No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Turkey)

András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Peer Lorenzen;Robert Spano

The applicant, Mr Erol Palanci, is a Turkish national, who was born in 1971 and lives in Basel, Canton of Basel-Stadt (Basle Urban).

In 1989 he entered Switzerland for the first time and applied for asylum. He lived there, working in the gastronomic sector, until 1993, when his asylum request was dismissed. On 19 November 1993 he left Switzerland for Germany. On 10 February 1994 he married his current wife, a Turkish national with a residence permit for Switzerland, in Germany.

Because his wife had a residence permit for Switzerland, the applicant was able to re-enter the country on 15 July 1994, and he was given a residence permit on 28 July 1994. Three daughters were born to the couple in Switzerland in 1995, 1997 and 2000. Additionally, the wife’s eldest daughter from her first marriage, born in 1985, was also living with the couple.

In 1995 a criminal charge was brought against the applicant because he had been working without the requisite work permit. Furthermore, in 1997, having falsified his wife’s signature on an official document, he was warned for the first time by the Directorate for Residence Services of the Department for Security of the Canton of Basel-Stadt (Sicherheitsdepartement des Kantons Basel-Stadt, Dienste Aufenthalte - hereinafter “the cantonal immigration authorities”) that he would have to expect immigration measures to be taken if he did not improve his behaviour.

In August 1999 the applicant and his wife separated. The children remained with the applicant’s wife and he was ordered to pay maintenance by the Cantonal Civil Court of the Canton of Basel-Stadt.

On 1 December 1999 the applicant was sentenced by the Criminal Court of Basel-Stadt to a suspended custodial sentence of three months for multiple bodily assaults on his wife, in part committed with a dangerous object.

In view of his conviction, his considerable accumulation of debts and his dependence on social welfare, the cantonal immigration authorities issued a further warning to the applicant on 22 December 1999.

In March 2001 his wife filed for divorce. In September 2001 the cantonal immigration authorities again warned the applicant, since his debts had grown further and his entire family was living on social welfare.

Despite those warnings, the applicant’s debts grew further. In May 2002 they amounted to approximately 177,850 Swiss francs (CHF) (approximately 145,609 euros (EUR)). Additionally, he had failed to comply with his duty to pay maintenance for his family in the amount of CHF 46,150 (approximately EUR 37,783). In August 2002 the cantonal immigration authorities decided to extend the applicant’s residence permit for another six months. However, he was firmly advised to take steps to improve his financial situation.

In November 2002 the applicant’s wife withdrew her divorce petition. However, she did not wish to seek a reconciliation and the applicant was obliged to continue paying maintenance.

In March 2003 the applicant was sentenced to sixty days’ imprisonment for wilful neglect of his obligation to pay maintenance.

In December 2003 the cantonal immigration authorities warned the applicant for the last time that he must expect implementation of the most serious immigration measures if his situation did not improve and his debts grew further. They gave him until June 2004 to prove that his financial and professional situation had stabilised and that he had complied with his obligation to pay maintenance.

In March 2004 the applicant’s wife filed for divorce for the second time. She also brought another criminal charge against him for acts of aggression and threatening behaviour.

In August 2004 the applicant’s wife withdrew her criminal complaint against the applicant for domestic violence.

By letter dated 11 October 2004 the immigration authorities informed the applicant of their intention to expel him from Swiss territory and granted him a period of grace in which to make his submissions.

On 22 October 2004 the applicant’s wife withdrew her divorce action and from 25 October 2004 onwards the couple lived together again.

On 7 February 2005 the cantonal immigration authorities decided that the applicant’s residence permit would not be extended and that he had to leave Switzerland for an indeterminate period of time. They held that over the preceding years, owing to the applicant’s continuously accumulating debts and his failure to pay maintenance, his family had been dependent to a considerable degree on social welfare, and he had not proved that he was capable of observing public order and safety in Switzerland. In accordance with section 10 § 1 (b) and (d) of the Federal Act on the Temporary and Permanent Residence of Foreigners (hereinafter “the Foreigners’ Residence Act” - see paragraph 29 below) and section 16 of its Implementing Ordinance (see paragraph 30 below), he could therefore be expelled. They reasoned that since 1994, when the applicant had entered Switzerland for the second time, he had repeatedly been convicted of offences. Furthermore, despite the immigration authorities’ repeated warnings, his financial situation was serious and had continuously deteriorated. As at the date of the decision, his debts amounted to about CHF 352,890 (approximately EUR 288,918) and the outstanding maintenance payments to CHF 74,710 (EUR 61,166). In addition, from June 2004, he had worked as an associate of a company in the gastronomic sector without having previously applied for the necessary work permit. Although he had never paid maintenance or complied with the debt repayment agreements, he had invested capital of CHF 20,000 (approximately EUR 16,374) in that company. The cantonal immigration authorities therefore concluded that the applicant had not complied with the conditions previously set out by them for renewal of his residence permit. Furthermore, the fact that the applicant had resumed matrimonial life with his wife on 25 October 2004 did not alter those findings, since his wife had already filed for divorce twice and there had been incidents of domestic violence in the past. The applicant had, moreover, registered his residence at the family home only after he had been informed by the immigration authorities in October 2004 of their intention to expel him. However, he had spent many months between September 2004 and March 2005 in Turkey and it could therefore hardly be assumed that he had actually re-established family life. The applicant’s return to his country of origin – Turkey – was also feasible, because he had spent most of his life there and maintained close social and family ties with that country, as evidenced by his regular visits there. Additionally, even though he claimed that his relationship with his children was close, he had not paid maintenance for them since the separation from his wife. Lastly, the children were not prevented from visiting him in Turkey and the contact could be maintained at a distance. The applicant’s expulsion was therefore proportionate and he was required to leave Switzerland by 7 May 2005.

On 14 September 2005 the applicant was sentenced for the second time to a suspended custodial sentence of forty-five days for wilful neglect of his obligation to pay maintenance.

The applicant lodged an appeal against the decision of the cantonal immigration authorities with the director of the Department for Security of the Canton of Basel-Stadt (Vorsteher des Sicherheitsdepartement des Kantons Basel-Stadt – hereinafter “the director”), who dismissed the appeal on 16 January 2006. The director established that the applicant had met the criteria for expulsion under domestic law in several respects. To begin with, the applicant had been logged in the criminal register nineteen times since 1995. While the majority of the sentences had been for minor offences – mainly against the Road Traffic Act – three of them were serious convictions. These were: one for domestic violence in 1999, resulting in a suspended custodial sentence of three months’ imprisonment, and two others for wilful negligence of his obligation to pay maintenance, warranting sixty days’ imprisonment in 2003 and a suspended custodial sentence of forty-five days in 2005. Since the applicant had thus been found guilty of imprisonable offences (see paragraph 31 below), he fulfilled the criterion for expulsion as provided in section 10 § 1 (a) of the Foreigners’ Residence Act (see paragraph 29 below). Secondly, despite repeated warnings by the cantonal immigration authorities, the applicant’s financial situation had continuously deteriorated. In this regard the director held that, despite having had several jobs in the gastronomic sector, the applicant had repeatedly tried to start his own business and had frivolously invested money in projects with poor prospects. His debts were therefore self-imposed and, from an overall perspective, he had, continuously throughout the years, failed to show any willingness to observe public order and to integrate into the Swiss system. He therefore additionally fulfilled the condition for expulsion according to section 10 § 1 (b) of the Foreigners’ Residence Act (see paragraph 29 below) and section 16 of its Implementing Ordinance (see paragraph 30 below). By contrast, despite still not having paid back to the State all the maintenance received for his family, after 30 September 2004 the applicant’s family had no longer been dependent on social welfare. Therefore, section 10 § 1 (d) of the Foreigners’ Residence Act (see paragraph 29 below) no longer applied to the applicant. With regard to Article 8 of the Convention, the director further established that the applicant’s expulsion was a proportionate interference with his right to respect for family life. The applicant had maintained close ties with his home country, which he had visited on many occasions. The applicant’s wife had lived in her home country until the age of nineteen and she had visited Turkey, together with the children, on many occasions. Moreover, she had also accumulated debts amounting to CHF 134,830 (approximately EUR 110,388) and was receiving an invalidity pension. Lastly, the children were still relatively young (the oldest daughter being ten years old at the time of the decision) and they would therefore not encounter any serious difficulties if they returned to Turkey with the applicant. The public interest in expelling the applicant to Turkey therefore outweighed his personal interest in remaining in Switzerland.

On 21 March 2007 the Administrative Court of the Canton of Basel-Stadt (Appellationsgericht des Kantons Basel-Stadt – hereinafter “the Administrative Court”) dismissed the applicant’s appeal, a decision that was upheld by the Federal Supreme Court (hereinafter “the FSC”) on 24 October 2007. With particular regard to the applicant’s rights under Article 8 of the Convention, both courts held that, considered as a whole, his expulsion was proportionate. Even though the applicant had been living together with his wife again since October 2004, his matrimonial situation had not proved to be very stable in the past. Furthermore, despite having maintained a close relationship with his children, for many years ‒ until September 2004 ‒ he had completely neglected his obligation to pay them maintenance. Moreover, it would be possible to maintain a relationship with them at a distance without serious difficulty. The courts also found that the family would not encounter any major obstacles if they returned to Turkey with the applicant. The children were still at an age where they could easily adapt to a new environment and the Turkish language was their mother tongue. Furthermore, his wife had not proved to be particularly well integrated in Switzerland and was receiving an invalidity pension. The expulsion order against the applicant was therefore upheld.

