Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani

The applicant was born in 1942 and lives in Maribor.

The Socialist Federal Republic of Yugoslavia (“the SFRY”) was a federal State composed of six republics: Bosnia and Herzegovina, Croatia, Serbia, Slovenia, Montenegro and Macedonia. Nationals of the SFRY had “dual citizenship” for internal purposes, that is to say they were citizens of both the SFRY and one of the six republics. They had freedom of movement within the federal State and could register as permanent residents wherever they settled on its territory.

The SFRY had two pension systems – military and civil. The pension rights of military personnel were regulated by and secured through the federal authorities. In particular, members of the Yugoslav People’s Army (hereinafter “the YPA”), the armed forces of the SFRY, paid their contributions to and received their pensions from a special military pension fund based in Belgrade (Zavod za socialno osiguranje vojnih osiguranika, hereinafter “the YPA Fund”). The YPA Fund paid pensions to military pensioners irrespective of where they undertook military service or lived once retired. This was the only pension fund existing at federal level. In parallel, each republic had in place its own pension legislation and public pension fund set up for the payment of civil pensions.

Between 1991 and 1992 the SFRY broke up. On 25 June 1991 Slovenia declared its independence.

In 1992 the Slovenian Government issued the Ordinance on the payment of advances on military pensions (see paragraph 28 below, hereinafter “the Ordinance”) which regulated, on a temporary basis, the payment of military pensions to former YPA military personnel residing in the Republic of Slovenia who had applied for or fulfilled the conditions for retirement under the rules governing the pension and disability insurance of military personnel (hereinafter “the SFRY military rules”) by 18 October 1991, the date of withdrawal of the YPA from Slovenia (see P.P. v. Slovenia, no. 39923/98, Commission decision of 1 July 1998, Decisions and Reports (DR) 3, p. 25). This was followed in 1998 by a new Act on the Rights Stemming from the Pension and Disability Insurance of Former Military Personnel (see paragraph 29 below, hereinafter “the 1998 Act”) which put in place a comprehensive regulatory framework for the pension rights of former YPA military personnel, in most cases allowing for pensions to be paid only to Slovenian nationals.

In 1994 the Federal Republic of Yugoslavia (succeeded in 2006 by Serbia) transformed the YPA Fund (see paragraph 7 above) into the Social Insurance Fund of Military Personnel of the Federal Republic of Yugoslavia on the basis of the Yugoslav Army Act. The (transformed) YPA Fund continued paying YPA pensions to the citizens of the Federal Republic of Yugoslavia. However, it remains uncertain to what extent, if at all, the YPA Fund continued paying YPA pensions to the citizens of the Federal Republic of Yugoslavia residing in the other former SFRY republics (see also, mutatis mutandis, Kudumija v. Bosnia and Herzegovina and Serbia, and Remenović and Mašović v. Bosnia and Herzegovina, (dec.), nos. 28233/08 and 2 others, § 11, 4 June 2013).

At the inter-State level, however, the question of responsibility for the payment of pensions to military personnel who had acquired or applied for pensions with the YPA Fund under the rules governing the pension and disability insurance of military personnel (hereinafter “the SFRY military rules”) remained unresolved until the Agreement on Succession Issues entered into force in 2004 (see paragraph 30 below).

The applicant was a citizen of the Republic of Serbia in the SFRY. Following its dissolution, he retained citizenship of the then Federal Republic of Yugoslavia. He has been residing in Slovenia since 1964 and has had permanent resident status since 1981. In 1969 he married a Slovenian woman, with whom he had two children. He was a non-commissioned officer in active military service in the YPA until 30 September 1991, when he retired.

On 16 July 1991 he applied for retirement to the Maribor military district headquarters, and was then “available” (na razpolago) until his retirement. On 13 November 1991 the YPA Fund found him to be entitled to an old-age pension under the SFRY military rules as from 1 October 1991 with more than forty-one pensionable years with bonus (benificirana doba) in the YPA. The applicant maintained that he had only received his pension from the YPA Fund twice (in November 1991 and January 1992), when he had personally gone to Belgrade to collect it.

On 23 October 1991 the applicant applied for Slovenian citizenship under section 40 of the Citizenship Act (see paragraph 26 below). By a decision of 11 July 1992 the Ministry of Interior dismissed his application. It based its decision on section 40(3) and section 10(1)(8) of the Citizenship Act, which stipulated that the Ministry was allowed to refuse an application where there was reason to believe that the person posed a threat to public order, security or national defence. After the Constitutional Court quashed the decision and the case was remitted to the Ministry of Interior for fresh consideration, the latter on 2 September 1997 again dismissed his application on the same grounds. The applicant instituted court proceedings, which were unsuccessful. On 13 October 2005 the Constitutional Court rejected a constitutional complaint by him on the grounds that it was no longer relevant because he had acquired Slovenian citizenship in 2003 (see paragraph 19 below).

On 27 February 1992 the applicant applied for an advance on his military pension under the Ordinance (see paragraph 28 below). On 29 April 1993 he requested the YPA Fund to discontinue the payment of his pension. By a decision of 17 May 1993 his payments were stopped with effect from 31 January 1992. The applicant lodged this request after realising that the Pension and Disability Insurance Institute of Slovenia (hereinafter “the Institute”) only granted advances under the Ordinance provided that the YPA Fund stopped paying the pension. By a decision of 5 May 1993 the Institute found that the applicant had been entitled to such an advance starting from 1 November 1991. It held that he had been a permanent resident of Slovenia since 1 April 1981 and had fulfilled the conditions for pension entitlement under the SFRY military rules by 18 October 1991.

On 13 October 1998 the Institute, on the basis of section 25 of the 1998 Act (see paragraph 29 below), issued of its own motion a decision not to convert the applicant’s advance on his military pension into an old-age pension under the 1998 Act. His advance was suspended as of 31 October 1998. The Institute decided that since the applicant had been in active military service in the YPA from 25 June to 18 July 1991 and from 18 July 1991 had been on leave, he did not fulfil the statutory conditions for converting the advance on his military old-age pension into an old-age pension under section 2(1)(4) of the 1998 Act.

The applicant appealed, complaining that at the relevant time he had not been on leave, but had been available until his retirement. On 30 September 2002 the Institute dismissed his appeal, holding that he could not be considered a beneficiary under section 2(1) of the 1998 Act as he did not have Slovenian citizenship and did not comply with the requirements applicable to foreign beneficiaries. It added that he could re-apply for an old-age pension under the 1998 Act once he acquired Slovenian citizenship.

The applicant subsequently applied for judicial review of the Institute’s decision before the Ljubljana Labour and Social Court, maintaining that, as a resident of Slovenia, he should have been treated in the same way as Slovenian citizens.

On 1 April 2003 the applicant acquired citizenship by naturalisation under section 19 of the amended Citizenship Act read in conjunction with section 10(1) of the Citizenship Act (see paragraph 27 below).

On 4 June 2003, after lodging a new request with the Institute, the applicant was granted an old-age pension as from 1 April 2003.

On 13 January 2006 the Ljubljana Labour and Social Court dismissed the application for judicial review (see paragraph 18 above). It pointed out that the applicant’s situation had to be assessed with regard to the different categories of beneficiaries listed in section 2(1) of the 1998 Act. It concluded that the applicant had not fulfilled the conditions for an old-age pension set out in section 2(1)(2) of the 1998 Act. Likewise, as a foreigner he had not met the conditions set out in section 2(1)(4) of the 1998 Act. He had therefore been eligible for an old-age pension under section 2 of the 1998 Act only from 1 April 2003 onwards, the date on which he had acquired Slovenian citizenship.

The applicant lodged an appeal with the Higher Labour and Social Court. On 21 March 2007 the appeal was dismissed, essentially on the grounds that in the legally relevant period the applicant had been a foreigner who had not had rights to a pension or other benefits under the SFRY military rules by 25 June 1991 as required by section 2(1)(2) of the 1998 Act. The court held that the other provisions of section 2 of the 1998 Act were applicable only to Slovenian citizens and, thus, the applicant, who had not fulfilled the condition of nationality, should not have relied upon them.

The applicant lodged an appeal on points of law, claiming he should have been treated the same as Slovenian citizens. On 23 March 2009 it was dismissed by the Supreme Court, which followed the lower courts’ reasoning. It held that in the period at issue the applicant had not met the requirements of any of the categories of beneficiaries under section 2 of the 1998 Act, having applied for the pension under the SFRY military rules on 16 July 1991 and having only acquired Slovenian citizenship on 1 April 2003.

