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

Abigail Lofaro;András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1949 and lives in San Gwann.

A robbery took place on 12 May 1995 in the home of Mr and Ms Z. (the former is a lawyer by profession). According to the versions of the victims at the time, the robbery was carried out by five to seven hooded men who appeared to be under the effects of drugs. They had entered through the roof and sought to find the safe. Various items were stolen and the victims were injured while they were being held face down in the bedroom. According to Mr Z. during the robbery one of the robbers said, “Give us the two buckets of gold you told us you had in your possession”. Further conversations between the robbers indicated that they had a southern Maltese accent. When questioned after the incident the victims stated that they had not recognised anyone at the time, since they had been kept face down in the bedroom during the robbery. The Government contested the latter fact, relying on the version of events given by Mr Z. in 2002 (see below).

The applicant and his brother, like their father previously, had done work for the Z. family as plumbers and electricians.

During the investigation Mr Z. mentioned the applicant and his brother as possible people who had had access to his house and had been familiar with it, without indicating that he identified either of them as the robbers. Thus, despite the fact that the applicant had been questioned by the Police in June 1995, neither of them had, at the time, or later, been charged in connection with this robbery and no criminal prosecution ever ensued because of the lack of any evidence pointing in their direction.

In 1996, the relationship between the brothers and Mr Z. broke down following Mr Z.’s failure to make payments to the applicant’s company. Following this, in 1997 Saliba Brothers (the company owned in part by the applicant) instituted proceedings against Mr Z. claiming payment for services rendered (these proceedings were eventually withdrawn following payment of the outstanding amount).

The applicant alleged that pending the abovementioned proceedings, Mr Z. had started bad-mouthing the applicant to neighbours who had also suffered burglaries – stating that it had been the applicant, that is to say the electrician they all used, who had committed them. The Government noted that according to the evidence tendered by E.C., a neighbour of Mr and Ms Z. (see below), it had been a common perception that families who had been regular clients of the applicant had been robbed. The applicant highlighted that the same E.C., in crossexamination had twice confirmed that he had had no suspicions that the applicant had somehow been involved in the robbery.

Five years after the robbery, in June 2000, Mr and Ms Z. sued the applicant in civil proceedings for the damage resulting from the said robbery as, in retrospect, Mr Z. considered that he recognised the applicant as one of the robbers.

During the proceedings, the court heard evidence from Mr Z. (including a lengthy affidavit) and accepted an affidavit from Mr Z.’s wife. The applicant was unable to cross-examine Ms Z. on the basis of medical advice given by an ex parte doctor who had testified before the court to the effect that Ms Z. had been suffering from depression for around eight years and that in the last two years her state of health had become much worse (she had been spending her days in bed not wanting to know about anything going on around her and had become dependent on others). He considered that there was no hope of this situation changing in the near future. When asked whether Ms Z. had been in a position to understand what she had been saying at the time of the incident, the ex parte doctor replied “I think so, of course she was”.

The applicant’s request to have Ms Z.’s statement expunged from the record was refused.

In all, the evidence presented before the court consisted of the following:

On behalf of the applicant:

- The affidavit of the applicant, as well as his oral testimony (where he noted the good relationship that had existed between him and the plaintiff and categorically denied any involvement in the robbery, during which he had been at home sleeping, and claimed that the plaintiffs had instituted the case only in response to the proceedings his company had lodged against Mr Z., in which they had eventually been successful; following these proceedings Mr Z. had started telling neighbours who had been robbed that he (the applicant) had been responsible; he related that the morning following the incident he had been surprised to see the police on the road at the Salibas’ shop, close to Mr Z.’s house and, after hearing what had happened, he had repeatedly tried to call Mr Z. to offer a helping hand. Since he had not been able to get through, he had gone to the house where he had been greeted warmly at the entrance by Mr Z., who had recounted what had happened during the night including a reference to three persons who Mr Z. had claimed had been watching the roof intermittently for a period; some days later, while the applicant had been visiting a relative in hospital with his family, they had also visited Ms Z.; Mr Z. had been happy to see him (the applicant) and had told him not to worry about the money he had been owed as only a little had been stolen and it had not even been worth the beating they got; the applicant further noted that he had been surprised about Ms Z.’s written testimony, given the relationship of mutual respect they had had, and he wished to cross-examine her; he further recounted how he had been called out to Mr Z.’s house during the night only once, and that he had never fallen off a ladder, contrary to what had been alleged by Mr Z. He further referred to certain jobs completed in the house and to a number of named individuals who could have seen the safe; he stated that the only times he had avoided Mr Z. had been when the latter had failed to pay him; he noted that contrary to what Mr Z. had alleged, he had had no connection to arms or drugs (save for possessing a hunting rifle with the relevant police permits, which he had no longer used); he stated that he had not stopped work on one of Mr Z.’s properties of his own motion, but because Mr Z. had told him to do so; the applicant had also explained this to N.S.T (an architect); the applicant also contradicted various elements of Mr Z.’s affidavit; in particular he denied ever having been told about buckets of gold by Mr Z., and reference to such gold had only been made by Mr Z. during the proceedings lodged against him, and by the police one time when they had questioned him (the applicant));

- The affidavit of the applicant’s wife (she recounted that the applicant had only left the house twice during the night since 1989 – once to go to the Z. family’s premises following an urgent call-out, and once to go to another client; She also recounted their visit to Ms Z. after the robbery and in what circumstances they had met prior to the robbery; she lastly explained how surprised and hurt she was about Mr. Z.’s actions in their regard).

- The two affidavits of the applicant’s two brothers (F. and S.) and the oral testimony of F. (F. confirmed that he had worked everywhere in the house, including next to the safe, together with other workmen from his company and that other named individuals had had access to the house as they had also rendered services there; he also denied that he had ever spoken to W.B. (the Z. family’s caretaker) about payments due, and that he had ever taken anything from Mr Z. without permission, contrary to what had been alleged by him. He further stated that when questioned by the police two years after the incident they had asked him whether he had been aware of the position of the safe and the buckets of gold; in his oral testimony he confirmed that he had fallen off a ladder once in Mr Z.’s house contrary to Mr Z.’s statement alleging that it had been the applicant who had fallen); (S. testified that the brothers had stopped work on one of the projects because Mr Z. had not confirmed that he had wished them to continue and had failed to pay sums already due, and in respect of which they had thus sued Mr Z. S. also contradicted other events recounted by Mr Z. in his testimony and noted that he had never discussed due payments with W.B.)

- The seven affidavits of the applicant’s seven sisters (who denied ever having made certain statements to Mr Z., which he had imputed to them in his testimony, or having gone to his house, or even having known him);

- The cross-examination of Mr Z. (at two hearings);

- The crossexamination of the police investigator, G.C. (at two hearings);

- The cross-examination of a neighbour, M.C.

On behalf of the plaintiffs:

- The two affidavits of Mr Z.

