Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1969 and lived in Odessa. He is currently serving a prison sentence in Ukraine.

In summer 2002 the applicant, who was the president of the Odessa Komsomol (Young Communist League) at the material time, unsuccessfully ran for the Odessa Regional Council. According to him, following the election campaign, the State Security Service of Ukraine (“SSU”) put in place secret surveillance measures against him.

On 15 December 2002 the SSU arrested the applicant in Odessa on suspicion of having organised a criminal group formed of Komsomol members and having planned and directed several violent crimes committed by its members.

On 16 December 2002 the applicant was taken for questioning to Mykolayiv, where several other individuals implicated in membership of the same group had been arrested and detained some time before.

On the afternoon of 16 December 2002 the applicant signed a notice that he had been informed of his rights as a suspect and expressed the wish to have a lawyer. On the same date the applicant was appointed a legal-aid lawyer, A.S. In his presence, the applicant terminated the appointment and stated that he agreed to be questioned without a lawyer, until his wife hired one privately.

On the same date the applicant was questioned and acknowledged his affiliation with the communist party and the Komsomol, a number of whose activists named by the investigator he knew in person. At the same time, the applicant denied having taken part or having been aware of any criminal activity by these individuals. The record of the applicant’s questioning was preceded by his signature, which was underneath a note summarising his rights as a suspect and stating that he had given his consent to take part in the questioning session without legal representation.

On the same date the applicant was placed in Mykolayiv temporary detention centre (ITT), which, according to him, had unsuitable living conditions. The applicant was subsequently remanded in custody and transferred to Mykolayiv pre-trial detention centre (SIZO).

On 17 December 2002 a confrontation was conducted between the applicant and A., one of the individuals implicated in membership of the applicant’s criminal group. The record of the confrontation notes that before the questioning, the investigator informed the parties of their procedural rights and asked the applicant whether, regard being had to the fact that he had no legal representation, he agreed to take part in the confrontation. The applicant expressed his willingness to take part in the confrontation, stating that he felt capable of representing himself at that point. Following this introduction, A., who was represented by a lawyer, testified that the applicant had planned and organised several robberies, in which A. and some other individuals from the Komsomol had been involved. Having heard A.’s statement, the applicant refused to take any further part in the confrontation without a lawyer and the confrontation was discontinued.

On 21 December 2002 lawyer A.A., hired by the applicant’s spouse, was admitted to the proceedings as the applicant’s representative.

On 25 December 2002 the applicant was indicted on a number of charges including organising and directing a terrorist group with a view to re-establishing a communist state by violent means and being in charge of several robberies (“expropriations”) committed in order to raise funds for the group. Following his indictment, the applicant was questioned in A.A.’s presence. During questioning, the applicant reiterated his previous position and denied involvement in any criminal activity. Asked whether he had been subjected to any psychological or physical ill-treatment by the investigative authority, the applicant stated that he had not been subjected to any ill-treatment.

On 21 February 2003 the applicant terminated A.A.’s appointment, as the further investigation of his case had been transferred to the Odessa branch of the SSU, whereas A.A. practiced in Mykolayiv.

On 3 March 2003 the applicant was transported to Odessa no. 21 pre-trial detention facility (“the Odessa SIZO”), where he was detained until November 2005.

On 19 March 2003 the applicant was further questioned as a criminal defendant. Before the questioning session began, he signed a waiver of his right to legal representation, having indicated that he was capable of defending his own interests. During questioning, the applicant refused to answer any questions, referring to his constitutional right to remain silent. Questioned several more times in spring 2003, the applicant signed further waivers of his right to legal representation and chose to remain silent.

On 18 April 2003, referring to his ability to represent his own interests, the applicant refused to accept the appointment of legal-aid lawyers D. and R., who had been selected by the authorities, and asked for no further legal-aid lawyers to be appointed during the investigation stage.

On 21 May 2003 lawyer A. K., engaged by the applicant’s wife, was admitted to the proceedings as the applicant’s new representative. The applicant, questioned in her presence, refused to testify and chose to remain silent.

On 27 May 2003 the investigation was finished and the applicant, along with ten other individuals implicated in membership of the same criminal group, was committed to stand trial before the Odessa Regional Court of Appeal (“Regional Court”), acting as a first-instance court.

On 24 July 2003 the applicant and his lawyer A.K. both signed an affidavit that they had familiarised themselves with the forty-four volume case file.

In the beginning of September 2003 the Regional Court held a preparatory hearing in the applicant’s case and allowed requests made by the applicant’s co-defendants R., S. and D. for additional time to study the case-file materials.

On 3 September 2003 the applicant’s spouse terminated A. K.’s appointment, referring to financial difficulties, and the applicant asked the court to appoint a lawyer to represent him.

At the next court hearing (on 24 September 2003) the Regional Court appointed O.K. as the applicant’s new lawyer and granted her time to study the case file. On the same date the court rejected the applicant’s request for additional time to study the case file, referring, in particular, to his affidavit that he had studied it in full, to his failure to lodge this request before the beginning of the trial, and to the fact that the applicant would be able to seek to have case-file documents that were to be examined at a particular hearing read out in full or in part by the court before their examination.

On an unspecified date the Regional Court rejected the applicant’s request to appoint his father, who was not a lawyer, as his lay defender, referring to a conflict of interests that would arise if this was allowed. In particular, the applicant’s father had been summoned for questioning as a witness in the case. According to the applicant, his father was never questioned in the end and never even received an official summons.

On 17 November 2003 the applicant’s lawyer, O.K., did not attend the hearing.

On 24, 25 and 26 November 2003 the applicant asked for O.K. to be excluded from the proceedings, alleging that she had been passive in representing his interests, had not been supportive of his chosen defence strategy, and that he would prefer to be represented by a privately-funded lawyer. On 26 November 2003 the applicant’s request was allowed and he was given until 1 December 2003 to engage a privately-funded lawyer.

On 1 December 2003, the applicant still not having engaged a privately-funded lawyer, the court appointed A.B. as his new legal-aid lawyer.

On 26 January 2004 the applicant sought the replacement of his court-appointed lawyer A.B. with O.K., who had previously represented him as a court-appointed lawyer but who had now been privately engaged by his wife. This request was allowed and O.K. represented the applicant until the end of the trial.

During the trial, the applicant acknowledged that he had supported communist ideas and had taken part in publishing and distributing propaganda. However, he denied having been involved in any violent crimes. The applicant also complained that the investigative authorities had subjected his co-defendants and himself to ill-treatment with a view to breaking their moral resistance. In particular, upon the applicant’s arrest in December 2002, the officers had threatened him with physical ill-treatment and had made inappropriate remarks concerning his wife and family life. He had also been transported to Mykolayiv lying handcuffed on the floor of the prison van and blindfolded with a dark hat, which had made him suffocate and caused him to suffer a heart attack.

After the death of B., one of the applicant’s co-defendants, during the trial proceedings, the applicant and his co-defendants demanded an investigation into the circumstances of his death, alleging that it had resulted from torture and that they had also been subjected to ill-treatment at the investigation stage. Following the investigation, the prosecutor’s office reported to the Regional Court that B. had died of cancer and there had been no evidence of ill-treatment of the other co-defendants.

According to the applicant, it was very difficult for him to concentrate during the trial. In particular, his health was adversely affected by the conditions of his detention and the lack of medical assistance for his heart problems available to him in Odessa SIZO.

He noted, in particular, that between March and November 2003 he was detained in cell no. 187 in block 2 of Odessa SIZO, which was about eight square metres in size, had four beds and, at the time of his arrival, accommodated five detainees. The sanitary facilities were not separated from the living quarters. The wardens thwarted all the inmates’ attempts to gain some privacy by separating them with a curtain. The applicant’s inmates were repeat offenders. Some of them suffered from contagious diseases, such as HIV and tuberculosis. The administration ignored the applicant’s demands to be moved, as a healthy person with no criminal record, to a different cell. In November 2003 the applicant was relocated to a different cell, which was very similar in terms of physical and sanitary conditions. In addition, access to bathing facilities was very irregular. Furthermore, on various occasions the detainees were arbitrarily and brutally searched and beaten by special detachments of the armed forces.

The applicant further noted that he suffered from hypertension, vegetative-vascular dystonia, coronary artery disease and arrhythmia, for which he received no proper care in Odessa SIZO. The applicant’s family sent him medicines, which on some occasions were unreasonably withheld.

The applicant also submitted that on court days he and his co-defendants were routinely taken out of their cells at about 6 a.m. and placed with some 20-30 other inmates scheduled to be transported on that day in a special transit box, which measured some 15-20 square metres, had no windows and no heating. In such conditions the applicant and his co-defendants had to wait several hours for a prison van to come. Upon their return from court, they also routinely had to wait for several hours in the same holding area before being escorted to their regular cells. As a result, they missed meal time and were often left hungry. The “packed lunches” provided to them consisted solely of bread. Sometimes hot lunches were made available at court, but their provision was irregular.

