Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Ms Dragica Komšo, is a Croatian national who was born in 1969 and lives in Benkovac. Her application was lodged on 13 May 2014.

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.

On an unspecified date in 2005 the applicant moved with her husband and two children from Drvar in Bosnia and Herzegovina to Benkovac, Croatia.

On 24 March 2005 the applicant applied to the Benkovac Social Welfare Centre (Centar za socijalnu skrb Benkovac; “the welfare centre”) for welfare benefits (pravo na pomoć za uzdržavanje). She stated that she was unemployed with no income and had two children who were still minors.

On 29 April 2005 a social worker warned the applicant about the need to provide accurate information about her assets and the obligation to report any changes to the welfare centre.

On 4 May 2005 the welfare centre granted benefits to the applicant and her family on account of their poor financial situation.

On 8 September 2005 the welfare centre received information from an anonymous source that the applicant’s husband had a shop in Drvar.

On 16 September 2005 the applicant informed the welfare centre about her husband’s shop. She admitted it existed but argued that she had considered it to be irrelevant because it had been robbed in February 2005 and its earnings had been very low. The applicant was warned about the possibility of criminal and financial liability for providing false statements.

On 27 September 2005 the welfare centre decided to stop her benefits. It established that the applicant and her family could provide for themselves through their own work, which in their case was the revenue from their shop. The decision was served on the applicant on 28 September 2005 and she did not lodge an appeal.

On the same day, 28 September 2005, the applicant visited the welfare centre and gave a statement about repayment of the social welfare benefits received between 24 March 2005 and 27 September 2005. She was warned that civil proceedings for reimbursement would be instituted against her. The applicant replied that she could not repay the due amount because the earnings from the shop were very low and that she and her husband planned to close it soon.

On 13 March 2007 the Benkovac Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Benkovcu; “the State Attorney’s Office”), lodged a civil action against the applicant in the Benkovac Municipal Court (Općinski sud u Benkovcu), relying on the fact that the applicant had failed to disclose that her husband owned a shop in Drvar when she had been granted welfare benefits. The State Attorney’s Office sought repayment of the 8,612 Croatian kunas (HRK) (about 1,170 euros (EUR)) she had received, together with statutory default interest.

The applicant argued during the proceedings that the shop had in fact not been in operation since the robbery on 24 January 2005 but that her husband had not been able to close it because of unsettled tax liabilities. She stated that they had not had the means to support themselves and their children.

At a hearing on 2 February 2010 the applicant’s lawyer asked for financial information on the husband’s shop to be obtained from the Drvar Tax Authority in order to assess whether the applicant had satisfied the statutory requirements for welfare benefits. The applicant’s lawyer did not provide any reasons why he or the applicant had not been able to obtain the document from the authorities of Bosnia and Herzegovina, nor did he claim that. The first-instance court dismissed the proposal, considering it to be aimed at delaying the proceedings because the data would have had to be requested from Bosnia and Herzegovina via the diplomatic service. The first-instance court pointed out that the applicant had had more than enough time since the institution of the proceedings to obtain the data in question if she deemed it relevant. At the same hearing the court also heard evidence, at the request of the applicant, from the director of the welfare centre, M.B.

On 15 February 2010 the Benkovac Municipal Court dismissed the State Attorney’s claim because the applicant had not been given an opportunity to repay the money within a specified time-limit.

On 28 April 2011, upon an appeal by the State Attorney’s Office, the Zadar County Court (Županijski sud u Zadru) quashed the first-instance decision and remitted the case for fresh consideration.

The court held two hearings in the new proceedings. At a hearing on 25 August 2011 the applicant’s lawyer submitted a certificate from the regional tax office in Drvar dated 4 September 2008 on the applicant’s husband’s unpaid tax liabilities. The State Attorney’s Office argued that the document was irrelevant because a certificate on unpaid tax liabilities could not be proof of earnings.

At a hearing held on 8 September 2011 the first-instance court heard evidence from the applicant’s husband at the request of the applicant. He stated that his wife had not disclosed information about their shop because she had been afraid it would prevent them from receiving welfare benefits. At the same hearing the first-instance court dismissed an application from the applicant to be heard in person because it held that she had submitted all her observations in her reply to the claim and that her request to give evidence was aimed at delaying the proceedings. The applicant’s lawyer had no further evidence and the first-instance court concluded the hearing.

On 19 September 2011 the Benkovac Municipal Court granted the claim and ordered the applicant to reimburse to the State HRK 8,612, together with statutory default interest, and to pay HRK 5,875 in costs and expenses for the proceedings. It held that while the applicant’s statements about her husband’s shop might in fact have been true, the fact remained that she had not disclosed that information voluntarily and had therefore fraudulently, and undoubtedly unlawfully, obtained social welfare benefits which the court could not make lawful.

On 17 October 2011 the applicant lodged an appeal with the Zadar County Court, reiterating her previous arguments. She stated that her husband had owned the shop at issue, not her, and that she had only been employed in her husband’s business, which had been ruined by the robbery.

On 19 June 2013 the Zadar County Court, relying on section 196 of the Social Welfare Act, dismissed the applicant’s appeal on the grounds that she had not disclosed the fact that her husband had owned a shop, and that her arguments concerning the actual state of the business and her poor financial situation were of no relevance.

The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), alleging that her right to a fair hearing had been violated because the first-instance court had disregarded her request to obtain the data on her husband’s shop from the Drvar Tax Authority, thus failing to correctly establish all the circumstances of her case. She also alleged that she had been discriminated against.

On 17 December 2013 the Constitutional Court declared her complaint inadmissible as manifestly ill-founded.

The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/1991, 91/1992, 112/1999, 81/2001, 117/2003, 88/2005, 84/2008, 96/2008, 23/2008, 57/2011, 148/2011 consolidated text), as in force at the material time, provided as follows:

“Each party is obliged to provide facts and present evidence on which his or her claim is based or to refute the statements and evidence of his or her opponent.

“Parties referring to a document as proof of a statement are obliged to submit that document themselves.

If the document is in the possession of a state authority or a legal or physical person vested with public authority, and the party is not able to arrange for the document to be handed over or shown, the court shall itself obtain the document upon a motion by the party.”

The relevant provision of the Social Welfare Act (Zakon o socijalnoj skrbi, Official Gazette nos. 73/1997, 27/2001, 59/2001, 82/2001 and 103/2003), as in force at the material time, provided as follows:

“A beneficiary who was granted allowance on the basis of a decision of the Social Welfare Centre shall compensate the damage if:

- on the basis of false or inaccurate data which he or she knew or should have known to be false or inaccurate, or in some other unlawful manner, he or she was granted an allowance to which he or she was not entitled, or he or she was granted this allowance in an amount greater than the amount to which he or she was entitled,

- he or she was granted an allowance because he or she failed to report a change that affects the loss or the scope of the entitlement, and he or she knew or should have known about this change.”


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicants, Mr Maksut Paksoy, Ms Güler Ayabakan, Ms Alime Aydede, Ms Mebzul Dalbudak, Mr Ahmet Melih Dedeköy, Ms Mahiser Şamlıoğlu, Mr Mustafa Sezdi, Mr Hacı Abdi Sezdi, Mr Mükremin Sezdi, Ms Ulviye Sezdi (Birol), Ms Dürdane Sezdi (Saydam), Ms Emine Sezdi (Şentürk), Mr İhsan Yazıcı, Mr İsmail Mehmet Yazıcı and Ms Ayşe Yazıcı, are fifteen Turkish nationals. They were born in 1940, 1950, 1932, 1945, 1980, 1948, 1943, 1952, 1954, 1956, 1947, 1943, 1934, 1967 and 1968 respectively. They were represented before the Court by Ms Bahar Argın, a lawyer practising in Istanbul.

s, may be summarised as follows.

A plot of land in Avcılar, in the Merkez District of Istanbul, was registered in the land register as plot no. 23, parcel no. 4354, in the name of Maksut Paksoy and Ömer Paksoy, the applicants’ predecessors.

In 1978, the plot of land in question was designated as a primary school area in the local land development plan. The designation of the plot of land remained unchanged in subsequent plans drawn up between 1978 and 2007.

On 26 March 2007 the applicants applied to the municipality to have the local land development plan altered. On 8 October 2007 the municipality rejected the applicants’ request.

On 3 January 2008 the applicants instituted proceedings before the Istanbul Administrative Court seeking to have the local land development plan annulled. On 15 January 2008 the Istanbul Administrative Court dismissed the applicants’ case.

On 11 March 2008 the applicants instituted another set of proceedings before the Küçükçekmece Civil Court of First Instance, claiming compensation for the decrease in the market value of the land and the long-term uncertainty about the fate of the land. On 16 July 2008 the court dismissed the case, holding that the authorities had not seized the land in question. An appeal and a request for rectification lodged by the applicants were subsequently rejected by the Court of Cassation, and the decision became final on 15 October 2009.

