Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1963 and lives in Focşani.

At the material time the applicant was a local correspondent for the national daily newspaper România liberă. The applicant’s articles covered various fields, including investigations into the activities of the armed forces and the police.

In the summer of 2004 secret documents were leaked, accidentally or deliberately, from the Romanian unit of an international military base in Afghanistan. The leak consisted mostly of copies of documents produced by the Romanian unit and classified as secret. The documents referred to the military operations of the Romanian troops at the said base in 2002 and 2003, such as operations orders or military maps. Copies of secret documents produced for the use of the Romanian unit by a military unit belonging to another country were also leaked.

In March 2005 three Romanian journalists, including O.O., who was working for România liberă, were kidnapped by a terrorist group in Iraq. Their release in May 2005 was negotiated by the Romanian State and an investigation was immediately started by the Romanian authorities. The following year the media extensively reported on this case and the role played by the authorities.

On 31 January 2006 O.O., together with other journalists, participated in a television show on a national channel. They criticised the authorities’ negligence in allowing leaks of secret sensitive military information and mentioned the existence of a compact disc (“CD”) with secret documents belonging to a Romanian military unit in Afghanistan. When the host of the show questioned the authenticity of the information on the CD, O.O. showed his computer to the camera. Some of the documents, including several military maps with the positions of the Romanian troops, were thus made visible to the public.

The journalists speculated as to whether such information could have reached terrorists too and demanded an investigation in order to establish whether the leaks had been voluntary. O.O. also said that although at that stage, the information no longer posed a threat to the lives of Romanian soldiers, it could have more serious implications in connection with the conflict in Afghanistan and Iraq.

During the show it was mentioned that the newspapers România liberă and Ziua had received the secret information in question but had decided not to publish it, fearing possible damage to national security.

On 7 February 2006 the national daily newspapers, România liberă and Ziua, published articles drawing attention to the fact that confidential information which could threaten national security had been leaked from a military unit under the authority of the Ministry of Defence.

On 8 February 2006 O.O. participated in a radio show together with the chairman and vice-chairman of the Defence Commission of the Romanian Senate, the director of Ziua and an investigative journalist from a national newspaper. The show followed a day of discussions and explanations about the leak of secret documents given by the Minister of Defence, the Chief of the Armed Forces and the head of the Information Department of the Army before the Defence Commission of the Senate. When asked how they had obtained the documents in question, O.O. refused to disclose his source, while the director of Ziua stated that he had received them anonymously. The chairman of the Defence Commission mentioned that the security of classified information had been one of the main chapters in Romania’s negotiations for joining NATO. He emphasised the importance of the Ministry of Defence undertaking a thorough investigation in connection with the leak, which put into play Romania’s credibility as a member of NATO.

On 3 March 2006 the Minister of Defence held a press conference during which he announced that an internal inquiry into the leak of classified information had been finalised and that seventy-nine members of the army were being punished with disciplinary sanctions. Further investigations were being conducted by the prosecutors with respect to two other members of the army. The minister also confirmed the fact that he had been informed about the leak by the Romanian Intelligence Service (Serviciul Român de Informaţii) in October 2005 and that the specialised army departments had immediately started preliminary verifications.

On 7 February 2006 the prosecutor’s office attached to the High Court of Cassation and Justice opened of its own motion an investigation on the basis of the articles published the same day in România liberă and Ziua (see paragraph 13 above). At the same time, the Ministry of Defence informed the same prosecutor’s office about the leak of information from within its structures.

Shortly afterwards the prosecutor decided to institute criminal proceedings against the applicant and four other people (P.I. – a former member of the armed forces, O.S. – a journalist, E.G. and I.M.) for disclosing classified information on national security under Article 169 of the Criminal Code, and for the gathering and sharing of secret or confidential information under Article 19(1) of Law no. 51/1991 on national security.

Authorisations had been issued for the interception of telephone calls made from the phone numbers belonging to E.G., I.M. and P.I., as well as for the surveillance of E.G. and I.M. and the ambient recording of their discussions. As a result, transcripts of discussions between the applicant and E.G. and I.M. had been included in the investigation file.

At 4.30 p.m. on 16 February 2006, after his house had been searched by the police and the hard drive of his computer seized, the applicant was taken into police custody.