The applicant also maintained that he had raised complaints about these issues in court, but to no avail. He presented unofficial copies of court transcripts, according to which on 22 December 2003 the applicant asked for a hearing to be adjourned as he felt unwell. On 9 January 2004 the applicant asked for a medical appointment in a cardiology clinic. On 10 January 2004 he complained in court that on that day the convoy officers had made the defendants run, while handcuffed and bent over, up to the courtroom located on the sixth floor and had beaten his co-defendant P., who had stumbled and fallen. On 3 February 2004 the applicant complained that he was only allowed to have one-hour daily outdoor walks, while his heart conditions called for him to walk for two hours a day. On 12 February 2004 the applicant asked the court to investigate the conditions of detention in Odessa SIZO, alleging that his and his co-defendants’ health had been deteriorating. On 15 April 2004 the applicant complained to the Regional Court that on 14 April 2004 he and his co-defendants had been taken out of their cells at 8 a.m. and they had been held in the transit box, which had been cold, until 2 p.m. without lunch. Finally on 16 April 2004 the applicant supported a complaint lodged by his co-defendant S., according to whom on the preceding day he and his co-defendants had had to spend five hours in the cold transit box. As can be seen from the same transcript, the presiding judge advised the applicant and S. to address their complaints to the SIZO governor, which advice they rejected as futile.

According to the Government, the conditions of the applicant’s detention were sufficient to meet his basic needs and compatible with his state of health. While the records enabling the identification of the applicant’s inmates and their health status had not been preserved, inmates suffering from contagious diseases were segregated from other detainees in accordance with the applicable rules. The Government provided numbers of various cells in which the applicant was held throughout his time in Odessa SIZO and indicated that these cells measured from 7.6 to 8.5 square metres and were designed to accommodate four inmates each and had not been overcrowded. They were equipped with windows giving sufficient access to natural light, had functioning sanitary facilities, tap water, heating, electric light and ventilation. Detainees were provided with three meals per day, one-hour daily walks and weekly access to bathing facilities.

The Government further maintained that the applicant’s state of health had been regularly monitored by the SIZO medical staff on account of his pre-existing conditions (hypertension, vegetative-vascular dystonia, coronary artery disease and arrhythmia). In December 2003 the applicant underwent inpatient treatment in the SIZO medical unit for his premature ventricular contractions (arrhythmia). In addition, on several occasions the applicant also had consultations with civilian specialist doctors. In particular, on 15 January 2004, following the applicant’s request for a consultation with a civilian cardiologist, he was examined by the Odessa Emergency Clinic’s cardiologist, who confirmed his previous diagnoses and gave recommendations as to his further outpatient treatment, which was administered in the SIZO. In March 2004 the applicant underwent a medical assessment by a panel of civilian doctors and was certified to be in satisfactory health and fit for detention and trial. The Government presented a copy of a medical certificate, according to which on 12 March 2004 the applicant had been examined by an ophthalmologist, a urologist, a physician, a pulmonologist, a cardiologist and a neurologist from the Odessa Regional Hospital.

The Government also maintained that the applicant and his co-defendants had always been promptly transported to and from the courthouse and had received breakfast and dinner in the SIZO. They had also been provided with either a packed lunch or hot lunch delivered to the court on hearing days. The catering had been organised by officer K., and, while copies of the available menus had not been kept, there was no record of any irregularity in the catering arrangements, which had been regulated by law.

The Government also maintained that there was no record of any complaints by the applicant or his co-defendants, either with the SIZO administration or with the Odessa Prosecutor’s Office, concerning the conditions of their detention, transportation, catering or medical treatment. They presented affidavits by the Odessa SIZO governor and on behalf of the Odessa Prosecutor’s Office in this respect.

On 19 July 2004 the Regional Court convicted the applicant of propagating a violent revolt against the constitutional order and attempting to undermine the territorial integrity of Ukraine; organising and running a criminal group; participating in a terrorist act (detonation of an explosive in a rubbish bin near the SSU headquarters in Kyiv); smuggling goods across the Russian border; unlawful handling of firearms and explosives; several armed robberies; and engagement of a minor in criminal activity. The applicant was sentenced to fourteen years’ imprisonment. The court also dismissed allegations of ill-treatment raised in respect of the applicant and some of his co-defendants as unsubstantiated. Finally, it noted that, insofar as the complaints of inadequate medical assistance in Odessa SIZO were concerned, the applicant had been examined by civilian medical specialists in March 2004 and had been found to be in a satisfactory state of health and fit to take part in the court proceedings.

On 18 August 2004 the applicant lodged a cassation appeal against this judgment. In his statement of appeal, the applicant reiterated his innocence and his allegations of ill-treatment advanced during the trial. He also reiterated that no medical assistance necessitated by his chronic conditions had been made available to him in Odessa SIZO and that the conditions of his and his co-defendants’ transport to the court premises had been inhuman. In this respect he noted that on 10 January 2004 the convoy had made him and his co-defendants run to the sixth-floor courtroom while handcuffed and bent over and that on 10 March 2004 the detainees had been arbitrarily held in the prison van for an extra two hours on the way back to the SIZO. The applicant further complained in his cassation appeal of a breach of his right to mount a defence. He noted in this respect that he had not been provided with a lawyer upon his arrest; his request to have his father appointed as his lay defender had been rejected; and his lawyer O.K. had not attended the hearing of 17 November 2003. Finally, the applicant complained that his right to have sufficient time and facilities for the preparation of his defence had been breached, as the Regional Court had rejected his request for an extension of time in which to study the case-file materials in preparation for the trial. The applicant also mentioned that he was intending to supplement his statement of appeal with further submissions. No copies of any such submissions were provided to the Court.

On 26 July 2005 the Supreme Court of Ukraine re-qualified the applicant’s conviction for smuggling as aiding and abetting smuggling and otherwise upheld the first-instance court’s judgment. The conviction for distribution of propaganda and attempting to undermine the territorial integrity of Ukraine was not reviewed, as the applicant had not lodged an appeal against it. In its decision, the Supreme Court noted, in particular, that the evidence of the applicant’s guilt included the testimony of his co-defendants and victims of his crimes given during the trial and that there was no evidence that any statements obtained during the pre-trial investigation had been extracted through ill-treatment or in breach of the applicant’s or his co-defendants’ right to mount a defence. Finally, it noted that the Regional Court had properly rejected the applicant’s request for further time in which to study the case-file materials, as it was unsubstantiated.

In November 2005 the applicant was transferred to Sokyriany no. 67 Correctional Colony (“Sokyriany Colony”) to serve his sentence.

In February 2009 the applicant’s lawyer, based in Moscow, Russia, asked the Regional Court to send him a number of documents from the applicant’s case file by post.

On 25 June 2009 the court denied this request, noting, in particular, that it had no facilities with which to prepare and send the copies and that the lawyer could study the case file on the court’s premises.

Between 17 June and 2 August 2005 the applicant was detained in Kyiv pre-trial detention facility (“Kyiv SIZO”) awaiting the review of his conviction in the cassation proceedings.

According to the applicant, the conditions of his detention were detrimental to his health and incompatible with human dignity. In particular, the facility was extremely overcrowded. A cell which contained eleven sleeping places was occupied by twenty-two inmates. The window was covered with metal shutters, barely letting in air and light. The electric light provided in the evenings was so dim that reading or writing could hurt the eyes. The sanitary facilities were not separated from the living quarters. The cell was not ventilated, the metal shutters overheated and the temperature often reached forty degrees. The air, mattresses and pillows were very damp. The provision and change of bedding was irregular. During the one-and-a-half months in which he was held there, the applicant only once had access to the bathing facility. He also received no medical help for his heart problems, which were bothering him because of the unsuitable physical conditions of his detention.

According to the Government, the conditions of the applicant’s detention were reasonably adapted to his needs. The applicant stayed in cells nos. 101, 103 and 110, measuring 60.9 square metres, 31.4 square metres and 9.7 square metres respectively. At the material time cell 101, which was designed to accommodate thirty-eight inmates, was occupied by thirty-four; cell 103, which was designed to accommodate twenty inmates, was occupied by fourteen; and cell 110, which was designed for four inmates, was filled to its capacity. All of the cells were equipped with windows letting in natural light and fresh air, sanitary facilities, sinks, artificial ventilation, refrigerators and televisions. The average temperature in the cells was 20-23 degrees Celsius. The detainees were supplied with soap and bedding, which was regularly changed, and could also buy toiletries in the SIZO shop, if they so wished. They were also provided with three meals a day, and were allowed daily one-hour walks and weekly access to the bathing facility.

On 7 November 2005 the applicant was transferred to Sokyriany Colony, where he served his sentence until July 2006.

According to the applicant, upon his arrival on 7 November 2005 and until 15 November 2005 he was detained in the intake area (quarantine cell), which was very damp and unheated. His warm civilian clothes were seized and he was provided with a prison uniform in a size too small for him. This was not remedied until December 2005, when his mother brought warm clothes, which he was allowed to keep. During his mother’s visit, the applicant was allowed to stay with her in the colony’s visitor hostel, which was also barely heated. On various occasions the administration blocked or delayed the applicant’s correspondence and the delivery of communist newspapers to which the applicant subscribed. The applicant was not provided with appropriate medical care and treatment. In addition, the colony administration exerted arbitrary psychological pressure on him by subjecting him to special supervision (for example, the administration placed his bed by the entrance door to the cell in order to be able to supervise him more effectively).

According to the applicant, he and his mother (on his behalf) brought the aforementioned matters to the attention of the colony administration and the prosecutor’s office. However, their complaints were either not dispatched, ignored, or poorly investigated into.