The cantonal immigration authorities gave the applicant a deadline of 22 January 2008 for leaving Switzerland. The applicant left Switzerland alone.

In letters of 7 June 2013 and 28 June 2013, the applicant’s representative informed the Court that the applicant had been issued with a residence permit for Switzerland on 10 February 2013. He nevertheless wanted to maintain his application because between 2008 and 2013 he had been obliged to live in Turkey while his wife and children had remained in Switzerland. During this period he had not been able to support them financially but had visited them, at least once, in Switzerland.

Section 10 of the Federal Act on the Temporary and Permanent Residence of Foreigners of 16 March 1931, as in force at the material time, read as follows:

“1 A foreign national can be expelled from Switzerland or one of its cantons only if:

(a) he or she has been convicted by a judicial authority of a serious punishable offence [Verbrechen] or a less serious punishable offence [Vergehen];

(b) his or her behaviour, in its entirety, or his actions demonstrate an unwillingness to adapt to the order established in the country that offers him hospitality or he is not capable of so adapting; ...

(d) if he or she, or a person he or she has to care for, is reliant on social welfare continuously and to a considerable degree... ”

Section 16 of the Implementing Ordinance to the Federal Act on the Temporary and Permanent Residence of Foreigners of 1 March 1949, as in force at the material time, read as follows:

“ ... 2 An expulsion pursuant to section 10 § 1 (b) of the Foreign Nationals Act is in particular justified where there are

serious and repeated infringements of norms or official orders; ...

continuously malicious or dissolute non-observance of obligations under public or private law;

other continued dissoluteness or work-shy behaviour ...”

Section 9 of the Swiss Criminal Code of 21 December 1937, as in force at the material time, read as follows:

“1 Serious punishable offences [Verbrechen] are offences for which the custodial sentence is imprisonment in a penal institution [Zuchthaus].

2 Less serious punishable offences [Vergehen] are offences for which the most severe sentence is detention in prison [Gefängnis]. “


Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Yanis M.M.A. Ramzi, is a Jordanian national, who was born in 1974 and lives in the United Arab Emirates. He was represented before the Court by Ms M. Stoica Josan, a lawyer practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs.

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

The applicant entered Romania in 1993 in order to follow university studies in Iaşi. In 1999 he moved to Bucharest, where he worked as salesman in a small store.

In September 2002, during a search conducted at the applicant’s flat, the police found 20.08 grams of cannabis and 0.08 grams of opium. On 3 December 2002 the Bucharest County Court convicted the applicant of possession of illegal drugs for personal use and sentenced him to two years’ imprisonment. The court also ordered the applicant’s expulsion upon completion of his sentence. In the course of the criminal investigation C.C., the applicant’s girlfriend and a Romanian citizen, was heard as witness. She declared that she had known the applicant for three years and that they had a son together, but she did not live with him. She also stated that he was a decent person and a good father who helped her raising their son. She explained that she had a key to his flat, where she would go once every two weeks or so, depending on the problems she encountered with her son. The applicant did not appeal against the judgment of 3 December 2002.

On 3 February 2004, after the applicant had finished serving his sentence, the Aliens Office within the Ministry of Interior, taking into account the applicant’s criminal conviction and based on the provisions of Article 102 of the Emergency Ordinance No. 194/2002 on the status of aliens, issued an order prohibiting him from entering Romania for a period of ten years. The same day, the applicant signed the order, thus acknowledging its receipt. He then left Romania voluntarily.

On 7 March 2004 the applicant married C.C. in Jordan. On 1 July 2004 the Slobozia District Court granted a request submitted by C.C. and established the applicant’s paternity of her child.

In 2005, the applicant requested the reduction of the ten-year period laid down in the order of 2004. He based his request on an amendment to Emergency Ordinance No. 194/2002 introduced in November 2004, which allowed for a fifty per cent reduction in the term of a prohibition on entering Romania to be applied to illegal aliens who were married to a Romanian citizen or had a child of Romanian citizenship.

On 14 February 2005 the Aliens Office replied to the applicant that the new amendment invoked by him did not apply to aliens who had committed crimes in Romania. Moreover, the applicant was informed that the amendment in question had come into force after he had already been expelled from Romania and it could not be applied retroactively.

On 5 May 2005 the applicant lodged a complaint before the administrative court against this reply. He requested the courts in his case to apply the more favourable provisions introduced by the new amendment to Emergency Ordinance No. 194/2002. Firstly, he argued that under amended Article 102 (2) of the above-mentioned ordinance he would have the right to a fifty per cent reduction in the term of his prohibition on entering Romania because he had a wife and child who were Romanian citizens. Secondly, he argued that the length of the ban on entering Romania could also be reduced to three years as provided by the newly adopted provisions in cases of aliens who had committed crimes. Lastly, the applicant alleged that the initial measure imposed in his case and the letter of 14 February 2005 rejecting his request for a reduction of the ban breached his right to family life as guaranteed by Article 8 of the Convention since he had a child in Romania who was still a minor.

On 19 November 2005 the Bucharest Court of Appeal rejected the applicant’s complaint, reasoning that civil law did not apply retroactively and he could therefore not benefit from the more favourable provisions of Emergency Ordinance No. 194/2002 since they had been adopted after his expulsion. The court pointed out that the applicant had not contested the order of 3 February 2004 setting forth the prohibition on entering Romania. It further held that Article 8 of the Convention had not been breached since the measure adopted in the applicant’s case was provided for by law, pursued the legitimate aim of preserving public order and protecting the rights and liberties of others, and had been applied because of the applicant’s criminal conviction.

The applicant’s appeal on points of law (recurs) against this judgment was rejected with final effect by the High Court of Cassation and Justice on 13 December 2006. The High Court, like the lower court, pointed out that the applicant had not contested the initial measure of 3 February 2004 prohibiting him from entering Romania. It further held that the lower court had correctly ruled that the new amendments to Emergency Ordinance No. 194/2002 did not apply retroactively. The High Court also held that the applicant’s allegations of a breach of his right to family life guaranteed by Article 8 of the Convention were ill-founded since he had married and had his paternity established after the issuance of the ban on his entering Romania. Moreover, the High Court observed that the applicant had married in Jordan and had not produced any proof concerning the existence of an actual family life in Romania. Under these conditions, relying on the Court’s judgment in the case of Pini and Others v. Romania (nos. 78028/01 and 78030/01, 22 June 2004), the High Court considered that the authorities’ refusal to apply the newly adopted regulations in the applicant’s case had been a proportionate decision falling within the ambit of the second paragraph of Article 8 of the Convention.

Article 117 of the Criminal Code, as in force at the time of the applicant’s conviction and referring to expulsion, reads as follows in its relevant parts:

“A prohibition on remaining in Romania may be imposed on any alien who has committed a crime.”

Emergency Ordinance No. 194/2002 on the status of aliens, as it was in force on 3 February 2004, reads as follows in its relevant parts:

“The order to leave Romanian territory may be contested before the Bucharest Court of Appeal within 5 days of notification thereof ...”

“(3) For aliens who have committed crimes, the term of the prohibition shall be equal to the length of their sentence, but no less than ten years.”

Following an amendment which entered into force on 27 November 2004, new rules for calculating the term of the prohibition on entering Romania became applicable. Article 102 of the above-mentioned ordinance was amended to read as follows in its relevant parts:

“(1) For aliens who entered Romania illegally but whose stay has become legal, the term of the prohibition [on entering Romania] shall be as follows:...

(2) The limits of the prohibition as set forth in paragraph (1) above shall be reduced by half for the aliens who:

d) are married to Romanian citizens or are parents of children of Romanian citizenship who are minors.

(3) For aliens who have committed intentional crimes and have been expelled, the term of the prohibition shall be equal to the length of their sentence, but no less than three years.”

The amendment of 27 November 2004 did not include any special provisions concerning the aliens whose term of prohibition had been established under the former text of the Emergency Ordinance.


IVANOVIĆ AND DOO DAILY PRESS v. MONTENEGRO

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicants are Mr Željko Ivanović (“the first applicant”), a Montenegrin national who was born in 1962 and lives in Podgorica, and D.O.O. Daily Press (“the second applicant”), a publishing company with its registered office in Podgorica. They are represented before the Court by Mr B. Lutovac and M. Đukić, lawyers practising in Podgorica (Montenegro) and Novi Sad (Serbia), respectively.

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

The first applicant is a journalist and a co-founder and the executive director of the Montenegrin daily newspaper Vijesti. The second applicant is the publisher of the newspaper.

On 1 September 2007 Vijesti celebrated its 10th anniversary. After leaving the celebration venue the first applicant was assaulted in the dark and beaten up by three unidentified attackers. As a result of the assault he sustained a broken cheekbone (jagodična kost) and a number of haematomas and bruises.

Between 2 and 4 September 2007 Vijesti published several articles relating to the assault, some of them including the first applicant’s own comments.

In particular, on 2 September 2007 an article entitled “A club from Đukanović and the family” (Palica od Ɖukanovića i familije) was published:

“[The first applicant] said that the former Prime Minister Milo Ɖukanović had sent his hellhounds (poslao svoje kerbere) yesterday morning to beat him up.

