Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Just satisfaction reserved (Article 41 - Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano

The applicants were born in 1983, 1985, 1937 and 1947 respectively and live in Villepinte, apart from the second applicant, who lives in Drancy. The second, third and fourth applicants are the first applicant’s brother, mother and father, respectively.

During the afternoon of 30 November 2004 the first applicant, who was smoking a cigarette in the Mitry-Villeparisis railway station, was identity-checked by officers of the General Security Service (“SUGE”) of the French National Railway Company (“SNCF”).

Just before 8 p.m. on the same day two police officers from the Mitry Mory police station, S.D. and S.G., were called out to that railway station after a report that an individual had been throwing stones at the trains. Arriving at the railway station, they saw a man who did not correspond to the description provided, who appeared to be drunk, and who reacted aggressively when approached. They called for reinforcements just as five SUGE officers arrived on the scene. The individual in question, who was later identified as the first applicant, ran off towards an underground passageway.

The SUGE officers, who included L.P., Y.F. and O.D.B., stopped and questioned the first applicant. The latter put up no resistance to his arrest. The SUGE officers then took him outside the main entrance to the railway station had placed him against a wall.

The statements given by witnesses to that scène diverge concerning the subsequent events (see paragraphs 15 to 18, 20 and 34 to 44 below).

The first applicant was forced to the ground by the SUGE officers, who handcuffed him behind his back, before frisking him. He was then placed in a police vehicle parked nearby. The operation ended at 7.59 p.m.

During his transport to and arrival at the police station, the first applicant complained of nausea, and had to be helped out of the vehicle by the police officers. The latter mentioned that he was bleeding profusely from the chin.

Having arrived in the police cells, the first applicant lost consciousness and went into a coma. A doctor present in the police station administered first aid, before the arrival of the fire brigade ambulance at 8.14 p.m. and then the emergency medical services (SMUR) at 8.45 p.m. He was then transferred to the Lagny-sur-Marne hospital, and later, to the Beaujon hospital in Clichy.

The first applicant was remanded in custody at 8.15 p.m. on charges of insulting members of the police force and deliberate violence against a public-service employee, although the measure could not be notified to him owing to his state of alcoholic intoxication, according to the police report. The police custody was terminated at 10.10 p.m. on the instructions of the State Prosecutor.

The duty officer at the Meaux public prosecutor’s office was advised of the case at 8.40 p.m. He ordered the opening of a flagrante delicto procedure on charges of deliberate violence against persons performing public duties, assigning the task to the Versailles Regional Police Department (“DRPJ”).

The police and SUGE officers who had been involved or present during the first applicant’s arrest were questioned. Their versions contradicted each other: the SNCF employees spoke of a model arrest, whereas some of the police officers described it as “robust”. Among the latter, N.T., D.F. and R.D. pointed out that they had seen a SUGE officer, identified as Y.F., kneeing the first applicant in the face while he was being held on the ground by two other officers. They added that, noticing that Y.F. was about to knee him again, police sergeant A.H. had restrained him by the leg and said “that’ll do”.

A.H. did not mention that fact during his first questioning. He was interviewed again, and he explained that when he had arrived at the railway station on the evening in question he had noted the presence of five SUGE officers surrounding the first applicant, who was waving his arms. One of them had attempted to take the latter by the arms, but he had brushed him off. The officer identified as Y.F. had replied “don’t you hit me”, and had become “annoyed” with the first applicant. With the help of three colleagues he had brought him to the ground. Given the applicant’s refusal to allow himself to be handcuffed, he had struck him on the head with his left knee. A.H. said that he had then approached the scene. Seeing Y.F. moving his left leg back to knee him again, he had prevented him from doing so. When asked why he had not mentioned these facts in his first witness statement, the police officer stated that he had “thought that it was for the person concerned to shoulder his responsibilities”.

N.T. submitted that before being brought to the ground the first applicant had not been violent, but when an SUGE officer had touched him he had tried to remove his hand. One of the SUGE team had then, unsuccessfully, attempted to punch him in the face.

Some of the police and SUGE officers mentioned that the first applicant had had a cut on his chin before his arrest.

On 2 December 2004 L.P., Y.F. and O.D.B. were remanded in custody.

On 3 December 2004 the scene was reconstructed in the presence of two members of the prosecutor’s office and the five SUGE officers and the six police officers who had been involved in the arrest. The SUGE officers said that the arrest had been effected without any particular difficulties, the first applicant having been handcuffed on the floor, emphasising that he had displayed no injuries on being handed over to the police officers. The latter presented a different version of events, explaining how the applicant had been kneed in the head.

Dr M.K., who had operated on the first applicant at the Beaujon hospital, told the investigators that the injuries noted might have been compatible with one very violent blow, such as a hard slap, a kick or a knee strike, a blow from a medium-weight blunt instrument, or even a heavy fall. He did not consider the injury compatible with a truncheon blow.

At the Lagny-sur-Marne hospital, a brain scan showed an acute subdural haematoma of the left hemisphere. Blood tests showed alcohol levels of 1.51 grams per litre of blood and the presence of active cannabinoids (THC), pointing to exposure to cannabis between 2 and 24 hours before the testing.

The first applicant was admitted to the Beaujon hospital on 1 December 2004 and immediately taken to the operating theatre, where he underwent emergency surgical evacuation of his haematoma. A control scan carried out the same day showed a residual subdural haematoma.

On 1 December 2004 a forensic doctor was called upon to examine the first applicant, and noted that he was in a stage-3 coma on the Glasgow Coma Scale (on which stage 0 corresponds to death and stage 15 to a wakeful state). The doctor described a temporo-parietal fracture on the left-hand side, a closed 3.4 centimetre-long wound on the left side of the chin, two haematomas on the left tibia and a scratch on the left cheek. He also mentioned a subdural haematoma of the left hemisphere which was extended and compressive and had been the reason for the applicant’s emergency transfer to hospital.

A second scan carried out on 3 December 2004 showed an odontoid fracture associated with a fracture of the lateral mass of vertebra C2.

On 15 and 28 December 2004 the first applicant underwent further operations.

From 14 February to 12 December 2005 he was hospitalised at the Bouffémont Functional Rehabilitation Centre.

The discharge assessment drawn up by the said Centre mentioned a large number of neurological after-effects, including the partial loss of active motor skills in all four limbs, and serious cognitive and behavioural disorders (disinhibition, maladjustment, inability to concentrate, temporal disorientation, demotivation and loss of initiative, and passive opposition).

On 12 December 2005, since his condition had not improved, the first applicant was transferred to another rehabilitation centre. On 26 June 2008 the first applicant’s residual rate of permanent partial disability (IPP) was estimated at 95 %, given his lack of autonomy in respect of all the basic activities of everyday life. He was confined to a wheelchair and was unable to engage in any autonomous occupational activity.

On 3 December 2004 the Meaux Public Prosecutor requested the instigation of a judicial investigation against L.P., Y.F. and O.D.B. on charges of intentional violence having caused over eight days’ total unfitness for work (ITT), aggravated by the following three circumstances: the violence had been jointly, by persons performing public duties, in a place used for acceding to public transport.

On the same day the three persons targeted by the request for an investigation were formally charged. L.P. and O.D.B. were placed under judicial supervision, while Y.F. was placed in preventive detention until 28 July 2005, when he would be released under judicial supervision.

The applicants, assisted by counsel, applied to join the proceedings as civil parties.

On 8 December 2006, in view of the evolution of the first applicant’s state of health, the State Prosecutor requested further investigations, reclassifying the charges as intentional acts of violence have caused a permanent disability. The three SUGE officers were formally charged on this new basis.

