A.M.B. AND OTHERS v. SPAIN - [English Translation] by European Roma Rights Centre "ERRC"

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

Mrs A.M.B, is a Spanish national who was born in 1988 and lives in Madrid. She is represented before the Court by C. Pinto Cañón, a lawyer practicing in Madrid. The Spanish Government ("the Government") is represented by its agent, F. de Sanz Gandasegui, State Attorney, Head of the Legal Department of Human Rights at the Ministry of Justice.

The applicant, a Spanish national, and her two minor children, have been living since July 2009 in a dwelling belonging to the Madrid Housing Institute (hereinafter IVIMA), an organization of the Autonomous Community of Madrid. She is unemployed (without benefits) and receives the minimum integration income of about 500 euros (EUR) monthly, plus 30 EUR per child as alimony. This financial allocation is granted by the Madrid region to meet the basic needs of families who may be at risk of social exclusion.

The applicant claims to have asked the Administration several times since 2007 to obtain accommodation for herself and for her children, without ever getting a response. The disputed flat being uninhabited, they settled there irregularly, the office of the census of the municipality of Madrid having officially registered them at this address since July 2009.

By a decision on 22 February 2011, the director of IVIMA discovered the illegal occupation of the building and ordered the building to be returned to the Administration within ten days, without offering alternative housing to the applicant.

For their failing to vacate the home within the prescribed time, on 25 May 2012, the legal services of the Autonomous Community of Madrid applied to the Madrid Administrative Disputes Judge for authorization to proceed with the expulsion.

On 3 October 2012, the applicant, represented by a public defender, objected to the measure by pointing out her and her children’s precarious situation of social exclusion, as well as their Roma ethnicity.

By a decision on 16 October 2012, the Administrative Disputes Judge No. 24 of Madrid ordered the expulsion, all while indicating that it would be appropriate to “adopt the necessary measures for the best protection of minors who would be found in the building” without specifying what these measures would be. Regarding the particular situation of the applicant, the judge noted that their situation was not distinguishable or distinct from that of many other families waiting for housing and that the illegal occupation could not find a justification.

The applicant appealed and requested the suspension of the expulsion order until the appeal was decided, the Spanish law finding that the appeal is not suspensive to this effect. The judge found that the appeal was filed but did not rule on the application for suspension.

On 20 November 2012, the IVIMA Housing Inspectorate notified the applicant that the execution of the expulsion was scheduled for 13 December 2012 at 10.00.

On 6 December 2012, the applicant lodged an application for interim measures on the basis of Article 39 of the Rules of the Court.

On 11 December 2012, the examination of the request of the application of Article 39 of the Rules of Court was postponed until the reception of certain information from the Government concerning the treatment of fundamental rights of the applicant and her kids. In particular, the Government was asked to specify what alternative accommodation solutions the applicant and her children would be offered in case of expulsion to prevent the alleged violation of Article 3 of the Convention and within what time frame.

In light of the received information, on 12 December 2012, the functioning president of the Section to which the request was assigned decided to inform the Spanish government, pursuant to the previously cited provision, not to continue with the expulsion of the applicant and her children from the home that they occupied. He decided in addition to communicate the request to the Government.

Furthermore, the president in office decided that the identity of the applicant would not be disclosed (Article 47 § 3 of the Rules of Court).

On 30 April 2013, IVIMA informed the applicant that, unless the home was vacated, her illegal occupation would result in the rejection of any application for housing on her part for two years from the date of the removal.

In a judgment of 26 April 2013, the Higher Court of Justice of Madrid dismissed the applicant’s appeal against the decision of 16 October 2012. The Tribunal noted that none of the constitutional rights relied upon by the applicant authorized the illegal occupation of the apartment, even if they were in a situation of need. In fact, it was up to them to apply to the official bodies responsible for social protection.

Relying on Articles 15 (prohibition of degrading treatment) and 18 (right to private and family life), the applicant lodged an amparo appeal with the Constitutional Court, which is to date.

The relevant provisions of the Constitution are as follows:

« Everyone has the right to life and to physical and moral integrity (...) »

« The home is inviolable. (...) »


Preliminary objection joined to merits (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens

The applicants, Mr V.M. and Mrs G.S.M., and four of their children were born in 1981, 1977, 2001, 2004, 2007 and 2011 respectively and live in Serbia. Their eldest daughter, who was also an applicant, was born in 2001 and subsequently died on 18 December 2011 after the application had been lodged.

The applicants are of Roma origin and were born in Serbia, where they spent the greater part of their lives. They explained that they decided to leave their country for Kosovo because of the discrimination and illtreatment they had suffered on account of their origin in every sphere: access to the employment market, medical care, schooling difficulties and so forth.

The eldest daughter of the first two applicants had been physically and mentally disabled since birth and had suffered from epilepsy.

After failing to obtain a more secure situation for themselves in Kosovo, in March 2010 the applicants travelled to France, where they lodged an application for asylum. Their application was rejected by a final decision on 4 June 2010.

The applicants stated that in the meantime they had returned to Kosovo, and then to Serbia, in May 2010 owing to the precariousness of their situation in France and their inability to provide for their essential needs.

In March 2011, as their situation had not changed, the applicants decided to go to Belgium, where they lodged an asylum application on 1 April 2011.

During their interview with the “Dublin” department of the Aliens Office on 4 April 2011 the applicants gave an account of their movements to date and expressed their fears in the event of a return to Serbia. The first applicant stated that he had chosen to seek asylum in Belgium because he had been told that he could obtain better treatment for his disabled daughter there. He said that he was suffering from psychological problems. The second applicant said that Belgium had been the choice of the smuggler. When asked about her health, she replied that she was six months’ pregnant. She also mentioned their eldest daughter’s health problems.

The applicants maintained that they had explained the reasons why they refused to return to France, where they had been living in extremely precarious conditions. They submitted that they had not been asked to provide any evidence of having left the territory of the Member States of the European Union (“EU”) or regarding the family members’ state of health.

On 12 April 2011 the Belgian authorities sent France requests to take the applicants back on the grounds that the latter had been unable to prove that they had left the territory of the Member States of the EU for Serbia since their stay in France.

On 22 April 2011, relying on Article 16(3) of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a thirdcountry national (“the Dublin II Regulation”), France refused to take charge of the applicants on the grounds that the couple were considered to have disappeared since May 2010 because they had not collected the notice of final refusal of their asylum application dated 4 June 2010 and this corroborated their statements to the Aliens Office according to which they had left the Schengen Area in 2010 and re-entered it in March 2011, thus leaving for a period of more than three months.

On 2 May 2011 the Belgian authorities asked the French authorities to reconsider their position given that there was no conclusive evidence that the family had left the territory of the Member States for more than three months since their stay in France and the applicants were clearly aware of the rejection of their asylum application in France.

On 6 May 2011 France accepted the request to take the family back pursuant to Article 16(1)(e) of the Dublin II Regulation.

On 17 May 2011 the Aliens Office issued decisions refusing the applicants leave to remain and ordering them to leave the country for France on the grounds that under Article 16(1)(e) of the Dublin II Regulation Belgium was not responsible for examining the asylum application and that France had agreed to take charge of the family. The decisions indicated among other things that the family, who were originally from Kosovo, “had not furnished evidence of their stay” in Kosovo after staying in France nor any certificates regarding any medical treatment or care in respect of the pregnancy, or concerning the child or the father. Considering that France was a country which respected human rights, had democratic institutions, had ratified the Convention and the Geneva Convention on the Status of Refugees, and was bound to implement the directives of the European Union on asylum and that if a return were to raise a problem under Article 3 of the Convention, the family could always lodge an application with the Court for interim measures, the Aliens Office considered that the Belgian authorities did not have to use the sovereignty clause provided for in Article 3(2) of the Dublin II Regulation.

Accordingly, the applicants were ordered to leave the country within seven days and to report to the French authorities at the border crossing. On the same day the applicants were issued with laissez-passer.

