Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1962. According to the latest information, the applicant was released from prison in January 2015.

On 26 May 1995 a businessman, R.G., was killed in the heart of Vilnius, near the building that houses the Lithuanian Government, when a bomb detonated under his car. The crime received much media coverage.

On 15 October 1998, after being accused of having been involved in R.G.’s killing, a certain G.B. stated in his testimony that he had received the order to murder R.G. from a certain O.L., but he did not know whether it was O.L. who had wished to murder R.G., or whether the contract had been put out by someone else.

On 29 October 1998 G.B. changed his testimony, stating that the contract to murder R.G. had been put out by ‘Alius from Kaunas’.

On 9 November 1998 G.B. showed the investigators the place where he claimed to have met ‘Alius’ in May 1995. This was near the applicant’s home address in Kaunas.

From this point in time, the prosecutor began to suspect that the applicant, who had a previous conviction dating from 1985, had been involved in R.G.’s murder. The prosecutor gathered information about the applicant’s property and obtained the applicant’s telephone number, which in turn linked him to one of the suspects in R.G.’s murder.

By a judgment of 21 October 2001, the Vilnius Regional Court convicted twenty-one individuals who had acted together in an armed gang in Vilnius and its surroundings from 1990 to 1998. The members of this criminal organisation were convicted of 13 murders and 12 attempted murders that involved the use of firearms and explosives, as well as a number of robberies and kidnappings of businesspeople.

By the same judgment, three individuals belonging to that criminal association, G.B., I.M. and V.J., were convicted of R.G.s murder. The court established that it had been a contract killing, ordered because an unidentified person was unwilling to repay a considerable sum of money to R.G. The court also established that the unidentified person was known under the alias “Alius”. The fifth person involved in the murder, O.L., was in hiding. G.B. was sentenced to a total of 19 years’ imprisonment for all the crimes concerned.

On 1 March 2002, on the basis of G.B.’s testimony, the prosecutor concluded that it was likely that “Alius” was in fact the applicant. G.B. also testified on unknown date that he would recognise “Alius” if he saw him. The same day the prosecutor ordered the Vilnius organised crime police to establish the applicant’s place of residence, to obtain his telephone records and to examine his links with R.G.

On 19 March 2002 photographs of four individuals were shown to G.B., who at that time was already serving a prison sentence. G.B. identified the applicant as ‘Alius from Kaunas’ – the person who had put out the murder contract.

On 2 September 2002 the Vilnius organised crime police informed the prosecutor in writing that the applicant was not living in the apartment where he was registered in Kaunas. The police admitted that they could not locate the applicant but undertook to notify the prosecutor of the applicant’s whereabouts as soon as they found him.

On 2 September 2002 the prosecutor concluded that there was sufficient evidence to charge the applicant with having organised R.G.’s murder and issued a decision charging the applicant with that crime (nutarimas patraukti kaltinamuoju). The decision gave an account of the facts as construed by the prosecutor and contained a detailed description of the crime, including the time-frame, the links between the applicant, those convicted (G.B., I.M. and V.J.) and O.L., and the sums of money paid for its execution. The decision did not contain any references to evidence against the applicant.

On the same day, the prosecutor instituted a search for the applicant and ordered Vilnius organised crime police to conduct it. The prosecutor also addressed a request to the Vilnius City First District Court that the applicant be detained once arrested. Taking into account the fact that the crime could attract a life sentence, and given that at that specific time the applicant could not be located, the prosecutor took the view that it was likely that the applicant had fled from justice. The evidence against the applicant was “his accomplices’ testimony and his being recognised as the organiser of the crime [by the accomplices]”. The same day, the Vilnius City First District Court authorised the applicant’s pre-trial detention in absentia.

On 29 October 2002 the prosecutor asked Vilnius organised crime police whether the applicant had been found. From the documents before the Court it appears that the Kaunas organised crime police informed their colleagues in Vilnius on 10 December 2002 that the applicant’s place of residence was not known.

Over two years later, on 17 January 2005, the prosecutor issued a European Arrest Warrant in respect of the applicant.

On 24 May 2005 Vilnius organised crime police informed the prosecutor where the applicant could be found and the prosecutor ordered the applicant’s arrest.

The applicant was arrested on 25 May 2005 in Kaunas. The applicant’s temporary arrest record (įtariamojo laikino sulaikymo protokolas) stated that the applicant had been arrested in the context of a criminal investigation on suspicion of having organised R.G.’s murder. The record referred to the court decision of 2 September 2002 ordering the applicant’s detention, to the European Arrest Warrant, and to the applicant’s prior conviction of 1985 for a property-related crime. The record also stated that the applicant had been hiding from the prosecutor for a long time. The applicant signed the record of his arrest and the prosecutor’s decision of 2 September 2002 charging him with having organised R.G.’s murder (see paragraph 13 above).

The same day, that is to say on 25 May 2005, the prosecutor issued a notice of suspicion (pranešimas apie įtarimą) which repeated the prosecutor’s account of the facts surrounding R.G.’s murder, as described in the decision of 2 September 2002 charging him with the crime (see paragraph 13 above). No evidence was referred to in the notice of suspicion, which the applicant and his lawyer signed.

Later that same day the applicant was shown the prosecutor’s decision charging him with R.G.’s murder of 2 September 2002 (see paragraph 13 above). The applicant was questioned. Of the four people convicted of R.G.’s murder, he admitted to knowing only O.L. The applicant denied any involvement in the car bombing and stated that he would not testify without his lawyer. The applicant then signed a record of questioning of a suspect (įtariamojo apklausos protokolas).

According to the record of case file material shown to the lawyer (gynėjo supažindinimo su bylos medžiaga protokolas) dated 26 May 2005, the prosecutor provided the applicant’s lawyer, at his request, with the following documents from the case file:

1) the applicant’s temporary arrest record of 25 May 2005 (see paragraph 18 above);

2) the decision to charge the applicant of 2 September 2002 (see paragraph 13 above);

3) the notice of suspicion of 25 May 2005 (see paragraph 19 above); and

4) the record of questioning of a suspect of 25 May 2005 (see paragraph 19 above).

On 26 May 2005, the prosecutor submitted to the Vilnius City Second District Court a written request for the applicant’s detention pending trial (pareiškimas skirti suėmimą). The request contained the prosecutor’s account of the crime, as described in the decision charging the applicant and the notice of suspicion (see paragraphs 13 and 19 above). It mentioned that the evidence linking the applicant to R.G.’s murder was witnesses’ and other individuals’ testimony, the records of the applicant’s identification (parodymų atpažinti protokolai), records of searches and other factual data. The document did not explain any particular piece of evidence against the applicant. As grounds for detention the prosecutor cited the fact that the applicant had been hiding from the prosecutor for two years, the European Arrest Warrant, the applicant’s prior conviction, the severity of the penalty that the crime of murder could attract ‒ which could in itself prompt the applicant to flee ‒ and the need to carry out more investigative steps. The request did not mention the risk that the applicant might try to influence witnesses as one of the grounds for his detention.

On 26 May 2005, the Vilnius City Second District Court held a hearing in the presence of the prosecutor, the applicant and the applicant’s lawyer.

As the record of the hearing shows, at the start thereof the applicant’s lawyer asked the court to view the evidential material from the pre-trial investigation, on the basis of which his client was being detained. The lawyer admitted that he had been able to acquaint himself with the prosecutor’s request to the court for the applicant’s detention (see paragraph 21 above), the record of the applicant’s questioning and the notice of suspicion, but no other material had been made available to him, even though the Supreme Court’s guidelines require otherwise (see paragraph 52 below). The lawyer contended that the information shown to him was not sufficient to understand what basis there was, firstly, for suspecting the applicant of R.G.’s murder and, secondly, for detaining him. The lawyer insisted that he had a right to consult the material in the case file, which the prosecutor had provided to the court for the purposes of ascertaining whether it was reasonable to detain his client.

In reply, the prosecutor submitted that “in this case the applicant’s lawyer had been shown what was necessary (šiuo atveju gynėjas supažindintas tiek, kiek reikia)”. Moreover, in accordance with Article 177 of the Code of Criminal Procedure, pre-trial investigation material was not to be made public. In the instant case, the applicant was not permitted to see the entire case file because doing so could have prejudiced the success of the pre-trial investigation. The grounds for detaining the applicant were that a search for him had been conducted [since 2002], and a European Arrest Warrant had been issued in respect of him. The record of the hearing also indicates that the prosecutor then submitted “to the court the pre-trial investigation file concerning the applicant and the reasonableness of his detention. The court examined the material provided by the prosecutor and, having evaluated it, decided that the lawyer’s request to see the said material was to be denied, since to disclose it could be detrimental to effective investigation”.