[The first applicant] said that ‘those who rule Montenegro’ had congratulated Vijesti on its tenth anniversary by these means.

‘It is a greeting from those ruling Montenegro, and that is Milo Đukanović and his family, be it biological or criminal’, said [the first applicant...]. On Radio Crna Gora [he] told Ɖukanović not to send his people on an ambush in the dark but to put himself on the line (sam izađe na crtu) instead of backing out in this kind of situation (umjesto što u takvim situacijama spušta pogled).

[The first applicant] considers that this was a warning to Vijesti to surrender (da polože oružje), and that there is an attempt to drown even the small islands of freedom in Montenegro, which make Đukanović nervous.”

The same day another article was published, entitled “We shall not be intimidated” (Neće nas uplašiti), signed by Vijesti’s editorial board (redakcija). It contained, inter alia, the following:

“For Vijesti there is no dilemma that the assault against [its] colleague Ivanović, with his sharp criticism of reality here, is [not only] an attack on all those free-minded people gathered in Vijesti and around it, but also an attack on freedom of thought and speech in general. The motive is to silence Vijesti and all those, who unfortunately are not numerous, who refuse to consider transitional mud and crime as the best of all society. To intimidate all those who do not want to live in a State where the mafia and authorities are interwoven to such an extent that it is difficult to distinguish one from the other (isprepleteni do neprepoznatljivosti), where the political top and mafia bottom are often on the same level, where smuggling is the backbone (okosnica) of the value system, and honest work and righteousness (pravednost) are laughed at in grandiose cafes. The intention is to warn once again those who do not accept this, that the list of unsolved murders can go on indefinitely (sezati u nedogled).

It is difficult to expect that the police in this case will go beyond its limits, blockades in mind and in organisation, and will solve the crime, arrest the attackers, identify (razobličiti) and imprison the instigators, those who ordered this. Even before Vijesti claimed that the Montenegrin police were managed from outside the police, the prosecution from outside the prosecution, the judiciary from outside the judiciary, that there was a parallel secret service, State Security or the National Security Agency, all the same. It is a Montenegrin reality and that is the real force, that is the weakness of the State (nemoć države).

In any event, the objective responsibility for all that and for the assault against Ivanović lies with the regime headed for 17 years by Milo Ɖukanović, who rules it even now, regardless of form. He and his people, from the top to the bottom, are responsible for an atmosphere in which journalists, writers, and all those who dare to think and speak differently, get hurt. Vijesti has no dilemma about it and it will continue its uncompromising criticism of both the ambiance and people responsible.”

It was also mentioned that a few hours before the assault the telephone of one of the editors-in-chief of Vijesti had rung and that the person on the other end of the line had politely introduced himself as Milo Ɖukanović.

On 3 September 2007 an article entitled “Even the birds know that he is the boss” (I vrapci znaju da je kapo) was published in Vijesti, and contained the following statements by the first applicant:

“The man who has four wars waged in the territory of ex-Yugoslavia on his conscience, an accomplice in politics which destroyed one country, killed hundreds of thousands of people and displaced millions of others, a person who is charged with organised crime and criminal association before the relevant investigative bodies of European countries, the boss who developed a criminal-financial octopus which is strangling (drži za vrat) Montenegro – that moral mountain of a man (gromada) is hurt, his honour harmed, and his mental anguish is such that only the courts can repair it (jedino sud može sanirati).

I am ready for any court, even Ɖukanović’s, as I do not see anything new or any misdemeanour (prekršajno) in anything I said, and even the birds know that he is the boss of the family, be it biological or criminal, which rules Montenegro and decides on all things, including the most precious – human life.

I invite him to try to prove his truth and defence on the public stage, and not through courts, prosecutors, criminals and his spokespeople. Because Ɖukanović needs to know that nothing lasts forever (ničija nije gorjela do zore).

My mother and I, we wish his child all the best. We want him in the future, as an honest and honourable citizen, to enjoy and be free and safe in a just and fair society, confident that the system of evil and injustice created and established throughout Montenegro by his father – for which both I and much more my mother suffer today – will go to the dustbin of history.”

On 4 September 2007 an article entitled “Various kinds of pressure” (Raznovrstan repertoar pritisaka) was published in Vijesti, including the following statement by the first applicant:

“These pressures came from the top of the State. Our family members were dismissed from work, threatened by anonymous calls, various inspections were sent to the company..., in the end they attempted to steal (otmu) the majority of stocks so that the daily could be edited as it suited Mr Ɖukanović. When all of this did not work out, the traditional methods were employed.”

On 6 September 2007 Mr M. Đukanović (hereinafter “the plaintiff”) instituted civil proceedings against the applicants, seeking 1,000,000 euros (EUR) for the damage caused by all of the above articles and statements by the first applicant contained therein.

The applicants submitted that all the most senior political and State officials, including the plaintiff, should be held objectively responsible for increased crime, including assaults on and even the murder of journalists (poslenika javne riječi), and that the impugned articles should be seen in that context. They further maintained that the statements at issue were value judgments, and that the plaintiff, as a politician, had to display a greater degree of tolerance. They proposed that the parties to the proceedings and a number of other people be heard, and that an expert witness assess the level of mental anguish allegedly suffered by the plaintiff. They also maintained that the amount sought was too high and was aimed at suppressing freedom of expression. The applicants submitted that the courts should take into account the context and circumstances in which the statements had been made and the articles published. They relied, inter alia, on Article 10 of the Convention and the Court’s case-law.

On 19 May 2008 the Court of First Instance (Osnovni sud) in Podgorica ruled partly in favour of the plaintiff, concluding that his honour and reputation had been harmed, and ordering the applicants jointly to pay the plaintiff EUR 20,000 in non-pecuniary damages and to publish the judgment in Vijesti at their own expense. In particular, the court found that the plaintiff’s honour and reputation had been harmed by the first applicant’s statements in the article “A club from Ɖukanović and his family”, and the contents of the article “Even the birds know that he is the boss”, which described the plaintiff and his family as criminals, and which associated him with organised crime and criminal association. The court relied on Articles 16, 20, 34, 35 and 36 of the Constitution in force at the time, sections 1 and 20 of the Media Act (see paragraphs 39-45 below), and Articles 8 and 10 § 2 of the Convention.

In particular, the court considered that freedom of the press and other forms of public information, and the right to dignity and personal rights had to be balanced. It held that “parts of the above articles” were not value judgments but factual information, susceptible to proof, which had not been previously verified or proved, aimed at discrediting not only the plaintiff but his private and family life too. By publishing the above texts, which contained inaccurate, unproved information, without prior verification, subsequent rectification, acceptance of a mistake or a public apology to the plaintiff, the first applicant had persisted in harming the plaintiff’s reputation. As the executive director of a news medium, the first applicant was especially expected to respect the rules when publishing information, particularly that which could be harmful to others. The above texts harshly (grubo) harmed the plaintiff’s honour and reputation, considerably overstepping the limits of criticism to be tolerated by a politician, especially given that the impugned articles did not criticise the plaintiff’s public work but put the plaintiff and his family in a criminal context.

The court further held that “the right of the media to publish negative information and criticism relating to politicians did not give [them] the right to violate fundamental human values, the protection of which was provided in respect of every citizen regardless of his/her being a public figure or not. ... Public officials could not have fewer rights than others as that would be a violation of the principle of equality, which was guaranteed by the Constitution.”

The first applicant’s allegations that he had made the impugned statements when he had been in a specific state after the assault were dismissed as unfounded. The court also refused other proposed evidence as unnecessary.

In assessing the amount of damages the court took into account the importance of the plaintiff’s honour and reputation, the fact that several articles had been published in a daily newspaper which had a high circulation (visokotiražan), traditional understanding of Montenegrin society of moral human values, as well as the criminal context in which both the plaintiff’s personality and his family had been put.

Both the plaintiff and the applicants appealed against the decision.

On 30 September 2009 the High Court (Viši sud) in Podgorica held that only the following statements harmed the plaintiff’s honour and reputation: “Đukanović had sent his hellhounds to beat [the first applicant] up”; “it is a greeting from those ruling Montenegro, and that is Đukanović and his family, be it biological or criminal”; “the boss who developed a criminal-financial octopus which is strangling Montenegro”, and “he is the boss of the family, be it biological or criminal, which rules Montenegro and decides on all things, including the most precious – human life”. It further held that instead of proving the veracity of the statements the applicants had repeated them. They had thereby misused freedom of expression, given that by “exercising it one could not insult others and harm their honour, reputation and dignity”, which was also prescribed in Article 10 § 2 of the Convention.

The court took into account the Court’s opinion that politicians should display a greater degree of tolerance towards criticism, but considered that the above statements overstepped the limits provided for by freedom of expression and the plaintiff’s obligation in that regard, especially given that the applicants had not refrained from mentioning the plaintiff’s family in the same insulting context.

It also considered that the compensation of EUR 20,000 was too high and reduced it to EUR 10,000 jointly.

Lastly, the court held that the other articles and statements, especially the text “We shall not be intimidated”, criticised the situation in Montenegrin society, and represented value judgments in respect of which no damages should be awarded. The court held that the applicants’ arguments in that regard, submitted in their appeal, were well-founded, which influenced the amount of the damages awarded. The amount was also influenced by the circumstances in which the texts had been written and the statements made, but the court considered that these factors did not justify the publication of untrue information and its transmission through the media, but rather represented its misuse. According to the High Court, the Convention and the Court did not protect that kind of information and statements.