A large number of witnesses were heard by the investigators on letters rogatory, and some of them were directly questioned by the investigating judge.

Three train passengers present at the material time stated that they had not seen the first applicant being struck.

Two individuals who had been with the applicant on the day in question, S.M. and S.Gh., were also questioned. S.M. explained that during the afternoon he and the first applicant had drunk alcohol and had been fined for smoking in the railway station. They had then reasoned with a person who had been on the railway tracks throwing stones at the trains. S.M. pointed out that the first applicant had a swollen lip and small scars on his face, around the chin. While they had been together the first applicant had neither fallen nor bumped his head.

S.Gh. told the investigators that the first applicant had been “shoved” by one of the officers involved, who had forced him face-down on to the ground, without his head actually touching the floor. She added that when he had been on the ground an SUGE officer had kicked him, with medium force, on the head or his upper body, although she was unable to say whether the kick had landed on his head. She further stated that when the first applicant refused to get into the vehicle, one of the staff involved had hit him lightly on the back of the head or upper body with a black objet, possible a truncheon, but that the blow had not been violent. The investigating judge summoned S.Gh. four times to appear before him, but she did not attend. Moreover, having subsequently mentioned the violent acts during a TV interview, she had explained that “she had been all over the place”, that she had been “taken by surprise” and that she “had overdone it a bit in front of the TV cameras”.

Furthermore, on 9 May 2006 an SNCF employee informed the investigators that he had been confided in by a dog-handler, claiming that he had been talking to some of the first applicant’s friends and had discovered that he had been fighting on the afternoon in question and that someone had smashed a bottle over his head. The employee explained that she had not spoken up earlier because her information was only second-hand. Furthermore, she had not considered the dog-handler particularly reliable, as he had previously given her information which she knew to be false. However, this witness statement could not be compared with other evidence or corroborated by the witness as he had died since the material time. On 26 May 2006 the police had telephoned the six dog-handlers who could have made the statements in question. The only one who had worked in the company in question at the material time had stated that he had not heard about the case and had never spoken to any friends of the victim, with whom he was not acquainted.

S.D. and S.G., the two police officers who had first arrived on the scene, gave statements. One said that the arrest had been carried out “robustly” and that the first applicant’s head had possibly hit the ground, as he had “fallen with his whole weight, all at once”, and the other stated that the applicant had fallen “to the ground heavily, face down”, with his head hitting the floor. The latter added, before the investigating judge, that he was virtually sure that the applicant’s head had hit the ground, even though his view was partially blocked by a vehicle. He further added that he had not seen the person being kneed.

The four police officers sent as reinforcements, D.F., N.T. R.D. and A.H., stated that they had witnessed a kneeing incident. R.D. affirmed that when the first applicant had been brought to the ground there had been a loud “bump”. A.H. went back on the statements made during the flagrante delicto procedure, informing the investigating judge that he did not know whether the applicant’s head had “bumped on the ground”.

The two SUGE officers who had been present but had not taken part in the operation explained that there had been no violence, and one of them suggested that if there had been any blows they must have been delivered in the police car or the police station.

As regards the persons formally charged, O.D.B. stated that no blows had been delivered. He said that the episode during which the first applicant had been brought to the ground had been a “textbook example”, explaining that there had been no violence, and that the person had just been placed on the ground. He was sure that his head had not hit the ground. He added that Y.F. had not kneed the first applicant, explaining to the investigating judge that in his view things had gone badly in the police station and the police officers were trying to “shift the blame on to them”. He added that the wound to the first applicant’s chin after his arrival in the detention area bore no comparison to the scratch which they had noted earlier on. He considered that his colleague had used the level of force strictly necessary to bring the arrestee to the ground.

L.P. affirmed that while the first applicant had still been standing, he had deliberately punched Y.F. on the arm. The latter had then seized him by the sleeve to knock him off balance. The applicant had ended up on his knees, and had been laid out on his side and then on his stomach. O.D.B. and he had held him by the ankles while Y.F. was handcuffing him. L.P. stated that the first applicant had been brought to the ground quite normally and that he had neither fallen to the ground nor been struck. He justified the use of that technique by the fact that the arrestee had been struggling and making incoherent statements. He added that he had had traces of blood around his nose, something which he had already noticed when fining him during the afternoon. He told the investigating judge that the first applicant’s head could not have hit the ground, after having stated while in custody that he had not been able to see his head when the person had been brought to the ground.

Finally, Y.F., a former trainer in the field of operational techniques, confirmed that he had fined the first applicant during the afternoon, without any further incidents occurring, even though the latter had already been consuming alcohol. He described the applicant’s annoyance and disgraceful language when they had met up again later. He complained that he had been punched deliberately and violently on his right forearm. He had pulled at the first applicant’s sleeve to bring him to his knees, and had then forced him to the ground with L.P.’s help, laying him on his right side and then turning him on to his stomach. He had personally handcuffed the arrestee by placing his knees on his body, his left knee on the back and his right knee on the posterior. His colleagues had been holding the arrestee’s legs. He specified that the latter had been “brought to the ground” and not “pushed to the ground”. The applicant’s head had not collided with anything and he had not been struck in any way, in the knowledge that he had had a slight cut on his chin and dried blood around his nose. Y.F. said that something must have happened at the police station or during his time in the police vehicle, because the injury to the chin which had been visible during the arrest had nothing in common with the wound which he had displayed at the police station; that wound had been four centimetres deep and bleeding, leaving a pool of blood. If the SUGE officers had noted such a wound on handing him over to the police, they would have immediately called an ambulance.

Y.F.’s administrative file showed that he had repeatedly complained of abuse and threats.

Consultation of the SNCF operational handbooks had shown that the head was singled out as a part of the body which should never be struck.

No images of the handcuffing episode could be obtained from the CCTV footage at the railway station. On the other hand, the footage did show the identity check carried out in the afternoon and the attempts by the first applicant to calm down an individual standing on the railway tracks.

On 29 December 2004 the investigating judge commissioned an expert report on the matter from Dr T., a forensic doctor, and Professor L, a brain surgeon. They submitted their report on 25 April 2005.

The reports concluded that the first applicant had had a subdural haematoma of the left hemisphere which had caused brain damage.

In view of the nature and consequences of that haematoma, the experts considered that the length of time required to constitute it had probably been less than thirty minutes from the time of the head injury, and could not have been less than fifteen minutes. Having regard to the timescale of the events and the witness statements, the experts stated that the shock could not have occurred during the few minutes’ drive from the railway station to the police station, or on arrival at the latter. On the other hand, they found that the injuries could have been caused by the applicant being pushed to the ground, being kneed or falling full length during his arrest. Alcohol or drug consumption could not have had any direct and/or definite influence on the traumatic brain injury.

Dr G., a neurologist, and Ms D., a neuropsychologist, examined the first applicant on 3 January 2006. They submitted their report on 24 January 2006.

They noted a deficiency of all four limbs and a serious deterioration of the cognitive and mental functions. They concluded that the neurological condition was directly responsible for the first applicant’s state of total dependency, and considered that it was too soon to determine the chances of consolidation but that the situation was unlikely to change greatly.

On 26 June 2006 Dr G. and Dr S. examined the first applicant. In their report of 19 October 2006 they noted that he could neither stand nor walk, that he was completely dependent as regards everyday activities and should be placed under guardianship. His total unfitness for work was still being assessed.