On 17 February 2006 the applicant’s pre-trial detention was authorised by a judge for a period of ten days. An appeal lodged by the applicant against the measure was allowed and he was released on 18 February 2006.

The prosecutor established that at the beginning of July 2005 O.S., a journalist specialised in military issues, working for local newspapers in Focşani, had received on a CD a copy of the secret military documents leaked in 2004. At that time, three people, including P.I., had been in possession of the above-mentioned documents. On 2 July 2005 O.S. had met the applicant and had given him a copy of the CD.

A list of the applicant’s telephone calls showed that on 4 July 2005 he had called the head of the public relations department of the Romanian Armed Forces. In the following months, both the applicant and O.S. had discussed the content of the CD with other journalists and on several occasions with employees of the Romanian Armed Forces and of the Romanian Intelligence Service.

The investigation further established that by the end of 2005 the applicant had shown the content of the CD to a few people and had given a copy of the CD to E.G. and I.M., who the applicant believed were former members of the police. Furthermore, in January 2006 O.O. (see paragraph 10 above) went to Focşani and met the applicant and O.S., who showed him the documents.

In a statement given before the prosecutor on 16 February 2006, the applicant said that he could not remember having discussed the secret documents with O.O. He also said that as soon as he had found out about the information in question, he became interested in it as a journalist. Because there were doubts about the authenticity of the documents, he had had to contact a number of people in order to verify the information. It was in that context that he had discussed and shown the said documents to E.G. and I.M., who had let him believe they had connections with high-ranking politicians. He acknowledged that he might have told some of his friends that he had seen secret documents in order to be given more credit as an investigative journalist.

On 2 July 2007 the head of the Romanian Armed Forces informed the chief prosecutor of the prosecutor’s office attached to the High Court of Cassation and Justice that the documents which formed the object of the investigation and which had been issued by the Romanian army, and had been compromised by their publication in the media, had been de-classified.

On 15 August 2007 the prosecutor’s office attached to the High Court of Cassation and Justice decided that “by receiving (obtaining) from O.S. a CD that he [had] watched three times; by saving on the hard drive of his computer the information classified as State secret and work secret and by giving the CD to I.M. and E.G., outside the legal framework set forth by the provisions of Law no. 182/2002 and Government Decision no. 585/2002”, the applicant had committed, in a continuous form, the crime proscribed by Article 19(1) of Law no. 51/1991. The prosecutor decided, however, not to indict the applicant but to sanction him with an administrative fine of 800 Romanian lei (ROL) (approximately 240 euros (EUR)). The applicant was further ordered to pay part of the judicial costs incurred in the investigation in the amount of ROL 1,912 (EUR 572). The prosecutor also ordered the confiscation of the hard drive seized from the applicant on 16 February 2006.

The prosecutor’s decision was based on the Romanian legal framework on classified information, which was held to include Law no. 182/2002 on the protection of classified information, Government Decision no. 585/2002 approving national standards for the protection of classified information, Government Decision no. 781/2002 on the protection of professional secrets and Law no. 51/1991 on national security. The decision further mentioned that the applicant had received the secret military information and had proceeded to verify its nature and importance. He had further shared the information with other people. From the elements in the file, the prosecutor concluded that the purpose of the applicant’s actions was just to make himself more visible as an investigative journalist and not to serve the public interest. Noting that the protection of classified information was an obligation incumbent only on authorised personnel, the prosecutor nevertheless considered that information concerning national defence was classified and could not be of public interest, as provided for by Article 12(1)(a) of Law no. 544/2001 on access to public information. As a result, although anyone unauthorised in the field of national defence – such as a journalist – was not bound by a duty to protect this type of information, he or she did not have the right to disclose it to the public.

In view of the above, the prosecutor considered that the applicant had acted with intent to disclose classified information outside the above-mentioned legal framework. However, the prosecutor considered that the crimes committed by the applicant and the other four suspects were not serious enough to require the pursuit of the criminal investigation. In this connection, the prosecutor noted firstly that the information in dispute was not likely to endanger national security but only to harm the interests of the Romanian State and its armed forces. In addition, the information was outdated and hence was no longer likely to endanger the Romanian military structures in Afghanistan. The information in question had already been “compromised” (disclosed by a member of the armed forces to a civilian) as early as the summer of 2004, with no measures having been taken by the institution concerned. The prosecutor also mentioned that the actions undertaken by O.S and the applicant in order to gather information concerning the content, nature and importance of the secret documents in question, by contacting active or reserve members of the armed forces or other journalists were part of the working methods of investigative journalists and did not necessarily present a danger for society.

