Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant, Mr Khouri Zahi, is a Croatian and Syrian national, who was born in 1964 and lives in Zagreb. He was represented before the Court by Ms K. Ferdelji, a lawyer practising in Zagreb.

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

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

In 1961 a flat, measuring a total of 57.28 square metres and located in Zagreb city centre (hereinafter: “the flat”), was nationalised from its previous owners D.B. and S.N.

M.M., who was subsequently granted a specially protected tenancy of the flat, lived there with her heir G.B. The latter, however, left to study in the United States but stayed in the flat during her visits to Croatia.

In an unspecified period in early 1990, M.M. was treated in the Sestre Milosrdnice Clinical Hospital Centre (Klinički bolnički centar Sestre milosrdnice) where the applicant worked as a trainee physician and his wife, N.Z., worked as a nurse. In these circumstances they came to meet M.M.

On an unspecified date in 1990 M.M. died.

After the breakout of the armed conflict in Croatia in 1991, N.Z.’s family (her mother A.P., her brother Jo.P. and sister I.P.) came to live in Zagreb as displaced persons coming from an occupied territory of Croatia. It appears that upon their arrival in Zagreb they were provided with accommodation by the local refugee agencies. When the conflict ended, A.P. and her children submitted a request for reconstruction of their family home in the former occupied territory which had been damaged in the conflict. The request was granted and the house was renovated in 2001, after which they lost their right to accommodation as provided for in section 1 of the Temporary Accommodation Act (Zakon o privremenom korištenju stanova) (see paragraph 42 below).

On 6 November 1991 the applicant, who was living at the time with N.Z. in a city near Zagreb that was not in a part of the country affected by the armed conflict, entered the flat by breaking a window and the front door. The neighbours immediately informed the police, who attended at the scene on the same day where they found the applicant, N.Z. and her mother A.P., as well as the tenant of the flat G.B. (see paragraph 5 above) and another person accompanying her. The applicant argued that the late M.M. had promised to leave the flat to him and the police left without taking any further action at the scene.

The next day, the police informed Zagreb Municipal Council (Grad Zagreb) that the applicant and his family had forcefully entered the flat. A council official who came to the scene found that the applicant and his family had entered the flat without having any legal right to be there and therefore ordered him to vacate the flat. The applicant ignored these orders, requesting a written decision on the matter. The eviction was disrupted after the civil defence siren signalled an attack on Zagreb.

On 26 November 1991 Zagreb Municipal Council ordered the applicant and his family (his wife N.Z., and her relatives A.P., I.P. and Jo.P.) to vacate the flat within three days. This decision was made enforceable on 3 December 1991, which was later confirmed on appeal on 7 February 1992.

An attempt to evict the applicant from the flat was made on 6 December 1991. Zagreb Municipal Council offered the applicant the opportunity to move to another flat where he could live with his family free of charge but he refused that accommodation, stating that he would only move out of the flat if the council provided him with accommodation in one of the most expensive hotels in Zagreb.

A further attempt to evict the applicant from the flat was made on 10 December 1991 but again to no avail, because the applicant refused to move and his wife was now pregnant.

On an unspecified date the police lodged a criminal complaint against the applicant and his wife with the Zagreb Municipal State Attorney’s Office. The Zagreb Municipal State Attorney’s Office rejected the criminal complaint on 26 March 1992, finding that while it had been undoubtedly established that the applicant had broken into the flat unlawfully, given his personal circumstances and particularly the fact that he had a pregnant wife and a small child, a criminal prosecution was not necessary since the eviction proceedings would in any event settle the issue.

Parallel to the administrative eviction proceedings, on 3 December 1991 G.B. lodged a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking the applicant’s eviction from the flat. The claim was granted on 3 November 1992 and this decision became final on 21 June 1993.

On 23 September 1993 the Zagreb Municipal Court issued a writ of execution ordering the applicant and his family to vacate the flat.

This decision of the Zagreb Municipal Court was never enforced because for a while the applicant could not be reached, and on 11 April 1994 the eviction was postponed after it was determined that no alternative accommodation had been found for the applicant’s two small children. In this regard an attempt was made on 12 July 1994 to find accommodation for the applicant and his family, but the only possibility which existed at the time was to accommodate them outside Zagreb. A further attempt was made by G.B. to settle the dispute, but the applicant also refused her offer. Eventually, on 11 March 2005 the enforcement proceedings were discontinued after G.B. withdrew her enforcement request.

On 9 December 1991 the applicant, his wife N.Z. and her relatives lodged a request with the Zagreb Municipal Council asking that they be granted temporary accommodation in the flat under the Temporary Accommodation Act, which was enacted on 4 December 1991 and came into force on 9 December 1991 with a view to solving the problem of accommodation of refugees – internally displaced persons by providing them with accommodation in publicly-owned lodgings (see paragraph 42 below).

On 1 April 1992 Zagreb Municipal Council’s housing department granted the applicant’s wife, N.Z., and her family (mother A.P., brother Jo.P. and sisters I.P. Ja.P.) temporary accommodation in the flat after having found that they could be considered refugees – internally displaced persons within the meaning of the Temporary Accommodation Act. The applicant was not granted temporary accommodation.

The decision stated that the accommodation was granted for six months and that upon the expiry of that period the occupants were obliged to vacate the flat. It also stated that by being provided with temporary accommodation the occupants did not obtain, nor could they obtain, a specially protected tenancy of the flat.

In the period between September 1992 and May 1996 the applicant requested several times that he and his family be given the opportunity to purchase the flat, relying on his personal situation and the status of his family.

In a letter of 6 October 1992 Zagreb Municipal Council indicated that temporary accommodation in the flat had been granted to the applicant’s family even though they had omitted to reveal in their application that they had unlawfully entered the flat. Therefore, they had no legal right to stay in the flat. In two letters of 8 December 1995 and 6 May 1996 Zagreb Municipal Council stressed that if the applicant’s application for housing was given priority it would be acting contrary to the domestic law establishing priority lists for housing allocation. It also emphasised that the only reason why the eviction had never been carried out was the fact that the applicant’s family were not able to return to their home.

On 29 March 1997 the applicant applied to Zagreb Municipal Council for the right to purchase the flat on favourable terms. He relied on the decision to grant temporary accommodation and his status as a disabled war veteran, since he had in the meantime served the Croatian army and obtained the status of disabled war veteran.

On 3 March 1998 Zagreb Municipal Council granted the applicant’s request and sold him the flat. On 4 March 1998 a copy of the purchase contract was submitted to the State Attorney’s Office, which gave its approval. The applicant paid the price of 21,432 Crotian kunas (HRK) and registered his ownership with the land registry.

In May 1999 Zagreb Municipal Council discovered that the applicant was in fact not on the list granting disabled war veterans, who had been allocated flats for temporary accommodation, the right to purchase flats owned by the Municipal Council on favourable terms, and that the applicant had therefore had no legal right to be granted the right to purchase the flat on such terms.

On 14 May 1999 Zagreb Municipal Council invited the applicant to settle the existing situation amicably by agreeing to the voluntary annulment of the contract and repayment of the purchase price. After the applicant ignored that offer, the Municipal Council referred the case to the Zagreb Municipal State Attorney’s Office.

On 29 September 1999 the Zagreb Municipal State Attorney’s Office, on behalf of Zagreb Municipal Council, lodged a civil action in the Zagreb Municipal Court seeking to have the purchase contract between the applicant and Zagreb Municipal Council declared null and void on the grounds that the applicant had had no legal right to buy the flat on favourable terms. It pointed out that the applicant himself had never been granted temporary accommodation in the flat and that he had not been on Zagreb Municipal Council’s list of disabled war veterans who had the right to purchase a flat on favourable terms.

The applicant defended the civil action and lodged a counterclaim seeking damages in the amount of HRK 824,356. His counterclaim was severed into a separate case, and those proceedings were discontinued on 27 May 2010 due to the applicant’s procedural inactivity.

During the proceedings concerning the annulment of the purchase contract the applicant contended that his wife had been granted temporary accommodation in the flat, which had given her the right to buy the flat under section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act. He also considered that the civil action had been lodged outside the relevant statutory time-limit of one year after the contract had been concluded, as provided under the Specially Protected Tenancies (Sale to the Occupier) Act (see paragraph 43 below).

On 18 February 2004 the Zagreb Municipal Court declared the purchase contract for the flat null and void. It explained that the applicant had not been granted temporary accommodation in the flat and that therefore he had never satisfied the requirements of applicable domestic law for the purchase of the flat on favourable terms. The relevant part of the judgment reads:

“Section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act provides that disabled Homeland War [veterans], as well as the spouses, parents and children, adopted children, father’s or mother’s spouses and adoptive parents of a deceased, incarcerated or missing Homeland War veteran have the right, on the terms provided in this Act, to purchase a flat in which they were temporarily accommodated under the Temporary Accommodation Act and the Homeland War Veterans Act [Zakon o pravima hrvatskih branitelja iz domovinskog rata]...

