Kristina Pardalos;Pauliine Koskelo;Ksenija Turković

The applicant was born in 1963 and currently lives in Alexandria (Egypt).

On 15 February 2010, while crossing the border between Serbia and Croatia with his wife, the applicant was caught by the Croatian customs authorities carrying the sum of 563,300 euros (EUR) which he had failed to declare, contrary to the law. The customs authorities immediately seized the EUR 560,000.

On the same day the customs authorities instituted administrativeoffence proceedings (prekršajni postupak) against the applicant before the Financial Inspectorate of the Ministry of Finance (Ministarstvo financija, Financijski inspektorat – “the Ministry”) for failing to declare EUR 560,000 – a sum exceeding EUR 10,000 – an administrative offence defined in section 40(1) of the Foreign Currency Act and section 74 of the Prevention of Money Laundering and Financing of Terrorism Act.

In his defence, the applicant explained that he and his wife had been visiting her daughter in Serbia who had recently had a serious attack of epilepsy, and submitted documentary evidence suggesting that his wife’s daughter did indeed suffer from epilepsy. The money he had been carrying originated from: (a) a company called SCI (société civile immobilière) M. registered in France, of which he was the director and the only member, from whose account he had withdrawn EUR 326,008.03 with a view to starting another business; and (b) the sale of their house in France (the remaining amount). The applicant submitted relevant documents as evidence of those transactions. He also explained that he had not wished to deposit the money in a bank account because, in the wake of the global financial crisis of 2007-2008, he had been afraid that his bank would go bankrupt and that he would lose most of that money, given that the French State only guaranteed up to EUR 50,000 of bank deposits.

During the proceedings the Ministry requested information from the relevant authorities in Serbia, France and Italy. While the Italian authorities did not reply at all, the Serbian authorities informed the Ministry that neither the applicant nor his wife had been recorded in their register of suspicious transactions, and the French authorities only confirmed the authenticity of the transactions on which the applicant relied to prove the origin of the money he had been carrying.

By a decision of 9 July 2010 the Ministry found the applicant guilty of having committed the administrative offence in question and fined him 5,000 Croatian kunas (HRK). At the same time, the Ministry imposed a protective measure (zaštitna mjera) confiscating EUR 318,500 under section 69(2) of the Foreign Currency Act.

On the basis of the documentary evidence, the Ministry established that: (a) the company SCI M. had been founded in 2002 and recorded in the business and companies register in Strasbourg, and under French law its members were liable for its debts in proportion with their share in the company, that is, the applicant in respect of 99.75% and his wife in respect of 0.25%; (b) on 6 July 2009 the applicant had indeed sold his house in France, and EUR 243,091.82 from the proceeds of sale had been paid into his bank account on 29 July 2009, from which he had first transferred EUR 30,000 to his company’s account on the same day and then withdrawn EUR 211,500; and (c) on 21 December 2009 the applicant, acting as the company’s director, had sold its real estate, and EUR 326,008.03 from the proceeds of sale had been paid into the company’s bank account on 19 January 2010, a sum which had been withdrawn by the applicant the next day.

The Ministry held that the origin of the money which the applicant had failed to declare was irrelevant in relation to the commission of the offence of which he had been convicted or the imposition of the fine. However, that consideration was relevant in relation to the imposition of the protective measure of confiscation.

In particular, the Ministry decided not to confiscate EUR 241,500 of the money which the applicant had not declared, because it found that this sum did indeed originate from the sale of his house in France.

As regards the remaining EUR 318,500 (of the EUR 560,000 which had been seized), the Ministry held that this sum was part of the funds which the applicant had withdrawn from his company’s bank account (EUR 326,008.03) on 20 January 2010 (see paragraph 11 above). The Ministry further held that: (a) since there was no evidence that the applicant had borrowed that money from his company, by carrying it across border he had disposed of it as if it had belonged to him, which amounted to misappropriation of the company’s funds, an offence punishable in every country; and (b) he had failed to pay the relevant taxes in France on that amount. It therefore decided to confiscate that sum.

The applicant appealed by arguing that: (a) the evidence collected indicated that the French authorities had been aware of the transaction from which the confiscated sum originated, but had done nothing about it, which suggested that they considered that it originated from a legitimate source, (b) the Ministry correctly assumed that he had not borrowed the confiscated sum from his company, as he had actually lent EUR 358,600.81 to his company in 2008 and 2009, for which he had submitted documentary evidence; (c) under French law, he was fully liable for the debts of his company, the payment of which, including taxes, he therefore could not have avoided by misappropriating the company’s funds as the Ministry implied; (d) the Ministry had attempted to interpret foreign (French) law, and in such a complex area as tax and commercial law, about which it had known very little; and (e) it was peculiar that the Ministry had confiscated for the benefit of the Croatian State budget the amount on which he had, in the Ministry’s own view, not paid the relevant taxes in France.

By a decision of 17 September 2010 the High Court for Administrative Offences (Visoki prekršajni sud Republike Hrvatske) dismissed the applicant’s appeal and upheld the Ministry’s decision, endorsing the reasons given therein.

The applicant then, on 17 December 2010, lodged a constitutional complaint, alleging, inter alia, a violation of his constitutionally protected right of ownership.

By a decision of 17 November 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible and served its decision on his representative on 2 December 2012. It found that, even though the applicant had relied on the relevant Articles of the Constitution in his constitutional complaint, he had not substantiated his complaint by any constitutional-law arguments, but had merely repeated the arguments raised in the proceedings before the Ministry and the High Court for Administrative Offences. Therefore, the Constitutional Court had been unable to examine the merits of his constitutional complaint.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Jon Fridrik Kjølbro;Georges Ravarani;Ksenija Turković

The applicant, who was born in 1989, was detained at the Tekirdağ prison when the application was lodged.

On 9 July 2010 the applicant was taken into police custody on suspicion of membership of a terrorist organisation.

On 13 July 2010 the investigating judge at the Istanbul Assize Court, after questioning the applicant, ordered his pre-trial detention having regard to the nature of the offence, the state of the evidence and the strong suspicion of the suspect’s having committed the offence in issue.

On 7 September 2010 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with membership of an illegal terrorist organisation.

The trial commenced before the 9th Chamber of the Istanbul Assize Court and the first hearing was held on 15 February 2011.

In the hearings held on 21 February 2012 and 3 May 2012, respectively, the applicant appeared before the court, and the judges ordered his continued detention. The applicant filed objections against these decisions. On 7 March 2012 and 8 June 2012 respectively, the 10th Chamber of Istanbul Assize Court dismissed the applicant’s objections without holding an oral hearing and based on the public prosecutor’s opinion which had not been communicated to the applicant or his representative.

During the eleventh hearing held on 30 July 2013, the 9th Chamber of the Istanbul Assize Court ordered the applicant’s continued detention on remand.


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

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1981 and lives in Mirkovci.

On 7 July 2004 the Krk Municipal Court (Općinski sud u Krku) issued an enforcement order (hereinafter “the first enforcement order”) against the applicant’s movable assets for unpaid mobile telephone bills in the period between 5 July and 6 October 2003. This decision was served on a certain M.K. on 22 October 2004, and subsequently became final.

At the plaintiff’s request, on 7 July 2006 the Krk Municipal Court ordered the enforcement (hereinafter “the second enforcement order”) by way of attachment of the applicant’s earnings. This decision was served on the applicant on 27 November 2006.

On 4 December 2006 the applicant lodged an appeal against both enforcement orders. She argued that she could not have made the said telephone calls, because she had been in prison between 14 August 2003 and 26 October 2004 and the police seized her mobile telephone. She enclosed a receipt to show that her mobile telephone and SIM cards had been taken from her.

She further argued that the first enforcement order had never been served on her as she was in prison at the time.

Finally, the applicant requested the quashing of the certificate of enforceability (klauzula ovršnosti) of the first enforcement order.

The recipient of the applicant’s submission of 4 December 2006 was the Krk Municipal Court, which forwarded it to the Koprivnica County Court (Županijski sud u Koprivnici) as an appeal against the second enforcement order.

On 29 August 2007 the Koprivnica County Court declared the applicant’s appeal inadmissible as lodged out of time, finding that the last day for lodging an appeal was 5 December 2006, whereas the appeal had been lodged on 6 December 2006.

On 17 September 2007 the applicant asked the County Court to rectify its decision, as in fact she had lodged her appeal on 4 December 2006.

