Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms;Impartial tribunal);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

The applicant was born in 1975 and lives in Specchia (Lecce).

In 1993 the applicant, aged eighteen at the time, was called up to undertake compulsory military service. For the purposes of his conscription he had a combined psychological evaluation and physical examination on 3 December 1993, as a result of which he was found to be fit for military service. The detailed report, which was not disclosed to the applicant (until 21 September 2010 in the course of pension proceedings), considered that the applicant was slow in understanding and executing a task but logical in its exercise, although prone to giving up. In an evaluation covering language and cultural skills, motivation, mental performance and behaviour, he obtained a grade of 4 out of 10 in each area.

Upon his conscription, the applicant underwent another medical examination on 14 June 1994, as a result of which he was again found to be fit for military service on the basis that he was not suffering from any illness. He was assigned to Battalion no. 123 in Chieti, where he was subject to intensive physical and mental training, including in the use of firearms.

On 9 July 1994 the applicant was transferred to the provincial command unit in Aquila, where he remained until 30 December 1994. During this time, from 1 September to 2 November 1994 he temporarily formed part of its logistical battalion. While in Aquila the applicant was subjected to multiple punishments. According to the documentation presented, he was subjected to eight punishments between July and December, amounting to twenty-four days of confinement, including periods of solitary confinement, for reasons ranging from negligent care of his camp-bed area to failure to report to his supervisor, or informal behaviour towards his superior. During the time he spent with the logistical battalion he was hospitalised at least four times for medical care unrelated to his mental problems (see below).

On 30 December 1994 the applicant was transferred to Lecce, where a commander noted that the applicant suffered from nervous tics and twitches, difficulty in socialising and learning, and absent-minded behaviour. The commander ordered the applicant to undergo a specialised medical assessment to test his fitness to perform military service.

On 24 January 1995 he was admitted to hospital, where he was diagnosed with anxiety disorder and considered to be in a fragile state of mind.

A medical report by the NHS of Tricase of 6 February 1995 considered that in his youth the applicant had suffered from affection-relational problems and learning difficulties. He was physically weak and insecure, had a low aptitude for learning and was prone to isolation, was dysfunctional and incapable of taking up responsibilities. Tests revealed that he was unable to perform assigned tasks, had difficulty orienting himself and impaired cognitive functions (a deficit in logic and memory). He was considered to have a slight intellectual deficit (an IQ of 67) and to be incapable of creating positive relationships with people. This inadequacy caused him to live military life with anxiety and fear of his fellow soldiers, who he considered were aggressive towards him, even if they had only been joking. The report considered that the longer he remained in military service, the more severe his anxiety would become, and his defensive attitude arising from his fears would intensify.

The applicant remained on medical leave for recovery purposes until April 1995, when, following a specialised assessment to determine his suitability for military service, on 8 April 1995 the applicant was found to suffer from “dysphoria and borderline personality [disorder]” and was discharged due to unfitness.

Following his discharge, the applicant underwent further medical examinations. A report by the NHS of Tricase of 20 October 1995 considered that the applicant no longer had a defensive attitude, nor was he suffering from dysphoria and nervous tics. He was still, however, insecure, prone to isolation, unstable and unwilling to take up responsibilities. Following the tests performed, the report concluded that the stressful situation, namely his military service, having ended, the applicant had slightly improved. However, he still displayed signs of intellectual deficit.

At the time a report by the applicant’s doctor (Dr Russo) considered that the applicant had fallen sick because of military service or that there was at least a causal link between the two. In consequence, on 13 January 1996 the applicant asked the Defence Ministry to pay damages under Law no. 416 of 1926 and presidential decree no. 686 of 1957.

In the course of the examination of his request for damages, on 30 September 1999 the Medical Commission of the Bari Military Hospital diagnosed the applicant with “obsessive-compulsive disorder” (“OCD”), which it considered was not a result of his military service. It opined that the mental infirmity at issue was a pre-existing condition. It did not appear that during his military service the applicant had been involved in any events or had to carry out any duties which, given their importance, duration and nature, could have seriously influenced the onset or progression of this mental health problem. It further considered the request to have been made out of time.

In the meantime the applicant had repeatedly asked the relevant authorities to provide him with a copy of the pertinent documents regarding the period in which he had served in the military to enable him to substantiate his claims. On 24 November 1999 he further asked the Lecce Military District to provide him with the administrative and health documents related to his case together with the minutes of the Medical Commission’s meeting in his respect. This request was repeated four times in the year 2000 and remained unanswered.

On 19 June 2000 the second instance Medical Commission of Bari confirmed the findings of the Medical Commission dated 30 September 1999.

On 11 July 2000 the Ministry of Defence rejected the applicant’s request for damages, noting that the Medical Commission (second instance) of the Command of the Naples Health Service had, on 19 June 2000, determined that the OCD from which the applicant suffered had not been caused by his military service.

According to a medical certificate submitted by the applicant to this Court, issued by the Maglie Local Health Centre (mental health department) on 29 July 1999, the applicant, who had been treated by the department since 1977 for a fragile state of mind, a low IQ, and OCD which had become chronic, had developed behavioural problems to the extent of violent outbursts towards his family following his military service.

On 21 July 2000 the applicant instituted proceedings before the Lecce Regional Administrative Tribunal (“TAR”) for the recognition of the causal link between his mental health problems and his compulsory military service, and in the event that the court considered his condition to be preexisting he asked it to ascertain the military’s liability for recruiting him and in consequence to make an award of damages in his favour.

On 4 August 2000 the applicant lodged an urgent request with the relevant authorities to access medical documents relating to the fitness-for-service examination prior to conscription, details about his time in the military – training, work, and so on, his disciplinary record, i.e. of the punishments endured, and a record of his hospital stays, an assessment by his commander of his personality and professionalism and all other relevant material held by the Military Administration. On 22 September 2000 he was informed that the unit in Aquila had been disbanded. He was further informed that he had spent twenty-three days in “consegna semplice” (a punishment prohibiting an individual from leaving the base) and one day of “consegna di rigore” (a punishment confining the individual to a specified area on the base) and that any further information had to be requested from the Lecce Recruiting Office. The applicant lodged a request with the Lecce Recruiting Office on 28 September 2000 and on 16 October 2000 the office replied, sending the applicant an excerpt containing his disciplinary record and noting that he had spent twenty-eight, rather than twenty-three, days in “consegna semplice”. No other documentation was sent to the applicant. Following further requests on 19 October 2000, the Lecce Recruiting Office sent the applicant the psycho-physical training file.

On 28 December 2002 the TAR appointed Dr S. as a court expert to ascertain the nature of the applicant’s infirmity and submit a report within sixty days.

Following an examination of the applicant, Dr S. failed to deliver the requisite report. Thus, on 30 January 2007, the applicant asked the TAR to replace the expert.

By a judgment filed in the relevant registry on 20 July 2007 the TAR, considering the applicant’s interlocutory request as an application for renewal (“rinnovo”), rejected the request, noting that for seven years the applicant had failed to solicit any action whatsoever. Considering that no more evidence was necessary, it proceeded to give judgment. It held that the two Medical Commissions had agreed about the source of the applicant’s infirmity and that it had resulted from a pre-existing condition. Indeed the first-instance Medical Commission had referred to a diagnosis of the applicant made in 1997 (when he had been admitted to hospital) which evidenced a fragile and vulnerable mental state. The court went on to note that it transpired that the medical examination of June 1994 to determine the applicant’s fitness for service had not been accurate, since it should already have transpired that the applicant was not entirely fit to take up military service.

On 9 July 2008 the applicant appealed to the Supreme Administrative Court (“CS”). He complained, inter alia, that: the outcome of the case had been illogical – even though the TAR had considered that his fitness-for-service examination had not been accurate it had failed to pronounce itself on any liability and to award damages; the TAR had considered the applicant’s interlocutory request for the replacement of the expert as an application for renewal, even though replacement of the expert was clearly due given the delay in performing his functions, leading to the court taking a decision to dismiss the action without the relevant information.

By a partial judgment of 19 January 2010, the CS considered that a specialised medical examination was indeed necessary to determine the connection, if any, between the applicant’s infirmity and his military service. It ordered that such an examination be carried out by the Defence Ministry’s Medical Board (Collegio Medico Legale della Difesa – the “Medical Board”), by means of a medical assessment in the presence of the applicant’s general practitioner, and that a report be submitted within thirty days. It appears from the documents that the Medical Board appointed for the applicant’s case was made up of four full members, three from the military and one from the State Police, and an external expert in neurology.