On 19 May 2011 the applicants, through their legal representative, contacted the Aliens Office for the purposes of providing it with evidence that they had left the territory of the European Union for more than three months (gynaecologist’s certificates, the second applicant’s health card and proof of enrolment at school of one of their children).

On 25 May 2011 execution of the orders to leave the country were extended until 25 September 2011 on account of the fact that the second applicant was soon due to give birth.

On 16 June 2011 the applicants lodged an application with the Aliens Appeals Board for the decisions refusing them residence permits and ordering them to leave the country to be set aside and for a stay of execution. They argued that the decisions, with the reasons given therein, had not provided them with the examination required by Article 13 taken together with Article 3 of the Convention (M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 336, ECHR 2011) of their fears regarding a return to Serbia and of their health problems. Firstly, the reasoning was erroneous and incomplete (error as to their nationality, identifying them as Kosovars instead of Serbs, failure to mention their return to Serbia and their Roma origin). Secondly, they could not be blamed for having failed to provide, during their Dublin interview, documents certifying their health problems and their movements to date or for not having substantiated their fears regarding a transfer to France. Like all Dublin asylum-seekers at that time, when they had attended those interviews they had not been assisted by a lawyer or informed of the documents that they should bring and no document had been requested of them. As they had expressed their fears, the Belgian authorities should have asked the appropriate questions and requested the relevant documents in order to ensure that their return did not infringe their fundamental rights. The applicants also argued that France should not have been determined as the State responsible for examining their asylum applications. Under Article 16(3) of the Dublin II Regulation, the obligations regarding the determination of the State responsible ceased where the third-country national had left the territory of the Member States for at least three months. That was precisely the position the applicants had been in on account of their return to Serbia from May 2010 to March 2011 as certified by the documents subsequently sent to the Aliens Office (see paragraph 20 above). Lastly, they submitted that the Belgian authorities should have used the sovereignty clause or the humanitarian clause both on account of their special vulnerability and of the notoriously difficult situation of the Roma minority in Serbia and of the conditions for the reception of asylum-seekers in France.

The hearing before the Aliens Appeals Board took place on 26 August 2011.

On 23 September 2011 the applicants unsuccessfully sought a further extension of the order to leave the country pending the outcome of the proceedings before the Aliens Appeals Board.

On 27 September 2011 the applicants lodged an application with the Court for interim measures suspending their transfer to France pending the outcome of the proceedings before the Aliens Appeals Board.

On 28 September 2011 the Court refused to indicate an interim measure.

In a judgment of 29 November 2011 the Aliens Appeals Board ruled on the application to have the decisions refusing residence permits and ordering the applicants to leave the country set aside and for a stay of execution.

The Aliens Appeals Board dismissed the ground of appeal regarding the conditions of reception in France and based on the risk alleged by the applicants of being exposed to treatment contrary to Article 3 of the Convention. It found as follows:

“... the Board cannot but observe that the applicants have failed to show that they encountered difficulties in their dealings with the French authorities regarding access to health care for their child or their conditions of reception as asylum-seekers. They have not adduced so much as a shred of evidence regarding the circumstances of the ill-treatment they have allegedly suffered and have merely asserted in their application, without substantiating this with the slightest evidence that could corroborate the facts, “that they found themselves in an extremely precarious situation at the time of lodging their application for asylum and that their only refuge was a night hostel that they had to leave the next morning”. Moreover, although their daughter’s disability had been specified in the “Dublin form”, the parties have not made any allegation whatsoever before the Aliens Appeals Board of encountering particular difficulties in the reception of asylum-seekers as organised by the relevant French authorities.”

The Aliens Appeals Board also criticised the applicants for failing to produce in full the NGO reports that they had cited in support of their application, which had prevented it from checking whether the extracts produced did actually concern France.

The Aliens Appeals Board set the decisions aside, however, on the ground that the Aliens Office had not established the legal basis on which it considered that France was the State responsible for examining the applicants’ asylum application.

On 23 December 2011 the Belgian State lodged an appeal on points of law with the Conseil d’État against the Aliens Appeals Board’s judgment. It disputed the Aliens Appeals Board’s analysis of the applicable legal basis.

In an order of 12 January 2012 the Conseil d’État declared the appeal admissible. In a judgment of 28 February 2013 it rejected it for lack of current interest on the grounds that the operative provisions of the Aliens Appeals Board’s judgment were no longer a source of complaint for the applicants because they had returned to Serbia and had left the territory of the Member States for more than three months with the result that Belgium was relieved of any obligation in the process of determining which Member State was responsible for their asylum application.

In the meantime, on 22 September 2011, the applicants had lodged an application for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”) on behalf of their eldest daughter. They referred to the extreme precariousness of their position and the discrimination they had suffered as Roms in Serbia and Kosovo. Citing several international reports in support of their submissions, they argued that for that reason they had no guarantee that they would be able to obtain the necessary treatment for their daughter’s health condition. They sought temporary leave to remain pending the outcome of the asylum proceedings they had instituted in Belgium.

On 30 September 2011 the Aliens Office declared their application inadmissible on the grounds that the medical certificate of 26 June 2011 (see paragraph 38 below), produced in support of their application to have their residence status regularised, certified the existence of a medical problem and stipulated the treatment considered necessary but, contrary to the requirements of section 9ter § 3, 3o of the Aliens Act, did not specify the degree of seriousness of the condition.

The applicants indicated in their observations in reply that they had learnt of the existence of that decision during the proceedings before the Court.

On 1 April 2011 the Federal agency for the reception of asylum-seekers (“Fedasil”) assigned the applicants a reception facility as their mandatory place of registration, namely, Morlanwez asylum-seekers’ reception centre.

The social worker from the centre took down the following account by the applicants of the conditions of their reception in France:

“The family decided to leave France because they had no means of subsistence. They were living in a night shelter which they had to leave in the day. They and the children were out on the streets from 7 a.m. They had to use a pushchair as a wheelchair for S., who is disabled. They had no information of any kind apart from the status of asylum-seeker which had been given to them on their arrival. No doctor, no social worker, no lawyer, no interpreter. They had absolutely no means of communication. They had no idea what they should do or what to expect. S. was not receiving any medical treatment of any kind. When her health deteriorated and she had to be taken to hospital, it was the mother’s sister who drove her to the emergency ward at the hospital and acted as interpreter. Once at the hospital the little girl had [epileptic] fits and her hair fell out. That was what decided the family to return to Serbia”.

The eldest daughter was examined on 26 June 2011 by a neuropsychiatrist at Jolimont-Lobbes Hospital and a medical certificate was drawn up on that day certifying the child’s disabilities.

In that certificate, which was sent to the Aliens Office on 1 July 2011, the doctor noted that the child had “cerebral palsy with epilepsy”, suffered from “severe axial and peripheral hypotonia”, that she could not sit up unassisted and soiled her underwear, that she could not talk and appeared not to understand others. He also noted that the child was taking medicines and that she required physiotherapy and appropriate equipment (orthopaedic braces, seat-brace). Those medical findings were confirmed by a neurological examination carried out on 1 July 2011.

The eldest daughter was admitted to hospital on 7 and 8 July 2011 for her epileptic fits and a neurological report drawn up.

After the second applicant gave birth on 26 July 2011 the family were assigned a new reception centre on 5 August 2011 in an open centre suitable for families, in Saint-Trond in the province of Limbourg.

On 26 September 2011, when the order extending execution of the order to leave the country expired, and as they could no longer benefit from material assistance for refugees, the applicants were removed from the Saint-Trond reception centre.

The applicants travelled to Brussels, where voluntary associations indicated a public square in the municipality of Schaerbeek, in the centre of the Brussels-Capital administrative district, where other homeless Roma families were also staying. They stayed there from 27 September to 5 October 2011.

