CASE OF ADEISHVILI (MAZMISHVILI) v. RUSSIA

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional)

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

The applicant was born in 1975 and lives in the Ivanovo Region.

According to the applicant, in 1991, at the age of fifteen, he moved to Russia from Georgia with his parents. In 1998 he settled in Shuya, Ivanovo Region, whereas his parents moved back to Georgia.

On 18 November 1999 the Shuya Town Court of the Ivanovo Region found the applicant guilty of extortion and theft of a passport, and sentenced him to three years and one month’s imprisonment. According to the applicant, in order to spare his mother’s feelings, he told the prosecuting authorities that his name was Shermandin Goderziyevich Mazmishvili. On 4 June 2001 the applicant was released on parole. Upon release he was issued with an ID card in the name of Shermandin Goderziyevich Mazmishvili.

On 26 April 2005 the Town Court found the applicant guilty of theft and sentenced him to three years’ imprisonment. Again he claimed that his name was Shermandin Goderziyevich Mazmishvili and presented the relevant ID card. On 1 June 2007 the applicant was released on parole.

The applicant was in a relationship with Ms K. On 29 February 2008 Ms K. gave birth to a girl. On 21 September 2009 the applicant was recognised as the girl’s father. On 22 September 2009 the applicant and K. got married. On 20 December 2011 Ms K. gave birth to the couple’s second daughter. According to the Government, Ms K. and her two daughters are Russian nationals.

According to the Government, on 19 June 2007 the applicant was found administratively liable for failing to have his residency in Russia duly authorised.

On 26 June 2007 the applicant was registered as a migrant under the name of Mazmishvili. The registration remained valid until 26 October 2007.

It appears that on an unspecified date the applicant asked the Russian migration authorities to issue him with a Russian passport indicating that his name was Shota Petrovich Adeishvili. Following their refusal, the applicant lodged a claim with the Digora District Court of the Northern Osetiya and Alaniya Republic, asking the court to confirm that he had been residing permanently in Russia since 1991.

On 30 October 2007 the District Court granted the applicant’s request. The court based its findings on the applicant’s birth certificate in the name of Shota Petrovich Adeishvili submitted by him, a certificate issued by the Digora municipal authorities and the testimony of Ms G., stating that the applicant had been renting a flat from her since 1991.

On 8 July 2008 the applicant received a Russian passport in the name of Shota Petrovich Adeishvili.

On 10 February 2010 the regional migration service asked the District Court to quash the judgment of 30 October 2007 and remit the matter for new consideration.

On 17 March 2010 the District Court quashed the judgment of 30 October 2007, noting that the certificate confirming the applicant’s residence in Digora had not in fact been issued by the town administration. The matter was remitted for fresh consideration.

On 31 March 2010 the District Court noted that the applicant, who had been duly notified of the date and time of the court hearing, had failed to appear in court on two occasions. The Court left the matter without consideration on the merits and discontinued the proceedings. The applicant did not appeal.

On 18 April 2010 the migration service terminated the applicant’s Russian citizenship and invalidated his passport. According to the applicant, the migration services transmitted the case file to the prosecuting authorities for further inquiry. He did not inform the Court of the inquiry’s outcome.

On 8 July 2010 the applicant was arrested and taken to a police station where he spent the whole day. His passport was confiscated. On the same day an expert from the regional department of the interior confirmed that the applicant’s fingerprints corresponded to those belonging to Shermandin Goderziyevich Mazmishvili.

In the evening of 8 July 2010 the applicant was taken to the Shuya Town Court, which started the hearing at 11 p.m. The applicant was represented by a State-appointed lawyer. The Town Court considered that the applicant was Shermandin Goderziyevich Mazmishvili. It found that, as a person without citizenship, he had failed to have his residency in Russia duly authorised. It therefore imposed a fine on him and ordered his expulsion from Russia to Georgia. The court also held that the applicant should be remanded in custody pending expulsion until 8 September 2010. In particular, the court noted as follows:

“When deciding whether to expel Sh. G. Mazmishvili and taking into account that the defendant has a family and a minor child, the court sees no reason not to expel [him] in view of the offences he has committed in Russia, his unlawful acquisition of a Russian passport and his lack of employment.”

The applicant appealed against the judgment of 8 July 2010 alleging, inter alia, that the State-appointed lawyer had not carried out his defence effectively, and that the court had failed to provide him with a copy of the decision of 17 March 2010 or a record of his own questioning of 14 September 1999.

On 26 July 2010 the Ivanovo Regional Court upheld the judgment of 8 July 2010 on appeal. The applicant was represented by counsel of his own choosing.