In June 2010 the Medical Board’s report was filed. Its findings took into consideration a report produced that year by an expert engaged by the applicant which he had been allowed to submit to the Board (before being submitted to the CS). The Medical Board’s report noted that when the applicant was discharged he had been suffering from dysphoria, anxiety disorder and borderline personality disorder and had been considered to suffer from slight intellectual disability. It confirmed the reports submitted by the Bari Medical Commissions and highlighted the relevance of the preexisting nature of the applicant’s condition, also noting that upon examination by the Bari Military Hospital’s Medical Panel on 30 September 1999 and at the date of the report in 2010 the applicant had been suffering from “chronic OCD, a slight degree of intellectual disability, displayed personality changes and was prone to have marginal traits”. It concluded that at the date of review, according to the information available, the infirmity could not be considered to have been the direct result of or aggravated by ordinary military service.

On an unspecified date the report of 6 May 2010 prepared by the applicant’s expert (Dr Russo) was filed with the court. It noted that the applicant, a mentally healthy subject upon undergoing medical assessments prior to being drafted, had never shown any symptoms of mental illness before conscription into the military service and it was only after repeated punishment that such traits had emerged. Therefore, even assuming that he was predisposed to mental health problems, it was evident that it was the treatment he had been subjected to during military service that had caused the emergence of the illness. The implications of military service were generally of great emotional impact and a source of stress, which for a person who was in a fragile state of mental health or predisposed to mental health problems, unlike in the case of a healthy person, could trigger mental illness. The applicant’s being away from his family and his inability to relate to colleagues and superiors, in the absence of the necessary psychological support and in view of the repeated punishments imposed on him, had caused him to develop dysphoria which had later evolved into chronic OCD. Thus, in the applicant’s case there had been a causal link between his mental health problems and his military service, or the latter had at least contributed to the development of his condition.

On 12 November 2010 the applicant filed pleadings contesting the findings of the Medical Board and arguing that its report could not be considered objective and impartial given its nature and composition, as it was an organ of the opposing party in the proceedings. He argued that there had been a lack of transparency in the production of the report, which was highlighted by the fact that he had recently become aware of other documents related to the case which had never been disclosed to him by the authorities, the substance of which had been reflected in the report. On 14 December the applicant made further oral pleadings.

By a judgment filed in the relevant registry on 4 February 2011 the CS rejected the applicant’s appeal, holding that the applicant’s infirmity was antecedent to his military service and that it had not been detectible during the examination in 1994, as had been established by the Medical Board. As to the failure to disclose documentation, it considered that such documentation did not relate to the period during which the applicant had carried out military service. In any event the crux of the applicant’s complaint had concerned the conclusions of the Medical Board’s report which did not accord with his claim. However, the CS considered that the report was not contradictory or illogical in itself and it had not ignored relevant facts. It followed that given that the CS (in its limited powers of judicial review of administrative acts) (in sede di legittimità) was not allowed to assess the merits of that report, the applicant’s challenge could not be upheld. In respect of the original medical examination to determine the applicant’s fitness for military service, the CS again adopted the findings of the Medical Board, which had considered that it was possible that the applicant’s health problems had not manifested themselves in the absence of particular stimuli.


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

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

The applicant was born in 1966 and lives in Tbilisi.

The applicant and K.G. began living together in 1999. On 9 January 2000 their daughter, L.G., was born. She was raised mainly by her maternal grandmother in Georgia while both parents, whose relationship soon ended, left to work abroad.

On 31 March 2008 K.G. applied to the Tbilisi City Court for her daughter to be officially registered as resident at her address. On 19 May 2008 a summons was sent to the applicant at his registered address, informing him of K.G.’s action. According to the courier, the summons could not be served as the house was closed up and no one was living there. The summons was only sent once. On 3 June 2008 the court of first instance, acting on the basis of Article 78 of the Code of Civil Procedure (hereinafter, “the CCP” – see paragraph 15 below), ordered information concerning the proceedings to be published in a daily newspaper called 24 hours. On 24 June 2008 the Tbilisi City Court granted K.G.’s application. The decision was taken in the absence of the applicant, whose whereabouts, according to the ruling, could not be established.

On 12 December 2008 the Tbilisi City Court, acting upon another application by K.G., ruled again by default that L.G. could be issued with an international passport and leave the territory of Georgia without her father’s consent. No specific time-limit for that restriction of the applicant’s parental rights was given in the ruling. The court again stated that the applicant’s whereabouts were unknown and ordered the information about the proceedings to be published in 24 hours. Unlike the first set of default proceedings, the summons was sent twice to the applicant at the address he had registered at. It was again not delivered. The courier noted that the house was closed up.

It appears from the case file that the custody and guardianship authority, which represented the interests of the child in the above proceedings, made its own attempts to contact the applicant. In conclusions submitted to the Tbilisi City Court, the authority noted that during its visit to the applicant’s registered address it had learnt from neighbours that he had sold the house in 2003 and left for Moscow. Both default decisions were sent to the applicant’s registered address and, as they could not be served, were consequently published in 24 hours according to the procedure provided for in Article 78 of the CCP (see paragraph 15 below).

On 6 June 2012 the applicant lodged a complaint with the Tbilisi City Court, seeking to have both default decisions set aside. He stated that he had learnt about the decisions only in May 2012. He also explained that he had not been living in Georgia at the material time, which his former partner had well known. The default proceedings had been unfair as he had not been properly summoned to the hearings.

By a decision of 16 August 2012 the Tbilisi City Court rejected the applicant’s application. The court ruled, with reference to Articles 71 § 3 and 422 of the CCP (see paragraphs 15 and 17 below), that the applicant had been duly informed about the proceedings via public notifications in a newspaper and that there was therefore no legal basis to set the impugned decisions aside. It noted that the applicant had been registered at the address where the summonses had been sent and that for the purposes of the proceedings the courts had been justified in using that very address.

That decision was upheld by the Tbilisi Court of Appeal on 31 October 2012. It reasoned that the domestic courts had been right to send the summonses to the applicant’s only available registered address. Furthermore, as it had not been possible to serve the summonses on the applicant, the procedure of delivering a summons via a public notification, as provided for in Article 78 of the CCP, had been duly employed.

In his last communication with the Court on 15 December 2014, the applicant stated that he could still not have any contact with his daughter.


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant, Ms Viktoriya Pavlivna Yizhachenko, is a Ukrainian national who was born in 1968 and lives in Poltava. She was represented before the Court by Mr O.V. Levytskyy, a lawyer practising in Kyiv.

The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna.

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

On an unspecified date criminal proceedings were instituted against the applicant on several counts of fraud and incitement to bribery. The applicant remained at liberty, having paid a bail.

On 31 July 2012, during the trial, the Oktyabrskyy District Court of Poltava (“the District Court”) ordered that the applicant be placed in custody.

On 3 September 2012 the applicant was put on the list of wanted persons.

On 1 February 2013 she was arrested.

On 7 February 2013 she was placed in the Poltava Pre-Trial Detention Centre (“the SIZO”). On admission to the SIZO the applicant had a medical examination.

On 27 March 2013 she was admitted to a medical unit at the SIZO with a diagnosis of ischemic heart disease, stenocardia, atherosclerotic cardio sclerosis, impaired cardiac function and hypertensive disease. The applicant had an electrocardiogram and was provided with treatment. The next day she had a consultation with a cardiologist.

On 5 April 2013 the applicant was examined by a neuropathologist.

On 17 April 2013 the applicant had a stenocardia attack accompanied by a sharp drop in her arterial blood pressure. She was provided with urgent medical care by an ambulance team which had arrived at the request of the SIZO. The applicant was given further treatment in a city hospital.

On 8 May 2013 the applicant was taken to the gynaecological ward of a city hospital where she was treated for uterine fibroids and haemorrhagic syndrome. Further examinations showed that the applicant suffered from endometrial cancer (adenocarcinoma corporis uteri). On 10 May 2013 the applicant was returned to the SIZO and placed in the medical unit for further treatment and observation.

