Preliminary objection dismissed (Article 37-1 - Striking out applications);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska

The applicant was born in 1955 and lives in Baku.

The applicant was nominated by the coalition of the Popular Front and Musavat parties to stand as a candidate in the parliamentary elections of 7 November 2010 and applied for registration as a candidate in the singlemandate Saatli Electoral Constituency No. 62.

As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on 5 October 2010 the applicant submitted to the Constituency Electoral Commission (“the ConEC”) fourteen signature sheets containing 675 voter signatures collected in support of his candidacy.

Before the ConEC’s decision on the question of the applicant’s registration as a candidate, the accuracy of the signature sheets and other registration documents submitted by the applicant were to be first examined by a special working group (işçi qrupu) established by the ConEC. Although the applicant had requested to be present during the process of the examination by the working group, this took place without him.

By a decision of 11 October 2010 the ConEC refused the applicant’s request for registration as a candidate. The ConEC found that, according to the opinion of the working group, a number of submitted supporting signatures were invalid, and that the remaining valid signatures numbered fewer than 450. In particular, 597 of the 675 signatures had been examined, and it was found that 257 of those signatures were invalid.

The following reasons were given in the ConEC working group’s examination record dated 10 October 2010: (a) three signatures were “repeat signatures”; (b) seven signatures were invalid because there were uncertified corrections of them on the signature sheets; (c) twelve signatures were invalid owing to incorrect personal information provided concerning those voters; (d) one signature was invalid because it was on the wrong line; (e) 201 signatures were not authentic because they had been made repeatedly by the same individuals who had already signed the signature sheets; and (f) thirty-three signatures were invalid for “other” (unspecified) reasons.

On 13 October 2010 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision to refuse registration. He complained, inter alia, of the following:

(a) 257 signatures were deemed invalid on the basis of a mere visual examination, without any additional adequate investigation;

(b) the members of the ConEC working group were not real experts. The head of the working group was a school gym teacher, while two other members were an employee of a statistics committee and an employee of the passports department of a local police office;

(c) there was no explanation as to what constituted “other” reasons for declaring thirty-three of the signatures invalid;

(d) contrary to the requirements of Article 59.3 of the Electoral Code, the applicant had not been invited to participate in the process of examination of the signature sheets by the ConEC working group, and thus had been deprived of the right to give the necessary explanations to the experts;

(e) contrary to the requirements of Article 59.13 of the Electoral Code, he had not been provided with a copy of the results of the examination of the signature sheets at least twenty-four hours prior to the ConEC meeting to decide on the applicant’s registration;

(f) the applicant’s presence at the ConEC meeting of 11 October 2010 had not been ensured.

Enclosed with his complaint to the CEC, the applicant submitted written statements by over 400 voters whose signatures had been declared invalid, affirming the authenticity of their signatures. However, according to the applicant, those statements were not taken into consideration by the CEC.

The CEC conducted another examination of the signature sheets using members of its own working group. The applicant was not invited to participate in this process. According to the working group’s findings, a total of 238 signatures were considered to be invalid. It appears that 233 of those were considered inauthentic because they had allegedly been made repeatedly by the same persons in the name of other persons, and the remaining five were found to be invalid owing to the voters’ incorrect personal information.

The applicant was not invited to the CEC meeting dealing with his complaint against the ConEC decision of 11 October 2010.

By a decision of 16 October 2010 the CEC dismissed the applicant’s complaint and upheld the ConEC decision of 11 October 2010. It found that, on the basis of the findings of the CEC’s own working group, 238 out of 675 signatures submitted by the applicant were invalid and that the remaining 437 valid signatures were below the minimum number required by law.

The applicant was given copies of the CEC decision and the working group opinion on 17 October 2010.

On 19 October 2010 the applicant lodged an appeal against the CEC decision with the Baku Court of Appeal. He reiterated his complaints made before the CEC concerning the ConEC decision and procedures. Moreover, he raised, inter alia, the following complaints:

(a) contrary to the requirements of the electoral law, the CEC had failed to notify him of its meetings and to ensure his presence during the examination of the signature sheets and the examination of his complaint;

(b) the CEC had ignored the written statements by over 400 voters confirming the authenticity of their signatures and had failed to take them into account; and

(c) the CEC had failed to provide any reasoning and had not addressed any of the applicant’s arguments in its decision.

By a judgment of 22 October 2010 the Baku Court of Appeal dismissed the applicant’s appeal. The court dismissed the applicant’s arguments as irrelevant or unsubstantiated, and found that there were no grounds for quashing the CEC’s decision.

On 25 October 2010 the applicant lodged a further appeal with the Supreme Court, reiterating his previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the case and had delivered an unreasoned judgment.

On 28 October 2010 the Supreme Court dismissed the applicant’s appeal as unsubstantiated, without examining his arguments in detail and finding no grounds for doubting the findings of the electoral commissions and the Court of Appeal.

In addition to the applicant in the present case, at the material time the applicant’s representative Mr Intigam Aliyev was representing twentyseven other applicants in cases concerning the 2010 parliamentary elections and a number of applicants in other cases before the Court. Mr Aliyev has also lodged an application on his own behalf in a case relating to the 2010 elections (application no. 66684/12).

In August 2014 the prosecution authorities launched an investigation into the activities of a number of NGOs, including the Legal Education Society, an NGO headed by Mr Aliyev.

On 7 August 2014 the Nasimi District Court issued a search warrant authorising the search of Mr Aliyev’s office in the Legal Education Society and seizure of “legal, financial, accounting and banking documents, letters and contracts, reports on execution of grant contracts and tax documents relating to [the organisation’s] establishment, structure, functioning, membership registration, receipt of grants and other financial aid, and allocation of granted funds, as well as computers, disks, USB keys and other electronic devices storing relevant information ...”

On 8 August 2014 Mr Intigam Aliyev was arrested after questioning by an investigator of the Prosecutor General’s Office in connection with the criminal proceedings instituted against him under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. On the same day, the Nasimi District Court ordered his detention pending trial. He remains in detention while the criminal proceedings against him are pending. The circumstances relating to Mr Aliyev’s arrest and detention are the subject of a separate application brought by him before the Court (application no. 68762/14).

On 8 and 9 August 2014 the investigation authorities conducted a search of Mr Aliyev’s home and office pursuant to the Nasimi District Court’s search warrant of 7 August 2014, seizing, inter alia, a large number of documents from his office, including all the case files relating to the pending proceedings before the Court, which were in Mr Aliyev’s possession and which concerned over 100 applications in total. The file relating to the present case, which, it appears, included copies of all the documents and correspondence between the Court and the parties, was also seized in its entirety. No adequate inventory of the seized document files relating to the Court proceedings was made in the search and seizure records of 8 and 9 August 2014.

On an unspecified date Mr Aliyev lodged a complaint with the Nasimi District Court, claiming that the search had been unlawful. He complained that the investigator had failed to register each seized document as required by the relevant law and had taken the documents without making an inventory. He further complained about the seizure of the documents and files relating to the ongoing court proceedings before the Court and the domestic courts.

On 12 September 2014 the Nasimi District Court dismissed Mr Aliyev’s claim. It held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic court, it found that they could not be returned to the applicant at this stage of the proceedings. Following an appeal, on 23 September 2014 the Baku Court of Appeal upheld the first-instance court’s decision of 12 September 2014.

On 25 October 2014 the investigation authorities returned a number of the case files concerning the applications lodged before the Court, including the file relating to the present case, to Mr Aliyev’s lawyer. The investigator’s relevant decision specified that “since it has been established that among documents seized on 8 and 9 August 2014 there were files concerning applications by a number of individuals and organisations lodged with the European Court of Human Rights, which have no relation to the substance of the criminal proceedings [against Mr Intigam Aliyev], [those files] have been delivered to [Mr Aliyev’s lawyer] Mr Javad Javadov”.


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants were born in 1975, 1987, 1961, 1968, 1973 and 1984, respectively. When introducing the applications, they were detained in prisons in Baracska, Szolnok, Budapest, Sopronkőhida, Pálhalma and Szeged, respectively.

On 31 December 2013 the Hungarian prisons accommodated altogether 18,042 inmates (that is, an overcrowding rate of 144 %), out of which 5,053 people were in pre-trial detention.