In the first affidavit Mr Z. explained the history and the good relationship he had had with the applicant’s family and how much the Z. family had cared for and trusted the applicant. He stated that at the time of the robbery the Saliba brothers had been working on project D. but works had been stalled; that the applicant’s sisters had gone to his office worried and in fear of the applicant, who they said was clever and armed; Mr Z. explained that a few weeks before the robbery the applicant had been working at the house, including on the roof, and at one point, while distracted, the applicant had fallen off a ladder; Mr Z. explained that on some occasions both the applicant and his brother had had access to the door of his roof and had known how to open it, and had also worked close to the safe. Mr Z. stated that in more recent years it had been only the applicant who had attended to jobs in the house and who had come during the late hours of the night, coming promptly and not charging them, even though he usually charged for all his services, even minor ones – thus, he had been the only one in the world, and nobody else, who had the knowledge of the house as it would be at night time. Mr Z. related that on one occasion, where payment to the applicant was likely to be delayed, he had reassured the applicant by referring to his (Mr Z.’s) numerous immovable properties and told the applicant precisely to “rest assured you have two buckets of gold as guarantee”. Mr Z. noted that he had never used these words with anyone else and that the applicant had appeared to take him literally; he stated that later on the applicant had also admitted to these words having been uttered to him. Mr Z. recounted the robbery: how, while the Z couple had been asleep, they had heard chaos in the entrance of the house and one man had run through the corridor directly towards them and asked him for gold. Another two men had followed and kept the couple in the bedroom in the dark; one of them (who injured his wife while holding her on the ground) had again asked for gold stating that they would go and consume drugs, while the other had repeated “give us the gold you told us you have”. Mr Z. stated that he had recognised the words on the spot, as those he had once uttered to the applicant. Mr Z. noted that the two people who had held them in the bedroom had appeared to be under the effects of drugs; while they had been asking for gold it had become clear that they had been targeting the safe. Twenty minutes later another voice had called out from the end of the corridor that they could leave and so they had done so. Mr Z. stated that once the robbers had left the bedroom he had followed them and recognised the applicant as one of the six or seven men - “I recognised him with my eyes, after already knowing that he was one of them through my ears”. Mr Z. held that the applicant had been the only one to have remained silent. Having known the applicant closely and worked with him for around twelve years, Mr Z. felt that he could recognise his mannerisms, stature, height and behaviour, as well as his movements and head inclinations, which corresponded to what he had seen. Mr Z. continued to explain that it had been natural not to say anything in that moment of shock and fear, but that:

“I knew from the start that he was part of the group because I was told so and because I recognised him, he had kept his distance but I saw him leave in the car with the others as if [qisu] the bottom part of his face uncovered”.

While various rooms had been searched, only the contents of the safe had been stolen. Mr Z. explained that one of the robbers had exclaimed “there it is” and they had initially tried to remove the safe, but then they found the key to it in Ms Z.’s purse, which as a habit she regularly kept on the armchair in the sitting room. Confronted with this situation Mr Z. reiterated that on that date the applicant and his brother had been the only two persons who had known about the safe as they had been the only people who had entered that part of the house on multiple occasions since 1991, and the louvres had been always closed. Mr Z. recalled how after the robbery numerous people had come and seen the safe, but not the applicant or his brothers. The applicant had had all the knowledge necessary, including how to open the roof door, where to cut the phone line, where to find the purse, and other useful details to facilitate such a robbery, which had taken place in twenty minutes during the night. Mr Z. continued to explain the situation after the robbery. He stated that the working relationship had ended and that the applicant had gone to the house a couple of hours after the robbery; he had offered no help and had just shown his face; nor had he offered any help when he had gone to visit Ms Z. in hospital, with his wife and daughter who, had not been known to the couple. Mr Z. testified that a few days after the robbery he had gone to buy a bulb from the applicant, who had expressed no sympathy. Mr Z. stated that subsequently the applicant had called him to tell him he would no longer work on project D., and Mr Z. noted that the architect N.S.T. and their caretaker W.B. had said that the applicant had refused to work for Mr Z. any longer as he had no longer had money, and that he had failed to pay the brothers money due for services rendered. It had also been strange that sometime after the robbery, Mr. Z had sent invoices claiming such fees and had started avoiding the applicant. Yet in 1995 the applicant had sent the couple a Christmas card and in 1996 invited them to his daughter’s wedding. Mr Z. further referred to various robberies which had taken place in households in the neighbourhood which had been all clients of the applicant. He stated that M.C. had told him that the applicant had been the last person in the room before she had found her jewellery box missing. He reiterated the changed attitude of the applicant towards him following the robbery and had even instituted civil claims in judicial proceedings. The Saliba brothers had also not told him that their father had died, even though he had been the testamentary executor nominated by their late father. According to Mr Z. the applicant had known that had they not been sure of his responsibility, they would not have instituted proceedings against him.

In a later affidavit, Mr Z. clarified that it had been only three of the sisters who had gone to him in fear of their brother. He considered the applicant’s wife’s affidavit as totally untruthful; likewise the applicant’s brothers’, in particular in connection with the reasons why work on project D. had stopped – he noted that the real reason had been the robbery and the fact that the applicant had realised he had been caught – and in connection with their exchanges with W.B. Mr Z. also considered the applicant’s testimony to have been untruthful and therefore an indication of guilt, and indicated a number of lies therein.

- The affidavit of Ms Z. (to the effect that robbers had targeted the safe, which they had tried to remove entirely until they had found the key to it in her handbag; she stated that absolutely nobody had known about the safe before the robbery as nobody had entered that very private area of the house; she further stated that it had been only the applicant who – in the three years before the robbery – had continuously and at all times of day and night entered all parts of the house as he had been their trusted handyman, and that sometimes he had been accompanied by his brother and that they had both known about the safe. She reiterated that it had been only the applicant who had had access to the safe and had known the house by night, knowledge which neither his brother nor the domestic help had had. She explained that she had been told that after the incident the applicant had gone to their house and to visit her in hospital with his family; he had also sent a Christmas card and invited the couple to his daughter’s wedding; however he had not wanted to continue working on one of Mr Z.’s projects and had eventually sued them in court without giving them prior notice. She considered this to be odd given their good relationship, which had dated back many years, and she thus considered that they had had something to hide.);

- The affidavit of the architect on project D., N.S.T. (who stated that the reason given by the applicant for stopping the works on project D. had been that Mr Z. had had no money);

- The affidavit of W.B. an employee of the Z. family (who testified that the Saliba brothers had been the trusted electricians and plumbers of the Z. family and they had stopped working on any of the Z. family’s properties after the robbery (unlike other workers); he stated that the brothers had once asked him why Mr Z. had not been paying them as Mr Z. had told them that compared to the gold he had not even a breadcrumb had been taken. Another time the brothers had told him (W.B.) that they had not wanted to work for Mr Z. anymore as he had had no money. When he (W.B.) had told Mr Z. what the brothers had told him, Mr Z. had told W.B. that he had once told the applicant not to worry if he had not paid up immediately as he had had two buckets of gold as a guarantee for any outstanding debt. Mr Z. had explained to him (W.B.) that the applicant had taken him literally and that the applicant had expected to find more than he had actually found in the safe; W.B. also stated that he had never entered that private part of the house where the safe had been. Lastly, he denied participation in the robbery);

- The affidavits of two neighbours, E.C. and M.C. (E.C. stated that he and other neighbours had been robbed while being clients of the applicant who ran a shop on the same road where they lived – this fact was known in the area);

- Evidence of police inspectors S.G. and J.C. (S.G. confirmed that at the time of the incident they had not known who the robbers had been: J.C. stated that the investigators had spoken about the applicant in June 1995 and that subsequently he had been questioned (amongst others – five people altogether) as a person with the knowhow to commit such a robbery, as well as a result of Mr Z.’s claim to the effect that he had mentioned the buckets of gold only to the applicant. J.C. also stated that Mr Z. had said that only one of the four or five robbers had spoken during the incident);

- The cross-examination of the applicant’s two brothers and four of his sisters

- Breakdown of the plaintiff’s claim, confirmed under oath by Mr Z., and a number of supporting documents.

By a five-page judgment of 10 October 2006 the Civil Court (First Hall), in its civil jurisdiction, considered that the applicant had taken part in the robbery and therefore ordered him to pay damages yet to be quantified, and requested that the plaintiffs submit a claim. The court admitted that there had been various inconsistencies in the testimony of Mr Z. – for example statements that the applicant had been silent and yet that the victim had recognised him through his sense of hearing, as well as his statement that someone had told him that it had been the applicant. The court further noted that many of Mr Z.’s arguments indicating that the applicant was implicated had weakened his version. These arguments based the applicant’s guilt on the fact that i) he had fallen off a ladder; ii) that he had invited Mr and Ms Z. to his daughter’s wedding; iii) that he had not informed Mr and Ms Z. about the demise of his father; iv) that he had been paid for work by means of land; v) that he had sent the Z. family a postcard; vi) that the applicant had fallen out with his brothers; and vii) that the applicant had been “silent and absent”. Indeed these repeated arguments had been far-fetched and banal, usually an indication that an individual was not convinced of his statement. The court noted that the only established facts were that the robber had known both the house (allowing him to move comfortably within it and find what he wanted) and Mr Z. (giving the robber a reason to remain silent during the robbery). While the applicant had not been the only one to have had these traits, the applicant had been one of the few who had had them. Furthermore, the robbers had known about the “buckets of gold”, which Mr Z. had allegedly mentioned to the applicant. In the court’s view the robbers had either known this from the applicant and, if so, the applicant would have had no other reason to share this information apart from bad intentions, or the robber had actually been the applicant himself. The court noted that this unfortunately indicated that Mr Z. had used this factor for the identification of the applicant, and it would have been better to have solely relied on visual identification.