As is evident from the case file, in 2006 the applicant’s mother lodged several complaints with various authorities, in which she referred to irregularities in the colony postal unit’s handling of the applicant’s correspondence and periodical subscriptions, a prohibition on the detainees keeping sugar in the cells, the poor heating of the colony’s visitor hostel and the disappearance of 200 hryvnias (UAH) transferred by her to the applicant’s account.

On 31 March and 25 May 2006 the Chernivtsi Regional Prosecutor’s Office acknowledged certain irregularities in the operation of the colony’s postal unit in their responses to the applicant’s mother and notified her that disciplinary proceedings had been instituted against the officer responsible, while the colony governor had been instructed to improve the oversight of the postal service operation. They further noted that the detainees were forbidden to keep sugar in the cells to prevent alcohol production by them and that in winter 2006 the visitor accommodation had been equipped with movable radiators. Finally, they assured the applicant’s mother that the money purportedly lost had been duly credited to the applicant’s account.

On 6 June 2006 the applicant’s mother wrote a letter to the Chernivtsi Prosecutor’s Office acknowledging an improvement in the delivery of the applicant’s correspondence and thanking them for their intervention.

In June 2006 the applicant’s mother complained on the applicant’s behalf of deterioration in his health.

On 11 July 2006 the applicant lodged a declaration with the colony governor, according to which he had developed skin and liver problems in spring 2006, but stating that he was now satisfied with the treatment he was receiving and had no further requests in this respect or complaints against colony medical staff.

In summer 2006 the applicant was transferred to Torez no. 28 Correctional Colony in the Donetsk Region (“Torez Colony”), which operated under a lower-security regime, to continue serving his sentence.

Having left Sokyriany Colony on 18 July, the applicant arrived in the Torez Colony in September 2006.

According to the applicant, the conditions of his transport were incompatible with his state of health and with human dignity. Long distances were covered in prison trains and shorter ones in prison vans. The transit took several months because he was made to join various groups of prisoners making various shorter connections. The prison train carriages had compartments designed for four to six passengers, which were occupied by eleven or more detainees and their belongings. The overcrowded compartments were not ventilated and in the summer heat (above 30 degrees Celsius) the metal carriages overheated, making it hard to breathe. Reaching a destination took very long time, as upon arrival at an intermediate stop the cars often waited for hours for additional prisoners to be brought to the station or for a new locomotive to be connected to the train. A distance that would be covered in four hours in a regular train could take twenty-four hours or more. The guards escorted the detainees to the bathroom only once every four hours and there was no opportunity to go otherwise. The conditions of transport in the vans were also very uncomfortable. The vans had no windows and largely no ventilation. On many occasions they also took long stops and became overheated in the summer sun, aggravating the symptoms of the applicant’s heart and vascular problems and causing him to suffer intolerably.

The applicant further maintained that the physical conditions in the detention facilities which accommodated him as a detainee in transit between various train and van rides were likewise not suitable for habitation. For instance, the cell in Lviv SIZO had a window facing the inner corridor with no access to natural light. Cell no. 1607 in Donetsk SIZO was located in the basement. It was damp with water dripping from the ceiling and walls covered in mould. Both facilities were heavily overcrowded, with detainees taking turns to sleep, were poorly lit, ventilated and infested with insects. The sanitary facilities in them were not separated from the living quarters.

In addition to the poor physical conditions of detention and transport, the detainees in transit were also subjected to cruel and arbitrary practices by the convoy officers and prison guards. In particular, upon arrival and before departure they often had to spend an hour or so in overcrowded holding areas sitting in squat positions with their hands behind their heads. Guards also often made detainees assume a squat or other unnatural positions when moving somewhere, shouted, insulted, pushed and beat the prisoners, and performed unnecessary and degrading searches. The status of a prisoner in transit not having been sufficiently addressed in law and regulations, the administrative practice was not to provide them with bedding, not to segregate inmates sick with contagious diseases, and deny appropriate medical assistance or any communication with the outside world, including correspondence and visits.

According to the Government, the travel journals containing the particulars of the conditions of the applicant’s transit had been destroyed. However, they asserted that the conditions of the applicant’s transport and detention in transit points had been reasonably adapted to meeting his needs. Prison train carriages were designed to accommodate up to eighty people. They contained large compartments measuring three and a half square metres designed to accommodate twelve people and smaller compartments of two and a half square metres designed to accommodate five people. It was permissible to put sixteen and six people in large and smaller compartments respectively during trips that took less than four hours. All train cars were supplied with artificial ventilation and it was also possible to open a window. Prison vans measured eight square metres inside and were designed to accommodate twenty-two people in three compartments (two larger ones designed for ten passengers each and one small compartment for two passengers). The vans had no windows, but they were equipped with vents and benches for sitting on.

Upon the applicant’s arrival at Torez Colony in September 2006, his medical file was found to be missing.

On 29 September 2006 the applicant’s mother complained to the Sokyriany District Prosecutor’s Office concerning the Sokyriany Colony’s administration’s decision to allow the applicant’s transfer in the summer heat and its failure to include his medical file in his travel documents.

On 1 November 2006 the prosecutor’s office notified the applicant’s mother that according to Sokyriany Colony’s records, the applicant’s medical file had been properly handed over to the convoy officers escorting him out of the colony.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - Competent court);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1969 and lived, prior to his conviction, in Chelyabinsk.

On 29 December 2000 the applicant was arrested on suspicion of double murder. He remained in custody pending the investigation and trial.

On 13 September 2001 the Chelyabinsk Regional Court found the applicant guilty of murder, accessory to murder and attempted fraud, and sentenced him to twenty-three years’ imprisonment. The court comprised one professional judge and two lay judges.

On 12 April 2002 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal.

On 23 July 2004 the applicant lodged a supervisory-review complaint challenging the lawfulness of his conviction. He alleged, inter alia, that the trial court had not been a tribunal established by law, given that the lay judges who considered his case had been appointed to the tribunal in contravention of the applicable legislation.

On 22 December 2004 the Kopeysk Town Court of the Chelyabinsk Region reduced the applicant’s sentence by seven months, in compliance with the latest amendments to the Russian Criminal Code.

On 29 April 2005 the Presidium of the Supreme Court of the Russian Federation received the case file for supervisory review.

On 15 June 2005 the Presidium quashed the judgments of 13 September 2001 and 12 April 2002 and remitted the matter to the Chelyabinsk Regional Court for fresh consideration. Referring to the case of Posokhov v. Russia (no. 63486/00, § 41, ECHR 2003IV), the Presidium noted that the lay judges had not been authorised to consider the applicant’s case, which had affected the lawfulness and well-foundedness of the applicant’s conviction. Lastly, the Presidium ordered that the applicant be detained pending a new trial.

On 22 July 2005 the Regional Court fixed the preliminary hearing for 1 August 2005 noting that the measure of preventive detention previously imposed on the applicant “should remain unchanged”. The parties did not inform the Court of the outcome of the hearing of 1 August 2005. It appears that it was re-scheduled.

On 5 August 2005 the Regional Court held a preliminary hearing of the case. The applicant and his lawyer attended the hearing and made submissions to the court. The applicant asked the court to release him on an undertaking not to leave his place of residence. He noted that he had already served over four years of the earlier imposed prison sentence which rendered the further extension of his pre-trial detention unnecessary. The prosecutor discerned no change in the applicant’s situation that would be in favour of the applicant’s release and asked the court to extend the applicant’s detention pending trial. The court fixed the new trial for 18 August 2005 noting that the measure of preventive detention previously imposed on the applicant “should remain unchanged”. In particular, the court noted as follows:

“Deciding on the preventive measure and having heard the parties to the proceedings, the court considers that the remand of the [defendants] in custody during preliminary investigation as a restrictive measure has been lawful and justified. There are no grounds to replace it with a more lenient measure ... in view of the gravity of the charges and the defendants’ character.”

On 18 August 2005 the Regional Court opened the trial and on 19 September 2005 it found the applicant guilty as charged and sentenced him to twenty-two years and three months’ imprisonment. The time already served by the applicant was set off against the newly imposed sentence. The court found that the applicant and Sh. had killed V. and Sk. in an attempt to fraudulently obtain the proceeds from the sale of a flat owned by V. The court comprised a single judge. The applicant was represented by a lawyer.

On 23 June 2006 the Supreme Court upheld the conviction on appeal. The applicant and his lawyer were present at the hearing and made submissions to the court.

On 13 October 2005 the Supreme Court upheld the decision of 5 August 2005 on appeal.


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

André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1967 and lives in Lviv.

Between March 1995 and July 1996 the applicant underwent outpatient treatment for overactive thyroid at the State Oncology Centre in Lviv. She was treated by Dr S.

In July 1996 the applicant’s health deteriorated; she was examined at the State Endocrinology Centre in Lviv and was diagnosed with hypothyroidism. From 13 November to 10 December 1996 the applicant underwent inpatient treatment for hypothyroidism at the Endocrinology Centre. The applicant told the doctors that her hypothyroidism resulted from the treatment with a radiopharmaceutical, J-131 (radioactive iodine), which Dr S. had administered to her between March 1995 and July 1996. The doctors from the Endocrinology Centre recorded in the applicant’s medical file that the applicant suffered from hypothyroidism resulting from the treatment with radiopharmaceuticals. Eventually, the applicant lost her thyroid and was recognized as suffering from the second highest official degree of disability.