On 24 March 2010 the Constitutional Court decided not to accept a constitutional complaint by the applicant for consideration, finding that it did not concern an important constitutional issue or entail a violation of human rights which had serious consequences for him.


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Nigeria);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion);Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed

Aleš Pejchal;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant arrived in Belgium in the summer of 2007. On 30 July 2007, when she was eight months pregnant, she lodged an application for asylum in which she stated that she had fled her country after the family of the child’s father, M.A., in whose home she had lived since the age of eleven, had tried to put pressure on her to have an abortion.

Because the applicant was a minor, a guardian was appointed. The guardianship ended when the applicant reached full age, on 26 December 2007.

After the applicant’s fingerprints had been recorded in the EURODAC system, the Aliens Office observed that she had already lodged an asylum application in Malta on 29 June 2007.

On 3 August 2007 the Aliens Office requested the Maltese authorities to take charge of the applicant’s asylum application under Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin II Regulation”). On 17 September 2007 the Maltese authorities accepted the request.

The applicant nevertheless remained in Belgium on account of the request for leave to remain which she had lodged and the ensuing proceedings (see paragraphs 33 et seq. below).

Subsequently, owing to the imminent birth of the applicant’s second child (see paragraph 20 below), the Aliens Office decided in early 2009 to examine her asylum application itself. A first interview was held, after which the file was sent to the Commissioner General for Refugees and Stateless Persons (“the Commissioner General”).

On 25 May 2010 the Commissioner General rejected the asylum application because of inconsistencies in the applicant’s account. Among other factors, the Commissioner General observed that the applicant had claimed not to have applied for asylum in another country. She had also been unable to explain how she had travelled to Belgium and did not know how much time she had spent in Malta or the exact identity of the persons she had lived with in Nigeria.

The applicant appealed to the Aliens Appeals Board. In judgment no. 49.384 of 12 October 2010, the Board upheld the Commissioner General’s decision on the grounds that no credence could be lent to the applicant’s alleged fear of pursuit or to the existence of a real risk of serious harm.

No administrative appeal on points of law was lodged with the Conseil d’État against that judgment.

On 1 August 2007, in the course of an antenatal examination, the applicant was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral (“ARV”) treatment.

The applicant gave birth to her first child on 5 September 2007. The infant was given treatment to prevent HIV infection.

In October 2007 a course of ARV treatment (a combination of Kalestra and Combivir) was started at St Pierre University Hospital in Brussels (“the University Hospital”).

During 2008 the applicant attended a semi-residential facility and was monitored by the not-for-profit association Lhiving, which specialises in providing psychosocial assistance to underprivileged persons living with HIV and to their children.

On 27 April 2009 the applicant gave birth to a second child by the same father, M.A.

On 14 July 2010 the University Hospital, at the request of the Aliens Office, issued a medical certificate which stated that the applicant’s treatment had been changed to a combination of the drugs Kivexa, Telzir and Norvir.

On 25 November 2010 the University Hospital issued a further certificate stating that the applicant’s CD4 count had stabilised at 447, with an undetectable viral load. On the same date an official of the association Lhiving drew up a report on the applicant’s psychosocial situation, stressing the need to provide her with psychological support because of her young age and her introverted temperament.

In the meantime, following the refusal of her request for leave to remain on medical grounds (see paragraph 44 below), the applicant’s certificate of registration, which allowed her free access to the treatment she required and to material assistance from the Brussels social welfare office, was withdrawn. She lodged an appeal with the Brussels Employment Tribunal seeking material assistance, and made a fresh application to the social welfare office.

On 16 May 2011 the social welfare office decided to continue providing financial assistance to the applicant. As a result, the appeal to the Employment Tribunal was struck out of the list.

On 14 December 2011 the University Hospital issued a certificate addressed to the Aliens Office in the following terms:

“The latest blood test of 14 December 2010 shows a CD4 count of 269 and a viral load of 42,900. These may be due to treatment failure (development of resistance?) or to poor adherence to the treatment, possibly linked to the patient’s numerous social problems...”

On 23 February 2012 the University Hospital issued a certificate addressed to the Aliens Office stating that the treatment had been modified, with the use of Telzir and Norvir being discontinued and being replaced by a combination of Reyataz and Kivexa.

On 1 March 2012 a report by the association Lhiving stated that the applicant was continuing to receive, and to need, psychosocial support and that the focus was on working with the applicant on articulating her concerns and on issues including the difficulties connected to her role as a mother, family life, her children’s schooling through Dutch and the monitoring of her own illness.

A further certificate addressed to the Aliens Office on 7 June 2012 by the University Hospital stated that the applicant was pregnant with her third child and was due to give birth in November 2012. The certificate went on to state as follows:

“Her latest blood sample shows an uncontrolled HIV infection with an increased viral load of 18,900 and a reduced T4 count of 126. The situation is therefore worrying as regards both the patient and her unborn child.

Medical treatment/medical supplies: Reyataz 200 2 per day and Kivexa

Need for regular blood tests with lymphocyte typing and HIV viral load, stethoscope, blood pressure monitor, weighing scales, needles and syringes, dressings, gynaecological check-ups...

Specific medical needs? Supervision by a multidisciplinary team specialising in the treatment of HIV.”

A similar certificate was issued on 1 February 2013 which reported the addition of the drug Norvir, an increase in the applicant’s T4 count to 200 and a lower positive viral load. It confirmed that the situation was worrying both for the applicant and for her children.

In the meantime, on 23 November 2012, the applicant gave birth to her third child. According to the birth certificate, M.A. was again the father.

On 18 March 2013 the association Lhiving issued another certificate similar to the previous one (see paragraph 27 above), stating that the applicant was continuing to receive psychosocial support.

Beginning on an unspecified date M.A., the father of the three children, spent occasional periods in Belgium without a residence permit.

On 30 November 2007 the applicant submitted a request for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”).

On 13 February 2008 the Aliens Office declared the request admissible and a certificate of registration was issued to the applicant, authorising her to remain in Belgium for three months.

At the request of the Aliens Office, the applicant sent the latter a medical certificate drawn up by her general practitioner stating that she was HIV positive and would be unable to travel for six months, during which time she required psychological counselling.

On 8 July 2008 the Aliens Office enquired of the Maltese authorities about the accessibility of the appropriate medical treatment in Malta. The same day the applicant was examined by the Aliens Office’s medical adviser, who considered that she would be able to travel as of 1 September 2008.

On 4 August 2008, on the basis of the information received from the Maltese authorities, the medical adviser of the Aliens Office wrote as follows:

“[From] a medical point of view, ... although [Aids] can be considered to be a disease entailing a real risk to life or physical well-being, in the present case [S.J.] is not at risk of inhuman or degrading treatment since treatment is available in Malta.”

On 20 August 2008 the Aliens Office issued a decision refusing the request for leave to remain on medical grounds, stating that it was clear from the information received from the Maltese embassy and featured on the website of the Maltese Minister of Social Policy that treatment for Aids was available in Malta and was accessible to non-nationals.

The applicant lodged an appeal with the Aliens Appeals Board against the Aliens Office’s decision of 20 August 2008.

On 11 March 2009 the Aliens Office revoked its decision of 20 August 2008, as a consequence of its decision to examine the applicant’s asylum application (see paragraph 12 above), and began to explore the possibilities for treatment in Nigeria. The applicant was again issued with a certificate of registration and the Aliens Office requested a fresh opinion from its medical adviser concerning a possible return to Nigeria.

On 7 May 2009 the Aliens Appeals Board, noting that the Aliens Office’s decision of 20 August 2008 had been revoked, dismissed the applicant’s appeal as being devoid of purpose.

On 17 September 2010 the Aliens Office’s medical adviser issued the following opinion:

“From a medical point of view, the applicant’s infection, although it can be considered to entail a real risk to life or physical well-being if it is not treated in an appropriate manner and is not monitored, does not involve a real risk of inhuman or degrading treatment, given that the treatment and monitoring in question are available in Nigeria. There are therefore no medical objections to the applicant’s return to Nigeria, her country of origin.”

On the basis of this opinion and the information received from the Nigerian embassy, the Aliens Office on 27 September 2010 refused the request for leave to remain submitted on 30 November 2007, but extended the applicant’s registration pending the outcome of the asylum proceedings. The reasons for the decision read as follows:

« [The] medication currently being administered to the applicant is available in Nigeria... Nigeria has numerous treatment programmes for the applicant’s condition... The cost is low because the authorities subsidise the medication... The applicant’s condition can be treated free of charge in all the country’s public hospitals. ... Furthermore, in Ogun State, where the applicant was born and lived, there are two hospitals. ... Moreover, it appears very unlikely that in Nigeria, the country where she spent the first eighteen years of her life, the applicant would not have family, friends or acquaintances willing to take her in, help her to obtain the necessary medication and/or provide her with temporary financial support. ... It follows that it is not established that her return to her country of origin ... would be in breach of European Directive 2004/83/EC or of Article 3 of the European Convention on Human Rights.”

