, the use to which it has been put, the existence of any technical infrastructure on the property, its overall state and current prices of properties in the municipality.

In its judgment of 14 March 2000 (P 5/99) the Constitutional Court declared the section 73 (1) and 73 (5) of Introductory Provisions Act 1998 compatible with the Polish Constitution as well as with the Article 1 of the Protocol No. 1 to the Convention. It discontinued the proceedings in respect of the section 73(4) of Introductory Provisions Act 1998.

The court stressed that the legislator intended to regulate in a general manner the question of land ownership in a domain of particular public importance. Sections 73 (1) and 73 (5) of Introductory Provisions Act 1998 concerned plots taken over during several decades for the purpose of road construction. The de facto taking of land and construction of roads created irreversible situations. The contested provisions pertained only to past situations and did not allow any further taking over of plots. The legislation under review served not only the public interest but also the interests of owners. It ended the state of uncertainty caused by the fact that they had not been able to exercise their ownership. The ex lege effect of the provisions was a rational solution which made it possible to bring the legal status of the plots into line with the realities.

In its judgment of 20 July 2004 (SK 11/02) the Constitutional Court declared section 73(4) of Introductory Provisions Act 1998 compatible with the Polish Constitution. The court stressed that Section 73 of Introductory Provisions Act 1998 concerned plots whose legal status did not reflect their actual situation existing for long periods of time, lasting for up to fifty years. The Constitutional Court emphasised that the owners concerned had in the past a possibility of asserting their rights but had failed to do so within the applicable time-limits.

The legislation vesting ownership of properties in the State Treasury or local municipalities by way of the 1998 Act was a one-off and exceptional solution the effects of which were limited in time. It concerned only land taken over for the purposes of road construction. It required special measures to be applied, partially departing from those envisaged by the Land Administration Act 1997. The solution consisting in assessing ex officio the status of all the plots concerned and issuing ex officio individual decisions confirming expropriation ex lege in each and every case could have not been carried out within a reasonable time.

The court observed that the special provisions created by the Introductory Provisions Act 1998 imposed certain limitations on the compensation paid to the owners whose lands had been in the past de facto expropriated for road construction purposes. These limitations included their inability to request compensation before 2001; a limitation on the period within which such applications could be made until 31 December 2005; a failure to specify exactly when compensation had to be paid to the person entitled; and a failure to take into account changes to the value of the property between the date ownership was formally transferred by way of a decision confirming the ex lege expropriation and the date the compensation was decided. However, the context and character of the set of measures created by section 73 of the 1998 Act justified these restrictions.

On 15 September 2009 the Constitutional Court gave a judgment (33/07) in reply to legal question put to it by the Gliwice Regional Administrative Court. That court requested the Constitutional Court to make an assessment of compatibility of section 73(4) of the 1998 Act with the Constitution in so far as this provision allowed for a compensation entitlement to be irrevocably extinguished regardless of whether an administrative decision confirming the acquisition ex lege, as from 1 January 1999, of land used for road construction purposes by the municipality (or the State Treasury) had been given. The Constitutional Court noted that proceedings concerning such decisions were governed by the generally applicable provisions of the Code of Administrative Procedure. Former owners were parties to these proceedings. The decisions confirming that the municipality or the State Treasury, as the case might be, had acquired ownership of properties taken de facto over by the State in the past were of a declaratory character. The fact that the 1998 Act did not provide for a time-limit for the authorities to give such decisions did not mean that it was impossible in law for former owners to claim compensation in absence of these decisions. These decisions were not a legal prerequisite for claiming compensation prior to the expiry of the substantive time-limit provided for by that Act, namely 31 December 2005. If a request for compensation was submitted in the absence of a decision, the compensation proceedings should be stayed. The authority to which the compensation request was submitted was obliged to request the governor to give a decision confirming the expropriation ex lege as from 1 January 1999, after which the compensation proceedings had to be resumed. The Constitutional Court referred to the practice of the administrative authorities, established by the courts (the Supreme Administrative Court, I OSK 260/08, 2 February 2008; the Warsaw Regional Administrative Court, I SA/Wa 1/06, 14 June 2006 and I SA/Wa 681/07, 10 July 2007).