Bearing in mind the above provision, this court notes that temporary accommodation in the flat in question was granted to N.[Z.] as a refugee, while the defendant is not one of the individuals who was provided with temporary accommodation under the Temporary Accommodation Act.

This court finds that the purchase contract was concluded contrary to section 1a of the Specially Protected Tenancies (Sale to the Occupier) Act, since the defendant had not been granted temporary accommodation under the Temporary Accommodation Act or the Homeland War Veterans Act and therefore, under section 103 of the Obligations Act, the claim should be accepted and the contract declared null and void.

Furthermore, the argument that the civil action was lodged outside of the relevant statutory time-limit is unfounded given that, under section 110 of the Civil Obligations Act, the right to claim nullity [of a contract] cannot be extinguished. ...”

The applicant lodged an appeal against the first-instance judgment before the Zagreb County Court (Županijski sud u Zagrebu) on 2 March 2004 in which he reiterated his previous arguments.

On 15 February 2005 the Zagreb County Court dismissed the applicant’s appeal as without merit and upheld the first-instance judgment.

On 30 June 2005 the applicant lodged a constitutional complaint before the Constitutional Court (Ustvani sud Republike Hrvatske), reiterating his arguments before the lower courts.

The Constitutional Court dismissed the applicant’s constitutional complaint on 1 October 2008, endorsing the reasoning of the lower courts. In particular, it noted:

“The reasoning of the impugned judgments is based on a correct interpretation of the relevant law and can be accepted from the perspective of constitutional rights. The Constitutional Court finds that the lower courts, based on the established facts, provided sufficient reasons in their judgments and that their reasoning does not disclose any arbitrariness in the application of the law.”

On 27 April 2006 the applicant’s wife lodged a civil action against Zagreb Municipal Council in the Zagreb Municipal Court, seeking the right to purchase the flat. This civil action was dismissed on 17 June 2008 on the grounds that the process of privatisation of the flat had been started in the meantime (see paragraph 38 below) and therefore that the flat was no longer able to be sold by the Municipal Council but rather belonged to a special privatisation fund. This judgment was appealed against, but it was upheld by the Zagreb County Court on 12 May 2009.

Meanwhile, on 16 July 2008, the Municipal Council repaid the applicant the purchase price of HRK 21,432 together with statutory default interest in the amount of HRK 47,729.85.

On 2 May 2005 the applicant opened a private medical practice in gynecology and obstetrics in the flat, while in June 2004 his family moved to another flat which he had bought in Zagreb.

On 20 July 2006, as part of the privatisation process, the ownership of one half of the flat was returned to D.N., a successor of the original owners.

On 12 November 2008 D.N. sold his ownership in the flat to the applicant.

Throughout the period to date, the applicant has been running his private medical practice in the flat.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum), 76/2010, 85/2010) read as follows:

“The home is inviolable ...”

“Everyone has a right to respect for and legal protection of his private and family life, dignity, reputation and honour.”

“The right of ownership shall be guaranteed ...“

The relevant provisions of the Temporary Accommodation Act (Zakon o privremenom korištenju stanova, Official Gazette no. 66/1991) read:

“This Act provides for the terms and the manner of [the provision of] temporary accommodation in publicly-owned flats ... which are empty or abandoned, with a view to allocating refugees – internally displaced persons, and defenders of the Republic of Croatia and their families.”

“Individuals who have been granted temporary accommodation and their family members are not [thereby] granted a specially protected tenancy nor can they obtain a specially protected tenancy of the flat in question.”

The Specially Protected Tenancies (Sale to the Occupier) Act (Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette nos. 43/1992, 69/1992, 25/1993, 48/1993, 2/1994, 29/1994, 44/1994, 58/1995, 11/1996, 68/1998 and 96/1999) regulates the conditions of sale of flats let under specially protected tenancies. The relevant part of this Act reads:

“Disabled Homeland War [veterans], as well as the spouses, parents and children, adopted children, father’s or mother’s spouses and adoptive parents of deceased, incarcerated or missing Homeland War veterans have the right, on the terms provided in this Act, to purchase a flat in which they have been temporarily accommodated under the Temporary Accommodation Act and the Homeland War Veterans Act, if no other person has a specially protected tenancy of the flat in question.”

“The seller shall submit the sale contract for approval to the competent State Attorney within eight days.

If the State Attorney finds that the statutory conditions for entering into such a contract have not been met or that the price stipulated in it is lower than that established by this Act, he or she shall disapprove of the sale.

If the State Attorney finds after a sale contract has been concluded that the statutory conditions for entering such contract had not been met, he or she shall seek the annulment of that contract within one year after the contract has been concluded.”

The relevant provisions of the Obligations Act (Zakon o obveznim odnosima, Official Gazette, nos. 53/91, 73/91, 3/94, 7/96 and 112/99), as then in force, provided:

“(1) Each contractual obligation shall have a permissible [legal] basis [causa].

(2) A basis is not permissible if it contravenes the Constitution, fundamental principles of law, or morals.

“Where there is no [legal] basis [for a contract] or where its [basis] is not permissible, the contract is null and void.”

“A contract which is contrary to the Constitution, fundamental principles of law, or morals is null and void, unless there is some other [applicable] sanction or the law provides differently in a particular case.”

“The right to plead nullity shall be inextinguishable.”

The relevant provisions of the Enforcement Act (Ovršni zakon, Official Gazette nos. 57/1996, 29/1999, 42/2000, 173/2003, 194/2003, 151/2004, 88/2005, 121/2005 and 67/2008) provide:

“A court shall order enforcement only on the basis of a final and enforceable instrument, unless otherwise provided under this Act.”

“A decision by which a court has ordered the fulfilment of a claim through payment or performance shall be enforceable when it is final and if the period for voluntary compliance with that decision has elapsed. ... “

“An enforcement instrument may be [used as a basis for] execution only if the creditor and debtor, and the nature, type, scope and time of the obligation are set out [in the relevant decision]. ... “


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Greece)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1983. His address is unknown.

The applicant and his wife came to Austria in August 2008 and applied for asylum on 19 August 2008. They had travelled from Afghanistan via Iran to Greece. When the applicant and his wife first arrived in Greece they lived in a camp. They subsequently lived with people traffickers for approximately three months, and then in public parks. The applicant claimed that he had queued to apply for asylum in Greece, but had been beaten by the police and driven away. He and his wife had no access to financial support and had had to live in the parks after their money had run out. After four failed attempts, the traffickers managed to take the applicant and his wife to Austria.

In his request for asylum in Austria the applicant claimed in substance to have had problems with the Taliban in Afghanistan. He submitted inter alia that eight years earlier the Taliban had kidnapped two of his brothers.

On 14 October 2008, the Federal Asylum Office East (Bundesasylamt Erstaufnahmestelle Ost) rejected the applicant’s asylum application on the grounds that Greece was responsible for examining it, pursuant to section 5 of the 2005 Asylum Act (Asylgesetz 2005) in connection with Article 10 § 1 of Council Regulation (EC) No. 343/2003 (“Dublin II Regulation”, hereinafter “the Dublin Regulation”), and ordered his expulsion to Greece. It found that the applicant was not facing any real risk of illtreatment within the meaning of Article 3 of the Convention upon his return to Greece. The authority referred to a number of country reports, in particular those of the UNHCR of April 2008 and of the Swedish Migration Board. It acknowledged the ongoing criticism with regard to proceedings and treatment of asylum-seekers in Greece, but did not consider the applicant’s story of his experiences in Greece credible. The Asylum Office noted the UNHCR’s concern about the difficulties with which many asylum-seekers in Greece were confronted. This applied particularly to the facilities for asylum-seekers, access to asylum proceedings and the quality of the proceedings. On the other hand, the Asylum Office noted that Norway was the only country to have declared that it would no longer transfer asylum-seekers to Greece under the Dublin Regulation. The Asylum Office also mentioned a recent decision by the Aliens Litigation Council, according to which there was no reason to suspend further transfers to Greece. The Asylum Office quoted the UNHCR position paper, which welcomed Greece’s reform attempts aimed at strengthening its asylum system. It further noted that a working group had been established, including members of the Greek authorities and the UNHCR, to tackle the “most burning” problems with the asylum system. Furthermore, the Asylum Office held that the relevant European directives were binding for Greece. Lastly, the Asylum Office referred to a fact-finding mission conducted by the Swedish Migration Board in April 2008 reacting to the harsh criticism voiced by various NGOs. The final report of that mission had concluded that there were no humanitarian or other reasons to refrain from returning asylum-seekers to Greece under the Dublin Regulation. In view of the fact that the asylum authorities of the other EU countries had not stopped transferring asylum-seekers back to Greece, the Asylum Office concluded that it was not necessary to make use of the sovereignty clause in the present case. It further noted that people who had never before lodged an asylum application in Greece and had been transferred to Greece under the Dublin Regulation had full access to asylum proceedings.

The applicant lodged a complaint against that decision, referring again to the deficiencies of the Greek asylum system, the danger of refoulement to Afghanistan and the lack of subsistence for asylum-seekers.