On 10 October 1997, at the applicant’s request, Dr S. issued her a certificate stating that throughout 1996 the applicant’s treatment included injections of a radiopharmaceutical, namely radioactive iodine J-131. Dr S. did not specify the dosage or dates on which the applicant had received the injections.

In May and June 1998 the applicant complained to the Lviv Department of the Ministry of Health (“the Department”) that the radiopharmaceuticals administered to her by Dr S. had seriously damaged her health.

The Department invited the applicant to undergo a medical examination at one of the hospitals in Lviv, however she refused. The Department checked the records of the Oncology Centre and found that they contained no data as regards the applicant’s alleged treatment with radiopharmaceuticals. It was further noted that, according to the applicant’s medical records, between 1995 and 1996 her diagnosis had been unclear. That being the case, the treatment mentioned in the certificate of 10 October 1997 had been inadequate. The Department recommended the Oncology Centre to dismiss Dr S. for that reason. Shortly afterwards Dr S. retired from the Oncology Centre of her own motion.

In July 1998 the applicant complained to the Lviv prosecutor’s office that Dr S. had treated her with J-131, that the treatment had been inadequate and that it had destroyed her thyroid. To support her complaint, the applicant submitted the certificate of 10 October 1997.

In January 1999 an official investigation was launched into the applicant’s complaint which was carried out initially by the prosecutors and later by the police. In the course of the investigation the applicant, Dr S. and a number of other persons were questioned. Also, several forensic examinations were performed. A number of decisions were taken rejecting the applicant’s complaint principally for the reason that, according to the forensic reports, it was impossible to establish the cause of the destruction of the applicant’s thyroid. Those decisions were eventually quashed for incomplete investigation. The most recent decision in that regard was taken by the Frankivskyy District Court in Lviv on 18 January 2016, by which it instructed the police to carry out further investigation in the applicant’s case, finding inter alia that the police had failed to examine all pertinent evidence and that an additional forensic examination was necessary. The investigation has not been completed to date.


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in 1977. He has served sentences in several prisons. On 21 April 2015 he was released from Târgu-Jiu Prison.

The applicant alleged that while detained in cell no. 5 of TârguJiu Prison for eight days, between 1 October and 9 October 2013, he had not had an individual bed and had therefore been forced to sleep on the cold floor on two blankets. As a consequence, the renal disease from which he suffered had been re-activated and he had experienced intense pain.

On 3 October 2013 he had been examined by a prison doctor and had been prescribed medical treatment. However, he had been unable to submit any evidence in this connection as the prison authorities had rejected his requests for a copy of his medical records. He submitted instead an old medical certificate stating that on 23 September 2012 he had been hospitalised in the Nephrology Department of Slatina Hospital suffering from renal colic.

The applicant lodged a complaint with the postsentencing judge asking for an individual bed.

His complaint was examined on 15 October 2013. The applicant informed the judge that he had eventually been given a bed, but only after nine days. The post-sentencing judge took note that the applicant had obtained an individual bed; he did not draft an interlocutory judgment, but merely noted that the complaint had been withdrawn.

The applicant lodged a complaint with the Gorj District Court seeking compensation in connection with the lack of an individual bed for eight days in cell no. 5 of Târgu-Jiu Prison.

On 12 November 2013 the Târgu-Jiu District Court dismissed the applicant’s complaint as inadmissible without examining its merits on account of the fact that the applicant had not submitted an interlocutory judgment by the post-sentencing judge in connection with his complaint.


Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation)

Armen Harutyunyan;Branko Lubarda;Carlo Ranzoni;Johannes Silvis;Luis López Guerra;Mārtiņš Mits

The applicant was born in 1983 and lives in Yerevan.

On 30 August 2007 the applicant was arrested and later charged under Article 112 § 1 of the Criminal Code with intentional infliction of a grave injury.

On 1 September 2007 the Erebuni and Nubarashen District Court of Yerevan granted the investigator’s motion to place the applicant in pre-trial detention.

On 28 September 2007 the same court decided, upon the applicant’s motion, to release him on bail.

On 4 October 2007 the investigator decided to cancel bail and to detain the applicant on the basis of the decision of 1 September 2007. It appears that on the same day the applicant was placed in pre-trial detention.

On 22 October 2007 the Erebuni and Nubarashen District Court of Yerevan decided, upon the applicant’s appeal, to quash the investigator’s decision and to release the applicant. The District Court stated that, in accordance with Article 136 of the Code of Criminal Procedure, detention could be imposed only by a court and was the court’s prerogative. The investigator had therefore exceeded his authority and had incorrectly interpreted the law by imposing detention. The law required the investigator to apply to the court with a reasoned motion, if there were sufficient grounds to replace bail with detention. The District Court found that the applicant’s detention imposed on the basis of the decision of 4 October 2007 had violated his rights guaranteed under, inter alia, Article 5 §§ 3 and 4 of the Convention and Article 16 of the Constitution.

On 13 December 2007 the Erebuni and Nubarashen District Court of Yerevan acquitted the applicant.

On 28 March 2008 the Criminal Court of Appeal upheld this judgment.

On 21 April 2009 the applicant instituted civil proceedings against the Ministry of Finance, seeking pecuniary and non-pecuniary damage in connection with the criminal proceedings against him, including his detention. The claim for pecuniary damage included alleged lost earnings, expenses related to food parcels received in detention and the transport costs of his relatives. The applicant estimated the non-pecuniary damage suffered by him at 15,400 euros (EUR).

On 25 September 2009 the Kentron and Nork-Marash District Court of Yerevan decided to grant partially the applicant’s claim for pecuniary damages and award him 215,100 Armenian drams (AMD) (approximately EUR 380 at the material time). As regards the claim for non-pecuniary damages, the District Court decided to dismiss it, with reference to Article 17 of the Civil Code, on the ground that the Armenian law did not provide for this type of compensation.

On 26 October 2009 the applicant lodged an appeal.

On an unspecified date the Ministry of Finance also lodged an appeal, contesting the judgment in its part concerning the award of pecuniary damages.

On 4 December 2009 the Civil Court of Appeal decided to dismiss the applicant’s appeal and to grant that of the Ministry of Finance, reducing the amount of compensation for pecuniary damage to AMD 96,800 (approximately EUR 165 at the material time). As regards the claim for non-pecuniary damages, the Court of Appeal decided to terminate the proceedings on the ground that Armenian law did not provide for this type of compensation and therefore that claim could not be examined by the court.

On 14 December 2009 the applicant lodged an appeal on points of law.

On 1 July 2011 the Court of Cassation decided to dismiss the appeal and to uphold the decision of the Civil Court of Appeal.


CASE OF ANZHELO GEORGIEV AND OTHERS v. BULGARIA

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

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

The applicants worked for a private company (“the company”). The company is one of the main Internet service providers in the city of Varna; it operated out of at least two offices in Varna, both of which were located on the same street. The first applicant was the company’s manager; the second, third and fourth applicants were employees of the company; the fifth applicant was a freelance expert providing services to the company at the time of the events.

On 16 June 2008 the Varna District Public Prosecutor initiated criminal proceedings (досъдебно производство) against a person unknown, suspected of disseminating materials in violation of intellectual property laws by using the company’s servers during the period January to May 2008 and thus committing a continuous offence as defined in Article 172a (1) of the Criminal Code. The proceedings were not directed at anyone specifically at the company. The prosecutor’s order for opening criminal proceedings comprised the following instructions: that the facts be established; that unlicensed software be identified and seized, and a forensic examination be carried out in respect of it; that the results be discussed with the prosecutor without delay; and that the investigation be carried out by officers of the Central Service for Combating Organised Crime (CSCOC).

The following facts are undisputed between the parties.

Following the prosecutor’s order of 16 June 2008, a special police operation was carried out on 18 June 2008 in two of the company’s offices located in the same street in Varna. The operation was aimed at the search and seizure of illegal software and was carried out pursuant to the instructions of the supervising prosecutor. Ya.K., a CSCOC officer and the head of the operation, had given the operational instructions to the officers involved shortly before the operation began. Those instructions were to enter the company’s premises as quickly as possible, to overpower all individuals found there in order to prevent them from interfering with any electronic evidence, and to seize the computer equipment found in the offices. A district court judge confirmed the validity of the searchandseizure operation within 24 hours of its having taken place. A number of computers and black boxes, the latter referred to in the searchand-seizure reports as “computer systems”, as well as one folder of paper documents, were seized in the presence of certifying witnesses during the operation. The manager of the company, Anzhelo Angelov Georgiev, was not present in the company’s offices when the operation took place. The second applicant was working in the first company office at the time of the operation and the third, fourth and fifth applicants were present in the second company office.

The parties disagree in particular in respect of whether the force used by some of the CSCOC officers during the above-mentioned operation had been provoked by the applicants and therefore whether it had been excessive or absolutely necessary in the circumstances.

The applicants, in their complaints to the prosecutor on 19 June 2008 about having been ill-treated during the operation the previous day, described the conduct of the operation as follows.

Anzhelo Angelov Georgiev, the first applicant, submitted that on 18 June 2008 CSCOC officers barged into two offices of the company, having broken the entrance doors to one of the offices. Then, he claimed, they had broken the cameras in the first office, ordered the employees found there, including the second applicant, to lie on the ground and hit them with electroshock batons, as well as kicked them in the chest and the head despite the absence of any resistance or provocation. The first applicant also claimed that a similar situation had arisen in the second company office. Copies of medical certificates, evidencing injuries allegedly sustained by several employees during those events, were enclosed with the complaint.