The court observed that the request for compensation under Section 73 the 1998 Act was in principle a second opportunity for owners to seek compensation as they could have claimed it in the past when their land had been taken for the road construction purposes.

On 30 November 2009 the Ombudsman challenged the constitutionality of the section 73(4) of the 1998 Act, submitting that it breached the proportionality principle enshrined in the Constitution by introducing an unclear and unconstitutional notion of “equitable” (słuszne) compensation, differing from that used for ordinary compensation purposes in the 1997 Land Administration Act. It was also in breach of the constitutional protection of the right to the peaceful enjoyment of possessions, as the compensation entitlement had irrevocably ceased to exist on 31 December 2005. It was further submitted that the period for submitting a compensation claim should not have been allowed to expire before the administration had given an expropriation decision. No provision was made in the 1998 Act obliging the authorities to issue the expropriation decisions prior to 31 December 2005, which rendered that regulation manifestly unfair (“regulacja pozorna”) and deprived owners of a reasonable protection of their rights.

In its judgment of 19 May 2011 (K 20/09) the Constitutional Court dismissed the Ombudsman’s challenge. It essentially rephrased its own reasoning adopted in 2004 and reiterated that the former owners had had ample time to take appropriate steps to obtain compensation; initially two years of vacatio legis after the 1998 Act had entered into force and, subsequently, five years within which to seek compensation. It had been possible for them to secure their rights by demonstrating adequate diligence.

In a number of decisions the courts held that the decisions given under the Introductory Provisions 1998 Act confirming acquisition ex lege of the land by the municipalities (or by the State Treasury) on 1 January 1999 were of a declaratory character. The courts also held that the fact that such a decision had not been issued did not prevent the persons concerned from claiming compensation under the provisions of that Act (see e.g. the Warsaw Regional Administrative Court, I SA/WA 694/09, 21 October 2009; the Poznań Regional Administrative Court, II SA/Po 558/90, 15 January 2009 and the Supreme Court, resolution III CZP 77/02, 21 January 2003).


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants, Mrs Dimitrina Yoncheva Lazarova, Mr Yordan Ivanov Lazarov and Mr Ivan Yordanov Lazarov, are Bulgarian nationals who were born in 1946, 1949 and 1969 respectively and live in Veliko Tarnovo. They were represented before the Court by Ms A. Mircheva, a lawyer practising in Sofia, and Ms L. Nelson and Ms A. Tamamović from the Mental Disability Advocacy Center in Budapest, Hungary. The applicants stated that they were also submitting the application on behalf of their relative Ms Valya Yordanova Lazarova, who had died on an unspecified date at the beginning of 2007.

The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice.

In 1992 Valya Lazarova, who was the daughter of the first and second applicants and the sister of the third applicant, and was born in 1974, was diagnosed with schizophrenia. In December 1998 she was declared mentally incapable by the Veliko Tarnovo Regional Court and was deprived of legal capacity. No guardian was appointed as it was decided that she would be represented by her parents.

As Valya’s state of health deteriorated, on 6 June 1998 the family placed her in an institution, the Social Care Home for Mentally Ill Adults in the village of Radovtsi (hereafter referred to as “the Radovtsi Home”). The home was financed by the State and managed by the mayor of the Dryanovo municipality.

An inspection by the Social Assistance Agency carried out in October 2006 established that the Radovtsi Home housed 114 mentally ill patients at the time. The building was in a poor state of repair due to the lack of funds to carry out renovation work.