This decision was served on the applicants on 17 October 2009.

On 4 March 2016 a bailiff (javni izvršitelj) issued an enforcement order on the basis of which the plaintiff collected EUR 16,113.79 from the second applicant’s account. The amount was increased due to the accrued interest.

On 31 October 2007 the State prosecutor (Osnovni državni tužilac) filed an indictment against R.P. for violent behaviour, and M.B. for violent behaviour and inflicting serious bodily harm on the first applicant.

On 15 January 2008 the Court of First Instance in Podgorica found R.P. and M.B. guilty, on the basis of their confessions, and sentenced them both to four years’ imprisonment. It also established that they had been assisted by “a certain Miki from Sarajevo”. On 16 May 2008 the High Court in Podgorica reduced their sentences to one year.

On 5 March 2012 the first applicant’s lawyer sent a letter to the Supreme State Prosecutor’s Office submitting that R.P. and M.B. had been convicted contrary to all the evidence, and that even if they had been involved in the assault, there had been at least two more people involved. He requested that the investigation be reopened in order to identify the others involved.

Below is further information considered relevant by the parties.

In spring 2004 a publisher and the director of Dan, a pro-opposition daily newspaper, was killed in the street.

In May 2007 a group of individuals, including the first applicant, organised a petition and issued a press release opposing the award of a regional peace prize to the plaintiff. He was nevertheless awarded the prize.

The first applicant’s gross income was 34,118.84 euros (EUR) in 2008 and EUR 36,808.88 in 2009. The second applicant’s profits were EUR 560,889 in 2008 and EUR 13,967 in 2009.

Between November 2007 and February 2014 there were eighteen separate attacks (involving the planting of explosive devices, physical assaults, threats, car arson and the stoning of premises) against journalists or premises of Vijesti. In spite of numerous measures undertaken by the relevant authorities (questioning of various individuals, obtaining camera footage, checking telephone communications and polygraph questioning) thirteen of these attacks remain unsolved to date. In five other cases the perpetrators were identified, found guilty in criminal or misdemeanour proceedings, and either fined, given a suspended sentence, or sentenced to between two and nine months in prison.

In December 2014 one person was found guilty of coercion and jeopardising the safety of a freelance journalist, and was sentenced to four months in prison. In March 2015 five other individuals were found guilty of violent behaviour against a journalist of Dan and were sentenced to between eleven and fifteen months in prison.

Between January 2012 and October 2015 the domestic courts ruled in eight cases of an alleged harming of honour and reputation, in six of which respondent parties were journalists and/or daily newspapers and/or companies publishing daily newspapers. The courts dismissed seven of them, and in one ruled partly in favour of the claimant (an individual), awarding him EUR 2,500 of the EUR 9,000 claimed against a journalist/writer.

On several occasions in 2013 and 2014 the Media Development Investment Fund urged the plaintiff to refrain from provocative language when speaking about Vijesti.

On 31 January 2014 Human Rights Action/Akcija za ljudska prava, a Montenegrin NGO, issued a report entitled “Prosecution of attacks on journalists in Montenegro”. The report mentions thirty cases of assaults, threats, arson and so forth against various journalists (including the assault against the first applicant), human rights campaigners and a writer. In one incident a person (the writer’s driver/bodyguard) was murdered. All of the incidents took place between 27 May 2004 and 3 January 2014. According to the report, the murders of the Dan editor-in-chief and the writer’s bodyguard have never been resolved, some prosecutions became timebarred, and in some cases where the perpetrators were identified their motives and those who ordered the attacks remained unknown. The report also considered the judgments issued in respect of the applicants to be in breach of Article 10.

Between 2012 and 2015 reports were issued by Freedom House (in 2012, 2013 and 2015), the US State Department (in 2012 and 2013) and the UN Human Rights Council (in 2014), which noted assaults and threats against journalists in Montenegro, the pressure they faced, the limited investigations and the consequent lack of accountability.

In October 2015 the Global Investigative Journalism Network awarded its prize to the Organised Crime and Corruption Reporting Project “for [its] series ‘Unholy Alliances’ on Montenegro as a mafia state”, which “exposed how [the plaintiff] and his family bank [were] at the centre of an unholy alliance of government, organised crime and business.”

Article 16 of the Constitution in force at the time provided that everybody was obliged to respect the rights and freedoms of others, and that any abuse (zloupotreba) of those rights or freedoms was considered anticonstitutional and subject to punishment.

Article 20 guaranteed the inviolability of an individual’s physical and psychological integrity, privacy and personal rights, and his or her dignity and safety.

Article 34 provided, inter alia, for freedom of expression.

Article 35 provided for freedom of the press and other media, as well as the right of individuals (građani) to publicly express their opinions through the media (u sredstvima javnog obavještavanja).

Article 36 provided for the right to reply and correction of incorrect published data or information, as well as the right to compensation for damage caused by the publication of untrue data or information.

Section 1 provides that the media in Montenegro are free, and that freedom of information is guaranteed in accordance with the standards provided in international human rights texts (UN, OSCE, Council of Europe, EU). It further provides that the Act should be interpreted and applied in accordance with the principles of the Convention and the Court’s case-law.

Section 20 provides that, unless otherwise provided by the Act, the founder of the medium is responsible for the content it publishes. Should the media publish content which violates the statutorily protected interest of a person to whom the relevant information refers or insults someone’s honour or integrity, or disseminate untrue allegations about someone’s life, knowledge or competencies, the person concerned is entitled to lodge a compensation claim against the author and the founder of the medium.

Section 16 provided that everyone had to refrain from actions which could cause damage to others.

Under Articles 199 and 200, inter alia, anyone who had suffered mental anguish as a consequence of a breach of his honour or reputation could, depending on its duration and intensity, sue for financial compensation before the civil courts and, in addition, request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.


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

The applicant was born in 1955 and lives in Yambol.

The applicant and his brother co-owned a house with a yard and a garage in Yambol.

By a decision of the mayor of 31 January 1983 the property was expropriated with a view to constructing a residential building. The decision, based on section 98 (1) of the Territorial and Urban Planning Act of 1973 (Закон за териториалното и селищно устройство – “the TUPA”), stated that the applicant and his brother were to be compensated with flats in a building which the municipality intended to construct.

On an unspecified date the flats were constructed and delivered to the applicant and his brother.

On 13 July 1994 the mayor modified the decision of 31 January 1983, stating that the two brothers were also to be compensated with a common garage. The applicant’s brother informed the mayor that he renounced his right to compensation with a garage in the applicant’s favour.

By a supplementary decision of 30 May 1995, based on section 100 of the TUPA, the mayor held that the applicant was to be compensated with the right to build a garage on a municipal land and determined the exact location of the future garage. The applicant did not appeal against that decision and apparently prepared to start the construction works.

By a decision of 9 October 2002 the mayor modified the previous decision of 30 May 1995, indicating another municipal plot of land where the future garage was to be built, as it had turned out that the previous one was not owned by the municipality. That decision was not appealed against by the applicant, but was eventually set aside by the Yambol regional governor after it had been contested by third persons.

On an unspecified date in 2010 the applicant brought a tort action against the Yambol municipality, claiming a wrongful failure on its part to provide him with a garage. The action was dismissed, the final judgment being given by the Supreme Administrative Court on 30 March 2011. The domestic courts held that no unlawful inactivity on the part of the authorities had been established, neither had it been shown that the applicant had sustained any damage.

In June 2011 the applicant agreed to receive compensation in cash in lieu of the garage due to him. It appears that the municipality had been offering such a solution since 2007. The compensation in cash was paid to the applicant on 4 April 2012.


Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicant was born in 1961 and is currently detained.

On the night of 12 to 13 June 2003 a house was robbed and three individuals were murdered in the Ivanivka District of the Odessa Region. On 13 June 2003 criminal proceedings were instituted in this respect.

According to the applicant, on 27 June 2003 he was arrested in Sumy; the reasons for his arrest were not explained to him, no record of the arrest was drawn up, and there was a delay in charging him. He remained in detention thereafter. On the same day, the applicant was taken to the Sumy Regional Police headquarters, where he was allegedly beaten up by police officers from the Odessa Regional Police. According to the applicant, he had been handcuffed and remained so during the night.

On 28 June 2003 the applicant was interviewed in Sumy by an officer of the Odessa Regional Police concerning the circumstances of his business trip to the Odessa Region from 10 to 18 June 2003. According to a written explanation signed by the applicant, he denied any involvement in the murder.

According to the applicant, on the same day he was transferred to the Ivanivka police station, where he was allegedly subjected to beatings and psychological pressure by police officers with a view to obtaining a confession.

According to the arrest report drawn up by Mr I.G., an investigator from the Odessa regional prosecutor’s office, the applicant was arrested on 30 June 2003 as a suspect in the criminal case. The applicant refused to sign the report. On the same day I.G. apprised the applicant of his right to defence and his right not to incriminate himself. According to a decision issued by I.G. on the same date, the applicant wished to be represented by P., who was formally appointed as his lawyer. Thereafter, the applicant was questioned by I.G. in his lawyer’s presence and confessed to the robbery and murder of three persons. According to the applicant, he was in fact questioned on 3 July 2003 and the record of his questioning was backdated to 30 June 2003. The applicant further maintained that the lawyer had left the interview in protest against the applicant’s poor state of health, but the lawyer’s signature was added to the record of the questioning afterwards.