Kameliya Ivanova Dekova, the second applicant, submitted that at around 4.00 p.m. on 18 June 2008 masked armed men had cut the lock of the entrance door to the company’s first office where she was working, saying they were police. Then, she claimed, they had made her lie on the ground and had kicked her in the chest and head, as well as applied electroshock discharges from a baton-like device to her body before handcuffing her. She had not resisted in any way and had done nothing to provoke such treatment. One of the masked men had been shouting threats and insults at her and her colleagues present in the office, including threatening to shoot a firearm.

Georgi Mirchev Kosev, the third applicant, submitted in particular that he had heard loud bangs on the entrance door of the company’s second office at about 4.30 p.m. on 18 June 2008. After a colleague had opened the door, men had rushed in, pushed and shoved him and then handcuffed him to the window grill. While he was still attached to the grill, they had applied electroshock discharges from a baton to his abdominal area.

Nikolay Angelov Dragnev, the fourth applicant, submitted that at around 4.30 p.m. on 18 June 2008 several armed masked men had broken into the company’s second office, where he was at the time. Although he had not resisted in any way, they had hit him in the face and his lip had started bleeding. They had handcuffed his arms behind his back and then made him stay on his knees for an hour during which time they had continuously insulted him.

Pavel Yonkov Tsekov, the fifth applicant, submitted that at about 4.30 p.m. on 18 June 2008, while he had been working in the company’s second office together with seven other colleagues, he had heard strong bangs on the door and shouts “Open! Police!”. As soon as a colleague of his had opened the door, several men had thrown Mr Tsekov to the ground, then had handcuffed his arms behind his back and dragged him outside. Next they had made him remain crouching with his hands cuffed behind his back for around an hour. They had asked no questions of him or his colleagues nor asked them to produce their identity documents; instead, they had ordered the employees in the office to keep quiet.

Some of the twelve employees, including the second, third, fourth and fifth applicants, who were heard during the inquiry on 2 and 3 July 2008 following the applicants’ complaints (see paragraph 24 below), stated that police officers had cut open the entrance door to the first of the company’s offices in which they had been working on the afternoon of 18 June 2008. Following that the officers had hit them in the face, kicked them, stepped with a boot on their heads, applied electroshock discharges on them which had caused them very strong pain and a feeling of paralysis, insulted them and continuously shouted at them to keep silent. The officers had been wearing what some employees described as “helmets” and “hoods” on their heads. They had been dressed in black police uniforms and had been armed with machine guns. Once the masked officers had noticed that there were cameras on the premises, they had signaled this to each other and stopped hitting the employees. Shortly afterwards civilian police officers had entered the office premises; none of the civilian officers had illtreated any of the employees.

The Government submitted to the Court statements of thirteen police officers who had taken part in the operation. The statements were given to the prosecution on 7 July 2008, 27 August 2008, 2 September 2008 and 18 September 2008, as part of a preliminary inquiry carried out into the allegations of the company’s employees that they had been ill-treated by the police at the time of the operation. The Government also submitted to the Court the statements of twelve employees of the company given to the prosecution during the same inquiry (see paragraph 17 above).

Officers from the CSCOC who had participated in the operation were heard during the inquiry in August and September 2008 in Sofia following instructions of the Varna prosecutors. The CSCOC officers submitted that, prior to the operation they had received information from operative police sources and various media publications, that the company was connected to organised criminal groups. Given that the employees had refused to open the door to one of the offices which had been disguised as a family apartment, masked police officers had had to cut it open in order to prevent the destruction of evidence. The other office had been opened from inside by employees. CSCOC officers (it was not specified who or how many) had entered through the window into yet a third “hidden” office, thus “taking by surprise an employee found there who was attempting to destroy evidence”; they had handcuffed that employee, and then an unspecified person had opened the door to that office with a key. During the operation the company’s employees had refused to comply with the police orders and had actively disobeyed the officers, thus obstructing the operation. The officers had not used electroshock on any employee. They had used handcuffs on individual members of staff who had refused to open the entrance door or to move away from their computer stations and who had continued to erase data from the computers instead. The wife of the company’s manager had behaved arrogantly towards the officers, insulting and threatening them with revenge, and had ordered the employees to continue with their work.

Officers of the Varna Regional Police Directorate (“Областна Дирекция на Полицията Варна” or “VRPD”) who were heard during the inquiry in July 2008 in Varna submitted that they had been called in to assist their colleagues from the CSCOC in an operation to find company servers containing unlicensed software, films and music. None of the VRPD officers had been masked. They had not been involved in the opening of the entrance doors to the company’s offices as that had been done by masked officers from the CSCOC. They had entered the office premises after the doors had been opened. They had seen some masked officers on the company premises but had not seen what they had done. Some of them had heard calls of “Open! Police!” during a period of about 10 to 15 minutes and after that the sound of an electric grinder. They had not witnessed any physical force being used against any employee. Some of the VRPD officers had seen in the first office several women – none of whom bore any sign of injury – sitting on chairs guarded by two masked officers; in the entrance hall leading to the second office they had seen several company employees, some wearing handcuffs. While the VRPD officers had been waiting for the entrance doors to the offices to be opened, they had thought it likely that the company employees would delete most if not all of the information sought to be collected during the operation. All the employees had been calm and, at times, the officers had let them smoke outside the building before asking them to return inside to wait until the conclusion of the search-and-seizure operation. After officers had brought in another woman called A.G., acting as the manager of the company, ten computer systems were seized in her presence and in the presence of several certifying witnesses. The VRPD officers had left at around 8 p.m.

On 19 June 2008, the day after the police operation, at their request, a forensic expert examined Ms Dekova, Mr Kosev and Mr Tsekov, respectively the second, third and fifth applicants.

According to the medical reports, Ms Dekova had a swollen right upper eyelid and a swelling and a cut next to her right eyebrow, a bruise and an abrasion in her right armpit, four reddish-brown burns on and below her right shoulder blade and bruises on her right thigh and arm. The conclusion of the medical expert was that the burns on her back were of first to second degree and it was plausible that they had been sustained from not less than four strikes with an electroshock baton at the time and in the circumstances described by the applicant. Mr Kosev had a jaw injury, injuries to both arms, an injury and an open wound in the abdominal area and six reddish strips on his abdomen. Mr Tsekov had three long bruises around his left armpit which could have been the result of pressure applied with non-sharp, hard objects, possibly squeezing by hands. The medical expert concluded that the bruises and injuries could have been caused by blows with or against a blunt object, and that the injuries described above had caused the second, third and fifth applicant pain and suffering, and the second applicant also temporary non-life-threatening health disorder.

On 19 June 2008 the applicants, and five other individuals, complained to the prosecutor, in particular, that masked men had broken into two of the company’s offices the previous day and had used violence towards them, as well as shouting and insulting. Because the officers had been masked, they could not identify them. Civilian officers who had entered the office premises in order to search and seize computer equipment after the masked men had broken in had not mistreated the company employees. The prosecutor took the applicants’ statements which are summarised in paragraphs 12 to 16 above. They submitted the medical certificates drawn up on the same day (see paragraph 21 and 22 above).

A preliminary inquiry into the above complaints was opened the day after the operation took place. During the months of July, August and September 2008, investigators took statements from thirteen officers who had participated in the operation and twelve staff members of the company who had been present during the operation. The police statements are summarised in paragraphs 19 and 20 above and the employees’ statements are summarized in paragraph 17 above. The Government did not submit, and the documents in the file do not show, that any other investigative steps, apart from the questioning of several police officers and the company’s employees, were carried out.

The questions put to the officers during the inquiry were: 1) whether during the operation any employee had disobeyed or showed manifest lack of cooperation; 2) whether any of the masked officers had used electroshock batons against any employee and, if yes, why; 3) who among the officers (masked or not) had used physical force and auxiliary means for restraint (помощни средства), against whom of the employees, in which of the company’s offices and why; 4) officers from which police department (specialised in breaking into premises or in arresting individuals) had taken part in the operation; and 5) whether the entrance doors to the company’s offices had been opened voluntarily or whether they had to be forced open.

All the officers heard during the inquiry stated that they had learned about the police operation of 18 June 2008 and had been called to assist with it earlier on the same day; none of them had used force against the applicants, apart from handcuffing individuals who had disobeyed the officers’ orders; no electroshock discharges had been applied to anyone. Not all police officers answered all questions asked as part of the inquiry.

The inquiry ended with a decision of the Varna Regional Military Prosecutor of 7 October 2008 not to institute criminal proceedings, finding that the officers involved in the operation had not exceeded the prerogatives vested in them by law. Upon appeal by the applicants, on 24 November 2008 the Varna Appellate Military Prosecutor returned the case with instructions that further acts be carried out (see paragraph 38 below, third sentence). More specifically, he observed that the file did not contain any documents showing that criminal proceedings had been opened against the applicants. Likewise, there was no information in the file showing that a search-and-seizure operation had been carried out and that it had been authorised by a judge. No information on file showed either that evidence had actually been found on the premises searched, or that there had been reasonable suspicion that evidence could have been found there. The prosecutor held that the scant assertions of several police officers who had been heard during the preliminary inquiry were not sufficient to establish the circumstances as recorded in the refusal to open criminal proceedings of 7 October 2008. Consequently, additional investigative acts had to be carried out. The higher prosecutor asked, in particular, that copies be collected of the orders for opening criminal proceedings on suspicion of violating intellectual property laws and for bringing charges on those grounds, as well as records of the search-and-seizure operation and “other documents of importance for the inquiry”. It is unclear whether any investigative steps were taken thereafter.