On 21 May 2013 the applicant was examined and prescribed further drug therapy.

On 6 June 2013 the applicant was examined by an oncologist who recommended she have surgery. She was registered with the Poltava regional oncologic clinic as a cancer patient with T1N0M0-stage cancer.

On 7 August 2013 the applicant wrote a statement refusing to consent to surgical treatment, chemotherapy or any other complex treatment until she had been seen by the oncology panel at the Kyiv oncologic centre.

In a letter of 10 August 2013, the governor of the SIZO and the head of the SIZO’s medical unit informed the applicant’s lawyer that the applicant had refused to have the necessary treatment because she wanted to be examined by doctors from the Kyiv oncology institution.

On 14 August 2013 the applicant had her lungs X-rayed. No tuberculosis was found.

On 12 September 2013 the applicant was diagnosed with cervical osteochondrosis and prescribed medical treatment and further observation.

On 8 October 2013 the applicant was taken by ambulance to the gynaecological ward of the city hospital because of a uterine haemorrhage. The doctor who treated her confirmed her diagnosis and the need for surgery. The applicant returned to the SIZO the next day.

On 16 October 2013 the applicant was examined by an oncologist from the Poltava regional oncologic clinic who also recommended surgery.

On 17 October 2013 the Court indicated to the Government under Rule 39 of the Rules of Court that they should secure immediately, by appropriate means, inpatient treatment for the applicant for her health condition.

On 21 October 2013 the applicant was admitted to the Poltava regional oncologic clinic for further examination and treatment.

On 1 November 2013 a panel of doctors at the clinic made a plan for the applicant to have surgery and scheduled it for 5 November 2013. The applicant refused to give her consent to the proposed treatment.

On 13 November 2013 the applicant again refused to consent to the medical intervention and treatment proposed by the doctors at the Poltava regional oncologic clinic. The refusal was witnessed by six witnesses, including the doctor in charge of her treatment. The applicant was returned to the SIZO’s medical unit for further supervision and non-surgical treatment, which included taking prescription pills.

On 25 November 2013 the applicant was taken to the Poltava regional psychiatric hospital for observation in connection with signs of a possible mental disorder. On 2 December 2013 she was returned to the SIZO after she was found to be of sound mind and that she had attempted to simulate a mental disorder. The applicant continued to accept the treatment provided to her in the SIZO.

On 14 March 2014 the District Court found the applicant guilty of financial frauds and of incitement to bribery. It sentenced her to five years’ imprisonment but released her from serving that sentence pending three year probation period. The District Court further changed the preventive measure against her from pre-trial detention to a written undertaking not to abscond. The applicant was released on the same day.

On 10 June 2014 the Government informed the Court of the applicant’s release, following which the Court lifted the interim measure.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised complaints under Article 13 of the Convention.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney

The case originated in an application (no. 13566/13) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Lithuanian national, Mr Kęstutis Martuzevičius (“the applicant”), on 22 February 2013.

The applicant was represented by Mrs Baba of Central Law Practice, a lawyer practising in Wembley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms A. McLeod of the Foreign & Commonwealth Office. By letter dated 27 June 2013 the Lithuanian Government were asked to notify the Court by 14 August 2013 if they intended to intervene. They did not reply to this letter.

On 20 June 2013 the application was communicated to the Government.

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

The applicant, a Lithuanian national born in 1962, entered the United Kingdom in 1996. On 22 April 2010 the Deputy Prosecutor General in Lithuania issued a European Arrest Warrant (“EAW”) in which he was accused of having committed twenty-two dangerous felonies.

The applicant was arrested pursuant to the EAW in June 2011 and detained in HMP Belmarsh.

On 13 October 2011 the Magistrates’ Court ordered the applicant’s extradition to Lithuania. The applicant applied to the High Court to have the order set aside on two grounds: first, that the lapse of time since the commission of the alleged offences would render his extradition unjust and oppressive; and secondly, that his extradition would violate Articles 2 and 3 of the Convention because, if returned to Lithuania, he would be at risk of reprisals by a notorious criminal organisation.

In August 2012 a doctor at HMP Belmarsh notified the applicant’s representative that he was suffering from paranoid delusions and that he had been referred to Broadmoor High Security Psychiatric Hospital. A psychiatric report prepared on 6 November 2012 recorded that he had been suffering from depression since July 2012, that he was suffering from a delusional disorder and that he should be transferred to Broadmoor for treatment.

However, the authorities at Broadmoor did not accept that he should be transferred there. The applicant’s legal representatives subsequently obtained a report from another psychiatrist, who noted that the applicant appeared to be seriously depressed, that he was suffering from a delusional disorder, and that there was a risk of suicide. The psychiatrist expressed some surprise that the applicant’s transfer to Broadmoor had not been granted and suggested that the refusal decision from Broadmoor should be appealed.

The High Court hearing was listed for 11 December 2012. The applicant sought an adjournment in order for a full psychiatric report to be obtained.

On 11 December 2012 the High Court refused the application for an adjournment. It also refused to set aside the order of the Magistrates’ Court and refused to grant the applicant permission to appeal to the Supreme Court.

The High Court’s consideration of how the applicant’s mental health condition would be affected by extradition and the treatment that would be available to him in Lithuania was limited to the following paragraph:

“As far as his mental state is concerned, there is evidence before us that the reports on his state, if not already forwarded, will be forwarded and any necessary treatment will be available to him either in hospital if that is necessary or perhaps as an outpatient if he is on bail.”

A psychiatric report dated 6 January 2013 recorded that the applicant was suffering from a serious mental illness which required treatment in hospital and which he could not explain by malingering. The applicant sought to re-open the appeal on the basis of this report. However, on 19 February 2013 the High Court refused to certify a point of law of general public importance and thus refused to re-open the appeal.

On 21 February 2013 the High Court stayed the applicant’s extradition until four o’clock GMT on 27 February 2013 to enable him to apply to this Court for an interim measure under Rule 39 of the Rules of Court.

On 22 February 2013 the applicant’s legal representatives lodged an application before this Court on behalf of the applicant and requested an interim measure to prevent his extradition to Lithuania.

On 26 February 2013 the Court asked the Government to provide, by twelve o’clock noon GMT on 27 February 2013, a transcript of the High Court hearing of 11 December 2012 and at the same time to confirm whether or not any assurances had been received from the Lithuanian Government regarding the availability of mental health treatment in detention centres in Lithuania. The Government duly submitted a copy of the transcript and confirmed that there was no record of any assurances on the applicant’s file.

On 27 February 2013 the Acting President of the Section decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be extradited to Lithuania until further notice.

By letter dated 28 February 2013 the Court asked the Government to respond to the following questions by 21 March 2013:

“1. Are your Government aware of the medical report by Dr Andrew Sutherland Horne of 6 January 2013?

How do your Government respond to Dr Horne’s opinion that the applicant should be transferred to Broadmoor Hospital?

In your Government’s view, would the applicant have access to adequate mental health services upon extradition to Lithuania:

(a) in detention pending trial?

(b) if he were found not fit to plead?

(c) if he were to be tried and convicted?

Does the applicant have continuing family and/or personal ties to Lithuania?”

The Government replied on 20 March 2013. In their letter they informed the Court that the only parties in extradition cases were the defendant and the Issuing Judicial Authority. As a consequence, the Government had not been represented as a party in the present extradition proceedings and were not in a position to provide the additional information requested.

Following communication of the applicant’s case on 20 June 2013, the Prison Service re-referred the applicant to Broadmoor as there had been no change in his mental health condition.

On 15 January 2014 the applicant’s representatives notified the Court that he had been admitted to Broadmoor.

However, the applicant’s mental health condition subsequently improved significantly and on 13 June 2014 his transfer was ordered from Broadmoor Hospital to HMP Belmarsh. The Government also obtained a number of assurances from the Lithuanian Government: first, given the length of time he had spent in remand in the United Kingdom, there was a very real prospect that upon his return to Lithuania the applicant would be released during the pre-trial investigation stage; secondly, if he were to be remanded in custody and his health were to deteriorate, he would be hospitalised immediately in the psychiatric department of the central prison hospital; thirdly, if he were to remain in an ordinary custodial facility, he would be held in a prison which had psychiatric services available; fourthly, if his fitness to plead were to be in issue, he would be subject to forensic psychiatric examination; fifthly, there would be provision for compulsory or voluntary hospitalisation for treatment of the applicant’s mental health; and finally, if the applicant were convicted and sentenced and continued to require specialist psychiatric care, he would be sent to a facility specifically adapted for convicted persons with special needs.