On 29 September 2011, through their legal representative, the applicants asked the French-speaking community’s General Delegate to the Rights of the Child to intervene urgently with the national authorities responsible for the reception of asylum-seekers.

On the same day the General Delegate sent a letter to the Director-General of Fedasil requesting that accommodation be found urgently.

A signed statement by the General Delegate dated 2 October 2011 indicated that he also contacted the municipality of Schaerbeek in an attempt to find urgent accommodation for the family. According to the General Delegate, the municipal authorities stated that they did not have power to make a decision and that it was for the federal authorities to decide, and Fedasil declared that it did not have power on account of the decision taken by the Aliens Office regarding France’s responsibility for processing the asylum request (see paragraph 18 above). Fedasil also stated that the application to the Aliens Appeals Board (see paragraph 22 above) was not of suspensive effect, which was why the reception centre had applied the rules terminating the right to material assistance.

On 5 October 2011, following the intervention of the General Delegate, the Secretary of State’s office for Asylum and Migration, Social Integration and the Fight against Poverty instructed Fedasil to designate a reception centre as a matter of urgency.

After spending two days at the transit centre of the WoluweSaintPierre municipality, also in the Brussels-Capital administrative district, on 7 October 2011 the applicants were assigned a new reception centre as a mandatory place of registration: the Bovigny reception centre for asylum-seekers in the province of Luxembourg approximately 160 km from Brussels.

The Government maintained that the applicants had failed to register at the centre. The applicants, for their part, stated that they had gone there by train and a special bus but had been sent back to Brussels to Fedasil’s Dispatching Department on the grounds that their “annex 26quater [order to leave the country] was invalid.”

When they got back to Brussels on 7 October 2011 the applicants got off the train at the Brussels Gare du Nord, where they remained without any means of subsistence and with no accommodation despite the very cold weather for nearly three more weeks until their return to Serbia was organised via a charitable organisation as part of the Fedasil return programme. The applicants left Belgium for Serbia on 25 October 2011.

In the meantime, on 12 October 2011, the applicants’ mandatory place of residence had been changed to code 207 “no-show” (see paragraph 81 below) and on 25 November 2011 the applicants’ names were deleted from the waiting register.

After their return to Serbia their eldest daughter’s health deteriorated, forcing the applicants to leave the room they had rented on account of the insalubrious conditions. They went to stay with a relative in Novi-Sad and then to the suburbs in Belgrade.

The applicants’ eldest daughter was admitted to hospital on 4 December 2011 suffering from a lung infection. She died on 18 December 2011.

In a letter to their lawyer of 21 November 2012 the applicants stated that they had been attacked by Serbs on a number of occasions: among other incidents, some men had driven by in a car and broken the windows of their home by throwing stones, and had uttered threats, complaining of their links with the “Belgians” and ordering them to leave Serbia. The first applicant had attempted to defend himself and been beaten up twice by his attackers.


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicants were born in 1987 and 1986 respectively and live in Ankara.

The applicants were cadets in military schools. Based on classified investigation reports, they were expelled from their schools. None of the applicants had access to these classified reports. They all filed actions against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decisions.

Relying on the classified investigation reports, the Supreme Military Administrative Court rejected the applicants’ requests and their subsequent requests for rectification on different dates shown in detail in the attached list.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicants were prosecuted in Russia for various crimes. They were arrested and detained pending investigation and trial. Their detention was ordered and extended by the courts. The detention orders were essentially based on the gravity of the charges, the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice. The detention and extension orders used stereotyped formulae, without addressing specific facts or considering alternative preventive measures.

The first applicant was born in 1973 and lived, prior to his arrest, in Yekaterinburg, Sverdlovsk Region. In 2007 the applicant was arrested in Ukraine. On 24 May 2008 he was extradited to Russia and was placed in pre-trial detention until 27 December 2010 when he was released on bail. On 22 April 2011 the Kirovskiy District Court of Yekaterinburg convicted him of fraud.

The second applicant was born in 1978 and lived, prior to his arrest, in Angarsk, Irkutsk Region. On 23 September 2007 the applicant was arrested on suspicion of fraud. On 25 September 2007 the court remanded him in custody. On 24 June 2010 the Irkutsk Regional Court convicted the applicant of fraud.

The third applicant was born in 1967 and lived, prior to his arrest, in Yekaterinburg. The applicant was arrested on 16 August 2012. On 17 August 2012 the court held to place him in pre-trial detention. On 10 October 2013 the Sverdlovsk Regional Court convicted the applicant of trespass, battery, robbery and sexual assault.


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicants, whose names are listed in the appendix, are Turkish nationals and and at the time of lodging their applications they were serving their prison sentences in various establishments.

The names and dates of birth of the applicants, as well as the names of their representatives, and the dates of introduction of the applications appear in the appendix.

All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they were held. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were sentenced respectively between 11 to 15 days’ solitary confinement on the orders of the respective Prison Disciplinary Boards (referred hereafter as “the board”).

Their objections were subsequently rejected by the Enforcement Judges and the Assize Courts, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, dated 16 May 2001.


Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani

The applicant, Ms Rūta Marozaitė, is a Lithuanian national, who was born in 1965 and lives in Kaunas. She was represented before the Court by Ms A.O. Meilutytė, her mother, a lawyer by profession.

The Lithuanian Government (“the Government”) were represented by their Agent, represented by their Agent, Ms K. Bubnytė.

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

In March 1992 the applicant’s grandmother, S.M., asked the authorities to transfer ownership of a plot of land of 0.225 hectares located under a private residential building to her.

On 8 July 1992 a purchase agreement was signed between S.M. and a representative of the management board of the Kaunas Region, in which it was stated that S.M. was purchasing the plot of land of 0.225 hectares for 3,119 Russian roubles (RUR). S.M. paid the money on 23 July 1992, and a note about payment appeared in the purchase agreement. S.M. also paid RUR 300 and RUR 74.80 respectively for the land documents to be prepared and for the land to be redemarcated. The procedure that had to be followed in order to finalise the purchase agreement was laid down in the domestic law (see paragraph 35 below).

On 2 April 2009 S.M. died and, following her written will, the applicant became entitled to inherit her property. The notary requested that the applicant submit documentary evidence confirming the property rights in respect of S.M.’s estate, in order to prepare documents relating to the inheritance.

In July 2011 the applicant asked the Kaunas Region Land Service to prepare S.M.’s ownership documents in respect of the plot of land. She stated that she had already delivered to the Kaunas Region Land Service the receipt confirming that S.M. had paid for the land.

In August 2011 the Kaunas Region Land Service replied to the applicant, saying that she had delivered only a copy of the payment notice, which had not been confirmed by the bank, and that the document confirming the payment for the land would be issued when she delivered the original receipt. The applicant was further informed that the plot of land in question belonged to the State, and that if she wanted to purchase the plot of land which she had been using then she had to provide the authorities with a plan of the land and a document confirming the legal registration of the buildings on that land.

In August 2011 the applicant wrote a letter to the Kaunas Region Land Service and stated that she had not asked to be issued with a document confirming the payment for the land; she had asked the authorities to issue her with the documents confirming S.M.’s ownership of the land. The applicant also wrote that she was not willing to purchase the land because her grandmother had already purchased it. The Kaunas Region Land Service replied that S.M. had not concluded the purchase agreement in respect of the plot of land of 0.225 hectares, and the only document that the National Land Service could issue was the document for the notary confirming that S.M. had paid for the land. After the notary issued the document of inheritance in respect of the payments and the buildings on the land, the land purchase agreement could be concluded with the applicant, and the process of privatising the land, started by S.M., could be finished.

In April 2011 the applicant started court proceedings and asked the Kaunas District Court to establish as a legal fact that S.M. had owned a house, a storehouse with buildings around a courtyard, and a plot of land in the Kaunas Region measuring 25 ares (equivalent to 2,500 square metres or 0.25 hectares).