On 20 October 2010 – the asylum proceedings having been concluded in the meantime with the rejection of the applicant’s asylum application (see paragraph 14 above) – the Aliens Office confirmed its decision refusing the applicant’s request to have her residence status regularised. An order to leave the country was served on the applicant on 22 November 2010, worded as follows:

“Pursuant to the decision of ... 20 October 2010, the aforementioned S.J. and her children ... are hereby ordered to leave Belgium not later than 20 December 2010...


CASE OF ALPHA DORYFORIKI TILEORASI ANONYMI ETAIRIA v. GREECE

Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The applicant company is a limited liability company and is the owner of the Greek television channel ALPHA.

On 24 January 2002, ALPHA broadcast a television show named “Jungle” (Ζούγκλα) in which three videos that had been filmed with a hidden camera were broadcast. In the first video, A.C., then a member of the Hellenic Parliament and chairman of the inter-party committee on electronic gambling, was shown entering a gambling arcade and playing on two machines. The second video showed a meeting between A.C. and associates of the television host of “Jungle”, M.T., during which the first video was shown to A.C. The third video showed a meeting between A.C. and M.T. in the latter’s office. On 27 January 2002 the videos were shown again during a television show named “Yellow Press” (Κίτρινος Τύπος) presented by the same television host.

On 23 May 2002 the National Radio and Television Council (Εθνικό Συμβούλιο Ραδιοτηλεόρασης), following an invitation to the applicant company, held a hearing in which the applicant company was represented by its attorneys. As can be seen from the minutes of the meeting, the applicant company’s attorneys acknowledged the use of hidden camera in the above-mentioned incidents. They argued that such use had been justified owing to A.C. being a public figure and that it had served the public interest, as proven by the fact that the report had resulted in A.C.’s being dismissed from the parliamentary group of the political party for which he had been elected as parliamentary deputy. In their view, that had been the result not only of A.C.’s gambling activities, but also of the fact that he had tried to negotiate with the applicant company’s reporters to present the incident differently. The applicant company’s attorneys further argued that the use of a hidden camera had been exceptional and had been resorted to following the receipt of information that could not have been verified otherwise, as nobody would have believed the journalists’ allegations if they had reported on the issue without broadcasting the images. It can also be seen from the minutes that the members of the National Radio and Television Council expressed their disagreement regarding the use of a hidden camera, arguing that if anyone were able to use a hidden camera by claiming that there was an overriding public interest in doing so, then all citizens – especially if they were public figures – would be exposed to the possibility of being subject to pressure and extortion. They furthermore stressed that nobody would ever forbid journalists to report on a certain issue; however the means used raised an issue, as the use of hidden camera could be accepted only in respect of a national security issue or for the prevention of a serious crime or other similar situations. They also noted that there were two separate issues in the instant case; on the one hand the use of a hidden camera and on the other hand the entrapment of A.C.

By its decision 214/162/23.05.2002, the National Radio and Television Council ordered the applicant company to pay one hundred thousand (100,000) euros (EUR) for each of the two television shows during which the above-mentioned videos were shown, as well as to broadcast on three days in a row on its main news show the content of that decision. The decision included a short description of the three videos, a citation of the relevant legislation, and the conclusion that the use of hidden camera in that case had not been in accordance with the relevant law. It further stated that the sanctions had been imposed following an assessment of the gravity of the offence, of the number of viewers of the two television shows, of the size of the investment that had been made by the applicant company and the fact that the television channel had been repeatedly fined in the past for the same offence.

On 10 June 2002 the decision of the National Radio and Television Council was communicated to the Minister of Press and Media, who, after examining its legality, issued decision no 3156/E/11.02.2003 confirming its content.

On 4 April 2003 the applicant company lodged an application for annulment (αίτηση ακύρωσης) against the decisions of the National Radio and Television Council and the Minister of Press and Media with the Supreme Administrative Court (Συμβούλιο της Επικρατείας) on the grounds that the above-mentioned decision had violated Articles 9, 15 § 1 and 25 of the Greek Constitution, as well as Article 10 of the Convention. A.C. lodged a third-party intervention requesting from the Supreme Administrative Court to dismiss the application for annulment. On 23 January 2006 the President of the Supreme Administrative Court referred the case to the Plenary Supreme Administrative Court owing to its high importance.

The hearing before the Plenary Supreme Administrative Court took place on 2 June 2006. By its judgment no. 1213/2010, published on 16 April 2010 and finalised on 21 May 2010 (δημοσίευση και καθαρογραφή), the Supreme Administrative Court dismissed the application for annulment.

In its legal assessment, the majority of the Supreme Administrative Court firstly referred to the constitutional provisions providing the right to impart and receive information, and then emphasised that this right is subject to limitations whose legitimate aim is the protection of the rights of others and the observance of the rule of law on condition that those limitations are proportionate. It additionally referred to the Court’s case-law in respect of Article 10 and on Article 8, with specific reference to case-law concerning the protection of a person’s image (see Von Hannover v. Germany, no. 59320/00, ECHR 2004VI; Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; and Sciacca v. Italy, no. 50774/99, ECHR 2005I). It continued by noting that under Article 15 of the Constitution the State has the legal duty to exercise control over the radio and television in order to ensure respect for human values and that sanctions imposed by the National Radio and Television Council served that purpose.

The Supreme Administrative Court laid down the conditions under which it is legitimate to broadcast an image that has been filmed with the method of hidden camera, by making a distinction between reporting on specific news, whose exclusive or main source is an image of a specific person recorded by secret means, and the broadcasting of the relevant, secretly recorded image. According to that reasoning, recording by secret means an image which has as its main or only subject a specific person constitutes in principle a violation of that person’s right to his own image, which is protected by Articles 9 § 1 of the Constitution and 8 § 1 of the Convention, as a specific aspect of the right to respect for one’s private life. Consequently, the broadcasting on television of news whose exclusive or main source is an image of a specific person recorded by secret means cannot, in principle, be considered as constituting the legitimate exercise of the right to impart information, given that the disseminated news has been received under circumstances which constitute a violation of an individual’s right to his own image. Nevertheless, in certain cases it may be considered justified to broadcast such news, on account of its contribution to a debate of general interest and taking into account the secretly recorded person’s position or standing. However, even when broadcasting of the news is considered a legitimate exercise of the right to impart information, this does not automatically render legitimate the broadcasting of the relevant, secretly recorded images, as that constitutes a much more intense [έντονος] limitation of the constitutionally protected right of that person to his own image than the simple transmission of news. In the domestic court’s view, broadcasting of a secretly recorded image can only be justified if the legitimate (for the reasons mentioned above) broadcasting of such news is completely impossible or particularly difficult without broadcasting the image that was recorded by hidden means and which constitutes the source of the news.

Supreme Administrative Court dismissed the applicant company’s argument that it had legitimately transmitted the news concerning A.C. in view of A.C.’s capacity as a public figure. The domestic court stressed that from the text of the decision and from the minutes of the meeting of the National Radio and Television Council it derived that the sanction was imposed to the applicant company solely and exclusively on account of the broadcast of the images that had been recorded by hidden means and not on account of the transmission of the news, whose source had been the secretly recorded images. As far as the broadcasting of the images was concerned, the applicant company had not disputed that the images had been recorded by secret means and had not claimed that broadcasting of the news was absolutely impossible or extremely difficult without broadcasting the relevant images. Therefore, the applicant company’s allegation that it had broadcast the impugned images for reasons of journalistic interest and of public interest was dismissed.

On the basis of the above-mentioned reasoning, the Supreme Administrative Court ruled that the decision of the National Radio and Television Council had been fully reasoned and dismissed the applicant company’s application for annulment.

A concurring, more specific (ειδικότερη) opinion was joined to the majority opinion; the seven judges considered that the recording of a person without his knowledge and the use of it for the broadcasting of news constituted a direct violation of that person’s right to dignity as it reduces him to an instrument for others to achieving goals that are irrelevant to him. Given that, pursuant to Articles 2 § 1, 15 § 2 and 25 § 1 of the Constitution, the protection of human dignity is absolute, the broadcasting of such news is always forbidden, irrespective of whether such a broadcast includes the image in question. For those reasons, the judges who supported this opinion considered that the application for annulment should be dismissed.