On 18 August 2010 the police sent the documents concerning the applicant’s expulsion to the Georgian authorities.

On 30 August 2010 the President of the Regional Court upheld the judgments of 8 and 26 July 2010.

It appears that the regional migration service could not prepare the documents necessary to expel the applicant to Georgia and asked the Town Court to extend the applicant’s detention pending expulsion.

On 6 September 2010 the Town Court extended the applicant’s detention until 7 October 2010. The court noted that the Georgian authorities had not yet prepared the documents necessary for the applicant’s expulsion to Georgia. The court considered that the applicant, if released, might abscond or fail to comply with the expulsion order. The applicant’s detention was repeatedly extended by the Town Court.

On 3 January 2011 the Georgian authorities informed the regional migration service that a real Shermandin Goderziyevich Mazmishvili was residing in Georgia and it was not possible to issue the requested documents in that name for the applicant’s expulsion to Georgia.

On 7 February 2011 the Town Court ordered the applicant’s release. Referring to the information supplied by the Georgian authorities, the court considered that it was not possible to expel the applicant under the name of Mazmishvili.

According to the Government, the applicant has not been expelled. He has no document confirming his ID, and the Russian authorities have not established his identity.

According to the applicant, the Town Court, when deciding to detain him pending expulsion, took into account a certificate prepared by police captain P. on which it was noted that the applicant “had been involved in car thefts, belonged to the Shuya organised criminal group ... [and] was a drug dealer.”

Despite a complaint lodged by the applicant that P. had knowingly disseminated false information about him, on 18 August 2010 the prosecutor’s office refused to institute criminal proceedings against P.

From 9 July 2010 to 7 February 2011 the applicant was held in a special detention centre in Ivanovo.

According to the Government, all the inmates detained with a view to expulsion were held in cells nos. 2, 3 and 4. During the period of the applicant’s detention, the cell population varied from three to sixteen persons in all three cells. On average, the number of persons detained in a cell was four to five.

Each detainee was provided with a mattress, a pillow, sheets and a blanket. The sheets were changed on the days the applicant was allowed to take a shower. According to the relevant ledger, the applicant took showers on 9, 21 and 29 July, 4, 14, 24 and 30 August, 7, 13, 27 and 30 September, 1, 12, 15, 22 and 29 November, 6, 13, 20 and 27 December 2010, and on 13, 19 and 25 January and 1 February 2011.

Each cell had a window opening onto a hallway. The window was covered with a metal grill. The light coming from the hallway was sufficient for reading. The window was periodically kept open to ensure proper ventilation of the cell. There was a table and a bench with seating for four persons in each cell. Both the table and the bench were fixed onto the floor.

The cells where the applicant was detained from 9 July to 30 September 2010 were not equipped with a toilet. The detainees were taken out of the cell at least twice a day to use the toilet in the building. During the nighttime the inmates had to use buckets placed in the cells. The buckets were emptied and disinfected daily. In September 2010 toilets and wash sinks were installed in all cells of the special detention centre. They became operational in October 2010.

Food was provided three times a day. Breakfast consisted of hot tea, sugar and a pastry; lunch comprised of soup, meat or fish with a side dish, and tea with sugar or a fruit drink. The applicant also received food parcels from his family and friends.

According to the applicant’s file, he declared a hunger strike twice. Each time he was examined by a paramedic. On a number of occasions ambulance doctors attended to the applicant.

The special detention centre had an exercise area measuring 4.66 m by 3.7 m covered with a metal grill. The detainees had one hour’s outdoor exercise daily.

The applicant was allowed to telephone his family on several occasions. The internal regulations did not provide for the right to a family visit.

The applicant provided the following information as regards his detention in the special detention centre:

Prior to the refurbishment of the special detention centre, there had been no toilets or wash sinks in the cell. The inmates had had to use a bucket placed in the cell. It had been emptied twice a day. The inmates had been allowed to use toilets outside the cell twice a day. The toilets had offered no privacy. Six to eight inmates had been taken simultaneously to the lavatory and had had to use the toilet in front of the others waiting for their turn.

The toilets installed in the cells offered no privacy either. Only cell no. 8 had a one-metre high partition separating the toilet from the living area of the cell.

The applicant did not contest the Government’s submissions as regards the frequency of the showers he had been allowed to take. According to him, the hot water had run out after the first ten minutes. Each time the inmates had had from fifteen to twenty-five minutes to take a shower and to do their laundry. They could use only cold water for the laundry. The sheets, which were old and ragged, had been changed every two weeks.