They mentioned that the injuries observed could only have been the result of violent trauma, and that if they had been caused by being pushed to the ground, he must have been pushed extremely violently. The hyperextension of the cervical rachis and the fracture of the C2 vertebra could have been caused by a violent blow from a knee, but not the haemorrhagic lesions or the left temporal contusion, the latter having been caused either by direct blows to the skull or by the head violently hitting the ground. They confirmed that alcohol or drug consumption could not have been factors in the injuries, although they explained that the state of intoxication could have diminished the person’s reactivity in attempting to limit the consequences of falling.

The experts considered that the timescale of the events as reported pointed to the conditions surrounding the arrest in the railway station as having very probably, indeed certainly, been the cause of the traumatic cranio-cerebral and rachidial lesions. They pointed out that they had no information at their disposal to rule out the possibility that the first applicant had sustained other violent attacks while in the police vehicle or at the police station, but added that if such violence had indeed occurred, it was conceivable that it had caused injuries. Nevertheless, the lapse of time between the arrest and the arrival at the police station had been so short that that hypothesis was “improbable”.

They further explained that the bleeding in the chin area could not have been caused by the subdural haematoma, but might have resulted from the person having been violently pushed to the ground or having received any other type of blow.

The experts concluded that the first applicant suffered from an infirmity which would leave him with permanent motor, cognitive and mental after-effects.

On 6 September and 30 November 2007 the investigating judge appointed four experts, Dr G., Dr S. and Dr L., and also M.F., an expert in “martial arts, combat and self-defence sports and the ballistics of body movements and blows”, to assist in the reconstruction of events and conduct a fresh medical examination of the first applicant. They were also mandated to determine whether the first applicant’s statement as recorded on 22 November 2007 could be deemed reliable.

The reconstruction took place on 23 November 2007. Police officers S.D. and S.G. confirmed that when they had first encountered the first applicant he had been acting rather nervously, seemed to have consumed alcohol, displayed an injury on his chin, and was red in the face. The SUGE officers who had met S.D. and S.G. had informed them that they had already fined the applicant that afternoon. SUGE officer C.A. explained that since the police officers had informed them that they had been insulted the decision had been taken to arrest the person concerned and the SUGE officers had asked him to come with them. C.A. had put him in an armlock. For his part, Y.F. stated that he had seized his left sleeve.

According to the SUGE officers, they had taken the first applicant outside the railway station, and there had been some hesitation when S.D. had told them that this was not the man who had been throwing stones at the trains. O.D.B. pointed out that Y.F. had then released him and stepped back. Y.F. explained that the first applicant had then turned angrily to face him and punched him on the forearm. He had seized the applicant by the collar, forced him to his knees and placed him on his right side. He had then placed him face down on the ground and put his hands behind his back in order to handcuff him. After frisking him, he had taken the first applicant by the right arm, and the latter had stood up otherwise unaided.

A.H. confirmed that the applicant had made a gesture towards Y.F.’s arm, and Y.F. had warned him: “don’t you touch me”. However, he explained that because he was resisting handcuffing, Y.F. had struck him with his left knee.

One of the other police officers, D.F., confirmed that he had seen the person being struck by Y.F.s left knee, while R.D. mentioned a blow from the right knee. N.T. confirmed the action described by A.H., although he was not sure which leg had been used.

The police officers added that the first applicant had been placed in the police vehicle and that when they had almost reached the police station he had said that he was going to vomit. They pointed out that the man had been very calm, but when he was about to leave the vehicle he said that he would need help because his knee hurt. D.G. had helped him out of the car, holding one of his legs. That was when the applicant’s head had slid along the head-rest and hit the car doorframe. D.G., seeing that he had fainted, had asked a colleague to help him. Outside the vehicle the first applicant had vomited liquids and remained inert, mumbling rather than speaking. He had then been dragged into the sobering-up area.

The experts submitted their report on 9 March 2009. They observed that in Y.F.’s version of events there had been no mention of blows or of the first applicant’s head hitting the ground. They also noted that in A.H.’s version, the blow was described as incapable of having had a major impact. They found that during the manoeuvre to bring the first applicant to the ground, he had been in a position to break his fall and, possibly, if he had been kneed, to protect himself. Moreover, they stated that if the kneeing incident was taken on board, the time which had elapsed between the latter and the arrival at the police station, when the first symptoms of the brain damage became evident, would have been between 2 minutes and 10 seconds and 3 minutes and 30 seconds. They concluded that in view of the minimum period of evolution (the “response time”) between the traumatic injury and the first symptoms, that is to say between fifteen and twenty minutes, the kneeing could not be deemed to have caused the brain injury.

The experts considered that the various statements by the persons charged and the witnesses, as well as the reconstructions of the different versions, were “completely incompatible with the forensic medical findings as regards the nature and/or seriousness of the injuries described in the various hospital and forensic reports”, such injuries being “necessarily the outcome of violent traumatic injuries”.

They pointed out that the observations made during the reconstruction meant that it was unlikely, or even impossible, that the fracture had occurred during the events that had taken place at the railway station or the police station, explaining that such a fracture usually caused serious neck pain and stiffness in the cervical rachis, which had not been noted by the victim, the witnesses or the participants.

As regards the hypothesis mentioned during the investigation to the effect that the first applicant might have been hit by a bottle during a fight that had taken place during the afternoon of 30 November 2004, the experts pointed out that they had not received any evidence to support that affirmation, but that a blow with a bottle could have caused an internal contusion which would not have produced any external symptoms on the scalp but would have caused a subdural haematoma such as that discovered on the first applicant’s admission to hospital. The first manifestations felt by the first applicant on his way to the police station had most likely stemmed from just such a traumatic injury. The manifestations in question had therefore reflected the brain’s intolerance of the mounting pressure exerted by the subdural haematoma, which had been tolerated for a few hours and had then decompensated during the transfer to the police station.

The experts emphasised that the lapse of time between the applicant’s arrest by the SUGE brigade and the emergence of the traumatic brain injuries had been too short to conclude that the actions carried out and the blows struck by members of that brigade might have caused the brain damage. Furthermore, the actions of the SUGE officers, as studied in detail on the day of the reconstruction, could not have explained the intracranial lesions.

As regards the first applicant’s condition, the experts considered that his residual rate of permanent partial disability (IPP) could be estimated at 95 %, given his lack of autonomy in respect of all the basic activities of everyday life and his inability to engage in any autonomous occupational activity. His suffering and disfigurement were estimated at 6/7, and his loss of amenity and professional damage were declared absolute, total and definitive.

The experts observed that the first applicant had said that he had been “attacked”. They added, however, that any memory on the applicant’s part had necessarily been “reconstructed”, either through unintentional, spontaneous fabrication or by repeating something overheard from people around him and possibly deformed by himself. He could certainly have had no direct memories of the events.

The National Security Ethics Committee, which had been contacted by two members of parliament concerning the circumstances of the first applicant’s arrest, assessed the procedural documents and interviewed the SUGE officers, apart from the persons formally charged, and also the police officers. It adopted an opinion on 19 December 2005.

It first of all noted that when the applicant had been arrested in the underground carpark of the railway station he had not been accused of an offence, as the police officers had acknowledged that his profile did not match that of the person sought. It added that the two police officers who had initially been involved had pointed out that they had not wanted to arrest the first applicant, but simply to check his identity, while the head of the SUGE team had stated that he had stopped the applicant for questioning because he had thought that the police officers had been insulted and he had considered them as victims. The committee noted that the head of team had admitted that “it was a bit topsy-turvy”, and that on leaving the railway station he had been unable to understand why the officers had not handcuffed the man and taken him to the police station.

The committee observed that the arrest had been carried out in a confused and confusing manner. The SUGE officers had explained that they had decided to handcuff the first applicant because he had insulted them and had struck Y.F. on the forearm.