On 12 October 2007 the Koprivnica County Court dismissed the applicant’s request for rectification. The relevant part of that decision reads as follows:

“... the Court can rectify mistakes in names and numbers and other obvious mistakes... and flaws... In this case, the complaint was indeed erroneously declared inadmissible as out of time... Nevertheless, a mistake of this sort is not an obvious mistake... which can be rectified, but it is an erroneous decision binding the Court after its service on the parties, notwithstanding its invalidity...

It should be mentioned, however, that the enforcement debtor did not suffer any disadvantage as a result of such a decision. The enforcement debtor in fact appealed against the enforcement order... of 7 July 2006 on the grounds of a serious breach of procedural rules, arguing that the enforcement order was not served on her. Since the enforcement order in question was merely a decision changing the means of enforcement, and a decision of such nature can be appealed against only if it orders enforcement of objects and rights exempted from enforcement (section 46 (2) of the Enforcement Act)... the enforcement debtor’s appeal should have been dismissed.

If the enforcement debtor’s claim that the initial enforcement order was never served on her were true, that decision could not have become final and the enforcement debtor should, in the view of this Court, have asked the first-instance court to duly serve the enforcement order on her, so that she could appeal against it...”

The applicant subsequently made a constitutional complaint, following which the Constitutional Court (Ustavni sud Republike Hrvatske) separated that complaint into a complaint against the decision of the Koprivnica County Court to declare the applicant’s appeal inadmissible and a complaint against the refusal of the Koprivnica County Court to rectify its previous decision. The Constitutional Court declared both complaints inadmissible on 26 October 2009, on the grounds that they did not concern decisions on the merits of the case and as such were not susceptible to constitutional review.

Meanwhile, on 30 November 2007 the applicant lodged a complaint with the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the enforcement proceedings.

On 10 December 2007 the Supreme Court ruled that it lacked jurisdiction, and forwarded the case to the Rijeka County Court (Županijski sud u Rijeci).

On 29 January 2009 the Rijeka County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded her 4,500 Croatian kunas (HRK) in compensation, and ordered the Krk Municipal Court to complete the enforcement proceedings within six months of service of its decision.

It appears that the Krk Municipal Court failed to meet that deadline.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1956 and lives in the village of Tsereteli, Marneuli Region, Georgia.

On 1 December 2005 a certain individual, Ms K., applied to the Governor of the Marneuli Region for the permit necessary for the construction of a petrol station on a plot of land situated in the region. The Governor assigned the examination of the application to the applicant, his deputy, who was responsible for the development of the region’s infrastructure and the management of State lands.

A meeting between the applicant and Ms K. took place on the same day, 1 December 2005, in the former’s office. According to the official version of events, during the meeting, when Ms K. enquired about the necessary documents and applicable procedure for the issuance of the construction permit, the applicant replied that, apart from the necessary formalities, she would also need to make a pay-off (ქრთამი) to the amount of 30,000 United States dollars (USD); of this amount, USD 20,000 would be the share of the Governor himself, whilst the rest would be divided between the applicant and representatives from the various agencies involved.

On 6 December 2005 Ms K. informed the Department of Constitutional Security of the Ministry of Internal Affairs (“the DCS”) that the applicant had requested a bribe from her in return for a promise to assist her in obtaining the requisite construction permit. She expressed her readiness to cooperate with the DCS. The authority immediately opened a criminal case into Ms K.’s allegations (“the bribery case”).

Still on 6 December 2005, the General Public Prosecutor’s Office (“the Prosecutor’s Office”) issued the DCS with a general authorisation to remain in charge of the bribery case and to conduct all types of investigative measures necessary.

By rulings dated 7 December 2005, the Tbilisi City Court authorised secret video surveillance of the applicant’s meetings with Ms K., as well as the tapping of their telephone conversations.

On 8 December 2005 Ms K. bought a plot of land from another private individual, Ms N. (hereinafter “the sales agreement”), for the purpose of constructing a petrol station on it. On the same day, the applicant contacted a notary and the head of the Land Registry of the Marneuli Region, requesting them, respectively, to certify the sales agreement and to register, in an expedited manner, the plot in Ms K.’s name.

On 12 December 2005 Ms K. brought to the applicant’s office the sales agreement and a record from the Land Registry of the Marneuli Region confirming her title to the newly acquired plot of land. During that second meeting, which was secretly filmed by Ms K., the applicant reiterated his request for a bribe. He asked her to bring USD 10,000 as a down payment, emphasising that this sum was not supposed to cover any official fees or charges prescribed by law for the issuance of a construction permit. Ms K. promised to bring the sum the following day.

On 13 December 2005 Ms K. brought USD 10,000 to the applicant in cash. The banknotes had been pre-marked with a special substance by the DCS. The meeting took place in the applicant’s office, and it was secretly filmed by Ms K. and closely supervised by the DCS. As soon as Ms K. handed over the money to the applicant, DCS officers entered the room and arrested the applicant.

A search of the applicant’s person was conducted on the spot, which led to the discovery of the banknotes in the right inner pocket of his suit. The law-enforcement officers immediately examined the banknotes using a special lamp and observed the marks made by a substance previously applied by the DCS. The same substance was also detected on both of the fingers of the applicant’s hands and on the clothing of his suit. The accuracy of these findings was later confirmed by a forensic chemical examination.

On 14 December 2005 the applicant was charged, under Article 338 § 2 (b) of the Criminal Code of Georgia, with the crime of requesting a bribe in a large amount.

The results of an examination of the secret recordings of the various meetings between the applicant and Ms K. confirmed the authenticity of those recordings. On 8 February 2006 the investigator in charge of the case acquainted the applicant and his lawyer with the results of the abovementioned forensic examinations. The accused party did not contest that evidence.

When questioned by the Bolnisi District Court, the applicant, who was represented by two lawyers of his choice, complained that he had been entrapped by the DCS. He stated that he had never had any intention of accepting a bribe but had been helping Ms K. out of good will, as he had considered her to be a distant relative. He confirmed that he had been assisting Ms K. in the various administrative formalities related to the purchase of the relevant land. The applicant furthermore admitted to having received money to the amount of USD 10,000, from the applicant, but added that the sum had been meant to be transmitted to a construction company as an advance payment for its upcoming construction of the petrol station. He stated that he could not explain why Ms K. would have wished to induce him to accept a bribe.

When questioned by the trial court for the first time on 20 April 2006, Ms K. stated that she had met the applicant in his office and informed him of her intention to construct a petrol station. She had falsely presented herself as his distant relative in order to obtain the applicant’s favour more easily. Ms K. confirmed that the applicant had then assisted her with the relevant administrative formalities with the notary and the Land Registry of the Marneuli Region. As to the sum of USD 10,000, Ms K. stated – reiterating the applicant’s version of events – that it had been intended that the money would be paid through the applicant’s offices to a private construction company in relation to the ongoing construction project of a petrol station. Ms K. emphasised that she had never been sure that the applicant had intended to retain any part of the above-mentioned sum for his personal benefit. Nevertheless, still suspecting that there might have been illegal intent involved in the applicant’s wish to be involved in the money transfer, Ms K. had decided to inform the DCS of her conversation with the applicant.

On 2 May 2006 the prosecutor in charge of the applicant’s criminal case instituted criminal proceedings against Ms K. for giving conflicting witness statements, on the grounds of the alleged inconsistency between the statements that Ms K. had originally given to the DCS during the investigation stage and those given before the trial court on 20 April 2009.

On 3 May 2006 Ms K. requested that the Bolnisi District Court hear her again in relation to the applicant’s case, stating that she had forgotten to testify in respect of a number of significant factual details when the court had previously heard her on 20 April 2006.

On 17 May 2006 Ms K. lodged a complaint with the Prosecutor’s Office in respect of the initiation of the criminal proceedings against her (see paragraph 19 above). She submitted that the statements she had given to the trial court on 20 April 2006 had been truthful and had fully reflected the content of her several meetings with the applicant, which could have been verified by examining the relevant secret video and audio recordings.

When questioned by the trial court on 23 June 2006, both the notary who had certified the sales agreement and the head of the Land Registry of the Marneuli Region confirmed that the applicant had been urging them to expedite the registration of Ms K.’s title to the plot of land on which a petrol station was scheduled to be constructed. The two witnesses furthermore stated that the plot still constituted Ms N.’s property, given that the sales agreement had been annulled shortly after having been concluded.

Allowing a request lodged by the applicant on 23 June 2006, the trial court admitted to the criminal case file as evidence a recording of a television programme and a newspaper article in which Ms K. had publicly acknowledged having been an DCS undercover agent in four other unrelated criminal cases.