Nevertheless, the court considered Mr Z.’s testimony reliable on the basis that identification could be based on mannerisms, movements and a silhouette, even if the face and voice remained hidden. It concluded that the applicant “had taken part in the robbery” and in application of the civil code was responsible for the damages suffered by the claimants.

By a decree of the same date the court ordered Mr Z. to lodge a schedule of damage within two months.

By means of an affidavit of 13 November 2006, confirmed under oath by Mr Z., the Z. family claimed damage amounting to around 125,000 euros (EUR) covering the items and money stolen (including a list of jewellery drawn up with the assistance of a professional who had not taken an oath) and the expenses to repair the damage caused to the house. They further claimed medical expenses of EUR 85,000 in relation to the injuries suffered.

On 8 January 2007 the applicant made submissions on this point requesting that the court not allow the affidavit of 13 November 2006 as evidence on the grounds that the stage of putting forward evidence had been closed two years earlier and Mr Z. had declared that he no longer had any evidence to submit.

By a judgment of 4 March 2008, the Civil Court (First Hall), in its civil jurisdiction, ordered the applicant to pay EUR 130,000 in damages, specifically for the EUR 125,000 in stolen items and cash and for the damage done to the house, as declared by Mr Z.; and EUR 5,000 in medical expenses. The court noted that the victims were not required to have receipts of the items obtained over several years or proof of how much cash they had had in the house. In such circumstances the best proof was the victims’ declaration under oath, the veracity of which (after having seen the house) the court had no reason to doubt. Thus, damages for items stolen had to be granted on the basis of Mr Z.’s claim. However, as to the medical expenses, while it was true that the claim had also been made under oath, given that the expenses had been incurred after the robbery and after the couple had already decided to sue, the court considered that the claimants should have kept receipts of such expenses and therefore made this award arbitrium boni viri.

By a decree of the same day the court refused the applicant’s request not to allow the submission of the claim for expenses rendered by means of an affidavit not confirmed under oath by the ex parte expert and submitted after the stage for submissions of evidence had closed.

On 17 March 2008, the applicant appealed against all the above decisions. In his appeal application and again orally during the appeal hearing he asked the court to allow his brother to appear in court (to show that the victim could not differentiate between the two brothers – see paragraph 15 above in connection with the testimonies concerning the ladder incident). The appeal application read as follows:

“At this stage, the plaintiff is humbly making a formal request to the Court of Appeal to allow the applicant to produce as evidence before it his brother [F.S.] in order for the court to be able to confirm the above ...”

The Government contested the fact that the written request had been repeated orally, as no such record had been found in the acts of the proceedings. The Court of Appeal gave no reply to this request.

The Court of Appeal, by a judgment of 6 October 2009, reiterated that it was well known that it was not for it to alter the assessment of evidence in the absence of compelling reasons. It noted that for civil proceedings to reach a finding it sufficed for a judge to have a “moral certainty”, as opposed to proof beyond reasonable doubt as required in criminal proceedings. It was true that a more rigorous test was required when a person was being accused of a crime in the context of civil proceedings, particularly when the issue was the identity of the person. However, Maltese law did not provide what was necessary for identification, only what was not necessary, thus leaving it to the judge to decide according to his discretion. In the present case, the whole case depended on Mr Z.’s identification of the applicant, which the firstinstance court had chosen to believe despite the inconsistencies and contradictions in his and Ms Z.’s testimonies. In this connection one had to bear in mind that the memory of a victim of a violent robbery could suffer psychological effects which may result in inconsistencies. Having examined the acts of the proceedings and the applicant’s submissions, it considered that it need not depart from the first-instance court’s findings because the applicant’s arguments were secondary to the actual identification of the applicant and were therefore not justified.

As to the dismissal of the applicant’s objection in relation to the claim for damages which were allowed at a later stage, the court considered that the claim was not new evidence as such and it was the only proof of the damage that had been caused. Moreover, it had been the court which had requested that Mr Z. lodge the claim and the applicant had had the possibility of making submissions in reply, thus no prejudice had been caused.

As to the award of damages, the Court of Appeal noted that Mr Z.’s testimony had been made under oath; the list of jewellery had been drawn up with the assistance of an expert (although he had not confirmed it under oath); thus, Mr Z. could not be blamed for not presenting further evidence of the damage, particularly since some items had been inherited and others purchased long before, as well as because certain documents had also been in the safe and had been stolen during the robbery. Mr. Z. had not valued the items himself and had appropriately engaged a jeweller to perform the evaluation. Had the applicant had doubts as to that person’s expertise, he could have, at the relevant time, challenged him and called him as a witness.

The applicant instituted constitutional redress proceedings claiming a violation of, inter alia, Article 6 § 1 of the Convention.

By a judgment of 7 October 2011 the Civil Court (First Hall), in its constitutional jurisdiction, rejected the applicant’s claims.

It considered that the applicant had not been found guilty of a criminal offence, but was responsible for damages arising as a result of that crime. In consequence the proceedings remained under civil law and the burden of proof remained that used for civil cases, namely a balance of probabilities, and did not require a more onerous degree of proof. It noted that the first court had assessed the evidence available and considered that the identification of the applicant had been convincingly established; the Court of Appeal found no reason to alter that conclusion. Thus there was nothing which indicated a breach of the applicant’s rights.

As to the applicant’s inability to cross-examine Ms Z., it noted that there had been a valid reason, namely her poor health as confirmed by her doctor, and the applicant had had the opportunity to comment on her written testimony. In its view there had been nothing arbitrary in the court’s decision to allow that statement, as it had been acting within its discretion. Furthermore, the applicant had not appealed against this matter before the Court of Appeal. As to the refusal of the appeal court to call for his brother, it noted that it was not the Court of Appeal’s role to re-examine witnesses and the applicant’s brother had already given testimony in written and oral form at first instance. As to the refusal not to allow the “late” claim for damages, it found that this fell within the court’s discretion to proceed with the case in the way it deemed fit in the interests of justice. Lastly, no issue arose from the courts’ acceptance of an evaluation of damage which had not been confirmed under oath by the expert, and such an evaluation fell within the discretion of the courts. It concluded that the applicant’s rights had not been breached.

The applicant appealed.

By a judgment of 15 October 2012 the Constitutional Court also rejected the applicant’s claims. It considered that in the civil proceedings the first-instance court had had no doubt about Mr Z.’s testimony and his identification of the applicant and nothing indicated that that court had not taken into consideration all the necessary evidence for its assessment. Furthermore, the Court of Appeal had not found there were compelling reasons to alter that decision.

As to the failure of the Court of Appeal to hear evidence from the applicant’s brother, it considered that although this request had been made in writing amongst other pleadings in the appeal application, it had not been reiterated in the concluding requests of the appeal application. There was also no note in the minutes of the hearings that this matter had been raised orally. In any event, the applicant’s brother had given testimony at first instance and, given that such a decision fell within the discretion of the courts, the applicant had not proved that the failure to re-examine the witness had caused him prejudice.

As to the inability of the applicant to cross-examine Ms Z., the Constitutional Court noted that her testimony (unlike that of her husband) had not referred to the identification of the applicant, which had been nearly the only factor on which the civil court had based its decision. Thus, no prejudice had been caused to the applicant. It followed that no issue of equality of arms arose as a result of the two procedural steps examined above.

As to the decision on the damage, the Constitutional Court considered that the principle of onus probandi incumbit ei qui dicit non ei qui negat had been respected, as the civil court had opined that the damage had been proved by Mr Z.