According to section 3 of the Zoning Act (Law no. 3194), land cannot be used for any purpose other than that indicated in the local land development plans.

Section 10(1) of the same Act provides that the municipalities should prepare their five-year zoning programmes within three months of the entry into force of local land development plans. Land which falls within those programmes and which is accordingly assigned to the relevant public administrative authorities should be expropriated during the period in question. A description of the relevant domestic law may be found in Hüseyin Kaplan v. Turkey (no. 24508/09, §§ 25 and 26, 1 October 2013).

The object of Law no. 6384 was to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings, and non-enforcement or delayed enforcement of judicial decisions. A Compensation Commission was set up for that purpose. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

The competence ratione materiae of the Compensation Commission was subsequently extended by a decree which came into force on 16 March 2014. The decree extended the competence of the Compensation Commission to the examination of other complaints, such as alleged restriction of the right of detainees to correspondence in a language other than Turkish and the prison authorities’ refusal, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014).

The Turkish Council of Ministers issued a decree which came into force on 9 March 2016. The decree extended anew the competence ratione materiae of the Compensation Commission.

The Compensation Commission is now entitled to examine the following subjects under Article 4 of the decree, which reads as follows:

“a) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because his or her land was classified as part of the public forest area, or as a result of the application of section 2/B of Law no. 6831, or because the land was classified as part of the public forest area in cadastral surveys;

b) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant’s title deeds because the impugned land was classified as located within a coastal area;

c) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans;

d) Applications concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities;

e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration’s refusal to receive or send letters or similar correspondence drafted in Turkish.”


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicants, who are married, were born in 1975 and 1988 respectively. The second applicant lives in Perm; prior to his expulsion in March 2014, the first applicant also lived there.

On an unspecified date in 2002 or 2003 the first applicant arrived in Russia. It is unclear on what legal basis he resided there. He never applied for a residence permit or Russian nationality.

At some point in 2004 the first applicant started living with the second applicant. The Government did not dispute that fact.

The Government submitted that in April 2007 the first applicant was fined 2,000 Russian roubles (RUB) (about 60 euros (EUR)) for a breach of Article 18.8 of the Code of Administrative Offences (living on Russian territory without a valid residence permit or non-compliance with the established procedure for residence registration).

In 2007 and 2011 the applicants’ two children, T.S. and D.S., respectively, were born. The first applicant was not officially registered as their father, however, both children had his name indicated on the birth certificates as their patronym.

On 4 August 2012 the first applicant arrived in Russia from Azerbaijan. Under the bilateral visa-free agreement of 1997 between the countries, his stay was authorised until 2 November 2012.

On 10 August 2012 the applicants concluded a religious marriage in the Perm congregational mosque and continued to reside together in Perm. They furnished the Court with a copy of the marriage certificate.

It can be seen from the case documents that on 21 September 2012 the first applicant was shot in the left leg. As a result of the gunshot wound he was hospitalised and underwent several operations. He was released from hospital on 31 December 2012.

On 13 December 2013 the first applicant was detained by the police for a breach of Article 18.8 of the Code of Administrative Offences on account of his failure to apply for a renewal of his period of authorised stay, which had expired on 2 November 2012. In his statement to the police, which was submitted to the Sverdlovsk District Court in Perm on the same date, the first applicant stated that he had been living in Russia for twelve years, that he resided with the second applicant as a family and that they had two children. He further stated that they had not officially registered their marriage and his paternity in respect of the children had not yet been officially established. He explained that he had overstayed the term of the authorised stay as he had been shot in the leg on 21 September 2012, which had resulted in several operations and his admission to hospital, ending on 31 December 2012; doctors had recommended that he not stay seated for longer than two hours and that considering that the trip to the border with Azerbaijan took more than ten hours, he had decided to stay in Russia until the injury had completely healed.

On 13 December 2013 the Sverdlovsk District Court in Perm ordered that the first applicant be fined RUB 2,000 and that he be subjected to administrative removal (expulsion) from Russia to Azerbaijan, which also implied a subsequent five-year entry ban. The court stated, inter alia, as follows:

“[...] as can be seen from the documents that have been submitted, [the applicant] Mr Guliyev has stayed in the Perm Region without lawful grounds from 3 November 2012 to 12 December 2013 [...]

’s character: ... the applicant has never had administrative proceedings opened against him and has fully admitted his guilt in the commission of the administrative offence. The court finds it necessary to choose an administrative fine with subsequent administrative removal from the country as he has been residing in Russia without a legal basis and without having a work permit. When choosing the punishment the court is unable to take into account Mr Guliyev’s minor children as he has not legally registered his paternity in respect of them ...”

The first applicant appealed against the decision, alleging that his removal and five-year re-entry ban would constitute a disproportionate measure in view of his family life with the second applicant and their children. In particular, he stated that his wife, the second applicant, was pregnant with their third child, that they had two children, that he was the family’s breadwinner and that the leg injury had precluded him from regularising his stay in Russia in a timely manner.

On 17 December 2013 the first applicant was officially registered as the father of the minors T.S. and D.S.

On 26 December 2013 the Perm Regional Court examined the appeal and upheld the decision of 13 December 2013 stating, amongst other things, as follows:

“[...] in the appeal the applicant’s representative requested that the court change the decision by excluding administrative removal from the punishment. Mr Guliyev lives with Ms Sheina, he has two dependent children, and he is the sole breadwinner for the family. Mr Guliyev’s paternity has been officially registered and confirmed by evidence. Presently Ms Sheina is pregnant with Mr Guliyev’s third child in respect of whom he would also establish paternity ... [he] believes that administrative removal and its negative consequences would violate his right to respect for his family life ...

[...] as can be seen from the case file, the applicant has been unlawfully residing in Russia for more than a year. There are no reasons to believe that the applicant was prevented from leaving the country for a long time. The applicant’s statement and that of Ms Sheina that he was not able to move around owing to the injury have not been confirmed by relevant evidence ... the case file contains documents showing that the applicant was hospitalised from 23 to 31 December 2012 with a fracture of the left hip ... it was recommended that he minimise the burden on the leg for three months after the release from hospital. Other documents demonstrating that his mobility was limited have not been submitted to the court ...

The administrative punishment has been chosen in respect of Mr Guliyev in accordance with Article 41 of the Code of Administrative Offences and is the minimum prescribed by paragraph 1 of part 1 of Article 18.8 of the Code of Administrative Offences, according to which administrative removal represents a compulsory element of the punishment along with an administrative fine.

The kind of exceptional circumstances which could serve as a basis for excluding that type of punishment in accordance with international law are not present in this case ...

... There are no convincing arguments which would enable the court to conclude that Mr Guliyev intends to permanently reside in Russia, obtain the right to temporary residence and (or) acquire Russian citizenship.

The marriage with Ms Sheina has not been officially registered ... paternity in respect of the two minors [T.S. and D.S.] was established after the District Court’s decision to administratively remove Mr Guliyev ... in connection with that the certificates of paternity provided to this court cannot be taken into account. There are no reasons to believe that Mr Guliyev had not had the opportunity prior to that to register his marriage with Ms Sheina and the paternity ... it is impossible to conclude from the case file that Mr Guliyev’s income is the only source of income for Ms Sheina and the minor children ...”

The applicants officially registered their marriage on 21 February 2014.

On 6 March 2014 the first applicant was expelled from Russia.

On 8 July 2014 the Supreme Court upheld by supervisory review the first applicant’s removal.

On 23 July 2014 the applicants’ third child, R.Sh., was born. He remained in the intensive care unit owing to a congenital heart condition.

On 11 August 2014 the applicants lodged a request for the application of Rule 39 of the Rules of Court, asking the Court to take measures to lift the first applicant’s re-entry ban in order to enable him to visit his child in hospital.

On 12 August 2014 the Court refused to grant the interim measure and asked for factual information from the Government.

On 18 August 2014 the Government informed the Court that R.Sh. had a very serious heart condition, that he was being treated in intensive care and that his state of health prevented him from travelling. The Government further stated that domestic legal provisions did not provide for any exceptions to the five-year re-entry ban.


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

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1976 and lives in Riga.

The Department for the Combat of Organised Crime (Organizētās noziedzības apkarošanas pārvalde) received information regarding the applicant’s alleged involvement in the sale of drugs. The department initiated a covert investigative measure, namely a test purchase of drugs. This measure was carried out on 24 and 26 March 2004.

After the test purchase on 26 March 2004 a police patrol unit working with officers from the Department for the Combat of Organised Crime stopped a vehicle being driven by S.I. in which the applicant was a passenger, at about 10 p.m. near Riga city centre. The applicant was apprehended and taken to State Police premises.