On 23 September 2011 the Kaunas District Court established that on 31 March 1992 S.M. had asked the national authorities to give her permission to buy the plot of land of 0.225 hectares. The court also held that there were two receipts dated 8 July 1992 and 23 July 1992 confirming that S.M. had paid RUR 74.80 for redemarcation of the land and RUR 3,119 for the plot of land of 0.225 hectares. The court also observed that on 7 July 1992 S.M. had signed a purchase agreement in respect of the plot of land of 0.225 hectares. The court held that, in accordance with the provisions of domestic law, it was entitled to establish legal facts only when applicants could not obtain documents confirming such facts in any other manner. The court held that a representative of the National Land Service had confirmed that when the applicant provided all the necessary documents regarding the payments for the land, the plot of land would be measured and documents relating to it would be drawn up, and then it would be registered and the ownership documents would be issued. The court concluded that when the applicant provided the authorities with the receipts of the payments S.M. had made, the obstacles to her receiving the ownership documents would be removed.

The applicant lodged an appeal, but on 19 January 2012 the Kaunas Regional Court upheld the decision of the first-instance court.

In February 2012 the applicant’s representative asked the National Land Service to issue her with the ownership documents in respect of S.M.’s land. She referred to the decision of the Kaunas District Court of 23 September 2011, where it had been established that the applicant would receive documents confirming S.M.’s ownership of the plot of land of 0.225 hectares when she presented the authorities with the original receipts (see paragraph 11 above). The applicant’s representative also stated that the notary would not issue her with the inheritance document with regard to the RUR 3,119 paid, because the notary could only issue inheritance documents with regard to deposits in banks. In March 2012 the Kaunas Region Land Service reiterated that the applicant had to provide the authorities with an original receipt for the payments S.M. had made. It further stated that the applicant had not submitted a request to purchase the plot of land in question, registration documents for the buildings situated on the land, a copy of her identity document, or a plan of the plot. If a plan of the plot had not been provided because the plot of land had not been measured and the documents relating to the plot had not been drawn up, the person asking to purchase the land had to be informed about the necessity to prepare the territorial planning document and the plan of the plot. The Kaunas Region Land Service stated that it had never been obliged by the domestic courts to issue the applicant with the documents confirming S.M.’s property rights to the land.

It appears that the applicant wrote a letter to the Chamber of Notaries. She received a response in March 2012, where it was indicated that the document of inheritance could only be issued with regard to property and property rights, and it could not be issued with regard to the money the deceased had paid. The Chamber of Notaries invited the applicant to address the National Land Service with regard to the privatisation of the land.

In May 2012 the National Land Service examined the applicant’s complaint regarding the plot of land. It stated that the house, the garage, the storehouse and the buildings around a courtyard had been registered in the Centre of Registers in April 2012. It was indicated that these buildings had been used by S.M. However, the rights to the property in question had not been registered. The National Land Service further stated that there was a document confirming that S.M. had paid RUR 300 for the preparation of documents, but there was no evidence that she had paid RUR 3,119 for the land. The National Land Service also explained what the valid procedure for acquiring ownership rights over land had been in 1992. A person had to ask to purchase a plot of land and provide a document confirming the grounds on which he or she had been using that plot and a plan of the plot. The relevant land service then had to estimate the price of the land and prepare a draft purchase agreement, and the person had to be presented with that agreement. The person then had to confirm that he or she agreed with the price and other conditions set out in the purchase agreement, by signing it. After that, the person had to pay the price indicated in the draft purchase agreement and come and sign the agreement, presenting the authorities with a receipt confirming payment. The purchase agreement had to be approved by a notary and registered with the municipal (regional) land service within a month. It was only possible to inherit such land after the purchase agreement had been confirmed by the notary. The purchase agreement could be signed and registered at the same time. The National Land Service thus decided that the purchase agreement which S.M. had signed was merely a draft agreement. Because the purchase agreement regarding the 0.225 hectares of land had not been concluded, the privatisation documents regarding that plot had to be prepared in accordance with the legal acts in force at the time. The National Land Service stated that because the applicant had inherited S.M.’s buildings, she could, but was not obliged to, buy the plot of land in question under and around the buildings. The price of the land would be calculated in accordance with the prices valid at the material time, and the amount which S.M. had paid could be deducted from the total price of the land.

The applicant started court proceedings, asking the Kaunas Regional Administrative Court to: annul the decisions of the national authorities not to issue her with a document confirming her grandmother’s property rights in respect of the plot of land of 0.225 hectares; oblige the national authorities to issue her with that document within three months; and award her 10,000 Lithuanian litai (LTL – approximately 2,896 euros (EUR)) in respect of pecuniary damage, and EUR 28,962 in respect of non-pecuniary damage. The applicant claimed that the domestic authorities were refusing to issue her with the document confirming her property rights in respect of the plot of land of 0.225 hectares, and that they were stating that S.M. had not paid for the land. The applicant also claimed that the national authorities were asking her to pay EUR 12,743 for the land, when the land had already been paid for.

On 10 September 2012 the Kaunas Regional Administrative Court rejected the applicant’s claim. The court held that S.M. had submitted a request to buy the plot of land of 0.225 hectares. After that, the national authorities had issued her with a document specifying that the price of the land was RUR 3,119 and she had to pay an additional RUR 300 for the preparation and official registration of the relevant documents. The court also held that the draft purchase agreement had been prepared, but permission to purchase the land, which was obligatory under domestic law, had never been issued. It also observed that the purchase agreement had to be approved by a notary and registered in the relevant register, and this had not been done. The court therefore concluded that, although the procedure to purchase the plot of land of 0.225 ha had been started, the national authorities had not expressed their willingness to sell the land, and thus the purchase agreement had not been concluded. As the National Land Service had not acted unlawfully, compensation in respect of pecuniary and non-pecuniary damage could not be awarded to the applicant.

The applicant lodged an appeal, and on 4 March 2013 the Supreme Administrative Court upheld the decision of the first-instance court. The court reiterated what the privatisation procedure in force in 1992 had been (see paragraph 35 below). The court observed that, although the land purchase agreement between S.M. and the national authorities had not been marked as a draft agreement, it was actually no more than that. The mere fact that the applicant’s grandmother had signed and paid for the land only represented her willingness to conclude the agreement, and did not prove that the land purchase agreement had actually been concluded. The draft had been prepared on 8 July 1992, and this draft also contained additional information from 23 July 1992 confirming that S.M. had paid RUR 3,119 for the land. This information had been included in the draft agreement after it had been prepared. The court held that that information had to be assessed as proof that, after S.M. had paid for the land, she had presented the authorities with the receipt which had been included in the draft. The fact that the agreement was merely a draft was supported by the circumstance that it had not met the requirements of domestic law that purchase agreements had to be approved by a notary and registered by the municipal (regional) land service. Moreover, certain lines in the draft had not been filled in. Lastly, between 1992 and 2009 S.M. had not asked the authorities to conclude a purchase agreement based on the provisions of the draft purchase agreement which she had signed, thus it could not be concluded that the purchase of the land had not been concluded due to unlawful actions of the authorities.

On 3 June 2013 the notary issued the applicant with a document of inheritance regarding S.M.’s house, the buildings around the courtyard, the garage and the storehouse.

The applicant asked the Supreme Administrative Court to reopen the proceedings, and on 5 June 2013 it rejected her application. The court held that reopening proceedings was only possible in the event that a gross violation of the provisions of domestic law had been made. The court observed that no such violation had been made, and thus the applicant’s application was rejected as unfounded.

In July 2013 the Kaunas Region Land Service sent a document to the notary confirming that S.M. had paid RUR 3,119 for 0.225 hectares of land on 27 July 1992.