Mr Varga was held at Baracska Prison which, he claimed, was severely overcrowded at the time of his detention lasting from 17 January to 3 September 2011. In particular, the cell in which he was detained measured 30 square metres and accommodated seventeen prisoners (that is, 1.76 square metres gross living space per inmate). The quality and quantity of the food provided were poor, as a result of which he claimed to have lost 20 kilograms.

From 4 July 2011 he was kept in solitary confinement for eleven days as a disciplinary measure. He submitted that he was kept in a cell of some eight square metres and in poor sanitary conditions, without adequate running water. This led to problems of hygiene and a skin infection, for which he did not receive adequate treatment. Throughout this confinement he had outdoor stays of only 30 minutes a day.

Mr Lakatos was held from 20 January 2011 until an unspecified date in the spring of 2012 at Hajdú-Bihar County Prison in a cell that measured nine square metres and accommodated three inmates including him (that is, three square metres gross living space per inmate). As of spring 2012, he was transferred to Jász-Nagykun-Szolnok County Prison where he has been held in a cell measuring nine square metres and housing four inmates including him (that is, 2.25 square metres gross living space per inmate). He claimed that at the latter facility there was no ventilation and the toilet was only separated from the living area by a curtain, offering insufficient privacy.

Mr Tóth was placed in pre-trial detention on 7 April 2010. On 10 April 2010 he was transferred to Hajdú-Bihar County Prison where he was held until 18 January 2012 in a cell of about ten square metres together with three other detainees (that is, 2.5 square metres gross living space per inmate). Only a curtain was used as a partition between the toilet and the living area.

He was subsequently transferred to Budapest Prison (Budapesti Fegyház és Börtön) where the cell in which he was held between 18 January 2012 and 18 January 2014 was about ten square metres in size; he shared it with two other inmates (that is, 3.33 square metres gross living space per inmate).

Since 18 January 2014 he has been detained with seven other detainees in a cell measuring 25 square metres (that is, 3.13 square metres gross living space per inmate). He claimed that the toilet is separated only by a curtain from the living area. The bed linen is changed only once every five or six weeks.

The applicant started to serve his prison sentence in 2009 at Márianosztra Prison. He shared his cell with eight to ten inmates and the surface available was 25.7 square metres (that is, a maximum of 2.86 square metres gross living space per inmate).

On 6 December 2012 he was transferred to Sopronkőhida Prison where his cell measures 6.2 square metres and is occupied by him and another man (that is, 3.1 square metres gross living space per inmate).

On 27 October 2011 Mr Fakó was placed in pre-trial detention at Budapest Correctional Facility (Fővárosi Büntetés-végrehajtási Intézet). On 29 April 2013 he was transferred to Pálhalma Prison, where he shared a cell with thirteen other inmates. Without specifying the size of the cell, he submitted that the gross living space per person varied between 1.5 and 2.2 square metres.

He had a daily one-hour-long outdoor exercise and spent the remainder of his time in the cell. He submitted that in 2013 the summer temperature in the cell rose to 40˚C because of poor ventilation. He asserted that he was allowed to take a shower once a week for no longer than five minutes each time. Furthermore, the cell was infected with bed bugs, lice and cockroaches, but the prison administration did not address this issue.

From 12 December 2006 Mr Kapczár has served his sentence at Szeged Prison. Throughout his detention he has been held in fourteen different cells. The size of those cells was 8, 12 and 24 square metres, respectively. The occupancy rate in the cells measuring 8 square metres was often up to three persons (that is, 2.67 square metres gross living space per inmate). In the cells of 12 square metres the occupancy rate was four persons (that is, 3 square metres gross living space per inmate). In the cells measuring 24 square metres it was often up to ten persons (that is, 2.4 square metres gross living space per inmate).

The applicant claimed that the toilets in those cells had been separated from the living space only some eighteen months ago, and their ventilation remained unresolved. Furthermore, some of the bunk beds had been welded together, so detainees were obliged to sleep right next to each other.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants, who are husband and wife, were born in 1932 and 1926, respectively, and live in Bat-Yam, Israel.

In 1990s the applicants emigrated from the USSR to Israel and obtained Israeli nationality. Before emigrating, they were receiving old-age pensions from the Soviet authorities. Once the applicants left the USSR, the payments were discontinued in accordance with the USSR pension law in force at the material time.

On 4 August 2006 the applicants brought civil proceedings against the competent regional department of the Pension Fund of the Russian Federation (Пенсионный Фонд Российской Федерации) (hereinafter “the Pension Fund”) seeking reinstatement of their right to the pension payments.

On 4 December 2006 the Kirovskiy District Court of Astrakhan found in the applicants’ favour and ordered the Pension Fund to set up monthly pension payments backdated to 15 June 1998.

On 12 January 2007 the Astrakhan Regional Court upheld the judgment on appeal and it became binding and enforceable.

On 10 July 2007 the Pension Fund lodged an application for supervisory review, seeking to have the judgments quashed. The application was addressed to the President of the Supreme Court.

On 27 July 2007 a judge of the Supreme Court requested the case file from the District Court and subsequently suspended enforcement of the judgment of 4 December 2006.

On 4 December 2007 another judge of the Supreme Court sent the case for supervisory review to the Astrakhan Regional Court.

On 22 January 2008 the Astrakhan Regional Court dismissed the supervisory review application and endorsed the judgment of 4 December 2006, as upheld on 12 January 2007.

On 8 April 2008 the Pension Fund lodged another application for supervisory review, again addressed to the President of the Supreme Court.

On 24 June 2008 a judge of the Supreme Court sent the case for supervisory review by the Civil Chamber of the Supreme Court.

On 1 August 2008 the Civil Chamber of Supreme Court quashed the judgment of 4 December 2006, as upheld on 12 January 2007, and rejected the applicants’ claims.


Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country)

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

The applicant was born in 1962 and lives in Moscow.

On 14 May 2012 the Dorogomilovskiy District Court, Moscow (“the District Court”), awarded 45,460.21 Russian roubles to N., to be paid by the applicant. The judgment of 14 May 2012 entered into force on the same day.

On 16 October 2012 the District Court issued a writ of execution.

By a ruling of 14 January 2013 a bailiff with the Dorogomilovskiy bailiffs’ service, Moscow (“the bailiff”), initiated enforcement proceedings. The applicant was invited to voluntarily comply with the judgment debt within three days of the date on which he received a copy of that ruling.

On the same date the bailiff issued a ruling restricting the applicant’s right to leave the country for a period of six months on the grounds that the judgment creditor had asked for such a restriction to be imposed on the applicant. The ruling was based on the 2007 Federal Act on Enforcement Proceedings (sections 6, 14, 30, 64, 67 and 68) and the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures) (section 15(5)).

On 25 February 2013 the bailiffs’ service sent copies of the rulings of 14 January 2013 to the applicant. The applicant only received them on 12 March 2013.

The applicant, not having been aware until 12 March 2013 of the travel restriction imposed on him, decided to visit his one-year-old daughter, who lived in Italy. However, on 2 March 2013, the applicant was stopped by border guards as he was attempting to board a plane.

On 13 March 2013, after having received copies of the rulings of 14 January 2013, the applicant paid the judgment debt.

On 14 March 2013 the applicant complained to the Chief Bailiff of Moscow about the actions of the bailiff. He submitted that the bailiff had sent him copies of the rulings of 14 January 2013 only after the expiry of statutory time-limits. Furthermore, the bailiff had imposed the travel ban on him on the same date as that on which the enforcement proceedings had been initiated. This indicated that the bailiff had not had at his disposal any information as to whether he (the applicant) had been evading voluntary compliance with the writ of execution.

On 21 March 2013 the bailiffs’ service lifted the travel restriction and terminated the enforcement proceedings.

On 4 April 2013 the Deputy Chief Bailiff of Moscow examined the applicant’s complaint of 14 March 2013. He acknowledged that the rulings of 14 January 2013 had been sent to the applicant outside the statutory timelimits and allowed the applicant’s complaint in that part. However, he found, with reference to section 67 (2) of the 2007 Federal Act on Enforcement Proceedings, that the travel ban had been imposed on the applicant in accordance with law.