On 13 March 2009 the Varna District Public Prosecutor, to whom the file was sent for competence reasons following a legislative amendment, refused to open criminal proceedings (see paragraph 37 below) against the police officers. She found that a special police operation aimed at gaining access to the offices of the company and seizing unlicensed software had been carried out on 18 June 2008. The initial information available had been that the company had connections with organised criminal groups and that its main activity was the collecting and disseminating of unlicensed software. Officers from CSCOC had been in charge of the operation; masked officers from CSCOC Sector “Operational Intervention” (сектор “Оперативна реализация”) and officers from different units of the Varna Regional Police Directorate, had taken part in the operation. Following a preparatory briefing session, at around 3.30 in the afternoon the officers had tried to enter the office premises of the company. Someone on the inside had locked the front door; following this, the company’s employees had gone to their computers and started deleting data sought by the police. The employees had not complied with several orders by the police officers to open the doors. Acting upon the instructions to enter the company’s premises rapidly and to establish full control over all individuals there without giving them the opportunity to erase data or to obstruct the seizure of computers, the CSCOC officers had cut the entrance door lock to the building, thus breaking into the premises. They had then ordered all the individuals found there to lie on the floor and refrain from touching the computer equipment. However, the company’s employees had disobeyed the orders and, using different pretexts, had remained instead in front of their work stations, acting so as to delete information from the company’s computers. The officers had used physical force, electroshock batons and handcuffs in respect of some of the employees to overcome their resistance and prevent them from touching the computers located on the premises. During the operation, some employees had been knocked over. Those findings had been corroborated by the statements of all persons, civilians and police officers, collected during the inquiry, as well as by documents submitted by the Varna Regional Police Directorate. The prosecutor further found, on the basis of medical reports, that some complainants (without naming them) had sustained injuries during the operation and that they could not identify the officers who had caused the injuries as the latter had been wearing masks. The prosecutor concluded that it had been established unequivocally during the inquiry that the injuries sustained by the civilians during the police operation of 18 June 2008 had been the result of the use of force and auxiliary means for restraint by police officers in order to overcome the complainants’ resistance and to prevent them from destroying crucial evidence for the ongoing criminal proceedings. The officers had not exceeded their statutory right under section 72 of the Ministry of Interior Act to use force, as they had been faced with refusals to obey their orders. The material collected during the inquiry had shown that the searchandseizure operation had been carried out in accordance with the instructions of the supervising prosecutor and had been approved by a judge. The prosecutor concluded that the police officers involved had not committed a criminal offence.

Following an appeal by the applicants and one of the other complainants, on 8 April 2009 the Varna Regional Public Prosecutor (“Окръжна Прокуратура Варна”) upheld the lower prosecutor’s decision. He held, in particular, that the officers had used force for the purposes of gathering physical evidence and in compliance with the applicable legislation.


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

The applicant, Mr Lucian Dorca, is a Romanian national born in 1979 and living in Sibiu. He was represented before the Court by Ms M.M. Țuca, a lawyer practising in Sibiu.

On an unspecified date the applicant, who was assisted by a legal representative of his own choosing, brought divorce and custody proceedings against his wife seeking, inter alia, to be granted joint custody of their two-year-old daughter.

On 21 November 2011 the Sibiu District Court dismissed the applicant’s action in part, on the basis of testimonial evidence and social inquiry reports, including the report of an inquiry conducted by the Spanish authorities at the child’s mother’s home. The mother was granted sole custody, on the grounds that the child had been born in Spain and had lived there since birth. Furthermore, her mother was in permanent employment there. Given the child’s young age, her hygiene, dietary and medical needs required particular attention, and she could suddenly develop the symptoms of a very serious medical condition. In the circumstances, it would be imperative for the parent to recognise such symptoms and the immediate steps that needed to be taken. It was uncontested by the parties that the child had been left in her mother’s care and that the mother had attended very closely to her needs. According to the testimonial evidence available, the mother was a good cook and was very careful about her health. In addition, separating the child from her current environment, in which she was integrated and which promoted her normal development, was not recommended considering the constant need to maintain her well-being. While it was true that the applicant had optimal living conditions for raising his daughter, these were insufficient given her young age and the particular attention that she required. Consequently, taking into account both moral and material criteria, it was considered that the mother was better placed to raise and educate the child. She had health problems and had been repeatedly hospitalised and kept under medical supervision for bronchitis while in her mother’s care. In addition, she was enrolled in a Spanish preschool, according to whom there was a strong emotional bond between the child and her mother, who attended school meetings and activities, had a good relationship with preschool staff and ensured that her daughter was clean and ate correctly.

The applicant appealed against the judgment and argued that the court’s belief that he was unable to raise and educate the child in the same way as his wife amounted to discriminatory treatment. In addition, there was no evidence to suggest that under the relevant provisions of the Romanian Civil Code custody of a child could not be assigned to both parents. Moreover, under the relevant domestic and international legislation, parental authority could not be divided and had to be exercised jointly by both parents. The alleged criminal offences he had been accused of by his wife had simply been allegations, which was clear from the fact that he had no criminal record. Furthermore, his daughter did not have any serious health problems or problems that were unusual for a child of her age.

On 2 November 2012 the Sibiu County Court dismissed the applicant’s appeal. It held that the social inquiry report produced by the Spanish authorities confirmed that the mother was able to raise and educate the child in a stable way. In addition, the mother had taken good care of the child, who had health problems and had been repeatedly hospitalised and kept under medical supervision for bronchitis. The child was enrolled and had integrated well in the Spanish schooling system, and her mother had a good relationship with the teachers and was in permanent employment in Spain. In determining who would have custody of the child, the court could not ignore the fact that the applicant had taken his daughter out of Spain without her mother’s consent. Subsequently, the mother had brought criminal proceedings against the applicant for child abduction. Although she withdrew her criminal complaint and the applicant was never convicted, it was uncontested that he had left the marital home in Spain together with his young daughter without his wife’s consent. Consequently, there was a risk that the applicant could repeat his actions if he was awarded joint custody of his daughter. The court could not wait for that risk to occur and considered that it was in the best interests of the child, taking into account her age and health, to enjoy the stability afforded by the mother. The social inquiry report produced by the Spanish authorities contained a recommendation for specialist professionals to monitor the relationship between the applicant and his daughter on account of his prior actions. The best interests of the child were at the heart of the domestic and international legislation referred to by the applicant. Consequently, given his previous behaviour, the decision of the first-instance court to grant sole custody of the child to the mother had been justified.

The applicant lodged an appeal on points of law (recurs). He argued that under the relevant domestic and international legislation, joint custody of children served the best interests of the child and was the rule even if parents were divorced. In addition, the consent of the other parent was presumed when parents enjoyed joint custody. Moreover, the first and second-instance courts had wrongfully assessed the evidence put before them and there was nothing to suggest that if he had been granted joint custody of his daughter, he would have attempted to abduct her. Furthermore, the Spanish authorities had cleared him of any charges and their recommendation relied on by the second-instance court would only have been of relevance had he committed an offence. Lastly, there was no evidence to suggest that he had endangered his daughter’s physical and moral development, and there were therefore no well-founded reasons for the courts to award the mother sole custody of their daughter.

By a final judgment of 12 March 2013, the Alba-Iulia Court of Appeal dismissed the applicant’s appeal on points of law. It held that under the relevant domestic legislation, parents enjoyed joint custody of children even after divorce, because it was presumed that such a situation served the best interests of the child. However, the same domestic legislation allowed for a departure from that rule, if there were well-grounded reasons to suggest that the best interests of the child would be better served if custody was awarded to only one of the parents. In the instant case, without denying the applicant’s attachment to his daughter, it was relevant that the child’s parents lived in different countries. That would make it difficult for the applicant to enjoy his right to joint custody effectively. Moreover, there was a risk that in certain situations, the absence of the parents’ agreement or a delay in the applicant’s consent might have a negative impact on the child’s development, given that she was so young. A systemic approach to the dynamics of the parties’ interactions should show a relationship that would facilitate the exercise of joint custody. In the absence of such interactions, joint custody of the child may be a source of continuous conflict that would be incompatible with the best interests of the child. In the parties’ case, there was clear proof of an unstable and inharmonious relationship and of serious disagreements concerning the child’s situation. In this context, it was relevant that the applicant, in the absence of a clear agreement with his wife, had travelled with the child to Romania and that in the past few years the parties had been involved in numerous sets of court proceedings. The court therefore considered that there were well-grounded reasons to award sole custody of the child to the mother, and that such a measure would be in the better interests of the child.

Articles 397 and 398 of the Romanian Civil Code provide that after divorce, parents are to exercise joint parental authority over their children unless the court decides otherwise. If there are well-grounded reasons, taking the best interests of the child into account, the court may decide for parental authority to be exercised by only one of the parents. The remaining parent reserves his or her right to monitor the way the child is raised and educated, and his or her right to consent to the child’s adoption.


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

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

The applicant was born in 1945 and lives in Jonava.