On 2 July 2003 the applicant made a written confession in the Ivanivka police station; his lawyer was not present.

On 3 July 2003 another arrest report was drawn up by an officer on duty at the Ivanivka police station. It stated that the applicant had been placed under arrest on suspicion of murder. On the same day the Ivanivka District Court ordered the applicant’s pre-trial detention. His lawyer was not present.

According to a statement from the applicant’s wife, on 8 July 2003 the lawyer P. informed her by telephone that her husband, who had been arrested in Sumy on 27 June 2003, was in Ivanivka.

On 8 July 2003 the applicant was transferred to the Odessa temporary detention facility (ізолятор тимчасового тримання, “the ITT”). According to the applicant, the ITT had initially refused to admit him because of his injuries and a medical officer arranged for him to attend the local hospital for a medical examination. At the hospital a general surgeon and a neurosurgeon examined the applicant and issued a medical certificate stating that he had bruising on his shoulders and hips, and extensive bruising on his head and face, but that there was no indication of brain damage. Subsequently, the applicant was taken back to the ITT but the medical officer sent him back to the hospital for an additional examination, as not all the injuries on his body had been recorded. However, the hospital doctors refused to issue a new certificate.

On an unspecified date the applicant was transferred from the ITT to the Odessa pre-trial detention centre (слідчий ізолятор, “the SIZO”).

On 9 July 2003 the investigator charged the applicant and a Mr Y.G. with the robbery and murder of three persons.

On the same day, at the applicant’s request, lawyer P. was replaced by lawyer K.

On 5 September 2003 the applicant complained to investigator I.G. that the police officers had beaten him and put psychological pressure on him in order to force him to confess.

In response to a request from the investigator I.G., on 23 October 2003 the ITT informed him about the injuries observed on the applicant on 8 July 2003 and about the disagreement as to their full extent which had occurred on that day.

On 19 December 2003 investigator I.G. refused to institute criminal proceedings into the above complaint for want of proof against the police officers. According to the investigator’s decision, it was impossible to establish the circumstances in which the applicant had sustained his injuries. The investigator relied on a certificate from the SIZO, according to which at the time of the applicant’s admission to the SIZO he had had no injuries, and on the ITT records of 8 July 2003 describing the applicant’s injuries. The investigator stated that despite this information from the ITT, the applicant had not raised any complaints during his questioning at the ITT. The decision was included in the applicant’s criminal case file.

On 30 December 2003 the applicant and his representative studied the criminal case file in its entirety.

On 16 February 2004 the applicant refused to continue to be represented by lawyer K. and was given time to find a new lawyer.

On 18 February 2004 the applicant wrote to the deputy prosecutor of the Odessa Region arguing that the decision of 19 December 2003 had been based on an error and asking that his case be examined impartially and carefully. The applicant alleged that the ITT had originally refused to admit him because of his injuries and had agreed to admit him only after he had presented a written explanation of his injuries to the ITT medical officer.

On 4 May 2004 the applicant concluded a contract with Mr P. Sushko, who represented him in the proceedings thereafter.

Following remittal of the applicant’s criminal case for an additional investigation, on 2 October 2004 it was transferred to the Odessa Regional Court of Appeal for trial. According to the applicant, he had been allowed to study only part of the case file material.

In the course of the trial the applicant and Mr Y.G. retracted all their confessions, which they claimed had been given under duress, and asserted their innocence. The applicant raised the complaint that he had been illtreated. The Court of Appeal questioned the investigator I.G., who stated that the injuries recorded at the ITT could have been inflicted on the applicant in the course of arrest.

On 1 August 2005 the Court of Appeal found the applicant and his co-defendant Y.G. guilty of murder and sentenced them to life imprisonment with confiscation of their property. The court based their conviction, among other things, on the testimony of Ms V., who had seen the applicant and Y.G. before and after the murder, on fingerprints from Y.G. found at the scene of crime, on the confessions made by the applicant and Y.G. in the presence of their lawyers, and on the applicant’s written confession of 2 July 2003 made in the absence of his lawyer. Commenting on the applicant’s complaint of ill-treatment, the court also took into account the investigator’s decision of 19 December 2003. It thus found that there was no evidence that the applicant’s confession had been obtained under duress and rejected his complaint as unsubstantiated.

The applicant and his lawyer appealed in cassation, complaining, inter alia, of the applicant’s alleged ill-treatment in police custody, as a result of which he had confessed.

On 11 April 2006 the Supreme Court upheld the applicant’s conviction. It noted that his complaint of ill-treatment had been thoroughly examined by the Court of Appeal and had been lawfully rejected as unsubstantiated. It also mentioned that the applicant’s guilt had been proved by his confession, among other things.


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

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary

The applicant was born in 1939 and lives in Dnipro.

He was formerly a shareholder in two private companies, O. and L., which were liquidated on the basis of decisions by other shareholders. Accordingly, the local authorities struck the companies out of the list of legal entities. The applicant instituted several sets of court proceedings in that regard.

On 21 April 2003 the applicant instituted proceedings in the Zhovtnevyy District Court of Dnipro (“the District Court”) against the local council and three private persons, challenging the company’s liquidation, claiming back his shares and seeking compensation. The applicant made changes to his claims on a number of occasions.

In the course of the proceedings, about twenty of the approximately fifty hearings were adjourned at the request of one or more of the parties, or owing to their failure to appear. Between July 2005 and February 2007 no hearings were held pending the outcome of appeals in cassation against a procedural decision by one or other of the defendant parties. Between May 2007 and July 2008 courts at three levels of jurisdiction examined the question of whether the case should be considered within the framework of civil or commercial proceedings. Eventually, it was decided that the case should be examined under the rules of civil procedure and examination on the merits resumed in August 2008.

Overall, the proceedings lasted for over seven years and eight months, the final decision being taken by the Supreme Court on 29 December 2010. That court upheld decisions of the District Court of 30 June 2010 and of the Dnipro Regional Court of Appeal (“the Court of Appeal”) of 16 September 2010 rejecting the applicant’s claims as unsubstantiated. The courts found that there had been no violation of the applicant’s rights as a shareholder of O.

In January 2005 the applicant brought a civil claim with the District Court against the local council and a number of private persons, challenging the liquidation of company L. and the authorities’ decisions in that regard. He also sought the restoration of the company as a legal entity, recovery of his shareholding and an order to declare the minutes of the shareholders’ general assembly invalid.

On 2 June 2006, the court decided, in the applicant’s presence, to leave his claim without examination, finding that it concerned essentially the same issue as one which it had examined in proceedings concerning the applicant’s administrative claim (see paragraph 15 and 16 below).

On 7 June 2006 the applicant lodged a statement of intent with the Court of Appeal to appeal against the decision of 2 June 2006. On 16 June 2006 he lodged an appeal, stating, inter alia, that that decision had been incorrect, as his administrative claim had concerned only a part of the issues raised in the civil claim.

On 25 July 2006 the Court of Appeal left the applicant’s appeal without examination, finding that the statement of intent to appeal had been lodged outside the five-day time-limit envisaged by Article 294 § 2 of the Code of Civil Procedure of 2004 (see paragraph 20 below). According to the appeal decision, the time-limit in question had started to run from the date of the pronouncement of the contested decision.

On 9 October 2006 the Supreme Court dismissed the applicant’s appeal in cassation, finding no fault on the part of the lower courts.

In November 2005 the applicant brought an administrative claim in the District Court against the head of the local council, seeking the annulment of the decision striking L. out of the list of legal entities.

On 17 April 2006 the court, having examined the case pursuant to the Code of Administrative Justice of 2005, rejected the applicant’s claim as unsubstantiated, finding that the contested decision had been lawful. The court further noted that the applicant had made allegations of the unlawfulness of the shareholders’ decision to liquidate the company, which could not be examined in the framework of administrative proceedings. It also noted that the applicant’s claim had been brought out of time, though it did not consider it necessary to reject it on that ground.

On 20 September 2006 the Court of Appeal upheld the decision of 17 April 2006.

On 28 October 2008 the Higher Administrative Court quashed the decisions of the lower courts and terminated the proceedings. It found that the claim should not have been examined within the framework of administrative proceedings, as it essentially concerned a property dispute. The Higher Administrative Court noted that the applicant’s claim could be heard under the Code of Civil Procedure of 2004.


Elisabeth Steiner;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Ms Nada Čoko, is a Croatian national, who was born in 1969 and lives in Šibenik. She was represented before the Court by Mr Ž. Čogelja and Ms D. Čogelja, advocates practising in Šibenik.

The Croatian Government (“the Government”) were represented by their Agent, Mrs Š. Stažnik.

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

On 4 June 1997 the applicant was dismissed from her employment at company B.

On 8 July 1997 she brought a civil action in the Šibenik Municipal Court (Općinski sud u Šibeniku), seeking to have the company’s decision to dismiss her reversed. Company B. had two representatives in the proceedings, Ms B. and Mr K.

By a judgment of 17 September 1997 (hereafter “the principal judgment”) the Šibenik Municipal Court ruled for the applicant and ordered her reinstatement.

By a judgment of 15 June 1998 the Šibenik County Court (Županijski sud u Šibeniku) dismissed an appeal by the defendant company and upheld the principal judgment. The applicant’s representative was served with a copy of the second-instance judgment of the Šibenik County Court on 5 February 1999. Mr K. was served with a copy of it on 17 March 1999 and Ms B. on 25 February 2000.