On 23 May 2013 the applicant challenged in court the bailiff’s ruling of 14 January 2013 imposing a travel ban on him. He submitted that the ruling had not been duly reasoned since he had never evaded the obligations imposed on him by the judgment of 14 May 2012. Furthermore, in breach of statutory requirements, he had not been duly informed of the travel restriction imposed on him since he had only received the bailiff’s ruling on 12 March 2013.

On 12 September 2013 the District Court examined and dismissed the applicant’s complaint. The District Court held, in particular, that the bailiffs had imposed the travel restriction on the applicant under section 30 of the 2007 Federal Act on Enforcement Proceedings, which allows the imposition of such a restriction (upon the request of a judgment creditor) before the expiry of the time-limit set for voluntary payment of the judgment debt.

In his appeal against the judgment of 12 September 2013, the applicant submitted that the District Court, in taking its decision, had not applied section 15 of the 1996 Federal Act on Leaving and Entering the Russian Federation (Procedures), which provided that the right of a Russian citizen to leave the Russian Federation could be temporarily restricted only when it had been established that he or she had evaded obligations imposed on him or her by a court.

On 16 December 2013 the Moscow City Court (“the City Court”) upheld the judgment of 12 September 2013.

On 10 February 2014 the applicant lodged a cassation appeal with the Presidium of the City Court.

On 17 March 2014 a judge of the City Court refused to refer the applicant’s cassation appeal to the cassation court.

On 3 July 2014 the Constitutional Court refused to accept for examination the applicant’s complaint concerning whether section 30(2) and section 67(2) of the 2007 Federal Act on Enforcement Proceedings were compatible with the Constitution (Ruling no. 1561-O).

In particular, the Constitutional Court held that section 67(2) of that Act could not be applied in the course of enforcement proceedings independently from the general provisions on the application of temporary travel restrictions set out in section 67(1) and in the absence of confirmation that the debtor had been notified of the enforcement proceedings instituted in respect of him and of his obligation to voluntarily comply with the writ of execution within the time-limit set by the bailiffs’ service. The bailiffs’ service was entitled to impose travel restrictions only in cases in which the debtor had not complied with the writ of execution within the statutory fiveday period, running from the date on which the debtor received the decision to initiate enforcement proceedings.

Having regard to the above, the Constitutional Court concluded that the closely linked provisions of section 30(2) and section 67(2) of the 2007 Federal Act on Enforcement Proceedings did not provide for the possibility that the bailiffs’ service could grant the judgment creditor’s request for the imposition of a travel ban on the debtor at the same time as it took the decision to initiate enforcement proceedings (that is to say, before the expiry of the deadline set for voluntarily enforcement of the writ of execution) and also before it received confirmation that the debtor had been aware of the enforcement proceedings initiated in his respect and had evaded voluntary compliance with the writ of execution. Therefore, the legal provisions challenged by the applicant could not be regarded as having breached the applicant’s constitutional rights.

Following the Constitutional Court’s decision the applicant lodged a request with the District Court for it to review its judgment of 12 September 2013 under the procedure for re-opening of cases due to new circumstances.

On 8 October 2014 the District Court dismissed the applicant’s request, having found that the provisions referred to by the applicant had not been declared incompatible with the Constitution by the Constitutional Court and that the interpretation by the Constitutional Court of those provisions could not be considered as constituting new circumstances.

On 2 April 2015 the City Court upheld that decision.

On 10 June 2015 a single judge of the City Court declined to refer the applicant’s cassation appeal for consideration by the Court of Cassation.

On 31 August 2015 a single judge of the Supreme Court of the Russian Federation refused to refer the applicant’s cassation appeal for consideration by the Supreme Court.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicants were born in 1968 and 1972 respectively and live in Vilnius.

On 28 May 2003 L.G. sold a plot of forest land measuring 0.4807 hectares to the applicants. The purchase agreement categorised the land as forest.

In February 2005 a registration certificate was issued for the plot of land. It categorised the land as forest and determined special conditions on use of the plot, namely, that restrictions applied to the use of the whole plot and that there were surface water protection zones.

On an unspecified date, the first applicant asked the Molėtai District Court to establish as a legal fact that there used to be some buildings on the 0.4807-hectare plot. On 22 September 2005 the Molėtai District Court established as a legal fact that there used to be some buildings (a cattle shed and a storehouse (galvidė ir klojimas) there. The court noted that the first applicant was the owner of a plot of forest land on which construction of new buildings was prohibited, unless it was a reconstruction of a former residential property. The court found that a former residential property had been situated outside the boundaries of the first applicant’s plot but held that if the requested legal fact was established, he would be able to reconstruct the buildings previously sited there (nustačius prašomą faktą, pareiškėjas įgis teisę atstatyti jo valdomame žemės sklype buvusius statinius). A representative from the Utena District environmental protection department of the Ministry of the Environment (hereinafter “the Utena environmental protection department”) had no objections to the establishment of the legal fact.

In November 2005 the first applicant asked the authorities to issue him with the relevant documents necessary for construction. The Utena environmental protection department stated that the construction of a building had to comply with the Law on Construction; the existing flora had to be preserved and the method of waste collection had to be decided on. The permanent committee on construction of the Molėtai Municipality verified the documents submitted by the first applicant and recommended that he be issued with a building permit.

On 22 November 2005 the Molėtai Municipality issued the first applicant with the documents necessary for construction, in accordance with the domestic regulations, in particular with Government Resolution no. 1608 (see paragraph 49 below). It was indicated that anyone intending to carry out construction work was required to preserve existing flora, and was not allowed to block the shore of the lake or interfere with the existing landscape.

On 5 December 2005 the Molėtai Municipality issued the first applicant with a permit to build a summer house (non-residential building). The permit was valid for ten years.

In 2007 the plan of the building was specified (the facades were modified) and the amendments were verified by the Utena environmental protection department.

In March 2007 the Utena County Administration issued a certificate about the summer house as 97% finished and following that, on 2 April 2007 the house was registered in the Centre of Registers (Registrų centras) as 97% finished.

On 2 May 2011 the Ministry of the Environment received a report via a hotline for allegedly illegal construction work. On 10 May 2011 the authorities estimated the distance between the house and the lake at 27 metres, and between the terrace of the house and the lake at 24.5 metres.

On 5 August 2011 the prosecutor’s office started court proceedings and asked the domestic courts to revoke the recommendation to grant the first applicant building permission; to annul the building permit and oblige the applicants to demolish the building at the expense of the established guilty parties, that is the applicants, the Molėtai Municipality, and the Utena environmental protection department. The prosecutor claimed that the building permit could not have been issued in accordance with the relevant provisions of domestic law (see paragraphs 39, 42, 43 and 49 below).

On 4 June 2012 the Molėtai District Court dismissed the prosecutor’s complaint, holding that the legal facts had been established in September 2005 (see paragraph 8 above). It had not been until 2006 that the Supreme Court had held that the sole fact that the storehouses had been sited on a specific plot of land, without any proof that a residential building had been sited there, did not mean that there had previously been a residential property there (see paragraph 56 below). The District Court further held that in accordance with relevant legislation in force at the time, it was possible to construct new residential buildings in the place of former buildings, as well as to reconstruct existing residential buildings and construct necessary storehouses (see paragraph 49 below). Moreover, it had been established that any construction work in the forest could only be started after having received building permission and in accordance with the relevant plans. That legislation had been repealed after the Constitutional Court had declared that the domestic regulations were in breach of the laws and, by extension, of the Constitution (see paragraph 53 below). The court thus held that the case-law on construction in the forest had been established after the building permit had been issued to the first applicant. The court further held that the applicants had built the building lawfully, there was no evidence as to any negative consequences of the construction for the environment or the public interest. The court also observed that in the applicants’ case it would be unreasonable and unjust to apply the measure established in the Civil Code – to oblige the applicants to demolish the buildings (see paragraph 29 below). Moreover, the court was not convinced that the environment would be restored to its previous state if the buildings were demolished because the demolition would also cause some environmental damage.