The applicant submitted that he had been repeatedly hit on the head, hit several times on the back, knocked down on to the pavement and pushed, which had resulted in bodily injuries. He had not offered any resistance.

In the Government’s version of events V.V., a police officer, opened the front passenger door and pulled the applicant out of the vehicle by his clothing. The applicant fell on to the edge of the pavement. He was then placed face down on the pavement and handcuffed.

The Government noted that while on State Police premises the applicant had complained of chest pain, saying he had heart disease.

At around 1.30 a.m. the applicant was transported from the premises of the State Police by the emergency medical service to the hospital. Head of the emergency medical service unit made an entry in form no. 573, as follows: “Abdominal contusion (sasitums). Acute gastritis? Facial contusion with skin abrasions (nobrāzumi).”

The applicant was admitted to Riga no. 1 Hospital at 1.33 a.m. The applicant’s medical record indicated the following diagnosis on admission: “Head, thorax and abdominal contusion.”

The entry made following the applicant’s examination by a surgeon at 1.35 a.m. indicated the same diagnosis and the applicant’s complaint: “The patient was beaten up during the arrest approximately one and a half hours ago.”

Further, at 2.20 a.m. a neurosurgeon recorded that the applicant had an eyelid haematoma around his left eye. The doctor also noted that the applicant had said that during his arrest he had fallen and hit his head in the area of the right eyebrow.

At 2.55 a.m. the applicant was referred to be tested for narcotic and psychotropic substances. The applicant was found not to be under the influence of alcohol, narcotic drugs or psychotropic substances.

On the same day, between 4.35 a.m. and 5.00 a.m., I.K., a chief specialist from the Department for the Combat of Organised Crime questioned the applicant as a suspect. The applicant indicated that he wished to make a statement in the presence of a lawyer.

At 5.51 a.m. the applicant was transferred to a temporary detention facility, where he stayed until 30 March 2004, during which time he did not seek any medical assistance.

On 29 March 2004 between 1.30 p.m. and 1.55 p.m. I.K. questioned the applicant in the presence of a lawyer. The applicant made a statement, the record of the relevant part of which is as follows:

“... While being arrested on 26 March 2004 [the applicant] was pulled out of the vehicle, a jacket was pulled over [his] head and [he] was pushed on to the ground. [He] then received one to three blows to the head and one blow to the abdomen. [The applicant] does not recall the precise number of blows he received. [He] did not lose consciousness. The blows were [inflicted] with a hard, blunt object.”

In the context of the interrogation of the applicant described above, the Government put to the Court that no complaints or requests had been raised by the applicant or his lawyer. Notwithstanding, a forensic examination of the applicant had been arranged.

Accordingly, on 29 March 2004 I.K. ordered an expert report to ascertain what injuries had been sustained by the applicant, in view of the applicant’s statement that while being arrested he had been kicked on the body and head. The order stated that it had been issued as part of a criminal investigation of unauthorised acquisition, possession and sale of psychotropic substances.

On the same day an expert examined the applicant. In the expert’s report the following information the applicant had provided was recorded:

“On 26 March 2004 during the arrest police officers in uniforms placed a jacket over [his] head, hit [him] on the head [and] abdomen with something [and he] fell down. It is impossible to tell with accuracy whether the abrasions on [his] legs were caused by the fall or a blow. [He] had nausea [but] did not vomit. [He] did not lose consciousness ...”

The expert’s report of 29 March 2004 described the applicant’s condition as follows:

“A haematoma 4 cm x 2.5 cm on the upper eyelid of the left eye ... an abrasion 0.2 cm x 0.1 cm in the middle area of the right cheek ... no visible injuries on the body found ... seven abrasions from 0.2 cm x 0.2 cm to 1.5 cm x 0.8 cm on the front surface of the left knee joint and on the front surface of the left lower leg ... a haematoma 5 cm x 4 cm on the front surface of the left lower leg.”

On 29 March 2004 the expert recorded in her report that the applicant’s medical records should be requested from Riga no. 1 Hospital. On 30 March 2004 the Department for the Combat of Organised Crime issued a request to Riga no. 1 Hospital for the applicant’s medical records.

On 2 April 2004 the expert added in the same report her conclusions based on the applicant’s examination and the data contained in his medical documentation. In particular:

“[The applicant] has the following injuries – a contusion on the head with subdermal haematoma and skin abrasion, and a contusion on the left leg with subdermal haematoma and skin abrasions.

These injuries could have been caused by hard, blunt objects.

The possibility cannot be ruled out that the injuries were caused in the circumstances indicated in the decision and by [the applicant], and on 26 March 2004.

The injuries ... are light injuries, which do not cause short-term health impairment for a period of time of more than six days.

The diagnosis of ‘head, thorax and abdominal contusion’ cannot be taken into account in the assessment of the gravity of the injuries, because it has not been affirmed by impartial clinical data, in-patient (stacionārā) inspection and examination (visible injuries are not described in the medical history and were not found in the course of the forensic examination).”

The applicant stated in his appeal of 2 April 2004 to the Riga Regional Court (Rīgas apgabaltiesa) against his pre-trial detention that physical force had been applied to him during his arrest, following which he had requested medical assistance at Riga no. 1 Hospital.

On 13 April 2004 officer A.Ž. gave a statement in the criminal investigation regarding the test purchase of drugs carried out on 24 and 26 March 2004, and stated that the applicant had been apprehended on 26 March 2004. A.Ž. gave evidence that the applicant had not been apprehended immediately after the purchase, because it was necessary to ascertain whether the applicant had been working with anyone else.

On 30 April 2004 the Riga Regional Court rejected the applicant’s appeal against the pre-trial detention and decided to keep the applicant in custody. The Regional Court in the decision referred to the applicant’s argument contained in his appeal, including the following:

“... police employees beat up [the applicant] when they arrested him; as a result he needed hospital treatment ...

In court [the applicant] and his lawyer ... maintained the appeal ...”

On 9 May 2005 the Vidzeme Regional Court (Vidzemes apgabaltiesa) found the applicant guilty of unauthorised acquisition, possession and transport of narcotic and psychotropic substances on a large scale, with intent to sell. He was sentenced to eight years and six months’ imprisonment, as an aggregated term, with confiscation of property and police control for two years.

On 16 December 2006 the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) upheld the applicant’s conviction on appeal. Further, on 19 February 2007 the Senate of the Supreme Court (Augstākās tiesas Senāts) rejected the applicant’s appeal on points of law.

On 12 March 2007 the applicant made representation to the Vidzeme Regional Court about ill-treatment during his arrest on 26 March 2004. The Regional Court transmitted the request to the Internal Security Office of the State Police (Valsts policijas Iekšējās drošības birojs).

The applicant submitted to the Court a copy of a letter from the Internal Security Office of the State Police, dated 25 April 2007. It was sent in response to the applicant’s submission of 12 March 2007, mentioned above. The letter stated that the human resources inspection division had requested information from the emergency medical service about the call made to them on 27 March 2004. However, the applicable regulations required records of emergency calls to be kept for a period of one year. It followed from the applicant’s medical records at Riga no. 1 Hospital that on 27 March 2004 the applicant had been diagnosed with head and thorax contusions and that he had told medical staff that he had fallen and hit his head while being arrested. While in the temporary detention facility between 27 and 30 March 2004 the applicant had not asked for medical assistance.

The letter indicated as follows:

“... in accordance with section 22(2) of the Law on the Police a police employee could not be held responsible for pecuniary or physical harm, caused within the official authority, to an offender who did not comply or who resisted during arrest.”

The answer concluded that State Police employees had not violated the relevant statutes.

In April 2007 the Internal Security Office collected reports (ziņojumi) from D.M., A.Ž. and A.K., officers of the Department for the Combat of Organised Crime.

D.M., in a report of 24 April 2007, indicated that on the day in question he had been working with a team of traffic police officers. Their task had been to intercept the applicant’s vehicle after the test purchase of drugs. Once they had received information about the vehicle with the applicant as a passenger inside, a traffic police employee had stopped the vehicle and invited the driver to step out. At this time other department officers arrived and arrested the applicant. D.M. could not remember the arresting officer or subsequent proceedings with respect to the applicant.

The department officer A.Ž. stated in his report of 11 April 2007 that the applicant’s arrest had been carried out by V.V. He also indicated that the applicant had not been ill-treated. The applicant had complained of heart problems while on department premises and an ambulance had been called. An examination by a doctor revealed no health problems and the applicant was then questioned.

In his report of 27 April 2007 department officer A.K. declared that he had arrived at the scene after the applicant had been arrested. A.K. could not remember who the arresting officer was. According to A.K. the applicant had been transported to department premises. Police officers had not ill-treated the applicant in A.K.’s presence and he had not seen any injuries.