According to the documents submitted, following the above judgments the applicant became extremely depressed and unfit for work. He was thus excused from work and began to receive a disability pension. He considered that had he continued to work, he would have earned much more. According to the Government the applicant was certified as unfit for work on 1 July 2005 and retired when he was sixty-one and has since then been in receipt of a pension.

On 25 March 2010 Mr and Ms Z. made a request for a judicial sale by auction of property belonging to the applicant in order to have the courts’ judgment enforced. Another such request was made on 11 February 2013.

The applicant attempted to obtain the entire case file concerning the civil proceedings; however, he was informed that it had gone missing from the Registry of the Courts of Malta; the applicant lodged the application before this Court with the documents in his possession. The Government located the file following communication of the application and submitted it to the Court.

In 2015, since they had not yet received payment from the applicant, the Z. family instituted civil proceedings against the applicant’s brother F., asking the court to declare him responsible for the same robbery and asking the court to order (in solidum with the applicant) the payment of the same damages liquidated by the Court of Appeal in its judgment of 6 October 2009.

The photos submitted to this Court by the applicant show, in particular, a difference in height and hair colour between the applicant and his brother.


CASE OF JONES AND OTHERS v. THE UNITED KINGDOM

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

George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Phillips of Worth Matravers;Vincent A. De Gaetano;Zdravka Kalaydjieva

On 15 March 2001, while he was living and working in the Kingdom of Saudi Arabia, Mr Jones was slightly injured when a bomb exploded outside a bookshop in Riyadh. He alleges that the following day he was taken from hospital by agents of Saudi Arabia and unlawfully detained for sixty-seven days. During that time he was tortured by a Lieutenant Colonel Abdul Aziz. In particular, he alleges he was beaten with a cane on his palms, feet, arms and legs; slapped and punched in the face; suspended for prolonged periods by his arms; shackled at his ankles; subjected to sleep deprivation; and given mind-altering drugs.

Mr Jones returned to the United Kingdom where a medical examination found he had injuries consistent with his account and where he was diagnosed with severe post-traumatic stress disorder.

On 27 May 2002 Mr Jones commenced proceedings in the High Court against “the Ministry of Interior the Kingdom of Saudi Arabia” and Lieutenant Colonel Abdul Aziz, claiming damages, inter alia, for torture. In the particulars of claim he referred to Lieutenant Colonel Abdul Aziz as a servant or agent of Saudi Arabia. Service was effected on Saudi Arabia via its then solicitors, but the solicitors made it clear that they had no authority to accept service of the claim on Lieutenant Colonel Abdul Aziz.

On 12 February 2003 Saudi Arabia applied to have the claim struck out on the grounds that it, and its servants and agents, were entitled to immunity and that the English courts had no jurisdiction. Mr Jones applied for permission to serve the claim on Lieutenant Colonel Abdul Aziz by an alternative method. In his judgment of 30 July 2003, a Master of the High Court held that Saudi Arabia was entitled to immunity under section 1(1) of the State Immunity Act 1978 (see paragraph 39 below). He also held that Lieutenant Colonel Abdul Aziz was similarly entitled to immunity under that Act and refused permission to allow service by an alternative method. Mr Jones appealed to the Court of Appeal.

Mr Mitchell and Mr Sampson were arrested in Riyadh in December 2000; Mr Walker was arrested there in February 2001. All three applicants alleged that, while in custody, they were subjected to sustained and systematic torture, including beatings about the feet, arms, legs and head, and sleep deprivation. Mr Sampson alleged he was anally raped. The applicants were released and returned to the United Kingdom on 8 August 2003. Each obtained medical reports which concluded that their injuries were consistent with their accounts.

The applicants decided to commence proceedings in the High Court against the four individuals they considered to be responsible: two policemen, the deputy governor of the prison where they were held, and the Minister of the Interior who was alleged to have sanctioned the torture. They therefore applied for permission to serve their claim on the four individuals out of the jurisdiction. On 18 February 2004 this was refused by the same Master who had heard Mr Jones’s claim, on the basis of his previous ruling in respect of Mr Jones. However, the Master acknowledged that he had enjoyed the benefit of fuller argument than on the applications relating to Mr Jones’s claim, and said:

“[H]ad the matter come before me as a free-standing application, without my having decided the Jones case ..., I might have been tempted to give permission to serve out of the jurisdiction on the basis that it seems to me that, having heard the arguments, that there is a case to be answered by these defendants as to whether there is jurisdiction in these courts over them.”

The applicants appealed to the Court of Appeal with the leave of the Master.

The two cases were joined and on 28 October 2004 the Court of Appeal published its judgment. It unanimously dismissed Mr Jones’s appeal from the decision of the Master to refuse permission to serve Saudi Arabia outside the jurisdiction. However, it allowed the appeals in respect of the refusal of permission in each case to serve the individual defendants.

As regards the immunity of Saudi Arabia, Lord Justice Mance, with whom Lord Phillips and Lord Justice Neuberger agreed, refused to depart from this Court’s ruling in AlAdsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001XI. He further found that Article 14 § 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the Convention against Torture” – see paragraph 63 below), which obliges a Contracting State to ensure that a victim of an act of torture obtains redress, could not be interpreted as imposing an obligation on a State to provide redress for acts of torture when those acts were committed by another State in that other State.

In respect of the immunity of the individual defendants, Mance LJ considered the case-law of the domestic courts and courts of other jurisdictions, which recognised State immunity ratione materiae in respect of acts of agents of the State. However, he noted that none of these cases was concerned with conduct which was to be regarded as outside the scope of any proper exercise of sovereign authority or with international crime, let alone with systematic torture. He did not accept that the definition of torture in Article 1 of the Convention against Torture as an act “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” (see paragraph 59 below) was fatal to the applicants’ claims:

“71. ... It seems doubtful that the phrase ‘acting in an official capacity’ qualifies the reference to ‘a public official’. The types of purpose for which any pain or suffering must be inflicted ... would appear to represent a sufficient limitation in the case of a public official. Be that as it may, the requirement that the pain or suffering be inflicted by a public official does no more in my view than identify the author and the public context in which the author must be acting. It does not lend to the acts of torture themselves any official or governmental character or nature, or mean that it can in any way be regarded as an official function to inflict, or that an official can be regarded as representing the state in inflicting, such pain or suffering. Still less does it suggest that the official inflicting such pain or suffering can be afforded the cloak of state immunity ... The whole tenor of the Torture Convention is to underline the individual responsibility of state officials for acts of torture ...”

Mance LJ did not consider it significant that Lieutenant Colonel Abdul Aziz had been described in Mr Jones’s claim as the “servant or agent” of Saudi Arabia. Nor did he accept that general differences between criminal and civil law justified a distinction in the application of immunity in the two contexts. He noted that the House of Lords in Pinochet (No. 3) (see paragraphs 44-56 below) had considered that there would be no immunity from criminal prosecution in respect of an individual officer who had committed torture abroad in an official context. It was not easy to see why civil proceedings against an alleged torturer could be said to involve a greater interference in the internal affairs of a foreign State than criminal proceedings against the same person. It was also incongruous that if an alleged torturer was within the jurisdiction of the forum State, he would be prosecuted pursuant to Article 5 § 2 of the Convention against Torture (see paragraph 62 below) and no immunity could be claimed, but the victim of the alleged torture would be unable to pursue any civil claim. Furthermore, there was no basis for assuming that, in civil proceedings, a State could be made liable to indemnify or otherwise support one of its officials proved to have committed systematic torture.

Mance LJ considered that whether any claim in the English courts against individuals could proceed was better determined not by reference to immunity, but by reference to whether it was appropriate for the English courts to exercise jurisdiction. A number of factors were relevant to the assessment of this question, including the sensitivity of the issues involved and the general power of the English courts to decline jurisdiction on the ground that England was an inappropriate forum for the litigation.