On 7 March 2000 the Šibenik Municipal Court stamped the applicant’s copy of the principal judgment with certificates of finality and enforceability. Those certificates indicated that the judgment had become (a) final on 15 June 1998 and (b) enforceable on 7 March 2000.

On 6 March 2002 the defendant company applied to the Šibenik Municipal Court seeking to have the certificate of the enforceability of the principal judgment set aside. In so doing it argued that the certificate wrongly indicated that the judgment in question had become enforceable on 7 March 2000 whereas it had actually become enforceable earlier. That error was due to the fact that the Municipal Court, when determining the date of enforceability, had mistakenly taken into account the date on which judgment had been served on Ms B. instead of the date on which it had been served on Mr K.

On 29 May 2006 the Šibenik Municipal Court set aside the certificate of enforceability of 7 March 2000. The Municipal Court held that, as the principal judgment had been served on Mr K. on 17 March 1999, it had therefore already become enforceable on 26 March 1999, after the eight-day grace period for voluntary compliance had expired (see paragraphs 23-25 below). The relevant part of the decision reads as follows:

“The certificate of enforceability of the [principal] judgment of the Šibenik Municipal Court... is hereby set aside.

The judgment... became final on 15 June 1998, the date of the judgment of the Šibenik County Court..., by which the defendant’s appeal was dismissed.

The judgment of the Šibenik County Court... was served on one of two representatives of the defendant on 17 March 1999, meaning that the eight-day time-limit for voluntary compliance with the final judgment began on 18 March 1999, after the expiry of which the judgment became enforceable.

The fact that the second-instance judgment was served on the second defendant’s representative on 25 February 2000 has no significance for the enforceability of [that] judgment...

Since this court has linked the issuance of the certificate of enforceability to the date of service on the defendant’s second representative... without bearing in mind that the defendant was duly served through the first representative... the certificate of enforceability is hereby set aside.”

On 26 July 2006 the applicant appealed against that decision, arguing that since 5 February 1999, the date on which the principal judgment had been served on her, she had made daily enquires about the enforceability of the judgment with the Municipal Court’s Registry, but had only been able to obtain a certificate of enforceability on 7 March 2000. The applicant also argued that this date should not be changed, even if only the date on which the principal judgment was served on the first of the defendant’s two representatives was taken into account, as the time-limit had been properly calculated from the date on which the acknowledgement of acceptance of service had been returned to the Municipal Court.

On 16 April 2007 the Šibenik County Court dismissed the applicant’s appeal and upheld the first-instance decision. It held that the principal judgment had indeed been served on Mr K. on 17 March 1999 and had become enforceable eight days later.

On 18 July 2007 the applicant lodged a constitutional complaint arguing that the decisions of the Šibenik Municipal Court and the Šibenik County Court had deprived her of the ability to have the final judgment entitling her to reinstatement enforced, as they had retroactively created a situation in which her application for enforcement had been lodged outside of the thirty-day statutory time-limit provided in section 238 of the Enforcement Act (see paragraph 28 below). The applicant complained about the significant gap between the date when the defendant’s first representative Mr K. had signed the acknowledgement of acceptance of service and the date when he had returned it to the Šibenik Municipal Court.

On 29 November 2007 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible because the contested decisions were not susceptible to constitutional review as they could not be regarded as decisions referred to in section 62(1) of the Constitutional Court Act (see paragraph 21 below) against which a constitutional complaint could be lodged.

Meanwhile, on 7 March 2000 the applicant applied for enforcement of the principal judgment to the Šibenik Municipal Court. She also sought payment of salary arrears in the period between 1 June 1997 and 11 February 1998.

By a decision of 23 May 2000 the Šibenik Municipal Court issued a writ of execution (rješenje o ovrsi) ordering the defendant company to reinstate the applicant within eight days. It however dismissed her claim for salary arrears.

Both the applicant and the defendant company appealed against that decision. In its appeal, the defendant company claimed that the applicant had failed to comply with the thirty-day statutory time-limit for seeking the enforcement set forth in section 238 of the Enforcement Act (see paragraph 28 below) because she had been served with the second-instance judgment of 15 June 1998 already on 5 February 1999 but had applied for enforcement only on 7 March 2000 (see paragraphs 7-8 and 15 above).

On 22 October 2001 the Šibenik County Court dismissed the defendant company’s appeal. It found that the applicant had applied for the enforcement of the principal judgment on the same day that judgment had become enforceable and thus complied with the statutory time-limit provided in section 238 of the Enforcement Act (see paragraphs 8 and 15 above and paragraph 28 below). At the same time, the court allowed the applicant’s appeal and quashed the part of the first-instance decision dismissing the applicant’s claim for salary arrears and remitted the case.

In the resumed enforcement proceedings, the Šibenik Municipal Court held hearings on 6 March and 3 April 2002. These hearings were adjourned after the defendant company asked the court to wait for a decision on its application to have the certificate of enforceability of the principal judgment set aside (see paragraph 9 above). Another hearing was held on 7 May 2002. It was adjourned due to the possibility of the parties reaching an out-of-court settlement. At a hearing held on 3 April 2003 the court decided to forward the entire case file to its President with a view to deciding on the defendant company’s application to set aside the certificate of enforceability.

By a decision of 22 August 2007 the Šibenik Municipal Court, relying on section 67(1) of the Enforcement Act (see paragraph 27 below) discontinued the enforcement proceedings because a certificate of enforceability had in the meantime been set aside (see paragraphs 10 and 12 above). The applicant did not appeal against that decision.

The relevant part of the 1999 Constitutional Act on the Constitutional Court of the Republic of Croatia (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 99/99 of 29 September 1999 – “the Constitutional Court Act”), as amended by the 2002 Amendments (Ustavni zakon o izmjenama i dopunama Ustavnog zakona o Ustavnom sudu Republike Hrvatske, Official Gazette no. 29/2002 of 22 March 2002), which entered into force on 15 March 2002, reads as follows:

“1. Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the decision of a State authority, local or regional government, or a legal person invested with public authority, on his or her rights or obligations, or as regards a suspicion or accusation of a criminal offence, has violated his or her human rights or fundamental freedoms, or the right to local or regional government, guaranteed by the Constitution (“constitutional right”)...

If another legal remedy is available in respect of the violation of the constitutional rights [complained of], the constitutional complaint may be lodged only after this remedy has been exhausted.

In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law [revizija] is available, remedies shall be considered exhausted only after the decision on these legal remedies has been given.”

The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/1991 with subsequent amendments), which has been in force since 1 July 1977, provides as follows:

Section 138

“If a party has several legal representatives or agents, it shall be sufficient to serve a decision on one of them.”

Section 333(1)

“A judgment which can no longer be contested by an appeal shall become final where it decides on the plaintiff’s claim or on a counter-claim.”

Section 334(2)

“A judgment shall not take effect in respect of the parties until the day it is served on them.”

Section 328 provides for a time-limit within which a judgment debtor can voluntarily comply with (execute) the judgment (paricijski rok – “the grace period”). The lodging of an appeal suspends the running of the grace period. The provision reads as follows:

“When a judgment debtor has been ordered to do something by the judgment, the court shall set a time-limit for performance.

Unless special legislation provides otherwise, the time-limit for performance shall be fifteen days. However, if the performance does not entail payment of money the court may set a longer time-limit. ...

The time-limit for performance shall start running on the first day after the service of a copy of the judgment on the judgment debtor.”

Section 436 provides that in employment disputes the grace period is eight days.

The relevant part of the Enforcement Act of 1996 (Ovršni zakon, Official Gazette of the Republic of Croatia, no. 57/96 with subsequent amendments), which was in force between 11 August 1996 and 14 October 2012, at the material time provided as follows:

Enforceability of a [court] decision

Section 23(1)

“A court decision ordering [the judgment debtor] to give or do something shall be enforceable if it has become final and if the time-limit for voluntary performance [that is, the grace period – paricijski rok] has expired. The time-limit for voluntary performance runs from the date the decision is served on the enforcement debtor [the judgment debtor], unless the law provides otherwise.”

Certificate of enforceability

Section 33(1) and (2)

“(1) If an application for enforcement is lodged with a court which did not decide on the claim at first instance, the application must be accompanied by the original or a copy of the enforcement title having the certificate of enforceability ...

(2) A certificate of enforceability shall be issued by the court or [other] authority which adjudicated on the claim at first instance.”

(3) Any certificate of enforceability that was issued without the necessary statutory requirements shall be set aside by the court or [other] authority by a decision, upon request or of its own motion.”

Section 37(5), as in force at the material time, provided that the enforcement court was not entitled to dismiss of its own motion an application for enforcement based on a court judgment which, by the time the application was being decided upon, had become final but had not yet become enforceable. Section 37(5) read as follows:

“The court shall not of its own motion declare inadmissible an application for enforcement based on a final judicial decision [notably, a judgment], in-court settlement or notarial deed solely on the ground that those documents have not been stamped with a certificate of enforceability or because [they] have not become enforceable at the time the application for enforcement is being decided upon ...”

Section 67(1) of the Enforcement Act, as in force at the material time, stated grounds on the basis of which the enforcement court could discontinue the enforcement. That provision read as follows:

“Unless this Act provides otherwise, the court shall of its own motion discontinue enforcement proceedings if the enforcement title was finally quashed, reversed, annulled, repealed or otherwise deprived of its effect, or if the certificate of enforceability was set aside.”