The prosecutor appealed. On 4 December 2012 the Panevėžys Regional Court allowed the prosecutor’s appeal. The court held that the Molėtai District Court had established as a legal fact that there used to be a cattle shed and a storehouse on the applicants’ plot of land (see paragraph 8 above). A summer house could not be constructed as it did not fall within the category of buildings that could be constructed in the forest. Even the Molėtai District Court had emphasised that the construction of new buildings was prohibited on that plot. The building permit had obviously been issued to the first applicant unlawfully and, in the appellate court’s view, the latter had asked the court to establish a legal fact for the sole purpose of constructing a house. The court also held that neither the Law on Forests nor the Law on Land provided for any exceptions, so the right to construct buildings on the plot of forest land had never existed. The court thus ordered the first applicant to demolish the buildings at the expense of the applicants, the Molėtai Municipality and the Utena environmental protection department. The Court did not explain how the costs of demolition had to be divided between the three parties.

The applicants, the Molėtai Municipality and the Utena environmental protection department lodged an appeal on points of law. The applicants claimed that the appellate court had breached the principle of lex retro non agit by assessing the documents, issued in 2005, in view of the ruling of the Constitutional Court of 2006. They also claimed that the appellate court had breached their legitimate expectations to execute their proprietary interests in accordance with the domestic regulation in force at the time.

On 27 September 2013 the Supreme Court held that relevant laws provided that the only buildings that could be constructed in the forest were timber storehouses and other buildings for forestry equipment. There were no provisions allowing construction of residential or commercial buildings in the forest. It was in certain cases possible to change the purpose of the land, but as the land in question was situated in a surface water protection zone, any such change was prohibited. The court held that although the applicants referred to the Regulation of Construction on Private Land (see paragraph 49 below, hereinafter the “Regulation”), none of the provisions of that Regulation could be interpreted as allowing construction of the buildings in question. There was no argument that the buildings in question had been constructed where farm buildings had previously been sited, thus the provision of the Regulation allowing construction where residential buildings had previously been sited did not allow the applicants to construct a summer house. The court thus held that the construction had been illegal. As regards the removal of the consequences of illegal construction, the court held that it was crucial to assess the consequences of the illegal construction for the environment and the public interest, the consequences of the demolition of the buildings, the possibility of restoring the environment to its state before the illegal construction, and whether the persons who had acquired property rights had acted in good faith. In cases where the construction was in breach of the territorial planning documents and/or the imperative requirements of environmental protection, heritage protection and protection of protected areas, a decision to legalise the illegal construction could not be taken. The court thus had to assess whether the construction in question should have been carried out at the relevant time. It held that legalisation of the buildings in question was impossible and that demolition had to take place (see paragraphs 46 and 47 below). As to the applicants’ argument that the appellate court had breached the principle of legitimate expectations, the court held that the construction in question had been prohibited by the relevant domestic legislation in force at the time. Even if the applicants had misinterpreted the provisions of the Regulation, the Constitutional Court had found the Regulation to be inconsistent with the law, and, by extension, with the Constitution on 14 March 2006, only three months after the building permit had been issued to the first applicant. The applicants should therefore have been able to understand the consequences of constructing illegally and to avoid them. Although the authorities were partly responsible for the illegal construction, that fact per se did not mean that all illegal construction had to be legalised in order to protect the legitimate expectations and proprietary interests of the owners. The legal regulation established the responsibility of the authorities for the unlawful issue of the construction permit. As a result, the court upheld the decision of the Panevėžys Regional Court (see paragraph 17 above).

On an unspecified date the bailiff asked the Molėtai District Court to explain the order to enforce the Panevėžys Regional Court’s decision. On 12 February 2014 the Molėtai District Court dismissed the bailiff’s request because she had failed to provide specific details as to what required clarification.

It appears that the applicants asked the bailiff to suspend the execution of the judgment and that their request was refused.

On an unspecified date the applicants applied to the Utena District Court to overrule the bailiff’s refusal to suspend the execution of the judgment and to suspend it until the case had been examined at the European Court of Human Rights. On 23 December 2015 the Utena District Court held that domestic law did not oblige the bailiff to suspend the execution of judgments if the applicants had lodged an application with the European Court of Human Rights. However, the Code of Civil Procedure provided that there would be grounds for reopening the proceedings if the European Court of Human Rights found that a domestic court decision had breached an applicant’s rights under the Convention or one of its Protocols (see paragraph 32 below). The court held that if the national court’s order to demolish the building was executed, the possibility of reopening the proceedings after a positive outcome for the applicants in the European Court of Human Rights would become complicated. On the other hand, if the European Court of Human Rights adopted a different decision, the demolition of the buildings would still be possible. The court observed that the applicants’ building did not infringe the rights of third persons as it was sited on a plot of forest land that belonged to the applicants. As a result, the Utena District Court suspended the execution of the judgment pending a decision by the European Court of Human Rights.

The State Territorial Planning and Construction Inspectorate lodged a separate complaint, but on 15 March 2016 the Panevėžys Regional Court upheld the first-instance decision.


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

The applicant, Mr Ghennadii Vartic, is a Moldovan national, who was born in 1973 and lives in Jilava.

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

In 1999 the applicant was sentenced to twenty-five years in prison. He served his sentence in various Romanian prisons. From 30 April to 12 May 1998 and from 9 February 1999 to 21 February 2009 he was detained in Rahova Prison.

While in prison the applicant was diagnosed with a behavioural disorder and was regularly prescribed sedatives, neuroleptics and antidepressants.

On 24 April 2002 the applicant fell asleep during the evening roll-call because of the medication he was taking (Diazepam). As a result, he was taken to the doctor’s office, where the nurse ordered him to swallow salt water. He refused to do so and the intervention squad was called in. Four men wearing balaclavas beat him up and forced him to drink six litres of salt water.

He was then taken to a room for dangerous detainees where his hands were handcuffed and his legs chained to the bed. He could not move, and as he was vomiting, he could not breathe.

He remained in this room all night and was seen in the morning of 25 April 2002 by a doctor, who ordered prison staff to remove his handcuffs.

During the same morning, the applicant noticed blood on his left ear and when he lit a cigarette he saw smoke coming out of his ear. He could not hear with that ear. He sought medical help and was given an appointment with Dr C.P., an ear, nose and throat specialist. He was then treated for a month but he did not fully recover hearing in the left ear.

On 24 April 2002 the applicant fell asleep during the evening rollcall because he had taken an overdose of antidepressants in an attempted suicide. It was not his first suicide attempt.

Prison staff noted that the applicant was not responsive, informed their superiors and ordered that the applicant be taken to the doctor’s office. The applicant was not able to move by himself and was helped by two cellmates.

The nurse on duty ordered the applicant to drink salt water to make him vomit up the pills he had taken. The applicant refused to drink the water and the intervention squad moved him to the detainees’ arrival room (punct primire deţinuţi, “the PPD”) for better supervision.

In the morning of 25 April 2002 the applicant was seen by Dr S.M., a psychiatrist, and was then taken back to his cell.

According to an information note of 23 October 2012, the director of the National Prison Service acknowledged the following entries concerning the applicant in the Rahova Prison medical register: on 24 April 2002 the applicant had received treatment with a saline solution and medical charcoal because of an overdose of tablets, and was kept under supervision overnight. On 25 April 2002 Dr S.M., a psychiatrist, noted that the applicant had blood on his left ear. On 26 April 2002 the applicant was diagnosed with a perforated eardrum. On the same day he received medication and local treatment on his ear, which was repeated on 27, 29 and 30 April 2002.

In the same information note the cause of the applicant’s perforated eardrum was indicated as unknown, and the possibility that he had selfharmed by inserting an object in his ear was suggested.

On 26 January 2007 the applicant lodged a complaint with the judge responsible for the execution of sentences in Rahova Prison. He complained that he had been beaten up by the intervention squad in Rahova Prison, and that he had been handcuffed and forced to drink salt water. On 20 March 2007, the judge referred the complaint to the Bucharest District Court for investigation. The judge’s decision was upheld by the Bucharest District Court on 6 August 2007.

On 8 February and 13 March 2007 the applicant lodged similar complaints with the Prosecutor’s Office attached to the Bucharest County Court (“the prosecutor’s office”). He also alleged that due to that incident he had lost the hearing in his left ear as well as sight and smell.

On 31 March 2008 the prosecutor’s office decided not to prosecute, on the ground that the matters alleged did not constitute criminal offences.