The applicant lodged a civil claim, asking to be awarded EUR 7,008 in respect of pecuniary damage and EUR 28,962 in respect of non-pecuniary damage for illegal actions committed by the domestic courts in their refusing to establish as a legal fact that S.M. had owned some buildings and 0.225 hectares of land. On 1 April 2014 the Vilnius City District Court rejected the applicant’s claim because she had not provided any evidence about unlawful actions of the domestic courts, nor had she justified the amount of damages claimed.

The applicant lodged an appeal. On 3 December 2014 the Vilnius Regional Court upheld the decision of the Vilnius City District Court of 1 April 2014.

On 19 January 2015 an appeal on points of law by the applicant was rejected because it had been submitted by email and she had not proved her legal qualifications, and on 13 February 2015 that appeal was rejected because it had not been submitted by a lawyer and had other procedural shortcomings. Lastly, on 3 March 2015 the Supreme Court rejected the applicant’s appeal on points of law as not raising important legal issues.

On 14 May 2014 the Kaunas Region Land Service approved the list of candidates who were to receive plots of land. The applicant was included on that list.

In July 2014 the applicant was asked to pay LTL 566.28 (approximately EUR 164) for the plot of land of 0.225 hectares to be measured and for documents relating to it to be drawn up. The applicant paid the money on 31 December 2014.

In December 2014 the National Land Service informed the applicant that in July 2014 she had signed the agreement regarding the payment which was necessary in order for a plot of land to be measured and for documents relating to it to be drawn up. The National Land Service also stated that after the applicant had paid the money, she would have to address relevant institutions to make cadastral measurements. Moreover, the applicant had to provide the authorities with a document of inheritance issued by the notary, proving that S.M. had paid for the plot of land of 0.225 hectares. A purchase agreement would then be prepared, deducting the money which S.M. had paid from the final price of the land. The remaining amount to be paid by the applicant would be determined in accordance with the rules set by the Government.

The applicant started administrative proceedings against the national authorities for EUR 28,962 in respect of non-pecuniary damage and for recognition of her right to compensation for pecuniary damage. She complained that, although during the proceedings to establish a legal fact, officials had claimed that she would be issued with the property documents when she provided the original receipts, they had kept refusing her requests. The applicant also claimed that the national authorities were falsely stating that her grandmother had not paid for the land.

On 20 April 2015 the Kaunas Regional Administrative Court established that S.M. had paid RUR 3,119 for the plot of land of 0.225 hectares and RUR 74.80 for redemarcation of the land. The court also held that it had already been established in the other proceedings that the mere fact that the money had been paid did not constitute sufficient grounds to establish that S.M. and the national authorities had concluded the land purchase agreement. The court observed that, even though the officials’ statements had been irresponsible during the proceedings to establish a legal fact (see paragraph 11 above), there was no evidence confirming that the land purchase procedure had not been finalised as a result of unlawful actions by the national authorities. Consequently, the examination of the part of the applicant’s claim concerning the acknowledgement of her right to compensation for pecuniary damage was terminated, and the other part of the application was dismissed.

The applicant lodged an appeal, and on 17 December 2015 the Supreme Administrative Court upheld the decision of the Kaunas Regional Administrative Court of 20 April 2015.

The applicant started administrative proceedings against the national authorities for EUR 164 in respect of pecuniary damage. The applicant claimed that, although her grandmother had paid for the plot of land of 0.225 hectares, the authorities were requiring her to purchase the same land again and ordering her to pay EUR 164 for a plan of the land. Although the applicant had paid the money, she thought that such a requirement was unlawful.

On 11 January 2016 the Kaunas Regional Administrative Court dismissed the applicant’s complaint. The court held that it had already been established that S.M. had not completed the purchase agreement, thus the National Land Service could not issue the applicant with the land ownership documents. The purchase documents had to be prepared in accordance with the domestic law applicable at the present time. The court observed that the purchase of plots of land was regulated by the rules approved by the Government (see paragraphs 36 and 37 below). The National Land Service was not obliged to pay for the plans of land reform projects prepared in order to transfer land into private ownership. There were no exceptions to this rule. It was also impossible to deduct from the price of the land the payments of RUR 300 and RUR 74.80 which S.M. had made for the preparation of documents and redemarcation of the land in 1992. These payments had not resulted in any legal consequences, because the purchase agreement had not been concluded. Documents relating to the plot of land in question had just been drawn up as part of the land reform project, and the applicant had to pay EUR 164 for the measurements. The applicant was indicating that this specific amount was pecuniary damage. However, she had failed to prove the unlawful actions of the authorities.

The applicant appealed. On 30 May 2017 the Supreme Administrative Court dismissed the applicant’s appeal. The court held that the amount of EUR 164 could only be returned to the applicant if she refused to purchase or rent the land indicated in the land reform project. The applicant had agreed in writing to pay the money, and she had not refused to purchase or rent the land. The applicant also claimed that S.M. had already paid for the preparation of documents in 1992. The court referred to the domestic legislation and observed that if a person was an owner of a building sited on State land, and the person had paid for the land but the purchase agreement had not been concluded, the payments made could be deducted from the final price of the land if a right to deduct these payments was also transferred together with a property right to the buildings (see paragraph 36 below). If a person had acquired property rights to a building situated on State land before 1 February 2010, and a person had paid for the land but the purchase agreement had not been concluded, the payments made could be deducted from the final price of the land if such a right was transferred to a buyer by a document approved by the notary. The applicant thus had to follow these rules.

Article 30 § 10 of the Law on Land provides that if a building that is transferred into private ownership is sited on a plot of State land for which a person has paid, but where the purchase agreement in respect of that land has not been concluded, such a person acquires a right to purchase the land necessary to use the buildings. The person transferring an ownership right to a building can also transfer the right to deduct payments for the land that have already been made.

Government Resolution No. 89 of 7 February 1992 “On the sale and rent of plots of land for non-agricultural purposes and community gardens” (Dėl žemės sklypų ne žemės ūkio veiklai bei sodininkų bendrijų narių sodų sklypų pardavimo ir nuomos tvarkos – hereinafter “the Order”), in force at the material time, provided that a person who had the right to and was willing to purchase a plot of land for his or her individual use had to ask the municipal (regional) land service if he or she could purchase that plot, and provide a plan of the plot and other documents (Point 4). The Order also provided that the municipal (regional) land service had to prepare a legal document determining the price of the land and a draft purchase agreement within a month of receiving a person’s request. The signature of a person willing to purchase the land meant that he or she had accepted the conditions established in the draft purchase agreement and legal document determining the price of the land (Point 6). After that, the municipal (regional) land service had to submit the signed documents to the municipal (regional) authority, which had to publish a decree allowing the person to purchase the land (Point 8). The Order further provided that after the city (regional) administration had published a decree allowing the person to purchase the land, it had to send a notice to the buyer indicating the amount he or she had to pay for the land, and had to instruct an engineer to give orders to the relevant authorities to mark out the land and clarify the cartographic and cadastral documents. These actions had to be performed before the signing of the purchase agreement. The period between the issuing of the decree and the signing of the land purchase agreement could not be longer than one month (Point 9). The Order also provided that when a buyer received the notice from the authorities, he or she had to pay for the land before signing the land purchase agreement and come to the authorities to sign the purchase agreement, bringing a document confirming the payment. In the absence of important reasons, if a person had not paid the money or had not come to sign the purchase agreement, the land purchase agreement was not concluded. The land purchase agreement had to be approved by a notary and registered by the municipal (regional) land service. If those actions were not performed, the land purchase agreement would be null and void. Once the purchase agreement was approved by the notary, there was a right to inherit the land. The purchase agreement could be signed and registered at the same time (Point 10). Once the purchase agreement was registered, the city (regional) administration issued the buyer with the ownership act, which was a document confirming a right to use the plot of land in accordance with the law (Point 11).

At the material time, Government Resolution No. 260 of 9 March 1999 “On the sale and rent of plots of State land for other purposes” (Dėl naudojamų kitos paskirties valstybinės žemės sklypų ir nuomos) provided that if a person who acquired the ownership right to a building situated on a plot of State land had paid for that plot, but the purchase agreement regarding that plot of land had not been concluded, the amounts paid for the land had to be deducted from the final price of the land (Point 2.6).