Part I of the Extradition Act 2003 deals with extradition to Category 1 territories which, by designation of the Secretary of State, include all the member states of the European Union which operate the European Arrest Warrant system. Lithuania is therefore a Category 1 territory.

Section 21 of the Act requires the judge at the extradition hearing to decide whether a person’s extradition would be compatible with Convention rights within the meaning of the Human Rights Act 1998. If the extradition would be incompatible, then the judge is required to order the person’s discharge. Section 25 provides that if the physical or mental condition of the persons whose extradition is requested is such that it would be unjust or oppressive to extradite them, then the judge must discharge them.

If the judge at the extradition hearing orders the person’s extradition, section 26 provides for a right of appeal to the High Court. Section 32 provides for a right of appeal to the House of Lords against a decision of the High Court, with the leave of either the High Court or the House of Lords, which leave shall only be granted if the High Court has certified that the case involves a point of law of general public importance and the Court granting leave considers that the point ought to be considered by the House of Lords.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations);Pecuniary damage - reserved (Article 41 - Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants are sisters who were born in 1987 and 1992 respectively and live in P.

In June 1997 the applicants, represented by their mother V.L., concluded a real estate agreement with B.P. in which they expressed their intention of buying a villa of 87 square metres and the adjacent courtyard of 624 square metres in V., a seaside neighbourhood of P. (hereinafter: the “house”). The agreement stated that the house was in poor condition as certain individuals had lived there for several years without any legal basis and had ruined the furniture and installations.

The agreement was formalised in a real estate purchase contract of 17 December 1997 by which the applicants acquired ownership of the house for an amount of 450,000 Croatian kunas (HRK).

On 26 November 1999 the applicants registered their ownership of the house and the plot of land in the land register in equal shares.

On an unspecified date V.L. requested from the relevant Social Welfare Centre (hereinafter: the “Centre”) the authorisation to sell the house owned by the applicants, such authorisation being required under the relevant domestic law in cases where a parent wishes to dispose of a child’s property (see paragraph 39 below).

As a result of that request, on 10 April 2000 V.L. and her husband Z.L. (the father of the second applicant) were interviewed at the Centre. They stated that they had bought the house in 1997 for HRK 450,000 and that they had already spent approximately 80,000 Deutsche marks (DEM) renovating it. However, the house required some further investment for which they lacked the necessary means and thus they intended to sell it and to live with one of their parents. They further explained that they owned a retail business and that they had no problems with their children, who both had excellent marks at school. V.L. and Z.L. also promised that they would open a bank account on behalf of their children, into which they would deposit the money from the sale of the house. They pointed out that they had contacted a real estate agency, which was looking for a potential buyer. They also agreed that V.L. would conclude the sale contract once they had managed to find a buyer.

In February 2001 Z.L. was arrested and held in detention in connection with a suspected attempted murder and the unlawful possession of firearms. He was later indicted on the same charges in the P. County Court (Županijski sud u P.), which on 10 October 2001 found him guilty and sentenced him to six years’ imprisonment. During the criminal proceedings his defence lawyer was M.I, a lawyer practising in P.

On 15 October 2001 M.I. submitted a request to the Centre seeking authorisation for a real estate swap agreement between the applicants and a certain D.M., who was in fact M.I.’s mother-in-law. He provided powers of attorney signed by V.L., Z.L. and E.B. (the father of the first applicant) authorising him to obtain the Centre’s consent to a swap real estate agreement.

Together with his request, M.I. provided a draft swap agreement stipulating that D.M. would transfer to the applicants her four-room flat of 78.27 square metres, situated on the fourth floor of a residential building in P. (hereinafter: the “flat”), while the applicants would transfer their ownership of the house to D.M. The draft swap agreement also stated that the values of the properties to be exchanged were the same and that the parties waived their right to object that they had sustained damage as a result of giving the exchanged property away at below half of its real value. M.I. also submitted another document, a supplement to the swap agreement, in which the parties to that agreement acknowledged that V.L. and Z.L. had invested significant sums of money in the house and that, on the basis of the amounts shown on certain available invoices, D.M. would compensate them for those investments.

V.L. was invited to the Centre for an interview on 23 October 2001 in connection with M.I.’s request. She stated that her husband had meanwhile been imprisoned and that their retail business had started to go badly, leading her to close it in August 2001. She also explained that she was unemployed and that this situation had affected the applicants, who were no longer doing so well at school. She further stated that she had been obliged to borrow money to pay the bills for the house and that the overall situation had prompted her and Z.L. to exchange the house for a flat in P. with the additional obligation on the part of the flat-owner to pay them the difference in value between the two properties, amounting to some 100,000 DEM according to her estimate. Lastly, V.L. pointed out that E.B., the father of the first applicant, had given his consent to the swap agreement. She also undertook to register the ownership of the flat in the applicants’ names.

On 13 November 2001 the Centre gave its authorisation for the swap agreement, whereby the applicants would transfer their ownership of the house to D.M. while the latter would transfer her ownership of the flat and a garage to the applicants. The decision drafted by the Centre specified that V.L. was obliged to provide the Centre with a copy of the swap agreement.

In its statement of reasons behind the decision, the Centre pointed out that it had taken note of the powers of attorney provided to M.I. by the applicants’ parents, V.L.’s statement of 23 October 2001, birth certificates for the applicants and land registry certificates for the properties, and the draft swap agreement. It had also noted the fact that Z.L. had been convicted at first-instance of the offence of attempted murder and unlawful possession of firearms. Based on this information, the Centre concluded that the swap agreement was not contrary to the best interests of the applicants since their property rights would not be extinguished or reduced as they would become the owners of a flat which would provide fully suitable living accommodation.

On the same day, the Centre gave its authorisation for the supplementary document to the swap agreement by virtue of which D.M. would pay the applicants 5,000 DEM each on account of the difference in value between the exchanged properties. As a condition of this decision, V.L. was obliged to provide the Centre with a bank statement attesting that the payment had been made. In its statement of reasons, the Centre referred to a request made by V.L. for the conclusion of a supplement to the swap agreement and the statement she had given to the Centre. The Centre also found that this would not be contrary to the interests of the applicants.

The above two decisions issued by the Centre on 13 November 2001 were forwarded to the lawyer M.I.

On 16 December 2001 the applicants, represented by V.L., concluded the real estate swap agreement with D.M. before a Public Notary in P., and the applicants thereby transferred their ownership of the house to D.M. while the latter transferred her ownership of the flat and the garage to the applicants. The swap agreement contained a clause under which the parties agreed that there was no difference in the value of the exchanged properties, and that they had no further claims on that account. It also set down the value of the properties at some HRK 400,000.

Based on this contract, the applicants and D.M. duly registered their ownership of the properties with the land registry.

On 28 December 2001 lawyer M.I. submitted to the Centre a certificate from the land registry showing that the applicants had registered their ownership of the flat and bank statements showing that they had received the amount of 5,000 DEM each.

On 2 and 12 March 2002 the P. Tax Office (Ministarstvo financija, Porezna uprava) declared a tax obligation of HRK 20,000 for each of the parties ‒ based on the declared value of the transaction involved in the swap agreement ‒ which was divided by half in respect of the applicants, who were thus obliged to pay HRK 10,000 each.

On 17 November 2004 the applicants, represented by Z.L. as their legal guardian, brought an action against D.M.in the P. Municipal Court (Općinski sud u P.), asking the court to declare the swap agreement null and void (ništav).