The committee noted that A.H. had partly confirmed that version, and pointed out that there had been a kind of confused “stand-off” between the SUGE and the police officers outside the railway station. A.H. had noted that the first applicant had been insulting the SUGE officers, that he had lunged at one of them, hitting him on the arm or the shoulder, and that the officer in question had said “Don’t you touch me!”. After the applicant had been handcuffed, A.H. had decided to apprehend him on charges of violence against persons performing public duties, which violent acts he considered to have been committed in his presence.

The committee observed that S.G., who had taken the first applicant to the police station, had stated that he did not know the reason for the arrest.

The committee noted that even supposing that the head injury might have been caused by one of the SUGE officers, the police officers whom it had interviewed had provided no further information such as to establish its origin or the time of its causation. The only conclusions to be drawn from their statements were that the arrest had been violent, because the first applicant had initially resisted handcuffing.

The committee observed that the police and SUGE involvement in the case had been extremely confused. It stated that the police sergeant, who had been assisted by five police officers, ought to have taken control of the situation as soon as he arrived on the scene. He should have intervened between the SUGE officers and the first applicant, immediately placing the latter under his protection, and have asked the SUGE officers why he had been stopped and questioned, with a view to deciding on the appropriate action to take. The committee noted that instead of shouldering that responsibility, the police officers had passively looked on as the SUGE officers used force which the former’s mere presence had rendered illegitimate.

The committee considered that the lawfulness of the apprehension had been highly questionable. Indeed, the first two police officers arriving on the scene had taken the view that the apprehension had not been justified by the first applicant’s attitude outside the railway station. Interrogation of the various parties involved had not made clear whether a serious act of violence had been committed against Y.F. or whether the first applicant had merely pushed him away. The committee noted that the incident appeared in fact to have amounted to a mere scuffle to which Y.F. had reacted impulsively.

It further noted that the SUGE officers had imposed the decision to apprehend the first applicant on the police officers, who were not in control of the situation. The latter had merely passively accepted the applicant’s handover in order to transport him to the police station. That confusion explained why the injury could not be imputed with any certainty to either of the services in question. The committee further stated that even supposing that the injury had been caused by the SUGE officers during the handcuffing operation, at a time when the first applicant should have been under police protection, it was surprising, at the very least, that none of the police officers present had been able to identify the act of violence which had occasioned the injury.

In the committee’s view, the injury under the applicant’s chin raised issues. Even supposing that it had already been there prior to the apprehension and that the wound had reopened, as the police officers affirmed, it pointed at the very least to a very rough mode of transport of an injured person. Lastly, the committee pointed out that it was not its task to issue an opinion on the origin of the head injury or to attribute it to either of the services. It added that the possibility of a joint police/SUGE operation required the respective competences to be strictly defined. It should be reiterated that the arrival of the police removes the SUGE mandate, immediately placing the operation under the sole authority of the most senior police officer present. Moreover, SUGE officers should also be aware of the conditions for the lawfulness of in flagrante apprehensions and should in fact, like police personnel, undergo compulsory conflict management training.

Lastly, the committee decided to transmit its opinion to the public prosecutor for assessment of the expediency of prosecuting those concerned on charges of failure to assist a person in danger.

On 15 February 2010 the investigating judge of the Meaux Regional Court issued a discontinuance order.

She considered that the serious brain damage suffered by the first applicant had originated in events preceding his questioning by the SUGE officers and his transport to the police station by the police officers. She observed that the investigation had failed to establish the precise circumstances under which the events had occurred and to identify the perpetrator. No further investigation had been possible because all the witnesses identified had been heard and the first applicant was no longer capable of providing further information on the series of events of which he had been the victim.

The investigating judge added that the circumstance surrounding the apprehension had been caused by the first applicant’s insulting and violent behaviour. No proof had been provided of illegitimate violence, since it had transpired from the proceedings and the witness statements that the applicant’s head had not hit the ground, and that even supposing that Y.F. had kneed him, such acts did not fall within the category of deliberate violence. The judge stated that the investigation had shown that, owing to the position in which Y.F. had been standing, the intensity of his action had necessarily been limited, forming part of an operational technique.

The applicants, all of whom had joined the proceedings as civil parties, appealed against the discontinuance decision, seeking:

- its annulment pursuant to Articles 184 and 802 of the Code of Criminal Procedure on the grounds that it was identically worded to the public prosecutor’s final submissions;

- the appointment of a panel of experts mandated to produce a fresh report under the supervision of a member of the Investigations Division, and;

- in the alternative, the committal of the defendants for trial by the criminal court for the acts of violence perpetrated against the first applicant.

By judgment of 3 September 2010 the Investigations Division of the Paris Court of Appeal dismissed all those requests. It held that the civil parties had sustained no damage as a result of the grounds of nullity on which they had relied, since they could have adduced their claims in adversarial proceedings before it; it also pointed out that the entire proceedings had been submitted to it and that it was empowered to deal with all aspects of the case. As regards the request for a new expert report, the Investigations Division noted that the first expert report had been drawn up by a panel of four experts with complementary specialities, who had all attended the extremely long and detailed reconstruction organised by the investigating judge, during which they had seen all those involved in the impugned events repeat several times the gestures which they had described, covering all the different versions presented. It held that another expert opinion, for which all this input could not be replicated, would be of no real value for establishing the truth, and that it was neither necessary nor practicable to repeat such a complex reconstruction, which had at no stage been criticised by the various parties involved in the proceedings. The Division added that in medical terms, the civil parties had provided no scientific evidence capable of contradicting the conclusions of the panel of experts, merely affirming that the extremely serious injuries sustained by the first applicant must have originated in the manner of his arrest.

As regards the violence in question, the Investigations Division noted that the first applicant had suddenly lost his temper and struck Y.F. violently on the arm, which had been a deliberate, aggressive act. They therefore considered that the SUGE officers’ intervention to neutralise him had been amply justified, subject to the operation having taken place under appropriate conditions. It nevertheless noted that the operation seemed to have been more “robust” than the SUGE officers had admitted, the latter having spoken of a “textbook” operation, which evoked a theoretical ideal and seemed “too perfect”. Furthermore, the other parties involved had described a swifter series of events than the “takedown” in three separate stages described by Y.F. As regards the possibility that the first applicant had been kneed in the head, the Investigations Department noted divergences in the various witness statements, and concluded that some uncertainty remained as regards both whether such a blow from the knee had actually been administered and whether it had been intentional.

Finally, as regards the causal link between the arrest and the first applicant’s injuries, the Investigations Division noted the general consensus that the applicant had been “in good shape” on being installed in the police vehicle after his handcuffing, and that neither his position in the vehicle nor the speed of transport had suggested that he had been the target of any violence at this stage of events. Referring to the reconstruction, the Investigations Division considered that by reprising all the descriptions of the actions by all those involved and taking on board the hypotheses least favourable to the SUGE officers in question, the experts had been able to ascertain that the arrestee’s head had not hit the ground in any of the reconstructed actions, that the blow from the knee, if such a blow had ever actually occurred, would have affected the right craniofacial region, that if it had been struck as described it could only have had a minor impact and that the actions carried out could not explain the intracranial lesions noted, especially the cranial fracture on the left side of the head. The Court of Appeal further observed that the experts’ findings had been very clear, considering it highly unlikely, or indeed impossible, that the fracture had been caused during the incidents at the railway station or at the police station.

The Division pointed out that the experts had extensively justified their change of mind on the basis of factors which they had noted from the reconstructions of all the different versions, which they had attended, and that the medical evidence gathered would appear to support the existence of a previous traumatic injury which had taken some time to manifest. Lastly, it noted that the previous findings concerning the first applicant’s physical state during the afternoon had lent credence to that eventuality. Furthermore, the time taken for the symptoms to appear would have been incompatible per se with the short lapse of time between the arrest and the first symptoms, too soon after the operation to have been caused by it.