When questioned at the court hearing, the applicant acknowledged that he knew O.L. However, he denied knowing G.B., I.M. and V.J., the people already convicted of R.G.’s murder. The applicant also maintained that he had never had the nickname “Alius”. He admitted that his wife lived in Ireland and that he was wealthy. The applicant and his lawyer contended that the applicant had never been summoned for questioning, nor had he been hiding from the investigators: after 1995 he had renewed his identity documents, had crossed the State border, had taken part in car rally competitions, winning the President’s cup in 2003, and had even been elected president of the Lithuanian rally committee.

The Vilnius City Second District Court decided to grant the prosecutor’s request for the applicant’s detention. In the operative part of its ruling, having summarised the arguments put forward by the prosecutor and the defence, the court noted that the case file material showed that the applicant was suspected of a very serious crime for which life imprisonment could be imposed. The applicant’s wife was living abroad and this could prompt the applicant to flee from justice. It was also pertinent that there were discrepancies in the [witnesses’] testimony given to the investigators. There was thus reason to believe that “the applicant might attempt to influence participants in the criminal proceedings (those convicted, witnesses, others) and to destroy evidence” if left at liberty. A number of investigative steps still had to be carried out. Lastly, there was reason to believe that the applicant might commit new crimes.

On 7 June 2005 G.B. attended an identity parade that included the suspect and, in a three-man line-up, identified the applicant as ‘Alius’, naming him as the person who had ordered R.G.’s murder. In accordance with the requirements of the Code of Criminal Procedure, the applicant’s lawyer was present when G.B. identified his client.

G.B. was questioned by the prosecutor on 15 June 2005, and testified in writing that after he had identified the applicant, on 7 June 2005 he had been approached by another prisoner. Due to the relations prevailing in the prison, G.B. preferred not to name that other prisoner. G.B. stated that the other prisoner had told him that he had received a request from “the outside world (iš laisvės)” and from “the underworld of Kaunas (Kauno nusiklastamo pasaulio)” to ask G.B., in return for 200,000 Lithuanian litai (LTL), not to identify the applicant as the person who had put out the contract on R.G. To that G.B. replied that it was too late, because he had already identified the applicant. The other prisoner stated that in that case he would have to further consult those who had made the proposition.

A couple of days later, on 8 or 9 June 2015, the same prisoner had made a new proposition: G.B. should write a statement to the effect that he had been mistaken when identifying the applicant on 7 June. G.B. also was told that the applicant’s lawyers were considering challenging the lawfulness of the identity parade procedure. The sum allegedly offered to the applicant for changing his prior testimony stayed the same. At that time G.B. also stated that he had not been the target of any threats for testifying against the applicant.

On 13 June 2005 the applicant’s lawyer submitted an appeal to the Vilnius Regional Court against the court order of 26 May 2005 for the detention of his client. The lawyer complained that the judge had not allowed him to see the case file and maintained that the procedure had therefore not been adversarial. The lawyer acknowledged that the applicant had a prior conviction, but that had been years ago. The applicant’s lawyer also asked the court to view G.B.’s testimony in a critical light, given that the latter, as a convicted person, could have his own reasons for incriminating the applicant. Furthermore, the prosecutor had not provided any factual data endorsing his suspicion that the applicant might attempt to influence witnesses. As far as the lawyer understood it, all the witnesses with knowledge of R.G.’s murder had been isolated from society and there was no real possibility of influencing them. Furthermore, if anyone had wished to pervert the course of justice, he or she would have done it at some time during the ten years that had elapsed since the crime. Now there would be no sense in doing that. In support of his claims that it was safe to leave the applicant at liberty, his lawyer provided the court with documents about his client’s family and work situation.

On 27 June 2005 the Vilnius Regional Court dismissed the applicant’s appeal. The prosecutor and the applicant’s lawyer were present at that hearing.

The court accepted that factual material incriminating the applicant existed in the form of G.B.’s testimony, the record showing that G.B. had recognised the applicant, both from photographs and in person. The court also noted that, according to the information which had been provided to it, the search for the applicant had gone on for a long time, that he had connections abroad, and that the European Arrest Warrant had been issued in his regard. The seriousness of the crime of which he was suspected was also a factor in the establishment of grounds for detaining him.

However, the appellate court noted “the absence of any well-founded evidence (pagrįstų įrodymų) in the case file indicating that the applicant might attempt, either himself or through third parties, to influence witnesses, victims, people already convicted or other individuals, or that he would attempt to destroy evidence”. Keeping him detained merely because the pre-trial investigators had not yet collected all the material necessary to build the case did not constitute valid grounds for such detention either. The existence of discrepancies in the testimonies (byloje užfiksuotų parodymų nenuoseklumas) could not be blamed on the applicant.

During a face-to-face confrontation (akistata) held on 24 August 2005, G.B. reaffirmed his testimony that it was the applicant who had put out the contract for R.G.’s murder.

The applicant’s pre-trial detention was extended on 22 August 2005 and again on 20 September 2005. His lawyers and the prosecutor were present at those hearings. The courts noted that the grounds for detention were the search for the applicant, the European Arrest Warrant, his previous conviction and the fact that he had been charged with a serious crime for which a severe sentence could be imposed. In one of these two rulings the court also noted that G.B., who was one of those already convicted for the 1995 car bombing, had identified the applicant as the person who had put out the contract on R.G.

On 20 October 2005 the prosecutor questioned G.B.’s wife. She testified that she had known that her husband was a witness in the criminal case concerning R.G.’s murder. She stated that her husband had told her that he had received threats directed at him and his family for having given evidence, and had warned his wife to be careful. She also stated that from the second half of June she and her daughter had received telephone calls from unknown men asking if they could meet and talk, which she had refused to do. She also testified that on 8 October she had found a funeral wreath in front of the entrance door to the café she owned. She understood this gesture to be a veiled threat to G.B.’s family should he not change his testimony.

On 24 November 2005 the Vilnius Regional Court further extended the applicant’s detention pending trial. Having reaffirmed the aforementioned grounds for keeping the applicant detained, including the argument that he had been evading justice ever since 2002, the Vilnius Regional Court also noted evidence that the applicant had tried, through third parties, to influence the witness G.B. and his family so that G.B. would not testify against the applicant.

By a judgment of 25 April 2006 the Vilnius Regional Court found the applicant guilty of having put out the contract for R.G.’s murder. In finding against the applicant, the trial court relied on the testimony of G.B. Even though the applicant denied his involvement in the crime and insisted that G.B. was slandering him, the trial court observed that G.B.’s testimony to the effect that the crime had been organised by a certain “Alius” had been consistent ever since G.B. was first questioned during the pre-trial investigation in 1998. Moreover, G.B. had recognised the applicant from photographs on 19 March 2002 and during a police identity line-up on 7 June 2005. Other evidence against the applicant also included the testimony of nine further witnesses – namely the applicant’s and R.G.’s former business partners, a police officer, and the brother of R.G.’s widow. Telephone records also showed that in April and May 1995 numerous conversations had taken place between the applicant, R.G., O.L. and G.B. In addition, extracts from the bank accounts of the applicant’s company, customs declarations, and documents from Kaunas municipality illustrated the financial dealings between the applicant and R.G.

The Vilnius Regional Court noted that eleven years had passed since the crime was committed. The applicant had not been hiding during that time, even though a search for him “without reason (nepagrįsta)” had been called for. In all the years since 1995 the applicant had not once broken the law and there was no information in the case file indicating his involvement in organised crime. Moreover, the applicant had worked, supported his family, including two children who were minors, and had participated in public life. However, given the seriousness of the crime, the court held that the applicant still posed a danger to society. The court lastly found that because of the pre-trial investigation officers’ fault the applicant was being punished only after many years had passed since the crime. To impose a very severe sentence on him would therefore be unjust. Eight years’ deprivation of liberty in a correctional home would be appropriate. The time which the applicant had spent in pre-trial detention – from 25 May 2005 until 25 April 2006 was to be counted towards that period.

An appeal having been lodged against this verdict, on 18 May 2007 the applicant was acquitted by the Court of Appeal. The court found the testimony of G.B. − who was the main witness for the prosecution − against the applicant, including testimony given on site in 1998, G.B.’s recognising the applicant in the police identity line-up and the testimony given the face-to-face confrontation to be inconsistent, not credible and contradictory of other evidence in the case (nelogiški, prieštaraujantys kitiems įrodymams ir nenuoseklūs). There was a real possibility that by giving such testimony G.B. had sought to improve his position. In this connection the Court of Appeal also noted that G.B. had attempted to diminish his own role in R.G.’s murder. It was for that reason that, on 19 June 2003, the Supreme Court had dismissed the prosecutor’s and G.B.’s plea for mitigation of G.B.’s sentence on the basis of Article 411 of the old Criminal Code (see paragraph 54 below). The Court of Appeal also emphasised that there was not sufficient additional evidence to link the applicant to crime.