On the basis of disciplinary reports on the applicant, his prison medical file, and statements by his cellmates, the prosecutor found that the applicant was dependent on Diazepam, a medication prescribed for his psychiatric condition. With regard to the 24 April 2002 incident, the prosecutor held that he had been somnolent because of a pill overdose, had not responded to the evening roll-call and had been taken to the medical wing, where:

“... the nurse on duty requested the applicant to drink salt water to make him vomit and to facilitate the elimination of the pills. As the applicant refused, the intervention squad was called to the medical wing and they took the applicant to the PPD room [see paragraph 11 above] where they immobilised and handcuffed him and made him swallow salt water to eliminate the harmful substance.”

The prosecutor also relied on an expert report issued by the National Institute for Forensic Science (“INML”) on 29 October 2007. The report found that drinking a large quantity of salt water could not cause eardrum perforation or sensory loss. The report also established that in cases of intoxication with tranquillisers and sedatives evacuation of the gastric matter by water ingestion and induced vomiting was necessary if the patient was conscious. The prosecutor also held that on 6 December 2007 the applicant refused to be examined by forensic experts.

The prosecutor concluded that the nurse on duty had acted in accordance with the usual medical procedures in cases of medicine intoxication. With regard to the members of the intervention squad, the prosecutor found that because of the applicant’s refusal to be examined there was no clear evidence of a causal link between the 24 April 2002 incident and his sensory loss. The prosecutor held in particular that the members of the intervention squad had used force against the applicant and had forced him to drink salt water, but that their actions had been authorised by Law no. 275/2006, since they had been seeking to save his life and preserve his physical integrity.

On 27 June 2008 the general prosecutor confirmed the decision not to prosecute.

On 25 July 2008 the applicant lodged a complaint against this decision with the Bucharest County Court, arguing that the investigation had been unprofessional and partial. He claimed that medical procedures had not been followed during the 24 April 2002 incident, since he had not been intubated by a doctor but rather forced to drink salt water by masked members of the intervention squad. He also claimed that his handcuffing during the incident lacked a legal basis, since Law no. 275/2006 was not in force at the time of the events.

He described the 24 April 2002 incident as follows:

“After I was handcuffed, two of the four masked men stood beside me holding on to my hands; the third pressed the bottom of my ears with his fingers so that I opened my mouth; the fourth bent my head back poured the contents of a two-litre bottle of water into my mouth, and held my mouth and nose closed with his hands ... this was repeated several times, for an hour and a half or two hours ...”

On 20 October 2008 the Bucharest County Court dismissed the applicant’s complaint, on the grounds that the authorities had given plausible explanations of his injuries and in particular that it had been necessary to immobilise him with handcuffs for his own protection. Relying on the Herczegfalvy v. Austria case (24 September 1992, Series A no. 244), the County Court found that such a measure was authorised by the case-law of the European Court of Human Rights, which was directly applicable.

The applicant appealed. On 9 December 2008 the Bucharest Court of Appeal allowed his appeal and quashed the prosecutor’’s office for further investigation.

The Court of Appeal also held that the applicant had not refused to undergo a medical examination, and criticised the INML report of 2007 (see paragraph 19 above) on the ground that it had ignored the applicant’s allegations that his eardrum had been perforated because he had been beaten up by members of the intervention squad.

On 24 March 2010 the prosecutor’s office referred the case to the Bucharest General Police Headquarters, Homicide Department (“the police”) and indicated that the applicant’s cellmates, the members of the intervention squad involved and the medical staff concerned should be identified and statements taken from them, and that the applicant should undergo a medical examination.

On 3 October 2010, the prosecutor’s office asked the INML to issue an expert report in the case. In particular, they asked the INML to determine whether ingestion of a large quantity of water could lead to loss of hearing, sight and smell, and what the standard procedures and treatments were in cases of ingestion of a large quantity of pills.

In May and July 2011 the police took a statement from the nurse in Rahova Prison, Dr S.M., members of the intervention squad, and other prison staff who had been on duty at the time of the events. The nurse acknowledged that the applicant had refused to drink the saline solution and denied that he had been forced to do so. Dr S.M. declared that she had noticed blood on the applicant’s left ear on 25 April 2002 but that he had not complained at that time that he had been attacked. The members of the intervention squad and the prison staff denied that the applicant had been subjected to ill-treatment.

On 28 September 2011 the applicant was examined by experts from the INML.

On 25 June 2012 INML issued their expert report based on their first report of October 2007 (see paragraph 19 above), the applicant’s medical file, various other medical documents and the applicant’s examination. They found that the applicant’s loss of hearing and smell had not been documented by objective medical tests. With regard to the perforation of the eardrum, they dismissed that possibility on the ground that the applicant had not remained scarred. They also held that ingestion of warm salt water was a traditional treatment that was recommended during the first hours following ingestion of toxic substances.

On 10 July 2012 the police referred the case back to the prosecutor’s office and advised against prosecution. The police assessed the circumstances as the same as those in the prosecutor’s decision of 31 March 2008 (see paragraph 17 above).

Relying further on Law no. 275/2006, the police found that the intervention squad had handcuffed the applicant and forced him to drink salt water, but had done so in order to save his life. The police also found that the applicant had abused his petition rights, that he had made numerous complaints with the purpose of “having fun and keeping busy” (“recreere şi ocupare a timpului liber”) and “spending time elsewhere ... than in prison” (“să-şi petreacă timpul şi în alte locuri ... decât în interiorul penitenciarului”). The police concluded that he had shown a provocative attitude, that he had delayed the investigation by his actions, and that his intention was to create arguments for a possible case against the Romanian State before the European Court of Human Rights.

During the domestic proceedings, the applicant applied to various authorities seeking a speedy resolution of his case. In letters addressed to the prosecutor’s office on 15 May and 18 June 2009 the applicant particularly drew the prosecutor’s attention to the fact that due to its excessive duration the prosecution could become statute-barred.

The domestic proceedings are still pending.

The relevant provisions of the Criminal Code concerning illtreatment by agents of the State are described in Velcea v. Romania ((dec.), no. 60957/00, 23 June 2005).

The Criminal Code sets out in Article 122 the time-limits by which criminal responsibility for various offences becomes statute-barred. These time-limits vary: eight years for torture and similar offences, and five years for offences such as abusive conduct, negligence at work or ill-treatment.

The Criminal Procedures Code does not set up a time limit for lodging a criminal complaint (plângere penală) before the domestic authorities (Article 222).

The findings of the Committee for the Prevention of Torture (“the CPT”) with regard to the Romanian prison authorities’ practice of employing special intervention units are described in Cucu v. Romania (no. 22362/06, § 65, 13 November 2012). The CPT particularly found during its visits to several Romanian prisons in June 2006 that special intervention units wearing masks were dispatched to surveillance departments in order to control violent and/or unmanageable and rebellious detainees. The CPT recommended that the Romanian authorities remind the members of the special intervention units that all forms of ill-treatment against detainees are unacceptable and are to be severely sanctioned, and that the use of force to control violent and/or recalcitrant prisoners must be limited to occasions when it is strictly necessary.


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

The applicant was born in 1959 and lives in Smolyan.

In two final judgments of 28 February 2005 and 8 May 2006 the Supreme Court of Cassation awarded the applicant pecuniary damages in respect of breach of contract for construction works which she had carried out. The awarded damages comprised BGN 52,784 for the principal amount, plus BGN 17,685 in default interest and BGN 5,433 in costs and expenses, or a total amount of BGN 75,902.93, the equivalent to 38,000 euros (EUR). The damages were awarded to the applicant against the National Centre for Recreation, Rehabilitation and Sport – Ministry of Education and Science (“the Centre”, a State body subsidised by the Ministry of Education and Science and exercising certain functions delegated by the Ministry).

By an order of 25 May 2005 the Minister of Education closed down the Centre and ordered that its remaining property be managed by the Ministry of Education. The Ministry then established a State-owned jointstock company with part of the Centre’s property, including the real estate in which the applicant had carried out the construction works.

On 13 May 2005 and 15 March 2007 the applicant was issued with two writs of enforcement for the amounts awarded in the final judgments of 2005 and 2006 (see paragraph 5 above) and on 6 February 2008 she presented the writs to the Ministry of Education asking it to pay.