On 11 November 2008, the Asylum Court (Asylgerichtshof) dismissed the applicant’s complaint as unfounded. It found that an accumulation of proceedings under the sovereignty clause would endanger the “effet utile” principle of Community law. Furthermore, the Dublin Regulation was based on the assumption that all member States were safe countries and that a deportation to one of them could not constitute a human-rights violation. Therefore, arguments against such a deportation would need to be especially substantiated. Referring to the report of a mission of the Swedish Migration Board to Greece in April 2008 that showed that all twenty-six monitored cases had had access to Greek asylum proceedings, it found that there were no deficiencies in the conditions of access to asylum proceedings in Greece. With regard to the present case, the Greek authorities had already stated that the applicant would have access to asylum proceedings once he returned to Greece. Again referring to the mission report of the Swedish Migration Board, it found that the support of asylum-seekers in Greece was acceptable. Asylum-seekers were allowed to work in Greece. Lastly, there would be no risk of refoulement. In conclusion, the applicant would not be at real risk of treatment contrary to Article 3 on being returned to Greece.

On 30 January 2009, the Constitutional Court refused to deal with the applicant’s complaint for lack of prospects of success.

That decision was served on the applicant’s counsel on 11 February 2009.

The applicant’s wife was expelled to Greece on 25 November 2008.

The applicant was expelled to Greece on 8 April 2009.

At the Court’s request, on 4 August 2011 the applicant’s representative informed the Court of the exact date of the applicant’s transfer to Greece, namely 8 April 2009. He stated that despite being his counsel, he had not received any further information about his client since then. In later submissions he stated that he could establish contact with the applicant, if necessary, via trustworthy persons the applicant still knew in Vienna. He did not, however, provide the applicant’s current address to the Court.


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

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

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


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

Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev

The applicant is a Russian national who was born in 1930 and lives in Arkhangelsk.

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

On 19 February 2001 the applicant brought a court action against the Social Security Fund of the Russian Federation (Фонд социального страхования Российской Федерации) for compensation of health damage.

On 4 April 2001 her claim was dismissed by the Oktyabrskiy District Court of Arkhangelsk. The decision was quashed on appeal and the case was remitted for a fresh examination to the same court.

On 3 June 2002 the Oktyabrskiy District Court of Arkhangelsk granted the applicant’s claim and ordered the Social Security Fund (i) to calculate the amount of the lump-sum compensation for the period from 1 January 2000 to May 2002 and of the monthly compensation which should be paid from 1 June 2002, (ii) to pay these amounts to the applicant, and (iii) to index-link the monthly payments in future in accordance with national law.

The judgment was not appealed against and became final on 13 June 2002.

The applicant states that no lump-sum compensation was paid to her.

On 26 August 2002 the Social Security Fund calculated the monthly payments due to the applicant as of 15 November 2001.

On 18 December 2002 the President of the Arkhangelsk Regional Court lodged with the Presidium of that court an application for supervisory review of the judgment of 3 June 2002. He also suspended the execution of the judgment pending the supervisory review proceedings.

On the same date the Arkhangelsk Regional Court informed the applicant that the Presidium would examine her case on 25 December 2002.

On 25 December 2002 the Presidium quashed the judgment of 3 June 2002 stating that the first instance court had incorrectly applied domestic law: the lump-sum compensation should have been calculated from 15 November 2001 and not 1 January 2000. The case was remitted for a fresh examination to the first instance court.

On 25 June 2003 the Oktyabrskiy District Court dismissed the applicant’s claim.

On 28 July 2003 the Arkhangelsk Regional Court upheld the judgment.


Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney

On 20 March and 3 October 1996 the Tirana Commission on Restitution and Compensation of Properties (“the Commission”) recognised the applicants’ inherited title to a plot of land measuring 1,214 sq. m. Since the plot of land was occupied by two buildings which housed foreign embassies, the applicants would be compensated in one of the ways provided for by law.

The Commission decision remains unenforced.

On 28 March 1995 the Mat Commission recognised the applicant’s title to a plot of land measuring 7,984 sq. m, of which 4,797 sq. m were restored. Since 3,187 sq. m were occupied, the applicant would be compensated in State bonds.

On 27 December 1996 the then Court of Cassation dismissed an appeal by the applicant against the lower courts’ refusal to rule in favour of his property claim in respect of a different plot of land measuring 11,112 sq. m.

On 29 August 1995 the Tirana Commission recognised the applicant’s inherited title to a plot of land measuring 1,154.62 sq. m. Since a stadium had been constructed on the plot of land, the applicant would be compensated in one of the ways provided for by law.

On 28 December 1994 the Tirana Commission recognised the applicant’s inherited title to a plot of land measuring 8,900 sq. m, of which 7,727 sq. m were to be restored. Since 1,173 sq. m were occupied, the applicant would be compensated in kind in accordance with the law.

However, the plot of land measuring 7,727 sq. m was occupied by buildings belonging to the Urban Transportation Company (“UTC”) pursuant to a sale contract of 1994 concluded between the UTC and the National Privatisation Agency. The Commission indicated that, pursuant to the law, the UTC was obliged to pay rent to the applicant on the basis of a contract to be concluded between the two parties.

On 25 November 1996 the UTC sold the buildings and the plot of land to a third party, which was subsequently placed under compulsory administration. Following judicial proceedings instituted by the administrators against the Commission decision that had restored the applicant the plot of 7,727 sq. m, the domestic courts annulled that part of the Commission decision and decided that the applicant would be compensated in one of the forms provided for by law. The applicant’s appeals were rejected by the Constitutional Court on 15 December 2005 and 18 July 2006.

Meanwhile, between 2003 and 2004 the applicant sold three plots of land, all measuring 2,558 sq. m, to third parties.

On 12 November 2007 the applicant informed the Registry that the authorities had allowed construction to begin on four buildings on his plot of land.

The Commission decision, as amended by the later court decisions, remains unenforced as regards a plot of land measuring 6,342 sq. m.

On 12 December 1994 the Vlora Commission recognised the applicants’ inherited title to a plot of land measuring 3,600 sq. m, of which two warehouses and two plots of land, both measuring 820 sq. m, were restored. Since 2,240 sq. m were occupied by buildings, the applicants would be compensated in one of the ways provided for by law.

On 12 November 1993 the Korça Commission recognised the applicants’ inherited title to a plot of land measuring 2,250 sq. m of which 278 sq. m were restored. Since the remaining 1,972 sq. m were occupied, the applicant would be compensated in State bonds.

On 22 August 1996 the Tirana Commission recognised the applicants’ inherited title to a plot of land measuring 10,056.7 sq. m. Since the plot of land was occupied by a national park, the applicants would be compensated in one of the ways provided for by law.

On 9 March 1996 the Durrës Commission recognised the applicants’ and inherited title to a plot of land measuring 12,000 sq. m. It decided that the applicants would be compensated in State bonds in respect of 4,950 sq. m and in-kind in respect of 5,000 sq. m. No other decision was taken as regards the remaining 2,050 sq. m. In fact, 600 sq. m were restored to the applicants.

The Commission decision as regards compensation in respect of 9,350 sq. m remains unenforced.

On 30 August 1995 the Tirana Commission recognised the applicant’s and other relatives’ inherited title to a plot of land measuring 1,100 sq. m, of which 142 sq. m were restored. Since 958 sq. m were occupied, the applicant would be compensated in one of the ways provided for by law. It would appear that, despite the latter aspect of the decision about the 958 sq. m, a building permit was granted to a third party by the Municipality of Tirana on 7 March 1997 for the construction of a 9-storey building. The applicant’s requests of 19 February and 4 April 2008 to the Municipality for a copy of the relevant file remain unanswered.

The applicant has not yet received any compensation in respect of that plot of land.

On an unspecified date in 2008 the applicant lodged a compensation claim with the Agency.

On 3 March 2009 the Agency dismissed his claim owing to the lack of funds.

The Government submitted that in 2009 the applicant and his relatives applied for and received compensation in the amount of ALL 6,000,000 in respect of another plot of land from the Financial Compensation Fund.

On 3 October 1995 the Shkodër Commission restored the applicants’ inherited title to three plots of land measuring 4,910 sq. m, 1,880 sq. m and 1,640 sq. m, respectively, totalling 8,430 sq. m. It further decided that the applicants would be compensated in one of the ways provided for by law in respect of another plot of land measuring 2,833 sq. m. Finally, it recognised the applicants’ right to first refusal of a further plot of land measuring 14,537 sq. m.

The applicants’ title to the plots of land measuring 8,430 sq. m were recorded in the mortgage office. Using their right to first refusal, the applicants bought a number of parcels of land and buildings, totalling 2,194 sq. m, which were also recorded in the mortgage office. It would appear that the applicants had been unable to enjoy possession of their properties, because they had been occupied by third parties.