The Court of Appeal ordered the applicant’s release from detention. He had to stay at his place of residence, and his travel documents were taken from him.

The decision to acquit the applicant was later quashed by the Supreme Court, which remitted the case for fresh examination.

Before the Court of Appeal the applicant reiterated his complaint that on 26 May 2005 the pre-trial investigation judge had not allowed him to see the material submitted by the prosecutor. He also noted that G.B. had not informed the prosecutor about alleged undue influence on him until a week after the alleged incident supposedly took place. In the view of the applicant, G.B. wished to incriminate him using any means possible.

On 13 March 2009 the Court of Appeal again acquitted the applicant, upholding its earlier finding that G.B.’s testimony against the applicant was not consistent (nėra nuoseklūs). It also noted that the trial court had categorised the search for the applicant as unfounded (nepagrista), without elaborating much on that issue. The Court of Appeal emphasised that the applicant had never been in hiding from the authorities, even though the prosecutor had asked the appellate court to suppress that assessment, given by the trial court (also see paragraphs 40 and 41 below).

The applicant was released from the obligation not to leave his place of residence, and his travel documents were returned to him.

The very same day, on the basis of Article 257 of the Code of Criminal Procedure (see paragraph 53 below), the Court of Appeal adopted a separate ruling, noting that a search for a suspect could be ordered if the suspect’s place of residence was unknown to the investigators, who, if that were the case, were obliged to take steps to find him or her. In the instant case, however, the applicant had never been in hiding from the investigators. On the contrary, he had lived in his apartment in Kaunas, had taken part in car rally competitions abroad, had won the President’s cup after participating in the car rally “Around Lithuania” in 2003, and in the same year had even been elected president of the car rally committee. The applicant had also crossed the Lithuanian State border both by car and as an airline passenger at least ten times, had worked at his private company and had paid social security contributions. All those events had taken place during the time when the search for the applicant, ordered on 2 September 2002, was being conducted. The applicant had at no time been called into the prosecutor’s office and none of the applicant’s family members had received any inquiries about the applicant’s whereabouts from the police or had ever been visited by police officers. As confirmed by the police in January 2006, no search file (paieškos byla) had ever been opened in respect of the applicant. Furthermore, in October 2003 he had been arrested (sulaikytas) in Šiauliai town for having insulted police officers but was later released.

In the light of the above, the Court of Appeal concluded that the prosecutor had deliberately and unnecessarily (nepagrįstai) ordered a search for the applicant without first having called him in for questioning or having taken any real measures to establish his whereabouts. The appellate court also found that the prosecutor had deliberately misled the courts in 2005 by providing them with clearly untrue information at a time when those courts were making their decision as to whether or not to detain the applicant. This showed that the prosecutor had other goals in view, but it was not for the Court of Appeal to determine what those other goals might have been. Nevertheless, as a consequence it was possible for the applicant to have been unlawfully detained for almost two years – from 25 May 2005 until 18 May 2007. The Court of Appeal therefore asked the Attorney General’s Office to determine whether the prosecutor’s actions constituted abuse of office, which is a crime under Lithuanian law. The Court of Appeal also emphasised that ‒ as was apparent from the court decision approving the applicant’s detention, on 26 May 2005, and upholding his detention on remand by court rulings adopted between 27 June 2005 and 24 November 2005 ‒ in addition to the European Arrest Warrant issued in 2005, “the search for the applicant [announced in 2002], had been one of the main grounds for ordering his pre-trial detention and for prolonging it”.

On 19 June 2009 the Deputy Attorney General concluded that the prosecutor had not committed any offence. On the contrary, it was the police officers who had not performed their duties properly by failing to locate the applicant (see paragraphs 10, 12 and 15 above), as a result of which it had not been possible for the prosecutor to call the applicant in for questioning. In any case, to call in for questioning a person whose accomplices had been sentenced to long years of imprisonment (see paragraph 9 above) was hardly a measure that would be considered justified in the interests of a successful pre-trial investigation. Once the police had informed the prosecutor of the applicant’s possible whereabouts, the prosecutor immediately ordered the police officers to search those places and to arrest the applicant, who was charged the following day (see paragraphs 17 and 18 above). The prosecutor’s actions had therefore been based on factual circumstances and were lawful. There was no reason to conclude that he had misled the courts when they were deciding whether or not to detain the applicant.

In the view of the Deputy Attorney General, the fact that the prosecutor had referred to the search for the applicant and the European Arrest Warrant in his requests to the court for the applicant’s detention (see paragraphs 14 and 21 above) did not constitute significant grounds for keeping him detained. On the contrary, the courts noted the applicant’s connections abroad, the fact that he owned property abroad, his wealth and the gravity of the crime of which he was suspected. The applicant and his lawyer had, moreover, actively exercised their defence rights in challenging the argument that the applicant had been hiding from investigators. It followed that the applicant’s right to liberty had been restricted on a lawful basis.

Lastly, the Deputy Attorney General established that the actions of a certain police investigator when executing the search for the applicant had been erratic. However, even though his actions could be deemed to constitute a disciplinary offence, the investigator no longer worked in the police force and could not therefore be punished.

The Deputy Attorney General therefore refused to open a pre-trial investigation on the basis of the facts mentioned in the Court of Appeal ruling of 13 March 2009. The decision was sent for inclusion in the applicant’s criminal case file.

By a ruling of 3 November 2009 the Supreme Court again remitted the applicant’s criminal case to the appellate instance for a fresh examination of evidence. The cassation court noted that G.B.’s testimony did not automatically become less credible merely because he had cooperated with the authorities when telling them of R.G.’s assassination, and for that reason the prosecutor requested mitigation of G.B.’s sentence.

On 25 October 2011 the Court of Appeal found the applicant guilty of having put out the contract for R.G.’s murder so that the applicant and others would not have to repay to R.G. debts amounting to between 200,000 and 280,000 US dollars (USD). The applicant was sentenced to five years’ deprivation of liberty.

On 8 May 2012 the Supreme Court re-interpreted the domestic criminal law and upheld the trial court’s verdict, sentencing the applicant to eight years’ deprivation of liberty.

According to the latest information from the applicant’s lawyer, in January 2015 the applicant was released from prison before time.


Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Luis López Guerra;Mārtiņš Mits

The applicant, Ms Natalija Sproģe, is a Latvian national, who was born in 1980 and lives in Riga. She is represented before the Court by Mr W. Bowring, a lawyer practising in London.

The Latvian Government (“the Government”) are represented by their Agent, Ms K. Līce.

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

In the 1940s, following a nationalisation process (for more detailed historical background see Liepājnieks v. Latvia (dec.), no. 37586/06, 2 October 2010) , the applicant’s predecessors settled in an apartment in Čaka street, Riga, which was later rented by the applicant’s father. The applicant and her family lived in the apartment until 2002.

In February 1992 the dwelling house was denationalised and taken over by a private person. The new owner requested the applicant’s family to leave the apartment, alleging that it was unfit for occupation and required urgent repair. The dispute over the right to rent the apartment resulted in several sets of court proceedings between the applicant’s family and the landlord.

In 2000 the landlord brought a claim for eviction of the applicant’s family, without providing alternative accommodation.

On 29 January 2001 Judge T. of the Riga Centre District Court upheld the claim. On the basis of the parties’ statements and case materials, the court found that: (1) even in the absence of a written rental agreement between the parties, the applicant had been renting the contested apartment; (2) the apartment needed renovation and the plaintiff had proved his intention to carry out the necessary work, and therefore the condition for terminating the rental agreement had been met; (3) the plaintiff had warned the tenants about the termination of the rental agreement in accordance with a procedure provided by law.

On 14 March 2002 an appeal by the applicant was dismissed by the Riga Regional Court, which on 27 March 2002 issued an execution order.

The decision became final in August 2002 when the Senate of the Supreme Court dismissed an appeal on points of law by the applicant.

While the above proceedings were pending, in 2001 the landlord brought a claim against the applicant and her family asking the court to order the tenants to give him access to the apartment. He argued that certain parts of the apartment were in a critical condition and required urgent repair owing to the fact that the wooden construction between the floors was decayed and risked collapsing.

On 21 August 2001 Judge T. of the Riga Centre District Court, in the absence of the applicant and her family, upheld the claim. The applicant and her family were duly informed of the proceedings.

The judgment was subject to appeal. Owing to its urgent nature, the lower court ordered the immediate execution of the judgment.

The applicant and the other defendants appealed and refused to implement the judgment. Following the bailiff’s report that execution of the judgment was impossible, Judge T. on 10 September and 16 October 2001 imposed a fine of 50 lati (LVL) (70 euros (EUR)) and LVL 500 (EUR 700) on each of the three defendants, including the applicant. Upon appeal by the applicant, the Riga Regional Court quashed the decisions in a final ruling on 29 January 2002.