In considering the impact of Article 6, Mance LJ found important distinctions between a State’s claim to immunity ratione personae, in issue in AlAdsani (cited above), and a State’s claim to immunity ratione materiae in respect of its officials, in issue in the present cases. Firstly, he considered it impossible to identify any settled international principle affording the State the right to claim immunity in respect of claims directed against an official, rather than against the State, its Head of State or diplomats. He was of the view that the legislation and case-law of the United States of America (see paragraphs 112-25 below) militated strongly against any such settled principle and supported a contrary view. In so far as counsel for the Government purported to refer to evidence of settled practice, Mance LJ noted that the case-law to which he had referred related either to the immunity of the State itself or to the immunity of individual officials for alleged misconduct that bore no relationship in nature or gravity to the international crime of systematic torture. He considered the dicta in the separate opinion of Judges Higgins, Kooijmans and Buergenthal to the judgment of the International Court of Justice in the “Arrest Warrant” case (see paragraphs 84-85 below) to provide further confirmation that there was no settled international practice in this area.

Mance LJ explained that where, under Article 14 of the Convention against Torture, a State had created a domestic remedy for torture in the State where that torture was committed, other national courts could be expected to refuse to exercise jurisdiction. However, where there was no adequate remedy in the State where the systematic torture occurred, it might be regarded as disproportionate to maintain a blanket refusal of recourse to the civil courts of another jurisdiction. He acknowledged that the courts of one State were not to adjudicate lightly upon the internal affairs of another State, but considered that there were many circumstances, particularly in the context of human rights, where national courts did have to consider and form a view on the position in, or conduct of, foreign States.

Mance LJ concluded that giving blanket effect to a foreign State’s claim to State immunity ratione materiae in respect of a State official alleged to have committed acts of systematic torture could deprive the right of access to a court under Article 6 of real meaning in a case where the victim of torture had no prospect of recourse in the State whose officials had committed the torture. He therefore allowed the applicants’ appeals in respect of the individual defendants and remitted them for further argument, concluding:

“96. ... [I]t seems to me that any absolute view of immunity must at the very least yield in the face of assertions of systematic torture to a more nuanced or proportionate approach. As it is, having regard to the [European Convention on Human Rights], it is sufficient to decide this appeal that, whether issues of state immunity are or are not treated as theoretically separate from issues of jurisdiction in English law, the permissibility, appropriateness and proportionality of exercising jurisdiction ought to be determined at one and the same time. Such a conclusion reflects the importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights. It fits harmoniously with the position already achieved in relation to criminal proceedings. It caters for our obligation under article 6 of the [Convention] not to deny access to our courts, in circumstances where it would otherwise be appropriate to exercise jurisdiction applying domestic jurisdictional principles, unless to do so would be in pursuit of a legitimate aim and proportionate. ...”

In his concurring judgment, Lord Phillips agreed with the conclusions of Mance LJ as regards both the claim against Saudi Arabia and the claims against the individual officials. In particular, he considered that the judgment in Pinochet (No. 3) (see paragraphs 44-56 below) had shown that torture could no longer fall within the scope of the official duties of a State official. It therefore followed that if civil proceedings were brought against individuals for acts of torture in circumstances where the State was immune from suit, there could be no suggestion that the State would be vicariously liable: it was the personal responsibility of the individuals, not that of the State, which was in issue.

On the approach of this Court, he commented:

“134. Had the Grand Chamber been considering a claim for state immunity in relation to claims brought against individuals, I do not believe that there would have been a majority in favour of the view that this represented a legitimate limitation on the right to access to a court under Article 6(1). Had the Court shared the conclusions that we have reached on this appeal, it would have held that there was no recognised rule of public international law that conferred such immunity. Had it concluded that there was such a rule, I consider that it would have been likely to have held that it would not be proportionate to apply the rule so as to preclude civil remedies sought against individuals.”

Saudi Arabia appealed to the House of Lords against the decision of the Court of Appeal in respect of the individual defendants and Mr Jones appealed against the decision of the Court of Appeal in respect of his claim against Saudi Arabia itself. On 14 June 2006, the House of Lords unanimously allowed Saudi Arabia’s appeal and dismissed the appeal by Mr Jones.

Lord Bingham considered that there was a “wealth of authority” in the United Kingdom and elsewhere to show that a State was entitled to claim immunity for its servants or agents and that the State’s right to immunity could not be circumvented by suing them instead. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent, had a sufficient connection with a State to entitle it to claim immunity for his conduct. However, in his view, these were not borderline cases. Lieutenant Colonel Abdul Aziz was sued as a servant or agent of Saudi Arabia and there was no suggestion that his conduct was not in discharge or purported discharge of his duties. The four defendants in the second case were public officials and the alleged conduct took place in public premises during a process of interrogation.

Further, referring to the International Law Commission’s (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (see paragraphs 107-09 below), Lord Bingham said that “international law does not require, as a condition of a State’s entitlement to claim immunity for the conduct of its servant or agent, that the latter should have been acting in accordance with his instructions or authority”. The fact that conduct was unlawful or objectionable was not, of itself, a ground for refusing immunity.

In order to succeed in their Convention claim, Lord Bingham explained that the applicants had to establish three propositions. Firstly, they had to show that Article 6 of the Convention was engaged by the grant of immunity; Lord Bingham was prepared to assume, based on this Court’s judgment in AlAdsani, cited above, that it was. Secondly, they had to show that the grant of immunity denied them access to a court; Lord Bingham was satisfied that it plainly would. Thirdly, the applicants had to show that the restriction was not directed to a legitimate objective and was disproportionate.

Lord Bingham disagreed with the applicants’ submission that torture could not be a governmental or official act since, under Article 1 of the Convention against Torture, torture had to be inflicted by or with the connivance of a public official or other person acting in an official capacity (see paragraph 59 below). Although the applicants referred to a substantial body of authority showing that the courts of the United States would not recognise acts performed by individual officials as being carried out in an official capacity for the purposes of immunity if those acts were contrary to a jus cogens prohibition, Lord Bingham found it unnecessary to examine those authorities since they were only important to the extent that they expressed principles widely shared and observed among other nations. However, as Judges Higgins, Kooijmans and Buergenthal had stated in their concurring opinion in the “Arrest Warrant” case, the “unilateral” US approach had not attracted the “approbation of States generally” (see paragraph 84 below).

Concerning the applicants’ reliance on the recommendation of the United Nations Committee Against Torture of 7 July 2005 in respect of Canada, comments made in the judgment of the International Criminal Tribunal for the former Yugoslavia in Furundžija, and the judgment of the Italian Court of Cassation in Ferrini v. Germany (see, respectively, paragraphs 66, 82 and 140 below), Lord Bingham considered the first to be of slight legal authority, the second to be an obiter dictum and the third not to be an accurate statement of international law.

Lord Bingham identified four arguments advanced by Saudi Arabia which he said were “cumulatively irresistible”. Firstly, given the conclusion of the International Court of Justice in the “Arrest Warrant” case, the applicants had to accept that State immunity ratione personae could be claimed for a serving foreign minister accused of crimes against humanity. It followed that the prohibition of torture did not automatically override all other rules of international law. Secondly, Article 14 of the Convention against Torture did not provide for universal civil jurisdiction. Thirdly, the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property (see paragraphs 75-80 below) did not provide any exception from immunity for civil claims based on acts of torture; although such an exception was considered by a working group of the ILC, it was not agreed (see paragraph 79 below). Lord Bingham noted in this respect that although some commentators had criticised the United Nations Convention because it did not include a torture exception, they nonetheless accepted that this area of international law was “in a state of flux” and did not suggest that there was an international consensus in favour of such an exception. Finally, there was no evidence that States had recognised or given effect to any international-law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law, nor was there any consensus of judicial or learned opinion that they should. For these reasons, Lord Bingham agreed with the Court of Appeal that the claim brought by Mr Jones against Saudi Arabia was to be dismissed.

In respect of the individual defendants, he found that the conclusion of the Court of Appeal on the torture claims could not be sustained. He considered that the Court of Appeal had incorrectly departed from the position in its previous ruling in Propend that the acts of State officials were to be considered the acts of the State itself (see paragraphs 42-43 below). He explained:

“30. ... [T]here was no principled reason for this departure. A state can only act through servants and agents; their official acts are the acts of the state; and the state’s immunity in respect of them is fundamental to the principle of state immunity. This error had the effect that while the Kingdom was held to be immune, and the Ministry of Interior, as a department of the government, was held to be immune, the Minister of Interior (the fourth defendant in the second action) was not, a very striking anomaly.”