In addition, there were two dissenting opinions. According to the first one, in view of the fact that the National Radio and Television Council had considered that the broadcasting of news that had been recorded by secret means had constituted a legitimate exercise of the right to impart information, the same considerations should be extended to the broadcasting of the relevant image. The reason for this was the special nature of television, in comparison with the other media, owing to which the broadcasting of the image went hand-in-hand with broadcasting the news itself. Therefore, the application for annulment should have been allowed, given that the National Radio and Television Council’s decision had been based solely on the fact that the image of A.C. had been recorded by hidden means, without considering whether broadcasting news whose source was the above images constituted a legitimate exercise of the right to impart information.

Lastly, according to the other dissenting opinion, no constitutional provision justified the absolute protection of an image (as was held by the majority). A person’s right to his own image was susceptible to limitations that varied according to that person’s position and the space in which the recording in question had taken place. For individuals, protection against the recording of their image without their consent was absolute, irrespective of whether it took place in a public or private space, unless the recording was not directed to them or the recording of the image took place with a view to the prevention of crimes in public space. For public figures, however, protection was less absolute. In particular, public figures, such as politicians, were exposed to publicity and sometimes they even pursued it. As a result, there was a legitimate expectation on the part of the media and of the public to impart and receive information regarding their public activities. For these persons, there was an absolute protection of their image in their private space and in public spaces in which they shared private or family moments. When, however, public figures were in public spaces but not under the conditions described above, or acted in a way that was of interest to the public (such as in cases in which they engaged in behaviour contrary to what their public role entailed or contrary to the image they projected towards the public), then the right to receive and impart information could justify the recording of that person without his consent and the broadcasting of the relevant images by the media. In this regard, the dissenting judges argued that it would be inconceivable to equate radio with television, as they did not operate on the same way; therefore, it would not be possible for a television show to simply announce the news without broadcasting the relevant images, as would be the case on the radio. In respect of legitimately recorded images, when there is a balance between transparency and the right to receive information on the one hand and the protection of a person’s image on the other hand, the presumption should be that the recorded image could be broadcast without consent. In view of the above, the four judges considered that the application for annulment should be allowed, taking into account especially the fact that A.C. was a public figure, that the recording of his image had taken place in a public space (that is to say in a gambling arcade), and that the broadcasting of the relevant images had served the purpose of informing the public of behaviour on the part of a member of Parliament that did not meet the requirements of his position. Therefore, the television channel’s decision to broadcast the image as a part of the television shows, which otherwise could be considered unfounded or even defamatory, had not breached the proportionality principle.


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicants are all Romanian nationals of Roma origin and heirs of I.B., who, together with some of the applicants, initiated the domestic proceedings. Those proceedings were still pending when I.B. died on 1 April 2010.

I.B.’s heirs pursued the case before the domestic courts and lodged a complaint before the Court on his behalf and on their own behalf.

On 30 March 2006 at around 5 p.m. A.N., I.B.’s daughter-in-law, was attacked near I.B.’s home. I.B.’s three sons (the applicants nos. (1)-(3) in the appendix) and C.G.M., the victim’s father, went to Clejani Police Station to report the assault.

In front of the police station they were allegedly attacked by a group of fifty villagers. When I.B. arrived there, attracted by the noise, he saw C.G.M. injured, with his head covered with blood. His sons’ car was also damaged (the windows were broken and the car’s bonnet was concertinaed). I.B. also saw the villagers chasing his sons and attacking them with stones, bats and bricks.

At around 6 p.m. police officers T.B. and M.N. from Clejani police station, accompanied by colleagues from the Giurgiu Rapid Intervention Squad (Detaşamentul Poliţiei pentru Intervenţie Rapidă) arrived at I.B.’s home to take him into custody. The police intervention team entered the yard and took him by force to the police car, while shouting abuse and calling him a gypsy (ţigan). To I.B.’s question whether they had a search warrant, T.B. pointed to the special squad and said “They are my search warrant!”. Then the police made two children from the household, one aged 13 and one 14, lie down on their stomachs and called them wretched disgraceful gypsies (ţigani borâţi). The sixth applicant, Marian Boacă, who was 13 at the time, and M.D., I.B.’s daughter-in-law, were taken to the police station in the same car.

Later, the first three applicants, I.B.’s other sons, were apprehended on the street by ten masked police officers, who shouted at them to lie down and then kicked them in the stomach and face while shouting abuse and calling them “wretched disgraceful gypsies”. They were also taken to Clejani police station, where they found the sixth applicant and M.D. standing with their arms up, facing the wall.

The interrogations took place in the chief of police’s office. I.B. was taken there first. He was beaten up first by police officer T.B. and two masked officers. Two more masked officers joined them later. They kicked I.B. in the ribs, on his right side; they punched him and beat him with their weapon butts and shouted abuse. I.B. lost consciousness. The first three applicants were brought to the same office and tripped over their father’s body, which was lying unattended on the floor. They were ordered to lie down and were hit and shouted at. T.B. called the chief of the Letca Noua Police Station and told him to come for “a match with the boys” (la o partidă cu băieţii). Some ten to fifteen minutes later officers from Letca Noua joined the interrogations and started hitting the applicants. According to the applicants, the police officers who beat them up had been drinking alcohol.

At the applicant’s request, the officers eventually allowed I.B. to leave the police station, but told the first three applicants that they had to sign confessions concerning the rape of a foreign woman and the theft of pipes. The statements had been written by the police officers. The applicants were not allowed to read the contents of those confessions. They denied committing any crime, but eventually signed the confessions and were allowed to leave the police station.

On 30 March 2006 an altercation broke out between the Boacă family and the G. family, both parties behaving aggressively towards each other and armed with dangerous objects. The altercation occurred in front of the Clejani police station, where the G. family (belonging to the Ursari Roma community – țigani ursari) was going to make a criminal complaint against the applicants’ family about a previous altercation that had occurred the same day. In their statements to the police, members of the G. family related that the third applicant had tried to hit them with the car and, driving dangerously, had managed instead to hit his father, I.B.

In this context, at 6.30 p.m. the Giurgiu Rapid Intervention Squad was called to restore public order. A team of four officers and a driver was in place from 7 p.m. to 6 a.m. the next day. According to the police agents’ statements, there were no incidents during this operation, as the Boacă family members concerned willingly complied with the police orders given when they were apprehended. Four eyewitnesses, all proposed by I.B., declared they had seen him come out of the police station feeling ill, but with no apparent indications that he had been attacked.

M.N., the head of Clejani police station, did not participate in the investigation out of fear of reprisals from the Boacă family.

I.B. was taken by ambulance to Giurgiu County Hospital, where he underwent pulmonary X-ray investigations but received no treatment. He was then taken to Bucharest University Hospital, where he remained from 31 March to 4 April 2006.

On 11 April 2006 a forensic doctor examined him. The medical certificate concluded that he had suffered a thoracic trauma inflicted by a “blow caused by a hard object or by body impact”. He needed fifteen to nineteen days to recover.

Mihăileşti Police started investigating the events of 30 March 2006. The accusations were of theft of pipes by members of the Boacă family and of a brawl involving twenty-one people, mainly belonging to the two families (Boacă and G.). Statements were taken from all those involved in the altercation and from some eyewitnesses. In their various statements made during those investigations, I.B. and the applicants declared that they had been beaten up by police. Some members of the opposing family declared that I.B. had been hit by the car driven by his son, the third applicant.

On 9 May 2007 the prosecutor’s office attached to Giurgiu County Court decided not to prosecute any of those involved in the incidents. He noted that the pipes had been returned to their rightful owner, who did not wish to seek damages from the applicants’ family; as for the brawl, the prosecutor noted that there had been “reciprocal violence” and therefore decided to impose administrative fines on all involved.

It appears that the decision was not contested.

On 1 June 2006 I.B. and the first three applicants lodged a criminal complaint with the prosecutor’s office attached to Giurgiu County Court against the police officers who had allegedly ill-treated them. In his complaint to the police, I.B. stated that the police chief was friendly with the Ursari Roma from Clejani, with whom the Boacă family were in conflict. They also complained of discrimination, arguing that because of their Roma origin the police officers had been aggressive towards them and had called them racist names.

The prosecutor started the investigations. He took statements from the six police officers involved in the events, including T.B. and M.N. They all denied having harmed the plaintiffs in any way. The prosecutor examined the intervention squad’s official report from 30 March 2006 as well as the prosecution file concerning the accusations brought against the members of the two families involved in the fight on 30 March (see paragraph 18 above).