In 1994 the applicant bought an apartment in Jonava. In 1998 he lost his regular job and was no longer able to pay for utilities.

In 2000 the utility provider instituted civil proceedings against the applicant concerning his debt of 2,861 Lithuanian litai (LTL – approximately 828.60 euros (EUR)). The domestic courts allowed the claim. In 2003 the judgment was transferred to a bailiff for enforcement. The bailiff decided to direct enforcement against the applicant’s apartment. On 6 October 2004 he organised a public auction at which the apartment was sold to a third party for LTL 3,390 (approximately EUR 982). On 18 November 2004 a district court confirmed the transfer of the apartment to the third party.

Since that date, the applicant has not had a permanent home. He submitted that he had been living in temporary accommodation, at times in unsuitable conditions, and often in exchange for manual work.

Between 2006 and 2008 the apartment was resold and gifted to different individuals on several occasions.

In November 2007 the applicant instituted civil proceedings before the Jonava District Court, arguing that the sale of his apartment at the public auction had been unlawful. The applicant submitted that, in accordance with the domestic law, taking a person’s home in order to enforce a court judgment was only permitted when the debt in question was larger than LTL 3,000 (see paragraph 22 below), which had not been the case here (see paragraph 7 above). The applicant also submitted that he had owned 0.05 hectares of land near Jonava, so the enforcement should have begun in respect of that property and not his only home (vienintelė gyvenamoji vieta). In view of the alleged unlawfulness of the sale, the applicant claimed damages jointly from the bailiff and the bailiff’s professional liability insurer. According to the applicant, restitution in integrum was not possible because there was no indication that the third party who had bought the apartment at the public auction had acted in bad faith. Therefore, he claimed LTL 51,000 (approximately EUR 14,770) in damages, an amount corresponding to the market price of the apartment at the time of the submission of the claim.

The defendants (the bailiff and his professional liability insurer) contested the applicant’s claim. They submitted that the value of the applicant’s land had been insufficient to cover his debt, so the enforcement had had to be directed against the apartment. They also argued that the applicant’s debt (LTL 2,861) and the enforcement expenses (LTL 540), taken together, had exceeded LTL 3,000, and thus the sale of his apartment had been in accordance with the domestic law. The defendants further argued that the applicant had acted in bad faith – he had not appealed against the execution writ or the results of the public auction, and he had submitted his claim at the very end of the time-limit because he had been waiting for the market price of the apartment to increase. Therefore, they argued that the applicant could not claim damages corresponding to the market price of the apartment at the time of the submission of the claim, but only the price for which the apartment had been sold at the public auction – LTL 3,390 (see paragraph 7 above).

On 17 June 2009 the Jonava District Court dismissed the applicant’s claim. It acknowledged that his debt had been below the required threshold of LTL 3,000 and that the bailiff had erred by calculating the debt together with the enforcement expenses. However, the court considered that this breach had not been such as to warrant the annulment of the sale. Accordingly, it dismissed the applicant’s claim for damages. The court also noted that the applicant had submitted his claim three years after the sale and on the last day permitted by the time-limit, when the market price of housing was several times higher than in 2004. Therefore, his claim for damages corresponding to the market price of the apartment at the time of the submission of the claim could be regarded as an attempt at unjust enrichment (vertintinas kaip siekimas nepagrįstai praturtėti).

The applicant appealed against the Jonava District Court’s judgment. He and the defendants presented essentially the same arguments as in their pleadings before the first-instance court (see paragraphs 10-11 above).

On 1 October 2009 the Kaunas Regional Court quashed the firstinstance judgment and allowed the applicant’s claim in its entirety. The court held that the bailiff had acted in violation of domestic law, firstly by failing to direct the enforcement against the applicant’s land, but also by selling his apartment at a public auction even though his debt had been less than LTL 3,000. The court considered that the bailiff had failed to respect the balance between the interests of the debtor (the applicant) and the creditor. It held that, because of the material breaches of the relevant law, the sale of the applicant’s apartment had to be declared unlawful.

Accordingly, the Kaunas Regional Court decided to award the applicant damages from the bailiff’s professional liability insurer. It stated that it “essentially agreed with the amount claimed by the applicant” (iš esmės sutinka su ieškovo nurodyta suma) and awarded him LTL 51,000 (approximately EUR 14,770), after subtracting the amount of his debt (see paragraph 7 above).

The bailiff’s professional liability insurer appealed against the Kaunas Regional Court’s judgment. It submitted, inter alia, that the amount of damages awarded to the applicant had no basis, and the court should have either ordered restitution in integrum or awarded the applicant the amount for which his apartment had been sold at the auction (see paragraph 7 above), but not its market price in 2007, which had increased significantly since 2004.

The applicant contested the appeal, arguing that there was no legal obligation for him to ask for restitution rather than for damages, and that the amount of damages was a question of fact which the Supreme Court could not examine.

On 8 February 2010 the Supreme Court amended the judgment of the Kaunas Regional Court in part. It upheld the conclusion that the sale of the applicant’s apartment had been unlawful for the reasons established by the lower court (see paragraph 14 above). The Supreme Court then reiterated its own case-law that, where the sale of property at a public auction is unlawful because of a bailiff’s actions, restitution in integrum should not be applied; accordingly, it considered that the most appropriate way of protecting the applicant’s rights was by awarding him damages. However, the court considered that, in line with “the nature of the obligation and the principles of equity, reasonableness and good faith” (pagal prievolės esmę, atsižvelgiant į teisingumo, protingumo ir sąžiningumo kriterijus), the amount of damages in the applicant’s case had to be assessed at the moment of the unlawful act, that is, the sale of the apartment. According to the State Enterprise Centre of Registers, the market price of the applicant’s apartment at the time of its sale had been LTL 12,100 (approximately EUR 3,504). Therefore, the Supreme Court awarded the applicant that amount, after subtracting his debt (see paragraph 7 above) and the bailiff’s enforcement expenses (see paragraph 11 above).


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

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.


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

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1961 and lives in Kaunas.

In 1994 the applicant obtained a loan of 30,100 Lithuanian litai (LTL – approximately 8,718 euros (EUR)) from the State. The purpose of the loan was to build or buy an apartment. In 2000 the applicant became the owner of an apartment built by a public association, and in exchange she took over the association’s loan of LTL 90,036 (EUR 26,076) from the State. The apartment was pledged to the bank as collateral. Both loans were given under preferential conditions – the annual interest rate was lower than the average annual interest rate for loans given by private banks at that time. Both loans were administered by a State bank, the State Commercial Bank of Lithuania (hereinafter “the bank”). In 1998 that bank transferred the claims to some of its loans, including both of the applicant’s loans, to another State bank, the Savings Bank of Lithuania. In 2001 the latter bank was privatised and became the private bank AB Hansabankas.

On 13 August 2001 the applicant concluded an agreement with a third party, A.E., under which the applicant paid LTL 30,870 (EUR 8,940) and bought from A.E. the right to restoration of title in respect of 1.47 hectares of land in Kaunas. That land had belonged to A.E.’s grandfather, S.F., who had died in 1949. It had been determined by a ruling of the Kaunas District Court of 23 May 2001 that S.F. had owned a total of 68.26 hectares of land in Kaunas. Following that ruling, A.E. sold the right to restoration of title in respect of different parts of that land to over a hundred individuals, including the applicant.

On 23 October 2001 the Kaunas County Administration (hereinafter “the KCA”) restored the applicant’s title in respect of 1.47 hectares of land. At the applicant’s request, her property rights were restored by cancelling her outstanding debt to the State (see paragraphs 31-33 below). The KCA estimated that the value of that plot of land was LTL 70,560 (EUR 20,435.60), and its indexed value was LTL 112,896 (EUR 32,697), an amount equal to the applicant’s outstanding debt under the two loan agreements of 1994 and 2000 (see paragraph 6 above).

On 10 November 2001 the KCA forwarded to the Ministry of Finance a list of individuals, including the applicant, whose property rights it had decided to restore by cancelling their debts to the State.

On 16 November 2001 the KCA ordered an internal audit into the restoration of property rights in respect of the land which had belonged to S.F. (see paragraph 7 above). The audit report, delivered on 7 December 2001, found that the documents in the possession of the KCA showed that from 1927 to 1940 S.F. had sold parts of his land to numerous individuals, and that, as a result, at the time of his death he had owned no more than 15.58 hectares. Accordingly, the audit report considered that the size of S.F.’s land, as established by the Kaunas District Court (see paragraph 7 above), had been incorrect, and recommended that the KCA suspend the restoration of property rights in respect of any land which had previously been considered as belonging to S.F.

Following the internal audit, on 14 December 2001 the KCA suspended the restoration of property rights in respect of S.F.’s land. It informed the Ministry of Finance about the suspension, and asked it to suspend the cancellation of debt for all the individuals on the previously submitted list, including the applicant (see paragraph 9 above).

Subsequently the Kaunas Regional Prosecutor (hereinafter “the prosecutor”), at the request of the KCA and relying on the findings of the audit report, asked the domestic courts to reopen the civil proceedings concerning the size of S.F.’s land, and to suspend the enforcement of all the KCA’s decisions concerning the restoration of property rights in respect of that land. On 21 March 2002 the Kaunas Regional Administrative Court suspended the enforcement of the KCA’s decisions. The applicant participated in the court proceedings as a third party and appealed against the suspension, but on 25 April 2002 the Supreme Administrative Court dismissed her appeal. On 23 October 2002 the Supreme Court reopened the civil proceedings concerning the size of S.F.’s land, on the grounds that the audit report had revealed relevant information which had not been known at the time of the adoption of the Kaunas District Court’s ruling of 23 May 2001.