Meanwhile, the Administrative Commission of the Riga Municipality Centre District had on various occasions imposed fines on the applicant and her family for failing to allow the landlord to enter the apartment, in breach of the Administrative Offences Code in force at the time. On at least one occasion in January 2002 Judge T. had made a decision relating to an administrative fine imposed on one of the applicant’s family members; in the decision she had identified shortcomings in the administrative offence proceedings and discontinued them. The decision was final.

It appears that on 16 October 2002 a bailiff attempted to carry out the eviction in accordance with the order issued on 27 March 2002. The applicant and her family allegedly refused to leave the apartment, arguing that the eviction was unlawful. The landlord therefore proceeded to have the doors of the apartment opened by force, but it was discovered that the entrance was blocked with furniture and it was impossible to enter. An incident arose between the workers assigned by the bailiff and the people who were at the apartment during the eviction.

On 27 January 2003 the landlord brought a civil claim for damages against the applicant and her family for the broken apartment door and for damage to belongings of other people involved in the incident.

On 30 June 2003 the lower court, in the absence of the defendants, upheld the claim and ordered the defendants to pay LVL 1,979 (around EUR 2,830) in damages.

The applicant appealed, arguing that opening the doors by force had not been necessary, and that the court had failed to establish a causal link between the actions of each of the defendants and the alleged damage.

On 25 April 2005 the Riga Regional Court, sitting as a panel of three judges, examined the applicant’s appeal, with Judge T. as one of the judges. At the beginning of the hearing the applicant challenged Judge T.’s impartiality, arguing that she had evicted her family from the apartment and that therefore she might have an interest in the case.

The court dismissed the objection and since there were no other requests received by the parties, continued to examine the appeal on the merits. In a judgment of 9 May 2005 the court partly upheld the claim. It observed that the applicant’s family had been evicted from the apartment in accordance with a valid court judgment and that witness statements had established that on 16 October 2002 the defendants had objected to the request by the court bailiff. In the court’s opinion there was no doubt that the plaintiff had sustained damage and that the lower court had correctly found that the damage had been caused by the applicant and her family because the eviction concerned all of them.

In an appeal on points of law the applicant noted that she had raised objections against Judge T., listing all the decisions the judge had previously made.

On 8 August 2005 a Senate preparatory meeting refused leave to appeal on points of law and the cassation proceedings were discontinued. The decision did not address the allegations of a lack of impartiality.

Section 14 of the Law on Judicial Power provides that a judge does not have the right to participate in the adjudication of a case if he or she, personally, directly or indirectly, has an interest in the outcome of the case, or if there are other circumstances creating well-founded reasons to question the judge’s impartiality. In such cases a judge must withdraw from the case. If a judge or a lay judge has not withdrawn from the case, anyone participating in the proceedings may request such a withdrawal according to a procedure prescribed by law.

Sections 17 and 19 of the Civil Procedure Law contain similar provisions to those stated above. It also provides that any such requests must be accompanied by sufficient reasons.


CASE OF BOTEZATU v. THE REPUBLIC OF MOLDOVA

Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1978 and lives in Băcioi.

The applicant is a police officer and on 21 July 2004 the Centru District Court delivered a judgment obliging the Chișinău municipality to provide him and his family with social housing. This judgment was upheld by the Chișinău Court of Appeal on 19 October 2004 and became final on 4 November 2004. Enforcement proceedings were instituted on 11 May 2005.

After the communication of the present case to the Government, on 2 August 2011, the applicant initiated court proceedings under Law no. 87 (see paragraph 12 below) seeking enforcement of the final judgment in his favour and compensation for non-pecuniary damage in the amount of 10,000 euros (EUR), for pecuniary damage in the amount of 129,700 Moldovan lei (MDL) (equivalent to EUR 7,886) (MDL 123,200 of which represented the rent he had paid from September 2004 to December 2011 for alternative accommodation and MDL 6,500 of which represented costs and expenses before the Court), and MDL 3,950 (EUR 240) as costs and expenses in domestic proceedings. In support of his claims in respect of pecuniary damage, the applicant submitted four lease contracts, each of them concluded for periods of less than three years.

In court, the Ministry of Finance disputed the validity of the lease contracts, arguing that they were fictitious because the landlady and the applicant were relatives, because the landlady had not applied for commercial registration (patenta de intreprinzator) to earn profits from lease, and because the contracts had not been registered with the tax authorities until 2011 and had never been registered in the land register.

On 30 November 2011 the Rîșcani District Court acknowledged that there had been a violation of the applicant’s rights under Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention resulting from the nonenforcement of the final judgment in his favour for over seven years. The court dismissed the arguments of the Ministry of Finance, holding that the lease contracts had been concluded for periods of less than three years and were therefore not subject to mandatory registration in the land register. The court also took the view that the landlady’s failure to register promptly her lease profits and her commercial activity had resulted in penalties and taxes ‒ which had been paid ‒ but that this failure was anyway not imputable to the applicant and did not affect the validity of the contracts. The court awarded the applicant MDL 112,000 (equivalent to EUR 7,050) in respect of non-pecuniary damage and granted his claims in respect of pecuniary damage and for costs and expenses in full. The Ministry of Finance appealed.

On 29 February 2012 the Chișinău Court of Appeal upheld the appeal, quashed the first-instance judgment and delivered a new judgment, acknowledging a violation of the applicant’s right under Article 6 of the Convention resulting from the non-enforcement of a final judgment for a period of 78 months (from 11 May 2005 to 30 November 2011). The court awarded the applicant MDL 36,000 (equivalent to EUR 2,270) in respect of non-pecuniary damage and MDL 8,965 (EUR 565) for costs and expenses. The court dismissed the applicant’s claims in respect of pecuniary damage as unsubstantiated, arguing that the lease contracts had been ineffective vis à vis the State on the grounds cited by the Ministry of Finance (see paragraph 7 above) and cited Article 876 of the Civil Code. This judgment was final.

On 8 August 2012 the municipality issued the applicant with an occupancy voucher (bon de repartiție), entitling him to move into a new flat.

By a letter of 15 May 2014 the Government informed the Court that the final judgment in the applicant’s favour had been enforced on 8 August 2012. The applicant did not dispute this.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in 1987 and lives in Łomża.

On 7 August 2010 the applicant had a motorcycle accident in which he broke his right arm and right thigh. Between 13 and 22 December 2010 the applicant underwent an arthroscopy on his right knee. Between 25 January and 15 February 2011 the applicant underwent rehabilitation treatment in Łomża Regional Hospital and during this stay no dysfunction was diagnosed in his right foot.

Subsequently, between 28 March and 26 July 2011, he was detained in Białystok Remand Centre. While in prison, he was examined three times (on 1 and 18 April and on 13 May 2011) by an orthopaedist, who observed that the applicant required physical therapy in the light of a limitation of his knee-joint movement, the atrophy of a thigh muscle, and an injury to a peroneal nerve. On 11 April 2011 the applicant was examined by a neurologist who likewise found atrophy of the thigh muscle and impaired bending of the right foot, which he attributed to an injury to the peroneal nerve. The applicant never received any physical therapy during his imprisonment, instead being offered only nonsteroidal anti-inflammatory medicines.

On an unspecified date, but not later than 27 March 2012, the applicant brought a civil action against the State Treasury/Białystok Remand Centre for infringement of his personal rights, claiming that the prison healthcare system had failed to provide him with appropriate medical care during his detention and, moreover, that the cells had not met the minimum spatial requirement of 3 square metres per person and had been mouldy and infested with insects. He requested 200,000 Polish zlotys (PLN) in compensation, the equivalent of approximately 48,300 euros (EUR).

On 27 March 2012 the Białystok Regional Court (Sąd Okręgowy) exempted the applicant from the court fees.

On 20 January 2014 the Białystok Regional Court granted the applicant PLN 23,000 (approximately EUR 5,550) and dismissed the remainder of his action. The court held, particularly on the basis of the medical expert opinion, that the applicant had had a motorcycle accident and had required physical therapy as recommended by the prison orthopaedist. However, he had not been given any, either in prison or outside, which had resulted in a deterioration of his health. The court established that, due to the lack of physical therapy, the applicant had suffered atrophy of the thigh muscle and foot drop affecting his right foot. The court compared this finding with the fact that upon his arrival the applicant had not been suffering from foot drop, the pain in his knee had not been severe, and his right leg muscles had been working more effectively. The court emphasised that the applicant had not been offered proper treatment despite a worsening of his symptoms. These changes in his physical condition would not have been irreversible, but the break in the therapy had entailed a prolonged rehabilitation process. The court stated that the rehabilitation process for the applicant would be long and arduous, a situation which could have been avoided had the defendant acted appropriately. The court held that the applicant had suffered physical pain of significant seriousness, which, in turn, had had negative psychological consequences. The court therefore found the applicant’s claim for compensation for lack of adequate medical care partly justified. The claim concerning the alleged overcrowding and inadequate sanitary conditions was dismissed in full. The court also ordered the applicant to reimburse PLN 3,186 (EUR 766) for the costs of the defendant’s legal representation and PLN 10,932 (EUR 2,628) in court fees (in total: PLN 14,118 (EUR 3,394)).