On 7 July 2006 Ms K., who at that time had already been placed in pretrial detention in relation to the criminal proceedings instituted against her for giving conflicting witness statements, was heard by the Bolnisi District Court for the second time. She confirmed the statements that she had given during the investigation stage. Namely, she testified that the applicant had clearly requested her to pay “unofficially” the sum of USD 30,000 in return for promised assistance with the construction project, of which sum USD 20,000 was supposed to go, according to the applicant, to the Governor. She stated, however, that she did not know whether the applicant had any intention of retaining any part of the remaining USD 10,000 for his personal benefit. Ms K. also confirmed that the applicant had indeed conducted negotiations with a number of construction companies on her behalf at that time.

Ms K. did not deny that, prior to her involvement in the case against the applicant, she had acted as an undercover agent for the DCS in four other unrelated cases. She further stated before the trial court that she had already acted as an undercover agent of the DCS when she had approached the applicant for the first time on 1 December 2005. She stated that the initial objective of that undercover anti-criminal operation, led by the DCS, had been to expose the criminal activity of the Governor of the Marneuli Region. Notably, the DCS had been in possession of information that the Governor had been prone to requesting bribes in return for providing various public services. It was only after that initial plan had failed that the law-enforcement agency’s attention had shifted towards the Governor’s deputy, the applicant. Ms K. also stated that the sales agreement in respect of the plot of land had been annulled shortly after the applicant’s arrest, as it had in fact been a fictitious transaction concluded under the DCS’s close supervision. According to Ms K.’s statements, Ms N. had also been collaborating with the DCS at that time, and the first meeting between Ms K. and Ms N. had taken place on the DCS’s premises.

On 7 July 2006 the applicant requested the trial court to summon Ms N. as an additional witness so that he could question her in relation to her purported collaboration with the DCS and role in the sequence of the events which had led to the initiation of the criminal proceedings against him (see the preceding paragraph). In reply, the Prosecutor’s Office claimed that it had already attempted to summon Ms N. as a witness, but that the latter’s whereabouts were unknown. Relying on that standpoint, the Bolnisi District Court ruled that it was objectively impossible to summon Ms N. as a witness.

By a judgment of 17 July 2006, the Bolnisi District Court found the applicant guilty as charged and sentenced him to seven years’ imprisonment. The court stated that the collection of the evidence in the case file – the statements given during the trial by Ms K., the notary and the head of the Land Registry; the judicially authorised secret video and audio recording; and the results of the personal search of the applicant on 13 December 2005 and of the forensic chemical and phonoscope examinations – confirmed the applicant’s guilt beyond reasonable doubt. As regards the applicant’s statement that the money discovered on his person (USD 10,000) had not been a bribe but a valid advance payment for preparatory works associated with Ms K.’s construction project, the District Court answered that this was not supported by the totality of the collected evidence; it did not provide any additional explanation in that respect. As to the applicant’s argument that he had been induced to commit the offence in question by Ms K., who had been an agent provocateur of the DCS, the court did not address that argument at all.

On 15 August 2006 the applicant lodged an appeal with the Tbilisi Court of Appeal against his conviction, reiterating his complaint alleging entrapment and reasserting his version of events.

On 18 October 2006 the examination of the applicant’s appeal by the Tbilisi Court of Appeal began. During a hearing held on 8 November 2006, the applicant – referring to statements given by members of his family that they had recently seen Ms N. at her house – the applicant requested the appellate court to summon the latter so that he could finally question her. The appellate court granted the applicant’s request.

Ms N. was scheduled to appear before the appellate court on 1 December 2006, but failed to do so. The applicant noted that his family members, who were living in the same village (Orjonikidze) as Ms N., had approached her and asked her to testify before the court, but the latter had refused the request in a resolute manner. The Prosecutor’s Office noted that it had been unable to secure Ms N.’s appearance but promised to do so for the next hearing, which was scheduled for 6 December 2006.

On 2 December 2006 Ms N. submitted a written statement to the Tbilisi Court of Appeal. Noting that she had recently learned of the ongoing examination of the applicant’s criminal case, she stated that she was unable to appear as a witness before the appellate court because of her difficult family situation. Ms N. stated, in particular, that her aged mother had been seriously ill and remained under her constant supervision.

On 6 December 2006 the Prosecutor’s Office presented a handwritten letter from Ms N.’s neighbours dated 4 December 2006, according to which the witness had long abandoned her house in the village and her current whereabouts were unknown. The Tbilisi Court of Appeal ruled that it was objectively impossible to summon Ms N., as her whereabouts could not be identified.

By a decision of 6 December 2006, the Tbilisi Court of Appeal rejected the applicant’s appeal and upheld his conviction of 17 July 2006 in full. As with the first-instance court, the applicant’s argument about his alleged entrapment by the victim, the DCS’s agent provocateur, was left unanswered by the appellate court. The appellate court rejected as unfounded the applicant’s argument that the USD 10,000 had been meant to be used as an advance payment for construction works. The court noted in this connection that by the time the applicant had received the sum from Ms K. the construction permit had not been issued, and neither had an architectural plan and expenditure estimate been drawn up.

On 16 April 2007 the Supreme Court of Georgia, rejecting an appeal by the applicant on points of law as inadmissible, finally terminated the proceedings.

On 24 November 2008 the applicant was granted early release from prison under a presidential pardon.


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6-3-c - Defence in person);No violation of Article 6 - Right to a fair trial (Article 6-3-d - Witnesses);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

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

Before his arrest the applicant lived in Odessa region with his mother.

In April 2004 the applicant sustained a serious knee injury.

On 16 August 2004 a medical commission found that as a result of the knee injury, the applicant’s knee and thigh joints had become deformed. He was certified as third-degree disabled, the lowest category.

On 21 April 2005 the police arrested the applicant on suspicion of having raped a seven-year-old boy, P. They took him to a police station where, according to the applicant, he was beaten. In his initial application to the Court the applicant stated that a police officer “hit him once in the right side of his body” and after that several police officers started beating him. In his written observations submitted to the Court on 23 February 2012 in reply to those of the Government, the applicant’s lawyer stated that police officers had “wrung the [applicant’s] hands and feet and hit him on the body, including the areas of his liver and kidneys, and on [his] arms and legs”. The lawyer further stated that the applicant “was beaten in turn by two pairs of police officers until about midnight on 21 April 2005”. On 22 April 2005 the applicant was taken to the Kominternivskyy Police Temporary Detention Centre (“the ITT”) where he was held for the following twenty-eight days. According to the applicant, the conditions of detention in that facility were inhuman.

On 22 April 2005 the police questioned the applicant who said that he knew P. but had not raped him.

On 23 April 2005 P. told the police that the applicant had raped him on several occasions in the applicant’s apartment and near a pond. Once P. had come to a bank of the pond and had seen A. fishing there. The applicant had been fishing on the opposite bank of the pond. P. had approached the applicant who had taken him to some bushes and raped. During the rape P. had seen A. and E. passing by the bushes.

On 25 April 2005 the police questioned A. who said that on 10 April 2005 in the afternoon he and his brother E. had been fishing from the bank of the pond. The applicant had been fishing from the opposite bank of the pond. A. had seen that P. had approached the applicant and they had gone into some bushes. Later on A. and E. had been passing by the bushes and had seen the applicant raping P.

In April 2005 charges under paragraph 3 of Article 153 of the Criminal Code (see paragraph 45 below) were brought against the applicant.

On 12 and 18 May 2005, respectively, the applicant was examined by a doctor and a TB specialist. Both doctors noted that the applicant was fit for detention in the ITT. No injuries were discovered on his body and the applicant did not raise any complaints about his state of health.

On 19 May 2005 the applicant was transferred to a SIZO (a pre-trial detention facility). On the same date and the following day he was medically examined and did not raise any complaints of ill-treatment or health problems. The doctors established that he was suffering from the consequences of a knee injury sustained before his arrest.

In June 2005 the applicant studied the indictment which indicated that he had been accused of having raped P. on 10 April 2005 and on unspecified dates between September 2004 and April 2005.

The applicant’s case was referred to the Kominternovskyy District Court of Odessa for trial. In July 2005 that court held the first hearing.

On 26 July 2005 the applicant asked the authorities to appoint him a lawyer. On 30 August 2005 he was assigned a lawyer under legal aid scheme.

On 15 August 2005 the applicant asked the Kominternovskyy District Court of Odessa to appoint his mother as his representative in the proceedings. This request was granted on an unspecified date still in August 2005.