The windows in the cell were covered by two sets of metal bars on both sides. Access to daylight was insufficient. The table and the bench allowed for two persons to eat. The rest of the inmates had to eat sitting on their beds. In cell no. 3 the applicant was given a mattress that was infested with lice.

Cell no. 9, which was unofficially called “a disciplinary cell”, had no windows. During the four days the applicant spent in that cell, he was not taken out for outdoor exercise.

The daily outdoor exercise lasted thirty minutes and took place in a yard measuring 12 square metres.

The applicant had nothing to do while detained at the special detention centre. There was no library, television or radio. He was not allowed to subscribe to a newspaper or a magazine.

Breakfast was served at 7 a.m., lunch was served at 3 p.m. and dinner, if any, was served at 5 p.m. Breakfast consisted of a piece of white bread, a mug of hot water and a piece of sugar. No spoon was provided. For lunch inmates received soup with an unpleasant odour and taste, a minced meat cutlet and a piece of rye bread. For dinner they were given a burger and cabbage. The meals were the same every day. Because of the applicant’s condition, he could not eat any of the food served. Drinking water was not provided at all. The foodstuff sent by the applicant’s family quickly perished as no fridge was provided and the applicant had to store the food under his bed.


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

Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1963 and lives in Zagreb.

He is an advocate. In that capacity, he represented the plaintiff in civil proceedings instituted on 5 February 2009 before the Vukovar Municipal Court (Općinski sud u Vukovaru), in which his client sought payment of a certain amount of money from the defendant.

On 16 November 2009 the Municipal Court held a hearing, which the applicant attended. At the end of the hearing, the court scheduled the next one for 17 December 2009.

The applicant did not attend the hearing of 17 December 2009, at which the court made a decision to suspend the proceedings (mirovanje postupka) in accordance with section 216(1) of the Civil Procedure Act (see paragraph 18 below).

On 31 December 2009 the applicant, on behalf of the plaintiff, lodged an appeal against that decision.

He explained that he had been unable to attend the hearing owing to a vehicle malfunction, and that he had tried to contact the court and the defendant’s representative, with a view to informing them of the reason for his absence. He further stated that, after the hearing, he had spoken by telephone with the defendant’s representative, who had told him that, despite his (the representative’s) suggestion to proceed and hear the defendant’s testimony, the court had decided to adjourn the hearing and suspend the proceedings. The applicant argued that, if that was true, the court’s decision to suspend the proceedings had had no legal basis. He explained that suspending proceedings was an instrument for maintaining procedural discipline, the effect of which was to delay proceedings and thereby penalise the parties for their inaction. Yet, in his case, he and his client had been penalised by a delay even though it was through no fault of his own that he had failed to attend the hearing. He then stated:

“With a view to highlighting the unacceptable conduct of the judge, the following circumstances have to be mentioned.

The parties’ representatives and the defendant attended the hearing held on 16 November 2009.

The plaintiff did not attend because no testimonies from the parties were scheduled, he is of low income, and he resides in Pula.

The hearing in question was characterised by the fact that the party present at court did not give evidence and the judge attempted to adjourn the hearing without scheduling another one.

The judge [eventually] adjourned the hearing, and only at the insistence of the plaintiff’s representative scheduled another one for 17 December 2009.

Since the plaintiff’s representative has no reason to doubt the defendant’s representative’s statement that he had suggested hearing the defendant’s testimony at the hearing in question [the hearing of 17 December 2009], that statement indicates that the court could not have issued the contested decision.

The contested decision should therefore be quashed.”

By a decision of 13 January 2010, Judge M.R. – who was the first-instance single judge in the above case – fined the applicant 1,500 Croatian kunas (HRK) for contempt of court. The relevant part of that decision reads:

“... the advocate in the appeal ... first admitted not having attended the hearing scheduled for 17 December 2009 ... owing to a vehicle malfunction ...

Instead of asking for the proceedings to be restored to the status quo ante [restitutio in integrum ob terminem elapsum, povrat u prijašnje stanje] as a result of objective reasons and force majeure, the advocate in question, for no reason whatsoever, states on the second page of the appeal, ‘Such conduct from the judge is absolutely unacceptable. In behaving in this way, he seeks to give the impression that he is proceeding with the case [i.e. that the case is being dealt with], whereas, essentially, hearings are being held which are devoid of substance.’ [T]hat statement is certainly offensive to the court and the judge [concerned], and as such constitutes unacceptable communication between the court and the advocate representing one of the parties.

By making that offensive statement, the advocate in question implies that the judge hearing the case proceeds pointlessly, and most likely proceeds pointlessly with all other cases, which represents a serious insult to both the court and the judge.