The applicant did not lodge an appeal against the first-instance judgment.

Following the defendant’s appeal against the judgment, on 12 September 2014 the Białystok Court of Appeal (Sąd Apelacyjny) amended the judgment, reduced the compensation granted to the applicant to PLN 13,000 (EUR 3,095), and upheld the first-instance court’s findings of fact and law. The applicant was not ordered to pay the court fees for the proceedings before that court. This court pointed out that in the experts’ opinions it was not specified, even approximately, what the effects of the negligence might be, how much longer the rehabilitation process would take, or how much stronger the pain had become in comparison to pain experienced previously by the applicant.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life)

Dean Spielmann;Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Ksenija Turković

The first applicant was born in Tanzania. She moved to Denmark in 2001 after marrying the second applicant.

On 7 January 2004 the first applicant gave birth to a boy, L. Because of their marriage, by virtue of section 1, subsection 1, of the Children Act (Børneloven), the second applicant was considered to be L.’s father, and this was recorded by the civil registrar in connection with the child’s birth.

The applicants legally separated on 16 June 2005, but they continued to cohabit until June 2006.

On 12 October 2006 the first applicant gave birth to a boy, S.

Although he no longer lived with the first applicant, and had had no sexual contact with her since 2004, the second applicant nevertheless submitted to the State Administration for Greater Copenhagen (Statsforvaltningen Hovedstaden) (now the State Administration) a declaration, cosigned by the first applicant, stating that together they would take care of and be responsible for S. The declaration was dated 21 December 2006 and received in mid-January 2007. Consequently, the second applicant was registered as S.’s father under section 2, subsection 1, of the Children Act.

Without the knowledge of the second applicant, during the period from 2003 to 2008, the first applicant had also had a relationship with a man called E. When that relationship ended in October 2008, the first applicant told the second applicant that E. was the biological father of S. and probably also of L.

On 29 November 2008, the applicants requested that both paternity cases be reopened in order to establish formally E.’s fatherhood of L. and S. The first applicant submitted, in English, that E. was the children’s biological father and that he “had warned me not to tell the truth about the fatherhood of the children”. Their request was refused by the State Administration on 30 April 2009.

The applicants brought the cases before the City Court (Københavns Byret) before which E. opposed their reopening. The children L. and S., represented by counsel, also objected to the reopening of the paternity cases, finding that the conditions set out in sections 22 and 24 of the Children Act had not been met.

The first applicant explained that she had met the second applicant in Tanzania in 2001. They had married in December 2001 and she had moved to Denmark in 2002. In March 2003, she had met E. on a dating site and they had commenced a relationship and had sexual relations twice a week, on a few occasions without protection. She had become pregnant and informed E., but he had been in a dilemma because he was married at the time. In November 2003 she had been diagnosed as HIV-positive. When L. was born in January 2004 the second applicant was considered to be the father. They had separated in 2005 but had continued to live together until the beginning of 2006. After she and the second applicant had stopped having sexual relations, she had only had sexual relations with E. The latter had said that he would provide support for her and L, but he had never given her any money. He had said that everything would fall into place once he divorced. E. had seen L. several times and taken him swimming or to play in a park. She wanted L. to be introduced to E.’s other children, but E. did not want that. Instead they had agreed that L. should have a sibling and they had planned their sexual activities according to her ovulation cycle in order for her to become pregnant. When S. was born in December 2006, the second applicant had wanted to help her and had therefore acknowledged fatherhood. E. had come to see her at the hospital after she had given birth to S. He knew that he was the biological father of both boys. He had also acknowledged that in several emails and text messages to her. Moreover, E.’s mother had met the boys and had said that L. reminded her of E. when he was a child. E. had never contributed financially to the care of the children. In 2008 she had told E. that he would have to take care of the children soon and that she would report to the authorities that he was the biological father. He had replied that he did not want any responsibility for the children and ended their relationship. She wanted the boys to know their true identity while she was alive. L. was confused about the situation and had said “my father is uncle E., but my old father is [the second applicant]”.

The second applicant confirmed that he and the first applicant had not had a sexual relationship since L.’s birth. He believed that L. was his son. He was aware that S. was not his son, but since the boys would grow up together he felt it important to treat them equally and he also wanted to help and support the first applicant. In the autumn of 2008 he had been told about E. At the beginning of 2009 he had overheard a telephone conversation between the first applicant and E., during which E. had talked about the boys as “our children” both in Danish and English. E. had stated that he did not want to take financial responsibility for the boys. The second applicant still saw the boys regularly and would continue to do so after the case had been settled. He felt that the biological father should take responsibility, including financial responsibility, and that the boys should know their identity.

E. explained that he had two adult children from a previous marriage. He had met the first applicant in April or May 2003 but at the time they could not meet very often, because they were both married. The relationship was purely sexual, and he had no feelings for the first applicant. Their relationship had continued until 2008. They had met in the first applicant’s home or in swinger clubs or in hotels. They had had sexual relations in swinger clubs from spring 2003 until 2007. He and another man had had sexual relations with her at the same time, but he could not recall when. The first applicant had given him the impression that she protected herself. He had chosen to use a condom. He might be L.’s father, but they had not as such discussed the matter at the time. He had not wanted a child, whereas the first applicant had. She had told him that she would take care of the child herself. In December 2004, due to the applicants’ separation, the first applicant had taken an apartment on her own and E. had visited her and L. there. L. called him “uncle E”. Their sexual relationship had continued in 2005 but the first applicant had told him that she had also met other men on a dating site. In 2006 they had had sexual relations regularly, including in a swinger club once or twice. They had made a plan for the first applicant to become pregnant again and thought that it would be good for L. to have a sibling. He could not remember whether they had had sexual relations in the fertile period between December 2005 and 26 February 2006 and they had not discussed whether he was the biological father. He had visited the first applicant in hospital in connection with the birth. He had found it natural that the second applicant should be father to the children since he was married to the first applicant. He had never behaved like a father to the children: he was still “uncle E”. It was true that he had gone swimming with L. once in October 2008 and that he had told his mother that he might be the children’s father. The relationship between him and the first applicant had ended because she had not told him that she was HIV-positive.

By decision of 11 February 2010, the City Court in Copenhagen decided to reopen the paternity cases.

Regarding L., the City Court noted that both the second applicant and E. had had a sexual relationship with the first applicant during the fertile period and that the request for reopening the cases had been lodged more than three years after L.’s birth.

Regarding S., the City Court noted that E. and the first applicant had had sexual relations in the relevant fertile period. The Court did not find it established that the first applicant had had sexual relations with other men during that period. The request for a reopening had been lodged less than three years after S.’s birth.

The court took into account the disadvantage to which the children might be subject in case of a reopening, including the risk that paternity might not be established. It found it established that the first applicant had allowed both men to treat the children as theirs; that E. had taken on a paternal role; that E. had had frequent and regular contact with both children; that E. had taken L. swimming; that E. had taken the children with him on trips, to birthday parties and so on; and that E. was spoken of in familiar terms by the children.

In respect of S. new information and circumstances in the case gave reason to believe that a mistake might have been made when registering paternity and that there might be a different outcome. Accordingly, that case was to be reopened.

Moreover, having assessed overall the interests of the children and the union of the family, and the fact that the children would not be subjected to unnecessary inconvenience by a reopening, and since it was expected that paternity would be established, the court found that, exceptionally, both cases should be reopened.

E. appealed against the decision to the High Court of Eastern Denmark (Østre Landsret), before which the applicants and E. were heard anew. E. added that he had moved to Sweden in August 2008 and thereafter had had no contact with the first applicant or the children. From 2004 to 2008 he had visited the first applicant for two to four hours, once or twice every month. He had become a sort of uncle for the children. He could not rule out that he was the father of the children but he would not voluntarily submit to a DNA test, since he would never be able take on the role of being their father.

The first applicant added, amongst other things, that E. had given the children presents. They had both received a teddy bear when they were born. They had also received a book with 100 Danish kroner (DKK) (approximately 13 euros (EUR)). When L. had turned two years old, he had received a birthday card with the text: “Dear L., happy birthday, love daddy”. The children were still in contact with the second applicant.

The second applicant added that he would keep in contact with the children but that he had withdrawn after learning that he was not their father. He mainly took care of the children when the first applicant needed help due to her illness.

By decision of 26 November 2010 the High Court refused to reopen the paternity cases.