The Ministry replied in writing that it was not the successor to the Centre and did not owe payment to the applicant. In October 2009 the applicant reiterated her request but received a similar reply by the Ministry. The Ministry also pointed out that payment could not be sought from the State-owned joint-stock company either as it had a legal personality separate from that of the Ministry. By a letter of 23 September 2010, the Minister provided a similar explanation to the applicant.

The applicant brought judicial review proceedings challenging the Minister’s refusal. In a final decision of 8 April 2011 the Supreme Administrative Court rejected the appeal as inadmissible.

As of 19 March 2015, the date of the applicant’s last communication to the Court, no change in the above circumstances had been reported.


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

The President of the Chamber acceded to the applicants’ request not to have their names disclosed (Rule 47 § 3 of the Rules of Court), as well as to a request by the Government to grant confidentiality to the case (Rule 33 § 1 of the Rules of Court). The applicants were represented before the Court by Mr M. Cornell of Holmes and Hills Solicitors, a lawyer practising in Braintree, the United Kingdom.

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

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

At 6.55 a.m. on 24 November 1991 a dead body was found on the outskirts of city X. The police carried out an on-site inspection the same day. The crime scene was photographed, and biological samples and other evidence were collected from the dead body. The body was identified as A, the applicants’ respective husband and father. A tooth was found on the body. An autopsy was carried out and it was established that A had been struck several times on the back of his head with a hard object, and this had caused his death. On the same day the police lodged a criminal complaint with the X State Attorney’s Office in respect of the killing of A by unknown perpetrators.

The police interviewed the person who had found A’s body on 24 November 1991, but he knew nothing about the circumstances of the killing.

The investigation into A’s killing was opened on 24 November 1991 in the Zagreb County Court.

On 25 November 1991 the first applicant, A’s wife, was called to identify A’s body. On the same day the police interviewed B, who said that at 6.05 p.m. on 23 November he had seen a van going to the area where A’s body was subsequently discovered. The van had returned after about fifteen minutes and stopped. The driver had said that they were on their way to a wedding in restaurant Y. B had seen that the driver was wearing a camouflage uniform. There were three other men in the van. B. gave a detailed description of the van.

On the same day the police interviewed the first applicant, who told them that A had frequented restaurant Y on a daily basis. The police also interviewed the second applicant and her husband, some of A’s neighbours and the manager of restaurant Y, who confirmed that there had been a wedding reception in the restaurant on 23 November 1991 and that a number of Croatian soldiers had been present.

On 27 November 1991 an expert established that the tooth found on A’s body belonged to a younger person.

On 6 December 1991 the police interviewed C, a Croatian soldier who had been present at the wedding reception in Y on 23 November 1991. He said that he had spotted A next to the van in which he and some of his friends had come to the wedding, and had seen that A was noting down the licence plate numbers of the van and of another vehicle parked near-by. C had called his colleagues, D, E and F, and they had forced A into the van and driven to the outskirts of X, where they stopped under a bridge. They had taken A out of the van and D had told him to climb onto a river bank; A had refused. A commotion had ensued, in the course of which A had hit C in the mouth and kicked his tooth out. D, E and F had then continued to strike A. E had taken a metal implement from the van. C took it from him and struck A, killing him. C had pushed A’s body into the river and had then thrown the metal implement into the river.

On the same day the police interviewed D, E and F. D and E confirmed the events as described by C, and F said that all four of them had stayed at the wedding reception in restaurant Y throughout the entire night of 23 to 24 November.

On 7 December 1991 the X County State Attorney’s Office asked for an investigation to be opened in the X County Court.

On the same day an investigating judge of the X County Court heard evidence from C, D, E and F. C, accompanied by his defence lawyer, denied any involvement in the killing of A. D and E repeated the statements they had given to the police. F, accompanied by his defence lawyer, remained silent. The investigating judge opened an investigation in respect of C, D, E and F in connection with the killing of A.

During the investigation an opinion was commissioned from a dental expert. He established that the tooth found on A’s body did not belong to any of the suspects. In their further statements during the investigation C, D and E denied the charges against them while F remained silent.

On 17 January 1992 C, D, E and F, were indicted on charges of murdering A. The proceedings were conducted before the X Military Court.

On 25 September 1992 the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) was enacted.

On 24 November 1992, pursuant to the General Amnesty Act, the X Military Court terminated the proceedings.

On 1 July 1993 the State Attorney lodged a request for the protection of legality (zahtjev za zaštitu zakonitosti) with the Supreme Court, asking it to establish that the termination of proceedings was contrary to law. On 8 September 1993 the Supreme Court established that the request for the protection of legality was well-founded. However, this finding had no effect on the decision to grant the accused amnesty (see paragraph 28 below, Article 422 of the Code of Criminal Procedure).

On 5 October 1995 the X Military Court informed the applicants’ counsel about the results of the criminal proceedings, including the Supreme Court’s decision.

On 28 August 2003 the first applicant lodged a request with the W State Attorney’s Office for an investigation in respect of the same four individuals, alleging that they had committed a war crime against the civilian population. On 23 February 2005 the W State Attorney held a meeting with the first applicant and informed her orally about the results of the criminal proceedings that had ended in 1992 and told her that there was no possibility of instituting fresh criminal proceeding against the suspects. An official note was drafted about that meeting, but no formal decision was taken upon the first applicant’s request.

The first applicants’ request was forwarded to the X State Attorney’s Office, which dismissed it on 16 April 2010 on the basis that proceedings in respect of the same facts had already been terminated. The applicant was instructed that she could take over the proceedings and lodge within eight days a request for an investigation with a X County Court investigating judge.

The first applicant complied with the said instruction and on 27 April 2010 submitted the request for an investigation to the X County Court. It was dismissed on 15 December 2010 on the same ground as the one provided by the State Attorney’s Office, i.e. that it concerned the same facts as the indictment from 1992 in respect of which the proceedings had been terminated and that a fresh trial would be in violation of the ne bis in idem principle.

The first applicant lodged an appeal with the Supreme Court, which dismissed it on 4 October 2012. The Supreme Court endorsed the views of the County Court.

The first and second applicants then lodged a constitutional complaint, which was dismissed on 28 February 2013 on the grounds that the Constitutional Court did not have jurisdiction to examine the complaint.

On 4 September 2014 the State Attorney’s Office held a meeting in connection with the Court’s judgment in the Marguš case (see Marguš v. Croatia [GC], no. 4455/10, ECHR 2014 (extracts)), in which the Court held that the ne bis in idem principle did not apply to amnesties for war crimes. Inter alia on this basis the State Attorney’s Office decided to re-open the investigation into the killing of the applicants’ husband and father.

On 23 September 2014 the State Attorney’s Office retrieved the case-file concerning the investigation into A’s killing from its Archives. The tooth found on A’s dead body was sent for DNA tests. It was established that all other evidence and biological samples collected during the on-site inspection had been destroyed.

Between 23 and 29 September 2014 the State Attorney’s Office interviewed F and several witnesses. The investigation is still pending.

The relevant part of the Croatian Constitution (Ustav Republike Hrvatske, Official Gazette nos. 41/2001 and 55/2001) reads as follows:

(2) No one shall be liable to be tried or punished again in criminal proceedings for an offence of which he has already been finally acquitted or convicted in accordance with the law.

Only the law may, in accordance with the Constitution or an international agreement, prescribe the situations in which proceedings may be reopened under paragraph (2) of this Article and the grounds for reopening.”

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku – Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 62/2003, 178/2004 and 115/2006) provide as follows:

“(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ...

(2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor.

(3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person.

(4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.”

Articles 47 to 61 regulate the rights and duties of a private prosecutor and of an injured party acting as a subsidiary prosecutor. The Criminal Code distinguishes between these two roles. A private prosecutor (privatni tužitelj) is the injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor (oštećeni kao tužitelj) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities for whatever reason have decided not to prosecute.

Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of the party’s right to take over the proceedings, as well as to instruct that party on the steps to be taken.

“Criminal proceedings concluded by a final ruling or a final judgment may be reopened at the request of an authorised person only in the circumstances and under the conditions set out in this Code.”