The inspectors also established that during the day twenty inmates of the home whose state of health was especially poor were kept in a locked room, known as the “room for special care”. The inspectors recommended the closure of the room, which was implemented on 1 November 2006. After that date the inmates were allowed to move around freely within the building, the doors of which nevertheless remained locked. The yard outside, occupying an area of about 6,000 square metres, was enclosed by a wire fence. Even though on some occasions inmates managed to leave the home, they always returned promptly.

At around 11.30 a.m. on 3 January 2007 a member of the staff of the Radovtsi Home administered a medication with a sedative and tranquilising effect to Ms Lazarova. Sometime later, around lunchtime, Ms Lazarova could not be found. Another inmate had seen her shortly beforehand, when Ms Lazarova had said that she was very hungry and was going to look for a friend of hers in the village. The gates had been open.

At about 12.15 p.m. the staff informed the director of the home of Ms Lazarova’s disappearance. They conducted a search of the area: on foot in the vicinity of the building and by vehicle in the neighbouring villages. They checked abandoned and derelict buildings. It had been snowing, but as the roads had just been cleaned, there were no footprints. It appears that the search may have been suspended at nightfall, although some documents indicate that it continued until 10.30 p.m. The search was resumed the next day. Oral contact with the police was established at around 1.30 p.m. on 3 January, and written contact on 4 January 2007, when Ms Lazarova was officially declared missing. The staff of the home and the police questioned the inhabitants of the neighbouring villages, some of whom said that they had seen a woman they did not know. However, Ms Lazarova was not found when the locations concerned were visited and searched. The search continued over the following days but did not yield any result.

The case file contains contradictory information as to the date on which the Radovtsi Home staff informed the applicants about their relative’s disappearance. Some documents indicate that this happened on 3 January, whereas the applicants allege that they were not contacted until 8 January 2007.

Valya Lazarova’s body was found on 22 January 2007, approximately eight kilometres away from the home. According to the post mortem, her death was due to hypothermia and physical exhaustion. There were no traces of physical violence. Death had occurred at least ten days before the body’s discovery.

On 24 January 2007 the third applicant lodged a complaint with the prosecution authorities alleging that the staff of the Radovtsi Home were responsible for his sister’s disappearance from the home and her subsequent death.

In a decision of 9 March 2007 a prosecutor from the Gabrovo regional public prosecutor’s office concluded that there was no indication that Ms Lazarova had been the victim of intentional homicide.

A separate investigation was opened in relation to offences under Articles 137 and 138 of the Criminal Code, namely exposing the life of a vulnerable person to risk and failing to assist a vulnerable person. In a decision dated 9 March 2007 a prosecutor from the Dryanovo district public prosecutor’s office refused to institute formal criminal proceedings against identified persons under those provisions, noting that on the day when Valya Lazarova had disappeared there had been three members of the medical staff and four orderlies on duty. None of them had been personally responsible for ensuring the inmates’ physical presence. Accordingly, it did not appear that any of them had committed an offence under Articles 137 or 138 of the Criminal Code.

Upon an appeal by the third applicant, on 5 April 2007 a prosecutor from the Gabrovo regional public prosecutor’s office quashed the abovementioned decision and ordered a further investigation into the matter.

The Dryanovo district public prosecutor’s office interviewed the staff who had been on duty on 3 January 2007, residents of the village of Radovtsi and the people who had participated in the search following Valya Lazarova’s disappearance. In a decision of 21 May 2007 a prosecutor from that office again refused to institute criminal proceedings, concluding that there was no indication that any of the staff members of the Radovtsi Home had committed an offence.

Upon a further appeal by the third applicant, on 22 June 2007 that decision was upheld by the Gabrovo regional public prosecutor’s office. In addition to the findings of the Dryanovo public prosecutor’s office, it noted that the building housing the Radovtsi Home had been in a poor state of repair and that the institution had been understaffed. This, combined with the very poor state of health of the inmates, had facilitated Valya Lazarova’s disappearance from the home; however, these factors had not been within the staff’s control. Accordingly, none of the staff members, including the director of the home, could be held criminally liable.