During one of the hearings the trial court questioned the victim, P., who stated, without indicating the exact dates, that the applicant had raped him several times between September 2004 and April 2005. P. provided very detailed information about the circumstances of the rapes and about the events which had taken place before and after them. P. said that the applicant had raped him in his bedroom while the applicant’s mother and sister were in the adjacent room. He said that he had been raped only by the applicant and not by other persons.

The court questioned M., the applicant’s friend, who stated that on 9 and 10 April 2005 from 10 a.m. to 4 or 5 p.m. he and the applicant had sawn wood together.

Witness A. told the court that he had seen the applicant raping P. on 10 April 2005 in some bushes near the pond.

P.’s friends stated before the court that P. had talked to them about the rapes. The applicant’s mother was questioned during the trial and said that P. had never come to the apartment where she and the applicant lived.

P.’s mother and teacher stated that P.’s moods and behavior had changed since autumn 2004. P.’s mother also said that on 8 April 2005 P. had told her that on the same date the applicant had raped him near the pond. P.’s mother also said that the applicant’s mother had told her that P. had come to the apartment where the applicant lived and the applicant’s grandmother had ousted him. P.’s teacher said that P. had told her that the applicant had raped him.

All of those witnesses were questioned by the trial court in the presence of the applicant and his lawyer. The lawyer and the applicant were allowed to question the witnesses and ask for explanations regarding the facts of the case. During the trial the applicant did not complain of ill-treatment by the police.

Before the court the applicant pleaded not guilty.

On 3 January 2006 a surgeon examined the applicant’s knee and prescribed treatment for the knee joint deformation.

On 25 January 2006 the Kominternivskyy Court, in the presence of the applicant’s lawyer and mother, convicted the applicant of several counts of rape (gratification of unnatural sexual desires in respect of a person under fourteen years of age), committed on unspecified dates between autumn 2004 and April 2005 and notably on 10 April 2005. It sentenced him to ten years’ imprisonment under paragraph 3 of Article 153 of the Criminal Code (see paragraph 45 below). The applicant was absent from that hearing. The court based his conviction mainly on the victim’s statements but also on the statements of P.’s friends, mother, teacher, and witness A. and on a report drawn up by a psychiatrist who had examined P. and concluded that he could not have made up his account of the rapes.

In February 2006 the applicant and his lawyer, B. appealed, arguing that the conviction was not based on sufficient evidence. In particular, the P., trial court had failed to establish on which dates P. had been raped, and the medical examination of the victim had revealed no injuries on the child’s body. The applicant also argued, without providing further details, that the police had beaten him on 21 April 2005. He stated that he could not rape P. on 10 April 2005 because on that day he had sawn wood with M. He also stated that A. had given false statements during the trial because he himself had raped P. The statements of P.’s mother were also false, the applicant had refused to give her money and she had wanted to take revenge. P. had made false statements during the trial because his mother had taught him to do so. The applicant submitted that A.’s statements concerning the date of the alleged rape near the pond contradicted the statements of P.’s mother (see paragraphs 21 and 23 above). He added that the trial court’s judgment had been unlawful because it contained excessive descriptions of the rape scenes.

Between May 2006 and March 2007 the applicant and his mother, acting on the applicant’s behalf, lodged ten complaints with the Prosecutor General’s Office which forwarded them to the Odessa Prosecutor’ Office. It remains unknown whether the complaints were examined. The copies of the complaints were not made available to the Court. In his application form the applicant stated, without elaborating further, that they concerned various “procedural violations” during the criminal proceedings.

On 9 October 2006 the applicant sent his first letter to the Court.

In November 2006 the Odessa Regional Court of Appeal (“Court of Appeal”) informed the applicant that it would hold a hearing in his case on 12 December 2006.

On 16 November 2006 the applicant requested the Court of Appeal to ensure his presence at that hearing. The court granted the request and ordered the bailiffs to bring the applicant to the court hearing.

On 12 December 2006 the applicant was taken to the court-house and kept there in a cell the entire day. In the evening he was taken back to the SIZO. It remains unknown why he was not brought to the court-room for the hearing.

In the meantime, on the same date the Court of Appeal, in the presence of the applicant’s lawyer, upheld the judgment of the first-instance court. On the basis of the findings made by the trial court, the Court of Appeal held that the arguments raised in the appeal by the applicant and his lawyer’s arguments were ill-founded because they had been refuted by evidential material in the applicant’s criminal case file. The trial court had fully and objectively assessed that material. The conclusions reached by the first-instance court had been supported by sufficient evidence, in particular the statements of P. and other persons questioned during the trial. The Court of Appeal did not question any witnesses; nor did it administer or assess any new evidence.

On 16 January 2007 the applicant and his lawyer, B., lodged two separate appeals in cassation with the Supreme Court, raising the same arguments as those raised before the Court of Appeal. They also complained that the applicant had not been taken to the appeal court hearing, despite his request. However, they did not specify how the applicant’s absence from the Court of Appeal had prejudiced his defence or the overall fairness of the proceedings.

According to the applicant, on the same date, after the cassation appeals had been sent to the Supreme Court, lawyer B. stopped representing him. The reason was not notified to the Court. The applicant did not seek the assistance of any other lawyer.

On 19 February 2007 the applicant lodged his application with the Court. He stated, in particular, that he had appealed in cassation, however did not provide a copy of his and his lawyer’s appeals in cassation.

On 2 April 2007 the Court requested the applicant to provide: (i) documentary evidence supporting his allegations of ill-treatment; (ii) copies of the complaints of ill-treatment lodged with the domestic authorities; (iii) copies of the applicant’s and his lawyer’s appeals in cassation, stamped by the Supreme Court to prove their receipt; and (iv) a copy of the Supreme Court’s decision as soon as it would be available.

On 25 June 2007 the applicant sent to the Supreme Court a supplement to his appeal in cassation together with a request for the said copies of documents without, however, indicating why he needed them. The Supreme Court received the request but did not reply to it for unknown reasons. The applicant did not follow up on the request.

On 6 September 2007 the applicant informed the Court that the Supreme Court had left his request for copies of documents unanswered.

On 15 November 2007 the Supreme Court dismissed the cassation appeals lodged by the applicant and his lawyer. Without referring separately to each argument raised in those appeals, the Supreme Court noted that the criminal proceedings against the applicant were not plagued by procedural violations which would justify quashing of the lower courts’ decisions. The conclusion concerning the applicant’s guilt had been sufficiently supported by evidence to which the trial court had referred in its judgment. The Supreme Court noted, in particular, that the applicant’s request to take part in the appeal hearing had been made after that hearing had been held. The applicant did not attend the hearing before the Supreme Court and had not asked for permission to do so.

On 27 November 2007 the Court asked the applicant to send to the Supreme Court a repeated request for copies of the same documents (see paragraphs 38 and 40 above), indicating that he needed them to support his application before the Court. The Court also asked the applicant to provide a copy of such request and a copy of the Supreme Court’s reply to it. The applicant did not follow the Court’s instructions and did not make any further attempts to obtain the copies.

In December 2007 the applicant received a copy of the Supreme Court’s decision and submitted it to the Court on 27 April 2008.


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

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1959 and lived in Pamažupiai, Pasvalys Region.

In February 2007 the applicant started working as a welder for the company N. On 17 April 2007 he was working at a factory construction site in the city of Klaipėda. Around 4.20 p.m., while the applicant and two other workers were standing on scaffolding approximately two metres above the ground, the scaffolding broke and all the workers fell to the ground (hereinafter “the accident”).

According to the applicant, he fell on his back and hit his head on a concrete surface, causing his helmet to break into pieces. One of his coworkers and a metal tool fell on top of him. The applicant lost consciousness. He stated that while he was unconscious, he was moved away from the location of the accident on the orders of his employer and all traces of the accident were removed. At 4.53 p.m. an ambulance was called and the applicant was taken to hospital. It appears that the other workers sustained only minor injuries.

The site of the accident was examined the same day by an inspector from the State Labour Inspectorate. He noted that at the time of the examination the scaffolding was intact and no workers were present at the construction site. The inspector spoke to the construction site manager, V.J.S., who stated that he had not seen the accident because he had been elsewhere on the site. The inspector also spoke to the person in charge of work safety in the company N. who informed him that, on the basis of the initial medical examination, the applicant had not sustained any serious injuries. Accordingly, the inspector decided that the State Labour Inspectorate would not investigate the circumstances of the accident.