On an unspecified date in 1999 the third parties challenged the applicants’ property title as awarded by the Commission decision of 1995. In the meantime, on 17 February 1999, following the applicants’ request, the Shkodër District Court delivered an injunction against the third parties requiring them to stay the construction works on the applicants’ properties (masa e sigurimit për pezullimin e punimeve të ndryshme). On 18 February 1999 the bailiff drew up a report by which the third parties were informed of the injunction order against the continuation of the construction works (nga ana jonë ju komunikua që sot e tutje të mos bëjë ndërtime të ndryshme në këtë objekt ku në të kundërt do mbajë përgjegjësi ligjore). On 2 February 2001 the third parties’ action was finally dismissed by the Supreme Court.

To date, the applicants have not benefited from any amount of compensation in respect of the plot measuring 2,833 sq. m. Furthermore, their plots of land as well as buildings remain occupied by the third parties’ unlawful actions.


No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)

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

The applicant was born in 1970 and lives in Hafnarfjörður. At the material time, the applicant was working as a journalist for the newsroom of the Icelandic National Broadcasting Service (hereinafter “the RUV”).

The RUV is an independent public service broadcaster, comprising television, radio and online services. The RUV broadcasts news programmes on television every evening at 7 p.m. that last for about 40 minutes. During the news programmes, a series of news items is first introduced by a news anchor in a studio, and then each news item is presented by different news reporters, whether current events, live or prerecorded interviews or editorial content.

On 24 May, 28 May and 6 December 2010 the RUV broadcast news items, prepared and presented by the applicant, on its news programme at 7 p.m. The subject of all three news items was a loan transaction of 3,000,000,000 Icelandic Krónur (ISK; approximately EUR 19,736,842 at the exchange rate applicable in December 2010) between an Icelandic company, Y, and a shelf company in Panama, that had been written off in its entirety. The news items were introduced by a news anchor and then a film clip was played, showing pictures related to the subject of the news item while the applicant narrated.

On the evening news on 24 May 2010 the news anchor introduced the news items, stating that the authorities were investigating whether the ISK 3,000,000,000 had made its way back to Iceland and that there was a suspicion that B, the owner of company Y, had returned the money to his business partners. In the film clip, the applicant stated that the Icelandic authorities believed that they had found the money trail and they thought that the money had made its way back to Iceland, not necessarily into B’s pockets but into those of his business partners. The applicant then speculated on who the business partners might be and pictures were shown, inter alia, of A, a prominent businessman in Iceland. Lastly, the applicant stated that the question of where the money had ended up would be answered after the authorities’ investigation.

On the evening news on 28 May 2010, the news anchor introduced the news items by stating that the authorities were investigating whether B, A and C, an investor in Iceland, had jointly planned a business deal where ISK 3,000,000,000 seemed to vanish in Panama. Furthermore, the anchor stated that documents, from the year 2007 and onwards, supported this suspicion and that the documents indicated that the money had found its way back into the pockets of the same group. In the film clip the applicant stated that the authorities believed that they had found the money trail, as had been previously reported, and that they were in possession of documents indicating that A, B and C had planned the Panama deal in advance, in order to send the money to Panama and then back into their own pockets again, via a circuitous route. Pictures of A, B and C were shown on the screen with the text “under investigation” written below each picture.

On the evening news on 6 December 2010 the news anchor introduced the news item. In the film clip, the applicant stated that in the spring of 2007 company Y had loaned ISK 3,000,000,000 to the company in Panama. The funds had been transferred to Panama on 24 April 2007 and six days later, on 30 April 2007, a loan agreement had been prepared. On the same day, the loan had been written off in its entirety from the accounts of company Y. Furthermore, the applicant stated that B had issued a declaration claiming that there was nothing suspicious about the loan. Lastly, the applicant stated: “The Icelandic authorities have also searched for the funds, as we have previously reported, and they believe that they have found the money trail, as they have documents indicating that [B], [A] and [C] organised the Panama deal in advance. That is, they sent the money to Panama, and later the money found its way back, through several detours, into the pockets of the threesome”. Pictures of A, B and C were shown above a world map, a pile of money was shown being divided up into three parts in Panama and each part was then visually transferred to the pictures of the men.

On the same day, a corresponding article was published on RUV’s website. After the news broadcast, A issued a press release. The online news article was updated to include the press release.

On 12 January 2011 A lodged defamation proceedings against the applicant before the Reykjaness District Court and requested that the words “[A]” and “threesome” in the above-mentioned statement of the news item broadcast on 6 December 2010 be declared null and void.

Before the domestic courts, the applicant maintained that he had based the news item on information from sources, both verbal and written, that he deemed highly trustworthy. Furthermore, the applicant maintained that when he had prepared the news item he had attempted to contact A by telephone, in vain.

During the proceedings before the District Court the applicant submitted a letter dated 5 September 2011 from the Special Prosecutor confirming that the loan transaction, which was the subject of the news items, had been reported to the police and was under investigation. The Special Prosecutor also stated that this had been confirmed in the media in July 2011. It does not transpire from the letter from the Special Prosecutor whether A was under investigation as a suspect or charged. The applicant did not, during the proceedings before the District Court submit any other documents or evidence to in support of the information concerning A presented in the news items.

By judgment of 3 November 2011 the District Court found for the applicant. In its reasoning it referred to the right to freedom of expression and the protection of private life as guaranteed by the Icelandic Constitution.

The judgment contained the following reasoning:

“...The banking collapse of 2008 caused great changes to the business environment and society in general. A wave of bankruptcies hit companies and individuals, the value of the krona plummeted and changes were made to the ruling government, to name a few. The media have covered these events since the crisis began and the individuals involved have also been the subject of news coverage, including [A]. In determining whether the content of the news item is a part of the social debate and therefore of public interest, it should be kept in mind that [A] himself, as well as the companies he has represented, has been in the media and public debate for many years. [A] has also been very prominent in business, both here and abroad, and in both a negative and positive light. [Company Z], led by [A], was a large shareholder in [F] ..., and held an active share in G...Bank. News about [A] has therefore more often than not been about his role in the banking collapse, and after the collapse of the Icelandic banks in the autumn of 2008 the media was full of news on the banking collapse and crisis, the reasons behind them and related matters. The media have been called upon to disseminate all material that could be of public interest, especially if the content might shed light on elements pertaining to parties who have played key roles in the Icelandic economy. In the light of the circumstances that developed after the banking collapse, [A] will have to withstand personal discussion of his actions and participation in business. Loan facilities and transfers of funds occurring in the leadup to the bank failure are important news stories that are relevant to the general public. Restricting that discussion through sanctions should only be done after great consideration.

[The applicant] has stated that the news item is based on sources, both verbal and written, that he finds trustworthy. [The applicant] cannot be asked to prove these statements, as the journalist’s right to protect his sources and their identity has been upheld in judicial rulings. [The applicant] has also sufficiently demonstrated that he tried to contact [A] before he delivered the news item and he has therefore not violated the National Broadcasting Service’s procedures in that respect.

The Court does not agree with [A] that he is accused of actions punishable by law in the news item. The news item must be assessed as a whole and not on the basis of individual statements in the piece. As previously noted, the Court must consider the circumstances under which the statements are made, that they are necessary for a social debate on the causes and repercussions of the bank failure and also that some discrepancies can occur when dealing with complicated loan facilities and business deals. When the statements on [A] are assessed in this light, they are not found to violate the provisions of Articles 234 or 235 of the Penal Code no. 19/1940. ...”

On 30 January 2012 A appealed against the District Court’s judgment to the Supreme Court.

By a judgment of 15 November 2012 the Supreme Court overturned the District Court judgment and ordered the applicant to pay ISK 300,000 (approximately 2,600 euros (EUR)) to A in compensation for non-pecuniary damage, plus interest and ISK 1,000,000 (approximately 8,800 EUR) for A’s legal costs before the domestic courts. The two words were declared null and void.

“... In assessing where the line should be drawn between freedom of expression, as protected by Article 73 of the Constitution, and the right to privacy, as protected by Article 71 of the Constitution, it is important to determine whether the content published can be considered a part of the social debate and therefore of public interest, see the Supreme Court judgments of 1 June 2006 in case no. 541/2005, 1 March 2007 in case no. 278/2006, 10 November 2011 in case no. 65/2011 and 24 November 2011 in case no. 100/2011. The media play an important role in disseminating information and opinions on social issues. The public has a right to information on such issues and there must be particularly strong reasons for determining that limitations on media freedom are warranted in a democratic society. The collapse that occurred in the Icelandic economy following the failure of the three Icelandic commercial banks in the autumn of 2008 has had a significant and broad effect on all activity in the country and the general public’s quality of life. Public debate and media coverage have been very focused on identifying the preceding events and reasons for the collapse, and reporting on the financial business of individuals has often been personal.

When the content of the news item debated in this case is assessed as a whole, and the disputed remarks are evaluated in context with other statements in the news report and in consideration of the visual presentation, the comments clearly implied that [A] had committed an act which was punishable in accordance with the Penal Code no. 19/1940.