In the reopened proceedings, on 30 April 2003 the Kaunas District Court determined that S.F. had owned 48.40 hectares of land. On 30 June 2004 the Kaunas Regional Court partly amended that judgment and determined that S.F. had owned 47.91 hectares of land. The latter judgment became final. The KCA and the applicant participated in the reopened proceedings as third parties.

On 25 October 2004 the prosecutor asked the Kaunas Regional Administrative Court to revoke the order suspending the enforcement of the KCA’s decisions concerning the restoration of property rights in respect of S.F.’s land. The prosecutor submitted that the total amount of land affected by those decisions was less than 47.91 hectares, so there was no risk of restoring property rights in respect of land which had not belonged to S.F. On 26 October 2004 the Kaunas Regional Administrative Court granted the prosecutor’s application.

On 9 November 2004 the KCA asked the Ministry of Finance to resume the cancellation of debt with regard to the applicant and other individuals (see paragraph 9 above).

On 6 December 2004 the Ministry of Finance issued a certificate confirming the cancellation of the applicant’s outstanding debt to the State, amounting to LTL 112,896 (EUR 32,697). On that same day the bank received the certificate from the Ministry and cancelled the applicant’s debt.

It appears that from 23 October 2001 to 6 December 2004 the applicant did not make any loan repayments to the bank and the bank did not request any such payments. However, until September 2002 she was paying interest and late payment fines under the two loan agreements, and paid a total of LTL 5,222.26 (EUR 1,512.47).

On 26 January 2005 the bank informed the applicant that she owed it LTL 13,140.56 (EUR 3,805.77) in interest and late payment fines under the two loan agreements.

On 3 February 2005 the bank lodged a civil claim against the applicant concerning the unpaid interest and late payment fines under the loan agreement of 1994, amounting to LTL 2,909.33 (EUR 842.60). It asked the Kaunas District Court to order interim measures – seizing the applicant’s apartment. On the same day the bank unilaterally terminated the loan agreement of 2000 and asked the court to begin the forced recovery of the debt under that agreement, amounting to LTL 10,231.23 (EUR 2,963.17), by seizing the applicant’s apartment, which had been pledged to the bank as collateral.

On 7 February 2005 the Kaunas District Court seized the applicant’s apartment and informed her that, following her failure to repay the debt under the loan agreement of 2000 within one month, the apartment would be sold at auction. The following day the court also granted the bank’s application for interim measures concerning the loan agreement of 1994, but having found that the applicant’s apartment had already been seized, the court ordered the seizure of the applicant’s movable property, financial assets and property rights, amounting to the sum of LTL 2,909.33.

On 24 February 2005 the applicant submitted a counterclaim against the bank. She stated that on 23 October 2001 the KCA had restored her property rights by cancelling her debt to the State, but due to circumstances beyond the applicant’s control the Ministry of Finance had only informed the bank about the cancellation on 6 December 2004. The applicant submitted that from 23 October 2001 until 6 December 2004 she had repeatedly contacted the bank and asked it to not count the interest and late payment fines. Thus, she considered that the bank had known about the cancellation of her debt, and it was therefore unjust and unfair for it to ask her for any payments for that period, or to unilaterally terminate the loan agreement of 2000. The applicant further asserted that in the period of 20012002 she had paid the bank a total of LTL 5,222.26 (EUR 1,512.47) in interest and late payment fines under the two loan agreements; she claimed that there had been no grounds for the bank to accept those payments, and asked the court to order the bank to return them to her.

On 22 March 2005, at the applicant’s request, the Kaunas District Court suspended the forced recovery of the debt by means of seizing the applicant’s apartment, pending the examination of the claim and counterclaim in the civil case. On 18 October 2005 the court lifted the order for seizure of the applicant’s apartment because the bank had not requested its sale at auction within the time-limit prescribed by law.

On 22 February 2006 the Kaunas District Court granted the bank’s civil claim in part. The court found that the applicant’s debt had only been cancelled on 6 December 2004, so there were no grounds to find that her obligation to honour the loan agreement with the bank had ended before that date. The court held that the applicant had been using the loan during the period of 2001-2004, and thus she was obliged to pay interest to the bank. Accordingly, it ordered the applicant to pay the bank LTL 2,705.52 (EUR 783.57).

However, the Kaunas District Court also noted that the loan had been given to the applicant by the State and not by the bank, so the latter could not claim to have suffered any losses due to late payments. The court found no bad faith on the part of the applicant – it considered that she had had legitimate grounds to expect that the cancellation of her debt, ordered on 23 October 2001, would be implemented promptly. Accordingly, the court decided that the bank had no grounds to claim late payment fines, and ordered it to return to the applicant LTL 72.25 (EUR 20.93) which she had already paid.

The applicant’s counterclaim was dismissed.

The applicant appealed against that judgment, but on 1 June 2006 the Kaunas Regional Court dismissed her appeal and upheld the first-instance judgment in its entirety. The court considered that the applicant had to assume the risks resulting from her agreement with A.E., which had enabled her to seek the cancellation of her outstanding debt after paying a sum that was several times lower than that debt (see paragraphs 7-8 above), especially as the bank had not been a party to that agreement. The court also noted that the delay in the cancellation of the applicant’s debt had been caused not by the actions of the bank but by those of the KCA and the prosecutor, so the bank had had the right to receive interest payments during the period in question.

In those proceedings, the courts did not examine whether the applicant had been under an obligation to pay interest and late payment fines under the loan agreement of 2000, because she had not made such a claim. As submitted by the applicant and not disputed by the Government, on an unspecified date in 2006 the applicant paid LTL 10,231.23 (EUR 2,963.17) in interest and late payment fines requested by the bank under that agreement.

On 3 July 2006 the applicant submitted to the Kaunas Regional Administrative Court a civil claim for damages against the KCA, the Prosecutor General’s Office and the Ministry of Finance. She claimed that because of the unnecessary and unjustified delay in the cancellation of her debt from 23 October 2001 until 6 December 2004, caused jointly by those three institutions, she had suffered financial losses of LTL 20,926.73 (EUR 6,060.80), consisting of interest and late payment fines paid under the two loan agreements, as well as legal expenses incurred in the civil proceedings instituted by the bank. She also claimed non-pecuniary damages of LTL 15,000 (EUR 4,344.30) for the stress and frustration caused during that delay.

On 13 July 2006 the Kaunas Regional Administrative Court refused to accept the applicant’s claim, on the grounds that complaints against the Prosecutor General’s Office and the Ministry of Finance – and, as a result, the entire claim – had to be examined by the Vilnius Regional Administrative Court (see paragraph 38 below).

On 26 April 2007 the applicant submitted to the Kaunas Regional Administrative Court a civil claim for damages against the KCA only. She again claimed pecuniary damages of LTL 20,926.73 and non-pecuniary damages of LTL 15,000 in respect of damage allegedly caused by the unjustified delay in the cancellation of her debt. The applicant argued that the KCA had acted unlawfully by suspending the restoration of her property rights and asking the prosecutor to apply for the reopening of the civil proceedings concerning the size of S.F.’s land. The Prosecutor General’s Office and the Ministry of Finance participated in the proceedings as third parties.

On 11 June 2007 the Kaunas Regional Administrative Court dismissed the applicant’s claim. It held that the principle of the rule of law obliged the KCA to ensure that the restoration of property rights was conducted in accordance with the applicable laws. The court considered that, in the presence of well-founded doubts about the actual size of the land owned by S.F., the KCA had acted lawfully and diligently by suspending the restoration of the property rights and initiating the reopening of the proceedings. The fact that the courts dealing with the reopened proceedings had found that S.F. had owned less land than initially determined (48.40 hectares and 47.91 hectares, as opposed to the initial estimate of 68.26 hectares) showed that the suspension had had a proper basis. Accordingly, the court concluded that the KCA had acted lawfully and there were no grounds to award damages to the applicant.

The applicant appealed against that judgment, but on 12 March 2008 the Supreme Administrative Court dismissed her appeal and concluded that the KCA’s actions in initiating the suspension of its decisions concerning the restoration of property rights had been in accordance with domestic law. In addition, the Supreme Administrative Court distinguished between the KCA’s competence and that of the Ministry of Finance: while the KCA was responsible for the restoration of property rights, it was the Ministry of Finance which had the authority to cancel the applicant’s debt and issue the bank with a certificate confirming such cancellation. The KCA’s request of the Ministry of Finance to suspend the cancellation of the applicant’s debt (see paragraph 11 above) had not been legally binding on the Ministry, and had had no legal effect on the cancellation of the debt. The court further held that the suspension of restoration of the applicant’s property rights had been ordered not by the KCA but by the ruling of the Kaunas Regional Administrative Court of 21 March 2002, and the ruling had been revoked by that same court only on 26 October 2004 (see paragraphs 12 and 14 above). Accordingly, the Supreme Administrative Court concluded that the KCA could not be held responsible for the suspension of the restoration of the applicant’s property rights and the cancellation of her debt, and thus there were no grounds to award her damages.