On 31 May 2007 another inspector from the State Labour Inspectorate looked into how the accident had happened and concluded that the applicant had fallen from the scaffolding because of his own recklessness. The applicant submitted a complaint against that conclusion and on 15 July 2007 the Inspectorate adopted a new conclusion, holding that the accident had been caused by “the inappropriate organisation of dangerous work” (netinkamas pavojingo darbo organizavimas), in particular because the scaffolding had not complied with the applicable work safety requirements.

On 10 September 2007 the applicant asked the Klaipėda city prosecutor’s office (hereinafter “the prosecutor”) to open a pre-trial investigation into the accident. The investigation was opened on the same day and conducted by an investigator from Klaipėda police (hereinafter “the investigator”).

On 9 October 2007 the investigator instructed a court medical expert to examine the applicant’s medical file in order to determine the number, severity and causes of his injuries. The report on the results of that examination, delivered on 18 October 2007, showed that the applicant had sustained a large cut on his head, face and right ear, as well as multiple fractures of his facial bones, and a contusion on the chest. The injuries had been caused by blunt objects and flat surfaces, and could have occurred when falling from a height. The report noted that the injury on the head had bled, so there should have been traces of blood at the site of the accident. It concluded that the injuries to the applicant’s head and face amounted to a minor health impairment (nesunkus sveikatos sutrikdymas) while the injury to his chest amounted to a negligible health impairment (nežymus sveikatos sutrikdymas). However, it also noted that the injury to the face would leave a big scar, possibly resulting in disfigurement and impairment of facial expression.

On 13 November 2007 the applicant was interviewed as a witness in the investigation. He stated that just before the accident he and five other workers had been carrying a metal platform to attach to a reservoir tank. The applicant and two other workers had been holding the upper part of the platform while standing on the scaffolding and three others had been on the ground, holding the platform’s bottom part. The weight of the platform was about 200 kg. Suddenly, the scaffolding had collapsed and all three workers had fallen to the ground. At that point the applicant had lost consciousness. When he had come to, he had realised that he was not lying near the scaffolding, where he must have fallen, but in a different place. He had not seen any debris from the scaffolding around him, or any other traces of the accident.

On the same day the applicant was granted the status of a victim in the investigation.

On the same day the investigator instructed a court medical expert to examine the applicant’s scars caused by the accident. The report on the results of that examination, delivered on 15 November 2007, found that the facial injury had left a large, rough scar, causing a minor disfigurement and impairment of facial expression. It also found that the scar and the resulting deformation could only be removed by plastic surgery, so the injury was considered as irreparable. As a result, the report concluded that the applicant’s injury was legally classified as serious health impairment (sunkus sveikatos sutrikdymas).

In November and December 2007 the investigator interviewed several of the applicant’s co-workers and other people who had worked near the factory construction site. It appears that the co-workers stated that no platform had been carried on the day of the accident. None of those interviewed had seen how the applicant had fallen from the scaffolding. From January to June 2008 more witnesses were interviewed and the investigator requested various documents from the applicant’s employer and from several State institutions which had assessed the applicant’s health and ability to work after the accident.

On 13 August 2008 the applicant was interviewed again. He stated that before the accident he had sometimes felt dizzy and had a feeling of numbness in his legs, but he had been declared fit to work after a medical examination.

On 6 October 2008 the prosecutor discontinued the pre-trial investigation. He relied on the State Labour Inspectorate report that no damage to the scaffolding on the day of the accident had been observed (see paragraph 9 above), and noted that none of the witnesses had corroborated the applicant’s description of how he had fallen. The prosecutor observed that the applicant may have fallen from the scaffolding owing to his own recklessness (dėl savo paties neatsargumo), possibly because of the numbness in his legs. Accordingly, the prosecutor decided that the scaffolding had complied with safety requirements, and that there were no grounds to find that the applicant’s employer had violated any laws.

The applicant appealed against the prosecutor’s decision. He also asked for the appointment of a different prosecutor to supervise the case and to carry out a forensic examination in order to determine the causes of the accident. On 27 October 2008 a senior prosecutor dismissed his appeal, noting that around fifty witnesses had been questioned, but nobody had corroborated the applicant’s claims. However, on 5 December 2008 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court noted that the prosecutor had not addressed the State Labour Inspectorate’s conclusion of 15 July 2007 (see paragraph 10 above), and that other witnesses had only stated that they had not seen how the applicant had fallen from the scaffolding but had not disputed his account. The court also considered that the prosecutor’s conclusion that the applicant had fallen because of his own recklessness or a medical condition had been “speculative and not based on any objective facts”. However, the court rejected the applicant’s request to appoint a different prosecutor as unfounded and did not examine his request to carry out a forensic examination, noting that the choice of investigative measures was the prerogative of investigators and prosecutors.

In January and February 2009 the investigator examined the site of the accident and interviewed more witnesses.

On 2 April 2009 the prosecutor instructed the investigator to carry out several additional investigative measures. Among other things, the investigator was requested to identify whether on the day of the accident or earlier the applicant and other workers had been ordered by their employer to attach the metal platform to the reservoir tank.

In April and May 2009 the investigator carried out additional interviews with several witnesses and requested further information from the applicant’s employer and from the medical institutions which had examined him.

On 12 May 2009, in response to a prior complaint by the applicant, the deputy chief prosecutor of the Klaipėda city prosecutor’s office informed him that there were no grounds to find that the pre-trial investigation in his case had been unduly protracted.

On 21 May 2009 the applicant’s co-worker V.K. submitted a written statement to the State Labour Inspectorate that on the day of the accident he and other workers had been ordered by their supervisor V.J.S. to attach the metal platform to the reservoir tank. V.K. also submitted that the scaffolding had been made of very thin wood and could have broken at any time. He further alleged that immediately after the accident the director of the company N. had told other workers to repair the scaffolding. V.K. also asserted that he had previously given different testimony because of pressure from his employer.

On 8 June 2009, in response to a complaint by the applicant about the length of the investigation, the chief prosecutor of the Klaipėda city prosecutor’s office noted that “the investigation had not always been of sufficient intensity” (tyrimo intensyvumas ne visada buvo pakankamas) and that the prosecutor had been instructed to set a deadline for completing the investigation. The chief prosecutor also informed the applicant that it was still necessary to interview several witnesses living in various parts of the country and to carry out further investigative measures.

On 17 June 2009 the State Labour Inspectorate adopted a new conclusion on the circumstances of the accident, holding that the scaffolding had not complied with applicable safety requirements and that the applicant had not been given appropriate instructions for working at height. Accordingly, the Inspectorate concluded that the applicant’s employer had breached the legal requirements concerning safety at work.

On 3 July 2009 the prosecutor discontinued the pre-trial investigation. He observed that the applicant and other workers had been using the scaffolding for several days before the accident and there had not been any accidents during that time, so there were no grounds to find that the scaffolding had been unsafe. The prosecutor also concluded that the workers had not been ordered by their employer to attach the metal platform to the reservoir tank because the construction manager, V.J.S., had not been at work on the day of the accident. Accordingly, the employer could not be held responsible for the workers’ decision to carry the platform on the scaffolding. The prosecutor further observed that, in any event, the applicant had had the right to refuse to carry out tasks which were unsafe or for which he was unqualified, but he had not exercised that right. The prosecutor therefore concluded that the accident had been caused by the recklessness of the workers and not by the actions or omissions of the employer.

The applicant appealed against the prosecutor’s decision but on 24 July 2009 a senior prosecutor dismissed his appeal. However, on 13 October 2009 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court observed that the absence of previous accidents on the scaffolding could not be interpreted as evidence that the scaffolding was safe. It also held that the applicant’s right to refuse to carry out tasks in unsafe conditions did not excuse the employer from a duty to ensure that unsafe conditions did not exist at the workplace. The court further noted that attaching the platform to the reservoir tank had clearly been part of the construction work, so the employer had a duty to properly supervise the workers and to instruct them how to carry out that task safely – and by failing to do so, the applicant’s employer had acted contrary to the law.

The prosecutor appealed against that judgment, but on 28 October 2009 the Klaipėda Regional Court dismissed the appeal. In its judgment the court noted that although more than two years had passed since the accident, the prosecutor had still not determined the precise way in which the accident had happened, and that without doing that it was not possible to determine who had been responsible for it. The court also considered it unlikely that the workers would have decided to attach the platform without receiving an order from their supervisor or at least informing him, so it was necessary to examine whether the construction manager V.J.S. had been present at the construction site at any time that day. Lastly, the court drew attention to the fact that “some witnesses” had admitted to giving false testimony under pressure from the employer and so it was necessary to investigate those claims further.