[The applicant] has not presented any documents supporting the legitimacy of the statements, for which he has to bear the burden, as it was incumbent on him rather than [A] to secure such evidence. [The applicant] has also not demonstrated that he sought information from [A] on the content while preparing the news report. He therefore failed in his duty, as outlined in Article 2 of the National Broadcast Service’s Rules on News and Related Programming dated 1 May 2008, to seek “... information from both or all parties and attempt to show their points of view as equally as possible”. The Supreme Court therefore finds that [the applicant] could not have been acting in good faith as pertains to the accuracy of the remarks in the news piece. Therefore [A’s] demand for the quoted statements to be declared null and void is granted, pursuant to Article 241, cf. Article 235 of the Penal Code.”


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

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

The applicant complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.


SOBERANÍA DE LA RAZÓN AND OTHERS v. SPAIN

Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The first applicant, Soberanía de la Razón, is a Spanish political party registered with the Ministry of Internal Affairs in September 2011. The second and the third applicants, Ms. Encarnación Martínez Segado and Mr. José Luis Mazón Costa, are Spanish nationals who stood as two of the first applicant’s candidates for the 2011 elections to the Congress of Deputies. The applicants are represented before the Court by the third applicant, Mr. J. L. Mazón Costa, a lawyer in Murcia. A list of the applicants is set out in the appendix.

The procedure to present candidates in general elections was regulated by Organic Law no. 5/1985 of 19 June 1985 of the General Electoral Provisions Implementing Act (hereinafter, the Electoral Act). Section 169 (3) of the Electoral Act provided that political parties which were not represented either in the Congress of Deputies or in the Senate must receive the supporting signatures of at least 0.1% of those registered to vote in the constituency. Voters were only allowed to register support for one candidate. The aforementioned requirement had been introduced by the Electoral Act by Organic Law 2/2011 of 28 January 2011 that entered into force on 30 January 2011.

On 15 September 2011 the Central Electoral Commission issued Order 7/2011, section 5 of which provided that the period to collect the signatures started running from the date on which the elections were announced.

On 27 September 2011 the Royal Decree 1329/2011 of 26 September ordered elections to the Congress of Deputies and the Senate for 20 November 2011.

On 12 October 2011 the first applicant announced before the Murcia Electoral Commission its intention to stand for elections for the Congress of Deputies for the Murcia constituency. The first applicant submitted a list of ten candidates, among them the second and the third applicants. The first applicant did not submit the supporting signatures, for it considered that the new requirements under the abovementioned electoral provisions violated its fundamental rights.

On 21 October 2011 the Murcia Electoral Commission instructed the first applicant to submit the supporting signatures as provided by section 169 (3) of the Electoral Act. The first applicant did not comply with the instruction.

On 24 October 2011 the Murcia Electoral Commission rejected the first applicant’s list by reference to section 169 (3) of the Electoral Act. The three applicants brought judicial administrative proceedings (procedimiento contencioso administrativo) against that decision.

On 26 October 2011 the Murcia administrative judge (juez de lo contencioso-administrativo) no. 7 upheld the Electoral Commission’s decision on the ground that the applicants had failed to fulfil the requirements of section 169 (3) of the Electoral Act. He further found that the Order 7/2011 was according to law, in that it had been issued by a competent body and established a procedure that could be considered reasonable to serve the purposes of section 169 (3) of the Electoral Act.

On 27 October 2011 the applicants lodged an amparo appeal with the Constitutional Court. They complained that the restrictions under section 169 (3) of the Electoral Act and section 5 of the Order 7/2011 amounted to a violation of their rights to free elections and of the prohibition of discrimination. They also complained that they could have started collecting signatures only on the date when the elections were announced, giving them only twenty days to fulfil the obligation. They had not done so as they considered this period insufficient. They invoked section 14 (equality before the law), section 16 (freedom of ideology), section 18 (right to personal privacy), section 22 (1) (right of association) and section 23 (1) (2) (right to participate in public affairs and right of access to public office on equal terms) of the Spanish Constitution.

The Constitutional Court’s decision (auto) of 3 November 2011 declared the applicants’ appeal inadmissible for lack of a violation of a fundamental right. It relied on the reasoning of its previous judgment of 2 November 2011 in an analogous case. The Constitutional Court found that the obligation to collect a minimum number of supporting signatures constituted a legitimate limitation on the right to present candidates in elections guaranteed by section 23 (2) of the Spanish Constitution. It served the purpose of rationalisation and optimisation of the electoral process. The Constitutional Court pointed out that the proper functioning of the electoral process might be adversely affected by an excessive proliferation of candidatures without a minimum of support. In particular, the limitation was aimed at optimising the allocation of public resources to organise the electoral process. Lastly, it served the aim of avoiding the dispersion of votes and could help sufficiently representative currents of thought reach the threshold for parliamentary representation.

The Constitutional Court also underlined that the obligation to collect a specific number of supporting signatures was a common practice in the European countries and within the Spanish electoral system. Section 220 (3) (4) of the Electoral Act required parties, federations, coalitions and groups of voters wishing to present candidates in elections to the European Parliament to obtain either 15,000 supporting signatures of voters or 50 supporting signatures of elected representatives. Furthermore, section 169 (3) of the Electoral Act imposed analogous requirements on groups of voters wishing to present candidates in elections to the Congress of Deputies and the Senate, those groups of voters being obliged to receive the supporting signatures of at least 1% of those registered to vote in the constituency. As regards the latter, the Constitutional Court recalled that in the case Serqueda v. Spain, 9 May 1994, no. 23151/94 the Commission had considered that that restriction was not contrary to the Convention.

The Constitutional Court added that, in view of the minimum number of signatures requested in the aforementioned cases, the percentage of 0.1% under section 169 (3) of the Electoral Act must be considered proportionate.

As regards the applicants’ complaint of discriminatory treatment, the Constitutional Court noticed that the obligation was indeed imposed only on non-represented parties. However, such a difference of treatment had an objective and reasonable justification, since non-represented parties ought to demonstrate a minimum of support that could be presumed in the case of represented parties.

As regards the time-limit to collect the signatures, the Constitutional Court recalled the findings of its judgment of 2 November 2011. The Constitutional Court noticed that the time-limit could be insufficient under certain special circumstances, which were not present in the instant case. Consequently, in general terms, the time-limit was proportionate in the light of the legitimate aim pursued by section 169 (3) of the Electoral Act as well as of the number of signatures required.

The relevant provisions of the Spanish Constitution read as follows:

“Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”

“1. Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage.

They likewise have the right to access on equal terms to public office, in accordance with the requirements to be provided by law.”

The relevant Spanish electoral law provides as follows:

“1. The Electoral Commission is competent for all matters foreseen in Title I, Chapter VI, Section II of the present law concerning the presentation and designation of candidates for the general elections to the Congress of Deputies and to the Senate.

A list of candidates shall be presented in order to stand for elections.

Groups of voters wishing to present candidates in the elections must receive the supporting signatures of at least 1% of those registered to vote in the constituency. Parties, federations or coalitions that were not represented either in the Congress of Deputies or in the Senate must receive the supporting signatures of at least 0.1% of those registered to vote in the constituency. Voters are only allowed to register support for one candidate.”

The obligation to collect a specific number of signatures for those parties which were not represented either in the Congress of Deputies or in the Senate was firstly introduced by the Organic Law 2/2011 of 28 January 2011, which entered into forced on 30 January 2011.

“2. In every electoral process, the period to collect the supporting signatures shall start running after the publication of the order determining the date on which the elections will take place (...).”

“I. Principles of Europe’s electoral heritage

1.3. Submission of candidatures

i. The presentation of individual candidates or lists of candidates may be made conditional on the collection of a minimum number of signatures.

ii. The law should not require collection of the signatures of more than 1% of voters in the constituency concerned.

iii. Checking of signatures must be governed by clear rules, particularly concerning deadlines.

iv. The checking process must in principle cover all signatures; however, once it has been established beyond doubt that the requisite number of signatures has been collected; the remaining signatures need not be checked.

v. Validation of signatures must be completed by the start of the election campaign.”

“I. The underlying principles of Europe’s electoral heritage

Universal suffrage

1.3. Submission of candidatures

The obligation to collect a specific number of signatures in order to be able to stand is theoretically compatible with the principle of universal suffrage. In practice, only the most marginal parties seem to have any difficulty gathering the requisite number of signatures, provided that the rules on signatures are not used to bar candidates from standing for office. In order to prevent such manipulation, it is preferable for the law to set a maximum 1% signature requirement.”


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr Slavko Stojnić, is a citizen of Bosnia and Herzegovina, who was born in 1961 and lives in Banja Luka.

The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent, Ms M. Mijić.

The applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia (“the SFRY”). The present case concerns his attempt to repossess his pre-war flat in Sarajevo.

The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia in Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05, 19724/05, 47860/06, 8367/08, 9872/09 and 11706/09, §§ 5-8, 3 May 2012.

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

In 1983 the applicant was allocated an occupancy right to a military flat in Sarajevo.

On an unknown date in 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 182,953 Yugoslav dinars (approximately 2,152 German marks (DEM) at the time).

When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 1998.

On 29 January 1999 the applicant applied for the restitution of his flat in Sarajevo. On 4 April 2001 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. On 23 November 2001 the competent Ministry of the Sarajevo Canton rejected his appeal as submitted out of time.