“(1) Criminal proceedings concluded by a final judgment dismissing the charges may exceptionally be reopened to the detriment of the accused:

(5) Where it has been established that amnesty, pardon, statutory limitation or other circumstances excluding criminal prosecution are not applicable to the criminal offence referred to in the judgment dismissing the charges.

“(1) The court competent to decide upon a request for the reopening of the proceedings shall be the court which adjudicated the case at first instance ...

(2) The request for reopening shall contain the statutory basis for reopening and evidence in support of the request...

“(1) The State Attorney may lodge a request for the protection of legality against final judicial decisions, and court proceedings preceding such decisions, in which a law has been violated.

(2) The State Attorney shall lodge a request for the protection of legality against a judicial decision adopted in proceedings in which fundamental human rights and freedoms guaranteed by the Constitution, statute or international law have been violated.

“(1) The Supreme Court of the Republic of Croatia shall determine requests for the protection of legality.

“(1) When determining a request for the protection of legality the [Supreme] Court shall assess only those violations of the law relied on by the State Attorney.

“(2) Where a request for the protection of legality has been lodged to the detriment of the accused and the [Supreme] Court establishes that it is well founded, it shall merely establish that there has been a violation of the law, without altering a final decision.”

The relevant part of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia of 25 September 1992 (Official Gazette no. 58/1992, Zakon o oprostu od krivičnog progona i postupka za krivična djela počinjena u oružanim sukobima i u ratu protiv Republike Hrvatske) reads as follows:

“Criminal prosecution of perpetrators of criminal offences [committed] during the armed conflicts, the war against the Republic of Croatia or in connection with these conflicts or war, committed between 17 August 1990 and the day when this Act comes into force, shall be discontinued. In respect of these offences no criminal prosecution or criminal proceedings shall be instituted. Where criminal proceedings have been instituted, a court shall terminate them of its own motion. Where a person concerned by the amnesty ... has been detained, he or she shall be released.”

“No amnesty under section 1 of this Act shall be granted to perpetrators of the criminal offences in respect of which the Republic of Croatia is obliged to prosecute under international law.”

“A state attorney may lodge an appeal within twenty-four hours from the service of a decision under section 1 ... of this Act, where she or he considers that the decision contravenes section 2 of this Act.”

The relevant part of the amendments to the above Act of 6 June 1995 reads as follows:

“In section 1, paragraph 1 of the Act on Amnesty from Criminal Prosecution and Proceedings in Respect of Criminal Offences Committed during the Armed Conflicts and the War against the Republic of Croatia (Official Gazette no. 58/92) the words ‘the day when this Act comes into force’ are to be replaced by the words ‘10 May 1995’.”

The relevant part of the General Amnesty Act of 24 September 1996 (Official Gazette no. 80/1996, Zakon o općem oprostu) reads as follows:

“This Act grants general amnesty from criminal prosecution and proceedings to the perpetrators of criminal offences committed during the aggression, armed rebellion or armed conflicts and in connection with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.

No amnesty shall apply to the execution of final judgments in respect of perpetrators of the criminal offences under paragraph 1 of this section.

Amnesty from criminal prosecution and proceedings shall apply to offences committed between 17 August 1990 and 23 August 1996.”

“No criminal prosecution or criminal proceedings shall be instituted against the perpetrators of the criminal offences under section 1 of this Act.

Where a criminal prosecution has already commenced it shall be discontinued and where criminal proceedings have been instituted a court shall issue a decision terminating the proceedings of its own motion.

Where a person granted amnesty under paragraph 1 of this section has been detained, he or she shall be released.”

“No amnesty under section 1 of this Act shall be granted to perpetrators of the gravest breaches of humanitarian law, which have the character of war crimes, namely, the criminal offence of genocide under Article 119 of the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996); war crimes against the civilian population under Article 120; war crimes against the wounded and sick under Article 121; war crimes against prisoners of war under Article 122; organising groups [with the purpose of committing] or aiding and abetting genocide and war crimes under Article 123; unlawful killing and wounding of the enemy under Article 124; unlawful taking of possessions from the dead or wounded on the battleground under Article 125; use of unlawful means of combat under Article 126; offences against negotiators under Article 127; cruel treatment of the wounded, sick and prisoners of war under Article 128; unjustified delay in repatriation of prisoners of war under Article 129; destruction of cultural and historical heritage under Article 130; inciting war of aggression under Article 131; abuse of international symbols under Article 132; racial and other discrimination under Article 133; establishing slavery and transferring slaves under Article 134; international terrorism under Article 135; putting at risk persons under international protection under Article 136; taking hostages under Article 137; and the criminal offence of terrorism under the provisions of international law.

No amnesty shall be granted to perpetrators of other criminal offences under the Basic Criminal Code of the Republic of Croatia (Official Gazette no. 31/1993, consolidated text, nos. 35/1993, 108/1995, 16/1996 and 28/1996) and the Criminal Code of the Republic of Croatia (Official Gazette no. 32/1993, consolidated text, nos. 38/1993, 28/1996 and 30/1996) which were not committed during the aggression, armed rebellion or armed conflicts and are not connected with the aggression, armed rebellion or armed conflicts in the Republic of Croatia.

“A state attorney may lodge an appeal against a court decision under section 2 of this Act where a court has granted amnesty in favour of the perpetrators of criminal offences in respect of which this Act grants amnesty within the legal classification of the criminal offence by a state attorney.”


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Article 6-3-c - Defence through legal assistance) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1972 and is currently serving a sentence in prison no. 100.

On 1 April 2000 criminal proceedings were instituted in Donetsk in connection with a robbery committed in Dzerzhinsk.

On 2 June 2000 criminal proceedings were instituted in Kharkiv in connection with a robbery committed on the Kharkiv-Dnipropetrovsk-Simferopol road.

On 9 August 2001 criminal proceedings were instituted in Yevpatoriya in connection with a murder and attempted murder committed in the course of an armed robbery (“the murder proceedings”).

On 30 October 2001 the Chervonodzerzhynskiy District Court (“the District Court”) granted the prosecutor’s request to put the applicant, a former police officer, on remand as a suspect in the criminal proceedings concerning the robbery on the Kharkiv-Dnipropetrovsk-Simferopol road. The District Court held that, as the applicant was suspected of having committed a serious crime and had absconded during the investigation, his detention was necessary to prevent him from reoffending. The court also noted that the applicant’s personality was to be taken into consideration, without giving any further details. On the same date, the applicant’s name was put on a wanted list.

On 11 November 2001 the applicant was arrested in accordance with the District Court decision of 30 October 2001. He submitted that he had presented himself to the police voluntarily once he had become aware that he was wanted. On the same day, he drafted a “statement of voluntary surrender” (явка з повинною) in which he confessed to committing, as part of a criminal group, a number of armed robberies on the Kharkiv-Dnipropetrovsk-Simferopol road, as well as one in the town of Yevpatoriya. He stated that, in the course of the latter, he had used a firearm against the victim. The applicant also provided more details in writing about the above crimes and his acquaintance with his accomplices and informed the police about two other armed robberies which he and his accomplices had committed in the town of Dzerzhynsk, as well as about other crimes of which he was aware.

On 12 November 2001 the applicant was charged with armed robbery and questioned. Before being questioned he was informed of his procedural rights but signed a waiver of his right to legal assistance. He made similar statements to those given to the police the day before, including about the shooting incident in Yevpatoriya. On the same day, he familiarised himself with the decision of 30 October 2001, against which he was entitled to appeal. He did not appeal against the decision.

On 13 November 2001, in the absence of a lawyer, the applicant was questioned in the context of the robbery proceedings. The Government submitted – and this is not contested by the applicant – that the applicant again waived his right to a lawyer, having once again been informed of his rights. During the questioning, the applicant, apart from giving information on the robberies, reiterated his statements regarding the shooting which had occurred in Yevpatoriya. He was further questioned in that regard.

On 21 November 2001 a lawyer, D., was appointed to represent the applicant. On the same day, in the absence of a lawyer, the applicant was questioned as a suspect in the murder proceedings. He admitted to shooting a victim in the course of the armed robbery but denied that he had done so intentionally.

On 22 November 2001, in the presence of his lawyer, the applicant was charged with murder and attempted murder, and questioned as an accused. He admitted his guilt in respect of the armed robbery but denied the murder charges. A reconstruction of the crime scene was carried out.