The applicant complained against that decision to the superior prosecutor, who rejected the complaint as ill-founded on 6 November 2007.

On 3 December 2007 the applicant complained against the prosecutors’ decisions before the Bucharest Court of Appeal. He submitted that he had been wrongfully found guilty of the crime proscribed by Article 19(1) of Law no. 51/1991. In his opinion, that Article, as well as the entire law, imposed obligations only on people authorised to work with secret information. He contended that he had not made any steps to gather military secrets but had merely passively received information that was already in the public domain. Invoking Article 10 of the Convention, the applicant submitted that the Court had already decided that once information concerning national security had entered the public domain, it was difficult to justify the imposition of sanctions for its publication. He therefore urged the court to acknowledge that his actions could not be regarded as crimes.

On 5 February 2008 the Bucharest Court of Appeal rejected the applicant’s complaint as ill-founded. The court held that the facts established during the investigation had led to the conclusion that the applicant had secretly transmitted the CD containing secret information to other people he knew, avoiding handing it over to the competent authorities of the Ministry of Defence or the Romanian Intelligence Service. The court further held:

“The accused’s capacity as a journalist cannot exonerate him from the commission of this crime because anyone who finds out about secret military information does not have the right to publish it since this might endanger the lives of soldiers, officers in the conflict environment. But the applicant, by the means described above, covertly shared the secret information, which could have reached people interested in putting military structures in danger.

The accused did not even wish to use his profession in order to bring to the public’s knowledge the leak of information, as he failed to ask the newspaper for which he worked to make public the breach of state secrets in the military (obviously the military secret information could not have been published).

The freedom of the press invoked by the accused cannot give a journalist the right to make public, to unofficial people, secret military information, because this may endanger the right to safety of certain military structures.”

The applicant was ordered to pay court fees in the amount of ROL 50 (EUR 13).

The applicant appealed against that judgment. He alleged that the information in dispute had already been in the public domain at the time it had been brought to his attention. He submitted that the prosecutor’s decision had breached his freedom of expression in an attempt to cover up an embarrassing situation for the authorities, who had allowed the information to be leaked to the public.

On 23 March 2009 the High Court of Cassation and Justice rejected the applicant’s complaint with final effect. The court held that Article 19 of Law 51/1991 applied to anyone who gathered and shared secret information outside the legal framework. It further held that the applicant had not contested the fact that he had come into possession of secret information which he had then shared with other people outside the legal framework. Moreover, he had done this with direct intent. Considering that the information in question had not been in the public domain, the court held that journalists coming into possession of such information must submit it to the competent authorities and were allowed by law to share with the public only the failure of the institution concerned to protect its confidentiality. Having failed to act in that way, the applicant had committed the crime proscribed by Article 19(1) of Law no. 51/1991. The court concluded that the prosecutor had correctly considered that the crime had not, however, attained the degree of seriousness to require criminal sanctions.

The applicant was ordered to pay court fees of ROL 200 (EUR 47).


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

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

The applicant was born in 1959 and lives in Nova Gorica.

The applicant was working as a cleaning lady when she allegedly developed serious medical complications in her left wrist, which could only partly have been addressed by surgery. This resulted in her using predominantly her right arm, which in turn resulted in the overburdening of that arm, giving rise to a number of medical problems. Because of these medical issues she was found, in 2006, to be incapable of further work and officially recognised as having a partial disability.

On 30 December 2011 the applicant applied to the Pensions and Disability Insurance Institute of the Republic of Slovenia (“the Institute”) for a disability allowance in respect of a physical impairment (nadomestilo za invalidnost – hereinafter “disability allowance”).