During the proceedings the applicants argued that the swap agreement had effected the exchange of the ownership of the house ‒ which comprised two flats, each measuring 87 square metres, was only five minutes’ walk from the sea and was worth approximately 300,000 euros (EUR) ‒ for a flat and a garage worth in total no more than EUR 70,000. Given that at the time when the contract was concluded they were only fourteen and nine years old, the Centre should have defended their rights and should not have given its consent to a swap agreement of that kind. In this respect they pointed out that section 265 § 1 of the Family Act listed specific instances in which the property of a minor could be disposed of, and that no such instance had existed in their case. Moreover, the Centre had failed to carry out an on-site inspection or to commission an expert report which would have allowed it to estimate the value of the house and adopt a proper decision concerning the request for authorisation of the swap agreement. The applicants therefore considered that, by failing to take such vital measures, the Centre had allowed an unlawful and immoral property exchange to be executed. In their view, this had resulted in ab initio invalidity of the exchange. The applicants also pointed out that their legal guardian Z.L. had not been party to the discussions concerning the swap agreement. They therefore proposed that the trial court examine several witnesses, including the participants to the swap agreement, the employees of the Centre, the first applicant ‒ who was by that time already seventeen years old ‒, and commission an expert report establishing the value of the properties.

On 1 March 2005 the P. Municipal Court dismissed the applicants’ request to take any of the proposed evidence on the grounds that the case could be decided on the basis of the documents from the case file.

On 15 April 2005 the P. Municipal Court dismissed the applicants’ civil action. It argued that it was not in a position to re-examine the Centre’s decision to authorise the swap agreement, since that was an administrative decision which could only have been challenged in administrative proceedings. Thus, given that such a decision existed, the P. Municipal Court could not find the swap agreement to be unlawful or contrary to the morals of society. It also pointed out that the swap agreement could possibly be only a voidable contract (pobojan) but no claim to that effect had been made by the applicants.

The applicants challenged that judgment by means of an appeal lodged before the P. County Court, arguing that the first-instance court had failed to examine any of their arguments and had thus erred in its decision concerning the validity of the swap agreement.

On 19 March 2007 the P. County Court dismissed the applicants’ appeal as ill-founded, endorsing the reasoning of the first-instance court.

The applicants then lodged an appeal on points of law before the Supreme Court (Vrhovni sud Republike Hrvatske) on 8 June 2007. The second applicant was represented by V.L., and the first applicant, having in the meantime reached the age of majority, was able to conduct the legal action herself.

In their appeal on points of law the applicants argued, inter alia, that the P. had negligently allowed the swap agreement to be concluded without taking into account the value of the properties and the nature of their family circumstances at the time, namely the fact that Z.L. was in detention and that V.L. was known as a person with a problem of drug abuse.

On 19 December 2007 the Supreme Court dismissed the applicants’ appeal on points of law as ill-founded and endorsed the decisions of the lower courts, which found that the civil courts were not in a position to re-examine the Centre’s final administrative decision allowing the conclusion of the swap agreement. Moreover, it did not appear to the Supreme Court that the Centre had failed in its protection of the best interests of the applicants.

The applicants then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating their previous arguments before the lower courts. The second applicant was represented by V.L.

On 9 June 2010 the Constitutional Court declared the applicants’ constitutional complaint inadmissible as manifestly ill-founded.

A report by the Ministry of Social Policy and Youth (Ministarstvo socijalne politike i mladih) of 30 January 2014 submitted to the Court suggests that the Centre was not aware of V.L.’s drug abuse problem nor had it been alerted concerning M.I.’s conflict of interest.

According to a report by the Ministry of Health (Ministarstvo zdravlja) of 7 February 2014, V.L. started her drug addiction therapy on 12 December 2003 and terminated it in 2004. She then started again in 2007 and she was still undergoing therapy at the present time.

The information available from the e-land registry concerning property in Croatia shows that the house and the land on which it is located measure 225 square metres with an adjacent courtyard of 476 square metres, all of which is registered in the name of D.M. as owner.


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant, Mr Samuil Robertov Hadzholov, is a Bulgarian national, who was born in 1954 and lives in Zlatograd. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

Until 1987 the applicant worked as a coal miner for Gorubso – Second Mining Department Zlatograd (a State enterprise, transformed into a State-owned company in the early 1990s and later, apparently in 2002, privatised following the opening of winding-up proceedings; currently a joint-stock company Gorubso Zlatograd AD). In 1988 the applicant brought proceedings against the mining company seeking payment of compensation for the occupational disease he had developed as a result of exposure to hazardous conditions in the mine. On 26 November 1988 the Regional Court granted the claim. The company was ordered to pay a sum of 3,566 old Bulgarian levs (BGL) (the equivalent of around USD 1,800) as compensation, as well as monthly payments for a period of 26 years, from October 1988 to March 2014, the amounts varying between BGL 197 and BGL 80, depending on the period.

In 1989 the applicant requested that the enforcement judge institute enforcement proceedings against the debtor. It appears that in May 1989 the enforcement judge attached the company’s bank accounts. There is no information in the case file about the development of the enforcement proceedings between May 1989 and February 2003. In particular, there is no evidence about requests made by the applicant for enforcement measures, claims lodged in the winding-up proceedings relating to the mining company’s assets, or information sought by the applicant on the payment of the debt.

On 17 February 2003 the enforcement judge discontinued the enforcement proceedings on the basis of Article 330 § 1 (д) of the Code of Civil Procedure 1952, as the applicant had not requested enforcement actions for more than two years.

On 19 October 2005 the applicant and his lawyer consulted the file of the enforcement proceedings. The applicant submits that only then did he find out that the proceedings had been discontinued in 2003, and that he was shown a document – the enforcement judge’s register of 1989 for the incoming and outgoing amounts – which indicated that in 1989 the mining company had paid the applicant an amount of BGL 5,234 by means of bank transfer. The applicant sent a letter of 21 October 2005 to the enforcement judge, in which he maintained that he had never received the aforementioned amount and that he was unable to obtain a copy of the payment order as the case file had been destroyed.

By a letter of 27 October 2005, the enforcement judge informed the applicant that, as was clear from the information in the file, on 13 April 1989 the applicant had received payment from the mining company in the amount of BGL 5,234 (representing the initial compensation of BGL 3,566 plus several monthly payments). In a letter of 3 November 2005, the bank which had effected the payment on 13 April 1989 informed the applicant that the documents concerning the money transfer had already been destroyed as the ten-year time-limit for keeping them had expired.

In November 2005 the applicant submitted a complaint to the prosecution authorities requesting an investigation into the circumstances surrounding the payment of 13 April 1989. In a letter of 11 November 2005, the enforcement judge informed the investigation authorities that, as could be seen from the enforcement judge’s register of 1989, on 13 April 1989 the applicant had received payment from the mining company in the amount of BGL 5,234. As to the payment orders of that date, the enforcement judge noted that they had been destroyed as the ten-year time-limit for keeping payment documents under the Accounting Act had expired.

On 24 November 2005 the public prosecutor refused to open criminal proceedings, noting that a long period of time had elapsed since the alleged offence had been committed, and that the time-limits for keeping the relevant documents at the respective institutions had already expired. The applicant appealed against that decision on 2 December 2005. On 7 December 2005 the hierarchically superior prosecutor upheld those conclusions.

In December 2006 the applicant requested that the Zlatograd District Court issue a document certifying that the case file of the enforcement proceedings had been destroyed. In a letter of 13 December 2006 the President of the District Court informed him that the file had not been destroyed and that he and his lawyer had consulted it.

In the period between 1990 and 1999 inflation in Bulgaria was running high and the national currency was depreciating. As of the entry into force of a law on 5 July 1999, BGL 1,000 became 1 new Bulgarian lev (BGN). The applicant submitted that due to the enforcement judge’s inactivity over the years and the inflation and the devaluation of the national currency, the total amount of monthly payments he was entitled to receive for the period from May 1989 to 5 July 1999 had devalued to BGN 21.71 (approximately 11 euros (EUR)). He claimed that the amount he was entitled to receive from 5 July 1999 to March 2014 had devalued to BGN 18.17 (approximately EUR 9).

In accordance with Article 400 et seq. of the Code of Civil Procedure 1952 (“the 1952 Code”), in force at the material time, enforcement proceedings against State enterprises were to be directed firstly towards their bank accounts in State banks. When payment upon a writ of execution against the State enterprise could not be received because of lack of such bank accounts or of available funds in them, enforcement was to be carried out by an enforcement judge. Certain articles of property belonging to the State enterprises could not be subject to enforcement, other than in winding-up proceedings. These provisions were repealed in December 1997.