In addition to these reports, the Internal Security Office of the State Police obtained on 17 April 2007 evidence from the temporary detention unit. This indicated that the applicant had not requested medical assistance between 27 and 30 March 2004. On the same day that office also requested the applicant’s medical file from Riga no. 1 Hospital.

Following the applicant’s request of 13 April 2007 to the Prosecutor General to submit information about ill-treatment, a prosecutor took a statement from him on 8 June 2007. The applicant indicated that he wished to provide more details about what had happened on 26 March 2004. The statement included the following:

“Late in the evening of 26 March 2004 ... [the applicant] was in the vehicle ... as a passenger ... The vehicle was stopped by traffic police ... [The applicant’s] colleague was invited to the police vehicle ... the passenger door on [the applicant’s] side opened and [he] received a hard blow to the head ... the blow pushed him towards the driver’s seat and [he] heard shouts not to move and received several blows on the back ... the same person who had hit [him then] grabbed [him] by [his] jacket and pulled [him] out of the vehicle. The jacket was placed over [his] head ... One of the blows knocked [him] off his feet, as a result of which [he] fell face down with his abdomen on the edge of the pavement. Thereafter a couple of blows followed on [his] body. Everything happened very fast ... [The applicant] heard people passing by saying ‘What are you doing?’ ... [he] was handcuffed ... in the police vehicle [he] was hit on the body ... [The applicant] would be able to recognise the police officer who inflicted the blows ... No physical ill-treatment was inflicted on him at the police station ... After some time ... [the applicant] felt ill ... [he] even lost consciousness in the police station ...”

In the statement the applicant requested that an investigation be conducted and criminal proceedings initiated in respect of the infliction of the injuries, because there had been no reason to resort to violence during the arrest.

The statement was sent for decision to the Internal Security Office of the State Police.

On 18 June 2007 L.L., a senior inspector of the pre-trial investigation division of the Internal Security Office of the State Police, refused to initiate criminal proceedings. This decision, referred to by the Government, did not elaborate reasons for the refusal.

The applicant appealed against the refusal to the Office of the Prosecutor General (Latvijas Republikas Prokuratūras Ģenerālprokuratūra).

On 18 July 2007 V.Č., acting as chief prosecutor of the pre-trial investigation and oversight division, quashed the decision as ungrounded and ordered that the Internal Security Office of the State Police conduct an additional inquiry. His finding read:

“The decision has been adopted on the basis of an incomplete examination ... without requesting the expert’s report and without clarifying the possible circumstances in which the injuries observed on [the applicant] had been sustained.”

On 7 August 2007 the Internal Security Office of the State Police requested information on the identities of the traffic police employees who had been on duty on 26 March 2004 around 10 p.m. and whether they had participated in the applicant’s arrest. It also asked those officers to attend the Internal Security Office. In response, the Internal Security Office was provided on 14 August 2007 with the information that officers B.M. and L.V. had carried out the arrest and that they had been advised to attend the Internal Security Office.

During August 2007 the Internal Security Office of the State Police collected explanations (paskaidrojumi) from five officers, A.Ž., D.M. and V.V., officers of the Department for the Combat of Organised Crime, and B.M. and L.V., officers of the police patrol unit.

In particular, further statements were taken from A.Ž. and D.M. on 20 August 2007. Their explanations were broadly the same as those they had made previously, on 11 and 24 April 2007 respectively. A.Ž. repeated, inter alia, that the applicant’s arrest had been made by V.V. and that the applicant had not been ill-treated. D.M. again gave evidence that he had no recollection of the identity of the arresting officer or of further proceedings with regard to the applicant. On 24 August 2007 V.V. gave his explanation as follows:

“On 26 March 2004 a covert measure of investigation was implemented ... Following the experiment [V.V.] received an instruction to apprehend [the applicant] ... when the traffic police officers stopped the vehicle ... [V.V.] approached the vehicle ... and opened the front passenger door. [The applicant] was just then reaching to close the driver’s door, which had been left open. A traffic police employee was at the driver’s door. [V.V.] identified himself as a police employee and invited [the applicant] to step out of the vehicle. [V.V.] does not remember exactly whether [the applicant] was handcuffed and which of the colleagues assisted in [the applicant’s] arrest. Following [his] arrest [he] was taken to the State Police ... but [V.V.] does not remember who took him there. [The applicant] was not subjected to any physical violence when he was arrested, because there was no need to apply physical force.”

B.M. and L.V., officers of the police patrol unit gave explanations on 20 and 27 August 2007 respectively. They both stated that on 26 March 2004 they had been on duty and had been asked to drive to the State Police and work with officers of the Department for the Combat of Organised Crime. L.V. in his explanation of 27 August 2007 specified that department employees had briefed them that it was necessary to intercept a vehicle which might contain a person whose arrest was being sought. After receiving these instructions they had left the department, with department officers. Two of them had been in their own vehicle. At around 10 p.m. on the instruction of the department officers they had stopped a vehicle with a driver and a passenger inside. Both B.M. and L.V. stated that B.M. had approached the driver of the vehicle and asked him to present the necessary documents. The arrest had been made by department employees and no physical force had been used, either on the applicant or the driver of the vehicle. L.V. indicated that he had stayed inside the patrol vehicle while this was going on. B.M. declared that he had not seen the applicant since the arrest. The driver of the vehicle had been taken to the State Police and an administrative report that he had been driving without a licence was drawn up. L.V.’s account stated that both the applicant and the driver had been taken to the State Police.

On 3 September 2007 a senior inspector of the Internal Security Office of the State Police human resources inspection division issued a report on the results of the inquiry into the circumstances of the applicant’s arrest on 26 March 2004.

The report stated that information from the emergency medical service and Riga no. 1 Hospital, and explanations from the officers A.Ž., D.M., V.V., B.M. and L.V. had been collected. An explanation could not be obtained from A.K., because he did not attend the Internal Security Office as agreed and later went on holiday and was unreachable by telephone. The Internal Security Office had requested S.I., the driver of the vehicle in which the applicant had been a passenger when he was arrested on 26 March 2004, to attend the office. S.I. had informed the office by telephone that he was unable to attend because of the expected birth of a child and because he was too busy. S.I. also said on the telephone that he had been questioned about the incident on several occasions, and that time had passed and he could not remember the precise circumstances of the applicant’s arrest. S.I. did not know whether physical force had been used on the applicant, because he had stepped out of the vehicle. No physical force had been used against S.I.

The report further stated:

“Likewise, during the inquiry which was conducted no unequivocal and impartial evidence was obtained that police employees had used unjustified physical force on [the applicant] during his arrest. In this regard the police employees categorically deny any use of physical force on [the applicant], whereas [the applicant] alleges to the contrary. Therefore, the question whether the police officers used physical force on [the applicant] and to what extent (during arrest, transport for questioning, or questioning itself) is to be examined in the pre-trial investigation division of the Internal Security Office of the State Police (VP IDP Pirmstiesas izmeklēšanas nodaļa), by taking the necessary actions in criminal procedure (questioning and subsequent confrontation between the police employees concerned).”

With regard to disciplinary liability the report indicated that in any event this would be barred by a period of statutory limitation.

On 11 September 2007 the pre-trial investigation division of the Internal Security Office of the State Police refused to initiate criminal proceedings.

That decision established:

“... on 26 March 2004 [the applicant] was justifiably arrested for a criminal offence ... All the police officers who carried out the arrest on 26 March 2004 indicated that more than three years had passed since the event and they could not remember precisely what had happened. The applicant did not, immediately after the arrest, express any complaints about the police employees’ conduct against him. [The applicant] could obtain the established light injuries, which do not cause short-term health impairment for more than six days, before or during the apprehension, when special measures were applied to him. It may not be asserted unequivocally that during [the applicant’s] arrest the police employees exceeded their authority by intentionally using unjustified force, thus committing a criminal offence as set out in section 317(2) of the Criminal Law.”

On 21 September 2007 the applicant appealed to the Office of the Prosecutor General against the aforementioned refusal to initiate criminal proceedings. He argued that the existence of his injuries had not been disputed and had been confirmed by the expert’s report. He could not have sustained the injuries prior to the arrest because he had been arrested at 10 p.m. on 26 March 2004 and admitted to Riga no. 1 Hospital at 1.33 a.m. the next day. The applicant pointed out that a surgeon had noted on his record “was beaten up one and a half hours ago”. Further, the fact that police officers could not remember the circumstances of the arrest did not prove anything, and was not a justification. He also stressed that no one who could have given impartial information had been questioned.

On 7 November 2007 J.K., a prosecutor responsible for the criminal case against the applicant in respect of drug sale, gave a report that the applicant had never complained of ill-treatment by police officers during the investigation or court hearings.