On 12 March 2012 the first-instance disability commission of the Institute, located in Nova Gorica, issued a report to the effect that the applicant was not suffering from any physical impairment stipulated in the Self-Management Agreement on the List of Physical Impairments (Samoupravni sporazum o seznamu telesnih okvar – hereinafter “the List”; see paragraph 22 below). The commission – composed of an occupational medicine specialist, an orthopaedic specialist and a physical medicine and rehabilitation physician – based its opinion on an examination of the medical records submitted by the applicant and a clinical examination of the applicant.

On 15 March 2012 the Nova Gorica unit of the Institute, relying on the opinion of the first-instance disability commission, dismissed the applicant’s application for a disability allowance. A copy of the first-instance disability commission’s opinion was attached to the decision. The applicant appealed.

On 15 May 2012 the second-instance disability commission of the Institute, located in Ljubljana, composed of an occupational medicine specialist and an orthopaedic specialist, examined the applicant’s medical file and again issued a report to the effect that no physical impairment stipulated in the List could be found.

On 7 June 2012 the Central Office of the Institute, referring to the conclusions of the second-instance disability commission, dismissed the applicant’s appeal. A copy of the second-instance disability commission’s opinion was attached to the decision.

On 12 July 2012 the applicant initiated court proceedings against the Institute before the Ljubljana Labour and Social Court seeking the annulment of the above-mentioned decisions taken by the Institute, arguing that the facts had been wrongly established, and that the procedure had not been properly conducted. She argued that because of the incapacity of her arms the functioning of her body was inhibited and greater efforts were required to satisfy her daily needs. She also argued that the opposing party should have more seriously examined all her medical problems. In her view her physical impairment amounted to at least 50% incapacity; however, the exact degree could only be determined by a medical expert. She accordingly proposed that a medical expert be appointed.

On 6 September 2013 the Ljubljana Labour and Social Court, sitting in a single-judge formation, dismissed the applicant’s application for a disability allowance. It observed that its role was to check whether the impugned administrative decisions had been issued in a procedure that had complied with the procedural rules, and had been based on a proper establishment of fact and proper application of the law. It furthermore observed that the claimed physical impairment was a legally relevant fact, whose degree of severity under the relevant legal provisions (see paragraph 22 below) had to be proved in order for entitlement to a disability allowance to be established. After taking into account the documents in the file and the hearing of the applicant, the court found that the Institute had correctly established the facts. Referring to the findings of the disability commissions and its own direct observation of the applicant at the hearing, it concluded that the impairment to the applicant’s health did not amount to a physical impairment within the meaning of the law.

Considering the above-mentioned findings sufficient to reach its conclusion, the court refused the applicant’s request for the appointment of a medical expert as unnecessary.

On 17 October 2013 the applicant lodged an appeal against the first-instance court’s finding. She argued that the impairment to both of her arms, her psychological illness and her headaches meant that the normal functioning of her organism was inhibited and that she had to exert greater efforts in order to perform daily tasks; that the List, which was out of date, could not possibly contain a complete list of all illnesses and injuries; that the first-instance court should not have relied on the opinions of the disability commissions and a doctor (opinions which the applicant had disputed); that the first-instance court should have appointed a medical expert, as requested by the applicant; that the applicant could not have explained all her medical issues at the hearing and that the court had not been in a position to assess the flexibility of her arms.

On 6 February 2014 the Higher Labour and Social Court dismissed the applicant’s appeal, finding that the facts had been sufficiently established and the substantive law applied correctly. It also found that the refusal of the applicant’s request for the appointment of an expert had not undermined the legality of the decision as that decision would not have been any different had an expert been appointed. The Higher Labour and Social Court further found the following:

“A court in a judicial social dispute ... assesses the correctness and lawfulness of the impugned administrative decisions [in question] and having regard to the dispute of the full jurisdiction [the court] when quashing [the administrative decisions] alone decides on the merits. Within the context of the judicial review of the administrative decisions [the court] is of course not obliged to accept evidence [submitted by] a forensic medical expert if the expert opinions of the disability commissions at first and second instance allow for the conclusion that the negative administrative decisions are correct and lawful because they are based on an assessment by both commissions which is convincing in view of the available medical documentation and the report of [the relevant] medical examination. Such a procedural situation is found in the present case, because in the opinion of the appeal court the expert bodies in the pre-judicial administrative proceedings correctly determined that the applicant had no physical impairment.”

