Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 9 - Freedom of thought conscience and religion (Article 9 - Positive obligations;Article 9-1 - Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The case concerns an incident which took place on Friday, 20 May 2011, in front of the Banya Bashi Mosque in the centre of Sofia, in which leaders, members and supporters of the Bulgarian political party Ataka clashed with Muslim worshippers who had gathered around the mosque for the regular Friday prayer. The case also concerns the ensuing official investigations into that incident.

The Banya Bashi Mosque was built in 1576 and is currently the only operating mosque in Sofia. It can hold up to 700 worshippers. According to information provided by the Chief Mufti’s Office, there are about 30,000 Muslims in Sofia; some of them are Bulgarian nationals, and others immigrants from Turkey, the Middle East and Africa. The mosque is fitted with loudspeakers which were installed soon after the fall of the communist regime in 1989. Those loudspeakers are turned on during the call for prayer, which lasts about five minutes five times a day, and during the whole of the Friday prayer. They are turned off between 10 p.m. and 6 a.m. to comply with the regulations concerning the level of urban noise.

The mosque itself is surrounded by railings approximately 1.5 metres high. Two sides of the mosque face onto a park, behind which is the Sofia Central Mineral Baths (“Софийска централна минерална баня”). One side faces onto a side street, Triaditsa Street. The final side faces onto the Princess Marie Louise Boulevard. There, the pavement of the boulevard is approximately 15 metres wide. Owing to a lack of space inside the mosque, worshippers often pray around the building during the Friday prayer, placing their prayer rugs on the boulevard pavement. On the boulevard side of the mosque, there is also a single storey extension, which is not protected by railings, the top of which is just over 1.5 metres high. It is therefore possible to gain access to the mosque compound from the boulevard by climbing onto the roof of the single storey extension.

Ataka is a Bulgarian political party. It was founded in April 2005 and, since then, in parliamentary elections has gained around 7-9% of the popular vote and 21-23 seats in Parliament. The party’s leader, Volen Siderov, has been a Member of Parliament for Ataka since June 2005.

In 2006 Ataka and Mr Siderov began a campaign against the noise emanating from the loudspeakers installed on Banya Bashi Mosque. That year, they gathered about 35,000 signatures for a petition, presented to the Sofia Municipal Council on 18 July 2006, which called for the removal of the loudspeakers. On the evening of 18 July 2006 Ataka organised a rally against the “howling” emanating from the loudspeakers during the call to prayer.

In 2007 Ataka’s mayoral candidate for Sofia, Mr S. Binev, declared that, if elected, he would ban the calls for prayer broadcast from those loudspeakers because he believed that they disturbed persons who had other religious beliefs.

On Friday, 29 April 2011, supporters of Ataka mounted loudspeakers on a car and circled close to mosque, playing recordings of church bells and Christian chants during the regular Friday prayer that was taking place at the time. This was repeated during the week that preceded the incident of 20 May 2011. In the words of one of Ataka’s Members of Parliament, this was done to counter the “noise terror” emanating from the mosque.

At about 12 noon on Friday, 20 May 2011, worshippers began to gather in and around the mosque for the regular Friday prayer. The applicant was one of them. He, along with thirty or forty other worshippers, remained outside the mosque, either in the surrounding park or on the pavement on Princess Marie Louise Boulevard. Prayer rugs were spread out on the pavement boulevard, in keeping with the worshippers’ normal practice.

At the same time, between one hundred and one hundred and fifty members and supporters of Ataka gathered in front of the mosque on the boulevard to protest against what they called the “howling” emanating from the loudspeakers installed on the mosque. The group included Mr Siderov, Mr D. Chukolov, the party’s deputy leader, Ms D. Gadzheva, a Member of Parliament for the party, and Mr D. Stoyanov, a Member of the European Parliament for the party.

According to information provided by the Government in the course of proceeding before the Court, on 19 May 2011 Ataka had notified the municipality that, pursuant to Article 8(1) of the Assemblies, Meetings and Demonstrations Act 1990 (see paragraph 46 below), it intended to hold an assembly in the park behind the mosque (i.e. between the mosque and the Central Mineral Baths). This was scheduled for 1-5 p.m. on 20 May with 300 participants. This notification was received by the municipality at 9.54 a.m. on 19 May 2011.

The Government also provided copies of three letters which they had received from various authorities in the course of the proceedings.

The first, from the municipality, stated that the Sofia Directorate of the Ministry of Internal Affairs was notified of the planned demonstration on 19 May 2011 at 10.50 a.m.

The second, from Ministry of Internal Affairs, stated that the Sofia Directorate only learned of the demonstration at 11.40 a.m. on 20 May 2011 when they received information that supporters of Ataka had started to gather in the park beside the mosque. Until that moment, the Sofia Directorate had received no information about the demonstration. At this point, specialist police officers were dispatched to scene. A request for cooperation from the municipality was then received by the directorate by fax at 12.13 p.m.

The third, from Directorate of Religious Denominations (“Дирекция по вероизповеданията”), a governmental agency attached to the Council of Ministers, stated that, around 11 a.m. on 20 May 2011, they were informed by the Deputy Chief Mufti that the Ataka demonstration was going to be held in proximity to the mosque and that they immediately contacted the Ministry of Internal Affairs, after which the specialist police officers were dispatched to the mosque. They also contacted the municipality, which confirmed that permission had been given for the assembly to take place in the park between the mosque and the Sofia Central Mineral Baths.

Video recordings of the event made by the media and broadcast on Bulgarian television have been provided to the Court by the parties. On the basis of those recordings, the following events can be established.

The demonstrators congregated, not on the Central Mineral Baths side of the mosque, but on Princess Marie Louise Boulevard in front of the mosque, where the worshippers had already began to gather for Friday prayers. Most of the demonstrators were wearing black t-shirts featuring the inscriptions “Erdogan, you owe us 10 billion” and “Ataka says: No to Turkey in the EU”. Many carried large Bulgarian flags and Ataka flags, which were green and featured the inscriptions “Ataka” and “Let’s get Bulgaria back”. In the course of the demonstration, the participants played Bulgarian patriotic songs from loudspeakers mounted on cars.

The recordings also show the demonstrators shouting invective at the worshippers, calling them “Turkish stooges”, “filthy terrorists”, “scum”, “janissaries”, “cut-offs” and “Islamists”. They also depict the protestors shouting “Off to Ankara!”, “Do not soil our land!”, and “Your feet stink! That is why you wash them!” One of the participants in the rally can be seen slowly cutting a Turkish fez with a pocket knife, saying “Can you hear me? We shall now show you what will happen to each one of you!”

While this was happening, the mosque’s imam, using the loudspeaker system, repeatedly appealed to the worshippers not to respond to the demonstrators’ provocation.

When the Friday prayer started, one demonstrator climbed onto the roof of the single storey extension and played two loudspeakers on the roof in order to suppress the sound of the prayer. Five or six worshippers then interrupted their prayers, climbed onto the roof and tried to move the loudspeakers.

In response, several more demonstrators entered the mosque compound by climbing onto the roof of the single storey extension. A scuffle ensued, in which members and supporters of Ataka, some of whom were carrying wooden flagpoles and metal pipes, moved against the worshippers and started hitting them. Some of the worshippers hit back in response. Some can be seen holding and waving plastic tubing which appears to have been torn from the side of the mosque. Approximately ten police officers also climbed onto the roof of the single storey extension to separate the fighting parties; three people were then arrested. While this was happening two or three other police officers can be seen attempting to keep the demonstrators in the park beside the mosque and back from the side of the single storey extension: at this point, there were over a hundred demonstrators in the park. Some of them can be seen throwing eggs at the worshippers.

Another few police officers can be seen attempting to maintain a human cordon between the remaining demonstrators (another fifty or so) who were standing on the boulevard 3-4 metres back from the area where the worshippers’ prayer mats are spread out, though several members of Ataka, including its leaders, can be seen standing in that latter area, just in front of the mosque railings.

The demonstrators then continued to pelt the worshippers with eggs and stones and insult them. One of the demonstrators can be seen on the video recording wielding rolled up banner and shouting “We have been putting up with you for so many years. Where else would permit this [praying outside a mosque]? To whom are you praying?”

The parties accept that five police officers, five worshippers and Ms D. Gadzheva, who was hit on the chin by a flying stone, were injured in the course of the incident. It is not possible from the video recordings to determine who was responsible for her injury. One of the Muslim worshippers had to be hospitalised because he had concussion. Two police vehicles also sustained damage.