On 8 November 2007 V.O., as chief prosecutor of the pre-trial investigation and oversight division, confirmed the decision of the Internal Security Office of the State Police of 11 September 2007. She noted that that office had questioned the police officers and had obtained the expert’s report and information from S.I. However, no unequivocal and impartial evidence had been obtained that the injuries had been caused during the arrest. V.O. added the following words to her decision:

“... [the applicant’s] account of 8 June 2007 that police officers on 26 March 2004 had hit [him] several times on the back has not been confirmed, because the expert’s report did not establish any injuries on the back ... [the applicant] gave a contradictory account of how the abdominal contusion had been acquired (not taken into account in the expert’s report as not affirmed by impartial clinical data). On 29 March 2004 [the applicant] stated that police officers had hit [him] on the abdomen during [his] arrest but [he] had not lost consciousness, however on 8 June 2007 [the applicant] stated that the abdominal contusion had been caused by a fall on asphalt and that [he] had lost consciousness on the State Police premises ... It has also been established that, after being taken to Riga no. 1 Hospital at 1.33 a.m. on 27 March 2004 and examined there by doctors, [the applicant] was taken to a temporary detention facility at 5.51 a.m. ... from which a medical report has been received that between 27 and 30 March 2004 [he] did not request medical assistance.”

V.O. also indicated that there were no grounds to initiate disciplinary proceedings because no evidence had been obtained that State Police employees had exceeded their authority or abused their official position during the arrest. She also explained the period of statutory limitation for disciplinary proceedings.

V.O. stated that this decision was final.


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

The applicant was born in 1981 and lives in the Krasnodar Region.

On 29 November 2010 the applicant was arrested on suspicion of murder. On 27 October 2011 and other dates he was additionally charged with membership in a criminal syndicate and other offences.

On 27 January, 19 April, 19 July, 20 September, 17 October and 25 November 2011, 19 January, 16 April and 19 October 2012 and on other dates the authorised period of the applicant’s detention was extended. Each time the courts relied chiefly on the gravity of the charges against him. On 1 November 2012 the Krasnodar Regional Court considered and rejected, in a summary fashion, the applicant’s and his co-defendants’ appeals against the extension order of 19 October 2012.

The jury found the applicant not guilty of the offences he was charged with. On 19 June 2013 the applicant was acquitted and released. On 30 September 2013 the Supreme Court of the Russian Federation upheld the acquittal on appeal.

Invoking his “right to rehabilitation” under Article 133-135 of the Code of Criminal Procedure, the applicant brought a claim against the Federal Treasury for the loss of income and reimbursement of legal fees. He did not seek any compensation for non-pecuniary damage. By judgment of 28 January 2014, the Krasnodar Regional Court granted his claim in part.


Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr Jozef Koky, is a Slovak national who was born in 1977 and is detained in Ilava. Having been granted legal aid, he was represented before the Court by Mr M. Kuzma, a lawyer practising in Košice.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

On 3 February 2009 the Dolný Kubín District Court found the applicant guilty of armed robbery and theft and sentenced him to twentyfive years’ imprisonment. Following an appeal by the Public Prosecution Service, the ruling on the sentence was quashed and a new sentence of life imprisonment was imposed by the Žilina Regional Court on 30 April 2009. On that day the ruling became final and binding.

The relevant part of the appellate judgment may be summarised as follows.

The applicant was found guilty of an offence specified in Article 47 § 2 of the Criminal Code (Law no. 300/2005 Coll., as amended) after having already in the past twice been found guilty of offences specified in that provision, with unconditional prison sentences being imposed on him. Thus, pursuant to the “three strikes” rule embodied in that provision, he had to be sentenced to imprisonment for life.

’s situation, and other factors, such as the level of his involvement in the preparation of and attempt to commit the offence in question and his cooperation in uncovering the offence, as well as his reduced sanity and plea bargain.

In that respect, the court of appeal found that the trial court had erred when it had accepted as fulfilling one of the conditions stipulated by Article 39 § 1 of the Criminal Code for the imposition of a twenty-five-year prison sentence the fact that the applicant had used a firearm exclusively as a threat and that neither the offence in issue nor the two earlier similar offences had attained a high degree of gravity.

More specifically, the court of appeal observed that the fact that the applicant had committed the offence while armed constituted an element of the offence in question and held that this excluded the possibility of accepting as a mitigating circumstance the fact that the firearm had only been used as a threat.

Nevertheless, the applicant twice availed himself of an extraordinary remedy – lodging an appeal on points of law with the Supreme Court. His first appeal of 3 June 2009 was declared inadmissible on 28 August 2009. His second appeal was lodged on his behalf by a legal-aid lawyer after being appointed on 2 May 2012.

In his second appeal, the applicant relied in particular on Law no. 576/2009 Coll., amending Article 47 § 2 of the Criminal Code as of 1 January 2010. In its amended form, this provision only allowed for the imposition of a life sentence in a situation such as his if it was necessary to ensure the effective protection of society and there was no hope that a prison sentence of twenty-five years would sufficiently ensure the convict’s rehabilitation.

On 26 September 2012 the Supreme Court rejected the applicant’s second appeal, upholding the reasoning of the Regional Court. As amendment no. 576/2009 Coll. had only entered into force once the applicant’s trial had been completed with final effect, it could not be relied on to improve his situation.

On 16 January 2013 the applicant challenged the judgments of the Supreme Court and the Regional Court before the Constitutional Court by lodging what he considered to constitute a complaint under Article 127 of the Constitution.

He invoked mainly his right to a fair trial and the prohibition of torture, arguing that imprisonment for life was clearly a disproportionate sentence, given the circumstances of his case.

Moreover, he contended that the higher courts’ conclusions regarding the presence of any circumstances justifying the imposition of a twenty-five-year sentence had been arbitrary, partly because they had assessed some of the relevant facts erroneously and partly because they had failed to assess some of them at all.

In a letter of 25 January 2013 a single Constitutional Court judge informed the applicant under Section 23a of the Constitutional Court Act that his submission could not be dealt with as it clearly fell short of the requirements for a constitutional complaint.

The applicant’s subsequent request for the re-opening of his proceedings was dismissed by the District Court on 13 November 2014 and, following the applicant’s interlocutory appeal, by the Regional Court on 13 January 2015.

Release on parole is governed by the provisions of Articles 66 et seq. of the Criminal Code.

Article 66 § 1 allows for release on parole where a convicted prisoner’s behaviour and compliance with the obligations imposed demonstrate his or her rehabilitation and where that prisoner can be expected to behave properly.

Under Article 67 § 2, a whole-life prisoner can be released on parole after having served at least twenty-five years of the sentence.

Article 67 § 3, as in force until 31 December 2009, prohibited the conditional release of persons (i) repeatedly sentenced to life imprisonment, or (ii) who were sentenced to life imprisonment under Article 47 § 2 of the Criminal Code.

As from 1 January 2010, reference to the latter category of convicts was deleted from that provision by virtue of the above-mentioned Law no 576/2009 Coll. (see paragraph 6 above).

In proceedings brought under file no. PL. ÚS 6/09 on 3 November 2008, the Pezinok District Court asked the Constitutional Court to examine whether Articles 47 § 2 and 67 § 3 of the Criminal Code (as in force at that time) were in conformity with the Constitution and Articles 3 and 5 § 4 of the Convention.

On 2 November 2011 the Constitutional Court discontinued the proceedings in respect of the latter provision with reference to amendment no. 576/2009 Coll.

A majority of judges then concluded that Article 47 § 2 of the Criminal Code was not contrary to Article 3 of the Convention. It was admitted that in a small number of cases the effects of that provision reached the limits of conformity with Constitution from the viewpoint of their proportionality. Emphasis was put on the fact that the amendment which had taken effect on 1 January 2010 gave judges wide discretion to take into account the particular circumstances of each case.

In separate opinions three judges disagreed with that conclusion. Views were expressed that Article 47 § 2 of the Criminal Code provided for disproportionate penalties. The offence of less serious robbery was referred to by way of example.


George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant, Mr P.P., is an Italian national, who was born in 1960 and lives in Torri di Quartesolo. He was represented before the Court by Ms A. Mascia, a lawyer practising in Strasbourg.

In 1991 the applicant married a Polish national K.P., who gave birth to their two daughters. A was born in 1992 and B was born in 1996. The family lived in Italy.

In the summer of 1999 K.P. took A and B on holiday to Poland. They did not return to Italy. Afterwards the applicant tried to secure the return of his daughters to Italy by applying to the Polish Ministry of Justice designated as a Central Authority under the Hague Convention on the Civil Aspects of the International Child Abduction (“the Hague Convention”). On 5 January 2001 the Poznań District Court allowed the application for the return of the children lodged by the applicant and ordered to return them to the applicant. The court considered that the children had been unlawfully abducted. The decision became enforceable on 8 June 2001. The facts concerning subsequent enforcement proceedings can be found in the judgment issued by the Court in the first case brought by the applicant (P.P. v. Poland, no. 8677/03, §§ 8-65, 8 January 2008).