On 18 December 2006 the prosecutor’s office dismissed the complaint on the ground that the police officers’ actions did not disclose any appearance of a criminal offence. The prosecutor noted that the rapid intervention squad was called to the scene of an altercation which the local police could no longer contain. In the squad’s official report it was explained that intervention was required “for an altercation between two Gypsy clans” (scandal între două grupuri de ţigani). The prosecutor considered that the plaintiffs had failed to provide medical evidence of the injuries they had sustained, or that injuries had been inflicted by police officers.

The plaintiffs appealed against that decision to the prosecutorinchief, but their objection was dismissed on 29 January 2007. The applicants challenged that decision before the Giurgiu County Court, reiterating their complaints of ill-treatment and discrimination.

On 16 April 2007 the Giurgiu County Court upheld the prosecutor’s decision, considering that the applicants had not provided proof of their allegations.

The plaintiffs appealed, and on 27 June 2007 the Bucharest Court of Appeal quashed the above-mentioned decision and ordered the prosecutor to continue the investigation. It considered that the prosecutor had not taken into account the forensic medical certificate delivered to I.B., had not heard either the applicants or the eyewitnesses, and had not allowed the applicants to produce evidence (medical evidence or witnesses).

On 29 August 2008 the prosecutor’s office refused to institute criminal proceedings against the police officers. The prosecutor considered that the plaintiffs had not substantiated their allegations of ill-treatment and discrimination. It found that the police officers had acted lawfully and had been trying to counter the plaintiffs, who had used gas guns and sharp objects. One eyewitness was heard by the prosecutor.

I.B. and the first three applicants appealed against the prosecutor’s decision, but on 21 October 2008 the prosecutor-in-chief dismissed their objections and thus upheld that decision. On 28 October 2008 I.B. and the first three applicants appealed once again before the Giurgiu County Court.

On 3 February 2009 the Giurgiu County Court allowed the appeal lodged by the four plaintiffs, quashed the decisions of the prosecutor and of the prosecutor-in-chief, and sent the case back to the prosecutor, on the ground that the investigations ordered by the court had not been carried out by the prosecutor.

The prosecutor’s office challenged that decision, and on 12 June 2009 the Bucharest Court of Appeal allowed the appeal on points of law in part. It found that the criminal investigation should be continued regarding I.B.’s injuries. As far as the first three applicants were concerned, it considered that the criminal investigation should be closed because, in failing to sign the appeal against the decisions of 29 August 2007 and of 21 October 2008, they had in fact not endorsed the application for an investigation. The court considered that by failing to sign the application for leave to appeal within the assigned deadline the applicants had lost the right to lodge that appeal.

On 28 October 2009 the prosecutor’s office refused to institute criminal proceedings against the police officers, on the ground that their actions were consistent with their professional duties. He heard evidence from four eyewitnesses, who had seen I.B. being taken into the police station and then had seen him coming out. They reported that they could not see any signs of violence on him. One witness said that he could hear I.B. screaming and wailing in the police station, and that when he came out he had asked them to call an ambulance because he did not feel well.

On 4 December 2009 the prosecutor-in-chief upheld that decision. I.B. appealed against both decisions before the Giurgiu County Court, which on 22 April 2010 dismissed his appeal. The court noted that the prosecutor heard I.B. and four villagers who were in front of the Clejani police station during the incidents. The four villagers declared that I.B. did not have any signs of violence on him when he left the police station. The court dismissed as unsubstantiated the allegations of discrimination made by I.B.

On 1 April 2010 I.B. died of causes unrelated to the present case and the first six applicants continued the proceedings instituted before the domestic courts.

On 14 December 2010 the Bucharest Court of Appeal upheld the decision delivered by the Giurgiu County Court and dismissed an appeal on points of law raised by I.B.’s heirs. It reiterated that the four witnesses had not seen the police officers beating the victims, and considered that the fact alone that there had been other witnesses who could have been heard by the prosecutor was irrelevant, given the evidence already gathered in the case.


CASE OF MEHTIYEV AND OTHERS v. AZERBAIJAN

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence)

The applicants’ dates of birth and places of residence are given in the Appendix.

On 12 January, 26 January, 10 March and 29 December 2013 demonstrations were planned to be held in Baku. It appears that the organisers of the demonstrations gave no proper prior notice to the relevant authority, the Baku City Executive Authority (“the BCEA”). Information about the demonstrations was disseminated through Facebook or the press.

According to the applicants, the demonstrations were intended to be peaceful and were conducted in a peaceful manner. The demonstrations of 12 January and 10 March 2013 were aimed at protesting about the deaths of soldiers in the army. The demonstration of 26 January 2013 condemned the use of force by the police against the participants of previous demonstrations, while those taking part in the demonstration of 29 December 2013 were protesting against bureaucratic injustices which had allegedly caused a disabled war veteran to set himself on fire on 25 December 2013.

Each applicant attended one of the demonstrations (see Appendix), but shortly after they had begun the police started to disperse those who had gathered. All the applicants were arrested during the dispersal operations and were taken to various police stations.

The applicants were questioned at the police stations they were taken to.

On the day of each applicant’s arrest administrative offence reports (inzibati xəta haqqında protokol) were issued, which stated that the applicants had committed an administrative offence under Article 298.2 of the Code of Administrative Offences (“the CAO”) (participation in a public assembly that had not been organised in accordance with the law).

Some of the applicants refused to sign the administrative offence reports (applications nos. 52270/13, 26424/14 and 26994/14).

According to most of the applicants, they were never served with copies of the administrative offence reports or with other documents from their case files. They were not given access to a lawyer after their arrest or while they were in police custody.

According to statements (ərizə) written by the applicants in applications nos. 20589/13 and 33164/13 at the police stations on the day of their arrest (12 January and 10 March 2013 respectively), they refused the services of a lawyer.

The applicants in applications nos. 20589/13 and 26424/14 were released after being kept in police custody for a few hours, subject to an undertaking to reappear at the police station on various dates.

Most of the applicants were taken to trial courts directly from the police stations, either on the day of their arrest or the following day. The applicants in applications nos. 20589/13 and 26424/14 were brought before first-instance courts on the day they returned to the police station.

According to most of the applicants, the court hearing in each case was very brief. Members of the public were not allowed in the courtroom, even though the court had not taken a formal decision to close the hearing to the public.

According to most of the applicants, they were not given an opportunity to appoint lawyers of their own choosing. State-funded lawyers were asked to assist some of them. The applicants in applications nos. 21219/13, 33164/13, 33593/13 and 26994/14 were not represented by a lawyer. According to documents from the case files, the applicants in applications nos. 21219/13, 33164/13 and 26994/14 refused the assistance of a State-funded lawyer and decided to defend themselves in person.

According to the transcript of the hearing concerning the applicant in application no. 20589/13, the State-funded lawyer stated briefly in his oral submissions that the applicant was guilty and asked the court for lenience. Similarly, the State-funded lawyer for the applicant in application no. 26424/14 stated in general terms that the applicant was not guilty and asked the court to discontinue the case. In addition, none of the material submitted to the Court contains any record of showing that the State-funded lawyer, Mr V.M., made any oral or written submissions on behalf of the applicant in application no. 52270/13.

The only witnesses questioned during the court hearings with respect to the applicants in applications nos. 20589/13 and 26424/14 were the police officers who, according to the official records, had arrested them. The police officers testified that the applicants had staged unauthorised demonstrations. No witnesses were questioned by the courts in the other applicants’ cases.

The first-instance courts found that the applicants had participated in unauthorised demonstrations. The applicants were convicted under Article 298.2 of the CAO and sentenced to a period of administrative detention, varying from thirteen to seventeen days, or to a fine of 400 or 500 Azerbaijani manats (AZN) (see Appendix).

On various dates the applicants lodged appeals with the Baku Court of Appeal, arguing that their convictions had been in violation of their rights because the demonstrations in which they had participated or attempted to participate had been peaceful. The applicants also complained that their arrests had been unlawful and that the hearings before the first-instance courts had not been fair. They asked the Baku Court of Appeal to quash the first-instance courts’ decisions in their cases.

The applicants in applications nos. 21219/13, 52270/13 and 26424/14 were assisted before the Baku Court of Appeal by lawyers of their own choosing. The other applicants were not represented by a lawyer.

On various dates the Baku Court of Appeal dismissed the applicants’ appeals and upheld the decisions of the first-instance courts (see Appendix).

In its decision with regard to the applicant in application no. 33593/13 the Court of Appeal noted, inter alia, that he had voluntarily refused legal assistance at the pre-trial stage.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

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

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Kyrgyzstan);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant is a Kyrgyz national of Uzbek ethnic origin. He was born on 1 September 1988 and resided in the town of Osh in Kyrgyzstan. After mass disorder and inter-ethnic clashes in the region in June 2010, he fled to Russia, together with many other ethnic Uzbeks, for fear of ethnicmotivated violence. It appears that his next of kin remain in Kyrgyzstan.