In apparent response to the police arresting two demonstrators on the roof of the single storey extension, Mr Siderov, surrounded by members of Ataka and journalists, then spoke into a microphone and addressed the police officers who were present at the scene. He asked them why they had not arrested any of “the real criminals who threw the stones” and accused them of bothering “Bulgarian patriots” rather than Islamists who “promoted violence against Christianity”. He then turned to the senior police officer at the scene, asking him if he was a janissary and suggesting that he put on a fez. Finally, he stated that, in Bulgaria, there was no Bulgarian police only a Turkish one and that those police officers present were a disgrace to their uniforms.

The incident ended at around 1.55 p.m. when, led by Mr Siderov and others, the demonstrators left the scene, Mr Siderov stating that he was going to Parliament to ask for the resignation of the Minister of Internal Affairs. As Mr Siderov was about to leave, at least four demonstrators wearing black t-shirts can be seen on the video recording piling some of the worshippers’ prayer rugs and setting fire to them. No action was taken against those responsible, though it appears the police did call the fire brigade.

A number of politicians, including the then President of the Republic, Georgi Parvanov, condemned Ataka’s involvement in the incident.

On 27 May 2011 the Parliament adopted a declaration also condemning the incident. It read as follows:

“Members of Parliament categorically condemn the aggression of the political party ‘Ataka’ of 20 May 2011 against worshippers in the centre of the capital. It is particularly scandalous that this was done on a Friday, a holy day for Muslims, at the time of their obligatory prayer. With those actions, that party isolated itself from democratic society in Bulgaria.

The conduct of that party is deeply alien to the Bulgarian people, to its religious and ethnic tolerance. We express our profound disquiet at the attempts to undermine the ethnic peace and to stir up religious tensions between Bulgarian citizens.

Following its attempted aggression against ethnic peace, which gives rise to a threat to the national security of the Republic of Bulgaria, the political party ‘Ataka’ has become dangerous for the government of the country.

The Bulgarian Constitution says that it is impermissible to use religious communities and institutions, or religious beliefs, for political ends.

We, Members of Parliament, insist that all competent State authorities, including the prosecuting authorities and the courts, take the necessary measures to ensure compliance with the Constitution and the laws of the Republic of Bulgaria.

We call on the mass media to behave responsibly, which in this tense time full of provocations means not to provide a platform to the voice of hatred.”

There have been two separate series of investigations into the events at the mosque that day: one by the police, the other by the National Investigation Service.

In a letter dated 18 March 2014, the Ministry of Internal Affairs set out the progress made in the police investigations. Three investigations had been opened: one into the injury sustained by Ms Gadzheva; a second into injuries sustained by two police officers and a cameraman, and criminal damage to the mosque and a police car; and a third into the violence directed towards the worshippers. The first two investigations have been suspended without anyone being charged.

The letter also stated that, in the course of the third investigation, thirty people had been interviewed as witnesses, and video recordings and other evidence had been obtained. In the course of that investigation, seven people had been charged (“привлечени като обвиняеми”) with aggravated hooliganism contrary to Article 325 § 2 of the Criminal Code (see paragraph 49 below). No information has been provided about whether those people were then prosecuted and, if so, whether any convictions were obtained.

An investigation was also opened by the Sofia City Prosecutor’s Office on 25 May 2011. The focus of that investigation was whether there had been any offences committed under Article 164 § 1 of the Criminal Code (the prohibition on hate speech motivated by religion: see paragraph 55 below).

On 6 December 2011 the applicant asked to be allowed to take part in that investigation as a victim within the meaning of Article 74 § 1 of the Code of Criminal Procedure 2005 (see paragraph 58 below). On 13 December 2011 the Sofia City Prosecutor’s Office refused the applicant’s request. It said that the offence under Article 164 § 1 of the Criminal Code 1968 was a “conduct” (“формално”) one (see paragraphs 55

On 16 March 2012 the applicant appealed against that decision to the Sofia Appellate Prosecutor’s Office. On 2 April 2012 the Sofia Appellate Prosecutor’s Office referred the case back to the Sofia City Prosecutor’s Office, instructing it to rule on the applicant’s request by means of a formal decision. On 5 April 2012 the Sofia City Prosecutor’s Office did so, repeating the reasons that it had given on 13 December 2011.

On 17 April 2012 the applicant appealed against that decision. On 28 May 2012 the Sofia Appellate Prosecutor’s Office found that the question whether an offence was a “conduct” (“формално”) or a “result” (“резултатно”) one was irrelevant as to whether a person could be a victim of that offence. However, there was no evidence that the applicant had been present when the alleged offence had been committed or that the offence had directly affected him. It was therefore necessary to interview the applicant.

Accordingly, on 7 June 2012 the applicant was interviewed by the investigator in charge of the case. He stated that he had arrived at the mosque at 11.30 a.m. and had sat in the park between the mosque and the Central Mineral Baths until prayers began. He described the demonstrations’ behaviour in the course of their demonstration, including the insults he had heard. He said that the police had done their job well in keeping the groups apart. According to the applicant, in the course of the interview the investigator was hostile to him and his religion, asking him whether he knew whether he was entitled to pray in front of the mosque and whether he had obtained permission to do so by an appropriate authority.

On 16 August 2012 the applicant requested that the supervising prosecutor assign the case to another investigator on the basis that the original investigator was ethnically and religiously biased. He also requested access to the case file.

On 5 September 2012 the applicant once again asked to be allowed to take part in the investigation as a victim of the alleged offence.

On 19 November 2012 the Sofia City Prosecutor’s Office refused the applicant’s request, again finding that the offence under Article 164 § 1 of the Criminal Code 1968 was indeed a “conduct” offence (“формално престъпление”) (see paragraphs 55 and 57 below) and could therefore not have a victim. It went on to reject the applicant’s request to have the case reassigned to another investigator, reasoning that, not being party to the proceedings, the applicant had no standing to make such a request. For the same reason, the applicant had no right to inspect the case file.

On 31 October 2013, after unsuccessful appeals by the applicant to Sofia Appellate Prosecutor’s Office and the Supreme Cassation Prosecutor’s Office, the deputy Chief Prosecutor decided that “conduct” offences (“формални престъпления”) could in principle have a victim. It was therefore necessary to check whether the applicant had himself been prevented from carrying out his religious observances, and if so, in what way. That point had not been fully elucidated in his first interview, which made it necessary to interview him again, before deciding whether he could be allowed to take part in the proceedings in his capacity as a victim.

It appears that the National Investigation Service’s investigation is still ongoing. Although a number of witnesses have been interviewed and expert reports obtained, no charges have been brought against any person in the framework of that investigation. However, the Government have submitted part of the investigation file. This includes two statements given by a Mr M. In the second of those two statements he admitted to being the person responsible for cutting up the fez during the demonstration. He stated that he was instructed to do so by Mr Siderov and that Mr Siderov told him to do it before Mr Siderov arrived at the scene. He said he could not refuse because he was working for Ataka at the time. Mr M. also stated that it would have been possible to avoid any collisions between the demonstrators and worshippers if Mr Siderov had wanted. This could have been done by returning to the allocated place for the demonstration or by withdrawing after the scuffle on the single storey extension. Mr M. also stated that young, far-right supporters of Ataka had been drafted in from the town Gabrovo specifically for the demonstration and that they had been placed in the front line of the demonstration. In Mr M.’s view, Mr Siderov could have also avoided a confrontation with the worshippers had he not placed the Gabrovo group at the front of the demonstration.

From the investigation file as submitted to the Court, various efforts were made to summon the Ataka party leaders who were at the demonstration in order to interview them. With the exception of Mr Chukolov, the party’s deputy leader, who has been interviewed, those efforts have failed.


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

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1979 and lives in Šiauliai.

On 17 February 2007, at around 12.30 a.m., the applicant and his friends, J.J., A.D. and D.R., arrived at a petrol station near the town of Skuodas. While they were waiting in line at the petrol station’s shop, another group of men, who were not known to them, arrived at the shop and attempted to skip the queue, leading to an argument between the two groups. After they had all left the shop, some of the men started beating J.J. in the petrol station’s parking lot. When the applicant tried to help his friend, the men punched the applicant in the face and head several times, causing him to fall to the ground, where they kicked him in the head. According to the applicant, the assault lasted a couple of minutes and he was hit about ten times.

On the day of the incident the Skuodas police (hereinafter “the police”) opened a pre-trial investigation, interviewed the applicant and granted him victim status. On unspecified dates J.J., A.D. and D.R. were also granted victim status.