On 7 June 2005 the Poznań District Court quashed the judgment given under the Hague Convention and decided that their return would expose the children to psychological harm or would otherwise place them in an intolerable situation.

On 8 January 2008 the European Court of Human Rights found a violation of the applicant’s rights under Article 8 on the basis that the Polish authorities failed to take all the measures that could be reasonably expected to enforce the return order issued with respect to his two daughters under the Hague Convention and consequently to secure his visiting rights. The judgment concerned the events between 1999 and 2005.

On 17 November 1999 the Poznań District Court granted the applicant visiting rights. The applicant was granted the right to visit his children four times a month and to take them outside the flat in which they lived.

On 15 April 2005 the Poznań District Court decided that the applicant could visit his daughters every time he came to Poland and that he could take them outside their place of residence, if they agreed to it. The court indicated that the applicant should be able to visit his daughters from 5 p.m. to 8 p.m., notifying K.P. the week before the visit. In so far as the first meeting was concerned the applicant was to inform K.P. with one month advance and notify the Poznań Regional Court about it. The court would then appoint a guardian who could oversee the course of the visit.

On 22 January 2007 the Poznań Regional Court fixed the applicant’s access rights in the divorce judgment with reference to the conditions set out in the decision of the Poznań District Court of 15 April 2005.

On 7 July 2008 the Italian Central Authority requested the Polish Ministry of Justice to enforce the applicant’s access rights. On 11 August 2008 the Polish Ministry of Justice replied stating that the Hague Convention no longer applied to A, since she had already reached the age of 16 and so was not considered a child for the purposes of the Hague Convention (Article 4 of the Hague Convention). It also noted that the applicant should institute relevant proceedings before the Polish courts.

On 8 November 2012 the applicant instituted new proceedings in Poland in which he sought to amend the modalities of visiting rights with his younger daughter B.

In his pleading of 14 May 2013 the applicant specified that he wished to spend with B part of her winter and summer holidays, in Poland and abroad. Moreover, he wished to have contacts with her by phone and other means of communication. The applicant requested to impose a fine on K.P. for failing to comply with the court’s order.

On 28 May 2013 the Poznań District Court held a hearing at which it heard the applicant’s former wife, K.P. She stated that the applicant last time saw his daughters in May 2009 and afterwards made no attempts to see them. Following that meeting he often telephoned them. However, with time A and B stopped taking his calls.

On 12 August 2013 the court held a hearing at which it heard B, at that time 16 years old. She said that after she left Italy when she was three years old she met her father two or three times. She received letters and emails from him. B stated that she felt indifferent about her father and she would not seek or need contacts with him. B considered that her mother had never opposed her contacts with the applicant provided that he would not keep them in Italy. B stated that she would not like to go to Italy with the applicant as he was a foreign person to her and she would not feel safe. She admitted to having stopped taking his calls as they bothered her. If she wanted to contact him she could do it by email or phone. She opposed the idea to force herself to meet her father only to please him.

On 15 October 2013 the Poznań District Court dismissed the applicant’s request for interim order. The Court considered that forcing B to keep contact with her estranged father would be against her interests and could only deepen the conflict with the applicant.

On 4 February 2014 the court held another hearing at which it heard the applicant. The applicant submitted that he met his daughter in 2007 and 2009 but at no point he could stay with them without presence of their mother. He submitted that in reality he has not seen his daughters for 15 years. The applicant accepted that one cannot force a 17-year-old-girl to a certain behaviour, however, she should be assisted by a therapy to have her attitude to him improved.

On 12 February 2014 the experts from the RODK (Family Consultation Centre, Rodzinny Ośrodek Diagnostyczno-Konsultacyjny) presented their opinion to the court. The experts observed that B has emotional ties with her mother. However, any ties with her father had been broken due to lack of contacts and his negative picture induced by the mother. She presently expressed no need for contacts with the applicant. The applicant was perceived by the experts as determined to re-establish any contact with his daughters; a responsible person and posing no threat to them. The girls’ mother imposed on them her negative vision of the applicant and perceived his attempts to contact them as threatening. She made it impossible for her daughter to build autonomous relations with the applicant and his family. The mother failed to accept the children’s needs for the presence of their father. The experts recommended that B with her mother undergo a therapy with a view to rebuild her relations with the applicant.

On 1 July 2014 the Poznań District Court gave a decision in the case and dismissed the applicant’s motion. The court took into account the statements made by B in which she expressed no wish to resume contacts with her father. Taking into account her age and degree of maturity the court decided not to regulate her contacts with the applicant.

The applicant appealed. It appears that the proceedings are pending before the domestic court. In December 2014 B turned 18.

The relevant domestic law concerning the enforcement of a parent’s visiting rights in force prior to 13 August 2011 is set out in the Court’s judgment in the case of P.P., cited above, §§ 69-74.

Before 13 August 2011, the general provisions of the Code of Civil Proceedings (CCP, Kodeks Postępowania Cywilnego) on enforcement of nonpecuniary obligations were applicable to enforcement of court decisions on parental rights or access rights. If a court obliged a parent exercising custody rights to ensure access to a child to the other parent, Article 1050 of the CCP was applicable to the enforcement of this obligation. This article provides that:

“1. If the debtor is obliged to take measures which cannot be taken by any other person, the court in whose district the enforcement proceedings were instituted, on the motion of a creditor and after hearing the parties, shall fix the time-limit within which the debtor shall comply with his obligation, on pain of a fine (...).

If the debtor fails to comply with this obligation, further time limits may be fixed and further fines may be imposed by the court.”

The Law of 26 May 2011 on the amendment of the CCP introduced provisions dealing specifically with the enforcement of judgments granting visiting rights in respect in children (Articles 59815 to 59821). Under those provisions as they stand as of 13 August 2011, the court decision on access arrangements shall serve as an enforceable title for a request to a court to impose a penalty payment (oznaczona suma pieniężna) on the party refusing to comply with these arrangements in respect of each and every failure to do so, to be paid to the person to whom visiting rights have been granted.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

All three applications were lodged with the Court by the same applicants. They were initially registered under application no. 31355/09 (not communicated to the Government).

After a preliminary examination of the case file and taking account of the applicants’ additional clarifications as well as the conduct of the domestic proceedings, it was considered necessary to divide the case into three applications, two additional application numbers having been allocated (nos. 64480/09 and 64482/09). These latter two cases have been communicated to the Government.

The facts in respect of each application have been described below.

On 6 March 1996 the Durrës Restitution and Compensation of Properties Commission (“the Durrës Commission”) recognised the applicants’ inherited property rights to a plot of land measuring 174,000 sq. m, 4,200 sq. m of which was restored. The applicants would have the right to first refusal (e drejta e parablerjes) of a further 5,800 sq. m and they would be compensated in one of the ways provided for by law for the remaining 158,200 sq. m (“the first Commission decision”).

On the same day, the Durrës Commission, consisting of the same composition, delivered another decision which bore the same number and Commission stamp (“the second Commission decision”). According to the second decision, the Durrës Commission recognised the applicants’ inherited property rights to a plot of land measuring 17,400 sq. m, 4,200 sq. m of which was restored. The applicants would have the right to first refusal of 5,800 sq. m, no other award having been made.

On 6 December 2005 the Durrës District Court recognised the existence of the applicants’ inherited property rights to a plot of land measuring 400,000 sq. m situated in the city of Durrës (vendim për vërtetim fakti). This plot of land was made up of two smaller plots: one measuring 260,000 sq. m (“Plot A”) and the other measuring 140,000 sq. m (“Plot B”).

On an unspecified date the applicants made an application for the recognition of property rights to Plot B (see paragraph 11 above).

On 30 July 2007 the Durrës Regional Agency for Compensation and Restitution of Properties (“the Durrës Regional Agency”) recognised the applicants’ inherited property rights to Plot B, 53,200 sq. m of which was restored. The applicants would also be compensated in one of the ways provided for by law in respect of a further 22,960 sq. m, no decision having been taken in respect of the remaining 63,840 sq. m.

On 15 November 2007, following the applicants’ appeal, the Agency for Compensation and Restitution of Properties in Tirana (“the Central Agency”) quashed the Durrës Regional Agency’s decision of 2007 and remitted the case for re-examination.

On 16 May 2008 the Durrës Regional Agency recognised the applicants’ inherited property rights in respect of only 76,160 sq. m of Plot B, no decision having been taken in respect of the remaining 63,840 sq. m. The applicants would be compensated in one of the ways provided for by law in lieu of restitution of the area of Plot B measuring 76,160 sq. m.