On 8 February 1999 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement) about his inability to repossess his pre-war flat. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

On 8 March 2005 the Human Rights Commission (the legal successor of the Human Rights Chamber) found a violation of Article 6 of the Convention because of the length of the restitution proceedings and awarded the applicant 1,000 convertible marks (BAM; approximately 500 euros (EUR)) for non-pecuniary damage in this connection. As regards the complaint under Article 1 of Protocol No. 1, the Commission concluded that the interference with the applicant’s right to the peaceful enjoyment of his “possessions” had been justified. However, it ordered the Federation of Bosnia and Herzegovina to secure the applicant’s right to compensation envisaged under section 39e of the Privatisation of Flats Act 1997, without further delay and at the latest within three months from the delivery of that decision.

On the same date, the applicant initiated proceedings before the Sarajevo Municipal Court (“the Municipal Court”) seeking to establish the validity of a purchase contract and to register his title to the flat in the land register. On 1 October 2007 the Municipal Court declared the purchase contract legally valid. However, it rejected the applicant’s claim to have his title registered. The court held that under the Privatisation of Flats Act 1997 those who served in foreign armed forces after the 1992-95 war, like the present applicant, were not entitled to repossess their pre-war military flats and to register their title, but were entitled to compensation. On 19 November 2008 the Sarajevo Cantonal Court upheld that judgment.

On 28 December 2005 the Ministry of Defence of the Federation of Bosnia and Herzegovina allocated the flat to M.H., a member of the Army of the Republic of Bosnia and Herzegovina.

On 4 December 2013 the Ministry for Defence of the Republic of Serbia informed the Government of Bosnia and Herzegovina that the applicant’s right to allocation of a military-flat in Serbia had been established by the competent authorities.

The Government did not dispute the facts submitted by the applicant. However, they provided additional information as follows.

On 19 April 2007 the applicant received BAM 15,979.68 (approximately EUR 8,170) in compensation for his prewar flat in Sarajevo in accordance with section 39e of the Privatisation of Flats Act 1997, as ordered by the Commission for Human Rights (see paragraph 10 above).

The relevant domestic law and practice were outlined in Aleksić v. Bosnia and Herzegovina (no. 38233/05, §§ 16-18, 3 February 2015).


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

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant was born in 1970. He is currently detained in Mărgineni Prison.

On 22 November 2003 the applicant was detained pending trial on charges of aggravated murder and placed in Mărgineni Prison.

By a final judgment of 22 June 2007 the Dâmbovița County Court convicted him of aggravated murder and sentenced him to twenty-two years’ imprisonment.

On 27 July 2004 the applicant lodged his first application before the Court, namely application no. 31470/04, alleging that his rights under Article 3 of the Convention had been violated on account of, inter alia, the material conditions of his detention in Mărgineni Prison. He argued in particular that the cells were small and overcrowded; that the toilets were not separated from the cells, were uncovered and smelled badly because there was no running water; that he lacked sufficient physical exercise given that he was rarely taken out of his cell and allowed to walk in the small courtyard, which in any case smelled unpleasant; and that his food was inadequate and low in calories.

On 19 January 2009 the applicant’s complaint concerning the material conditions of detention was communicated to the Romanian Government and they were asked to submit observations on the admissibility and merits of the case.

On 9 June 2009 the observations submitted by the Romanian Government were forwarded to the applicant and he was asked twice to submit observations in reply. However, he failed to submit any observations.

By a decision of 3 July 2012 the Court decided to strike application no. 31470/04 out of its list of cases, pursuant to Article 37 § 1(a) of the Convention. The applicant did not ask for the aforementioned application to be restored to the Court’s list of cases.

According to the applicant, in Mărgineni Prison he had to sleep on metal beds with large holes in them. The cells lacked natural light and air, were squalid and damp, infested with lice and bed bugs, and there were no proper facilities for serving food. The sanitary facilities lacked air vents and running water and had no doors or mirrors, while the waste bins were made out of cut plastic containers.

The applicant attached to his letter several photographs allegedly taken by him in prison to support his allegations.

The applicant also contended that the food was poor and that he did not have access to adequate medical care.

The Government informed the Court that the applicant had been detained in Mărgineni Prison from 22 November 2003 to 26 April 2005, 18 to 21 July 2005, 10 August 2005 to 30 October 2007 and 2 November 2007 to the present date.

During his detention the applicant had stayed in several detention cells.

All the detention cells where the applicant had stayed had been connected to electricity, heating and water supplies. Each cell had a window measuring 0.92 metres long by 0.78 metres wide or 1.75 metres long by 1.25 metres wide, depending on the size of the cell and the number of occupants. The cells were aired manually by opening the available window. They had a separate area with sanitary and personal hygiene facilities, which could be accessed from the detention room directly. The sanitary facility area was fitted with an air vent.

The cells had individual beds and were adequately furnished for the detainees to be able to eat their meals and store their personal belongings. They were fitted with radiators connected to the prison’s own heating system, which provided an adequate temperature when needed. The sanitary utilities were functioning adequately and they were promptly fixed whenever they were damaged.

The detainees had permanent access to drinking water and bathed twice a week in specially designated areas, based on a schedule approved by the prison authorities.

The applicant received a diet which was served in accordance with the regulation in force. The quality of the food was checked daily by, inter alia, a medical office representative and a detainee representative. There was no indication that the food quality had been inappropriate during the applicant’s detention. The food was served in the cells, which were furnished with wooden tables and chairs or benches.

Hygiene in the cells was the detainees’ responsibility, and they were provided regularly with cleaning materials by the prison authorities. From 2009 to 2012 the cells were fumigated by specialist companies every quarter or periodically by the hygiene manager attached to the medical office. The inmates were provided with waste baskets and the sanitary facilities were cleaned daily with chlorine by the prison hygiene manager.

On an unspecified date the applicant brought proceedings against the Mărgineni Prison authorities, contending that his right to adequate medical assistance had been breached. He argued that on one occasion he had not been examined by the doctor and had been unable to purchase the prescribed antibiotics the following day.

By a decision of 18 November 2008 the judge responsible for the execution of prison sentences attached to Mărgineni Prison dismissed the applicant’s action on the grounds that the medical examination and the required treatment had been made available to him a couple of days later. There is no evidence in the file that the applicant appealed against the decision before the domestic courts.

On an unspecified date the applicant brought a new set of proceedings against the Mărgineni Prison authorities, contending that his rights to adequate medical assistance, to correspondence, to working and educational activities, as well as to access to running water and adequate detention conditions, had been breached. He had to share a cell with twenty other inmates, was involved in activities only once a week, was not provided with adequate medical care or given the correct diet. In addition, the sanitary facilities were out of order, the prison lacked running water, his cell was squalid and lacked air, his right of correspondence was restricted and he was not allowed to work.

By a decision of 19 September 2011 the judge responsible for the execution of prison sentences attached to Mărgineni Prison dismissed the applicant’s action. On the basis of the information provided by the prison authorities, it held that the size of the prison did not allow any reduction in the number of detainees per cell, and that the applicant’s cell allowed six cubic metres of air for each detainee. Moreover, he had access to daily activities and exercise, and was provided with adequate medical care in the prison hospital. His cell had been disinfected in August 2011 and no insects had been found during the sanitary inspection of September 2011. Furthermore, the applicant was provided with an adequate diet. The quality of the food was checked daily and there was no indication that it was of poor quality. In addition, the applicant’s cell was equipped with private and hygienic sanitary facilities, which provided permanent access to running water. Also, the applicant’s right to correspondence was observed. Lastly, his request to be allowed to work had not been examined by the work commission on the grounds that he did not meet the work-related requirements. The applicant appealed against the decision before the domestic courts.

On 14 December 2011 the Moreni District Court, sitting as a finalinstance court, dismissed the applicant’s appeal against the decision of 19 September 2011. It held that the applicant had failed to identify a particular circumstance when his right of correspondence had been breached. The distribution of correspondence to prisoners by the supervisors of the prison sections rather than by specially authorised personnel had not been unlawful. The applicant had made a general complaint about the absence of adequate medical treatment without identifying the circumstances in which his right had been breached. His medical file contained information that he had repeatedly refused treatment or examinations by specialist doctors. The quality of the food had been adequate and had been reviewed daily by a representative of the medical office. Although the cells were overcrowded, the detainees had access to the statutory number of cubic metres of air, and to sanitary facilities and installations which provided access to drinking water as well as adequate privacy. They also had access to daily activities and exercise. The photographs of the cell bathroom submitted to the court by the applicant did not prove the absence of running or drinking water. Some of the bathroom installations were indeed damaged or missing, but that was linked to the inmates’ behaviour and the limited budget available to the National Administration of Prisons. In addition, according to the documents submitted by the detention centre, in August 2011 the prison had been disinfected twice. The aspects the applicant complained of had been examined bearing in mind the needs of the other detainees and the aspects which made the observance of the detainees’ rights possible, namely the available staff and budget. Lastly, the applicant’s remaining complaints were examined and dismissed by the judge responsible for the execution of prison sentences on the basis of the documents submitted by the prison authorities.