On 12 December 2001 the applicant was charged with armed robbery causing grievous bodily harm. He waived his right to a lawyer during questioning.

On 13 December 2001 the applicant was charged with premeditated armed robbery as part of a criminal group. He again waived his right to a lawyer.

On 4 January 2002 the District Court extended the applicant’s pre-trial detention to four months. The applicant did not appeal against this decision.

On 8 February 2002 the criminal proceedings concerning robberies on the Kharkiv-Dnipropetrovsk-Simferopol road were joined with the murder proceedings.

On 7 March 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, and referring to “the applicant’s personality”, albeit without assessing it, the seriousness of the charges against him, and the need for additional time to conduct the necessary investigative measures, extended the applicant’s detention to six months. The decision was not amenable to appeal.

On 12 March 2002 B. was appointed as the applicant’s lawyer.

On 4 April 2002 the criminal proceedings regarding the robberies in Dzerzhynsk were joined with the other proceedings against the applicant.

On 8 April 2002 the Kharkiv Regional Court of Appeal, having heard the investigator and the prosecutor, extended the applicant’s detention to nine months on the same grounds as those in its ruling of 7 March 2002. The decision was not amenable to appeal.

On 10 July 2002 L. replaced B. as the applicant’s lawyer. On the same day, the applicant was charged with a number of crimes, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He pleaded not guilty as charged and refused to give further testimonies.

On 18 November 2002 amended charges were brought against the applicant and he was questioned again.

On 28 December 2002 the applicant was granted access to the case file. According to the Government, no investigative measures were conducted that day.

After the investigation had been completed the case was referred to the Donetsk Regional Court of Appeal (“the Court of Appeal”), acting as a first-instance court, for trial. The decision to do so was not amenable to appeal.

On 12 June 2003 the applicant requested the Court of Appeal to change his preventive measure to a non-custodial one.

On 17 December 2003 the Court of Appeal remitted the case for additional investigation, holding that the applicant’s rights of defence had been breached. It found, inter alia, that the applicant had officially been charged with offences other than those considered by the trial court. It further established that on 10 July, 18 November and 28 December 2002 investigative measures had been carried out in the absence of the applicant’s lawyer, contrary to the requirements of domestic law. The court also decided, without giving reasons or setting a time-limit, that the applicant would remain in detention. The applicant appealed in cassation against that decision and requested, inter alia, that the preventive measure, namely the detention ordered be lifted.

On 29 April 2004 the Supreme Court heard the applicant’s appeal in the presence of the prosecutor. It upheld the decision of the Court of Appeal of 17 December 2003 and stated, without giving any reasons, that there were no grounds for changing or discontinuing the preventive measure imposed on the applicant.

On 2 August 2004 V. was appointed as the applicant’s lawyer.

On 6 August 2004, in the presence of his lawyer, the applicant was charged with a number of criminal offences, including banditry, several counts of armed robbery, premeditated murder and attempted murder, and questioned. He admitted to his acquaintance with the co-accused, but pleaded not guilty on all charges.

On 20 August 2004, in the presence of his lawyer, amended charges were brought against the applicant. The latter refused to sign or receive copies of the relevant papers as he disagreed with the charges. During further questioning he pleaded not guilty and refused to give any testimony.

On 27 August 2004 the applicant and his lawyer were granted access to the case file, and on 3 September 2004 the case was referred for trial.

On an unspecified date, the applicant lodged a request for release with the Court of Appeal.

On 6 October 2005 the Court of Appeal, having acquitted the applicant on four of the eight charges for lack of proof, found him guilty of banditry, several counts of armed robbery, intentional murder and attempted murder. It sentenced him to life imprisonment with confiscation of all his property. The court based its findings to a large extent on the testimonies of the applicant and his co-defendants given during the pre-trial investigation, having found them to be corroborated by a number of other pieces of evidence. In the part of the judgment which concerns the murder charges, the court referred, in particular, to the “testimonies given by the applicant as a suspect and an accused, including in the presence of a lawyer”. It further dismissed as ill-founded the applicant’s complaints that his rights of defence had been violated and his requests to declare inadmissible his statements obtained in the absence of a lawyer. In this context, when finding the applicant guilty of armed robberies, the court held that, having been informed of his procedural rights, the applicant had voluntarily waived his right to legal representation and that such a waiver had been lawfully accepted by the investigative authorities as robbery charges could not lead to a life sentence. It further held that during questioning on the murder, the applicant had been legally represented and had made his statements in the presence of a lawyer.

In addition, the Court of Appeal gave a separate ruling by which it declared inadmissible a number of pieces of evidence related to different charges against the applicant and his co-defendants, as the evidence had been obtained in violation of the defendants’ rights of defence. In particular, as far as the applicant was concerned, apart from the evidence which had been found inadmissible on 17 December 2003, the court further excluded from the body of evidence some of the testimonies given by the applicant on 8 and 9 January 2002. It held that, even though the applicant had allegedly confessed to murdering five people shortly after his arrest, he had nevertheless been questioned as a witness, in the absence of a lawyer.

The applicant appealed in cassation against the judgment of 6 October 2005. He stated in particular that there had been insufficient evidence to prove his guilt; he had been ill-treated by the police; on a number of occasions during the pre-trial investigation he had been questioned in the absence of a lawyer and that evidence obtained in violation of his rights of defence had nevertheless been used to secure his conviction.

On 19 October 2006 the Supreme Court of Ukraine held a hearing in the presence of the prosecutor, the applicant and his sister – who acted as his representative. On the same day, it upheld the applicant’s conviction of 6 October 2005. It dismissed as unsubstantiated his complaints that his rights of defence had been violated at the pre-trial stage of the proceedings, holding that those complaints had been duly examined and dismissed by the Court of Appeal. It also dismissed as unsubstantiated the applicant’s allegations of ill-treatment by the police.

Between 28 July and 13 October 2004 the applicant was held in the Kharkiv pre-trial detention centre no. 27 (“Kharkiv SIZO”), in cell no. 537. He submitted that his cell had been overcrowded: it had measured 16 square metres, contained eight beds for ten people, and detainees had had to take turns to sleep. He also alleged that some of the cellmates had been suffering from tuberculosis. In this context, he submitted written statements made by his cellmates K., G., K.I., P. and O.

The applicant’s sister complained to the Governor of Kharkiv SIZO about the conditions of her brother’s detention. By a letter dated 13 June 2005 the Governor informed her that the cell in question had been designed to accommodate eight people and that no more than eight inmates had been held in that cell during the applicant’s detention. The Governor further informed her that, according to medical documents concerning K., G., K.I., P. and O., none of them had been suffering from an active form of tuberculosis. He stated that the applicant had never been in contact with anyone suffering from such a disease whilst in Kharkiv SIZO.

After his conviction on 6 October 2005, the applicant was transferred to the high-security wing of the Donetsk pre-trial detention centre no. 5 (“Donetsk SIZO”). According to the applicant, he was handcuffed whenever he left his cell, including during daily walks and meetings with his relatives.

In Kharkiv SIZO the applicant was held in cells nos. 27 and 537 measuring 24.2 square metres each, designed to accommodate eight detainees. The cells were equipped with a dining table, a bench, a washstand and a toilet, which was separated from the living area by a brick partition. There was natural ventilation and light through windows; artificial lighting allowed inmates to read and write without damaging their eyesight. The temperature in the cells was between 18oC and 20oC. Running water was constantly available in the cells. All detainees were provided with bed linen and clothes in accordance with domestic standards.

As regards the applicant’s allegations that he had shared his cell with persons suffering from tuberculosis, the Government pointed out that the domestic legislation provided that persons suffering from that disease should be kept separately from healthy detainees. The Government could not provide any information about the applicant’s cellmates and their state of health, however, because the time-limit for keeping the relevant documents had expired and the records had been destroyed. They noted that the applicant had not complained that his state of health had worsened in detention.

Whenever the applicant was taken out of his cell and escorted within the Donetsk SIZO, handcuffs were used pursuant to the relevant domestic legislation. The Government contested the applicant’s statement that he had been handcuffed during his daily walks and meetings with relatives, as the former was prohibited by the relevant domestic regulations.