In November and December 2009 the investigator arranged several formal confrontations between witnesses, interviewed additional witnesses, and requested further information from the applicant’s employer and the hospital where the applicant had been examined.

On 17 December 2009, following a complaint by the applicant, the deputy chief prosecutor of the Klaipėda region prosecutor’s office sent a note to the Klaipėda city prosecutor’s office, observing that the pre-trial investigation had been going on for more than two years, and requesting that it promptly carry out any necessary further investigative measures in order to make a well-founded final decision.

On 7 January 2010, after an application by the prosecutor, the Klaipėda District Court ordered a forensic examination of the precise way in which the accident had happened and its causes. The forensic expert examined the case file and delivered a report on 17 February 2010. The report noted that there was insufficient information in the case file concerning the technical characteristics of the metal platform and the scaffolding, so the way the accident had happened could be established only in part. On the basis of the available material, the report found that the weight of the platform had exceeded the weight limit of the scaffolding and had thus caused it to collapse. Accordingly, it concluded that the scaffolding had not been suitable for the work for which it was used, and that the workers had not been adequately informed about how to carry out their work safely. The report found that the employer had thereby breached the applicable work safety requirements.

In March 2010 the investigator interviewed additional witnesses and arranged formal confrontations.

On 19 May 2010 the prosecutor again discontinued the pre-trial investigation. He held that witness testimony and other evidence showed that the applicant’s supervisor V.J.S. had not been present at the construction site on the day of the accident and that he had not ordered the workers to attach the platform. As a result, the prosecutor concluded that V.J.S. had not had any duty to ensure the safety of that operation. He further concluded that the accident had been caused by the workers’ reckless decision to carry the platform, which had exceeded the weight limit of the scaffolding. The prosecutor noted that although the scaffolding had not fully complied with the applicable safety requirements, that had not been the main cause of the accident and thus the applicant’s employer could be held liable only for an administrative offence of failure to comply with work safety requirements (see paragraph 58 below), but not for a criminal offence.

The prosecutor also observed that a separate pre-trial investigation should be opened in order to examine the claims of some witnesses that they had been pressured by their employer to give false testimony. However, from the material available to the Court it appears that no such investigation was opened.

The applicant appealed against the prosecutor’s decision, but on 7 June 2010 a senior prosecutor dismissed his appeal. However, on 9 August 2010 the Klaipėda District Court overruled the prosecutor’s decision and reopened the pre-trial investigation. The court underlined that attaching the platform to the reservoir tank had been an inherent part of the construction work carried out by the applicant and other workers, so it could not be considered that they had decided to do that of their own free will. It referred to the expert report of 17 February 2010, noting that that report had given grounds to believe that the applicant’s employer had failed to ensure safe working conditions. The court further noted that V.J.S. had not been officially authorised to leave his workplace on the day of the accident, and thus he had failed to ensure the safety of the workers under his supervision.

On 15 October 2010 V.J.S. was officially notified that he, being a person authorised by an employer to supervise construction work, was suspected of violating safety requirements at work, which had resulted in an accident, as set out in Article 176 § 1 of the Criminal Code.

In October and November 2010 the investigator interviewed V.J.S. and several witnesses.

On an unspecified date the applicant complained to the Prosecutor General’s Office that the pre-trial investigation had been protracted, in particular because it had been discontinued and reopened several times. On 26 November 2010 the Prosecutor General’s Office dismissed his complaint and stated that the repeated discontinuation of the investigation did not give grounds to find that any requirements of the Code of Criminal Procedure had been violated.

In January and February 2011 the investigator carried out additional interviews with several witnesses and requested further information from the applicant’s employer.

On 14 February 2011 the applicant was informed that the pre-trial investigation had been completed. V.J.S. submitted a request to continue the investigation and carry out additional investigative measures but that request was dismissed.

On 1 April 2011 the prosecutor issued an indictment against V.J.S. under Article 176 § 1 of the Criminal Code and on 5 April 2011 the case was transferred to the Klaipėda District Court for examination on the merits. On 28 April 2011 the chairperson of that court noted that the case was complex and large-scale, and allowed an additional thirty days to prepare for its examination.

The Klaipėda District Court held the first hearing on 30 June 2011 and decided to adjourn the case until 27 September 2011 because several witnesses were not present.

The next hearing was held on 27 September 2011 but several witnesses were absent again and the Klaipėda District Court fined them for failing to appear. The court also decided to adjourn the case until 24 November 2011 in order to ensure the participation of all the necessary witnesses and, as requested by the applicant, to obtain the technical details about the metal platform.

It appears that subsequently the case was adjourned again and a new hearing was scheduled for 14 December 2011.

On 13 December 2011 V.J.S. submitted a medical certificate to the court indicating that he would be sick from 12 to 16 December 2011, and asked for a further adjournment.

The Klaipėda District Court held a hearing on 14 December 2011 but because of the absence of the accused it was decided to adjourn and to schedule a new hearing for 5 January 2012.

At the hearing of 5 January 2012 V.J.S.’s lawyer informed the Klaipėda District Court that his client was still sick and had a medical certificate that was valid for another seven days. The court scheduled new hearings for 17, 19 and 24 January 2012.

On 16 January 2012 the applicant submitted a civil claim against V.J.S., asking for non-pecuniary damages of 300,000 Lithuanian litai (LTL – approximately 86,886 euros (EUR)).

On 17 January 2012 V.J.S.’s lawyer asked the court to adjourn the case again because his client had been admitted to hospital. Later, V.J.S. submitted a medical certificate indicating that he would be sick from 16 to 23 January 2012, which also showed that he would undergo rehabilitation treatment from 23 January to 6 February 2012.

The Klaipėda District Court held a hearing on 24 January 2012 and decided to adjourn until 14 February 2012. Subsequently, owing to the continued illness of the accused, the case was adjourned until 17 February 2012, then again until 1 March 2012 and 16 March 2012.

On 19 March 2012 the applicant asked the Klaipėda District Court to continue its examination of the case in the absence of the accused, complaining that the latter was deliberately avoiding appearing before the court. The Klaipėda District Court dismissed that application, informing the applicant that V.J.S. had submitted the required medical certificates to prove his illness and that domestic law did not allow for the examination of a criminal case in the absence of the accused. The court also noted that examination of the case had not been unduly protracted because the hearings had been scheduled with as little time between them as possible.

Subsequently, owing to the accused’s continued illness, the court further adjourned the case to 11 April 2012, 24 April 2012, and then to 8 May 2012.

On 7 May 2012 the applicant asked the court to adjourn the hearing because he had to be admitted to hospital for surgery.

The Klaipėda District Court held a hearing on 8 May 2012 from which the applicant was absent. During the hearing the prosecutor asked the court to terminate the case against V.J.S. as time-barred. The court adopted a decision on 14 May 2012 and terminated the case. It noted that V.J.S. had been charged with a crime of negligence, and in such cases the statute of limitations, applicable at the time of the accident, was five years (see paragraph 59 below). The court also observed that the domestic law provisions on the statute of limitations, applicable at the time of the accident, were “unconditional” (besąlygiškos nuostatos) and did not provide for the possibility to suspend the limitation period. The domestic law was subsequently amended to allow such a decision (see paragraph 60 below), but the new legal framework could not be applied retroactively to the detriment of the accused.

The court did not examine the applicant’s civil claim and noted that he had the right to institute separate civil proceedings for damages.

On 4 June 2012 the applicant complained to the Klaipėda Regional Court that the examination of the case before the district court had been so protracted that it had become time-barred, and asked the regional court to identify the reasons for that protraction. The court considered that complaint as an appeal by the applicant against the Klaipėda District Court’s judgment of 14 May 2012 but refused to admit it because the applicant had not signed it or properly outlined the reasons for the appeal. The applicant did not submit another appeal against the judgment of 14 May 2012.

On an unspecified date V.J.S. appealed against the Klaipėda District Court’s judgment of 14 May 2012 and asked the court to examine the case on the merits and to acquit him, but on 13 June 2012 his appeal was dismissed.

On 22 November 2012 the Prosecutor General’s Office, in response to a complaint by the applicant, informed him that it had analysed the work of the prosecutors involved in the case and had not detected any “substantial violations” (esminiai pažeidimai) of the Code of Criminal Procedure.