On 19 February 2007 the applicant was examined by a court medical expert. The expert found contusions on the applicant’s face and head, and determined that they could have been caused by at least four blows with a hard, blunt object. The expert concluded that the injuries corresponded to negligible health impairment (nežymus sveikatos sutrikdymas) and that they could have occurred at the time and in the circumstances described by the applicant (see paragraph 6 above).

On 13 March 2007 the police identified two suspects, E.G. and R.B., and notified them that they were suspected of disturbing the public order, contrary to Article 284 § 1 of the Criminal Code (see paragraph 25 below). On 13 June 2007 a third suspect, S.G., was identified and notified of the same suspicion.

On 20 March 2007 the applicant joined the proceedings as a civil party. He claimed 10,000 Lithuanian litai (LTL – approximately 2,896 euros (EUR)) in pecuniary and non-pecuniary damages jointly from all the suspects.

On 7 June 2007 a court medical expert again examined the applicant and his medical file. The expert found that a few days after the incident the applicant’s doctor had detected a fracture in the applicant’s nose, without any displacement of the bone (nosies kaulo lūžiai be dislokacijos), and that the applicant had been granted sick leave from work for four days. The expert concluded that the injury corresponded to negligible health impairment.

On 28 December 2007 E.G., R.B. and S.G. were notified that they were also suspected of causing negligible health impairment or physical pain to other persons by violent acts, contrary to Article 140 § 1 of the Criminal Code (see paragraph 25 below).

In the course of the pre-trial investigation, the police interviewed twelve witnesses, examined the victims’ clothes and other items, obtained a video recording of the incident from the petrol station, and carried out various other investigative measures. On 16 July 2007 the suspects and the victims were informed that the pre-trial investigation had been completed.

On 10 January 2008 the Skuodas District Prosecutor (hereinafter “the prosecutor”) issued an indictment against E.G., R.B. and S.G., charging them with the crimes set out in Articles 140 § 1 and 284 § 1 of the Criminal Code.

On 12 August 2008 at the applicant’s request the Skuodas District Court ordered an additional medical examination of his injuries in order to determine whether there had been any further deterioration of his health. On 18 December 2008 the applicant was examined by a court medical expert. The expert found that although a few months previously the applicant had been diagnosed with inflammation of the auditory nerves, that condition was not related to the injuries sustained during the incident of 17 February 2007.

On 17 December 2009 the Skuodas District Court convicted E.G., R.B. and S.G. of the crimes set out in Articles 140 § 1 and 284 § 1 of the Criminal Code. The court considered that the charges had been proven by victim and witness testimony, the confessions of the accused, and the video recording from the petrol station’s camera. E.G., R.B. and S.G. were given suspended prison sentences ranging from twelve to eighteen months. The applicant’s civil claim was granted in part and he was awarded LTL 6,000 (approximately EUR 1,738) in non-pecuniary damages.

The convicted persons and the victims, including the applicant, appealed against the district court’s judgment. On 25 February 2010 the Klaipėda Regional Court quashed the judgment because of grave breaches (esminiai pažeidimai) of the Code of Criminal Procedure (see paragraphs 2829 below). The Klaipėda Regional Court held that the district court had not based its judgment on circumstances examined at the hearing but solely on the description of the charges in the indictment. It also held that the district court had not assessed all the testimony and other evidence in detail and had not explained why some evidence had been considered reliable and some not. The Klaipėda Regional Court concluded that such breaches had affected the district court’s impartiality. As a result, the case was remitted to the Skuodas District Court for re-examination.

On an unspecified date the prosecutor amended the indictment and charged E.G., R.B. and S.G. only with disturbing public order, contrary to Article 284 § 1 of the Criminal Code.

On 5 May 2011 a different panel of the Skuodas District Court, after re-examining the case, convicted E.G., R.B. and S.G. of the charges against them and gave them suspended prison sentences ranging from twelve to eighteen months. The applicant’s civil claim was granted in part – he was awarded LTL 124.45 (approximately EUR 36) in pecuniary damages consisting of travel expenses to attend court hearings, LTL 5,000 (approximately EUR 1,448) in non-pecuniary damages and LTL 5,000 in legal costs. The court also held that the applicant had the right to claim further pecuniary damages from the convicted persons in separate civil proceedings.

The convicted persons and one of the victims, J.J., appealed against the district court’s judgment. On 5 August 2011 the Klaipėda Regional Court quashed the judgment because of grave breaches of the Code of Criminal Procedure (see paragraphs 27 and 29 below). It found that the district court had not made any findings in respect of one of the victims, D.R., and had thereby breached D.R.’s rights and those of the accused. The Klaipėda Regional Court also held that the district court had not examined whether two of the accused, R.B. and S.G., had disturbed public order, as submitted in the amended indictment. Rather, the district court had examined whether R.B. and S.G. had assaulted the victims, thereby de facto changing the charges against them and violating their right to defend themselves. The Klaipėda Regional Court concluded that such breaches had affected the district court’s objective impartiality, and the case was again remitted to the Skuodas District Court for re-examination.

On 26 March 2012 a different panel of the Skuodas District Court held that the five-year statute of limitations (see paragraph 26 below) had expired and discontinued the case as time-barred, leaving the victims’ civil claims unexamined. The victims, including the applicant, appealed against that decision, arguing that the court had erred by applying the statute of limitations because the legal classification of the charges had been incorrect. However, on 28 June 2012 the Klaipėda Regional Court dismissed their appeal, finding that the legal classification of charges was the prerogative of the prosecutor and that the Code of Criminal Procedure did not provide for any possibility to continue criminal proceedings after the expiry of the statute of limitations.

After the discontinuation of the criminal proceedings, the applicant submitted a civil claim against E.G., R.B. and S.G. He claimed LTL 12,170 (approximately EUR 3,525) in pecuniary damages, consisting of the salary which he had allegedly lost while attending court hearings in the criminal proceedings, travel expenses to attend those hearings, and legal costs sustained in the criminal proceedings. He also claimed LTL 300,000 (approximately EUR 86,886) in non-pecuniary damages.

On 20 February 2013 the Skuodas District Court granted the applicant’s civil claim in part. It examined the evidence which had been collected in the criminal proceedings and on that basis concluded that E.G., R.B. and S.G. had caused damage to the applicant by their deliberate actions. However, the court considered that the applicant had not proven the pecuniary damage claimed and awarded him LTL 124.45 (approximately EUR 36) under that head on the basis of petrol receipts he had submitted. The court further observed that the applicant’s nose had been broken and that he must have suffered a certain amount of inconvenience owing to the need to attend numerous court hearings; however, the injury had not caused him any long-term physical or psychological damage. On those grounds, the court awarded the applicant LTL 7,000 (approximately EUR 2,027) in nonpecuniary damages.

The applicant appealed against that judgment, and on 4 July 2013 the Klaipėda Regional Court partly upheld his appeal. It found that the district court had erred in refusing to award the applicant pecuniary damages related to the legal costs which he had incurred in the criminal proceedings, and granted him LTL 5,000 (approximately EUR 1,448) under that head, thereby increasing the total amount of pecuniary damages to LTL 5,124.45 (approximately EUR 1,484). The amount of non-pecuniary damages was left unchanged.


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

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

The first and second applicants were born in 1938 and the third applicant in 1963. They all live in Karlovac.

On 1 April 1993 the first and the second applicants’ daughter, who was the third applicant’s sister, was killed in a bar by Z.R., who at the time served as a soldier in the Croatian army.

By a judgment of the Karlovac Military Court (Vojni sud u Karlovcu) Z.R. was found guilty of murder and sentenced to eight years’ imprisonment.

On appeal, the Supreme Court (Vrhovni sud Republike Hrvatske) on 17 February 1994 upheld the conviction, which thereby became final, but increased the sentence to nine years’ imprisonment.

On 15 January 1998 the applicants submitted a request to the State Attorney’s Office for their claim for damages to be settled in connection with the unlawful killing of their relative by a soldier, as required under the Military Service Act, in force at the material time (see paragraph 26 below).

On 5 March 1998, after their request was refused, the applicants brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu), seeking compensation from the State and Z.R. in connection with the killing of their relative.

During the proceedings, the State Attorney’s Office raised a number of substantive and procedural objections to the applicants’ claim against the State.

Meanwhile, on 4 October 1999 the applicants withdrew their civil action against Z.R. but maintained their action against the State.

Owing to the failure of the applicants’ representative to appear at several hearings, of which the first applicant was informed, on 14 March 2003 the Zagreb Municipal Court found that the civil action was considered to have been withdrawn (see paragraph 24 below; section 216 § 4 of the Civil Procedure Act).