The Investigations Division concluded that the investigation had failed to gather sufficient evidence that a criminal offence had been committed.

On 27 September 2011 the Court of Cassation dismissed the applicants’ appeal on points of law. It held that the applicants could not complain about the reasons given for the discontinuance decision because, owing to the devolutive effect of the appeal, the Investigations Division had substituted its own reasoning for the original one. Moreover, it considered that that Division had analysed all the facts criticised in the complaint, answered all the main points set out in the civil parties’ memorial and determined, on the basis of sufficient and non-contradictory grounds, that there was insufficient evidence that any individuals had committed the offence of collective assault having caused a permanent disability or any other offence.

In observations received by the registry of the Bobigny Compensation Board for Crime Victims (“CIVI”) on 16 March 2012, the Guarantee Fund against acts of terrorism and other criminal offences requested the reimbursement of provisional awards made to the first applicant to a total of 490,000 euros (EUR), under three CIVI decisions of 30 October 2006, 5 July 2007 and 8 December 2009.


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

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

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1931 and lives in Laç.

A. Proceedings concerning the recognition of the applicant’s status as a war veteran

On an unspecified date in 2002 the applicant lodged an application to have his status as a (national liberation) war veteran recognised. On 15 January 2003 the Central Commission on War Veterans (“the Central Commission”), which was the body responsible for the examination of such applications, informed the applicant that it had stopped receiving applications in September 2001.

On an unspecified date in 2003 the applicant lodged an application for leave to appeal out of time. On 13 May 2003 the Lezha District Court allowed his application for leave to submit an application to the Central Commission out of time.

On 19 June 2003, following the Lezha District Court’s decision, the applicant requested the Central Commission to have his status as a (national liberation) war veteran recognised.

On 14 July 2003 the Central Commission informed him, by way of a letter, that, in spite of the Lezha District Court’s decision, it had ceased to operate on 30 July 2002 and could not examine his application. The applicant did not institute any judicial proceedings in response to the Central Commission’s communication.

On 9 December 2004 the applicant was informed by the Directorate of Information at the Council of Ministers (Drejtoria e Informacionit, Këshilli i Ministrave) that the end date for the Central Commission’s operations had been extended to 31 December 2006 (paragraph 26 below).

On 7 December 2005 the applicant lodged a civil action with the Tirana District Court (“the District Court”) for the legal recognition of his time and status as a (national liberation) war veteran (vërtetimin e faktit juridik të njohjes së kohës së veteranit të LANC-it...si dhe njohjen e statusit të veteranit). He relied on Article 388 of the Code of Civil Procedure (“CCP”) (paragraph 27 below), the Status of War Veterans Act (paragraph 21 below) and the Council of Ministers’ decisions no. 190 of 3 May 1995 and no. 748 of 11 November 2004 (paragraph 26 below).

On 1 February 2006 the District Court allowed the action. It found that from 1 March 1943 to the liberation of the country, the applicant had been a messenger for a partisan unit (korrier ... në shërbim të çetës partizane). The Tirana District Court considered just the applicant’s reliance on CMD no. 748 of 11 November 2004. It recognised the applicant’s war veteran status (vendosi...njohjen e statusit të veteranit).

On 14 February 2006 the Central Commission, which had intervened as a third party in the proceedings, appealed against the District Court’s decision arguing that the decision had been taken contrary to the law.

On 1 February 2007, the Tirana Court of Appeal upheld that decision. It found that, in so far as the Central Commission did not challenge the accuracy of the evidence examined by the District Court, its decision was considered just and given in accordance with the law (...meqenëse për provat e paraqitura personi i tretë nuk ka pretendime, Gjykata e Apelit çmon se vendimi i Gjykatës së Rrethit Tiranë është i drejtë dhe i bazuar dhe si i tillë duhet të lihet në fuqi). On 12 March 2007, following a request by the applicant, an enforcement writ was issued.

On 13 April 2007 a bailiff requested the Central Commission to voluntary comply with the court’s decision.

On 26 September 2007 the bailiff’s office decided to conclude the enforcement proceedings (pushimin e ekzekutimit) on the grounds that the judgment was of a declaratory nature, was not directed against a debtor and that no rights or obligations had arisen therefrom. The court decision had been transmitted to the Central Commission for further action.

Following requests by the applicant to the authorities, on 2 and 13 July 2007 and 4 March 2008 the Ministry of Defence informed him that the Central Commission had ceased to exist on 31 December 2006. Despite efforts to extend its operations into 2007, no legislation had been subsequently adopted to enable it to continue.

B. Proceedings concerning the payment of financial entitlements on account of the applicant’s war veteran status

On 5 March 2008 the applicant lodged a civil claim requesting the Central Commission to pay him the financial entitlements he was eligible to under domestic law on account of his status as a war veteran.

On 23 October 2008 the Tirana District Court dismissed the claim. It held that the decision of 14 February 2006, as upheld on appeal on 1 February 2007, recognised the existence of a legal fact on the basis of Article 388 of the CCP and was of a declaratory nature. An interested party could institute proceedings for the recognition of the existence of a legal fact; however, the authority competent for recognising a person’s war veteran status was the Central Commission. That entity had never examined an application made by the applicant, who had never been recognised as having war veteran status. When a decision by the Central Commission was taken, it was amenable to appeal before the national courts. The Central Commission’s powers had not been transferred to any other authority.

Appeals lodged by the applicant with the Tirana Court of Appeal, Supreme Court and Constitutional Court were dismissed on 8 December 2009, and 10 February and 18 May 2012 respectively.


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

A list of the applicants is set out in the Appendix.

The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

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

Between 1986 and 1987 the applicants took part in the clean-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis.

Considering these benefits insufficient, the applicants together with 482 other people, most of them represented by Ms A., sued the Russian Ministry of Finance for additional compensation corresponding to non-pecuniary damage suffered as a result of their participation in the operation.

On different dates in February and April 2011 the Nalchik Town Court of Kabardino-Balkaria (“the Town Court”), presided over by Judge Be., allowed their claims in part and awarded each claimant, including the applicants, compensation ranging between 1,200,000 Russian roubles (RUB) and RUB 1,800,000 for non-pecuniary damage.

No appeals were lodged against these judgments within the statutory ten-day time-limit.

On 26 October 2011 Mr Samoylenko (no. 58068/13), Mr Chechenov (no. 58078/13) and Mr Ovcharov (no. 58429/13) received the amounts awarded by the Town Court.

On 21 December 2011 Mr Kuchmezov (no. 58078/13) received his payment.

On 6 and 7 June 2011 respectively the Town Court, again presided over by Judge Be., rejected a request by the defendant authority to have the time-limits for appeal extended (“extension request”) on the ground that it had not given a valid reason for its failure to comply with the statutory timelimits. The decision indicated that the defendant authority had been represented at the hearing by Ms B., an employee of the regional department of the State Treasury.

On 23 October 2012 the defendant authority lodged an appeal against the decision issued in 2011 by which the Town Court refused to extend the time-limits for appealing against the main judgments. It was accompanied by an extension request.

On 15 and 16 November 2012 respectively the Town Court, presided over by Judge Be., granted the defendant authority’s extension request.

Mr Chechenov appealed.

On 27 December 2012 the regional Supreme Court dismissed his appeal on the grounds that the domestic courts had failed to serve the defendant authority with the main judgments. Moreover, it noted that it was apparent from the transcript of the hearing of 6 June 2011 that the Town Court had neither verified whether Ms B. had been duly appointed to represent the Ministry of Finance nor ascertained her identity.