On unspecified dates the applicant brought two further sets of proceedings against the Mărgineni Prison authorities, seeking an injunction to be allowed to receive several food items from his family.

By decisions of 10 January and 13 September 2012 the judge responsible for the execution of prison sentences attached to Mărgineni Prison allowed the applicant’s actions seeking to be allowed to receive several food items.


CASE OF ŠTERJOV AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants’ personal details are listed in the appendix below.

On 16 March 1982 five people (“the predecessors”), the ninth and the twenty-second applicants initiated civil proceedings for determination of title to plots of land.

Between 1984 and 2001 the predecessors died. The first, second, third and fourth applicants stepped in the proceedings on behalf of their late predecessor. The fifth to eighth and the tenth to twenty-first applicants did not step in the proceedings on behalf of their late predecessors.

On 12 May 2004 the ninth applicant died.

On 23 April 2005 the twenty-second applicant died and his heirs, Mr Stojan Kostov and Mr Mite Kostov, applied to continue the application in his name.

On 17 April 2009 the fourth applicant died and her heirs, the second and third applicants, applied to continue the application also in her name.

The impugned proceedings, which were reconsidered on one occasion, ended on 31 August 2007 when the final decision of the Štip Court of Appeal was served on the applicants. This decision listed the following as plaintiffs: the first, second, third, fourth, ninth and twenty-second applicants as well as the predecessors of the remaining applicants.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained, inter alia, of the excessive length of civil proceedings and of the lack of an effective remedy in this respect.


CASE OF SELAMI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Ratione personae;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicants alleged, before the domestic courts and before the Court, that on 26 August 2002 police detained Mr S. Selami and took him from Gostivar to Skopje where he was severely beaten. Mr S. Selami sustained serious injuries to his head including a brain haemorrhage and fell into a coma. The police brought him to Skopje Hospital, where he underwent brain surgery. He was in a coma for two weeks and was connected to a ventilator for assisted breathing.

By a letter of 28 August 2002 the applicants contacted the Ministry of the Interior seeking information about Mr S. Selami’s whereabouts. By a letter of 29 August 2002, the Ministry had informed them that Mr S. Selami had been admitted to Skopje Hospital.

According to a medical certificate from Tetovo Medical Centre issued on 29 January 2003 on the basis of the available medical evidence, Mr S. Selami was in a post-operative state (following medical trepanation of his skull and evacuation of the internal brain haemorrhage); parts of his skull and the tough brain membrane had been seriously damaged; he had suffered reduced mobility of all limbs, muscle hypotonia and neck and rib fractures. According to the report, those injuries had qualified as serious and had had permanent effects on the life and body of Mr S. Selami.

As to the subsequent establishment of facts by the domestic civil courts, see paragraphs 15-18 below.

On 31 August 2002, five days after first having been detained and beaten by the police (see paragraphs 15 to 22 below), an investigating judge of the Skopje Court of First Instance (“the trial court”) opened an investigation against Mr S. Selami and three other persons in connection with their alleged involvement in enemy activities against the State and ordered their pre-trial detention. The investigating judge specified that Mr S. Selami had been hospitalised and that the detention order would be enforced as soon as he was discharged from hospital. Mr S. Selami’s detention was extended on three occasions. The extension orders specified that he had been deprived of his liberty on 18 September 2002 and that he had been held under the detention order in Skopje Hospital until 18 October 2002.

On 14 November 2002 Mr S. Selami was indicted for membership of a terrorist group whose aim had been to organise terrorist attacks on the police in order to endanger the security and constitutional order of the State. On 10 December 2002 Mr S. Selami was released on bail on account of, inter alia, the “serious deterioration of [his] health”.

By a judgment of 9 September 2003 the trial court discontinued (запира) the criminal proceedings against Mr S. Selami since the prosecution had withdrawn the charges. The remaining accused were acquitted (ослободени од обвинение).

On 18 November 2003 Mr S. Selami contacted the Ministry of Justice with a view to securing an out-of-court settlement and payment of 16,170,000 Macedonian denars (MKD – equivalent to 263,000 euros (EUR)) in respect of pecuniary and non-pecuniary damage caused, so it was asserted, by the unlawful deprivation of his liberty and the serious injuries that he had sustained at the hands of the police on 26 August 2002. In support he submitted the medical certificate from Tetovo Medical Centre (see paragraph 7 above).

In the absence of any response from the Ministry, on 30 January 2004 Mr S. Selami and the applicants submitted two separate lawsuits, one in relation to his unlawful detention and one in relation to his physical ill-treatment by the police, claiming pecuniary and non-pecuniary damages in both. They reiterated that on 26 August 2002 Mr S. Selami had been unlawfully deprived of his liberty; that he had been taken to police stations where he had been beaten and physically ill-treated; and that the police had taken him to Skopje Hospital where he had undergone head surgery. On 19 September 2002 he had been transferred from the hospital to Skopje detention facility in view of his detention on remand. The applicants’ claim was based on section 190(3) of the Obligations Act (Закон за облигационите односи), which entitles a spouse and children to obtain non-pecuniary damages in a case of severe disability of the victim (see paragraph 27 below).

Both claims were joined and decided in a single set of proceedings. During the proceedings, the domestic courts commissioned two expert opinions and admitted into evidence extensive medical material issued by relevant medical institutions in Switzerland concerning Mr S. Selami’s earlier injury while at work in that State.

In a judgment of 22 April 2010, the Gostivar Court of First Instance ruled partly for Mr S. Selami and, relying on section 189 of the Obligations Act (see paragraph 26 below), it awarded him the equivalent of EUR 18,000 in non-pecuniary damages for the unjustified detention between 19 September and 10 December 2002. It dismissed the remaining part of Mr S. Selami’s claim. As to the applicants’ claims, the court held that the consequences suffered by Mr S. Selami as a consequence of “the unjustified detention” could not be regarded “extremely severe disability”, as required by section 190(3) of the Obligations Act.

On the basis of the available medical evidence, the court established that in 1985, while at work in Switzerland, Mr S. Selami had fallen and injured his spine and right leg, which had become dysfunctional. As a result of that injury, he had been certified as disabled for the purposes of work in Switzerland and he had had to use crutches and a disability-adapted car.

Relying on the expert evidence admitted at the trial, the court established, as a matter of fact, that during the “incriminating event of 26 August 2002 ... Mr S. Selami had sustained serious bodily injury. As a result of the head trauma, there was haemorrhage ... in the right (part of the brain) ... After the surgery, Mr S. Selami had remained in coma and ... had been connected to a ventilator for assisted breathing. He had recovered after three weeks ...”. The court further referred to the expert opinion according to which Mr S. Selami had sustained strong and intensive physical pain, as well as strong emotional pain and humiliation while being beaten. He had sustained serious head injuries, which had affected, though not permanently, the left side of his body and had provoked other negative psychological effects.

Relying on the statements of Mr S. Selami and the first and fourth applicants, the court established that in August 2002 the police had searched their house. They had asked Mr S. Selami to come with them to Gostivar police station. There, he had been questioned in relation to an incident in which two policemen had been killed. He had denied having any connection to that incident. He had been taken by police car to Skopje, where he had been placed in “a cellar or a garage” and beaten. The applicants had not been aware of Mr S. Selami’s whereabouts for several days after which they had discovered that he had been hospitalised in Skopje Hospital. Despite these findings of fact, the Court of First Instance expressed no conclusion about the lawfulness of any detention prior to 19 September 2002 or the treatment suffered by Mr S. Selami during that detention.

Both Mr S. Selami and the applicants appealed to the Skopje Court of Appeal. They argued that the first-instance court had not determined their claim in relation to the serious injuries inflicted on him by the police, as a result of which he had had his skull broken; had suffered a brain haemorrhage; had required head surgery; had been immobilised and had lost the full use of his hands. The Solicitor General also challenged the judgment.

On 6 April 2011 Mr S. Selami died.

On 24 August 2012 the Skopje Court of Appeal dismissed the appeals by Mr S. Selami and the applicants and allowed the appeal by the Solicitor General. It overturned the lower court’s judgment and awarded Mr S. Selami the equivalent of EUR 9,800 in respect of non-pecuniary damage due to his “unjustified detention between 19 September and 10 December 2002”. The court, inter alia, stated:

“In the impugned judgment, the first-instance court established ... on the basis of the expert opinion [that Mr S. Selami] had experienced intense pain on his head and body when he had been physically attacked ... every blow had caused physical pain of different intensity, accompanied by swelling and bruises on his body ... Regarding the intensity and duration of the fear, the experts are of the opinion that when arrested and physically assaulted and hit, particularly on his head, [Mr S. Selami] had had intense, unpleasant, emotional experiences of primary fear ... which persisted until he had fallen into a coma ... Regarding the emotional suffering due to his unjustified deprivation of liberty and detention, the experts are of the opinion that the basis for an award of non-pecuniary damages ... is the time calculated as of 26 August 2002 ... when [Mr S. Selami] was arrested by the police ..., transferred to other police stations, where he was subjected to serious physical ill-treatment and beaten, which caused serious bodily injury ...