As no appeal was lodged by the parties, on an unspecified date this decision became final. The applicants later in 2005 attempted to have the statement of finality quashed and to lodge a belated appeal, but this was dismissed by the competent court.

On 9 May 2005 the applicants brought their claim for damages before the Karlovac Municipal Court (Općinski sud u Karlovcu), which meanwhile had acquired competence to hear the case, against the State and Z.R. related to the killing of their family member.

During the proceedings, the State Attorney’s Office challenged the applicants’ claim on several procedural grounds, arguing in particular that they had failed to seek to have their claim against the State settled before lodging their civil action, as required under the relevant domestic law (see paragraph 24 below).

On 17 March 2010 the Karlovac Municipal Court declared the applicants’ civil action against the State inadmissible, on the grounds that before they lodged their civil action the applicants had failed to attempt to have the case settled with the competent State Attorney’s Office, as required under the relevant domestic law.

The applicants challenged the decision of the Karlovac Municipal Court by lodging an appeal before the Karlovac County Court. On 29 July 2010 the Karlovac County Court dismissed their appeal, holding as follows:

“Section 186(a) of the Civil Procedure Act (Official Gazette, nos. 117/2003 and 88/2005) provides that a person intending to bring a civil suit against the Republic of Croatia must first submit a request for a settlement to the competent State Attorney’s Office. When there is no doubt that before lodging the civil claim the claimant has failed to settle the case with the competent State Attorney’s Office, the first-instance court is correct to declare such a claim lodged directly before it inadmissible (VS Rev-1124/056 of 14 March 2007).

The duty to seek settlement with the State Attorney’s Office is a procedural requirement for lodging a civil action which must be complied with at the moment when the action is lodged.

Section 186(a) of the Civil Procedure Act is inapplicable to claims for damages lodged before the courts prior to 1 December 2003.

It is not in dispute that the plaintiffs on 5 March 1998 lodged an identical claim against the same defendants before the Zagreb Municipal Court ... It is also not disputed that on 14 March 2003, after the conditions for the stay of proceedings had been met twice, a decision was adopted finding that the claim against the first defendant, the Republic of Croatia, was withdrawn.

However, these undisputed facts do not mean that the plaintiffs were released from their obligation under section 186(a) of the Civil Procedure Act because they had previously submitted an identical claim. With the amendments to the Civil Procedure Act (Official Gazette no. 117/2003) the duty to seek settlement with the State Attorney’s Office is a procedural requirement for lodging a civil action which must be complied with at the moment when the action is lodged. Further amendments to the Civil Procedure Act (Official Gazette nos. 84/2008 and 123/2008) did not [alter this obligation] with regard to the actions against the Republic of Croatia.”

On 27 October 2010 the applicants lodged an appeal on points of law before the Supreme Court, challenging the decision of the Karlovac County Court on the grounds that it unreasonably restricted their right to access to court. They argued that before they brought their civil action of 5 March 1998 before the Zagreb Municipal Court they had attempted to settle the matter with the State Attorney’s Office. However, their request had been refused, and later during the proceedings the State Attorney’s Office had also challenged their claim in the court. The applicants therefore considered that there was no reason to seek another settlement concerning the identical claim brought before the court after it was decided that it had been withdrawn.

The applicants also lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) on 5 November 2010, reiterating their above arguments.

On 23 March 2011 the Constitutional Court declared the applicants’ constitutional complaint inadmissible on the grounds that the decisions of the lower courts did not concern individual acts deciding on their civil rights and obligations.

On 3 April 2013 the Supreme Court dismissed the applicants’ appeal on points of law, endorsing the reasoning of the Karlovac County Court that the applicants had been obliged to seek settlement with the State Attorney’s Office before lodging their action of 9 May 2005. The Supreme Court pointed out:

“It should be noted that the procedural requirement for the admissibility of an action under section 186(a) of the Civil Procedure Act, and the reliance of the lower courts on that provision, do not represent a violation of a plaintiff’s right of access to court. This is because the plaintiff, by complying with that provision, does not lose any of their rights to claim [damages] since, for example, the lodging of a request for settlement interrupts the running of the statutory prescription period ([Article 186(a)] § 3) and the plaintiff may lodge an action in the court if the State Attorney’s Office refuses the request [for settlement] or does not decide on it within three months of the date it was lodged ([Article 186(a)] § 5).

It cannot therefore be said that the obligation of the plaintiffs to seek settlement of the claim with the State Attorney’s Office before lodging an action against the Republic of Croatia represents an unreasonable restriction of access to a competent court which can decide the case on the merits as required under Article 6 § 1 of the European Convention on Human Rights (Official Gazette-International Contracts, nos. 18/1997, 6/1999-consolidated text, 8/1999-rectification, 14/2002 and 1/2006). This is because section 186 of the Civil Procedure Act neither impaired the right to lodge a civil action nor the right to have the case decided on the merits ... (see the European Court of Human Rights in Ačimović v. Croatia of 9 October 2003 and Kutić v. Croatia of 1 March 2002).”


Preliminary objections joined to merits and dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Dean Spielmann;George Nicolaou;Guido Raimondi;Helen Keller;Ineta Ziemele;Johannes Silvis;Jon Fridrik Kjølbro;Josep Casadevall;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Paulo Pinto De Albuquerque;Zdravka Kalaydjieva

The applicant was born in 1962 and is detained in Daugavpils Prison.

On 25 April 1998 the applicant and another individual, A. Vovruško, were arrested by the police on suspicion of having committed, inter alia, aggravated assault against P.M.

Criminal proceedings were initiated in that connection, throughout which the applicant and his co-defendant pleaded their innocence.

On 27 September 2000 the applicant and his co-defendant were found guilty of the charges and were sentenced to nine and twelve years’ imprisonment respectively by the Riga Regional Court.

The applicant lodged an appeal on points of law and unsuccessfully sought leave to attend the hearing on his appeal before the Supreme Court.

Following his questioning at the police station after his arrest, the applicant complained to the public prosecutor’s office that he had been ill-treated by police officers who had tried to obtain a confession from him (for details concerning similar allegations of ill-treatment made by the applicant’s co-defendant, see Vovruško v. Latvia, no. 11065/02, 11 December 2012).

As a result, criminal proceedings (case no. 50207598) were initiated against the police officers for abuse of official power. On 19 March 2001 those criminal proceedings were discontinued by the Riga police station investigator (Rīgas rajona policijas pārvalde) on grounds of insufficient evidence. The investigator found, inter alia, that the applicant’s allegations were incoherent, and concluded that the “light” injuries he had sustained could have been caused during his arrest.

On 8 October 2001 the applicant lodged an application (no. 547/02) with the Court. He alleged a breach of Article 3 of the Convention, complaining of having been subjected to ill-treatment during the pre-trial investigation and of the lack of an effective investigation into those allegations. He also alleged breaches of Article 3 (conditions of detention following his conviction), Article 5 § 3 (duration of pre-trial detention), Article 5 § 5 (lack of compensation), Article 6 § 1 (refusal to grant him leave to attend the Supreme Court hearing and overall duration of the criminal proceedings), and Article 6 § 1 taken in conjunction with Articles 13 and 14 of the Convention (lack of legal assistance). He lodged a further complaint under Article 6 § 1 alleging that the criminal proceedings which had resulted in his conviction had been unfair as his confession had been obtained from him as a result of ill-treatment in breach of Article 3.

On 22 February 2007 the Government were given notice of the applicant’s complaints concerning, inter alia, his ill-treatment and the lack of an effective investigation into his allegations in that regard.

On 30 April 2008 the Government submitted the following unilateral declaration:

“The Government of the Republic of Latvia (hereinafter – the Government) represented by [their] Agent Inga Reine admit that the physical treatment of Viktors Jeronovičs (hereinafter – the applicant) by the police officers, as well as the effectiveness of the investigation of the respective applicant’s complaints, the access to legal aid and effective remedies to apply for the compensation of damages, the length of criminal proceedings [against the applicant], as well as the lack of effective remedy did not meet the standards enshrined in Article 3, Article [5 § 5], Article [6 § 1], Article 13 and Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention). Being aware of that, the Government undertake to adopt all necessary measures in order to avoid similar infringements in future, as well as to provide an effective remedy.