At the material time, Government Resolution No. 260 of 9 March 1999, by which rules “On the sale and rent of plots of State land for other purposes” (Naudojamų kitos paskirties valstybinės žemės sklypų ir nuomos taisyklės) were approved, provided that a person who wanted to purchase a plot of State land which he or she had been using had to provide the authorities with a request to purchase the land; an approved copy of his or her identity document; and a copy of a plan of the land, with the buildings marked (Point 12). If the plan of the land was not included because it had not been measured and documents relating to it had not been drawn up, a person had to be informed about the necessity to prepare a territorial planning document and a plan of the land (Point 14).


CASE OF ATAKISHIYEVA AND OTHERS v. RUSSIA

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

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

The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.


Alena Poláčková;Helen Keller;Pere Pastor Vilanova

The applicant was born in 1977 and lived in Naberezhniye Chelny, Tatarstan Republic, before his conviction of an unrelated criminal offence.

On 7 April 2008 the applicant notified the executive committee of Naberezhniye Chelny of his intention to hold a public event in the form of a hunger strike in front of the local prosecutor’s office beginning from 21 April 2008. On the same day the applicant was informed that his notice did not comply with the requirements of the law.

On 16 April 2008 the applicant lodged an addendum to his notice in which he indicated the place, the timing and the goal of the planned event as well as the information about its organiser. He also asked to ensure the protection of a tent (to be positioned near the prosecutor’s office) from 9 p.m. to 9 a.m. daily and the twenty-four-hour presence of an ambulance at the venue of the event.

On 17 April 2008 the head of the public relations department of the local executive committee informed the applicant that his planned public event amounted to a “picket” within the meaning of the Public Events Act (hereinafter “PEA”). In breach of the PEA the notice about the event did not contain information about the number of participants or arrangements to be made for preventing disorder and providing medical aid during the event. The applicant was required to align his notice with the PEA in that connection but, according to the Government, he failed to do so.

According to the applicant, on 22 April 2008 he started to hold a solo demonstration at noon and continued it until 4 p.m., when he was arrested by the police.

According to the Government, on 22 April 2008 at 3.15 p.m. the applicant set up on the lawn in front of the prosecutor’s office a tent and a poster reading “Hunger strike. Call for signatures”. He gathered passers-by and voiced his claims to them. At 3.40 p.m. a police officer drew up a record of an administrative offence allegedly committed by the applicant. He was accused of the breach of the procedure for the organisation of public events, an offence under Article 20.2 § 1 of the Code of Administrative Offences (hereinafter “CAO”). The case file was then submitted to a justice of the peace, who adjourned the hearing so that the applicant could retain a counsel. It is unclear whether the applicant was arrested by the police or otherwise deprived of his liberty at any moment prior to appearing before the justice of the peace.

At 8 p.m. on the same day the applicant returned to the site near the prosecutor’s office and resumed his demonstration. The police ordered him to terminate this allegedly unlawful public event, but he refused. They compiled an administrative offence record, stating that the applicant had committed an offence under Article 19.3 § 1 of the CAO; they also compiled an administrative arrest record (протокол административного задержания). The applicant was then taken to the central police station of Naberezhniye Chelny where he was detained until 24 April 2008 in the afternoon.

On 24 April 2008 the justice of the peace of the 8th Court Circuit of Naberezhniye Chelny found the applicant guilty under Article 20.2 § 1 of the CAO and imposed a fine of 1,000 Russian roubles ((RUB), equivalent to 27 euros (EUR) at the time). The court noted that the applicant had intended to hold a non-stop hunger-strike making use of posters for an indefinite period of time; on 22 April 2008 he had held an unlawful picket by way of setting up a tent and a poster reading “Hunger strike. Call for signatures” as well as by gathering passers-by and “campaigning” among them. In breach of the PEA he had failed to specify his arrangements for preventing disorder or providing medical aid during the event. Moreover, the applicant had intended to hold a twenty-four-hour picket in breach of the PEA’s ban on public events between 11 p.m. and 7 a.m. The court concluded that the applicant breached the procedure for the organisation of his public event.

The applicant appealed to the Naberezhniye Chelny Town Court. By a decision of 7 May 2008 the Town Court upheld the judgment of the justice of the peace.

In separate proceedings, on 7 May 2008 the justice of the peace of the 1st Court Circuit of Naberezhniye Chelny found the applicant guilty under Article 19.3 § 1 of the CAO. The justice of the peace found it established, on the basis of testimony of two eyewitnesses and police officers, that at 8 p.m. on 22 April 2008 the applicant being aware of the administrative offence proceedings pending against him under Article 20.2 of the CAO, had nevertheless disobeyed the lawful police order to stop the picket being held in breach of the PEA. The court sentenced him to seven days of administrative detention. The applicant’s detention from 9 p.m. on 22 April to 3.35 p.m. on 24 April 2008 counted towards his sentence of administrative detention.

The applicant appealed against the judgment to the Naberezhniye Chelny Town Court. On 8 May 2008 the Town Court upheld the judgment in a summary manner.

On 3 June 2008 the applicant lodged a supervisory-review appeal against the judgment of 7 May 2008. On 8 July 2008 the Deputy President of the Supreme Court of the Tatarstan Republic dismissed it, fully endorsing the findings of the lower courts.


No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Pakistan)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in 1963 in Pakistan and currently lives in sheltered accommodation (betreutes Wohnen) in Haina (Land of Hesse, Germany).

In 1990 the applicant married in Pakistan and converted to her husband’s faith, that of the Ahmadiyya.

The applicant and her husband moved to Germany in 1991. The husband was granted refugee status but the applicant’s own application for asylum was refused. As the spouse of a refugee, she received a temporary residence permit on 16 June 1994.

On 11 February 1995 the applicant gave birth to her son. In 1998 the applicant and her husband separated. The son stayed with the applicant. From then on the applicant worked as a cleaner in different companies. On 7 September 2001 she was awarded a permanent residence permit.

In March 2004 the applicant became unemployed due to behavioural issues that appeared to be caused by psychological problems. In July 2004 she and her spouse divorced. In 2005 the domestic family court transferred custody rights over her son to her husband and her son was living with him from then on.

On 31 May 2004 the applicant killed a neighbour by strangling her and pushing her down a staircase. Subsequently, she was detained and held in pre-trial detention. Following an attempt to harm herself, a domestic court ordered her committal to a psychiatric hospital.

On 13 July 2005 the Gießen Regional Court established that the applicant had committed manslaughter in a state of mental incapacity. At the time of the act she had been in a state of acute psychosis. A medical expert noted that she suffered from symptoms of schizophrenia and had diminished intelligence. She did not acknowledge her own psychological condition. The domestic court therefore concluded that she remained a danger for the general public and a continuous stay in a psychiatric hospital had to be ordered. The applicant was also appointed a legal guardian.

On 4 June 2009 the administrative authority Waldeck-Frankenthal ordered the applicant’s expulsion. Relying on Section 55 § 2 of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (hereafter “the Residence Act”, Aufenthaltsgesetz, see paragraph 25 below), the authority referred to the offence which had led to the applicant’s committal to the psychiatric hospital and her mental condition in general. The authority concluded that she posed a danger to public safety. In such a case her personal circumstances, namely her long stay in Germany and her residence status, were secondary. She was neither economically integrated nor sufficiently able to communicate in German, which was an obstacle to her therapy. She only had limited contacts with her former husband and her son and she was still familiar with the Pakistani culture. Adequate medical care was available in Pakistan and the applicant’s family there could assist her.

In November 2009 the applicant was granted privileges in the hospital, for example she was granted days of leave, which had not led to any complaints. She also started working fulltime in the laundry department of the clinic. This was possible due to her improved mental health. In proceedings concerning a provisional stay on the expulsion, the authorities committed themselves not to execute the expulsion decision before a court ruling on the merits.