On 28 February 2011 the Central Agency quashed the Durrës Regional Agency’s decision of 2008. The applicants were informed of their right to appeal, within 30 days of notification, to the Tirana District Court.

It would appear that, following the applicants’ appeal, the proceedings are currently pending before the Tirana District Court.

On 29 March 2011 the Central Agency, having regard to the Constitutional Court’s decision no. 27/2010 (see paragraph 59 below), decided that it was outside of its jurisdiction to examine a decision given in a separate set of proceedings which, in 2003, had recognised a third party’s inherited property rights to the plot of land measuring 63,840 sq. m which the applicants alleged belonged to them.

On an unspecified date, after the Durrës District Court’s decision of 6 December 2005 (see paragraph 11 above), the applicants applied for the recognition of property rights to a plot of land measuring 242,600 sq. m. This plot of land, taken together with the plot of land measuring 17,400 sq. m referred to in the second Commission decision (see paragraph 10 above), totalled Plot A.

On 30 July 2007 the Durrës Regional Agency recognised the applicants’ inherited property rights to the plot of land measuring 242,600 sq. m and further restored them a plot of land measuring 7,788 sq. m. 4,200 sq. m of Plot A had already been restored by virtue of the second Commission decision (see paragraph 10 above). The applicants would be compensated in one of the ways provided for by law for 245,772 sq. m of Plot A, no decision having been taken in respect of the remaining 2,240 sq. m.

On 15 November 2007, following the applicants’ appeal, the Central Agency quashed the Durrës Regional Agency’s decision 2007 and remitted the case for re-examination.

On 30 April 2008 the Durrës Regional Agency recognised the applicants’ inherited property rights to the plot of land measuring 242,600 sq. m and further restored them a plot of land measuring 7,788 sq. m. 4,200 sq. m of Plot A had already been restored by virtue of the second Commission decision. The applicants would be compensated in one of the ways provided for by law for 248,012 sq. m of Plot A.

On 4 July 2008, on his own motion, the Central Agency’s director quashed the Durrës Regional Agency’s decision of 2008 and sent the case back for re-examination.

On 23 December 2009 Regional Agency offices were abolished by law and the Central Agency was entrusted with the examination of restitution and compensation claims. No further decision appears to have been taken to date.

On 8 June 1995 the Lezhë Commission recognised the applicant’s father’s property rights to a plot of land measuring 25,850 sq. m, 11,500 sq. m of which was restored. The applicant would be compensated in one of the ways provided for by law in respect of a plot measuring 5,000 sq. m (t’i kompesohet sipërfaqja prej 5,000 m2me mënyrat e parashikuara në [këtë] ligj). The Commission further recognised the applicant’s right to first refusal of the remaining property.

On 19 April 2000 the applicant registered her title to a plot of land measuring 5,830 sq. m in her name. However, she was unable to use that land as it was occupied by the Port Authority of Shëngjin (“the Port Authority”).

On 16 October 2000 the Ministry of Public Economy and Privatisation ordered the registration of the immovable property of the Port Authority. However, the Port Authority was unable to register the immovable property as the property rights had been recognised and registered in favour of the applicant.

On 3 July 2006 the applicant brought civil proceedings before the Lezhë District Court (“the District Court”) requesting the Port Authority to vacate the plot of land measuring 5,830 sq. m.

On 19 February 2007 the District Court accepted the applicant’s request. The Port Authority appealed.

On 23 October 2007 the Shkodër Court of Appeal quashed the lower court’s decision on grounds of procedural irregularities and remitted the case for re-examination by a different bench.

On 19 November 2007 the applicant appealed against the decision to the Supreme Court.

On 6 November 2009, following the applicant’s request about the progress of her appeal, the Supreme Court informed her that the case was still pending for examination before that court.

On 9 April 2010 the Supreme Court dismissed her appeal.

On 28 March 2011, in the rehearing proceedings, the District Court discontinued the proceedings (vendosi pushimin e çështjes) for lack of appearance of the applicant despite notification of the date and time of the hearing.

On 27 November 2007 the Gjirokastra Regional Agency recognised the applicant’s inherited property rights to some plots of land.

On 16 January 2008 the Gjirokastra State Advocate’s Office (“the State Advocate’s Office”) was informed of the above decision and, on 11 February 2008, appealed against it arguing that the decision had been taken in breach of the law.

On 12 September 2011 the Central Agency’s director stayed the proceedings until the adoption of a decision by the Constitutional Court in a case concerning the constitutionality of certain provisions of the Property Act 2004 (see paragraphs 60 and 61 below).

On 28 February 2012 the Central Agency relied on, inter alia, the Constitutional Court’s decision no. 43/2011 (see paragraph 62 below) to declare the case outside of its jurisdiction.

The proceedings are currently pending before the Tirana District Court following an appeal by the State Advocate’s Office on an unspecified date in March 2012.

In 1957 K. bought a plot of land and a three-bedroom house located thereon from the State. The property had been confiscated from D. and expropriated by the State in 1948.

On 26 October 1992 the applicant bought the property from K. and it was entered in the mortgage register.

On 2 August 1993, under the Rehabilitation of Victims of Political Repression Act (Law no. 7514 of 30 September 1991), the financial unit of Tirana Municipality allocated to D.’s heir, M., the land and the house purchased by the applicant.

On 25 August 1993 M. donated the property to her brother, H.

On an unspecified date in 1996 H. lodged a civil action against the applicant for the vacation of the land and the house.

By a final decision of 14 January 1998 the Court of Cassation ruled in favour of H., ordering the vacation of the land and the house. It upheld the lower court’s decision which had recognised H. as the legal owner and had declared null and void the sale contract of 26 October 1992.

On 23 September 2000 the Tirana Commission recognised H.’s title to the above properties.

On 24 September 2002 the applicant’s supervisory review request was rejected by the Supreme Court Joint Benches.

On an unspecified date, most likely in 2006, the applicant lodged a civil action seeking the nullity of a number of legal acts which had affected his property rights.

On 23 October 2007 the Court of Appeal found that the applicant had no locus standi to bring legal proceedings. According to the court, the sale contract of 26 October 1992 was null and void on the following grounds. In the first place, by virtue of the Rehabilitation of Victims of Political Repression Act 1992, K. was not allowed to transfer property rights to third parties. Secondly, the sale contract had not been concluded in accordance with the law (before a notary public). Thirdly, the Court of Cassation’s decision of 14 January 1998 had ordered the vacation of the land and the house by the applicant. The applicant appealed to the Supreme Court within the thirty-day statutory time-limit (see paragraph 55 below).

On 7 April 2011 the Supreme Court, by way of a reasoned decision, upheld the Court of Appeal’s decision.

On 22 July 2011 the Constitutional Court, sitting as a bench of three judges, rejected the applicant’s constitutional appeal, finding that the lower courts had correctly ruled that the applicant lacked locus standi.

Section 18 of the 2004 Property Act, as amended by law no. 9684 of 6 February 2007, provided for the right of a claimant and of the State Advocate’s Office to appeal against a Regional Agency’s decision recognising property rights and awarding compensation, as appropriate, within 30 days of its notification, to the Central Agency.

The Central Agency’s director would decide on the appeal within 30 days of its introduction (jo më vonë se 30 ditë nga regjistrimi i ankimit, Drejtori i Përgjithshëm merr vendim për objektin e ankimit).

Under Article 324 of the CCP a claimant may seek the annulment of an administrative decision. A claimant may also challenge the authorities’ refusal to take an administrative decision within the prescribed time-limit.

Article 443 of the CCP provides that the time-limit for lodging an appeal with the Supreme Court is 30 days.

Section 1 provides that “the HCJ is ... responsible for the protection, appointment, transfer, dismissal, education, moral and professional appraisal, career and the assessment of performance of judges of first-instance courts and of courts of appeal.”

Under section 2, the HCJ is also empowered to take disciplinary measures against judges. In this connection, it is assisted by an Inspectorate as provided for in section 14. Under section 16, the HCJ Inspectorate verifies complaints submitted by individuals to the HCJ or to the Minister of Justice against judges’ actions. In the event of good cause for the institution of disciplinary proceedings, the Inspectorate draws up a report and submits it to the Minister of Justice who decides on the start of disciplinary proceedings. The report is also submitted to the HCJ meetings.

On 26 March and 14 September 2009 the Supreme Court and the Ombudsman requested the Constitutional Court to examine the constitutionality of some provisions of the 2004 Property Act, as amended.

On 26 May 2010 the Constitutional Court declared unconstitutional some provisions of the 2004 Property Act, as amended, which had empowered the Central Agency’s director to review prior decisions taken by former land Commissions or Regional Agency offices (decision no. 27/2010). It found that such powers were contrary to the principle of legal certainty.