On 28 February 2013 the regional Supreme Court quashed the decisions adopted by the Town Court on 6 and 7 June 2011 and granted the defendant authority’s extension request on the ground that it had had a valid reason for missing the statutory time-limit for appeal.

On the same day the regional Supreme Court quashed the main judgments delivered by the Town Court in the applicants’ favour on the grounds that they had been based on a retrospective application of the law. The applicants were ordered to repay the sums received under the judgments.

The applicants, all assisted by their lawyers, lodged a supervisory review application. There is no indication that they requested the enforcement proceedings to be suspended pending the examination of their supervisory review application.

According to the applicants, they were visited by bailiffs who sought the reimbursement of the sums received under the quashed judgments.

On 11 July and 29 August 2013 the Presidium of the regional Supreme Court partially quashed the appeal judgments as regards the applicants’ obligation to reimburse the sums paid.

On an unspecified date at the end of 2012 the President of the Supreme Court of Kabardino-Balkaria lodged a request with the Judicial Qualifications Board of Kabardino-Balkaria, seeking to have disciplinary measures taken against Judge Be. for serious procedural violations during the examination of civil claims for compensation by clean-up workers at the Chernobyl nuclear disaster site. In particular, she had accepted for examination claims failing to comply with the admissibility criteria, had failed to publish her judgments on the court’s website within a reasonable time, had allowed representatives without proper forms of authority to take part in the proceedings, and had failed to properly inform the parties of the decisions taken.

On 7 December 2012 the Judicial Qualifications Board found Judge Be. responsible for the serious procedural violations and ordered her removal from office.

On 25 October 2013 the North Caucasus investigative committee initiated a criminal investigation against Judge Be. under Article 305 § 2 of the Criminal Code (pronouncement of a deliberately unlawful judgment).

On 4 March 2013 the North Caucasus investigative committee opened criminal case no. 70/17-13 against Ms A., the applicants’ representative in the domestic proceedings, under Article 159 of the Criminal Code (fraud). Ms D., the clerk of the Town Court was also prosecuted.

According to the Government, in June 2015 both of them decided to plead guilty.

On 10 October 2014 Mr Kuchmezov, the head of the regional organisation Chernobyl Union, was arrested on suspicion of fraud.

It was established in the course of the investigation that on 22 December 2011 and 26 June 2012 he had withdrawn money from two other former Chernobyl workers’ bank accounts. However, he had not informed them of the exact amounts awarded by the court and had given them only a part of their compensation.

Article 112 of the Russian Code of Civil Procedure (“the CCvP”) provides that a court may extend a time-limit for a procedural action, such as lodging an appeal, if it finds that a party has a valid reason for missing it.

Under Article 338 of the CCvP, in force before 1 January 2012, an appeal in a civil case could be lodged within ten days of delivery of the firstinstance judgment in its final form. Since 1 January 2012 the timelimit for lodging an appeal has been one month (Article 321 of the CCvP).

Article 1109 § 3 of the CCvP stipulates that where a decision to award compensation for damage to health is quashed on appeal or by way of supervisory review, and that decision has been taken in the absence of bad faith and miscalculation on the part of the recipient, the compensation itself cannot be claimed back.

Section 39 (2) (1) of the Enforcement Act provides that enforcement proceedings may be suspended by the domestic court if the judgment on the basis of which a writ of execution was issued is amenable to review. Section 45(6) of the same Act provides that no coercive measures may be taken if enforcement proceedings have been stayed.


CASE OF LUPENI GREEK CATHOLIC PARISH AND OTHERS v. ROMANIA

No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

Alena Poláčková;András Sajó;Angelika Nußberger;Branko Lubarda;Carlo Ranzoni;Egidijus Kūris;George Nicolaou;Guido Raimondi;Iulia Motoc;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Paulo Pinto De Albuquerque;Robert Spano;Síofra O’Leary;Stéphanie Mourou-Vikström;Georges Ravarani

The three applicants belong to the Romanian Church United to Rome, also known as the Greek Catholic or Uniate Church.

In 1948 the Greek Catholic Church was dissolved by Decree no. 358/1948, and its assets, with the exception of parish property, were transferred to the State; an inter-departmental committee was given responsibility for determining the ultimate allocation of the parish property. However, the committee never completed this task and the parish property was transferred to the Orthodox Church under Decree no. 177/1948.

In 1967 the property comprising the church building and the adjoining courtyard, which had belonged to the first applicant, was entered in the land register as having been transferred to the ownership of the Lupeni I Romanian Orthodox Parish (“the Orthodox parish”).

After the fall of the communist regime in December 1989, Decree no. 358/1948 was repealed by Legislative Decree no. 9/1989. The Uniate Church was officially recognised by Legislative Decree no. 126/1990 on certain measures concerning the Romanian Church United to Rome. Article 3 of that Legislative Decree provided that the legal status of property that had belonged to the Uniate parishes and that was in the possession of the Orthodox Church was to be determined by joint committees made up of representatives of both Uniate and Orthodox clergy. In reaching their decisions, the committees were to take into account “the wishes of the worshippers in the communities in possession of these properties”.

Article 3 of Legislative Decree no. 126/1990 was amended by Government Ordinance no. 64/2004 and Law no. 182/2005. Under the amended decree, in the event of disagreement between the members of the clergy representing the two denominations in a joint committee, the party with an interest in bringing judicial proceedings could do so under “ordinary law” (drept comun, see the procedure referred to in paragraphs 41 and 121 below).

The first applicant was legally re-established on 12 August 1996 and the applicants brought proceedings before the joint committee to have their former properties returned to them, but without success.

The domestic law, in particular Legislative Decree no. 126/1990 and the amendments made to it in 2004 and 2005, is set out in paragraphs 39 to 43 below.

On 23 May 2001 the second applicant brought proceedings before the domestic courts against the Arad Orthodox Archdiocese and the Orthodox parish. It requested that the expropriation of the church building and cemetery in Lupeni, carried out on the basis of Decree no. 358/1948, be set aside, and that the church be returned to the first applicant. The first and third applicants were mentioned in the initial statement of claim as representatives of the second applicant.

By a judgment of 10 October 2001, the Hunedoara County Court (“the County Court”) declared the action inadmissible on the ground that the dispute ought to be settled through the special procedure established by Legislative Decree no. 126/1990, that is, before the joint committee.

The first and second applicants lodged an appeal against that judgment. On 22 February 2002 they requested a stay of proceedings so that the case could be resolved by friendly settlement. On 25 March 2003 they applied for it to be restored to the court’s list of cases. On the same day, the Alba-Iulia Court of Appeal (“the Court of Appeal”) dismissed the appeal, holding that the action was premature. In a final judgment of 24 November 2004, ruling on an appeal on points of law (recurs) by the first and second applicants, the High Court of Cassation and Justice (“the High Court”), quashed the Court of Appeal’s judgment and sent the case back to that court to be examined on the merits.

On 12 May 2006, in application of the legislative amendments to Legislative Decree no. 126/1990 which gave the courts jurisdiction to rule on the merits of cases concerning properties that had belonged to the Uniate parishes and were in the possession of the Orthodox Church (see paragraph 42 below), the Court of Appeal upheld the second applicant’s appeal and sent the case back to the County Court.

On 27 July 2006, when the case was restored to the County Court’s list, the action was amended in order to add the first and the third applicants formally as claimants in the proceedings. On 8 November 2006 the applicants supplemented their action with a claim for recovery of possession of the properties in question, on the basis of ordinary law.