Lord Bingham explained that this first error had led the court into a second: its conclusion that a civil claim against an individual torturer did not indirectly implead the State in any more objectionable respect than a criminal prosecution. He observed:

“31. ... A state is not criminally responsible in international or English law, and therefore cannot be directly impleaded in criminal proceedings. The prosecution of a servant or agent for an act of torture within article 1 of the Torture Convention is founded on an express exception from the general rule of immunity. It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party.”

In Lord Bingham’s view both errors resulted from a misreading of Pinochet (No. 3) (see paragraph 44-56 below), which concerned criminal proceedings only. The distinction between criminal proceedings (which were the subject of universal jurisdiction) and civil proceedings (which were not) was, he said, “fundamental” and one that could not be “wished away”.

Finally, Lord Bingham noted that the Court of Appeal had found that jurisdiction should be governed by “appropriate use or development of discretionary principles”. He considered that this was to mistake the nature of State immunity. Where applicable, State immunity was an absolute preliminary bar and a State was either immune from the jurisdiction of a foreign court or it was not, so there was no scope for the exercise of discretion.

Lord Hoffmann, concurring in the judgment, considered that there was no automatic conflict between the jus cogens prohibition on torture and the law of State immunity: State immunity was a procedural rule and Saudi Arabia, in claiming immunity, was not justifying torture but merely objecting to the jurisdiction of the English courts in deciding whether it had used torture or not. He quoted with approval the observation of Hazel Fox QC (The Law of State Immunity (Oxford University Press, 2004), p. 525) that State immunity did not “contradict a prohibition contained in a jus cogens norm but merely divert[ed] any breach of it to a different method of settlement”. For Lord Hoffmann, a conflict could only arise if the prohibition on torture had generated an ancillary procedural rule which, by way of exception to State immunity, entitled a State to assume civil jurisdiction over other States. Like Lord Bingham, he found that the authorities cited showed no support in international law for such a rule.

As regards the application of State immunity to individual defendants, Lord Hoffmann indicated that in order to establish that the grant of immunity to an official would infringe the right of access to a court guaranteed by Article 6 of the Convention, it was necessary, as in the case of the immunity of the State itself, to show that international law did not require immunity against civil suit to be accorded to officials who were alleged to have committed torture. He considered that, once again, it was impossible to find any such exception in a treaty. He reviewed in some detail the circumstances in which a State would be liable for the act of an official in international law and found it clear that a State would incur responsibility in international law if one of its officials “under colour of his authority” tortured a national of another State, even though the acts were unlawful and unauthorised. He said:

“78. ... To hold that for the purposes of state immunity [the official] was not acting in an official capacity would produce an asymmetry between the rules of liability and immunity.

Furthermore, in the case of torture, there would be an even more striking asymmetry between the Torture Convention and the rules of immunity if it were to be held that the same act was official for the purposes of the definition of torture but not for the purposes of immunity ...”

Lord Hoffmann found Lord Justice Mance’s conclusion that the Convention against Torture’s definition of torture did not lend acts of torture any official character to be unsatisfactory, explaining:

“83. ... The acts of torture are either official acts or they are not. The Torture Convention does not ‘lend’ them an official character; they must be official to come within the Convention in the first place. And if they are official enough to come within the Convention, I cannot see why they are not official enough to attract immunity.”

He also considered inappropriate the Court of Appeal’s proposed approach to the exercise of jurisdiction, on the ground that State immunity was not a self-imposed restriction but was “imposed by international law without any discrimination between one State and another.” He concluded that it would be “invidious in the extreme for the judicial branch of government to have the power to decide that it will allow the investigation of allegations of torture against the officials of one foreign state but not against those of another”.


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant, Mrs Tetyana Volodymyrivna Fakas, is a Ukrainian national, who was born in 1966 and lives in Ivano-Frankivsk. The applicant, who had been granted legal aid, was represented by Mr R. Karvatskyy and Mr D. Karapish, lawyers.

The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms Nataly Sevostianova, of the Ministry of Justice of Ukraine.

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

The applicant has been unemployed since 1997. She is married and has three children. On 24 August 2001 the applicant gave birth to her third child. Between November 2001 and July 2004 the applicant received a monthly child allowance of between 35.40 Ukrainian hryvnias (UAH) (November 2001) and UAH 43.14 (July 2004).

On 2 July 2006 the applicant instituted proceedings in the Ivano-Frankivsk City Court, claiming unpaid child allowance for the period between September 2001 and July 2004 under the State Assistance (Families with Children) Act (see the “Relevant domestic law” part below). The applicant stated that she was entitled to a monthly child allowance in an amount equal to the monthly “minimum subsistence level” established by law (“прожитковий мінімум”) for a child aged up to six years. She further referred to Article 46 of the Constitution of Ukraine, which provided that pensions and other types of social payment and assistance that were the recipient’s principle sources of subsistence should ensure an income not lower than that level. Between July 2001 and July 2004 she was receiving around UAH 40 (approximately 7 euros (EUR)) a month, whereas the official subsistence level for a child aged up to six years changed from UAH 276.48 (at the material time around EUR 57) in September 2001 to UAH 324.49 (at the material time EUR 50) in August 2004.

On 26 February 2007 the court rejected the applicant’s claims as lodged outside the one-year time-limit, which runs from the date when the person concerned has learned or should have learned about a breach of his or her rights.

The applicant appealed, stating that she had learned about the alleged breach of her rights only in March 2006 after having consulted a lawyer.

On 7 June 2007 the Lviv Administrative Court of Appeal quashed the decision of the first-instance court but rejected the applicant’s claims as unsubstantiated. The court held that although the applicant was entitled to a monthly allowance in accordance with section 15 of the State Assistance (Families with Children) Act, these amounts had been determined by the State Budget Acts of 2002-04. Therefore, the applicant had received the reduced amounts in accordance with the law.

On 3 November 2010 the Higher Administrative Court of Ukraine upheld that decision. The court held that the amounts of the allowance in question had been determined by the State Budget Acts of 2001-2004.

According to sections 22, 23 and 26 of the State Assistance (Families with Children) Act 1992 (Закон України «Про державну допомогу сім’ям з дітьми»), in force until 1 January 2002, child allowance was paid monthly to a child’s principal carer (e.g. employed women, unemployed women registered as such etc.) until the child reached the age of three in an amount equal to 100% of the minimum wage.

Section 29 of the same Act provided that unemployed women were entitled to child allowance in an amount equal to 50% of the minimum wage until a child reached the age of two.

By decision no. 14 of the Cabinet of Ministers of Ukraine of 12 January 2001 “On the Amount of State Assistance [payable] to Families with Children in 2001”, the amount of assistance was established as 20% (unemployed women) or 30% (employed women) of UAH 118 (the minimum wage in 2001).

According to section 15 of the State Assistance (Families with Children) Act, which was adopted on 22 March 2001 and entered into force on 1 January 2002, until a child reached the age of three child allowance was payable to a non-insured person in an amount equal to the minimum subsistence level for a child aged up to six years.

The monthly minimum subsistence level for children aged up to six years was determined yearly by a special law (Закон України “Про затвердження прожиткового мінімуму”). It was gradually increased from UAH 307 (2002) to UAH 324.49 (2004).

Part 3 of the Final Provisions of the State Assistance (Families with Children) Act provided that the amount of child allowance under section 15 of the Act was to be determined yearly by the Verkhovna Rada of Ukraine as a percentage of the minimum subsistence level with a view to gradually reaching that level. The amount in question could not be lower than 25% of the official subsistence level.

The State Budget Acts of 2002-2004 established that child allowance, which was provided for by the State Assistance (Families with Children) Act, was payable in an amount of 50% of the “guaranteed minimum” of the official subsistence level (“рівень забезпечення прожиткового мінімуму”). This portion was set as UAH 80 (2002-2003) and UAH 85 (2004) (section 42 of the State Budget Act 2002, section 48 of the State Budget Act 2003, and section 66 of the State Budget Act 2004).