On 1 March 2011 the Kassel Administrative Court refused the applicant’s action against the expulsion order. It upheld the decision that the applicant could be deported, on the grounds of the serious offence committed by her, lack of awareness of her own condition and given that a high probability of reoffending therefore existed. Moreover, she was not integrated into German society, especially due to her lack of German language skills. Article 8 of the Convention was not applicable as the applicant had no significant family relationships. The domestic court noted that, in principle, in Pakistan basic medical care for psychiatric patients existed in big cities like Lahore and that the applicant could afford treatment, including medication, as she would be receiving a small pension in the amount of around 250 euros (EUR). The domestic court recognised that family members in Pakistan had explicitly ruled out that they would take her in, when asked by the German Embassy. However, the domestic court thought it conceivable that the applicant’s relatives would help her with organising the required treatment if she were to provide them with small sums in euros in return. Furthermore, the applicant did not hold a visible position within the Ahmadiyya religion, so there would be no specific danger for her in that regard.

On 23 May 2011 the Hessian Administrative Court of Appeal dismissed the application for leave to appeal. It noted that the administrative court had taken into account all relevant facts of the case.

The applicant complained in vain of the breach of her right to be heard (Gehörsrüge). She argued that her submissions on her improved state of health, the death of her sister in Pakistan and the expected living conditions there had not been given proper consideration. Moreover, she claimed that she had close contact with her son who visited her on a regular basis.

On 24 November 2011 the Marburg Regional Court lifted the hospital treatment order on the recommendation of a medical report and released the applicant on probation, ordering a five-year probation period. It ordered the applicant to remain in regular contact with the medical personnel of the clinic and to continue to take the prescribed medication. The domestic court held that, due to the treatment, the danger of the applicant’s re-offending had diminished to such an extent that a residual risk had to be tolerated.

The medical report in question further indicated that, after having overcome some initial difficulties, she was reachable, while deficits in her cognitive performance remained. The language barrier caused problems during some therapy sessions and due to cognitive deficiencies difficulties remained, even with the assistance of an interpreter. She continued to work in the laundry, took her medication regularly and ultimately showed balanced behaviour. Her son visited her on a regular basis and wished to be more involved in her care. Such involvement, however, would have to be limited due to his situation as a young adult beginning his studies. She was compliant with all requirements and embraced the stable environment in which she was settled. Her prognosis could be considered positive.

The applicant was transferred to sheltered accommodation close to the clinic, where the required structure would be ensured.

On 13 December 2011 the applicant’s constitutional complaint against the deportation order was not admitted for review by the Federal Constitutional Court.

The applicant was notified on 19 September 2013 that a petition to the parliament of the Land of Hesse in this matter had not been successful.

So far, no date for the applicant’s removal to Pakistan has been set.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

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


CASE OF PISAROGLU v. THE REPUBLIC OF MOLDOVA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

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

The applicant was born in 1987 and lives in Chişinău.

The applicant was arrested on 19 July 2010 on charges of trafficking in human beings and held in detention on remand in Prison No. 13 in Chișinău until 15 March 2011. According to her, the conditions of detention were very poor. In particular, the applicant alleged that the cells were overcrowded, dirty and cold, with no access to daylight or fresh air, no bedding, very poor quality food, showers only once a week, only cold water, and clothes had to be washed and dried in the cell.


CASE OF FELDMAN AND SLOVYANSKYY BANK v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Sergiy Goncharenko;Yonko Grozev

The first applicant was born in 1958 and lives in Dnipro, Ukraine. The applicant bank was a commercial joint-stock bank based in Ukraine with its registered office in Zaporizhzhya. Its banking licence was revoked on 11 January 2001 (see paragraph 12 below). Subsequently, the applicant bank was liquidated (see paragraph 19 below).

The first applicant was the vice-president, founder and majority shareholder of the applicant bank.

In February and March 2000 the domestic authorities instituted two sets of criminal proceedings for tax evasion and abuse of office by the management of the applicant bank.

In March 2000 the first applicant was arrested as part of the criminal proceedings (for more details see Feldman v. Ukraine, nos. 76556/01 and 38779/04, 8 April 2010). In April 2000 the Ukrainian news agency UNIAN reported on a session of the Coordination Committee on Combating Corruption and Organised Crime. The relevant extract reads:

“‘It is a matter of honour for the General Prosecutor’s Office and the State Tax Administration to bring the story of Slovyanskyy Bank to its logical conclusion,’ said the President of Ukraine during his speech at the session ... He stated that the chairs of the bank had turned it into a source of uncontrolled personal income. ‘Such moneymakers have powerful patrons, and there is great pressure on the investigation,’ stated the President.”

On 29 June 2000 the National Bank of Ukraine (“the NBU”) suspended the applicant bank’s licence for some of its operations, considering that its financial position had deteriorated sharply and that it had been performing risky operations which threatened its solvency.

In July 2000 an investigator from the tax police of the State Tax Administration, acting in the course of the criminal proceedings, ordered an attachment of the applicant bank’s securities.

On 18 September 2000 the NBU put the applicant bank under temporary administration, which involved suspending the functions of some of the bank’s managers.

On 11 January 2001 the NBU issued a resolution “On the Liquidation of Slovyanskyy Commercial Joint-Stock Bank” by which, among other things, (1) the applicant bank’s operating licence was revoked in full; (2) the powers of the board, the council and the general shareholders’ meetings were terminated; and (3) the applicant bank was ordered to be liquidated. By the same resolution the NBU approved the composition of a liquidation commission for the bank, consisting of eleven officials from the regional departments of the NBU and two members of staff from the local tax office.

On 5 March 2001 the first applicant, who was in detention at the time, brought a claim under the rules of Chapter 31-A of the Code of Civil Procedure of 1963 with the Pechersky District Court of Kyiv, challenging the NBU’s decision. He maintained that the impugned resolution was unlawful and that the NBU had decided to liquidate the applicant bank owing to its failure to fulfil its financial obligations, whereas that failure had been caused by the NBU itself and the tax authorities. The first applicant emphasised that after the resolution had been adopted, the applicant bank had not been able to protect its rights and interests on its own. He added that the resolution had been detrimental to the interests of the applicant bank’s shareholders, including himself.

On 26 June 2001 the court found that the first applicant could bring a claim, however, it had to be dismissed. The court held that the NBU had been competent to adopt the impugned resolution, that the measures taken had been lawful and that they had been made necessary by gross violations of banking legislation by the applicant bank and its difficult financial position.

The first applicant appealed against that decision.

On 5 July 2002 the Kyiv City Court of Appeal upheld the decision of 26 June 2001 in part, but changed its reasoning. It held that the NBU’s resolution of 11 January 2001 had not concerned the first applicant and it had not been established during the determination of the claim that his rights and freedoms had been violated. For those reasons the court of appeal dismissed the claim.

The first applicant appealed on points of law.

On 21 April 2005 the Supreme Court of Ukraine quashed the decisions of 26 June 2001 and 5 July 2002 and terminated the proceedings, considering that the claim was inadmissible. It found as follows:

“... The first and second-instance courts have established that Mr B.M. Feldman brought a claim as a shareholder of Slovyanskyy Bank, however he did not request the protection of his own rights and freedoms but, in fact, acted in the interests of Slovyanskyy Bank, without being duly authorised [bold text in the original].

According to Articles 1 and 12 of the Code of Commercial Proceedings, disputes between a subject of entrepreneurial activities and enterprises, institutions and organisations concerning the protection of their rights and freedoms, and their disputes concerning the declaration of legal acts as invalid, should be examined by the commercial courts.

Given that a shareholder is not entitled to apply to a court for the examination of such a dispute and that this case is not to be examined in accordance with civil procedure, the decisions adopted in this case should be quashed and the proceedings should be terminated, in accordance with Article 136 § 2 (1) and Article 227 § 1 of the Code of Civil Procedure ...”