The court furthermore found that physical impairments could not be determined contrary to what was provided in the List. Moreover, the question of whether a particular condition amounted to an impairment was different to the question of whether it amounted to a disability. In the applicant’s case, although she had a recognised disability, this fact alone – without any functional problems in respect of inflexibility of joints – could not suffice to categorise her condition as one of physical impairment. The Higher Labour and Social Court agreed with the court of first instance that the disability commissions in the pre-judicial administrative proceedings had made the right assessment when concluding that the applicant had not suffered from any physical impairment. It also pointed out that the court had not been obliged to appoint an independent expert if it had been possible to conclude from the disability commissions’ opinions that the Institute’s decisions had been well-founded, as had been so in the instant case.

The applicant lodged an application for leave to appeal on points of law. She argued that her right to a fair trial had not been respected because the court had refused to appoint a medical expert and had assessed the applicant’s condition itself, despite lacking the necessary medical knowledge. She had thereby been deprived of her only possibility to challenge the Institute’s decisions. The applicant also drew attention to the fact that in numerous cases court-appointed experts had found the disability commissions’ fact-finding to be erroneous. She moreover argued that the first-instance court should not have based its decision on the List.

On 10 June 2014 the Supreme Court dismissed the applicant’s application, holding that there were no grounds for allowing an appeal on points of law.

On 21 July 2014 the applicant lodged a constitutional complaint. She complained that the Supreme Court’s decision had not been reasoned. She further argued that she could not have explained all her medical issues at the hearing and that the court had not been in a position to assess the flexibility of her arms. Her only way of effectively challenging the Institute’s decision would have been by way of appointing an independent medical expert; as had been proved in the past, independent medical experts had often reached findings contrary to those of disability commissions. She invoked Article 22 (equal protection of rights) and Article 23 (the right to judicial protection) of the Constitution. She also reiterated her complaint about the reliance on the List.

On 10 December 2014 the Constitutional Court decided to not accept the applicant’s constitutional complaint for consideration, finding that it did not concern an important constitutional question or entail a violation of human rights which would have serious consequences for the applicant.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Georgieva;Khanlar Hajiyev;Pavlina Panova;Yonko Grozev

The applicants were born in 1950 and 1957 respectively and live in Sofia.

On 19 February 1993 the applicants, at the time a married couple, bought a plot of land of 1,000 square metres in the village of Kranevo, on the Black Sea coast. The seller, Mr O., had acquired the property in 1967 from the agricultural co-operative that existed at the time, in exchange for another plot of land of his.

The applicants’ possession of the land remained undisturbed until 2003, when other persons took possession of it. The applicants discovered then that the land had been collectivised after 1945 and that in 1991 the heirs of the pre-collectivisation owner, Mr K., had instituted restitution proceedings under the relevant provisions of the Agricultural Land Act (“the ALA”, see paragraph 13 below). Their restitution request had been allowed in a court judgment of 7 December 1995 and in a decision issued by the competent administrative body ‒ the local agricultural land commission ‒ on 4 April 1996. Thereafter, the heirs of Mr K. had transferred the land to the persons who had later taken possession of the plot.

On an unspecified date in 2003 the applicants brought a rei vindicatio action against these individuals.

In a judgment of 25 May 2005 the Balchik District Court dismissed their claim. It relied on the provision of section 10(13) of the ALA (see paragraph 15 below), holding on its basis that of the two rival claims to the same land the law gave priority to the one based on restitution.

Upon appeal, on 25 January 2007 the Dobrich Regional Court reversed that decision and allowed the applicants’ action. It considered in particular that section 10(13) of the ALA was not applicable to the case as it had only been introduced in 1997, that is to say after the restitution decision in favour of Mr K.’s heirs and after the applicants had bought the plot of land.

Upon further appeal, in a final judgment of 12 December 2008, the Supreme Court of Cassation quashed the Regional Court’s judgment and dismissed the applicants’ rei vindicatio claim. It took the view that section 10(13) of the ALA, introduced in 1997, had to be considered to be applicable with effect from the ALA’s entry into force in 1991 because it was merely clarifying its general restitution provisions. As to the exception contained in section 18z(3) of the Regulations for the ALA’s implementation, also introduced in 1997 (see paragraph 16 below), the Supreme Court considered it inapplicable to the case; in its view, section 18z(3) only precluded the restitution of properties which had been the subject of transactions prior to the ALA’s entry into force in 1991, whereas the applicants had bought their plot in 1993.