The majority (two judges) noted that it was not until the proceedings on paternity that the applicants had informed the authorities that they had not had sexual contact in the fertile period as regards S. Moreover, despite giving the children the impression that E. was their biological father, the second applicant had continued to treat the children as his own, at least until the end of 2008. In these circumstances, and since it was uncertain whether paternity would be established for the children if the paternity cases were to be reopened, they did not find a basis for reopening the case regarding S. under section 24 the Children Act. By the same line of reasoning, they did not find a basis for reopening the paternity case regarding L. under the stricter conditions set out in section 25 taken in conjunction with section 24 of the Children Act.

The minority (one judge) agreed with the decision by the City Court, mainly with the same reasoning. In addition he pointed out that the second applicant had not been aware until autumn 2008 that the first applicant and E. had had a long relationship, and that he was probably not L.’s father. Furthermore, the second applicant had withdrawn from the children after learning about E. and he saw them mainly in order to help the first applicant. Finally, the minority took into account that both children openly stated that it was E., and not the second applicant, who was their father.

Subsequently, the second applicant took a DNA paternity test regarding both children which turned out negative with 0% compatibility, thus proving that he was not the father of L. or S.

The applicants submitted this result to the Appeals Permission Board (Procesbevillingsnævnet) and requested leave to appeal to the Supreme Court (Højesteret), which was refused on 28 January 2011.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

The applicant, is a French citizen, who was born in 1969 and lives in Gaillard, France.

In 2003 the applicant met K.B.V., a Hungarian national. In 2009 K.B.V. moved to France and the couple lived together in the applicant’s flat in Gaillard. On 18 October 2013 their son, L., was born. In December 2013 the couple spent the Christmas holidays with the applicant’s family in Nancy. The applicant returned to their home on 27 December 2013.

On 28 December 2013 K.B.V. lodged a complaint against the applicant in Toul. She alleged that the applicant had become hostile and sometimes aggressive towards her and constituted a danger to her and their son.

On 4 January 2014 K.B.V. left for Hungary with L, without the prior knowledge or authorisation of the applicant. Since then K.B.V. has lived with L. at her parents’ home in Szombathely.

On 9 January 2014 K.B.V. initiated custody proceedings in respect of L. before the Szombathely District Court.

On 7 February 2014 the applicant instigated proceedings before the Thonon-Les-Bains tribunal de grande instance. On 24 March 2014 the court found that L. had been illegally taken from France, placed the son with his father (that is to say the applicant), and granted the applicant sole custody. The court ordered the provisional execution of the judgment. Following an appeal by K.B.V., in a judgment of 22 July 2014, the Chambery Court of Appeal granted K.B.V. the right to have supervised contact every other Saturday between 2 p.m. and 4 p.m., awarded the parents joint custody, and upheld the remainder of the first-instance decision.

On 28 January 2015 the Chambery Court of Appeal issued a certificate of enforceability under Article 39 of Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (known “the Brussels II bis Regulation”).

On 23 September 2015 the Court of Cassation quashed the secondinstance judgment of the Chambery Court of Appeal and remitted the case to the Lyon Court of Appeal.

On 10 December 2014 the Pest Central District Court received from the applicant a request under the Hague Convention on the Civil Aspects of International Child Abduction (Articles 11-12) and the Brussels II bis Regulation for the child to be returned to France. The applicant maintained that L.’s place of residence was in France and that under French law parents exercised their custody rights jointly. K.B.V. had decided on the child’s place of residence without his approval. On 17 November and 4 and 12 December 2014, and 8, 22 and 28 January and 9 February 2015 the court examined the request in the presence of both parents.

By a decision of 12 February 2015 the Pest Central District Court dismissed the request under Article 11 of the Hague Convention and Article 11 of the Brussels II bis Regulation. Relying on the definition of child abduction, as provided in Article 3 of the Hague Convention, the court found that K.B.V. had abducted L. from his habitual residence in France, where the parents had exercised their custody rights jointly. However, on the basis of the evidence before it, the court concluded that if L. (who was still being breastfed) were returned to France, he would be placed in uncertain circumstances, only seeing his mother every second week for a couple of hours. It emphasised that according to the applicant’s own submissions, he was away from home from 7 a.m. until 10 p.m. and that it would be difficult for him to look after the child during weekends. Thus, as he suggested, his sister would look after L. The court also noted that the applicant had lodged his request almost a year after L.’s abduction and that although he had visited Hungary on a number of occasions, he had not been in contact with L. Thus, the court dismissed the applicant’s request under Article 13(b) of the Hague Convention.

The Budapest High Court upheld the first-instance decision on 28 April 2015. It reiterated the conclusion of the first-instance court that there was a grave risk that L.’s return to France would expose him to harm. In this aspect the court found relevant that L. was only one and a half years old and if returned to France he would be deprived of all maternal care. Thus, under Article 13 of the Hague Convention, the Hungarian courts were not bound to order the child’s return. The court also held that Article 11 § 4 of the Brussels II bis Regulation was not applicable, since no measures or arrangements were available to secure the protection of L. after his return.

The applicant lodged a petition for judicial review of this decision with the Kúria. He argued that Article 13 of the Hague Convention was applicable to exceptional circumstances only and that neither the child’s age nor his closer connection to his mother had any bearing on the matter and could not constitute a decisive element in the decision to refuse to order the child’s return to his habitual residence. He also argued that he had contributed to the child’s care and that his employment, which allowed him to provide for his family, could not be held against him. Furthermore, the decisions had failed to take into account L.’s best interests, which lay in his being raised by both of his parents. He also maintained that his lack of contact with L. was due to K.B.V.’s own conduct and the fact that he had not been aware of the child’s place of residence until August 2014. Finally, the lower-instance courts had not respected the six-week deadline stipulated by the Brussels II bis Regulation.

The Kúria dismissed the applicant’s petition for judicial review on 6 October 2015. According to its reasoning both the Brussels II bis Regulation and the Hague Convention had established the presumption that a child’s interests could best be served by his immediate return to his habitual residence. However, under Article 13 of the Hague Convention this presumption could be rebutted in exceptional circumstances. It agreed with the applicant that the child’s young age, his close connection to the parent living in Hungary and his Hungarian roots could not serve as a basis for the refusal to order his return to France. It nonetheless held that at the time of his abduction L. had only been two and a half months old and that a considerable time had passed without him having contact with the applicant. The reason for this was that the applicant had refused to see L. at the premises of a child protection service, as suggested by K.B.V. The Kúria also found it important that according to the applicant’s own statements his sister would take care of L. if the child were returned to France and that, according to the decision of the French courts, K.B.V. would only have very limited contact with L. Furthermore, there was no information about any measure of protection envisaged in the event of L.’s return. Thus, the Kúria concluded that the return of the child, who was less than two years old, to an unknown environment would cause serious psychological harm.

On 9 January 2014 K.B.V. initiated custody proceedings in respect of L. before the Szombathely District Court; she also requested the court to adopt an interim measure placing L. under her custody.

On 27 August 2014 the District Court discontinued the proceedings, regard being had to the judgments delivered by the French courts. On 31 October 2014 the Szombathely High Court overturned this decision and ordered the District Court to examine whether the judgments of the French courts could be recognised and if not whether it had jurisdiction in the matter.

On 5 January 2015 the District Court discontinued the proceedings again, finding that K.B.V. could have exercised her procedural rights before the French courts, submitting her written observations through her representative in the course of the appellate proceedings. This decision was overturned again by the High Court on 5 March 2015 owing to procedural errors.

On 22 April 2015 the applicant tried to abduct L., who was walking with his grandfather on the street. Following the incident K.B.V. lodged a criminal complaint against the applicant and requested that a restriction order be imposed on him. On 8 May 2015 the Szombathely District Court issued a restriction order in respect of the applicant, which was subsequently overturned on appeal on the grounds that the mother herself had not been a victim of violent behaviour on the part of the applicant.

On 30 April 2015, in an interim decision, the District Court decided not to recognise the judgments adopted by the Thonon-Les-Bains tribunal de grande instance and the Chambery Court of Appeal, established that it did have jurisdiction in the matter, and temporarily placed L. in his mother’s sole custody. According to the District Court the French courts had found that the interests of the child could best be served by his return to France. However, the proceedings before the Thonon-Les-Bains tribunal de grande instance had failed to respect K.B.V.’s right to a fair trial, since – owing to the fact that the applicant had given false information to the French authorities – she had not been informed of the proceedings and had not been able to be heard in person. Thus, the court concluded that the decision could not be recognised, pursuant to Articles 21 § 4 and 23(d) of the Brussels II bis Regulation. It also held that it had jurisdiction under Article 8 (1) of the Brussels II bis Regulation, since the child’s habitual residence was in Hungary. As to the interim resolution of custody rights, the Court held that the interests of the child could be best served if he remained in his habitual environment – that is to say in the company of his mother and maternal grandparents – and that removing him from Hungary would pose a risk of causing him psychological harm.