Preliminary objection dismissed (Article 34 - Victim);Remainder inadmissible (Article 35-3 - Ratione personae);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);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)

Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney

The applicant was born in 1951 and lives in the United States of America.

On 21 December 1995 the Tirana District Court (“the District Court”) acknowledged the inherited property rights of some landowners over a plot of land measuring 24 hectares (vendim për vërtetim fakti). On 13 February 1996 the District Court acknowledged that the landowners also had inherited property rights over installations and fuel tanks of a petrol station located on the land (vendim për vërtetim fakti).

In the meantime, on the assumption that the landowners’ properties would be restored in natura by the Commission on Property Restitution and Compensation, in January and February 1996, the applicant concluded two agreements with one of the landowners, who was acting on his own and the remaining heirs’ behalf, whereby the applicant would assist the landowners in the process of the privatisation of installations and fuel tanks on the land (see paragraphs 21-22 below). In May 1996 he concluded a sales contract (see paragraph 23 below). Following the conclusion of these contracts, the validity of which became the object of a dispute (see section B below), all landowners appointed the applicant to act on their behalf in proceedings related to the protection of their property rights.

On the strength of the District Court’s decisions, on an unspecified date the landowners lodged a request with the Tirana Commission on Property Restitution and Compensation (“the Commission”) seeking restitution of the above-mentioned property by the domestic authorities. On 7 March 1996 the Commission dismissed the landowners’ request on the grounds that the land was not subject to the Property Act as it was located outside the legal city boundaries (ndodhen jashtë vijave kufizuese). The landowners appealed to the District Court.

On 24 April 1996 the District Court quashed the Commission’s decision and allocated the landowners a plot of land measuring 56,500 sq. m. Relying on an expert’s report, the court held that the value of the respective installations and fuel tanks constructed thereon did not exceed 20% of the land’s total value. It therefore ordered that these objects be restored at no cost. The petrol station was situated on the main road between the cities of Tirana and Durrës and it was used and administered by two State-owned oil companies. The judgment became final on 7 May 1996, no appeal having been lodged against it.

Subsequent to the above judgment, on 30 May 1996 the Mortgage Office issued a property certificate (vërtetim pronësie – Ipoteka), according to which the landowners had registered title to the plot of land measuring 56,500 sq. m. on which the fuel tanks and installations had been erected (mortgage register entry no. 3350 of 8 May 1996). The petrol station and fuel tanks were subsequently expropriated in the public interest.

Between 1996 and 1998 the landowners’ property rights were unsuccessfully challenged by various State institutions. On one occasion the domestic courts dismissed the claim, whereas on four other occasions they discontinued the proceedings on various grounds. The applicant joined the proceedings as a third party.

On 25 March 1998 the Ministry of Economy challenged the lawfulness of the District Court’s judgment of 24 April 1996 (see paragraph 11 above) recognising the landowners’ property rights. The action was dismissed by the Supreme Court with final effect on 22 December 1999.

On 28 December 1999 and 7 January 2000 the Ministry of Economy and the State-owned oil companies lodged two separate applications for supervisory review of the domestic judgments upholding the landowners’ property rights, namely the District Court’s judgment of 24 April 1996 and the Supreme Court’s judgment of 22 December 1999.

On 12 May 2000 the Supreme Court Joint Benches gave two separate decisions by accepting both applications for supervisory review and the reopening of the proceedings. A constitutional appeal lodged by the applicant on 1 August 2000 was declared inadmissible by the Constitutional Court on 7 December 2000. As a result of the remittal of the cases to the District Court, on an unspecified date the court decided to join the proceedings. The applicant took part in them as a third party.

In the first set of rehearing proceedings, the case was heard by the District Court, the Tirana Court of Appeal (“the Court of Appeal”) and the Supreme Court, which on 18 March 2003 decided to remit the case to the Court of Appeal for a further rehearing.

In the second set of rehearing proceedings, the case was heard by the Court of Appeal and the Supreme Court, which on 27 October 2005 decided to remit the case to the Court of Appeal for fresh consideration.

In the third set of rehearing proceedings, the case was heard by the Court of Appeal, the Supreme Court and the Constitutional Court, which gave its final decision on 20 September 2009. The domestic courts ruled in favour of the landowners.

In the meantime, on 19 June 2007 the Tirana Agency for the Restitution and Compensation of Property, which had replaced the Commission, recognised the landowners’ inherited property rights over the plot of land measuring 24 hectares (240,000 sq. m) and ordered that they be compensated in respect of 183,500 sq. m in one of the forms prescribed by law, the remaining 56,500 sq. m having already been decided upon by the authorities. The authorities’ failure to pay compensation in respect of the 183,500 sq. m is the subject of application no. 5915/14, of which notice was given to the Government as a follow-up to the Court’s pilot judgment in the case of Manushaqe Puto and Others v. Albania (nos. 604/07, 43628/07, 46684/07 and 34770/09, 31 July 2012).

On 18 January 1996 one of the landowners, acting on his own and the remaining heirs’ behalf, concluded an agreement (akt marrëveshje) with the applicant’s company, according to which the latter would secure finance for the privatisation of fuel tanks and installations located on the landowners’ plot of land, in respect of which they would exercise their right of first refusal (e drejta e parablerjes) at the time of privatisation. In return, the landowners would transfer ownership rights to the applicant’s company upon privatisation. Subsequent to this transaction, the parties would form a joint company, whose registered capital would be made up of the applicant’s company’s ownership of the fuel tanks and other installations, as well as the landowners’ ownership of the plot of land.

On 29 February 1996 the same landowner, again acting on his own and the remaining heirs’ behalf, concluded a similar agreement (akt marrëveshje) with the applicant’s company for the privatisation of the fuel tanks and installations, the difference being that some objects would remain the landowners’ property.

On 23 May 1996 the same landowner, again acting on his own and the remaining heirs’ behalf, concluded a notarised sales contract with the applicant for the sale of almost all of the fuel tanks and installations for 100,000 United States dollars (USD), which, according to the contract, was paid by the applicant to the landowners. On the same date the Mortgage Office issued a property certificate (vërtetim pronësie – Ipoteka), according to which the applicant had registered title to the petrol station fuel tanks and installations (mortgage register entry no. 4135 of 23 May 1996).

On 23 and 25 May 1996 the same landowner, acting on his own behalf, concluded two loan agreements with the applicant to lend the latter a total of USD 200,000. The agreements contained no details as to the purpose of the loan.

On 10 October 2002 the landowners instituted proceedings against the applicant seeking the annulment of the agreements and contract concluded between February and May 1996 (see paragraphs 21-24 above). They requested the court to declare the agreements and contract null and void (pavlefshmëri absolute) without any legal consequences for the parties whatsoever. The claim was signed by their lawyer, to whom they had given power of attorney.

Following remittals of the case, on 31 March 2005 the District Court decided to discontinue the proceedings (pushimin e çështjes) as the landowners had failed to attend court without good reason.

On 17 April 2005 the landowners instituted a fresh set of proceedings against the applicant seeking the annulment of the agreements and contract concluded between February and May 1996. The claim was signed by only their lawyer.

On an unspecified date the landowners requested the District Court to obtain and process all documents from the case-file concerning the first set of proceedings, including the powers of attorney. The court accepted this request.

On 27 July 2005 the applicant requested the court to stay the proceedings pending the outcome of a criminal complaint he had lodged with the district prosecutor’s office against the landowners alleging forgery of documents.

On 20 October, 11 and 18 November 2005 and 27 February 2006 the applicant, having regard to the number of previous requests that had been rejected, challenged the bench.

On 15 November 2005 the presiding judge of the bench withdrew from the case, given the applicant’s repeated requests for withdrawal. On 9 December 2005 the President of the District Court set aside the withdrawal, finding that it did not contain any of the grounds stipulated in Article 72 of the Code of Civil Procedure.

On 17 February 2006 the applicant lodged a counterclaim requesting the court to decide the requests he had already submitted for the withdrawal of the bench. According to the counterclaim, the landowners had not authorised their lawyer to represent them in the proceedings and their claim was time-barred. Furthermore, the loan agreements were fictitious and their conclusion with only one of the landowners could not have a bearing on the sales contract of the fuel tanks and installations. The applicant argued that a number of factors pointed to his having lawful property rights over the fuel tanks and installations, such as the fact that all the agreements and contracts were lawful and valid, the property had been registered in his name, he had represented the landowners in the domestic proceedings and he had taken legal action to defend their interests.