In decisions dated 29 August and 24 October 2007 respectively, the Veliko Tarnovo appellate prosecutor’s office and the Chief Public Prosecutor’s Office upheld the above-mentioned decisions.

On an unspecified date the third applicant also complained to the Ministry of Labour and Social Policy, which conducted an inquiry and informed the applicant of its findings in a letter dated 25 March 2007. The inquiry showed that the director of the Radovtsi Home had been informed of Ms Lazarova’s disappearance at about 12.15 p.m. on 3 January 2007. The search had started immediately after that. Members of the staff had searched the neighbouring villages. The police and the mountain rescue service had joined in as well. The enquiry concluded that the search had been prompt and adequate. Moreover, it transpired that Ms Lazarova had left the home on another occasion in 2005, but had been found the same day.

On 13 November 2007 the applicants brought a tort action against the Dryanovo municipality, the Ministry of Labour and Social Policy and the State under the State and Municipalities Responsibility for Damage Act (“the SMRDA”, see paragraph 23 below). They claimed 33,000 Bulgarian levs for each of them in compensation for non-pecuniary damage resulting from Valya Lazarova’s death. In their statement of claim they argued that the medical treatment and the care provided to Ms Lazarova in the Radovtsi Home had been inadequate and that her needs had been neglected. They pointed out that the “room for special care” in the home had been closed in 2006, and argued that inmates in a serious state of health had been provided with no alternative care. In addition, they alleged that the staff of the home had not been sufficiently trained and had not treated the inmates in a humane manner. They also pointed out that the living conditions in the home had been poor. They argued that Valya Lazarova’s death was

“directly and immediately linked to the lack of appropriate care in the social institution, lack of administrative supervision on the part of the Dryanovo municipality, lack of adequate support for the institution’s work and lack of good practice”.

The statement of claim was reviewed by a judge of the Gabrovo Administrative Court, who on 10 July 2008 instructed the applicants to specify those administrative duties performed by the defendants in the course of which the alleged damage had occurred. The judge also asked for clarification of the specific acts and omissions complained of in respect of each defendant and the grounds for viewing these acts or omissions as unlawful.

In response, on 22 July 2008 the applicants submitted that the mayor of the Dryanovo municipality, in his role as employer, and the bodies responsible for social assistance (forming part of the centralised Social Assistance Agency) had failed to monitor the staff of the Radovtsi Home as regards the performance of their duty to “provide individually tailored social services and assess the needs of Valya Lazarova” and had failed to ensure the presence of qualified medical personnel. They alleged that the mayor had also failed to ensure that the living conditions in the home were satisfactory in relation to Ms Lazarova’s state of health and that the Minister of Labour and Social Policy had failed to ensure methodical assistance, administrative supervision and the necessary financing. As to the State, represented by the Council of Ministers, they claimed that it had not created the necessary legislative framework, had not adopted policies ensuring that staff of social care institutions were adequately qualified, and had not provided the Dryanovo municipality with the financing needed by the Radovtsi Home.

In a decision dated 23 September 2008 the Gabrovo Administrative Court refused to accept the statement of claim for examination, noting that the applicants had failed to provide the information and the clarification requested on 10 July 2008. In particular, it considered that the submissions of 22 July 2008 mostly restated the initial statement of claim and that the inclusion of a new possible defendant, the Social Assistance Agency, led to confusion. It thus concluded that

“neither the [statement of claim], nor the additional submissions contain a request to order the cessation of an action that is not based on an administrative decision or on law, nor do they allege failure to take actions which the administrative body is obliged to take pursuant to the law, which actions or omissions are causally linked to the damage they allegedly sustained.”

Upon an appeal by the applicants, on 12 January 2009 the abovementioned decision was upheld by the Supreme Administrative Court.