Chapter 21 of the Enforcement Act regulated the enforcement of judgments ordering the reinstatement of employees. The relevant provision of that Chapter read as follows:

The time-limit for lodging an application for enforcement

Section 238

“An application for enforcement [on the basis of an enforcement title ordering an employer to reinstate an employee ...] may be lodged within a time-limit of thirty days from the date the enforcement creditor acquires the right to lodge such application.”

Croatian legal scholars have expressed the opinion that setting aside the certificate of enforceability did not automatically lead to discontinuation of the enforcement proceedings, as the text of section 67(1) of the Enforcement Act (see paragraph 27 above) appeared to suggest. This was especially so in the situations such as the one referred to in section 37(5) of the same Act, namely, where the judgment sought to be enforced had become final but had not yet become enforceable (see paragraph 26 above). In such situations the enforcement court was not entitled to discontinue the enforcement proceedings. In particular (see Dika, Mihajlo: Građansko ovršno pravo [Civil Enforcement Law], Narodne novine, Zagreb, 2007, p. 416):

“If the certificate of enforceability was set aside on the grounds which do not prevent [the enforcement creditor from] seeking enforcement without such certificate (section 37(5) [of the Enforcement Act]), the fact that the certificate of enforceability was set aside cannot be a ground for discontinuation of the [enforcement] proceedings.”

As regards the issue how the time-limit provided for in section 238 of the Enforcement Act (see paragraph 28 above) was to be calculated the same author expressed the following view (see Dika, Mihajlo: op.cit., p. 718):

“The time-limit [in question] should in principle be calculated from the moment the enforcement title [for example, a judgment] becomes enforceable. However, given that the enforcement creditor has to exercise his or her right within that time-limit, the moment when that time-limit starts to run has to correspond to the moment when the enforcement creditor learns that [the judgment sought to be enforced] has become enforceable. One often has to wait some time to find out whether and [, if so] when the enforcement debtor [the judgment debtor] has received the first-instance [judgment] and whether he or she has appealed against it [, and if so] when the second-instance [judgment] dismissing the appeal and upholding the first-instance judgment was served on the enforcement debtor and when the grace period for voluntary compliance which started to run from the service of that [second-instance judgment] expired. Therefore, it should be understood that the thirty-day time-limit should start to run from the day the court was able to issue the certificate of enforceability.

Given that the court is not entitled to declare inadmissible of its own motion an application for enforcement based on a final court judgment ... simply because [the judgment sought to be enforced] has not been stamped with a certificate of enforceability at the time the application for enforcement is being decided upon, or to dismiss such application because the judgment to be enforced has not become enforceable (section 37(5) [of the Enforcement Act], it should be understood that the employee would be entitled to apply for enforcement even before [the judgment sought to be enforced] became enforceable ...”


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

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1973 and lives in Oslo, Norway.

On 26 April 2000 criminal proceedings were brought against the applicant and one other person in connection with a traffic accident which had resulted in death of a child.

On 25 February 2003 the Court of First Instance in Podgorica convicted the applicant for endangering public traffic and sentenced him and his co-accused to one year and six months’ imprisonment.

On an unspecified date in 2006 the High Court in Podgorica quashed this judgment and remitted case back to the Court of First Instance.

On 18 April 2007 the Court of First Instance adopted a new judgment and again convicted the applicant and his co-accused. But the court reduced the sentence to one year and four months’ imprisonment.

On 13 November 2009 the High Court further reduced the sentence of the applicant’s co-accused, but upheld the judgment of the Court of First Instance in respect of the applicant.

The applicant’s subsequent appeal against the judgment of the High Court was rejected on 14 June 2010.

Following that rejection, on an unspecified date in 2010, the applicant lodged a further appeal on points of law (zahtjev za ispitivanje zakonitosti pravosnažne presude) with the Supreme Court.

On 26 October 2010 the Supreme Court rejected this appeal.

On 11 December 2010 the applicant lodged an action for fair redress (tužba za pravično zadovoljenje) with the Supreme Court, complaining about the overall length of criminal proceedings. It was rejected on 31 December 2010.

On 19 April 2013 the Constitutional Court rejected the applicant’s ultimate appeal.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive 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 1971 and was at the material time serving a prison sentence in Rustavi Prison no. 2.

On 9 August 2005 the applicant was arrested on suspicion of having robbed an individual of his vehicle, his mobile phone, and a sum of money while armed. He was placed under investigation that day and questioned twice. He protested his innocence, providing an alibi, and said that he had cancer and was undergoing treatment at an oncology clinic. The applicant was identified by the victims. Maintaining his innocence, he refused to sign the record of the identification procedure.

During questioning on 10 August 2005, the applicant repeated his alibi and complained about his state of health. On the same day he was charged with theft and armed robbery (Articles 178 and 179 of the Criminal Code respectively).

On 11 August 2005 the Mtskheta District Court granted an application by the prosecutor to place the applicant in pre-trial detention for three months. On 22 August 2005 the decision was upheld by the Tbilisi District Court, despite the applicant’s submission that he was ill and would not attempt to evade justice. The applicant was placed in Tbilisi Prison no. 5.

On 18 October 2006 the applicant was found guilty of the charges and sentenced to ten years’ imprisonment by the court of first instance.

The applicant appealed to the Tbilisi Court of Appeal. After examining the witness statements in the light of the other evidence, the Court of Appeal found that the applicant’s alibi lacked credibility. By a judgment of 24 July 2007, it amended the judgment of 18 October 2006 in the part concerning the classification of the offences, but upheld the applicant’s conviction and prison sentence.

The Supreme Court of Georgia dismissed an appeal on points of law by the applicant on an unidentified date.

In 1998 the applicant had an operation to remove a malignant tumour from his right testicle. He subsequently had chemotherapy on a sporadic basis. As the illness then returned, he had another operation in 2003. According to a medical certificate dated 4 March 2005, the applicant also suffered from chronic hepatitis C (HCV).

Shortly after being placed in detention, on 20 August 2005, the applicant was transferred to the prison hospital. After confirming the diagnosis of chronic HCV and that he had been recently treated for cancer of the right testicle, doctors recommended he have a consultation with an oncologist and a special medical examination. On 24 August 2005 the head of the surgical unit wrote to the prison hospital’s acting head doctor, informing her that the applicant needed to be examined by a urological oncologist at the National Centre for Oncology (“the NCO”). He noted that the applicant was ready to bear all the costs himself. In September 2005 doctors again recommended he be seen by an oncologist specialising in urology. The case file shows that the applicant was not transferred to the NCO or examined by an oncologist. He stayed at the prison hospital until 4 February 2006 and, according to his medical records, he was provided with treatment for his symptoms, which consisted of pain medication.

After several prison transfers and given that his health was still unsatisfactory, the applicant returned to the prison hospital on 25 February 2006. On 7 March 2006 an oncologist concluded after examining the applicant that the cancer had returned and that he also had pain in his left testicle. He had lost weight and the chronic HCV had worsened.

On 15 August 2006, at the request of the applicant’s defence, a group of independent experts submitted a report on his health. They diagnosed him with cancer of the right testicle at stage 1 B in clinical group II. The experts considered that given the degree of the tumour’s malignancy the applicant’s state of health could be considered as potentially serious. The rest of the tumour would have to be removed and the applicant given an intensive course of chemotherapy in conditions of stability. He would have to undergo check-ups every three months for five to seven years.

On 2 September 2006 the applicant was sent back to Tbilisi Prison no. 5. The authorities refused a request for his return to the prison hospital sent by his lawyer to the director of the prisons department of the Ministry of Justice, the prison governor and other authorities.

On 17 November 2006 the applicant was sent to the NCO for a course of chemotherapy. On 5 December 2006, before being discharged, the oncologist recommended that the applicant return after three weeks for a check-up and more chemotherapy. At the same time, in view of the further progress of the disease, he recommended that the applicant be placed under permanent medical supervision in the prison hospital.

The applicant was put in the prison hospital from 5 to 16 December 2016, receiving treatment for his symptoms. On 16 December 2006 he was moved from the prison hospital to Rustavi Prison no. 6. Contrary to the oncologist’s recommendations, the prison administration did not send the applicant back to the NCO after three weeks.

On 5 April 2007 the applicant’s lawyer lodged a complaint with the Tbilisi Court of Appeal, drawing the judge’s attention to his client’s poor health, caused by a lack of adequate treatment which, in his view, could lead to his death. He complained in particular about the fact that the applicant had not been able to attend intensive chemotherapy sessions, despite doctors’ recommendations. The lawyer asked the Court of Appeal to order an expert report to reassess his client’s state of health, determine whether the prison hospital was able to provide him with the necessary treatment and whether the conditions of his detention could have a negative impact on his health. It also had to establish whether the applicant’s life would be put at risk if the authorities failed to place him in a specialist clinic.

On 10 April 2007, the Court of Appeal, having received an objection from the prosecutor, rejected the lawyer’s request and decided to summon the oncologist who had signed the recommendation of 5 December 2006.

On 21 April 2007 the applicant was placed in the prison hospital. On 24 April 2007 his doctor concluded that the applicant required a transfer to the NCO for more chemotherapy. The doctor subsequently reiterated his recommendation, however, it was in vain as no transfer followed. By midMay the applicant’s condition had deteriorated. According to his medical records, he suffered constant pain and regularly received strong painkillers. The doctor in charge noted on a regular basis in the medical record that the applicant needed to be transferred to the NCO urgently.