Taking into account that the parties have failed to reach a friendly settlement in this case, the Government declare that they offer to pay ex gratia to the applicant compensation in the amount of 4,500 EUR ([approximately] 3,163 LVL]), this amount being the global sum and covering any pecuniary and non-pecuniary damage together with any costs and expenses incurred, free of any taxes that may be applicable, with a view to terminat[ing] the proceedings pending before the European Court of Human Rights (hereinafter – the Court) in the case [of] Jeronovičs v. Latvia (application no. 547/02).

This payment will constitute the final resolution of the case.”

On 10 February 2009 the Chamber of the Court’s Third Section to which the case had been allocated adopted a decision in which, inter alia, it took note of the terms of the Government’s declaration and, by virtue of Article 37 § 1 of the Convention, struck out the complaints mentioned in the unilateral declaration. The relevant paragraphs of the decision read as follows:

“48. The Court observes at the outset that the parties have not reached agreement on the terms of a friendly settlement of the case. It reiterates however that a distinction must be drawn between, on the one hand, declarations made in the context of strictly confidential friendly-settlement negotiations and, on the other, unilateral declarations – such as the one at issue – made by a respondent Government in public and adversarial proceedings before the Court. In accordance with Article 38 § 2 of the Convention and Rule 62 § 2 of the Rules of Court, the Court will proceed on the basis of the Government’s unilateral declaration and the parties’ observations submitted outside the framework of the friendly-settlement negotiations, and will disregard the parties’ statements made in the context of exploring the possibilities for a friendly settlement of the case and the reasons why the parties were unable to agree on the terms of a friendly settlement (see Tahsin Acar v. Turkey (preliminary objection) [GC], no. 26307/95, § 74, ECHR 2003VI).

The Court further refers to Article 37 § 1 of the Convention, the relevant parts of which provide:

‘1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.’

Tahsin Acar, cited above, § 75; see also, for example, Van Houten v. the Netherlands (striking out), no. 25149/03, § 33, ECHR 2005IX; Swedish Transport Workers’ Union v. Sweden (striking out), no. 53507/99, § 24, 18 July 2006; Kalanyos and Others v. Romania, no. 57884/00, § 25, 26 April 2007; Kladivík and Kašiar v. Slovakia (dec.) (striking out), no. 41484/04, 28 August 2007; Sulwińska v. Poland (dec.) (striking out), no. 28953/03, 18 September 2007; Stark and Others v. Finland (striking out), no. 39559/02, § 23, 9 October 2007; Feldhaus v. Germany (dec.) (striking out), no. 10583/02, 13 May 2008; and Kapitonovs v. Latvia (dec.) (striking out), no. 16999/02, 24 June 2008).

As to the ill-treatment to which the applicant was allegedly subjected in police custody and the effectiveness of the investigations carried out, although the Court has not to date found a violation of Article 3 by the Latvian police in that specific context, it nevertheless points to its clear and very extensive case-law in this regard (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, §§ 95-106, ECHR 1999V; Dikme v. Turkey, no. 20869/92, §§ 73-104, ECHR 2000VIII; and Karaduman and Others v. Turkey, no. 8810/03, §§ 64-82, 17 June 2008). The same is true as regards the principles governing the granting of legal aid as a component of the right of access to a court (see, for example, Aerts v. Belgium, 30 July 1998, §§ 59-60, Reports of Judgments and Decisions 1998V; P., C. and S. v. the United Kingdom, no. 56547/00, §§ 88-91, ECHR 2002VI; Bertuzzi v. France, no. 36378/97, §§ 23-32, ECHR 2003III; and Staroszczyk v. Poland, no. 59519/00, §§ 127-129, 22 March 2007).

In their declaration in the present case the Government have recognised that the treatment to which the applicant was subjected by the police officers while in police custody, the manner in which the investigations were carried out in that regard, the handling of the applicant’s claims for compensation and in particular the refusal of his applications for legal aid in order to gain access to the compensation procedure, as well as the length of the criminal proceedings against him, infringed Articles 3, 5 § 5, 6 § 1, 13 and 14 of the Convention. They have offered to pay the applicant EUR 4,500 in compensation and undertake to take all necessary measures to prevent similar violations in the future.

In view of the nature of the undertakings contained in the Government’s declaration, the Court considers that it is no longer justified to continue the examination of the complaints in question. That decision is without prejudice to the possibility for the applicant to exercise any other available remedies in order to obtain redress. The same applies to the complaint under Article 2 of Protocol No. 7, which is identical in substance to the complaint under Article 6 § 1 of the Convention concerning the length of the criminal proceedings in question (paragraph 38 in fine). The Court is further satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue its examination of this part of the application (Article 37 § 1 in fine).

Accordingly, the case should be struck out of the list in so far as it concerns the complaints referred to in paragraphs 28, 37 and 38 of this decision.”

In the same decision, the Court declared admissible the complaints concerning the applicant’s conditions of detention (Article 3) and the refusal to grant him leave to attend the Supreme Court hearing (Article 6), and dismissed all the other complaints, including the complaint that the criminal proceedings had been unfair owing to the admission of evidence obtained under duress (Article 6). On the latter point the Court found as follows:

“39. Relying on Articles 6 §§ 1 and 2, 7 and 14 of the Convention, the applicant complained of the overall unfairness of his conviction for the armed robbery allegedly committed in April 1998. He maintained in that connection that a confession had been obtained from him under duress and that the courts had refused several requests made by him for a confrontation. Lastly, the applicant contended that he had been convicted solely on account of his ethnic and social origin and his previous convictions.

The Court, having regard to all the evidence in its possession and in so far as it has jurisdiction to examine the allegations made, finds no appearance of a violation of the rights and freedoms guaranteed by the provisions on which the applicant relies. In particular, it reiterates that it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention, which is not the case here (see, among many other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000V).

It follows that these complaints are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.”

On 1 December 2009 the Court adopted a judgment – Jeronovičs v. Latvia (no. 547/02) – finding a violation of Article 3 of the Convention (conditions of detention) and Article 6 § 1 (refusal to grant leave to attend the Supreme Court hearing) and awarding 5,000 euros [EUR] in compensation for the non-pecuniary damage suffered on account of the Article 3 violation.

On 11 October 2010 the applicant requested the public prosecutor’s office to reopen the criminal proceedings in which he had been convicted (see paragraph 13 above) as well as the proceedings concerning his alleged ill-treatment by police officers (see paragraph 16 above). He relied on the terms of the Government’s unilateral declaration of 30 April 2008 and on sections 655(3), 656(3) and 657 of the Criminal Procedure Law (see paragraphs 28 to 31 below).

On 17 November 2010 a prosecutor attached to the Riga Regional Court dismissed the applicant’s request, finding that none of the grounds for the reopening of criminal proceedings set out in section 655(2) of the Criminal Procedure Law applied. The prosecutor also found as follows:

“...The case of Jeronovičs v. Latvia (no. 547/02) contains the Government’s unilateral declaration, the conclusions of which are applicable only to the circumstances and the events examined within the scope of that case. It cannot be concluded from the judgment of 1 December 2009 adopted by the European Court of Human Rights that the Court examined and assessed any activities carried out by the law-enforcement officers during the pre-trial investigation in the criminal proceedings ... Accordingly, the conclusions reached in [the Court’s] judgment of 1 December 2009 and the Government’s unilateral declaration of 30 April 2008 cannot be applied or connected to the criminal proceedings...”

In an appeal lodged on 9 December 2010 the applicant reiterated that there was a legal basis for reopening the criminal proceedings concerning his ill-treatment, on account of the fact that the Government’s unilateral declaration had expressly recognised the violation of Article 3 of the Convention, a circumstance which had led the Court to strike out that complaint. He further argued that at the time his criminal case was examined by the domestic courts, the judicial authorities had been unaware that the investigation into his allegations of ill-treatment was in breach of Article 3.

In a final decision of 20 December 2010 a higher-ranking prosecutor upheld the decision of 17 November 2010. The prosecutor noted that, under section 655(2) of the Criminal Procedure Law, only criminal proceedings that had ended with a valid court judgment or decision could be reopened, and only provided that the ground for requesting such reopening was among those listed in that provision. The prosecutor further found as follows:

“Having examined the foregoing, I find that the conclusion of the prosecutor in her decision of 17 November 2010 is valid and well-founded, to the effect that your application dated 11 October 2010 requesting the reopening of the criminal proceedings in cases nos. 06725198 and 50207598 on the basis of new circumstances does not comply with any of the conditions prescribed by section 655(2) of the Criminal Procedure Law which could serve as grounds for reopening the above-mentioned criminal proceedings. The prosecutor did not establish the existence of any such conditions during the examination of your application, which is why I regard as reasonable her decision to refuse the reopening of the criminal proceedings in cases nos. 06725198 and 50207598 on the basis of newly disclosed circumstances.