Article 323 of the 1952 Code provided that enforcement proceedings against private parties were to be instituted upon the request of the creditor. The creditors were under the obligation to state against which debtor’s possessions (bank accounts, immovable property, and so forth) they would like the enforcement to be directed (Article 323 § 3). Throughout the proceedings the creditors could request the enforcement actions to be directed against different possessions of the debtor. If the creditors did not request enforcement actions to be undertaken for a period of two years, the enforcement proceedings had to be terminated (Article 330 § 1 (д)). The new Code of Civil Procedure 2007 (“the 2007 Code”), which came into force on 1 March 2008, contained similar provisions.

Section 45 of the Accounting Act 1991 stipulated that the accounting registers and reports were to be kept for ten years. This provision was superseded in January 2002 by section 42 of the Accounting Act 2002.

By virtue of Section 91 of the Organisation of the Judiciary Act 1976, the enforcement judges were part of the district courts system. Under the Regulations on the Organisation and Work of the District, Regional and Military Courts 1977, the general statutory time-limit for keeping the case files of archived cases in the district courts was five years. The Judiciary Act 1994, which superseded the Organisation of the Judiciary Act 1976 and which was in force until August 2007, as well as the regulations adopted on its implementation contained similar provisions.


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

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1933 and lives in Moscow.

On 15 March 1994 the Russian Ministry of Railways (“the MPS”) approved the construction of garages alongside the Oktyabrskaya railway in Moscow. The decision read as follows:

“Taking into consideration that the garages on [a 1.3 km] stretch of the Oktyabrskaya railway must carry out the function of a noise shield, the Moscow testing section of the Oktyabrskaya railway of the Ministry of Railways approves the construction of garages 5.5 metres away from the outer rail, on the following conditions:

the garages shall be built alongside the railway using reinforced concrete, in a line;

the construction of the garages shall be in strict compliance with technical safety rules for construction works in a railway zone;

10% of the garages shall be allocated to railway employees as compensation for the use of railway territory.”

On 14 April 1994 the Main Directorate for Architecture and Planning of the Architecture and Urban Development Committee of the Government of Moscow (Главное архитектурно-планировочное управление комитета по архитектуре и градостроительству г. Москвы) (hereinafter “the Moscow architecture and planning directorate”) issued a town-planning assignment (градостроительное заключение) for the design and construction of garages alongside the Oktyabrskaya railway. The document mentioned, in particular, that the land on which the garages were to be built belonged to the City of Moscow (Горземфонд) and that the garages were intended to serve as a noise shield along the railway line.

On 31 October 1994 the local administration (Управление муниципального округа “Марфино” Северо-Восточного административного округа Правительства Москвы) confirmed that they had no objections to assigning the land in question for the construction of garages by garage-building cooperative “Kashenkin Lug” (garage owners’ partnership, “the GSK”), in accordance with the town-planning assignment.

On 3 December 1994 the applicant joined the GSK and paid his share for a garage (6,500 United States dollars (USD) at the material time).

The garages were constructed accordingly, and on 30 December 1996 the local administration’s inspection board certified that one-storeyed capital (immovable) garages built by the GSK were ready for use. On 31 December 1996 the prefect of the local administration gave his approval.

Garage no. 169 was allotted to the applicant. The local administration issued him with a certificate attesting to his possession of the said garage as from 3 December 1994 (свидетельство о владении гаражным боксом). The applicant, however, never had his property rights to the garage registered in the real estate register.

On 13 January 2000 Moscow Land Committee concluded a lease agreement with the GSK in respect of the land occupied by the garages. The lease provided that the land plot was allocated for further use of 324 garage boxes and 86 open parking spaces situated on it. That lease agreement remained in force until 31 August 2004.

On 3 March 2003 the Federal State unitary enterprise “Oktyabrskaya Railway of the MPS” (“the Oktyabrskaya Railway of the MPS”) concluded a lease agreement with the GSK in respect of the land occupied by the garages. Under the agreement the lease was valid until 28 February 2004. The parties subsequently extended the validity of the agreement on three occasions: until 28 July, 30 September and 31 December 2004 respectively. Thereafter they tacitly renewed the agreement for an indefinite duration. The GSK continued to pay the rent due under the lease until 31 July 2007.

Under clause 1.3 of the lease agreement, the land plot was allocated for placement of garage boxes. Clause 2.2.5 of the agreement proscribed the construction of permanent structures on the land and provided that temporary structures could be built only upon written approval by the Oktyabrskaya Railway of the MPS. Clause 2.2.10 stipulated that at the end of the lease, all temporary structures were to be removed. Clause 5.2 provided that the lease could be terminated unilaterally in the event of breach of the terms of the lease agreement by the GSK or failure to pay the lease for two months, and in the event that the land in question was required for the purposes of the railway, with one month’s prior notice. Clause 6.2 stipulated that the GSK had no right to modify federal ownership of railway rights of way.

In the meantime, on 18 September 2003 the Russian Government decided to establish an open joint stock company called “Russian Railways” (“the RZD”), to succeed the MPS.

On 5 March 2008 the Federal Agency for State Property Management responsible for Moscow signed a lease agreement with the RZD in respect of the plot of land on which the garages were situated.

On 14 July 2010 the RZD notified the GSK of the unilateral termination of the lease agreement, with reference to a need that had arisen to use the land in question for the purposes of the railway. The RZD invited the GSK to vacate the plot by 20 August 2010.

The GSK refused to do so and provided the RZD with a list of its members, from which it transpired that the applicant was the owner of garage no. 169.

On 25 April 2011 the RZD notified the applicant of the necessity to vacate the garage. The applicant refused to comply.

On 27 September 2011 the RZD brought court proceedings against the applicant seeking the removal of garage no. 169 from the plot in question.

On 21 November 2011 the Ostankinskiy District Court of Moscow (“the District Court”) granted the above claim and ordered the applicant to remove the garage within ten days of the judgment becoming final. The District Court further authorised the RZD to remove the garage on their own if the applicant failed to comply with the court’s decision. The District Court held as follows:

“It follows from the case-file material that on 3 March 2003 the Federal State unitary enterprise “Oktyabrskaya Railway of the MPS” and the GSK signed a lease agreement in respect of a plot of land situated within a railway right of way [полоса отвода железной дороги] for the purposes of reimbursement of its maintenance costs, valid until 28 February 2004, which was subsequently extended on the basis of additional agreements. Pursuant to clause 1.3 of the above lease agreement the land was allocated for the construction of garage boxes. The construction of permanent structures on the land was prohibited (clause 2.2.5). At present the lease agreement has been terminated, which is confirmed by notifications of 14 July and 26 August 2010 on the unilateral termination of the lease agreement with reference to the necessity to use the plot in question for the purposes of the railway.

The case file contains a certificate provided by the plaintiff to the effect that the GSK had [paid rent under the lease] until 31 July 2007, and that since then no payments had been made for the use of the plot of land.

The procedure for the use of land plots classified as federal property is determined by the Government of the Russian Federation in accordance with section 9 of Federal Law no. 17-FZ of 10 January 2003 on the Railway System in the Russian Federation.

Government Resolution no. 264 of 29 April 2006 stipulates that the use of land classified as federal property and provided to the RZD must be based on a land lease agreement between the Federal Agency for State Property Management (its territorial body) and the RZD.

Pursuant to Federal Law no. 17-FZ of 10 January 2003 on the Railway System in the Russian Federation, railway land is land used or intended for maintaining the activities of rail transport organisations and/or for buildings, constructions, structures and other rail transport facilities, including plots of land situated within railway rights of way and safety areas.

Plots of land adjacent to railway tracks or intended for the placement of such tracks are classified as railway rights of way, as is land occupied by or intended for the placement of railway terminals, water drainage and protective facilities along railway tracks, communication lines, electric power supply facilities, production and other buildings, constructions, structures, equipment and other rail transport facilities.

The plot of land with cadastral number 77:02:21017:032 is intended for the operation and development of the railways, [it] is situated within a railway right of way ...

Before the lease agreement in respect of the railway right of way [between the RZD and the Russian Federation] was signed, the plot of land with cadastral number 77:02:21017:032 was classified as rail transport land in accordance with the Transport Land Act approved by decision no. 24 of the Council of Ministers of the Union of Soviet Socialist Republics of 8 January 1981; decision no. 3020-1 of the Supreme Soviet of the Russian Federation of 27 December 1991 on the division of State property in the Russian Federation; and Federal Law no. 153-FZ of 25 March 1995 on the Federal Railway System.