In August 2010 the applicant arrived in Russia and received a temporary residence permit for the period from 3 December 2010 to 3 December 2013.

After the applicant’s departure from Kyrgyzstan, on 25 June 2010 the Kyrgyz authorities charged him in absentia with involvement in riots accompanied by violence, inter-ethnic clashes, arson, use of firearms and destruction of property on 17 June 2010 in the city of Osh, Kyrgyz Republic. The applicant was also alleged to have kidnapped someone.

On an unspecified date in 2010 the applicant was put on a list of fugitives in Kyrgyzstan; on 12 February 2011 he was put on a list of fugitives in Russia as well.

On 29 October 2012, while travelling by train in Russia, the applicant was arrested by the transport police. He denied his involvement in the 2010 events. On 31 October 2012, the Krasnogvardeyskiy District Court of St Petersburg ordered the applicant’s detention for a month. His detention was subsequently extended numerous times.

The Kyrgyz authorities confirmed their intention to seek the applicant’s extradition. On 23 November 2012, the Prosecutor General’s Office of the Russian Federation received a request from the Kyrgyz Republic seeking the applicant’s extradition. On 13 August 2013 it granted the request.

The applicant and his counsel appealed against the extradition order claiming, in particular, that he would face a risk of torture and illtreatment since ethnic Uzbeks were a particularly vulnerable group following the June 2010 violence in the southern regions of Kyrgyzstan. On 26 November 2013 the St Petersburg City Court quashed the extradition order, finding it unlawful, and released the applicant. It appears that the applicant is currently at large.

On 25 February 2014 the Supreme Court of Russia quashed the ruling of the St Petersburg City Court of 26 November 2013 and upheld the extradition order. In its decision of 25 February 2014 the Supreme Court held, in particular, as follows:

“... the conclusion of the lower court that the prosecutor’s office failed to examine the question of the risk of unacceptable treatment in the Kyrgyz Republic in the event of [the applicant’s] extradition does not fit the case-file materials. The Prosecutor General’s office of the Kyrgyz Republic has given guarantees to the effect that [the applicant] would only be prosecuted in respect of the crimes indicated in the initial extradition request and the behaviour of a general criminal character. They guaranteed that he would not be prosecuted on the basis of political or discriminatory reasons, including motives based on his origins, social background, the office he may have occupied, the pecuniary situation, gender, race, ethnicity, language, convictions and relations to religion, that [the applicant] would be given all possibilities to defend himself, that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment, and that if he was convicted and after having served the sentence he would be able to leave the territory of the Kyrgyz Republic freely. The materials submitted by the defence ... do not undermine the real guarantees provided by the Kyrgyz Republic in respect of [the applicant] and are sufficient to exclude any risk of his cruel treatment ...”

According to the Russian Government, the Prosecutor General’s Office of the Kyrgyz Republic gave all necessary guarantees that the applicant’s criminal prosecution would be carried out in strict compliance with the national law and the international obligations of the Kyrgyz Republic. Among other things, it guaranteed that the applicant would not be subjected to torture or other cruel, humiliating or degrading treatment; he would be guaranteed the right to defence, and Russian diplomatic staff would be given an opportunity to visit him in the detention facility.

On 7 November 2012, while in detention, the applicant applied to the Federal Migration Service for refugee status. He claimed, among other things, that a criminal case had been opened against him exclusively because of his ethnic origin and that he would face a real risk of illtreatment if he were sent back to Kyrgyzstan.

Following the examination of the applicant’s asylum request, by its decision of 19 March 2013 the Department of the Federal Migration Service for St Petersburg and Leningrad region refused to grant refugee status to the applicant as he did not meet the necessary criteria defined by the national law. The Federal Migration Service of Russia took a final administrative decision on the matter on 7 October 2013, stating as follows:

“... the basic criterion for granting a person temporary asylum is the presence of a well-founded suspicion that if returned to his/her home country, that person could become a victim of torture or other cruel, inhuman or degrading treatment or punishment.

The analysis of the decision of the migration authorities in charge of St Petersburg and the Leningrad Region, the materials of the applicant’s personal case file, the information communicated by the applicant, as well as the available information from the Ministry of Foreign Affairs of Russian and the Federal Migration Service of Russia concerning the situation in Kyrgyzstan has shown that the migration authorities in charge of St Petersburg and the Leningrad Region have fully examined all the the applicant a possibility to remain temporarily on the territory of the Russian Federation.

According to the information submitted by the Prosecutor General’s office, an agreement has now been reached with the Kyrgyz authorities which enables officials at the Embassy of the Russian Federation to monitor the compliance by the authorities of Kyrgyzstan with the standards of international law in respects of persons extradited to the Kyrgyz Republic.

The monitoring has established that the decision of the UFMS in charge of St Petersburg and the Leningrad Region to refuse to grant the applicant temporary asylum on the territory of the Russian Federation did not breach the legislation on refugees. The decision ... is lawful, justified and should be upheld.”

The applicant’s representatives appealed against the decision of 7 October 2013. By a final decision of 28 July 2014 the Moscow City Court rejected the applicant’s appeal.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);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)

Alena Poláčková;Helen Keller;Johannes Silvis

The applicant was born in 1975 and lives in Novokuznetsk, the Kemerovo Region.

In the morning of 14 June 2007 policemen came to the applicant’s flat and took him to the police station in Pospelikha village in the Altay Region (“the police station”) for an interview. He was questioned about the circumstances of a theft which had occurred the day before and made selfincriminating statements.

During the questioning the investigator had to answer a telephone call and stepped out of the office. Left alone, the applicant attempted to walk out but was stopped at the door by a policeman who told him to stay inside and wait. He spent around four hours in the investigator’s office before he was allowed to leave. According to the Government, the applicant came to the police station voluntarily and stayed there for no longer than forty minutes.

On 18 June 2007 the investigators charged the applicant with theft but dropped the charges one month later.

In 2009 the applicant brought a civil claim for compensation for unlawful criminal prosecution and deprivation of liberty.

On 20 October 2009 the Pospelikhinskiy District Court of the Altay Region examined the case in the applicant’s absence. The court noted that the applicant had been informed about the date and place of the hearing but, as he was serving a term of imprisonment, his presence in person could not be ensured. On the merits, the court held that the applicant was entitled to compensation for the unlawful criminal prosecution. It also considered that the questioning of 14 June 2007 had not amounted to a deprivation of liberty and could not give rise to any form of compensation. The applicant was awarded 1,000 Russian roubles (RUB) in respect of non-pecuniary damage.

The applicant appealed against the judgment, arguing that the court award was too low and that it did not take into account the deprivation of liberty. He also requested leave to appear before the appeal court. On 10 February 2009 the Altay Regional Court dismissed the applicant’s appeal in his absence, endorsing the District Court’s reasoning.

The judgment of 20 October 2009 was enforced on 5 March 2011.

In 2007 Ms I. brought a civil action against the applicant, seeking to recover a contractual debt. On 5 July 2007 the Justice of the Peace of the Pospelikhinskiy District of the Altay Region examined the case in the applicant’s absence. The judgment indicated that the applicant was serving a term of imprisonment and that he had been informed in a timely way about the date and place of the hearing. The Justice of the Peace granted the claim and ordered the applicant to pay RUB 11,311 to Ms I.

The applicant appealed to the Pospelikhinskiy District Court and sought leave to appear before the appeal court. By an interim decision of 12 September 2007, the District Court refused the applicant leave to appear, finding that the Code of Civil Procedure did not provide for escorting detained litigants to courts hearing civil cases. On 10 October 2007 the Pospelikhinskiy District Court upheld the judgment on appeal, endorsing the findings of the Justice of the Peace. The applicant received a copy of the appeal judgement in November 2007.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1970 and lives in Naberezhnyye Chelny.

On 4 March 2012 the applicant was arrested by a police officer, Z., and accused of disorderly behaviour in a public place, an offence under Article 20.1 of the Federal Code of Administrative Offences (“the CAO”), punishable by a fine or up to fifteen days’ detention. It appears that the applicant was then taken to the police station and remained there for some time.

In the police station, Z. compiled an administrative offence record, thereby instituting administrative offence proceedings against the applicant. The record read as follows:

“4 March 2012

I have made the following findings under Article 28.3 of the Code of Administrative Offences:

[The applicant] was drunk and used foul language against passers-by, waving his arms in the air; he was trying to start a fight, and did not rectify his behaviour despite remarks from passers-by. Thus, he gravely offended public order and committed an administrative offence under Article 20.1 of the CAO.