As already mentioned, the Criminal Procedure Law prescribes in detail all the circumstances which shall be recognised as newly disclosed and on the basis of which criminal proceedings ending in a valid court judgment or decision may be reopened. The Criminal Procedure Law does not make any provision for these circumstances to be expanded. In examining your complaint I did not find established any of the newly disclosed circumstances prescribed by section 655(2) of the Criminal Procedure Law. Likewise, I did not find any opinion by an international judicial authority relating to the decision of the Latvian court in case no. 50207598 and finding that the judgment of the Criminal Division of the Riga Regional Court which came into force on 27 September 2000 did not comply with international law and regulations binding on Latvia. The European Court of Human Rights did not express such an opinion in its judgment of 1 December 2009 or in the decision of 10 February 2009 in which that international court examined your application. I would also like to point out that, contrary to your allegations, the European Court of Human Rights in its decision of 10 February 2009 stated that in the adoption of its decision concerning inhuman treatment by police officers during the criminal investigation it did not find any violation of international laws or regulations.

In your application you emphasised that the criminal proceedings in cases nos. 06725198 and 50207598 should be reopened in connection with the unilateral declaration of the Government of the Republic of Latvia mentioned by the Latvian Republic Government Agent on 30 April 2008, in which the Government of the Republic of Latvia recognised that the physical treatment of Viktors Jeronovičs by police officers, the effectiveness of the investigation into the applicant’s complaints, his access to legal aid and to effective remedies by which to apply for compensation for damage, the length of the criminal proceedings, and the lack of an effective remedy, did not meet the standards enshrined in Articles 3, 5 § 5, 6 § 1, 13 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. I would like to make clear that, according to section 655(2) of the Criminal Procedure Law, the above-mentioned unilateral declaration by the Government of the Republic of Latvia is not recognised as a newly disclosed circumstance and cannot therefore be regarded as a basis for reopening the criminal proceedings in cases nos. 06725198 and 50207598.

In view of the above-mentioned considerations, there is no reason to quash the decision [...] dated 17 November 2010 concerning the refusal to reopen the criminal proceedings in the light of newly disclosed circumstances...”


Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant, Mr Veljko Đuzel, is a Croatian national, who was born in 1959 and lives in Zagreb. He was represented before the Court by Ms L. Kušan, a lawyer practising in Ivanić Grad.

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

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

The applicant is the owner of a hotel, D., in Baška Voda, a municipality in the coastal part of Croatia, which he bought with a view to first reconstructing it and later on using it commercially. The hotel was built in 1962, according to a building permit issued in the same year, and was registered in the Land Registry.

At the relevant time the regulations concerning zoning permits in Baška Voda were the Decision on Adoption of the Makarska Municipality Spatial Plan (Odluka o donošenju Prostornog plana općine Makarska, Official Gazette of the Makarska Municipality, nos. 8/85, 10/90, 6/91, 8/91 and 4/92), a larger central municipality from which the Baška Voda municipality was formed, and the Decision on Rules of Development in Constructed Areas in the Baška Voda Municipality (Odluka o odredbama za provođenje u izgrađenim naseljima na području Općine Baška Voda, hereinafter “the Development Rules”) adopted by the Baška Voda Municipality in 1999 and published in the Official Gazette of the Baška Voda Municipality no. 2/99 on 21 April 1999. According to these regulations and the relevant domestic law (see paragraph 23 below), a zoning permit (lokacijska dozvola) was required before any construction could be commenced on the buildings in the area concerned.

On the basis of the above zoning documents, on 26 July 2001 and 2 August 2001 the owners of the properties adjacent to the applicant’s hotel obtained zoning permits from the Makarska State Administration Office for Spatial Development, Communal Affairs, Construction and Ecology (hereinafter: the “Makarska State Administration Office”) for renovation and reconstruction of their buildings.

On 16 October 2001 the applicant applied to the Makarska State Administration Office for a zoning permit as required by the relevant legislation before reconstruction works could be commenced. The applicant submitted all relevant documents concerning his ownership of the hotel and the reconstruction project. In his project the applicant indicated that the hotel consisted of a ground-floor, three upper floors and in one part an additional fourth floor whereas he wanted to build a basement and a loft and to extend further the fourth floor.

On 17 April 2003, while the applicant’s request was still pending, the Ministry of Ecology and Spatial Development (Ministarstvo zaštite okoliša i prostornog uređenja, hereinafter “the Ministry”) ordered the Baška Voda Municipality to set aside (staviti izvan snage) the Development Rules, after finding that they had been adopted contrary to the relevant law. The Ministry found that the Development Rules merely reflected provisions of a similar document of the Makarska Municipality which had been already found by the Ministry to be contrary to the relevant law.

On 9 May 2003 the Baška Voda Municipality adopted a Decision setting aside the Development Rules and published it in the Official Gazette of the Baška Voda Municipality no. 5/2003.

Thereafter, on 4 July 2003 the Makarska State Administration Office dismissed the applicant’s request for a zoning permit. The relevant part of the decision reads:

“Under section 34 § 2 of the Spatial Development Act (Official Gazette nos. 30/94 and 68/98) the zoning permit is an administrative decision which must be issued on the basis of zoning documents, special law and other relevant acts, in accordance with the law.

Given that at the moment the Baška Voda Municipality does not have the relevant zoning documents, it follows, and in view of what was said above, that zoning permits for renovation or reconstruction of buildings cannot be issued until the adoption of the municipal spatial plan or some related spatial plan.”

On 18 July 2003 the applicant lodged an appeal with the Ministry, pointing out that he had lodged his request for a zoning permit on 16 October 2001 and that his request had been accompanied by all relevant documents, which followed from the fact that the Makarska State Administration Office had not dismissed his request as unsubstantiated or ill-founded. Instead, his request had been dismissed only because the Baška Voda Municipality had not adopted a spatial plan, despite the fact that he had lodged his request when the relevant zoning documents existed. He therefore considered that the law and the zoning documents which existed and were relevant at the time when he had lodged his request, should be applied.

On 11 September 2003 the Ministry quashed the first-instance decision and remitted the case. It instructed the Makarska State Administration Office to determine whether a zoning permit could be granted on the basis of the zoning documents adopted for the wider area.

In the resumed proceedings, on 18 February 2004 the Makarska State Administration Office again dismissed the applicant’s request. It found that the zoning document for the larger area, that is, the SplitskoDalmatinska County Spatial Plan (Prostorni plan Splitskodalmatinske županije, adopted on 23 July 2002, published in the Official Gazette of Splitsko-Dalmatinska County no. 1/2003), prescribed adoption of the spatial plan of the Baška Voda Municipality, and itself contained no provisions on the basis of which a zoning permit could be granted.

On 19 April 2004 the applicant lodged an appeal before the Ministry, arguing that the Makarska State Administration Office had failed to comply with the instruction of the Ministry of 11 September 2003. He considered that it should be established whether a zoning permit could be issued on the basis of a spatial plan which covered an even wider area than that of the county-wide spatial plan. He pointed out that he should not bear burden for the failure of the Baška Voda Municipality to adopt a spatial plan. He also considered that a zoning permit should be issued on the basis of the zoning documents which had existed at the moment when he had lodged his request.

On 2 June 2004 the Ministry dismissed the applicant’s appeal and upheld the first-instance decision. It endorsed the finding of the Makarska State Administration Office, that at present there was no zoning document on the basis of which a zoning permit for property located in Baška Voda could be granted.

The applicant then brought an action in the Administrative Court (Upravni sud Republike Hrvatske) on 27 July 2004 contesting the decisions of the administrative authorities.

On 3 July 2008 the Administrative Court dismissed the applicant’s action. It held that the Splitsko-Dalmatinska County Spatial Plan provided for an obligation to prepare and adopt a spatial plan for the Baška Voda Municipality, but that such plan had not yet been adopted, and that therefore the applicant’s request for a zoning permit could not be granted.

On 23 October 2008 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske). He pointed out that he had submitted his request for a zoning permit at the time when the zoning documents had existed for the Baška Voda Municipality. However, it had taken the administrative authorities almost two years to decide on his request, and in the meantime the zoning documents had been set aside and a spatial plan had not yet been adopted. Therefore, given that there had been a legal gap, the administrative authorities had been obliged to apply the law and the zoning documents which had existed at the time when he had lodged his request. He contended that this had done significant damage to his legitimate interests and that there had been no legitimate public interest justifying the refusal to grant him a zoning permit, since such permits had been issued for a number of properties adjacent to his hotel.