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

The applicants were born in 1946, 1954 and 1985 respectively and live in Yerevan.

The applicants jointly owned a flat which measured 44.1 sq. m. and was situated at 25 Byuzand Street, Yerevan.

On 1 August 2002 the Government adopted Decree no. 1151-N, approving the expropriation zones of the real estate situated within the administrative boundaries of the Kentron District of Yerevan to be taken for State needs for town-planning purposes, having a total area of 345,000 sq. m. Byuzand Street was listed as one of the streets falling within such expropriation zones. A special body, the Yerevan Construction and Investment Project Implementation Agency (hereafter, the Agency) was set up to manage the implementation of the construction projects.

On 7 September 2004 the applicants’ flat was valued upon the request of the Agency by a valuation organisation. The market value of the flat was found to be 16,350 United States dollars (USD).

By a letter of 14 January 2005 the Agency informed the applicants that their flat was subject to expropriation and that it had been valued at USD 16,350 by an independent licensed organisation. An additional sum of USD 12,638.55 was offered to the applicants as a financial incentive if they signed an agreement within five days.

The applicants did not accept the offer, not being satisfied with the amount of compensation offered.

On an unspecified date the Agency lodged a claim against the applicants, seeking to oblige them to sign an agreement on the taking of their flat for State needs and to have them evicted.

On 1 March 2005 the Kentron and Nork-Marash District Court of Yerevan granted the Agency’s claim, ordering the applicants to sign the agreement for the total amount of USD 16,350.

On 15 March 2005 the applicants lodged an appeal.

On 30 March 2005 the Civil Court of Appeal granted the Agency’s claim upon appeal.

On 13 April 2005 the applicants lodged an appeal on points of law, in which they argued, inter alia, that the deprivation of their property was not prescribed by law as required by Article 28 of the Constitution.

On 26 May 2005 the Court of Cassation decided to dismiss the applicants’ appeal.

On an unspecified date the awarded sum was paid to the applicants.


Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)

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

The applicant was born in 1974 and lives in Split.

On 17 May 2004 the applicant’s father was hit by a car while attempting to cross a motorway. He suffered serious bodily injury and died at the scene.

On the same day the Split Police Department (Policijska uprava Splitsko-dalmatinska) interviewed two witnesses and the driver of the car, Z.K. The police also carried out the necessary tests to measure Z.K.’s alcohol level, which showed that he had been intoxicated at the time of the accident.

The police informed an investigating judge of the Split County Court (Županijski sud u Splitu) of the accident. Later that day the investigating judge, assisted by a road traffic expert, carried out an on-site inspection.

On 18 May 2004 the road traffic expert submitted his report to the investigating judge, finding that in crossing the motorway the applicant’s father had caught the driver of the car by surprise, which had caused the accident.

On 19 May 2004 the investigating judge obtained a medical report concerning the applicant’s father, indicating that he had been intoxicated at the time of the accident.

Meanwhile, the case file was forwarded to the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu – “the State Attorney’s Office”) for its assessment of the relevant facts.

On 18 June 2004 the State Attorney’s Office obtained a medical report confirming that the driver of the car Z.K. had been under the influence of alcohol at the time of the accident.

On 20 December 2004 the State Attorney’s Office asked the investigating judge of the Split County Court to open an investigation in respect of Z.K. on suspicion of causing a road accident resulting in death.

Before deciding on that request, the investigating judge questioned Z.K. on 19 January 2005. He denied the charges, arguing that when the applicant’s father had crossed the motorway he had been caught by surprise, and had had no way of avoiding the accident.

On 7 February 2005 the investigating judge declined to open the investigation on the grounds that there was no reasonable suspicion that a criminal offence had been committed. This was upheld by a three-judge panel of the Split County Court on 22 February 2005.

The case file was then returned to the State Attorney’s Office, which was informed of its right to appeal against the decision of the Split County Court. There is no evidence before the Court that the applicant was informed of this decision.