MPS decree no. 26 “Ts” of 15 May 1999 approved the procedure for the use of federal railway land within railway rights of way.

In accordance with this procedure, the size of a right of way is determined in accordance with standards and rules for the design of railway rights of way, approved by the MPS, as well as with design and budget documentation and general schemes for the development and reconstruction of federal rail transport facilities and stations.

The revision of the borders and size of rights of way, the withdrawal of temporarily unused plots of land and their reclassification from one category to another is carried out by the competent authorities with the agreement of the railways, pursuant to the legislation of the Russian Federation.

The court has established that on part of the plot of land with cadastral number 77:02:21017:032 in the right of way of the Oktyabrskaya railway ... there are garages, including garage no. 169. ...

No information has been provided from the Consolidated State Register of Real Estate Titles and Transactions in respect of the garage. No documents have been provided by the defendant or the GSK confirming their right to use the land underneath the garage either.

The RZD is the user of the plot of land in question. By virtue of Article 305 of the Civil Code of the Russian Federation it is entitled to seek the elimination of violations of its rights, namely the removal of the [applicant’s] garage from the plot.

To support his assertion about the lawfulness of his possession of the disputed garage, the defendant submitted to the court a certificate issued by the GSK confirming that he had paid in full his share for the garage. Also, at the request of the defendant the court joined to the case file the following evidence: a copy of the act certifying that the garages were ready for use; notification from the federal service for State registration, inventory and cartography responsible for Moscow about the absence of any information in the Consolidated State Register of Real Estate Titles and Transactions about the disputed plot; the approval by the prefect of [the local administration] of the inspection certificate issued in respect of the garages; correspondence from the Moscow section of the Oktyabrskaya railway of 25 November 1993 on the approval of the construction of the garages within the railway right of way; the town-planning assignment issued by the Moscow architecture and planning directorate on 13 April 1994; the decision of the federal service for State registration, inventory and cartography of 27 April 2011 refusing to issue a cadastral certificate for the disputed plot.

However, these documents do not prove that the applicant acquired property rights in respect of the garage, nor do they prove the lawfulness of the use of the land underneath it. The defendant’s garage [is] an unauthorised construction because it was built on a plot of land that was not allocated for that purpose in accordance with the procedure provided for by law and in the absence of permission issued by a competent authority, whereas a railway right of way can be used exclusively for the construction of rail transport facilities. The [documents provided by the defendant] do not prove that the garage was not an unauthorised construction, because the construction was carried out on land within a railway right of way and therefore was not intended for the building of garages. The approval by the prefect of the local administration of the inspection certificate does not confirm the existence of permission by the federal authorities to use the plot of land in question for building garages, regard being had [to the fact] that the owner of the plot is the Russian Federation and not the City of Moscow.

The management of land owned by the State, including giving permission for construction of immovable property, can be done only by the competent federal authority.

A garage for parking a car by an individual is not a rail transport facility, therefore a plot of land within a railway right of way cannot be considered to be intended for the construction of such a garage (garages).

Besides, the defendant has failed to submit evidence to the effect that the competent federal authority issued an administrative act on the transfer of a part of the land situated within a railway right of way to the defendant. It therefore follows that the plot of land was not provided to the defendant by the owner, and therefore at the present time the defendant has no legal grounds to use federal property.

The applicant would have acquired title to garage no. 169 had it not been an unauthorised construction.

Having assessed all the evidence in the case, taking into consideration [the fact] that the defendant did not acquire property rights in respect of the plot of land classified as federal property and located within a railway right of way, on which the disputed garage is situated, that the plot was provided for temporary use, and that it is being used at the present time without any contractual basis, the court comes to the conclusion that the rights of the RZD have been violated in that the plaintiff is prevented from using the land in accordance with its intended purpose. The court therefore considers that there are lawful grounds for granting the plaintiff’s claim for removal of garage no. 169 from the plot of land with cadastral number 77:02:21017:032 ...”

The applicant appealed. He claimed, in particular, that he was entitled to compensation.

On 10 February 2012 the Moscow City Court upheld the above judgment on appeal. The City Court held that the law did not provide for the possibility of claiming compensation for the demolition of an unauthorised construction.

On 3 April 2012 the Ostankinskiy District bailiffs’ service in Moscow instituted enforcement proceedings. The applicant was notified on 12 April 2012.

As the applicant refused to comply voluntarily with the judgment of 21 November 2011, as upheld on appeal on 10 February 2012, the RZD proceeded to demolish his garage.

On 13 June 2012 the Ostankinskiy District bailiffs’ service was informed accordingly.

On 19 June 2012 the enforcement proceedings were terminated.

According to the Government, in August 2013 the construction of the fourth main track of the Oktyabrskaya railway between Moscow and Khimki was completed on the land previously occupied by the garages of the GSK and was opened for circulation of the suburban electric train. In December 2014 noise-reduction barriers were installed along the Oktyabrskaya railway line in the area of the Marfino residential district.


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant’s details 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.


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Impartial tribunal);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits

The applicant was born in 1970 and lives in St. Gallenkappel, Switzerland.

Since 2004, the applicant and F.H. have been involved in legal disputes against each other concerning the property rights in 75% of the bearer shares in both EMK stock company (hereinafter “EMK”) and EMK Engineering stock company (“EMK Engineering”), companies resident and registered in Liechtenstein.

In September 2006 and April 2007 the Regional Court (Fürstliches Landgericht) ordered by way of an interim measure that F.H.’s entry in the commercial register as a member of the EMK and the EMK Engineering companies’ respective supervisory boards with power to represent those companies may not be cancelled.

On 10 June 2005 F.H. brought an action against the applicant in the Regional Court. He requested that the court oblige the applicant to hand over a specified number of bearer shares in EMK and in EMK Engineering and establish that the applicant did not hold and had never held any shares in those Liechtenstein companies. The action was served on the applicant’s counsel on 18 June 2005.

In a decision dated 15 July 2005 the Regional Court, following a hearing on 14 July 2005, dismissed the applicant’s objection to the Liechtenstein courts’ jurisdiction (file no. 02 CG.2005.163). It found that it had jurisdiction on grounds of location of assets (Vermögensgerichtsstand) to decide upon F.H.’s action. The applicant had assets in Liechtenstein, specifically claims for salary and fees against EMK and EMK Engineering, which both had their seat in Liechtenstein. Furthermore, F.H.’s action for restitution of the bearer shares in these corporations was of a pecuniary nature.

In a decision dated 1 February 2006 the Court of Appeal, in interlocutory proceedings, dismissed the applicant’s appeal of 6 September 2005 against the Regional Court’s decision of 15 July 2005.

Following a constitutional complaint of 22 February 2006, on 1 March 2006 the Constitutional Court granted the applicant’s application to have the Court of Appeal’s interlocutory decision be given suspensory effect. It further ordered the Regional Court not to hold any further hearings in the proceedings at issue until the Constitutional Court had taken its decision on the applicant’s constitutional complaint.

On 27 March 2007 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded (file no. StGH 2006/16).

Following the termination of the proceedings before the Constitutional Court, the Regional Court resumed the proceedings. It heard evidence from the parties, their counsel and twelve witnesses in person in hearings on 31 May, 28 June and 6 September 2007. It further took note of the written submissions of the parties and of numerous documents as well as of the case files in several related proceedings.

On 22 April 2009 the applicant asked the Regional Court to deliver its judgment, given that the oral proceedings had concluded on 6 September 2007.

On 28 December 2009 the Regional Court, in a judgment running to 66 pages, upheld F.H.’s action (file no. 02 CG.2007.114). It ordered the applicant to hand over a specified number of bearer shares in EMK and in EMK Engineering to F.H. and declared that the applicant did not hold and had never held shares in those companies.

Having regard to the evidence before it, the Regional Court considered that F.H.’s submissions regarding the question of who had been the owner of the shares in dispute had been more credible than that of the applicant. It found that the applicant’s mother, I.K., had never obtained ownership of the shares in question as there had not been a sales contract between her and F.H. She had been in possession of the shares in order to make a minority shareholder think that F.H. was no longer holding shares in the companies. The applicant had known this on conclusion of his contract with I.K. transferring the shares to him as a gift in 2003 at the latest. I.K. had not, therefore, been the owner of or authorised to transfer ownership of the shares to the applicant; the latter had not obtained ownership thereof for lack of good faith.