The fact of the offence has been confirmed by: witness K.

[The applicant] has been informed of his rights and obligations under Articles 48 and 51 of the Constitution, and Articles 1.5, 24.2 and 25.1 of the CAO: that the person who is being prosecuted for an administrative offence has the right, inter alia, to have access to all the material in the file, to testify, to adduce evidence, to lodge interlocutory applications and challenges, and to have legal assistance.

Decision: to submit to a court

Signature: deputy chief officer, 5 March 2012”

Officer Z. also issued a written report stating that the applicant had used foul language against passers-by.

It appears that one of the passers-by, N., accepted a request to make a written statement attesting to the fact that the applicant had been drunk and had used foul language.

On 5 March 2012 the police officer submitted the record to his superior, who decided that the case should be transferred to a court for examination.

On an unspecified date, the administrative offence file was submitted to a justice of the peace for adjudication. It appears that the file contained the offence record, Z.’s report and N.’s statement. It is unclear whether there was any written statement from K. at that time.

On 29 March 2012 the justice of the peace held a hearing. It is unclear whether it was a public one.

The applicant made a written statement that he had been apprised of his procedural rights.

As can be seen from the judgment in this case (see below), the applicant was accused at the trial of using foul language in the presence of other people, while being drunk, thus breaching public order.

The applicant, who is himself a lawyer, did not appoint a legal representative. He pleaded not guilty and made oral submissions on the charge against him.

After a request, Officer Z. was present at the hearing and made an oral statement. The court also heard N. and K.. It appears that the justice of the peace asked Z. and N. a couple of questions.

By judgment of 29 March 2012 the justice of the peace found the applicant guilty and imposed a fine of 500 Russian roubles (the equivalent of 13 euros at the time) on him. The judgment read as follows:

“The court holds that, while drunk, the defendant used foul language in the presence of other people and thus breached public order ...

The defendant’s guilt is confirmed by Z.’s report and N.’s testimony ... The use of foul language in a public place is unacceptable and discloses a form of disorderly behaviour ... In the court’s view, the use of aberrant language in a public place in the presence of at least one person constitutes an offence under Article 20.1 of the CAO. Moreover, the defendant continued to use foul language during his arrest and while being taken to the police station ...”

The applicant appealed to the Naberezhniye Chelny Town Court. He argued, inter alia, that although the offence record referred to his using foul language “against passers-by”, the justice of the peace had phrased the charge as using foul language “in the presence of other people”; the judge had not retained the phrase from the offence record, which stated that the applicant “[had not rectified] his behaviour despite remarks from passersby”.

On 16 April 2012 the Town Court held a hearing. It is unclear whether it was a public hearing. The appeal court examined the applicant and upheld the judgment of 29 March 2012. On that date, the appeal decision and the trial judgment became final. The appeal court held as follows:

“The justice of the peace convicted [the applicant] of using foul language in the presence of others, thus breaching public order ...

The appeal court dismisses the argument that the mere use of aberrant language in respect of one person does not disclose an offence. The offence of disorderly conduct is constituted by actions breaching public order and peace. Such actions include using foul language in a public place, insulting people, destruction of or damage to others’ property ... Each of these actions may amount to disorderly behaviour if it breaches public order and discloses a manifest disregard to society ...

Certain factual contradictions between the information in the administrative offence record, Z.’s report and N.’s testimony (as regards use of foul language on account of low culture rather than in respect of passers-by) were dispelled during the trial following the interview of the witnesses ...”

The applicant applied to the Deputy President of the Supreme Court of the Tatarstan Republic for judicial review under Article 30.12 of the CAO. Having examined the file, by decision of 15 June 2012 the Deputy President upheld the court decisions of 29 March and 16 April 2012.

The applicant did not seek further review before the Supreme Court of Russia.


CASE OF STANKOVIĆ AND TRAJKOVIĆ v. SERBIA

No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The first and second applicants were born in 1948 and 1970 respectively and live in Bujanovac Municipality.

Following the North Atlantic Treaty Organisation’s intervention in Kosovo, on 9 June 1999 the Yugoslav and Serbian Governments agreed to a phased withdrawal of their military and police forces from the territory and a transfer of all effective control to an international security force (“KFOR”). Concerning a number of municipalities, including Suva Reka, the transfer, according to the Military Technical Agreement, was to take place by 15 June 1999. It was further envisaged that it would be up to KFOR to “maintain a secure environment for all citizens of Kosovo”. Pursuant to their own phased withdrawal plan, which was to be synchronised with the Yugoslav Army plan, the Serbian police forces envisaged that a transfer of all effective control in Suva Reka Municipality would in fact take place on 13 June 1999.

On 13 June 1999 the first applicant’s husband was kidnapped by the Kosovo Liberation Army (“KLA”) in Suva Reka Municipality.

On 12 March 2002 the Bujanovac Municipal Court declared the first applicant’s husband dead. This ruling became final by 3 April 2002.

On 19 May 2005 the first applicant, together with her children, lodged a civil claim against the Republic of Serbia with the First Municipal Court in Belgrade, seeking compensation for the mental anguish suffered as a consequence of the incident.

On 19 May 2006 the said court ruled against the plaintiffs.

On 21 November 2007 the first-instance judgment was upheld by the Belgrade District Court on appeal. The first applicant was served with the District Court judgment on 23 May 2008.

In their reasoning the First Municipal Court and the District Court opined, inter alia, that while the first applicant’s husband had indeed been kidnapped on 13 June 1999 the Republic of Serbia could not be held liable, within the meaning of Article 180 § 1 of the Obligations Act (see paragraph 26 below), since it was up to KFOR to provide for the safety of all citizens of Kosovo from 9 June 1999 onwards (see paragraph 6 above). The fact that national security forces had been in the process of withdrawing from Suva Reka Municipality on 13 June 1999 was therefore merely a technical issue.

The first applicant could not have lodged a further appeal on points of law (revizija), given that the amount of compensation claimed was below the statutory threshold.

On 13 June 1999 the second applicant’s husband was kidnapped by the KLA in Suva Reka Municipality.

On 24 June 2002 the Bujanovac Municipal Court declared the second applicant’s husband dead. This ruling became final by 16 July 2002.

On 31 May 2005 the second applicant, together with her children and other family members, lodged a civil claim against the Republic of Serbia with the First Municipal Court in Belgrade, seeking compensation for mental anguish suffered as a consequence of the incident.

On 3 April 2008 the first-instance judgment was upheld by the Belgrade District Court on appeal.

In their reasoning the First Municipal Court and the District Court opined, inter alia, that while the second applicant’s husband had indeed been kidnapped on 13 June 1999 the Republic of Serbia could not be held liable within the meaning of Article 180 § 1 of the Obligations Act, since it was up to KFOR to provide for the safety of all citizens of Kosovo from 9 June 1999 onwards. The fact that national security forces had been in the process of withdrawing from Suva Reka Municipality on 13 June 1999 was therefore merely a technical issue.

The second applicant could not have lodged a further appeal on points of law, given that the amount of compensation claimed was below the statutory threshold.

The applicants maintained that in other judgments, rendered between 2006 and 2010, the Belgrade District Court and subsequently the Belgrade Appeals Court, as well as the Supreme Court at third instance, had ruled in favour of other plaintiffs, notwithstanding the fact that their claims were based on very similar facts and concerned identical legal issues.

Given the case-law provided by the parties, in their reasoning in those judgments where the said courts/different benches of the same court had indeed ruled in favour of the plaintiffs, the Serbian authorities were deemed responsible for the lives and safety of all persons residing in Kosovo up until the actual transfer of effective control to KFOR in respect of each of the municipalities considered separately (see, for example, the judgment of the First Municipal Court in Belgrade P. 431/07 of 24 February 2009, upheld on appeal by the Belgrade District Court; the judgments of the Belgrade District Court Gž. 10832/06, 13799/06, and 11483/08 of 26 December 2006, 5 June 2007 and 14 October 2008 respectively; the judgments of the Belgrade Appeals Court Gž. 2005/10 and 605/10 of 17 March 2010 and 10 June 2010 respectively; and the judgments of the Supreme Court Rev. 1551/07, 1092/08 and 939/08 of 5 September 2007, 24 April 2008 and 7 May 2008 respectively).

On 18 March 2008, according to the Government, the Supreme Court’s Civil Division endorsed this line of reasoning, specifically the reasons given in the same court’s ruling Rev. 1551/07 of 5 September 2007 (cited in paragraph 22 above).