The State and Municipalities Responsibility for Damage Act (“the SMRDA”) provides in section 1(1) that the State and the municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions of their authorities or officials while discharging their administrative duties. Since 1 March 2007 claims under section 1(1) of the SMRDA have been examined by the administrative courts under the rules of the Code of Administrative Procedure.

It is also possible to seek damages from the State and the municipalities under the general tort provisions (sections 45 et seq.) of the Obligations and Contracts Act. Legal persons may be vicariously liable under section 49 of the Act, which provides that a person who has entrusted another with performing a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. In this case the employer’s liability is presumed and is to be engaged even where it cannot be established which of its employees has caused the damage (ППВС № 7 от 1959 г., ППВС № 4 от 30.10.1975 г.). Section 49 of the Obligations and Contracts Act has been successfully relied on in a case which, like the present one, concerned the disappearance and the subsequent death of a mentally ill patient placed in a social care institution. The domestic courts, which found that the staff of the institution – by virtue of its internal rules – had been responsible for constantly monitoring and supervising the claimants’ relative, ordered the mayor of the respective municipality, as their employer, to pay the damages sought (Решение от 11.12.2006 г., Софийски градски съд I ГО, гр. д. № 2216/2005 г.; Решение № 91 от 30.07.2008 г., Софийски апелативен съд, Гражданска колегия, гр. д. № 824/2007; Определение № 693 от 26.06.2009 г. по гр. д. № 824/2007, ВКС, III г. о.).


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 in person)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1954 and lives in Primošten.

On 31 March 2003 the Šibenik Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Šibeniku) indicted the applicant in the Šibenik Municipal Court (Općinski sud u Šibeniku) on charges of attempted grievous bodily harm.

The first hearing before the Šibenik Municipal Court was scheduled for 16 March 2006.

On the day of the hearing, the applicant informed the Šibenik Municipal Court that he was unable to appear at the hearing owing to a medical condition. He also submitted medical documentation in that regard.

Several witnesses also failed to attend the hearing and the applicant’s lawyer informed the trial court that she no longer represented the applicant. The hearing was adjourned and the next hearing was scheduled for 26 April 2006.

At the hearing of 26 April 2006 the applicant, who was not properly summoned, failed to appear. The president of the trial panel ordered that the applicant be summoned by a letter indicating that his defence lawyer no longer represented him and that he should either appoint another lawyer or the hearing would be held in the absence of a lawyer.

On 22 May 2006 the applicant informed the Šibenik Municipal Court that he was not able to appear for trial owing to his medical condition. He explained that he would be unavailable for a certain period of time because he was required to undergo medical treatment and promised to inform the court of the progress of that treatment. He therefore asked that the proceedings be stayed until he was able to appear at the hearings. The applicant also submitted back-up medical documentation.

At a hearing on 23 May 2006 the Deputy State Attorney asked the trial court to commission a medical report concerning the applicant’s capacity to take part in the proceedings given his state of health.

On 30 May 2006 a medical expert, M.D.G., submitted a report indicating that the applicant suffered from heart arrhythmia. She considered that he would not be able to take part in the hearings for a period of time which was hard to predict. She therefore suggested that the trial court re-examine his condition after a month.

On 11 August 2006 the Šibenik Municipal Court invited the applicant to submit medical documentation noting the progress of his treatment.

The applicant complied with the order and submitted the documentation on 16 August 2006. The Šibenik Municipal Court then commissioned another medical report.

On 13 September 2006 medical expert M.D.G. submitted a further report, indicating that the applicant’s state of health had not stabilised despite the medical treatment he had been receiving and that he could not appear at the hearings. She reiterated that it was not possible to predict the exact period of time in which he would not be able to take part in the proceedings and suggested that his condition be reassessed at appropriate intervals.

Another medical report was commissioned on 13 March 2007 from a forensic expert, a cardiologist and a psychiatrist.

On 15 April 2007 the medical experts, M.D.G., D.M. and D.B., submitted a joint report. They found that the applicant was not able to take part in the hearings and that a strong triggering factor, such as stress, could lead to a heart attack with a possibly fatal outcome.