The applicants, Mr Adem Cesur and Ms Nurdan Cesur, are Turkish nationals, who were born in 1952 and 1958, respectively, and live in Istanbul.

The applicants’ son Cüneyt Cesur worked as a police officer in Akçakale, a district of Şanlıurfa, and was married to Cahide Cesur who was also a police officer, at the material time.

On an unknown date Cüneyt Cesur instituted divorce proceedings against Cahide Cesur on the basis of breakdown of their relationship. Cahide Cesur decided to move to another house alone in the same district.

On 14 April 2009, at around 7:20 p.m., while Cahide Cesur was moving to another house in the same district, with the help of her father and a number of other people from the same town, Cüneyt Cesur came in. According to the statements of those present in the room who were subsequently questioned as witnesses, Cüneyt Cesur opened fire in the direction of the ceiling, then fired a shot on the back of his wife, before shooting himself on the head. Both Cüneyt Cesur and Cahide Cesur were taken to the hospital. Meanwhile, Ö.E., one of the people who was helping Cahide Cesur in the house, was also injured in the hand by a ricocheting bullet. At around 9:50 p.m. the same day Cüneyt Cesur lost his life at the hospital.

On 15 April 2009 at 1.10 a.m. an autopsy was carried out by two forensic doctors under the supervision of the public prosecutor at the hospital. According to the post-mortem report, there was a bullet entry wound at right temporoparietal, measuring 5 x 4 centimeters and an exit wound at left parieto-occipital, measuring 5.5 x 4 centimeters. It was noted in the report that the death had occurred due to the injuries caused by the bullet wound and that the shot had been a contact shot or a near-contact shot (bitişik ya da bitişiğe yakın).

On 15 April 2009 Şanlıurfa Security Directorate (Şanlıurfa Emniyet Müdürlüğü Olay Yeri İnceleme ve Kimlik Tespit Şube Müdürlüğü) issued an expert report stating that a fingerprint belonging to Cüneyt Cesur’s left index finger had been found on the gun, next to the safety pin.

On 28 April 2009 Diyarbakır Criminal Police Laboratory also issued its expert report. That report indicated that analysis of the samples taken from the deceased’s hands and the hands of Cahide Cesur and two other witnesses, Ö.Y. and Ö.E., using the so-called “atomic absorption spectrometry” technique, had revealed that only the deceased had gunpowder residue (“atış artığı”) on his hands, on the outside of his right hand and inside of his left hand.

On 4 June 2009 Diyarbakır Criminal Police Laboratory prepared a second report, indicating that the bullets found at the crime scene had been fired by the gun which belonged to Cüneyt Cesur.

On 19 November 2009 Akçakale prosecutor issued a decision of non-prosecution. The prosecutor, having regard to the statements of the witnesses, the crime scene report, the post-mortem reports and the Diyarbakır Criminal Police Laboratory’s reports, held that Cüneyt Cesur had committed suicide by using his own gun.

On 31 January 2011 the applicants lodged a criminal complaint with the Akçakale prosecutor, claiming that the death of their son was suspicious and that the investigation which had already been concluded could not be considered to be an effective investigation. The applicants requested that another autopsy be conducted, claiming that the existing autopsy report was not sufficient. According to the applicants, the scars which they had noted on the head of their son at the time of his burial, did not match the findings recorded in the autopsy report. The applicant Adem Cesur, who is a retired police officer, claimed that his son had been shot on the left side of his head. The applicants further alleged that the place where the gun had been found raised suspicions, and complained of the fact that the mobile phones that their son had used were not examined. Lastly, the applicants also alleged that, when they went to Akçakale eleven months after the incident, they had received more information from some of the witnesses, raising even more suspicions on the circumstances of their son’s death

On 10 March 2011 the Akçakale prosecutor issued another decision of non-prosecution, on the grounds that the post-mortem report of 15 April 2009, the statements of the witnesses and the other evidence gathered by the investigators did not leave any room for doubt that the applicants’ son had committed suicide. The public prosecutor also stated that a decision not to prosecute had already been taken in relation to the same incident and unless new evidence was discovered it was not possible to initiate a new criminal investigation under Article 172 § 2 of the Turkish Code of Criminal Procedure.

The applicants filed an objection against the decision of non-prosecution, claiming that their son might have been shot by somebody else. The Siverek Assize Court examined the merits of both the prosecutor’s decision and the applicants’ objection in its decision of on 25 June 2011 and dismissed the objection. According to the court, the criminal investigation was conducted meticulously and that there was no reason to question any additional witnesses proposed by the applicants.


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

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

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. In application no. 58058/13, the applicant also raised other complaints under the provisions of the Convention.


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1968 and lives in Senica.

On 3 October 2006 the applicant and three others were charged with extorting money from P. P.

On 6 October 2006 the Senica District Court (okresný súd) remanded the applicant and two of his alleged accomplices in custody from 3 October 2006 onwards. The court held that there was a reasonable suspicion that the applicant had committed the offence with which he was charged, that the offence had been committed in an organised way, and that therefore there was a risk that he could put pressure on witnesses, contact other perpetrators and tamper with evidence. The court relied on the testimony of P.P., who allegedly had been warned by one of the applicant’s accomplices about instructions from the applicant not to cooperate with the police. On 24 October 2006 the Trnava Regional Court (krajský súd) dismissed an interlocutory appeal (sťažnosť) by the applicant.

On 6 December 2006 a police investigator charged the applicant and fifteen other people with establishing, masterminding and supporting a criminal group. The applicant was also charged with aggravated coercion, extortion, and causing bodily harm.

On 22 December 2006 the Pezinok Special Court (špeciálny súd, hereafter “the Special Court”), where the case had been transferred in the meantime owing to the organised nature of the crimes, dismissed an application by the applicant for release. It relied on the particularly serious and organised nature of the offences he was charged with, and held that there was a real danger that he might influence witnesses and contact other perpetrators in order to tamper with evidence. On 17 January 2007 the Supreme Court (Najvyšší súd) dismissed an interlocutory appeal by the applicant.

On 16 March 2007 the Special Court extended the applicant’s detention until 3 October 2007. In addition to the reasons mentioned above, it relied on a reasonable suspicion that the applicant was the leader of a criminal group which had been operating for several years, and that not all of the members of that criminal group had been identified. The court pointed out that the criminal investigation was particularly complex. On 28 March 2007 the Supreme Court dismissed an interlocutory appeal by the applicant.

On 17 April 2007 the police investigator charged the applicant with another count of extortion.

On 11 June 2007 the Special Court dismissed another application by the applicant for release. It relied on the testimony of several witnesses who were afraid to testify against him. The court took into account the complexity of the criminal investigation, finding that there had been no undue delays. On 22 June 2007 the Supreme Court dismissed an interlocutory appeal by the applicant.

On 14 September 2007 the applicant was charged with two other counts of extortion.

On 18 September 2007 the Special Court extended the applicant’s detention until 3 April 2008, and extended the grounds for his detention by including the risk of his reoffending. It held that it was reasonable to suspect that, if released, the applicant would continue his criminal activities, taking into account: the motives for such activities and their duration and extent; the methods of intimidation and violence used by the criminal group; the hierarchical and organised nature of the group; and the fact that not all of the members of the group had been identified. On 26 September 2007 the Supreme Court dismissed an interlocutory appeal by the applicant.

On 17 March 2008 the applicant’s detention was extended until 7 July 2008. The Special Court added that his detention assisted the investigation, since the victims were willing to testify, but still not all of the members of the criminal group had been identified. On 26 March 2008 the Supreme Court dismissed an interlocutory appeal by the applicant.

The applicant was indicted before the Special Court on 13 June 2008. The bill of indictment concerned sixteen criminal acts, eighteen defendants and fourteen victims. The applicant was charged with establishing, masterminding and supporting a criminal group, aggravated coercion, causing bodily harm, and ten acts of extortion. All the crimes were qualified as particularly serious crimes. The sums extorted ranged from 10,000 to 33,000 euros (EUR).