The liquidation process of the applicant bank was completed on 30 November 2012. The bank was removed from the legal entities official database on 4 August 2014.


Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant, Mr Iorgu Răileanu, is a Romanian national, who was born in 1959 and lives in Galaţi. He was represented before the Court by Ms N. A. Daghie, a lawyer practising in Galaţi.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.

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

On 30 April 2000 the applicant married E.R. On 7 September 2000 their daughter was born.

On 11 November 2006 the couple separated and their daughter remained with the mother. The applicant tried to maintain contact with his daughter, but his wife systematically hindered his attempts.

On 6 January 2009 the applicant brought proceedings in order to obtain rights of access to his daughter and on 9 June 2009 the Galaţi District Court allowed the request.

On 9 December 2009 the District Court’s decision was amended by the Galaţi County Court which established a detailed visiting schedule for the applicant. The county court’s decision became final on 29 April 2010 when the appeals on points of law lodged by the parties were dismissed by the Galaţi Court of Appeal.

On 23 November 2010 the couple divorced and the mother was granted custody of the child. The divorce court made no new arrangement for the applicant’s contact rights.

According to the applicant, E.R. claimed that their daughter did not want to go with her father and thus systematically refused to open the door when the applicant came to collect the child.

On 7 July 2009 the police informed the Galaţi Child Protection Agency (Direcţia Generală de Asistenţă Socială şi Protecţia Copilului Galaţi) about the applicant’s situation. The police became aware of the case as the applicant had lodged a criminal complaint against his wife for failure to respect the visiting schedule. The Child Protection Agency proceeded to assess the situation.

On 24 July 2009 the applicant also lodged a complaint with the Child Protection Agency, stating that his wife refused to give him access to the child and was manipulating the child into rejecting him, under threat of punishment. E.R. forbade the child from communicating with her father, sitting close to him, holding hands with him, kissing him or going into his car. The child was to run immediately inside to warn her mother when her father came to see her playing in the yard.

The Child Protection Agency started investigating the case. It visited E.R.’s home and appraised the situation. On 30 July 2009 it interviewed E.R. and from August 2009 both parents benefitted from psychological counselling. The Agency advised the mother to help her daughter maintain personal relations with the father. It also organised counselling sessions with the child. On several occasions E.R. refused to bring the child for a psychological evaluation.

On 25 September and 23 November 2009 the applicant reiterated his request with the Child Protection Agency and complained that the mother hindered his visiting rights. The Agency counselled the mother regarding respect for the applicant’s visiting rights and advised the applicant to address his complaints with the courts.

At the prosecutor’s request, the child underwent a psychological evaluation by the Child Protection Agency. On 8 April 2010 the psychologist rendered her report. She concluded that the child was normally developed but showed signs of having been manipulated by her mother into not expressing any positive feelings towards her father. She advised the mother to encourage the child to maintain her relations with the applicant.

On 11 May and 12 June 2010 the parents and child attended two sessions of psychological counselling with the Child Protection Agency where the tense relations between the adults were confirmed.

In a new report which was drafted on 27 August 2010, the Agency’s psychologist recommended that both adults undergo parental counselling to help them overcome the conflictual situation, that the mother encourage the child to maintain personal relations with the father and that both parents offer adequate emotional support to their child.

On 5 January 2010 the applicant sent his wife a notification through the offices of a bailiff asking her to comply with the court order establishing the visiting rights. He informed E.R. that in case she refused, he would start enforcement proceedings against her.

On 20 August 2010 the applicant started proceedings to have the County Court’s decision of 9 December 2009 enforced. On 19 April 2011 the Galaţi District Court dismissed an objection lodged by E.R., and found that she refused to comply with the court order.

On 8 September 2010 the bailiff, representative of the Child Protection Agency and the applicant met the child at her home.

On an unspecified date in 2010, the applicant lodged a request with the Galaţi District Court seeking to compel E.R. to bring their daughter to counselling. He argued that she was manipulating the child against him which rendered the exercise of his contact rights difficult.

The District Court rendered its decision on 2 November 2010. The court observed that, indeed, E.R. had failed to take her daughter to counselling. It reiterated that it was in the child’s best interest to maintain harmonious relations with both her parents. The court ordered E.R. to establish, together with the Child Protection Agency, a weekly counselling schedule for her daughter and to comply with it.

E.R.’s appeal against the District Court’s decision was dismissed by the Galaţi County Court on 2 June 2011. The court observed that most of the applicant’s attempts to see his daughter according to the schedule set by court order had failed because of the mother’s opposition or because of the conflicts between the parents, and that the child exhibited signs of being manipulated by her mother against her father.

On 12 September 2011 the applicant asked the Child Protection Agency to comply with the above court order of 2 November 2010 and set a timetable for the counselling sessions. On 3 February 2012 E.R. informed the Agency that she had enrolled the child in a counselling programme with the school psychologist and deplored the Agency’s attitude of blaming on her the conflictual situation between the adults. On 18 April 2012 E.R. went to the Agency’s headquarters and invited a team of experts to her home to see that the applicant was there with the child exercising his visiting rights. Two days later she informed the Agency that she accepted counselling for her child.

Some counselling sessions were organised between 25 April and 12 July 2012, for both the child and the adults. As the counselling failed to improve the child’s attitude towards her father, it was stopped. In the final report it was noted that the adults manifested hostility, lack of tolerance and respect towards each other and lacked any communication. Counselling for the child was considered futile so long as the parents remained in a conflictual situation. The psychologist recommended family and couple therapy, parental counselling and psychological counselling for the child.

In a letter addressed to the Agency on 13 August 2012 the applicant reacted to the conclusions of the report and asked E.R.’s parental rights to be withdrawn. The Agency expressed the view that there was no reason to withdraw E.R.’s parental rights.

The applicant lodged a request with the courts to obtain full custody of the child. The proceedings are currently pending.

The Agency organised the child’s psychological evaluation with its experts. After four sessions, the psychologist rendered the report. She concluded that the child’s exposure to court proceedings and repeated hearings and evaluations were detrimental to her and could cause emotional suffering. The expert also noted that the child detached herself emotionally from the adults’ problems and through her attitude tried to make them sort out on their own their conflicts.

The Agency presented its point of view in the proceedings. It reiterated its earlier assessment that there were no grounds to seek to deprive E.R. of her parental responsibility. It further noted that the child refused to cooperate with the psychologist which rendered the counselling futile.

The applicant lodged two criminal complaints against E.R. for noncompliance with a court order. They were both dismissed by the prosecutor’s office attached to the Galaţi District Court (“the prosecutor”) on 8 January 2010 and 25 June 2010 respectively. After hearing the two spouses, the prosecutor observed that the applicant managed to see his daughter occasionally, that on other times the child refused to see her father, or E.R. refused to give him the child, and that starting from March 2010 he had no longer exercised his visiting rights.

The applicant continued his attempts to see his child, lodged new criminal complaints against the mother, sought the Child Protection Agency’s assistance, and the mother was fined by the court on 10 April 2012 for failure to respect the court order establishing the visiting schedule.

After the fine imposed on the mother on 10 April 2012, she allowed the applicant to see the child, but the latter refused to leave with her father.

Several other civil court proceedings have been engaged by the applicant against his former spouse and the Child Protection Agency in order to have the custody arrangements reassessed. The child underwent more psychological evaluations in the process, and the experts considered that the tense situation between the adults led the child to refuse contact with her father, but that she would not oppose seeing him at her home.

Consequently, the counselling efforts through experts of the Child Protection Agency continued throughout 2013.

The relevant articles from the Family Code and the Code of Civil Procedure, applicable at the time of the facts of the present case, are presented in Nistor v. Romania, no. 14565/05, §§ 50-51, 2 November 2010.