On 23 April 2007 the Šibenik Municipal Court commissioned a further medical report from medical experts M.D.G., D.M. and D.B.

The medical experts submitted their report on 19 June 2007, in which they noted:

“... we still consider that the accused’s appearance at the hearing would be a risk factor which could (although it might not) lead to a heart attack, and how that will further develop it is hard to predict, which makes Stipe Petrina theoretically unable to appear at the hearing.

However, we consider that his appearance at the hearing would be possible only in the presence of [a] doctor, namely a medical team equipped for prompt intervention in the event of a heart attack at the trial.”

The Šibenik Municipal Court scheduled a hearing for 20 November 2007. It summoned the applicant, the applicant’s lawyer, B.B., whose services he had engaged on 11 October 2007, and a cardiologist, A.S., to the hearing.

At a hearing on 20 November 2007 the Šibenik Municipal Court noted that the applicant’s defence lawyer had informed it on 19 November 2007 that she could not attend the hearing because she was on maternity leave. The applicant was not properly summoned and did not attend the hearing. The cardiologist, A.S., did not attend the hearing, nor did he excuse his absence. The hearing was adjourned and the next hearing was scheduled for 19 December 2007.

On 13 December 2007 the applicant informed the Šibenik Municipal Court that he could not appear at the hearing scheduled for 19 December 2007 due to his medical condition. He referred to the medical expert report of 19 June 2007.

On 19 December 2007 the Šibenik Municipal Court, relying on Article 10 of the Code of Criminal Procedure (see paragraph 34 below), dismissed the applicant’s request for adjournment as abusive on the grounds that the necessary medical back-up had been secured by summoning the cardiologist, A.S., to the hearing. The court considered that the applicant was trying to delay the proceedings. It also found that, according to the information available to it, the applicant had taken part in a number of other court proceedings as claimant and private prosecutor.

On the same date, the Šibenik Municipal Court held a hearing at which the applicant did not appear and to which his defence counsel had not been summoned. The cardiologist, A.S., again did not attend the hearing, nor did he excuse his absence. The hearing was held in the presence of the Deputy State Attorney and the victim’s representative. After the hearing, at which the trial court examined the evidence and written records of witnesses’ oral statements, it found the applicant guilty as charged and sentenced him to four months’ imprisonment, suspended for one year.

On 27 June 2008 the applicant lodged an appeal before the Šibenik County Court (Županijski sud u Šibeniku) against the decision to hold a hearing in his absence. The applicant complained that he had not been able to appear at the hearing owing to his medical condition and that the trial court’s findings that he had taken part in a number of other court proceedings had been unsubstantiated and untrue, as while he had been a party to the other proceedings he had never taken part in the trials.

On 17 and 18 July 2008 the applicant lodged further statements of appeal before the Šibenik County Court asking that court to quash the first-instance judgment and to order a retrial. He reiterated that the hearing of 19 December 2007 had been held in his absence, even though he had not been able to appear at the hearing owing to his medical condition. He also complained that the necessary medical back-up at the hearing had not been ensured, as a medical team had never been obtained and the cardiologist, A.S., had twice failed to attend the hearings. Moreover, the defence had never been informed that a back-up medical team would be provided, and had the trial court considered that he was abusing his procedural rights, it should have ensured that he had legal representation at the trial.

During the appeal proceedings, the Šibenik County State Attorney’s Office (Županijsko državno odvjetništvo u Šibeniku), which represented the prosecution case on appeal, asked the Šibenik County Court to allow the applicant’s appeal and to order a retrial.

On 10 October 2008 the Šibenik County Court, in closed session, without holding a hearing, dismissed all the appeals and upheld the first-instance judgment. That court found that the applicant had been abusing his procedural rights and that he had been doing nothing more than trying to delay the trial.

On 10 February 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining that the hearing before the first-instance court had been held in his absence.