The State Attorney’s Office decided not to appeal. There is no evidence before the Court that the applicant was informed of this decision.

On 16 June 2006 the applicant inquired with the Split County Court about the progress of the case. He indicated that the last information he had received had been the on-site inspection report. He explained that he had been away for a while, so if any new documents had been forwarded to him it was possible that he had not received them.

On 3 July 2006 the investigating judge of the Split County Court informed the applicant that the investigation into the circumstances of his father’s death had been discontinued.

On 7 July 2006 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the Split County Court’s decision refusing to open the investigation into the accident.

On 19 September 2006 the Supreme Court allowed the applicant’s appeal and ordered the investigation. The Supreme Court held that the Split County Court’s conclusion had been premature, since several crucial facts concerning the accident had remained unanswered. It therefore instructed the investigating judge to question witnesses and to take whatever further investigative measures which were necessary, such as a reconstruction of events.

On 16 November 2006 the investigating judge questioned two witnesses and concluded the investigation. He also informed the applicant that he could, if he considered it appropriate, indict Z.K. in the criminal courts on charges of causing a road accident.

On 24 November 2006 the applicant, acting as a subsidiary prosecutor and through his lawyer, lodged a request to prosecute with the Split Municipal Court (Općinski sud u Splitu) against Z.K., on charges of causing a road accident resulting in the death of his father, punishable under Article 272 §§ 1 and 3 of the Criminal Code (see paragraph 41 below).

The first hearing scheduled for 6 December 2006 before a single judge of the Split Municipal Court was adjourned because the parties failed to appear, as they had not been properly summoned. The trial judge indicated that he would issue another written order for the next hearing.

Having received no subsequent summonses, on 21 October 2009, the applicant urged the Split Municipal Court to schedule a hearing, arguing that he had attempted to contact the court several times to ask it to expedite the proceedings.

At a hearing held on 3 December 2009 Z.K. pleaded not guilty and the hearing was adjourned. Two witnesses appeared at the hearing but were not questioned.

A further hearing scheduled for 15 February 2010 was adjourned because the investigating judge had failed to forward its case file to the Split Municipal Court.

At a hearing on 14 April 2010 the single judge of the Split Municipal Court questioned Z.K. again, who reiterated his not guilty plea. The judge also questioned the applicant and the two witnesses.

Another hearing was held on 18 June 2010, at which the trial judge questioned Z.K. and the expert witness.

On the same day the Split Municipal Court acquitted Z.K. on charges of causing the road accident.

The applicant lodged an appeal with the Split County Court, which on 17 May 2011 quashed the first-instance judgment because of the procedural errors in the composition of the trial court. The relevant part of the judgment reads:

“... the first instance court did not sit in a proper formation because the trial was held before a single judge instead before a panel composed of a judge and two lay judges. The offence under Article 272 §§ 1 and 3 of the Criminal Code is punishable by imprisonment between one and ten years, and under Article 18 §§ 1 and 2 of the Code of Criminal Procedure for the offences punishable by imprisonment of more than five years, the Municipal Courts must sit in panels composed of a judge and two lay judges. ...

It should be also noted that for the offence under Article 272 §§ 1 and 3 of the Criminal Code, that is in issue in the present case, because of the prescribed penalty, the trial should be held according to the rules of ordinary, and not summary, procedure, and that such [ordinary criminal] proceedings can be held only on an indictment, against which the accused has the right to lodge an objection, and not based on a request to prosecute.”

In the resumed proceedings, on 15 September 2011 the Split Municipal Court asked the applicant to specify whether he had submitted an indictment (optužnica) or a request to prosecute (optužni prijedlog). The relevant part of the letter reads:

“In accordance with Article 269 § 2 of the Code of Criminal Procedure the submission named [request to prosecute] is being returned to the [subsidiary] prosecutor for amendment in accordance with Article 268 § 1 (6) of the Code of Criminal Procedure. That is to say, the subsidiary prosecutor must indicate whether or not his submission is actually an indictment.”

The applicant replied on 28 September 2011 indicating that his submission was an indictment rather than a request to prosecute.