In the meantime, the Baška Voda Municipality had proceeded with the adoption of a spatial plan. It first initiated a public debate in which various experts, public officials and interested citizens were able to put forward all their arguments, proposals and objections. The municipal executive authorities then accepted or rejected the proposals and objections and drafted a provisional spatial plan. The provisional draft was afterwards submitted for approval to the Ministry, the competent Splitsko-Dalmatinska County authorities, the State Administration for the Ecology (Državna uprava za zaštitu prirode), the Ministry of Culture (Ministarstvo kulture), the Defence Ministry (Ministarstvo obrane), the public water utilities authorities, the Ministry of Agriculture, Fishing and Rural Development (Ministartsvo poljoprivrede, ribarstva i ruralnog razvoja), the Ministry of Regional Development (Ministarstvo regionalnog razvoja) and the competent seaport authority. Only after all the approvals were obtained the final draft spatial plan was submitted to the Baška Voda Municipal Assembly which adopted it on 2 April 2009 (Official Gazette of the Baška Voda Municipality no. 4/2009).

After the adoption of the spatial plan the applicant did not submit a new request for a zoning permit.

On 18 March 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. The Constitutional Court’s decision was served on the applicant’s representative on 28 April 2010.

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

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

The relevant provisions of the Spatial Development Act (Zakon o prostornom uređenju, Official Gazette nos. 30/1994, 68/1998, 61/2000, 32/2002 and 100/2004) read:

Section 24

“(1) A municipal spatial plan shall be adopted by the municipal council, after the state administration office has confirmed that it is compatible with the county spatial plan ...

Section 34

“(1) Any spatial intervention must be in accordance with zoning documents, relevant law and any zoning permit.

(2) A zoning permit is an administrative decision which must be issued on the basis of zoning documents, special law and other relevant acts, in accordance with the law ...”

Section 47

“The inspection of individual and general acts, conditions and manner of work of relevant legal and physical persons, and the enforcement of measures under this Act, shall be conducted by an Inspection of the Ministry [of Ecology, Spatial Development and Construction].”

Section 49

“(1) The inspector shall order the local authority to correct irregularities and/or any unlawfulness in the report or planning [of spatial development], found in the inspection.

(2) If the local administration fails to comply with the order under paragraph 1 of this section, the Ministry shall, upon a request of the Inspector, set aside the report or plan of measures [for spatial development].”

The Spatial Development Act enacted on 14 April 1994 (Official Gazette no. 30/1994), in section 57 provided for municipal spatial plans adopted under the previous legislation to be applied until new zoning documents were adopted, and in any event no longer than five years from the moment when the Act entered into force. This time-limit elapsed on 23 April 1999.

The Amendments to the Spatial Development Act of 20 May 1998 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 68/1998) in section 52 extended the period for adoption of municipal spatial plans to 31 December 2000.

The Amendments to the Spatial Development Act of 1 July 2000 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 61/2000) in section 3 extended the period for adoption of municipal spatial plans to 30 March 2002.

Section 37 of the Amendments to the Spatial Development Act of 28 July 2004 (Zakon o izmjenama i dopunama Zakon o prostornom uređenju, Official Gazette no. 100/2004) extended the period for adoption of municipal spatial plans to 31 December 2005.

Section 347 of the Spatial Development and Construction Act of 1 October 2007 (Zakon o prostornom uređenju i gradnji, Official Gazette no. 76/2007) extended the period for adoption of municipal spatial plans to 31 December 2007, and expressly prohibited the grant of zoning permits in the absence of relevant zoning documents.


Preliminary objection joined to merits (Article 35-3 - Ratione materiae);No violation of Article 7 - No punishment without law (Article 7-1 - Retroactivity)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1987 and is currently in the specialised hospital centre (CHS) of Sevrey.

On 12 September 2007 the applicant, who was 20, went to the workplace of C.G., who had been his girlfriend and who had told him, following threats and violence on his part, that she no longer wanted to see him. The applicant inflicted several stab wounds on C.G., who died from a massive haemorrhage, having been wounded in the throat and thorax, and on two other individuals. On 14 September 2007 the applicant was placed under judicial investigation, charged with the premeditated murder of his former girlfriend and the intentional wounding of the other two people, and remanded in custody. On the same day the Prefect ordered his compulsory admission to the Sevrey CHS.

The applicant was examined by two boards of expert psychiatrists who found that, at the material time, he was suffering from a mental disorder which had impaired his discernment and the ability to control his actions within the meaning of Article 122-1 of the Criminal Code ....

On 8 September 2008 the public prosecutor asked the investigating judge at the Dijon tribunal de grande instance to refer the case to the Investigation Division for a ruling as to the applicant’s lack of criminal liability, in accordance with Article 706-20 of the Code of Criminal Procedure, derived from the Law of 25 February 2008 on preventive detention and declarations of criminal insanity (hereafter “the 25 February 2008 Act”, ...).

In a decision of 30 September 2008 the investigating judge found that it transpired from his investigation that there was sufficient evidence against the applicant to show that he had committed the offences as charged and that there were plausible reasons to apply Article 122-1, first paragraph, of the Criminal Code. He ordered the transmission of the case file by the public prosecutor to the Principal Public Prosecutor for the purposes of referral to the Investigation Division.

On 18 November 2008 the Principal Public Prosecutor at the Dijon Court of Appeal made his submissions calling for referral to the Investigation Division for a ruling as to the applicant’s lack of criminal liability on grounds of criminal insanity, in accordance with the procedure set out in new Article 706-122 of the Code of Criminal Procedure, which provided in particular for a public hearing ...

In a decision of 25 November 2008 the President of the Investigation Division noted that it was impossible for medical reasons for the applicant to appear at the hearing. At the hearing of 27 November 2008, his representative argued in particular that the decision of 30 September 2008 had breached the principle that harsher criminal legislation could not be applied retrospectively. He indicated that under the above-mentioned Article 706-122 of the Code of Criminal Procedure, the Investigation Division was required to rule on the commission of the offences by the applicant when deciding on compulsory psychiatric treatment, for an indefinite duration, and that this was tantamount to conviction for an offence and to the imposition of a sentence which had not been applicable at the material time.

In a judgment of 18 February 2009 the Investigation Division stated that there was sufficient evidence to show that the applicant had “intentionally killed C.G.” and that he lacked criminal liability for those acts on the ground that he was suffering from a mental disorder which had impaired his discernment and ability to control his actions. It ordered his compulsory hospitalisation pursuant to Article 706-135 of the Code of Criminal Procedure, derived from the 25 February 2008 Act ..., on the grounds that “it transpire[d] from the proceedings that [the applicant’s] mental disorder represent[ed] a risk for the safety of others and require[d] long-term care which [could] only be provided in a hospital”. The court also prohibited him, for a period of twenty years, from having any contact with the complainants and from possessing or carrying a weapon, those being preventive measures provided for under new Article 706-136 of the Code of Criminal Procedure ... It sent the case back to the Dijon Criminal Court for a judgment on the applicant’s civil liability and on the claims of damages. The Investigation Division had previously ruled on the procedural objections raised by the applicant’s representative, including argument concerning the immediate application of the provisions of the 25 February 2008 Act and the alleged violation of Article 7 of the Convention:

“... The declaration of the existence of sufficient evidence that the person has committed the offence as charged does not constitute a conviction but a finding that there is a factual situation which could have legal consequences ...

... contrary to the pleadings and contrary to the rules on preventive detention, the Investigation Division does not rule on judicial confinement of unlimited duration but orders the compulsory hospitalisation of the individual in an institution mentioned in Article L. 3222-1 of the Public Health Code, which provides for hospitalisation arrangements specifically in such contexts, and the Prefect is immediately informed of the decisions. Thus the person concerned will be subject to the compulsory hospitalisation arrangements solely under the auspices of the medical and administrative authorities, depending on the evolution of his state of health.

Accordingly, this measure cannot be regarded as a penalty but as a preventive measure. ... The Law of 25 February 2008 and the Decree of 16 April 2008 are thus applicable.”

The applicant appealed against that judgment on points of law. In his grounds of appeal he argued, relying on Articles 6 § 1 and 7 of the Convention, that the principle of “no punishment without law” precluded the immediate application of a procedure which had the effect of rendering him liable for penalties that his mental state would not have entailed under the former legislation in force at the material time. He contended that the declaration of his criminal insanity could not be accompanied by court-ordered sanctions or coercive measures, as this would breach the principle of the non-retrospective application of harsher criminal legislation.