On 29 April 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1969 and lives in Setúbal.

On 29 August 2002 the applicant was admitted to the emergency services in S. Bernardo Hospital (since renamed Setúbal Hospital Centre). She gave birth to a son who has irreversible injuries caused by the birth.

On 26 January 2005 the applicant brought a civil action before the Almada Administrative Court against the hospital, claiming damages for the injuries caused to her son. She claimed that contrary to her doctor’s instructions, the medical staff who treated her during labor had not performed a caesarean thus her son being born with several problems which caused him permanent motor-neurone injuries. She held that the hospital was responsible for medical negligence at birth.

On 9 March 2005 the hospital contested the civil action.

On 17 October 2005 a preliminary hearing was held. A second session of the preliminary hearing was scheduled for 5 December 2005, which was adjourned because the time-limits for the analysis of the documents had not expired. The hearing was adjourned to 7 February 2006.

Meanwhile, on 27 December 2006, the applicant requested the Almada Administrative Court to issue an interim measure (providência cautelar) seeking a temporary remediation (arbitramento de uma reparação provisória). On 16 January 2006 the Almada Administrative Court ordered interim payment of EUR 550 per month to the applicant and her husband until the decision in the main proceedings would be delivered and become res judicata.

On 2 February 2006 the hospital sought leave for the medical and nursing team to intervene in the proceedings. On 20 February 2006 the applicant replied to the hospital’s request.

The hearing called for 7 February 2006 had to be adjourned because of the hospital’s request.

On 14 March 2006 the judge gave directions (despacho saneador) setting out the matters that had already been established and those that remained outstanding.

On 31 March and on 6 April 2006 the hospital and the applicant submitted evidence and both requested expert’s appointement.

On 7 May 2006 the judge admitted the evidence submitted by the parties and ordered an expert medical report.

On 11 July 2006 the Almada Court requested the Portuguese Medical Chamber (Ordem dos Médicos) to appoint medical experts. Several requests were made concerning medical experts in gynaecology and obstetrics. The Portuguese Medical Chamber replied to all requests.

On 28 February 2007 the Forensic Institute (Instituto de Medicina Legal) submitted its forensic report, which contained its preliminary conclusions.

On 5 March 2007 the Forensic Institute lodged a request with the Almada Administrative Court seeking access to all the medical reports in respect of the birth of the applicant’s son. On 9 March 2007 the parties were notified to submit the relevant medical reports. On 21 March 2007 the hospital submitted its reports and on 23 March 2007 the applicant request for an extension of the time-limit. On 18 April 2007 the applicant submitted the medical reports.

On 31 January 2008 the Forensic Institute submitted its expert report.

On 4 June and on 20 June 2008, the appointed experts in gynaecology and obstetrics and the appointed experts in paediatrics submitted their reports, respectively.

The parties were notified of the reports and on 15 July 2008 the applicant requested a second expert medical report. On 18 July 2008 the hospital opposed to the applicant’s request.

On 28 July 2008 the Almada Adminitrative Court requested the experts to clarify existing doubts with regard to their reports. The clarifications were submitted on 3 and 15 October 2008.

On 14 November 2008 the Almada Administrative Court requested the Portuguese Medical Chamber to appoint experts in gynaecology and obstetrics to provide technical advice during trial. On 3 February 2009 the Portuguese Medical Chamber appointed an expert.

Between 9 December 2009 and 28 September 2010 the Almada Administrative Court listed nine hearings. In between hearings new evidence was submitted by the parties.

On 2 March 2011 the Almada Administrative Court delivered its decision in which it considered that the hospital could not be held liable for the injuries for lack of evidence in that regard.

On 8 April 2011 the applicant challenged the outcome of the proceedings before the Administrative Central Court of the South.

On 22 March 2012 the Administrative Central Court upheld the first-instance decision.

On 19 June 2012 the application of the interim measure ended when the decision of the second-instance court became res judicata.