The County Court asked the parties to organise a meeting in order to decide the fate of the church building in question, and to inform it of the outcome of the negotiations by 25 April 2007. The parties met on 20 April 2007 without reaching an agreement.

By a judgment of 27 February 2008, the County Court dismissed the applicants’ action on the ground that the Orthodox parish had become the legally recognised owner of the contested property by virtue of Decree no. 358/1948 and that it had behaved as an owner, inter alia by ensuring that the church was maintained properly.

By a judgment of 26 September 2008, ruling on an appeal by the applicants, the Court of Appeal set aside the judgment of 27 February 2008 on grounds of a procedural defect and remitted the case to the County Court.

By a judgment of 13 February 2009, the County Court found in favour of the applicants and ordered that the church be returned to the first applicant. Comparing the parties’ title deeds in respect of the property in question, it noted that the Greek Catholic party had been entered in the land register as owner of the property from 1940, and that in 1967 the Orthodox Church had entered its ownership right to the same property, transferred to it under Decree no. 358/1948. It held that the repealing of Decree no. 358/1948 had had the effect in the present case of terminating the Orthodox party’s right of ownership over the disputed property. It also pointed out that the first applicant did not have a place of worship and that it was obliged to hold its religious services in premises which it rented from the Roman Catholic Church.

By a judgment of 11 June 2010, the Court of Appeal allowed an appeal lodged by the Orthodox parish and dismissed the applicants’ action. On the basis of the evidence in the case file, it noted, firstly, that the church building being claimed and two parsonages in Lupeni had been constructed between 1906 and 1920 by Eastern-rite Orthodox and Greek Catholic worshippers and that, after its construction, the church building had been used alternately for services by both denominations. It noted that in 1948 the members of the Greek Catholic Church had been obliged to convert to the Orthodox Church and that this church building had been transferred to the ownership of the Orthodox Church, which had maintained it and carried out renovation work.

The Court of Appeal also examined statements, collected by the County Court, from four witnesses. It noted that these statements supported the statistical data indicating that there were more Orthodox than Greek Catholic worshippers in Lupeni. It noted that, according to the most recent census, there were 24,968 Orthodox worshippers and 509 Greek Catholic worshippers in Lupeni. It also compared the witness statements, written documents attesting to the number of Greek Catholic worshippers as declared when the Greek Catholic Church was re-established in Lupeni, and data from the most recent census conducted in Lupeni.

It then reasoned as follows:

“... although the action was based on the provisions of ordinary law, namely Article 480 of the Civil Code, in view of its subject matter the court cannot rule without applying the provisions of Article 3 § 1 of Legislative Decree no. 126/1990, to the effect that the legal situation of places of worship and parsonages ... must be determined taking account of the wishes of the worshippers in the community that is in possession of the properties”.

It considered that, given that there were more Orthodox than Greek Catholic worshippers in Lupeni, including the converts who no longer wished to return to the Greek Catholic Church, their refusal had to be taken into account in ruling on the case. It found that “having regard to the social and historical realities, ignoring the wishes and proportional strength of Orthodox worshippers, who are in the majority, in relation to the far fewer Greek Catholic worshippers, would be to undermine the stability and certainty of legal relations”.

The Court of Appeal held that the fact that Decree no. 358/1948 had been repealed did not automatically mean that the Orthodox Church’s title had been annulled, as this Decree represented the law in force at the time that the ownership right was transferred. In consequence, it considered that, although it had been granted under legislation which had subsequently been declared unlawful, the Orthodox Church’s title had been valid from the date on which the transfer had been made, with the result that the action to recover possession was unfounded.

The applicants lodged an appeal on points of law before the High Court, alleging that the Court of Appeal had incorrectly applied the legal provisions governing actions for recovery of possession. They argued that the right of ownership could not be linked to a religion’s majority status, since ownership was a legal concept that was independent of the numerical strength and wishes of the parties.

On 15 June 2011 the High Court, by a majority, delivered a final judgment in which it set out, in detail, the decisions taken by the lower courts. Reiterating that those courts alone had jurisdiction to establish the facts, it endorsed their findings of fact. It dismissed the applicants’ appeal on points of law and upheld the judgment delivered on appeal. As to the applicable law, it held, in particular, as follows:

“Pursuant to Legislative Decree no. 126/1990 ... a distinction is made between two situations: (a) that in which the property is in the ownership of the State ... (b) that in which the places of worship and the parishes have been taken over by the Romanian Orthodox Church and in respect of which [the question of] restitution will be decided by a joint committee made up of representatives of the clergy of the two denominations, a committee which will take account of the wishes of the worshippers in the communities in possession of these properties.

In the light of those provisions, the Court of Appeal, examining an action for recovery of possession of a place of worship, correctly applied the criterion of the wishes of the (predominantly Orthodox) worshippers of the community in possession of the property, while simultaneously emphasising the unlawfulness of the reasoning of the first-instance court, which had merely compared the title deeds and ignored the special law...

However, it appears that there are 24,968 Orthodox worshippers and 509 Greek Catholic worshippers in Lupeni, that the worshippers who were obliged to transfer to the Orthodox Church in 1948 do not wish to return to the Greek Catholic Church and that an attempt has been made to resolve [the dispute] through the joint clerical committee (according to the minutes of 20 April 2007 ... the Orthodox party had indicated that the request for the return of the place of worship could not be granted, having regard to the wishes of the worshippers in the parish and the fact that since 1948 the place of worship has been administered by the Orthodox believers)...

The fact of supplementing Article 3 [of Legislative Decree no. 126/1990] with a paragraph stating “If the committee does not meet within the period established in its mandate, or if the committee does not reach a conclusion or if one of the parties is dissatisfied with the decision taken by the committee, the party with an interest in bringing judicial proceedings may do so under ordinary law” does not mean that actions for restitution governed by the special provisions are transformed into applications to establish title under ordinary law.

A court which is required to examine such an action cannot ignore the special regulations in this area, which indicate the criterion to be taken into account in resolving such claims, namely the wishes of the worshippers in the community in possession of the property.

In other words, by virtue of its full jurisdiction and in order not to compromise access to justice, a court may be called upon to decide an action on the merits, even though the prior procedure did not culminate in a decision by the joint clerical committee; at the same time, however, it may not go beyond the limits imposed by the special statutory framework.

The priority to be given to the criterion of the worshippers’ wishes was decided by the legislature, which wished in this way to regulate an area which concerns the buildings assigned to a particular use (places of worship), [and so] the court is not entitled to criticise the law.

Moreover, in ruling on the alleged unconstitutionality of Article 3 of Decree no. 126/1990 and the criterion of the worshippers’ wishes, the Constitutional Court has stated that the text did not infringe the principle of democracy of the Romanian State, nor that of the freedom of religious denominations (CC decision no. 23/1993, CC decision no. 49/1995)...

In the Court of Appeal’s view, the fact that the State unlawfully dispossessed the Greek Catholic Church of its places of worship in 1948 cannot be remedied – in a State subject to the rule of law – by committing the opposite error, that is, by failing to take account of the wishes of the majority of worshippers at the point of adopting the given measure. Returning the properties which belonged to the Greek Catholic Church without respecting the criteria imposed by Article 3 § 1 of Legislative Decree no. 126/1990 would undermine the stability and certainty of legal relations. A right cannot be reconstructed in abstracto, in disregard of social and historical realities, and mitigation of past damage must not create disproportionate new problems...

Moreover, in order to be able to bring an action for recovery of possession under ordinary law rather than under the special law, the appellants must rely on the existence of a “possession”, namely of a pecuniary right that could be relied upon by them.