Before the Court of Cassation, the public prosecutor, in his opinion, took the view that it was impossible to find that there was sufficient evidence against the applicant to show that he had “intentionally” committed the offences as charged, since “legally speaking, a state of criminal insanity related to a loss of discernment preclude[d] a court from ruling on the mental element of the offence and consequently on the question whether the offences were made out under the law”. He pointed out that the legislature had sought to ensure that the investigating judge would anticipate the declaration of criminal insanity and confine his assessment to the facts: “as a result of such anticipation only the material element will stand, devoid of its punitive connotation, together with its ‘objective imputation’ to an individual, which would serve as a basis for granting redress to the ‘victims’ and was in itself the focus of the legislative intent”. On this point he called for the setting-aside of part of the judgment, namely the replacement of the operative part in order to delete the word “intentionally”.

In a judgment of 14 April 2010 the Court of Cassation dismissed the appeal on points of law:

“... The person under judicial investigation submitted that there could be no immediate application of the Law of 25 February 2008, as the provisions of Article 706-136 [of the Code of Criminal Procedure] derived therefrom would enable the judge to order, against the person declared criminally insane, measures which, by their effects, would be ‘quasi-criminal sanctions’, being listed in the person’s criminal record.

To dismiss those arguments, the judgment uses the above-mentioned reasoning.

As those grounds stand, the judgment does not warrant the alleged complaint in so far as the provisions of Article 112-1 of the Criminal Code, which provides that the only penalties that may be imposed are those legally applicable on the date of the offence, do not apply to the preventive measures that are prescribed in cases of criminal insanity under Articles 706-135 and 706-136 ...

... there is sufficient evidence [against the applicant] to show that he committed the offences of premeditated murder and wounding ...”

In a decision of 23 February 2011, produced by the applicant with his observations, the Prefect of Saône-et-Loire denied his requests to go outside the institution unescorted. The Prefect’s letter to the responsible psychiatrist of the Sevrey CHS reads as follows:

“... In a letter dated 12 August 2010, I informed you that I had requested two assessments to ascertain whether I would be able to grant such leave.

Those assessments reached me today. One states as follows: ‘In view of Mr Berland’s current state of health we can envisage allowing him to go outside unescorted in the context of a trial period with a process of social rehabilitation, which seems indispensable’. The other one reads: ‘his current state of health allows the possibility of unescorted leave to be envisaged. We should gradually move towards trial arrangements to consolidate the rehabilitation plans’.

Moreover, in accordance with his instructions, issued following the judgment against Mr Berland, I have contacted the public prosecutor of Dijon to inform him of the findings of the assessments which could lead me in the future to authorise Mr Berland to leave the hospital unescorted.

The public prosecutor drew my attention to the prohibitions ordered by the Dijon Court of Appeal on 18 February 2009 against Mr Berland, pursuant to Articles 706-135 to 706-140 of the Code of Criminal Procedure ...

In those circumstances, even though the assessments tentatively allow for the possibility of granting Mr Berland such unescorted leave, it appears impossible to me to guarantee that he would not come into contact during such leave, if therefore alone, with the complainants. Consequently I wish to inform you of my decision ... to grant Mr Berland permission in the future to leave the hospital exclusively if escorted, depending on any assessment data that you may wish to transmit to me.”


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

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

The applicant lives in Čaglin.

The applicant was a member of a hunting association, V., based in Čaglin (hereafter “the association”).

On 17 June 2012 the association’s executive board initiated internal proceedings against the applicant before its disciplinary commission. The executive board sought the applicant’s suspension until the next session of the association’s general meeting (skupština) for reporting a member of the association to the police, falsely accusing him of the criminal offence of intimidation. The executive board argued that by doing so the applicant had committed a serious breach of his duties as a member, a disciplinary offence stipulated in the association’s internal regulations.

By a decision of 25 August 2012 the disciplinary commission dismissed the disciplinary action against the applicant. No appeals were lodged against that decision.

The executive board nevertheless referred the matter to the general meeting for re-examination, convening an extraordinary session.

On 2 September 2012 the general meeting adopted, by twenty votes to seven, a resolution expelling the applicant from the association. He was informed that he could appeal against that decision and that any appeal would be examined at the general meeting’s (regular) annual session.

The applicant appealed, but the general meeting’s resolution was upheld by twenty-one votes to three following the adoption of another resolution at the annual session held on 20 February 2013.

The general meeting did not give any reasons for expelling the applicant in either of its resolutions.

On 11 January 2014 the applicant brought a civil action against the hunting association in the Požega County Court (Županijski sud u Požegi), whereby he asked the court to declare unlawful the general meeting’s resolution of 20 February 2013 and to reinstate him as a member. He relied on section 26(1) of the Associations Act (see paragraph 22 below) and argued that the decision to expel him had been adopted in breach of the procedure provided for in the association’s statute and its internal regulations on disciplinary proceedings. In particular, he submitted that, in the absence of appeals against the disciplinary commission’s decision of 25 August 2012 (see paragraph 8 above), the general meeting could not have overridden that decision because under the association’s statute that commission was the only body authorised to decide on the expulsion of a member.

By a decision of 4 March 2014 the County Court declared the applicant’s action inadmissible, on the grounds that the matter was outside the jurisdiction of the courts. The relevant part of that decision reads as follows:

“Section 26(1) of the Associations Act suggests that legal protection by way of civil action in the county court could be sought only if the General Meeting or the other relevant body of the association had failed to examine a member’s report regarding irregularities in the implementation of the statute [of the association], or had failed to correct such irregularities.

Such a civil action would therefore be aimed at securing the implementation of the statute of the association, and thus would not provide for legal protection in the sense that a specific decision ... of the association could be declared unlawful.

Under section 50 of the defendant association’s Statute [Statut] the disciplinary tribunal imposes disciplinary measures against members who have breached their duties stipulated in the statute. According to section 7(2) of the defendant association’s Rules on Disciplinary Proceedings and Disciplinary Liability of Members, a request for review may be lodged with the General Meeting [to contest] the Disciplinary Tribunal’s decision to expel [a member]. The time-limit for the General Meeting to adopt a resolution on the request is not stipulated. The General Meeting’s resolution is final.

... since the plaintiff in his action does not seek [legal] protection envisaged in section 26(1) of the Associations Act, but asks [the court] to declare unlawful the defendant’s resolution to expel him, on which [issue] it is for the General Meeting to make a final decision ... this case does not fall within the jurisdiction of the courts ...”

The applicant then appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske).

By a decision of 2 April 2014 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance decision, reasoning as follows:

“The first-instance court was correct in declaring the action inadmissible, because the case does not fall within the jurisdiction of the courts ...

In particular, pursuant to section 26(1) of the Associations Act ... the conduct of associations is supervised by their members, and if a member finds irregularities in the implementation of the statute he or she is entitled to report it to the relevant body of the association designated in the statute or to the General Meeting if there is no relevant body designated in the statute. Furthermore, if the written report is not examined at the General Meeting or by the relevant body of the association designated in the statute within thirty days of its submission, or if irregularities are not corrected, the member may bring a civil action in the county court within whose area of jurisdiction the registered office of the association is situated, with a view to protecting his or her rights as stipulated in the statute.

The said provision ... governs jurisdiction of the courts regarding the right of the members of an association to supervise its conduct. That right does not entail the power to contest the lawfulness of a decision adopted in disciplinary proceedings against the plaintiff as a member, as correctly explained in the impugned [first-instance] decision.

In this connection it should be taken into account that the case concerns membership of a ... voluntary organisation [where] members may under the internal rules regulate the protection of [their] membership rights. Therefore, the decision to expel a member does not fall within the jurisdiction of the courts under section 26(1) of the Associations Act.

The defendant association is not an entity vested with public authority, and the decisions it adopts are not administrative acts, which means that the plaintiff’s action could not even be examined by the Administrative Court under the [relevant provisions] of the Administrative Disputes Act. That is also the opinion of the Constitutional Court, as expressed in the case U-III-140/2006.

It follows that the county court was correct in deciding that courts have no jurisdiction to decide on the plaintiff’s action ...”

On 12 June 2014 the applicant lodged a constitutional complaint against the Supreme Court’s decision. He alleged violations of his right to a fair procedure guaranteed by Article 29 paragraph 1 of the Croatian Constitution (see paragraph 19 below), and also explicitly relied on Article 6 § 1 of the Convention.

By a decision of 18 December 2014 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible and served its decision on his representative on 30 January 2015. It found that the case did not raise any constitutional issues.