In the meantime, in the context of the criminal proceedings conducted against the applicant, the Court of Appeal ordered that he be examined at the NCO.

On 19 June 2007, the applicant was admitted to the NCO, where he stayed until 13 July 2007 in order to undergo a course of chemotherapy. At the same time a report concerning his medical condition was issued, which confirmed the diagnosis of cancer of the right testicle at stage 1 B in clinical group II. The experts held that the results of the chemotherapy meant that the applicant’s state of ill health could not be described as serious. Nevertheless, given the malignancy of the tumour the cancer could return. Consequently, several chemotherapy sessions were necessary to consolidate the success of the previous treatment. In addition, the applicant needed check-ups in a specialist clinic every three months.

He was then returned to the prison hospital on 13 July 2007, with a recommendation for another course of chemotherapy after three weeks. In August 2007 the doctor in charge of his case repeatedly noted in his medical records that he required chemotherapy. The medical file shows that only treatment for his symptoms was available at that time.

On 23 August 2007 the applicant returned to the NCO for chemotherapy. On 7 September 2007 he was transferred back to the prison hospital with a recommendation for regular quarterly medical tests. On 22 September 2007 he was sent to Rustavi Prison no. 2 and given a recommendation for an examination after three months. No record of his medical care at Rustavi Prison no. 2 and the subsequent four months, if any, has been submitted to the Court.

On 31 January 2008 the applicant was transferred to the prison hospital, where he had various medical tests and had a consultation with an oncologist and a chemotherapy specialist. The latter concluded that there was no need for continued chemotherapy and noted that the applicant was due to return to the prison hospital for another check-up within two months. As for the applicant’s HCV, a liver function test had helped establish that the amount of bilirubin was within the norm and that no antiviral treatment was required at that stage. On 21 February 2008 the applicant complained about being discharged from the prison hospital and of a lack of adequate medical care, particularly for his HCV. He stated that the chemotherapy had had an adverse effect on his liver and that he required urgent care in that regard. Notwithstanding his complaint, on 23 February 2008 he was transferred to Rustavi Prison no. 2.

The applicant submitted that he had borne the costs of his stays in hospital and treatment with the support of his family. According to the invoices in the case file, 800 Georgian laris (approximately 333 euros (EUR)) were spent on his treatment at the NCO. The applicant also submitted a certificate which stated that in the framework of a state-funded programme to combat cancer he had benefitted from a 30% reduction in the cost of treatment and a 70% reduction in the cost of diagnostic tests. Without those reductions, the family would not have been able to pay for his treatment.

On 28 March 2008 the Court, acting under Rule 39 of the Rules of Court, indicated to the Government that the applicant should be placed in the prison hospital, where he could be provided with adequate medical treatment for his cancer and chronic HCV. The Government were also directed to ensure that the applicant was provided with all the relevant medical tests before commencing antiviral treatment and that his treatment be determined in consultation with an oncologist.

The applicant was transferred to the prison hospital the next day. On 8 April 2008, he was taken to a specialist civilian medical institution, where he underwent a tomography scan, which revealed a cyst-like lump. Doctors recommended a cancer marker blood test and an examination by an oncologist. Upon his return to the prison hospital, on 12-13 April 2008, the applicant had a consultation with a chemotherapy specialist, who concluded that he required several liver tests in view of his HCV diagnosis and further chemotherapy. The applicant was immediately offered chemotherapy at the prison hospital under the surveillance of an oncologist and a chemotherapy expert. However, he rejected that offer and on 16 April 2008 requested a transfer to a specialist medical establishment. In that connection, the applicant argued that the conditions at the prison hospital were not appropriate for chemotherapy and that the relevant specialists were not present on a permanent basis to monitor his condition.

On 1 May 2008 a medical panel at the prison hospital, including an oncologist, chemotherapy doctor and a liver specialist, concluded that treating both of the applicant’s diseases simultaneously was not advisable. They concluded that chemotherapy was the priority and that the antiviral treatment should be postponed. On 5 May 2008 the applicant was again offered chemotherapy at the prison hospital, but he refused and requested a transfer to the NCO. In reply to his request, by a letter of 8 May 2008, the head of social services at the prisons department asked the applicant to substantiate his request and explain the reasons for his dissatisfaction with the prison hospital. The applicant noted in a letter of 23 May 2008 that the prison hospital, inter alia, did not employ a chemotherapy specialist who was present on a daily basis and that he would therefore be left without fulltime medical supervision there.

According to the medical file, the applicant on 27 May 2008 again had a consultation with a chemotherapy doctor. Whilst confirming the need for chemotherapy, the doctor also noted that the applicant required various liver tests before antiviral treatment could commence.

In a letter of 4 June 2008 the head of social services stated that the prison hospital was adequately equipped to provide the applicant with chemotherapy under the supervision of relevant specialists. He noted that several other inmates had had such treatment at the prison hospital and there was therefore no need to transfer the applicant to a specialist civilian hospital.

The Government informed the Court in a letter of 4 June 2008 about the applicant’s refusal to have chemotherapy in the prison hospital. Treating it as obstructive behaviour and referring to the associated health risks, the Government asked the Court to provide them with any further indications at its earliest convenience.

On 7 and 8 July 2008 the applicant asked the Court, under Rule 39, to indicate to the Government to transfer him to the NCO for chemotherapy. He reiterated his argument concerning the inadequacy of the equipment at the prison hospital for providing the requisite treatment for his cancer. In support, he noted that two of the six prisoners who had had chemotherapy at the prison hospital had passed away.

On 10 July 2008 the Court, acting under Rule 39 of the Rules of Court, requested that the Government transfer the applicant to the NCO for more chemotherapy. On 14 July 2008 the applicant was transferred to the NCO, where he had a tomography scan, which showed that there had been no progression of his retroperitoneal lymphadenopathy in the abdominal cavity and that tumour markers were within normal limits. At the same time the scan revealed changes in his left lung and doctors recommended that he have a further examination. Following additional medical tests the applicant was diagnosed with tuberculosis (“TB”) in the left lung. On 20 August 2008 he had a resection of the upper part of the left lung. On discharge from the NCO in early September, it was noted that his condition was stable but that he required specialist treatment in a tuberculosis unit. The need for quarterly oncological check-ups was also noted.

On 3 October 2008 the applicant had a consultation with a liver specialist, who noted a low level of pathological activity in the applicant’s HCV and prescribed treatment with various hepatoprotectors. At the same time he was offered anti-TB treatment within the DOTS programme (Directly Observed Treatment, Shortcourse – the treatment strategy for the detection and cure of TB recommended by the World Health Organisation), which he refused. On 31 October 2008 and then on 12 January 2009 the applicant also had HCV tests. The results showed no replication of the hepatitis and accordingly no need for antiviral treatment. The applicant was prescribed continued treatment with various hepatoprotectors.

Over the following months the applicant was kept mainly in the prison hospital, except for short periods in December 2008, and January, March and July 2009, when he was transferred to the NCO and other civilian hospitals for check-ups. The medical records show that over that time the applicant was kept under constant medical supervision, having regular laboratory tests and examinations (blood and urine tests, ultrasound examinations, several tomography scans, determination of cancer markers, and bacteriological sputum tests), and having repeated consultations with medical specialists, including an oncologist, urologist, and an infection specialist. The medical file also shows that between 27 March and 28 April 2009 the applicant underwent a comprehensive forensic examination at the National Forensics Bureau. As a result his diagnosis was defined as follows: cancer of the right testicle at the first stage in clinical group III in a postchemotherapy and post-resection period. The applicant’s condition was described as satisfactory, with the experts noting no hepatological pathology, inactive tuberculosis bacteria and no progression of the cancer.

On 7 October 2009 the Government updated the Court on the treatment provided to the applicant for his various diseases. When submitting the applicant’s complete medical file for 2009, the Government maintained that the applicant’s diseases were not showing any signs of progression. They submitted that they had taken all the necessary measures for the protection of the applicant’s health in prison and asked the Court to lift the interim measure indicated on 28 March 2008.

By a letter of 16 June 2010, the applicant objected to being discharged from the prison hospital. He stated that the medical evidence submitted by the Government did not support the assertion that he did not require further medical treatment. He also noted that he had never been provided with any treatment for his chronic HCV and that his health would again deteriorate if he was transferred to Rustavi Prison no. 2.

In the light of the information provided by the parties, the Court on 8 February 2012 decided to lift the interim measures previously indicated on 28 March and 10 July 2008 under Rule 39.

The applicant was detained in Tbilisi Prison no. 5 between 11 August 2005 and 17 November 2006, including several transfers to the prison hospital. According to the applicant, the conditions of his detention in Tbilisi Prison no. 5 were appalling. He was kept in an overcrowded cell, where he had to take turns to sleep, getting a maximum two-three hours of sleep a day. The sanitary and hygiene conditions in the cell were bad and he was not allowed to have daily outdoor exercise.

The applicant mainly spent the following two years in Rustavi Prison no. 6 and the prison hospital. According to the applicant, the food provided in those establishments was so poor that his family had to regularly supply him with food at their own expense. Furthermore, he was deprived of basic items of hygiene, such as toilet paper, soap and bed linen.