However, the Greek Catholic denomination was dissolved by Decree no. 358/1948 and the assets of the Greek Catholic Church passed into the ownership of the State. The building in question is currently entered (in the land register ... as belonging to the Lupeni I Romanian Orthodox Church.

The fact that, through Legislative Decree no. 9/1989, the Romanian Church United to Rome (Greek Catholic) was officially recognised following the repeal of Decree no. 358/1948 does not mean that all of its titles to property were restored, in so far as the right of ownership is subject to a procedure (namely the provisions of Legislative Decree no. 126/1990 and its subsequent amendments), and the hope of obtaining title to property is not to be equated with a possession...”

In a separate opinion, one of the judges sitting in the case noted that the legislature’s reference to ordinary law could not be reduced to a purely procedural dimension, but was to be interpreted as the application of a rule of substantive law. Referring to the rules governing the preparation of statutes, the judge expressed the opinion that if the legislature had wished to ascribe a specific meaning to this reference to “ordinary law”, it ought to have done so explicitly. As an action for recovery of possession involved a comparison of the relevant property titles, the judge concluded that the Orthodox Church had no such title to the church building in question.


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

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

The applicants are Russian nationals. They owned rooms in a dormitory building in the municipality of Samara. The municipality reclaimed the building, and the applicants’ title to the real property in question was annulled as a result of civil proceedings brought against them by a prosecutor on behalf of the municipality. According to the Government, the judgment has not been enforced and the applicants continue to reside in the rooms they had bought.

Ms Vasyukhina and Mr Vasyukhin (application no. 45173/08) submitted that they had never moved into the rooms as they were occupied by other individuals.

In 1993 a State-owned enterprise called Samaraavtotrans was privatised and reorganised into a joint-stock limited liability company called Stroitel. The privatisation plan was approved by the municipality and the Regional Property Fund signed the plan on its behalf. In accordance with the privatisation plan, all residential buildings previously listed on Samaraavtotrans’s balance sheet were to be transferred to the municipality, while the administrative buildings were to be taken over by Stroitel. The privatisation plan referred to a building located at no. 61 Yunykh Pionerov Avenue, Samara, as an administrative building (used for non-residential purposes), and it was transferred to Stroitel.

As a result of a number of reorganisations of Stroitel, the title to the building in question was transferred to the closed joint-stock company, Stroitel-M. Subsequently, separate rooms in the building were resold to third parties, including the applicants. The information concerning the applicants’ titles to the property can be found in the appendix below. According to the title deeds, the applicants were owners of non-residential premises.

The applicants moved into the rooms and resided there.

On 23 August 2002 the Samara Region Commercial Court found the Samaraavtotrans privatisation plan and the agreement of 10 November 1993 – which the Regional Property Fund and Stroitel had entered into, and which partly concerned the transfer of the title to the building to Stroitel – null and void.

On an unspecified date the Promyshlenniy district prosecutor, acting in the interests of the municipality, brought an action against Stroitel, Stroitel-M and the owners of the rooms in the former dormitory building, including the applicants. Referring to the invalidation of the privatisation of Samaraavtotrans, the prosecutor submitted that the subsequent transactions relating to the building were also null and void, and asked the court to return the title to the building to the municipality.

According to the applicants, on 27-28 October 2003 the Promyshlenniy District Court of Samara (“the District Court”) dismissed the prosecutor’s claim. On 20 January 2004 the Samara Regional Court (“the Regional Court”) quashed that judgment and remitted the matter to the District Court for fresh consideration.

On 14 June 2005 the District Court dismissed the prosecutor’s claim. On 2 August 2005 the Regional Court upheld the judgment of 14 June 2005 on appeal.

On 18 May 2006 the Presidium of the Regional Court quashed the judgments of 14 June and 2 August 2005 by way of supervisory review, and remitted the matter to the District Court for fresh consideration. The Presidium noted that the lower courts had erroneously applied substantive and procedural laws when deciding the matter.

On 14-19 November 2007 the District Court allowed the prosecutor’s claim in full. The court recognised that the owners of the rooms were bona fide purchasers, but ordered that the title to the building be transferred to the municipality. The municipality, the true owner of the building, had not authorised the purchase of the rooms in the building by their current owners. Accordingly, the sale of the building in the absence of authorisation by the municipality meant that the municipality had lost possession against its will, and could recover its property from bona fide purchasers.

On 12 February 2008 the Regional Court upheld the District Court’s judgment of 1419 November 2007 on appeal.

The applicants in the present application, Mr Vitaliy Vasyukhin and Ms Darya Vasyukhina, were minors at the relevant time.

On an unspecified date, acting on their behalf, the applicants’ mother sued Mr B. (the person who had sold the rooms to the applicants) for damages.

On 10 December 2010 and 16 June 2011 the Oktyabrskiy District Court of Samara granted her claims and awarded damages in the amount of 600,000 Russian roubles (RUB) to each of the applicants. On 10 February and 4 July 1011 the Regional Court upheld the above-mentioned judgments on appeal.

On an unspecified date a bailiff initiated enforcement proceedings. On 4 March 2014 he discontinued the enforcement proceedings, noting that it was impossible to establish Mr B.’s whereabouts or identify his assets, if any such assets existed.

It appears that the enforcement proceedings in respect of the judgment of 16 June 2011 are still pending.


CASE OF CUNHA MARTINS DA SILVA COUTO v. PORTUGAL

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

Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1961 and lives in Porto.

On an unknown date, the applicant and I. dissolved their marriage and the latter stayed with the children’s custody.

On 28 November 2008 the Porto Family Court adopted a decision establishing the applicant’s contact rigths.

On 27 May 2009 I. sent a letter to the applicant informing him that she had suspended his contact rights.

On 5 June 2009 the applicant lodged an application with the Porto Family Court informing about I.’s decision to not comply with the court’s decision of 28 November 2008 and asking the court to schedule a hearing with him and his former wife (audiência de pais) so he could continue to have access to his children (processo de incumprimento das responsabilidades parentais).

In June 2009 the Porto Family Court held a hearing with the parents and subsequently requested a social report about the children to the Social Security Institute (Instituto da Segurança Social).

On 14 July 2009 the Porto Family Court adopted a decision suspending the applicant’s right to visit his children for a period of three months on the grounds of the social report that had been submitted on 13 July 2009. The Family Court also requested a psychological assessment of the children.

From September 2009 to January 2012 the applicant lodged several requests with the Family Court seeking the reestablishment of his right to visit his children and asking permission to spend special dates (birthdays, Christmas, Easter) with them.

On 4 February 2010 the Social Security Institute submitted the children’s psychological report to the Family Court. On 18 February 2010 the report was challenged by the applicant who complained that he had not been heard. On 5 March 2010 the Family Court ordered the psychological report to be completed after the applicant had been heard.

On 22 March and 27 August 2010 two new reports were submitted to the Family Court and a mediation hearing with the parents was scheduled for November 2010. The hearing did not take place due to I.’s refusal to participate in the mediation. The proceedings continued and, on an unknown date, the Family Court adopted a decision stating that the applicant’s visits would continue to take place in an open place and in dates to be decided by the court.

On 30 March 2011 a hearing with the parents took place and both agreed that the applicant could continue to visit his children in the Family Court’s premises.

On 25 November 2011 the Family Court requested another social report on the children’s situation and their family.

On 2 February 2012 another social report was submitted to the Family Court and on 28 February the applicant was heard.

A hearing with the parents was scheduled for 27 March 2012 and later postponed to 2 May 2012. A few days after this hearing, the children were heard by the Family Court.

On 10 May 2012 a new hearing took place in which the applicant and I. reached a settlement concerning the rights of the former to visit the children. On the same day, the Family Court endorsed the agreement.