On 30 November 2011 the Split Municipal Court discontinued the proceedings on the grounds that the applicant’s indictment had not been drafted properly, as it did not contain the statement of reasons on which it was based. The relevant part of this decision reads:

“The subsidiary prosecutor on 24 November 2006 submitted a request to prosecute against the accused Z.K. ....

Under Article 269 § 2 of the Code of Criminal Procedure such submission, titled request to prosecute, was returned to the [subsidiary] prosecutor for amendment under Article 268 § 1 (6) of the Code of Criminal Procedure.

The representative of the subsidiary prosecutor submitted before this court his amendment of the [above-noted document] indicating that the title “request to prosecute” should be changed to “indictment”, and that he had no other amendments.

Since the [subsidiary] prosecutor failed to comply with Article 268 § 1 (6) of the Code of Criminal Procedure (’s defence and the prosecutor’s position on the defendant’s defence), this court decided [to discontinue the proceedings].”

The applicant lodged an appeal on 9 December 2011 with the Split County Court, contending that he had only been invited to indicate whether he had instituted the proceedings by a request to prosecute or an indictment and that he had replied to that question accordingly. He also pointed out that the courts had accepted his indictment in 2006, conducted the proceedings and decided the case on the merits. Together with the appeal, the applicant submitted an amended indictment containing the statement of reasons.

On 17 April 2012 the Split County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the Split Municipal Court.

On 16 May 2012 the Split Municipal Court ordered the applicant to pay Z.K.’s legal costs and expenses in the amount of 17,500 Croatian kunas. This decision was upheld by the Split County Court on 11 June 2012.

Also on 11 June 2012 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) regarding the manner in which the criminal law mechanisms had been implemented in his case.

On 20 September 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the decisions of the lower courts did not concern the applicant’s civil rights or obligations or any criminal charge against him.


CASE OF RASTORGUYEV AND OTHERS v. RUSSIA

On 18 January 2007 the Moscow City authorities, the Ministry of the Defence of the Russian Federation and a private construction company signed an investment contract for the construction of a number of residential buildings in Moscow. Pursuant to the contract, a title to 3,823 flats was to be transferred to the Ministry of the Defence. The rest of the flats were to remain the city’s property.

In 2008 the city authorities commissioned, as part of the said investment contract, several residential buildings. It appears that a number of flats in those buildings were transferred to the Ministry of the Defence.

In 2009 the city authorities had their title to a number of flats, including those in residential buildings nos. 8 and 26-1 at Ulitsa Marshala Savitskogo, Moscow, registered by the state authorities.

In 2010 the Ministry of the Defence assigned five of those flats to private individuals and entered into social housing agreements with them. Subsequently those people successfully applied to the Zyuzinskiy District Court of Moscow seeking recognition of their title to the flats by way of privatisation. Once the court’s judgments became final, they had their ownership in respect of the flats registered in the state register and then sold the flats to other persons, including the applicants. The relevant transactions and transfer of the title to the property were duly registered by the authorities. The applicants moved into the flats and resided there.

According to the Government, in 2012 and 2013 the police opened criminal investigation in respect of the fraudulent transactions with the flats. The Government did not inform of its outcome.

On an unspecified date city authorities asked the District Court to reopen the cases concerning the flats privatised by the tenants who sold them to the applicants in 2011. The authorities claimed that the flats owned by the applicants were the city’s property. The District Court granted the request, quashed the earlier judgments allowing the privatisation of the flats and re-examined the cases. The court established, inter alia, that the Ministry of the Defence had never owned the flats and, accordingly, had not had a right to assign them to private individuals. It granted the city’s claims in full invalidating the decisions of the Ministry of the Defence in respect of the flats and ordering the applicants’ eviction. The court also found that the applicants had acquired the flats in good faith. However, it ruled that the cases fell under one of the two exceptions to the protection of a bona fide purchaser’s title, which required that precedence be given to the City of Moscow given that the flats had left the City’s possession against the latter’s will.

The applicants’ appeals were to no avail. The Moscow City Court and the Supreme Court of the Russian Federation rejected them as unsubstantiated.

According to the Government, the judgments ordering the applicants’ eviction were not enforced. The applicants continue to reside in the flats.

The details pertaining to each case are summed up in Appendix II below.