On 25 June 2008 the Special Court examined the grounds for the applicant’s detention and ruled that he should remain in detention. It pointed out that, according to the indictment, he was allegedly the leader of a criminal group, a group which had been conducting criminal activities for six years against people who were victims and witnesses in the trial, by means of threats and the use of physical and psychological violence. On 4 July 2008 the Supreme Court dismissed an interlocutory appeal by the applicant.

On 6 October 2008, when conducting a preliminary examination of the bill of indictment, the Special Court again reviewed the grounds for the applicant’s detention and ruled that he should remain in detention. On 15 October 2008 the Supreme Court dismissed an interlocutory appeal by the applicant.

On 16 July 2009 the Special Court dismissed another application by the applicant for release. It held that several witnesses were afraid to testify against him in his presence and had thus been heard in his absence. In particular, one witness had been contacted and threatened by unknown persons in an attempt to get him to change his testimony. The court also took into account that not all the witnesses had been heard by the trial court. On 19 August 2009 the Supreme Court dismissed an interlocutory appeal by the applicant.

On 27 May 2010 the Special Court extended the applicant’s detention until 13 December 2010. The court limited the grounds for his detention to the risk of his reoffending, because the trial court had already heard all witnesses. It stated that there was substantial evidence suggesting that the applicant was the leader of a criminal group which had operated systematically for several years, and therefore it was reasonable to assume that, if at liberty, he might continue with the criminal activities. The court further held that it was essential to protect victims and witnesses who had expressed a fear of the applicant when testifying at the trial.

On 10 June 2010 the Supreme Court dismissed an interlocutory appeal by the applicant.

On 23 June 2010 the applicant was convicted by the Special Court of establishing, masterminding and supporting a criminal group, four acts of extortion, three acts of aggravated coercion and fraud and was sentenced to twenty-five years’ imprisonment. He remained in detention pending the outcome of an appeal.

On 13 September 2010 a request for release lodged by the applicant was dismissed by the Special Court. The Supreme Court dismissed an interlocutory appeal by the applicant on 6 October 2010.

On 22 November 2010 the Supreme Court extended the applicant’s detention until 3 April 2011.

On 11 February 2011 the Supreme Court dismissed the applicant’s appeal against his conviction, which thereby became final. The applicant started to serve a prison sentence, and the time spent in detention was taken into account when calculating his prison term.

On 10 August 2010 the applicant filed a constitutional complaint (ústavná sťažnosť) against the Supreme Court’s decision of 10 June 2010 to dismiss his interlocutory appeal (see paragraph 21 above). Among other things, he complained that his detention was no longer justified, that it had lasted an excessively long time, and that the Supreme Court had not answered all the arguments raised in his interlocutory appeal (“the first constitutional complaint”). He complained under Article 5 §§ 3 and 4 and Article 6 § 1 of the Convention, and under their constitutional equivalents.

On 17 December 2010 he filed another constitutional complaint, alleging a lack of speediness in relation to the judicial review of his detention by the decisions of the Special Court of 13 September 2010 and the Supreme Court of 6 October 2010 (“the second constitutional complaint” – see paragraph 23 above).

On 27 October 2010 the Constitutional Court (Ústavný súd) accepted a part of the applicant’s first constitutional complaint for further examination, including the complaint regarding the length of his detention. It held that the formal requirements under sections 20 and 50 of the Constitutional Court Act had been satisfied. At the same time, it dismissed the rest of the complaint as manifestly ill-founded.

On 18 January 2011 the Constitutional Court accepted the second constitutional complaint for further examination, and joined the proceedings relating to the first and the second constitutional complaint.

On 8 December 2011 the Constitutional Court found a violation of the applicant’s rights under Article 5 § 4 of the Convention. It held that the Supreme Court, in its decision of 10 June 2010, had failed to respond to all of the applicant’s arguments. Although the Supreme Court had examined in detail the applicant’s arguments regarding the grounds for his detention, it had failed to respond to his other arguments, such as one about the impartiality and independence of the tribunal reviewing his detention, and another about alleged shortcomings in his representation during the judicial review, and thus the court had breached Article 5 § 4 of the Convention.

The Constitutional Court further held that the judicial review of the applicant’s detention between 13 September and 6 October 2010 had not been sufficiently speedy, and found another violation of Article 5 § 4 of the Convention on this account.

It quashed the Supreme Court’s decision of 10 June 2010 and awarded the applicant EUR 4,500 as just satisfaction. It did not order his release, since the applicant had been convicted in the meantime and had started to serve a prison term.

The Constitutional Court considered it unnecessary to examine the rest of the applicant’s complaints, including the one under Article 5 § 3 of the Convention regarding the length of his detention.

Between the applicant’s arrest and the completion of the pre-trial investigation, the authorities conducted interviews with eighteen defendants, interviewed fifteen victims and twentythree witnesses, commissioned five expert opinions, analysed telecommunication recordings, conducted home searches and identity parades, and gathered a large amount of documentary evidence.

Between the lodging of the indictment with the trial court and the applicant’s conviction by the court of first instance, the trial court held hearings over the course of fifty-one days. The hearings were scheduled on a monthly or near monthly basis.

On 18 September 2008 the presiding judge of the Special Court appointed a substitute defence lawyer for the applicant to prevent the obstruction of court hearings.

On 15 December 2008 the presiding judge of the Special Court fined two of the applicant’s defence lawyers: one for failing to appear at three court hearings, and the other for obstructing justice.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The relevant details of the application are set out in the appended table.

Mr L. Dayanov, Ms E. Dayanova, Mr R. Abkadyrov and Mr T. Ulyamayev complained about the excessive length of their pre-trial detention. Mr R. Dayanov complained about his unlawful detention on 7 May 2008.

On 4 December 2015 Ms E. Dayanova revoked her application.


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

The applicants were born in 1970, 1963 and 1989 and live in Paks and Budapest respectively.

At the material time, Mr Vajnai was Vice-President and Ms Noé and Mr Bakó were activists of the Workers’ Party (Munkáspárt), a registered left-wing political party. The party had no known intention of participating in Hungarian political life in defiance of the rule of law.

On 21 December 2008 the applicants organised an event in front of a shopping mall in Budapest, entitled “Anti-Capitalist Santa Claus”, with the intention to demonstrate against consumerism, draw attention to poverty, point out the shortcomings of market economy, and demand free internet access for all.

To express their affiliation with Communism, four persons, including the applicants, displayed a sheet and a flag with a five-pointed red star and distributed leaflets with their political message, depicting red stars.

In application of section 269/B(1) of the Criminal Code, a police patrol which was present called on the applicants to terminate the demonstration, checked their identity and committed them to Budapest VI District Police Department for interrogation.

On 23 December 2008 the applicants lodged a complaint with the Independent Police Complaints Board against the police measures. They relied on the judgment of the European Court of Human Rights adopted in the case of Vajnai v. Hungary (no. 33629/06, ECHR 2008). They referred to the Court’s finding that the prosecution for having worn a red star had amounted to a violation of Mr Vajnai’s freedom of expression enshrined in Article 10 of the Convention.

The applicants’ complaints were dismissed by the Complaints Board on 4 March 2009.

The applicants’ further complaints against the measures were dismissed by the District Police Department on 22 May 2009. This decision was upheld by the Budapest Chief Police Commander, acting as a second-instance authority, on 17 November 2009.

On 29 June 2010 the Budapest Regional Court dismissed the applicants’ requests for judicial review. The court held that the display of the red star contravened section 269/B of the Criminal Code, despite the Vajnai judgment, whose application in the circumstances had been no task of the police officers present on the premises. Consequently, the applicants’ identity check and committal to the Police Department was justified under sections 29 (1) and 33 (1) of Act no. XXXIV of 1994 on the Police.

In review proceedings, the Supreme Court upheld the Regional Court’s decision on 22 June 2011 (in the case of Mr Bakó), 27 June 2011 (in the case of Ms Noé), and 5 September 2011 (in the case of Mr Vajnai), endorsing in essence the first-instance decisions’ reasoning.

The applicants, jointly (they had a lawyer in common), incurred altogether 2,760 euros in legal costs.