Following a further appeal, on 11 August 2015 the Szombathely High Court overturned the decision concerning custody rights and remitted the case to the first-instance court. As to the decision on the non-recognition of the judgments delivered by the French courts, it found that recognition could not be refused on the basis that K.B.V. had not been heard in person before the French courts, since the Brussels II bis Regulation did not stipulate such an obligation and the mother could have submitted written observations. Nonetheless, the court found that the recognition of the foreign judgments could not be recognised, pursuant to Article 23(b) of the Brussels II bis Regulation, since recognition would have been contrary to the public policy of Hungary, given that the best interests of the child had only been respected in a formalistic way. According to the High Court, restricting the mother’s contact with L. to two hours every second week would have caused harm to L., especially since the applicant himself had stated that L. would be looked after by his sister. The court also had regard to the forensic psychiatric opinion prepared by Dr Gy.L.K. on 28 August 2014 and supplemented by L.K. on 6 March 2015, according to which from a psychological point of view – the enforcement of the French courts’ judgment would constitute “institutional abuse”. Furthermore, the court found that no measures were being contemplated by the applicant to ensure the protection of the child after his return to France.

A petition for judicial review lodged by the applicant with the Kúria was dismissed as time-barred on 15 January 2016.

On 13 July 2015, in the course of the custody proceedings, the applicant also lodged a request for an interim measure regulating his access rights.

On 8 December 2015 the applicant abducted L. from K.B.V., in the course of which he caused grievous bodily harm to her. L was taken to France.

On 10 December 2015 the Szombathely District Court issued an interim decision on the exercise of parental custody and access rights. It noted that since January 2014 the applicant had seen his son only three times and had been in contact with him seven or eight times via Skype. It held that L. needed to have contact with his father and therefore ruled that the applicant could visit him for three hours every second weekend and could contact him via Skype every other weekend. Given the applicant’s violent behaviour towards the mother (and previously towards the child’s grandfather – see paragraph 22 above), the court held that the applicant’s visits should take place under supervision. The applicant appealed.

On 11 December 2015 the Szombathely District Court issued a European arrest warrant against the applicant, who was detained in France on 14 December 2015. L. was placed in a childcare institution.

By a decision of 24 December 2015 the Thonon-Les-Bains tribunal de grande instance found that the applicant had endangered the child’s development and temporarily placed L. in his mother’s custody. The applicant was granted access rights, in accordance with the Szombathely District Court’s decision of 10 December 2015. The applicant appealed against this decision.

L. was returned to Hungary on 28 December 2015.

On 3 February 2016 the Szombathely High Court upheld the decision of the District Court of 10 December 2015 on the temporary placement of L. in his mother’s custody, emphasising that the ThononLesBains tribunal de grande instance had arrived at the same conclusion.

In the meantime, on 24 February 2015 the applicant applied for the execution of the judgments delivered by the Thonon-Les-Bains tribunal de grande instance and the Chambery Court of Appeal.

On 7 September 2015 the Szombathely District Court dismissed the application, relying on the decision of the Szombathely High Court of 11 August 2015 on the non-recognition of the French courts’ judgments. It relied on Article 23(a) of the Brussels II bis Regulation.

The applicant appealed, arguing that the District Court had erred in finding that the decision on the non-recognition of the French courts’ judgments was relevant in the case. Since in the meantime the Court of Cassation had overturned the judgment of the Chambery Court of Appeal, the applicant requested the enforcement of the judgment of the ThononLesBains tribunal de grande instance and maintained that this judgment had been declared automatically enforceable. The Szombathely High Court held that the judgment of the Thonon-Les-Bains tribunal de grande instance, under which no rights at all were granted to the mother at all, was contrary to the public policy of Hungary since it did not respect fundamental rights, and in particular the best interest of the child, and refused by a decision of 10 December 2015 to execute it.


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

The applicant was born in 1970 and lives in Riga.

On 23 April 2003 criminal proceedings were instituted.

On 29 April 2003 the applicant was arrested on suspicion of attempted bribery.

On 2 May 2003 the applicant was detained on remand. On 25 July 2003 he was released and police supervision was imposed instead, under which he was obliged not to leave his home district without the authorisation of the investigation authorities, and to report to the local police department twice a week.

On 27 November 2003 a bill of indictment was served on the applicant and his two co-accused (D.E. and V.M.). On 2 December 2003 a judge of the Riga Regional Court (Rīgas apgabaltiesa) accepted the criminal case for trial. The first hearing was scheduled to take place from 1 to 4 August 2005.

On 1 August 2005 the hearing was adjourned for an indefinite period owing to D.E.’s poor state of health and the fact that the applicant’s defence lawyer was on vacation.

On 1 October 2005 the new Criminal Procedure Law entered into force; it introduced new rules concerning, inter alia, conflicts of interest faced by judges. In the light of the new rules, on 22 February 2006 the hearing was adjourned because one of the judges of the Riga Regional Court had had to recuse herself from the trial.

On 31 July 2006 the hearing was adjourned because the prosecutor and the applicant’s defence lawyer were due to go away on holiday.

On 13 November 2006 the hearing was adjourned once again owing to D.E.’s poor state of health. On 15 November 2006 a judge from the Riga Regional Court requested the hospital in which D.E. was being treated to provide information about her state of health. On 20 November 2006 the court was informed that D.E. had been discharged from the hospital and placed under the care of her family doctor.

On 27 February 2007 the hearing was adjourned for unspecified reasons.

On 26 June 2007 the hearing was adjourned again owing to D.E.’s poor state of health. On the same day the Riga Regional Court ordered that D.E. undergo a medical examination in order for her capacity to participate in the proceedings to be determined. The findings of that examination were delivered less than one month later and indicated that D.E. was able to participate in the proceedings.

On 27 September 2007 the Riga Regional Court scheduled the next hearing for 27 December 2007. On 18 October 2007 D.E.’s lawyer requested that that hearing be rescheduled in order to accommodate his taking planned holidays. The court dismissed that request, noting that six hearings had already been adjourned and that further delays in the proceedings could not be allowed.

On 27 December 2007 the hearing was adjourned, as the prosecution needed to replace the charge against the applicant with a more lenient one.

On 11 January 2008 the Riga Regional Court started to hear the parties’ arguments regarding the merits of the case. On 15 January 2008 it convicted the applicant of attempted bribery and sentenced him to three years’ imprisonment.

On 4 February 2008 the applicant submitted an appeal. On 1 December 2008 the appellate court upheld the lower court’s judgment.

On 30 December 2008 the applicant lodged an appeal on points of law, arguing, inter alia, that his right to a trial within a reasonable time had been breached. In this respect he referred to several provisions of national and international law, including Article 6 § 1 of the Convention.

By a final decision of 26 January 2009 the Senate of the Supreme Court (Augstākās tiesas Senāts) refused the applicant leave to appeal on points of law, noting, inter alia, that the applicant’s “reference to violations of certain laws and international legal provisions was formalistic.”


KLIMAT INKOM V & CO OOD AND OTHERS v. BULGARIA

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant company, Klimat Inkom V & Co OOD, was a Bulgarian limited liability company which had its registered office in Sofia. It was wholly owned by the two individual applicants, Mr Danail Kirilov Vidolov and Ms Vera Gancheva Vidolova, Bulgarian nationals who were born in 1941 and 1946 respectively. Mr Danail Kirilov Vidolov lives in Sofia.

Ms Vera Gancheva Vidolova died on 23 May 2014. In a letter dated 14 December 2016, her heirs ‒ Mr Danail Kirilov Vidolov, Mr Kiril Danailov Vidolov and Mr Daniel Danailov Kirilov ‒ expressed their wish to pursue the application in her stead.

The applicant company was wound up in 2015.

The applicants and Ms Vidolova’s heirs were represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimitrova, of the Ministry of Justice.

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

The State-owned company Incoms was created in 1989 as the successor of a previously existing State-owned enterprise. In 1991 it was registered as a joint-stock company with its registered place of business in Sofia. At that time it was wholly owned by the State.

In 1992 Parliament passed the Transformation and Privatisation of State and MunicipallyOwned Enterprises Act (hereinafter “the Transformation and Privatisation Act”). Pursuant to section 17a thereof (see paragraph 20 below), the company became the owner of the properties it had until then used and managed. In 1994 the company was renamed Incoms-Telecom Holding EAD.

On an unspecified date a decision was taken to privatise IncomsTelecom Holding EAD.

In early 1996 the company management took a decision to put up for sale some of the company’s properties, namely two industrial buildings in Sofia covering areas of 530 and 1,590 square metres respectively, as well as the plot of land on which they stood, which measured 5,152 square metres (hereinafter “the properties”). Since privatisation of the company was planned, the sale had to be authorised by the Council of Ministers (a requirement under section 21(2) of the Transformation and Privatisation Act – see paragraph 23 below). On 14 June 1996 the Council of Ministers authorised the sale, in a decision which stated in addition that the sale would be carried out in accordance with section 18(2) of the 1994 Regulations on the Exercise of the State’s Property Rights in Enterprises (hereinafter “the 1994 Regulations”, see paragraph 24 below).