On 18 April 2006 the District Court declared the agreements and contracts null and void (absolute nullity). It found them to be fictitious on the grounds that they had been concluded at a time when the said property in question was being administered by the State, no property rights having been transferred to the landowners. In accordance with the law, the installations had been privatised at no cost, because their value was less than 20% of the land’s value. Furthermore, no joint company had been set up by the applicant and landowners and no money had been lent to the applicant in accordance with the loan agreements. They had been concluded with a view to having an assurance for the execution of the sales contract, in which the sale price was the same. Despite the property certificate (no. 4135 of 23 May 1996), the fact that no actions had been effected pursuant to the agreements and contracts and that no legal consequences had resulted for the parties, the District Court concluded that the agreements were fictitious in accordance with Article 92(ç) of the Civil Code. It further ordered that the entry of 23 May 1996 (see paragraph 23 above) in the immovable property register be erased.

The applicant appealed, arguing that the District Court bench was biased because disciplinary proceedings had been instituted for the dismissal of the presiding judge of the bench for breaches of law. In this connection, the withdrawal of the presiding judge of the bench had not been accepted by the President of the District Court and his four requests for the withdrawal of the bench were rejected, no such mention having been made in the hearing records. The applicant further submitted that the claim had been brought outside the statutory time-limit, and had been signed by only the lawyer and not the landowners, the power of attorney dating back to 2002 and being limited in time and scope, and that the facts of the claim were unrelated. He also objected to the fact that his counterclaims of 28 June 2005 and 17 February 2006 had not been admitted to the case-file. Moreover, he contended that the District Court had not accepted any of the twenty-four requests for pieces of evidence he had produced, and had made findings in excess of the requests contained in the object of the claim. He argued that four hearings had been held between 6 April and 4 July 2005, without the landowners providing any good reason for their non-appearance to supplement the claim. In his view, his spouse, who was a co-owner, should have been invited to attend the hearings. Finally, he claimed that the contracts had been concluded in complete conformity with the domestic law and that there had been no need to summon witnesses. In this connection, the landowners had confirmed the applicant’s ownership of the plot of land by way of specific powers of attorney, while the applicant had lodged numerous procedural requests, applications and appeals and had attended hearings to defend his and their property rights.

On 30 November 2006 the applicant challenged the bench in the light of the previous decisions given against him. On the same date he requested that thirty-nine items of evidence and twenty procedural requests absent from the case-file before the District Court be readmitted.

On 4 December 2006 the applicant requested that eight additional items of evidence be admitted to the case-file.

On 19 February 2007 the Deputy President of the Court of Appeal requested the Minister of Justice to appoint three judges from other appellate courts to hear the case, since all of its judges had sat in the proceedings.

On 15 March 2007 the Minister of Justice, following a decision taken by the High Council of Justice (“HCJ”), informed the Court of Appeal that three judges of the Military Court of Appeal would hear the case.

On 29 March 2007 the applicant challenged the new composition of the bench, submitting that the HCJ should appoint judges from other ordinary appellate courts instead of the Military Court of Appeal.

On 25 May 2007 the Court of Appeal, composed of three judges, upheld the District Court’s judgment of 18 April 2006 (see paragraph 33 above). It transpires that the applicant had withdrawn the request for the exemption of the bench from hearing the case, and that the court had partially reopened the judicial examination and accepted new items of evidence as produced by him. The Court of Appeal held that the objects mentioned in the agreements and contracts of 1996 were, at the time of the judgment, being administered by the State and that their ownership had not yet been transferred to the landowners. Consequently, those contracts and agreements were fictitious under Article 92 (ç) of the Civil Code and were of no legal effect. It rejected all of the applicant’s arguments as unfounded and held that he had failed to adduce evidence to object to or challenge the landowners’ claim, which was supported by the documents contained in the case-file. According to the Court of Appeal, a claim requesting absolute nullity was not subject to a statutory limitation period.

The presiding judge of the bench, judge Y.M, dissented. In a separate opinion, he stated that the claim had not been signed by the landowners. The evidence in the case-file was not capable of demonstrating that the agreements were fictitious, since the parties’ intentions had been real and lawful. As a result, the landowners did not have legal standing to bring the claim as they could not prove that there had been a breach of a substantial right (e drejta materiale). Their claim was time-barred and the courts had failed to take into account the statutory limitation period. The evidence produced by the applicant showed that the landowners, by virtue of powers of attorney or other documents issued between 1997 and 2005, had appointed the applicant to act as their representative. This pointed to the fact that the parties had wished their transactions to have legal effect and this, in itself, contradicted the fictitious nature of the agreements and contracts. In his view, the court had rejected all of the applicant’s requests without giving any reasons in the decision.

On 9 July 2007 the applicant appealed, raising seventy-two grounds of appeal. In addition to maintaining the same complaints he had raised before the Court of Appeal, he alleged that the composition of the District Court had not been drawn by lots and that the Court of Appeal had not been a “tribunal established by law” as it had been composed of military judges. He claimed that his requests for the withdrawal of the Court of Appeal judges had not been examined and that his requests for the admission of numerous items of evidence had not been processed by the Court of Appeal. He further objected to the lower courts’ application and interpretation of the domestic law since, in his view, he had been authorised by the landowners to act as their representative, had lodged various appeals and other procedural requests and followed the judicial proceedings with the landowners, had requested the enforcement of final decisions on his and the landowners’ behalf and had sought the criminal prosecution of third parties.

On 23 November 2007 the Supreme Court decided to stay execution of the Court of Appeal’s judgment of 25 May 2007 pending the outcome of the applicant’s appeal.

On 25 January 2010 the Supreme Court declared the applicant’s appeal inadmissible in accordance with Article 472 of the Code of Civil Procedure (no valid grounds of appeal).

On 18 March 2010 the applicant lodged an eighty-three page constitutional appeal. On 15 September 2010 he supplemented it with a fifteen-page memorandum. In addition to maintaining the same grounds of appeal he had raised before the lower courts, the applicant also complained of a lack of reasoning in the Supreme Court’s decision and about the length of the proceedings.

On 17 September 2010 the applicant requested that judges X.Z, S.B and F.A withdraw from the appeal on the grounds that they had rejected a previous constitutional appeal lodged by him on 20 September 2009 in relation to another unrelated set of proceedings. On 27 September 2010 he requested that judge V.T withdraw from the appeal on the grounds that she had been on the bench that had decided against him in another appeal in 2000.

On 17 January 2011 the applicant was informed of the Constitutional Court’s decision of 22 November 2010 rejecting his appeal. It found nothing to suggest a lack of impartiality on the part of the Supreme Court bench and that, even though some of the judges had heard previous appeals lodged by the applicant with the Supreme Court, those appeals concerned different facts, parties and sets of proceedings. It dismissed the remaining complaints, finding that they related to the assessment of facts and the outcome of the proceedings, which was within the lower courts’ jurisdiction.


CASE OF BAGHDASARYAN AND ZARIKYANTS v. ARMENIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

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

The applicants were born in 1953 and 1961 respectively and live in Yerevan.

The applicants and a third person jointly owned a flat which measured 55.7 sq. m. and was situated at 25 Byuzand Street, Yerevan.

On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs for town-planning purposes, having a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, the Agency) was set up to manage the implementation of the construction projects.

On 7 September 2004 the applicants’ flat was valued upon the request of the Agency by a valuation organisation. The market value of the flat was estimated at 20,080 United States dollars (USD).

In January 2005 the Agency informed the applicants that their flat was subject to expropriation and that it had been valued at USD 20,080. An additional sum of USD 14,734.70 was offered to the applicants as a financial incentive if they signed an agreement within five days.

The applicants did not accept the offer, not being satisfied with the amount of compensation offered.

On 20 January 2005 the Agency lodged a claim against the applicant Sedrak Baghdasaryan, seeking to oblige him to sign an agreement on the taking of the flat in question for State needs and to have him, and the others residing in the flat, evicted.

On 10 March 2005 the Kentron and Nork-Marash District Court of Yerevan granted the Agency’s claim, ordering the applicants to sign the agreement for the total amount of USD 20,080.

On 24 March 2005 the applicants lodged an appeal.

On 17 May 2005 the Court of Appeal granted the Agency’s claim upon appeal.

On 31 May 2005 the applicants lodged an appeal on points of law in which they argued, inter alia, that the deprivation of their property was not prescribed by law as required by Article 28 of the Constitution and that there was no public interest in depriving them of their property.

On 7 July 2005 the Court of Cassation decided to dismiss the applicants’ appeal.

On an unspecified date the awarded sum was paid to the applicants.