On 22 July 2010 Parliament therefore enacted amendments to the 2004 Property Act which restored the Central Agency’s director’s powers to review prior decisions taken by land Commissions or Regional Agency offices.

On 6 December 2010 and 2 February 2011 the constitutionality of these amendments was challenged before the Constitutional Court.

On 6 October 2011 the Constitutional Court annulled the provisions of the 2004 Property Act as introduced on 22 July 2010. It found that the Central Agency did not have the characteristics of a judicial or quasi-judicial body, so that it could not be empowered to review decisions of former land Commissions or regional Agency offices. It further found that such review powers were contrary to the principle of legal certainty and the protection of property (decision no. 43/2011).

On 7 November 2011 the Constitutional Court found that there had been a breach of the appellant’s right to a fair hearing as regards the length of the criminal proceedings (decision no. 47/2011). No award was made to the appellant, nor was any other means of redress provided.

On 5 March 2012 the Constitutional Court found that there had been a breach of the appellant’s right to a fair hearing as regards the length of the civil proceedings (decision no. 12/2012): the civil action had been pending before the District Court since 2006. No award was made to the appellant, nor was any other means of redress provided.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants’ names, dates of birth and places of residence may be found in the Annex.

From the 1950s/60s to early 2000, the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 were full-time employees at the Malta Drydocks Corporation (the MDC), a state-owned enterprise (1968-2003). The applicants in application no. 62338/11 are the wife and children of Mr Attard, who also worked at Malta Drydocks during the same period (having started in 1959) but left in 1974 to take up managerial duties with the Malta Trade Fair Corporation, where he was no longer exposed to asbestos.

According to the applicants, the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 and Mr Attard had been constantly and intensively exposed to asbestos during their employment. Asbestos in its various forms was one of the substances kept in stock in Malta Drydocks’ storerooms and ships incorporating asbestos as part of their structure regularly entered the docks (or ship repair yard) and were repaired there by workers. Repairs included breaking apart the asbestos casing that was used for insulation purposes, thereby releasing the particles into the surrounding air. Once a machine was repaired, it had to be reinsulated using asbestos retrieved from the store-rooms. Such repairs were carried out both on the ships themselves and in the MDC’s workshops.

The applicants contended that asbestos particles would settle on the workers’ clothing and be carried around in this way, with the result that it could also affect the lives of their family members, creating further anguish and affecting their private and family life.

In the 1960s, Malta became a member of the International Labour Organisation (“ILO”) (see “Relevant domestic law and international standards” below) and of the World Health Organisation (“WHO”), both organisations having been raising awareness regarding the dangers of asbestos since the 1950s. At the time, however, the employees of MDC had been neither informed about nor protected from the dangers of asbestos in any way. The Government disagreed with the applicants’ assertion that international organisations had raised awareness of the dangers of asbestos in the 1960s, noting that the ILO Asbestos Convention had been concluded in 1986 and that the WHO had issued its guidelines much later than the 1960s.

The first publicly available – though not publicly disseminated – information concerning the fatal consequences of asbestos at MDC appears to be the judicial acts and judgment relating to a lawsuit brought in the names of Mary Pellicano proprio et nomine vs Francis Spiteri nomine, concerning the deceased Paul Pellicano (erroneously referred to by the parties as Joseph Pellicano) who died from asbestosis in 1979. In that case, in a judgment of 30 August 1989, the then Commercial Court established MDC’s responsibility for the death of Paul Pellicano and awarded (in a separate decision of 27 June 1990) damages under Maltese law consisting of lucrum cessans and damnum emergens (see also “Relevant domestic law” below).

No action was taken following that judgment save that employees were assured that adequate ventilation and the wearing of fabric masks would protect them from asbestos.

Mr Attard died in 2006, aged sixty-one, as a result of a malignant cancer linked to exposure to asbestos (mesothelioma). Following the death of a number of their colleagues, the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 underwent medical tests, which were performed again in 2012 in the context of proceedings before the Court. With the exception of the case of Mr Dyer, most of the X-rays revealed bilateral pleural plaques (extensive in some cases) compatible with asbestos exposure. The X-rays of some of the applicants also revealed pleural thickening, reticulo-nodular interstitial parenchymal texture in the lungs, and in some cases also pulmonary fibrosis, all of which are consistent with asbestosis. The results suggested that there was a strong probability of the presence of asbestos fibres in their stomach lining, as well as in other digestive organs. Moreover, apart from the physical difficulties such as exercise intolerance that were mainly related to respiratory problems, the presence of asbestos in their bodies made them prone to malignant mesothelioma, as was the case with Mr Attard, abovementioned. From the medical data it was also apparent that the applicants had no pleural effusions and that their lungs were clear, with no filtrates or nodules, and their hearts, hila and upper mediastina were also normal. Most of the applicants are nonsmokers.

In particular, Mr John Mary Abela has been confined to bed for years as a result of his acute respiratory problems and can only breathe via oxygen cylinders that further reduce his mobility. Mr Dyer’s medical results did not show evidence of asbestos-related disease.

On 7 May 2009 these applicants instituted separate constitutional redress proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention in that the State had failed to protect them from unnecessary risks to their health, which also constituted inhuman treatment and an interference with their private and family life. They asked the court to quantify a fair amount of compensation for the breach of the aforementioned rights, to liquidate that amount, and to order that this pecuniary redress be paid individually to the applicants (“Tikwantifika kumpens xieraq bħala rimedju għal ksur tad-drittijiet fuq indikati jew mil-liema minnhom, tillikwida dan l-ammont, u tordna li dan ir-rimedju pekunjarju jithallas individwalment lir-rikorenti”).

In reply to the Government’s objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings the applicants in question maintained that under Maltese law the ordinary civil remedies available did not apply to non-pecuniary damage (known in the domestic system as “moral damage”), but solely to pecuniary damage; they claimed that these types of damage were independent of each other.

In four separate but almost identical judgments of 30 November 2010 the first-instance constitutional jurisdiction – namely, the Civil Court (First Hall) in its constitutional jurisdiction – declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii thereby in effect dismissing the applications on the grounds of non-exhaustion of ordinary domestic remedies. That court held that the applicants should have instituted a civil action for damages arising out of tort or contractual liability. It considered that according to the Court’s case-law, namely Zavoloka v. Latvia (no. 58447/00, § 40, 7 July 2009), there was no general or absolute obligation on States to pay compensation for non-pecuniary damage in such cases.

By four judgments of 11 April 2011 the Constitutional Court upheld the first-instance decisions. It considered that the Government, as an employer, could be sued under civil law for their failings. It held in effect that the fact that such failings were also of a constitutional nature did not in itself mean that they could not be pursued through ordinary civil proceedings. It also held that a person could not allow the time within which to bring an ordinary civil action to expire and then resort to constitutional proceedings as a remedy in extremis. The court considered that constitutional redress proceedings could be instituted only after the applicants had instituted civil proceedings and if, after a final judgment, they still felt that the breaches of their rights had not been adequately redressed. It held that given that neither the Convention nor national law provided for compensation for non-pecuniary damage in such cases, the ordinary remedy would have been effective. In any event, according to the court, in their constitutional application, the applicants made no specific mention of non-pecuniary or moral damage, having claimed compensation for pecuniary damage only.

On 19 April 2010 these applicants, who are the heirs of the deceased Mr Attard, also instituted proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention.

In reply to the Government’s objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings, the applicants submitted that under Maltese law the ordinary civil remedies available did not provide for non-pecuniary damage but only for pecuniary damage; they claimed that these types of damage were independent of each other.

By a judgment of 30 September 2010 the Civil Court (First Hall) in its constitutional jurisdiction declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii, thereby in effect dismissing the claims of the applicants on the grounds of non-exhaustion of ordinary remedies. In its analysis of the principles governing the exercise of the above-mentioned powers under the Constitution and the European Convention Act, the court noted, inter alia, that the failure to pursue ordinary remedies by an applicant was not in itself a sufficient reason for a court of constitutional jurisdiction to decline to exercise its powers if it could be shown that the ordinary means could not provide a complete remedy. It also held that the decision to decline or otherwise to exercise such powers was to be exercised with prudence, so that where it appears that there is a serious violation of fundamental human rights or even where there is likely to be the violation of such rights, then the court should lean towards exercising its powers. Nevertheless, it considered that what the applicants were ultimately requesting was a sum of money by way of damages. Given that ordinary remedies under the Civil Code could have resulted in an award of monetary compensation, the applicants should have pursued those remedies before instituting constitutional redress proceedings.

In a judgment of 11 April 2011 the Constitutional Court upheld the first-instance decision for substantially the same reason indicated in paragraph 17 above.