On 23 August 1996 Incoms-Telecom Holding EAD and the applicant company concluded a preliminary contract for the sale of the properties. The final contract was signed on 5 February 1997 (hereinafter “the 1997 contract”). In July 1997 the applicant company paid in full the agreed price, which at the time was the equivalent of approximately 22,000 euros (EUR).

In August 1997 the applicant company took possession of the properties and started using them. The buildings appear to have been in a bad state of repair and it made substantial improvements to them. According to an expert assessment submitted by Mr Vidolov and Ms Vidolova’s heirs, in December 2016 the value of the properties was EUR 2,610,900. However, as the parties have provided to the Court no assessment of the value of the improvements made after 1997, it is unclear to what extent the increased value in 2016 was the result of price changes in the real estate market and to what extent – to the improvements made by the applicant company.

Incoms-Telecom Holding EAD was privatised in 2002, after which its name was changed to Incoms-Telecom Holding AD.

In 2003 that company brought against the applicant company a rei vindicatio action, reclaiming the properties. It argued that the 1997 sale contract had been null and void because, in particular, it had not been concluded before a notary as required by law; consequently, the applicant company had never validly acquired the properties.

The action was allowed on 4 June 2004 by the Sofia District Court. It noted at the outset that the sale would only have been valid if it had been duly authorised by the Council of Ministers, as required by law. However, the authorisation given on 14 June 1996 (see paragraph 10 above) had been too general and had not specified the properties concerned.

In addition, the Sofia District Court noted that the 1997 contract was null and void because it had not been concluded before a notary. There was no reason to conclude that the general requirement of section 18 of the Obligations and Contracts Act (see paragraph 26 below) did not apply to it, as it did not fall within any of the exceptions provided for by law. In particular, the contract at issue was not a privatisation contract because it did not fall within the scope of the Transformation and Privatisation Act, as defined under its section 1(3) (see paragraph 21 below), and because its subject matter did not concern State-owned properties, the properties at issue having already come into the private ownership of the company Incoms on the strength of section 17a of the Transformation and Privatisation Act (see paragraph 8 above). Nor could section 18(2) of the 1994 Regulations (see paragraph 24 below), which the applicant company had relied on, provide a legal basis for concluding that the requirement laid down in section 18 of the Obligations and Contracts Act was inapplicable. Thus, the 1997 contract, which had not been concluded before a notary, was null and void ab initio.

The contract’s nullity meant that the applicant company had been a possessor in bad faith of the properties after August 1997 and could only acquire those properties through adverse possession after the expiry of a period of ten years. Since the claimant had brought an action in 2003, that period had not expired. Accordingly, the applicant company was not the owner of the properties and had to surrender possession to the claimant.

On 26 February 2007 and 27 April 2009 respectively the above conclusions were endorsed by the Sofia City Court and the Supreme Court of Cassation. The applicant company surrendered possession of the properties in 2007.

In separate proceedings, in 2007 Incoms-Telecom Holding AD requested that the applicant company be declared insolvent. Even though the request was not granted until 2011, a trustee for the applicant company was appointed in April 2008. After the liquidation proceedings were completed, the applicant company was wound up by a court judgment of 5 November 2015.

After 1989, Parliament passed several pieces of legislation providing for the transformation of State-owned enterprises into companies and the privatisation of such companies. The Transformation and Privatisation Act (Закон за преобразуване и приватизация на държавни и общински предприятия) was adopted in 1992. Its section 17a provided in particular that, in the process of transforming a State enterprise, ownership of real estate or other assets that had been used and managed by it should be deemed to pass to the company succeeding it.

Privatisation was defined under section 1(3) of the Transformation and Privatisation Act as

“the transfer to private persons or legal entities of

shares in companies owned by the State and the municipalities;

ownership of entire enterprises, parts of them, assets of liquidated enterprises or properties under construction;

State or municipality-owned non-residential properties not included in State or municipally-owned enterprises and used for commercial purposes (such as shops, workshops, warehouses and repair shops).”

Pursuant to the Transformation and Privatisation Act and the secondary legislation adopted in the course of its implementation, the stages of a privatisation procedure were as follows: a legal analysis of the property to be privatised was conducted; based on that analysis, the competent authority took a decision to privatise and chose the appropriate method (auction, competition, negotiations); that decision was published in the State Gazette; an independent analysis of the company or assets to be privatised was conducted and the conditions for participation in the auction or competition were announced; the buyers were chosen and a privatisation contract was concluded; and lastly, a specialised body was charged with exercising post-privatisation supervision. The privatisation contract did not need to be concluded before a notary. Such contracts would often contain additional obligations for the buyer, such as the preservation or creation of jobs, or the introduction of measures for environmental protection or to ensure continuation of the privatised company’s activity.

Once a decision to privatise had been taken, the company to be privatised was banned from selling or otherwise transferring its fixed assets unless authorised by the body competent to conduct the privatisation (section 21(2) of the Transformation and Privatisation Act).

The Regulations on the Exercise of the State’s Property Rights in Enterprises, adopted in 1994 (Правилник за реда за упражняване правата на собственост на държавата в предприятията – “the 1994 Regulations”), were part of the secondary legislation implementing the Transformation and Privatisation Act. Their section 18 provided that fixed assets of State-owned companies could only be sold or transferred to private parties after an auction or a competition (paragraph 1), except where the competent State body had authorised direct negotiations with potential buyers (paragraph 2).

In 2002 the Transformation and Privatisation Act was superseded by other legislation.

Section 18 of the Obligations and Contracts Act (Закон за задълженията и договорите) requires that all contracts concerning rights in rem should be concluded before a notary (“с нотариален акт”).

Section 26(2) of the Act provides that if the appropriate procedure (“предписана от закона форма”) has not been observed, a contract will be null and void. Pursuant to section 34, when a contract is declared null and void, each of the parties is under an obligation to return everything it has received.

By section 110 of the Act, except where provided otherwise, all claims lapse after the expiry of five years. Where the claim is for the recovery of something given under a contract which was in fact null and void, the period at issue is considered to start from the moment the contract was concluded (Постановление № 1 от 28.V.1979 г. по гр. д. № 1/79 г., Пленум на ВС; Решение № 172 от 21.03.2011 г. на ВКС по гр. д. № 80/2010 г., IV г. о., ГК; Решение № 100 от 20.06.2011 г. на ВКС по т. д. № 194/2010 г., TК, II т.о.). Limitation periods are not to be applied by the courts of their own motion, but only when an objection has been raised by the interested party (section 120 of the Act).

Real property can be acquired through adverse possession after either five or ten years of possession, depending on whether the possessor acted in good or bad faith (section 79 of the Property Act – Закон за собствеността). Possession based on a null and void transaction is always considered to have been in bad faith (Постановление № 6 от 27.XII.1974 г. по гр. д. № 9/74 г., Пленум на ВС; Решение № 5268 от 9.07.2013 г. на СГС по гр. д. № 9074/2010 г.).

A possessor in bad faith who has been found not to be the owner of a property can claim from the owner the expenses incurred for the property’s upkeep (section 73(2) of the Act). If improvements have been made to the property, he or she can claim the lesser of the amount spent on those improvements and the amount by which the property’s value has augmented as a result (section 74(1)). Where the owner was aware that improvements were being made to the property and did not object, the possessor in bad faith can in any event claim, if higher, the amount by which the property’s value has augmented (section 74(2) in conjunction with section 72(1)). Limitation periods for claiming the value of improvements start to run when a property claim ‒ such as a rei vindicatio claim ‒ is brought, or when the possession of the property at issue is otherwise disturbed (Постановление № 6 от 27.XII.1974 г. по гр. д. № 9/74 г., Пленум на ВС).


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Substantive aspect)

On 13 October 2008 the applicant’s son, Mr Ry., was found dead in the pond which he had been guarding as a night watchman.

On the following day a post-mortem examination was completed. It concluded that Mr Ry. had drowned. A number of bruises and sores were discovered on his chest. The expert assessed those injuries as insignificant and considered that they had been inflicted by blunt hard objects.

During the period from October 2008 to February 2013 the police refused to institute criminal proceedings in respect of the death fifteen times. All those rulings were quashed by the prosecution authorities or the courts for superficiality and incompleteness of the investigation undertaken.

On 7 February 2013, following the entry into force of the new Code of Criminal Procedure in November 2012, the case was registered in the Unified Register of Pre-Trial Investigations.

Thereafter the police terminated the criminal investigation twice having found that there was no indication of a homicide. Both those decisions were quashed.

As of April 2014 the pre-trial investigation was ongoing.