This court considers that the [above] facts were correctly established.

... This court established on the basis of medical evidence that in 1989 [Mr S. Selami] had been certified disabled in Switzerland and that he had been receiving disability benefits ever since. The serious injury inflicted on him (during the 2002 detention) had caused his left limbs to become dysfunctional to a minor extent, which cannot be regarded as an extremely severe disability.”

The court rejected the applicants’ arguments that the first-instance court had not decided the claim for compensation for damage sustained as a result of Mr S. Selami’s physical ill-treatment. In this connection it stated that:

“the operative provisions and the reasons given in the [impugned] judgment clearly and unequivocally confirm that the court had decided the entire claim ... This court considers that the emotional suffering due to unjustified detention is a single type of damage which includes all the detrimental effects on the victim, including his physical ill-treatment ... In assessing the amount of the award, this court took into consideration all therespect with which the plaintiff was held in his family and in the community, that during the unjustified deprivation of liberty he was physically ill-treated and sustained serious bodily injury, as a result of which his left limbs became dysfunctional to a minor extent, that he was hospitalised and operated on and that he had been disabled before ...”

By a final decision of 31 October 2012, delivered by a notary public, the fourth applicant was declared the sole heir of Mr S. Selami’s inheritance, including the compensation awarded to him. The remaining applicants refused to accept being declared heirs of the late Mr S. Selami.

On 1 November 2012 the applicants lodged an appeal on points of law against the judgment of the Skopje Court of Appeal reiterating their earlier arguments. The fourth applicant, as the statutory successor of the late Mr S. Selami, lodged the appeal in his name and on behalf of Mr S. Selami.

On 11 July 2013 the Supreme Court dismissed the applicants’ appeal on points of law finding no grounds to depart from the established facts and the reasoning given by the lower courts.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

The applicant, Ms Gazal Dülek, is a Turkish national who was born in 1979 and lives in Istanbul. She is represented before the Court by Ms G. Tuncer, a lawyer practising in Istanbul.

On 25 April 2000 the applicant was arrested on suspicion of aiding and abetting an illegal organisation, namely the PKK.

On 26 April 2000 she was arrested for interrogation at the AntiTerrorism Branch of the Istanbul Security Directorate (“the Anti-Terrorism Branch”). In her statement, taken in the absence of a lawyer, the applicant declared that she had worked as a secretary at a local branch of HADEP for approximately five months and that she had been a member of the youth branch of HADEP since 1999. She also admitted that she was a member of the PKK, that on one occasion she had hidden a bomb in her house upon the request of another PKK member, that she had assisted in sending a number of persons to PKK camps in eastern Turkey and Iran and that she had acted as a messenger for some PKK members detained at the Ümraniye prison. The applicant duly signed her statement.

At 11.20 a.m. on 30 April 2000 the applicant was examined by a doctor, who stated that there were no traces of ill-treatment on her body.

Subsequently, on the same day, the applicant was brought before the Public Prosecutor at the Istanbul State Security Court, again in the absence of a lawyer. The applicant alleged that at the Anti-Terrorism Branch, she had been forced to sign a statement which had been prepared by the police officers and stated that she did not even know the content of the statement. When her police statement was read out to her, she denied any involvement in the activities mentioned therein, apart from her membership of the youth branch of HADEP and her work experience there.

On the same day, the applicant was further interrogated by a single judge at the Istanbul State Security Court, in the absence of a lawyer. She denied all the accusations against her, reiterating the statement she had made before the public prosecutor. At the end of the questioning, the judge ordered her pre-trial detention.

On 4 May 2000 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court against the applicant and four other persons, accusing the applicant of membership of an illegal organisation under Article 168 (2) of the former Criminal Code (Law no. 765).

On 7 August 2000 the Istanbul State Security Court, composed of three civilian judges, held its first hearing. The applicant made her defence statement at the fourth hearing held on 18 April 2001, and denied all the charges against her. The applicant also denied her police statement, alleging that she had been forced to sign it without knowing its content. At the end of the hearing the Istanbul State Security Court ordered the applicant’s release.

On 3 September 2003 the Istanbul State Security Court convicted the applicant under Article 169 of the former Criminal Code of aiding and abetting an illegal organisation. Accordingly it sentenced her to three years and nine months’ imprisonment. In convicting her, the State Security Court mainly relied on the applicant’s police statement, and the statements made by her co-defendants.

On 19 October 2004 the Court of Cassation quashed the judgment of the Istanbul State Security Court.

In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was accordingly transferred to the Istanbul Assize Court.

On 14 April 2008 the Istanbul Assize Court convicted the applicant of membership of an illegal organisation under Article 314 (2) of the new Criminal Code (Law no. 5237) based on the evidence in the file and sentenced her to six years and three months’ imprisonment.

On 27 October 2009 the Court of Cassation upheld the judgment of the first-instance court. It expressly held that the assize court had correctly classified the offence committed by the applicant as membership of an illegal organisation.

The relevant domestic law and practice in force at the material time, as well as recent developments, can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).


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

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

The Government submitted a declaration with a view to resolving the issues raised by the applicant.

In particular, the Government acknowledged that the applicant had remained in pre-trial detention for an excessively lengthy period in violation of Article 5 § 3 of the Convention. They offered to pay the applicant 1,700 euros and invited the Court to strike the application out of the list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment, and would be payable within three months from the date of notification of the Court’s judgement. In the event of failure to pay this amount within the abovementioned three-month period, the Government undertook to pay simple interest on them, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The declaration did not mention the applicant’s complaint under Article 5 §§ 4 and 5 of the Convention.

The applicant informed the Court that he agreed to the terms of the declaration.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);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 1952 and lives in Rostov region. He took part in the clean-up operation at the Chernobyl nuclear disaster site. He was subsequently registered disabled, and became entitled to various social benefits.

In February 2003 the applicant brought proceedings claiming that his benefits should be increased in accordance with a particular method. The adjustment method suggested by the applicant was approved by the domestic courts, which in addition increased the social benefits to which he was entitled to in 2002 in accordance with this same method (judgment of 25 February 2003).

In June 2003 the applicant brought a similar set of proceedings in respect of social benefits to which he was entitled to during the first six months of 2003. Relying on their previous judgment by which they approved the adjustment method suggested by the applicant, the domestic courts increased his social benefits for the new period accordingly (judgment of 18 June 2003).

In October 2003 the judgment of 25 February 2003 approving the adjustment method suggested by the applicant was quashed by a supervisory review court.

In March 2004 the domestic courts quashed on the basis of newly discovered circumstances the judgment delivered on 18 June 2003 on the ground that it was based on the judgment delivered in February 2003 but quashed since then by way of supervisory review.

Both judgments, of February and June 2003, remained unenforced prior to their quashing.

In 2006 the applicant brought proceedings against welfare authorities claiming arrears for various benefits as well as indexation of those benefits. The Zernogradskiy District Court of the Rostov Region granted the applicant’s claims (judgment of 19 June 2006, upheld on 18 July 2006). This judgment remained unenforced for fourteen months.


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

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

The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.


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

Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque

The applicant was born in 1975 and lives in Dublin, Ireland.

On 28 October 2008 the applicant was travelling on a passenger bus from Moldova to Romania, with Ireland as his final destination.

At 12.30 a.m. his bus arrived at the Albiţa border crossing between Moldova and Romania. Romanian custom officers stopped the bus, got on and started searching the passengers. Two silver ingots were found in the applicant’s pockets.

A customs officer decided that the applicant had failed to declare the ingots and confiscated them. An offence report drafted by the officer stated that the applicant had failed to declare two silver ingots of 1 kg each and had thereby breached the provisions of Article 653 (a) of the Customs Regulations (see paragraph 12 below). In addition to the confiscation the applicant was fined 3,000 Romanian lei (approximately 750 euros (EUR)). The report also stated that according to documents produced by the applicant he had bought the two ingots from a bank.

The applicant lodged an administrative complaint with the Albiţa Customs Office, asking for the annulment of the offence report of 28 October 2008 and the restitution of the confiscated goods. He explained that he had legally acquired the two ingots, which had a value of EUR 500. He had kept them on him in order to prevent them being stolen during the bus trip and not to elude customs. He also stated that it had not been possible to declare goods to customs in a discrete manner or in writing. The passengers had not been allowed to get off the bus before the customs officers had got on and he had wished to avoid saying what he was carrying in front of the other passengers.

On 26 January 2009 the Huşi District Court dismissed the applicant’s complaint as ill-founded. Based on the elements in the case file, the court observed that the customs officer had asked the applicant whether he had anything to declare and the applicant had said no. Under those circumstances the court held that the applicant had been correctly sanctioned by the customs officer.

An appeal on points of law by the applicant (recurs) was dismissed with final effect on 3 June 2009 by the Vaslui County Court. The court held that the applicant, who had signed the offence report, had failed to produce any evidence to challenge the customer officer’s findings in that document.