Following a hearing, on 27 May 2010 the Court of Appeal, endorsing the findings of the Regional Court, dismissed the applicant’s appeal dated 3 February 2010. It considered that the Regional Court had taken all evidence necessary for its decision. It further rejected new documentary evidence submitted by the applicant to support his allegations as inadmissible for having been submitted out of time in an attempt to protract the proceedings. The judgment was served on the applicant’s counsel on 30 June 2010.

In a judgment and decision dated 13 January 2011 the Supreme Court dismissed an appeal on points of law lodged by the applicant on 7 September 2010. It found that the lower courts had not made an error of law in the legal classification of the facts they had established, that they had not failed to take necessary evidence and that they had sufficiently reasoned their judgments. The judgment and decision were served on the applicant’s counsel on 25 January 2011.

On 18 February 2011 the applicant lodged a constitutional complaint (running to eighty pages plus annexes) with the Constitutional Court against the Supreme Court’s judgment and decision. Relying, inter alia, on Articles 6, 13 and 14 of the Convention and on Article 1 of Protocol No. 1 to the Convention, the applicant complained, in particular, about the length of the proceedings. He stressed that the outcome of the proceedings, to the duration of which he had not contributed, was of vital importance to him as it concerned his means of subsistence. He further submitted in that context that he had not had at his disposal an effective remedy, such as an application to speed up the proceedings, in order to enforce his Convention rights.

On 3 March 2011 the President of the Constitutional Court granted the applicant’s application to have his complaint given suspensory effect. The court reserved its decision on the costs arguing that the duty to bear the costs depended on the outcome of the main proceedings. The applicant would have only had to bear the decision fee if his constitutional complaint had been dismissed.

On 24 March 2011 F.H. lodged a submission in reply to the applicant’s constitutional complaint.

On 20 April 2012 the President of the Constitutional Court, B., informed the applicant that he, alongside Judges Bu., Sn., S. and W., would decide on his constitutional complaint in a hearing in camera on 15 May 2012.

On 8 May 2012 the applicant lodged a complaint alleging bias (running to twenty-seven pages plus annexes) against the five judges of the Constitutional Court called upon to decide on his complaint.

The applicant argued, in particular, that all of the five challenged judges had taken arbitrary decisions to his disadvantage and in breach of his Convention rights in relation to the previous injunction and other proceedings brought by him, and that the court, which was influenced by the executive, discriminated against foreign nationals such as the applicant.

The applicant further submitted that, for different reasons, the five judges of the Constitutional Court individually had not been impartial. As regards the court’s President, Judge B., the applicant complained that he had delayed the appointment of the judges who were to decide on his complaint. Moreover, he was a close friend of H., the court’s Vice President and brother of F.H., the party opposing the applicant in the proceedings at issue.

According to the applicant’s submission, Judge Bu. was biased because he worked for the Government drawing up expert reports on constitutional questions and giving seminars organised by the Government. He further worked with Judge H. on a regular basis.

Judge Sn., for his part, was not impartial as he was also a professor at the Liechtenstein University and had himself argued in a publication that judges should be appointed for life or for a long single term of office.

The applicant further stressed that Judge S. was a member of the supervisory board of a state-owned company and was therefore not independent and impartial.

Finally, Judge W. was a partner in a law firm with a lawyer against whom the applicant had brought proceedings concerning an inheritance. Another lawyer of that firm had already represented EMK and EMK Engineering. Moreover, Judge W. had previously worked as a lawyer in Judge H.’s law firm.

By a decision of 15 May 2012, the Constitutional Court, with the five judges whom the applicant had challenged for bias comprising the bench, dismissed the applicant’s complaints of bias.

The Constitutional Court stated that, in accordance with the principle that, if possible, a complaint of bias should not be decided upon by the challenged judge, the challenged judges, respectively, had not participated in the deliberations and the decision on the respective complaint alleging bias against them, which had been decided upon by the four remaining judges.

The Constitutional Court considered that the fact alone that several of the challenged judges had already taken part in prior decisions finding against the applicant did not suffice to substantiate that there were objectively justified doubts as to their impartiality for the purposes of Article 6 of the Convention. Moreover, the fact that the judges had been elected for five years did not compromise their impartiality. The applicant further had not substantiated that the executive had influenced the judges of the Constitutional Court in the present proceedings in any way. Nor did the fact that the judges concerned worked together with F.H.’s brother, the Vice President of the Constitutional Court, on a regular basis and were friends of the latter objectively cast doubts on their impartiality.

On the same day, on 15 May 2012, the Constitutional Court delivered its judgment (file no. StGH 2011/32). It granted the applicant’s constitutional complaint in part, finding that the applicant’s rights under Article 6 § 1 of the Convention and under the Liechtenstein Constitution to a decision within a reasonable time had been breached in the proceedings at issue. It ordered that Liechtenstein reimburse the applicant the fee for lodging the constitutional complaint (170 Swiss francs (CHF)) and bear the further court costs, that is to say, the judgment fee (CHF 1,700). It further ordered Liechtenstein to reimburse F.H., who, unlike the applicant, had been represented by counsel in the proceedings before the Constitutional Court, lawyers’ fees of CHF 2,694.40.

The Constitutional Court found that the total duration of the proceedings alone, which lasted almost seven years after the action of 10 June 2005 had been brought, did not justify the finding of a breach of the right to a decision within a reasonable time. It had to be noted in that context that almost two years had been necessary to deal with the interlocutory proceedings on the Liechtenstein courts’ jurisdiction brought by the applicant himself. Moreover, the courts had generally duly furthered the proceedings. There had only been a delay of two years and three months between the last hearing before the court of first instance on 6 September 2007 and the delivery of the judgment on 28 December 2009. Such a period of inactivity could no longer be considered as reasonable despite the complexity of the proceedings. Therefore, there had been a violation of Article 6 § 1 of the Convention.

The Constitutional Court noted that Liechtenstein law did not contain any provisions stipulating which consequences should result from a breach of the right to proceedings within a reasonable time. However, it would be utterly unjust if a breach of this constitutional right did not have any consequences as a result of a lack of legislative provisions. There was therefore a gap in the law which had to be filled by way of judicial interpretation. In the Constitutional Court’s view, it was therefore necessary to impose the costs of the proceedings (court costs and lawyers’ fees) upon the State in order to compensate for and redress the breach of the fundamental right at issue. However, the judgment fee could not be imposed on the State as a measure of compensation as Liechtenstein had to bear that cost anyway.

The Constitutional Court further dismissed the remainder of the applicant’s constitutional complaint. It considered that the applicant’s property rights had not been infringed in the proceedings at issue in which the opposing parties had both claimed to be the owner of the shares in question. Moreover, the Liechtenstein courts had been independent tribunals. In particular, F.H.’s brother, the Vice President of the Constitutional Court, had not taken part in the decision-making process of any of the Liechtenstein courts. Moreover, the findings of facts, the assessment of the evidence and the legal reasoning of the lower courts did not disclose any arbitrariness.

The judgment and the decision of 15 May 2012 were served on the applicant on 27 June 2012.


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

Alena Poláčková;Helen Keller;Johannes Silvis

The applicant was born in 1974 and lives in Krasnodar.

On 24 March 2009 the Military Court of Novorossiysk Garrison (Новороссийский гарнизонный военный суд) convicted the applicant of laundering of the proceeds of crime and sentenced him to a fine.

On 21 May 2009 the Military Court of the North-Caucasian Command (Северо-Кавказский окружной военный суд) acquitted the applicant on appeal.

On 21 July 2009 the Presidium of the Military Court of the NorthCaucasian Command, on a public prosecutor’s initiative, annulled the judgment of 21 May 2009 by way of supervisory review and remitted the case for fresh consideration to the appeal court. The annulment was reasoned by two main arguments: (1) unresolved contradictions between witnesses’ statements pertaining to the applicant’s criminal intent, and (2) absence in the appeal judgment of a summary of the arguments presented by the prosecution during the appeal proceedings.

On 6 August 2009 the Military Court of the North-Caucasian Command, acting on appeal, reversed the judgment of 24 March 2009 and remitted the case for fresh consideration to the trial court.

In 2010 the criminal proceedings against the applicant were terminated due to decriminalization of his actions under the domestic law.