On 10 March 2010, in Rev. 1540/10, the Supreme Court of Cassation ruled against other plaintiffs on the same basis as in the applicants’ case, but in its decision Už. 2786/10 of 28 June 2012 the Constitutional Court quashed this ruling and ordered the re-examination of the matter. On 19 April 2013 the Supreme Court of Cassation apparently ruled in favour of the plaintiffs, this time holding that the Serbian authorities were responsible for the lives and safety of all persons residing in Kosovo until the actual transfer of effective control to KFOR in respect of the municipality in question.

On 1 April 2014 the Supreme Court of Cassation adopted a detailed action plan aimed at ensuring the general harmonisation of case-law throughout the Serbian judicial system. This plan contained a series of measures to be undertaken at various levels of jurisdiction, and, inter alia, included the following: (i) the adoption of guiding legal opinions based on the principles developed in the jurisprudence of the European Court of Human Rights; (ii) the dissemination of such opinions; (iii) regular information sharing between the courts; (iv) an increased number of thematic discussions and training programmes; (v) the adoption of specific action plans by the courts at various levels; and (vi) the development of various IT tools and related intranet databases.


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

The applicant, Mr Vyacheslav Mikhaylovich Vasyanovich, is a Russian national who was born in 1964 and lives in Kursk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights.

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

In December 2003 the applicant sued a bookmaker over eighty-one beer tokens that he could not redeem at the bar. He accused the bookmaker of luring him into betting with a false promise of free drinks and claimed 9,130 Russian roubles (RUB) (EUR 250) for material loss and RUB 50,000 (EUR 1,400) for distress.

On 31 May 2004 the Leninskiy District Court of Kursk awarded him RUB 2,430 (EUR 70) for material loss and RUB 466.50 (EUR 12) in costs.

On 15 June 2004 the judgment came into force.

On 19 July 2004 the applicant appealed via the District Court.

On 20 July 2004 the court stayed the appeal (оставил без движения) until the applicant had paid a fee.

On 3 August 2004 the court struck the appeal off (возвратил) because the applicant had not perfected it in time.

On 17 September 2004 the court granted the applicant leave to appeal out of time.

On 28 September 2004 the court passed the case to the Kursk Regional Court for an appeal hearing.

On 20 October 2004 a Deputy President of the Regional Court returned the case as unappealable (снял дело с кассационного рассмотрения), because while the parties were perfecting their appeals the judgment had entered into force.

On 4 November 2004 the applicant objected.

On 15 November 2004 the Deputy President stood by the decision.

On 1 December 2004 the applicant objected again.

On 9 December 2004 the Deputy President stood by the decision again.


CASE OF COMUNIDAD DE PROPRIETARIOS PANDO NÚMERO 20 v. SPAIN

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

Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant is a community of owners of a building located in Madrid.

On 13 June 1991 L., the co-owner of a house located next to the applicant’s building, filed a complaint before the Madrid municipality, complaining that a dividing wall belonging to the applicant’s building and two other buildings located next to it was in poor condition.

On 25 April 1994, in view of the “serious risk of harm” posed by the poor condition of the wall, the municipality repaired it motu proprio.

On 30 August 1994 the applicant received a decree issued by the municipality on 29 July 1994, informing it that the repairs had been carried out in view of the “serious risk of harm” posed by the condition of wall in question, and ordering it to pay a provisional amount of 18,030.36 euros (EUR).

On 21 October 1994 the applicant initiated proceedings opposing the municipality’s demand, contesting the necessity of the urgent repairs.

On 29 October 1994, before the Madrid High Court of Justice, the applicant brought a first set of judicial administrative proceedings (recurso contencioso-administrativo) against the decree of 29 July 1994, complaining of the shortcomings of the procedure which had led to the municipality repairing the wall.

On 18 March 1996 the municipality asked the applicant to pay the remainder of the amount owed: the final cost of the repairs minus the amount already paid as a provisional amount.

On 16 July 1996, before the Madrid High Court of Justice, the applicant initiated a second set of judicial administrative proceedings (recurso contencioso-administrativo), contesting the amount of the requested payment and asking for a suspension of its obligation to pay that amount.

On 20 November 1996 the application to suspend its obligation to pay was rejected. That decision was confirmed by the Madrid High Court of Justice and the Supreme Court on 11 July 1997 and 23 February 2001 respectively.

On 6 March 1998 both sets of judicial administrative proceedings were joined.

On 9 December 2004 the Madrid High Court of Justice ruled against the applicant, on the grounds that the repairs had been carried out by the municipality in view of the poor condition of the wall and the “serious risk of harm” present at that time, which had given the municipality no other choice but to repair it and then ask the applicant for payment in respect of the costs incurred. The Madrid High Court of Justice also confirmed the amount set for the costs of the repairs.

On 3 March 2005 the applicant lodged a cassation appeal with the Supreme Court, which was declared inadmissible more than four years later on 29 May 2009. This decision was served on the applicant on 9 June 2009.

On 10 December 2009 the applicant lodged an amparo appeal with the Constitutional Court.

On 31 January 2010 the community of owners agreed to authorise Mr. García Caballero to act on its behalf in the framework of the judicial proceedings concerning the costs of the repairs to the wall.

By a decision of 28 April 2010 the Constitutional Court declared the amparo appeal inadmissible on the grounds that “the constitutional significance of the appeal had not been justified”. This decision was served on the applicant on 6 May 2010.


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

Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant was born in 1981.

On 3 May 2007 the applicant lodged a criminal complaint with the police alleging that in the past two years she had been a victim of multiple acts of domestic violence by her husband, B.B.

A preliminary police investigation showed that there was a suspicion that the applicant had been the victim of psychological and physical violence by B.B. during the period at issue. On the basis of those findings, the police forwarded the applicant’s criminal complaint to the relevant State Attorney’s Office. The police also forwarded the applicant’s medical records showing that in April 2007 she had sustained a contusion on her back after being pushed from a chair by B.B.

On 3 July 2007 the P. Municipal State Attorney’s Office (Općinsko državno odvjetništvo u P.) asked an investigating judge of the S. County Court (Županijski sud u S.) to open an investigation into the matter.

In the course of the investigation, the investigating judge heard the applicant and B.B. The latter denied the allegations of domestic violence. The judge also heard another witness, V.K., who confirmed that the applicant had often complained of emotional and physical harassment by her husband and had twice sustained injuries as a result of the alleged harassment.

On the basis of the results of the investigation, on 29 January 2008 the State Attorney’s Office indicted B.B. in the P. Municipal Court (Općinski sud u P.) on charges of domestic violence punishable under Article 215a of the Criminal Code (see paragraph 20 below). The relevant part of the indictment reads:

“In the period between 1 January 2004 and 26 April 2007 in P., ... [B.B.] attacked his wife Ž.B. several times, telling her to ‘go back to her scumbags in the dump from which she had come’ and that she was worthless. He raised his hand [threatening] to hit her, punched her in the face and body, and ordered her to go to the corner of the room. In December 2004 he grabbed her head and banged it against the bathroom wall and on 27 April 2007 he pushed her from a chair, as a result of which she fell to the ground. In this manner he reduced Ž.B. to a position of helplessness and debasement ...”

During the proceedings, the trial court heard the applicant, B.B., and several witnesses. On 21 April 2009 it found B.B. guilty as charged and sentenced him to seven months’ imprisonment, suspended for two years.

On 2 March 2010, following an appeal lodged by B.B., the S. County Court quashed the first-instance judgment and remitted the case to the Municipal Court on the grounds that all the relevant facts of the case had not been established.

In the resumed proceedings, the Municipal Court again heard the applicant, B.B. and a number of witnesses. It also examined further documents from other relevant State bodies concerning conflicts within the applicant’s family.

On 2 December 2010 the Municipal Court found B.B. guilty as charged and sentenced him to seven months’ imprisonment, suspended for two years.

B.B. challenged that judgment before the S. County Court. On 14 October 2011 the S. County Court quashed the judgment and remitted the case for further examination on the grounds that some relevant facts still needed to be established.

In the resumed proceedings, on 16 January 2013 the Municipal Court discontinued the proceedings on the grounds that the 2011 Criminal Code (see paragraph 21-22 below) had abolished the criminal offence of domestic violence under Article 215a of the 1997 Criminal Code, and that further proceedings against B.B. were therefore barred.

The State Attorney’s Office did not challenge that decision but the applicant lodged an appeal with the S. County Court.

On 28 February 2013 the S. County Court declared the applicant’s appeal inadmissible on the grounds that she did not have legal standing to challenge the decision on the discontinuation of the criminal proceedings.