For that insult, the court fined the advocate HRK 1,500. Such a fine will most likely [discourage] the advocate from insulting the court and judge hearing the case in future, in his appeals and [other] submissions, and encourage him to pay them due respect in all circumstances.”

The applicant appealed against that decision, arguing that his statement had not been offensive or demeaning. Rather, by making that statement, he had criticised the first-instance court’s inefficiency in conducting the proceedings. In particular, in his appeal, the applicant wrote, inter alia, the following:

“The operative provisions [of the contested decision] indicate that the fine was imposed for offending the court in the appeal of 31 December 2009 by stating, ‘Such conduct from the judge is absolutely unacceptable. In behaving in this way, he seeks to give the impression that he is proceeding with the case [i.e. that the case is being dealt with], whereas, essentially, hearings are being held which are devoid of substance’.

I consider the contested decision to be without basis.

The quoted statement does not represent an insult. [Rather,] it is an assessment of how usefully the proceedings in the present case were conducted.

The statements quoted in the contested decision ... cannot in themselves, and especially having regard to the behaviour of the judge hearing the case, [be regarded as] disrespectful, which would justify the need to issue a decision on the fine.

In addition to the plaintiff’s representative, the defendant and [her] representative attended the hearing scheduled for 16 November 2009. The record [of that hearing] states that [the plaintiff] reaffirmed his action and the submissions of 30 March 2009, and that the defendant maintained the arguments expressed in [her] response ... of 11 March 2009. Beside this, nothing else happened at that hearing.

Apart from acknowledging the facts as stated above, the judge hearing the case did not carry out any action intended to bring the proceedings to an end, except for scheduling the next hearing.

At that hearing, he did not even oblige the defendant to provide evidence for the claims expressed in [her] response.

At that hearing, not even a decision to hear testimonies from the parties was adopted. Only at the request of the plaintiff’s representative did the judge decide to schedule the next hearing.

In the circumstances, it is evident that the hearing scheduled for 17 December 2009 would have been identical ... to the previous hearing.

The plaintiff’s representative considers such conduct to be at odds with the purpose of law.

Given that the purpose of a hearing is concentrated deliberation, that purpose is frustrated when such concentrated deliberation is lacking. One should also bear in mind that such conduct increases the costs of proceedings ... [without] rational justification.

No intention to offend was expressed in the submissions in question [that is, the appeal of 31 December 2009]. The quoted statement represents a view assessing how usefully the proceedings were being conducted.

In the reasoning [of the contested decision], it is stated that the representative implies that the judge hearing the case ‘most likely proceeds pointlessly with all other cases’. That view is not supported by any argument and has no basis [in what was written in the appeal].”

By a decision of 7 July 2010 the Vukovar County Court (Županijski sud u Vukovaru) dismissed the applicant’s appeal and upheld the first-instance decision. The relevant part of that decision, which was served on the applicant on 16 July 2010, reads:

“When deciding to fine the representative for contempt of court ... the first-instance court correctly held – and gave valid reasons for its view – that such statements constituted unacceptable communication between the court and an advocate ..., the assessment of which is within the discretion of the court before which the proceedings are pending.

Those statements ... go beyond the limits of an advocate’s role in the proceedings ... and may be legally characterised as abuse of process on account of inappropriate communication.”

On 17 August 2010 the applicant lodged a constitutional complaint against the decisions of the ordinary courts. In so doing, he complained that those decisions were in breach of his freedom of expression. He explicitly relied on Article 38 of the Croatian Constitution (see paragraph 16 below) and Article 10 of the Convention.

By a decision of 27 January 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) declared the applicant’s constitutional complaint inadmissible on the grounds that the contested decision was not open to constitutional review. That decision was served on the applicant on 11 February 2011.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

Alena Poláčková;Helen Keller;Johannes Silvis

The applicant was born in 1989 and lives in Kresttsy, Novgorod Region.

On an unspecified date the applicant was charged with theft. On 16 December 2003 the case was settled and the criminal proceedings were discontinued.

On 28 July 2004 the applicant was arrested on suspicion of having committed a murder. The applicant was 15 years old at the time of the arrest.

On 29 July 2004 the Krestetskiy Federal Court of the Novgorod Region authorised the applicant’s pre-trial detention noting as follows:

“Having heard the parties to the proceedings and examined the materials, [the court] has established that there is reasonable suspicion that [the applicant] has committed the crime. The other participants in the crime confessed and incriminated [the applicant].

Given that [the applicant] has been previously charged with criminal offences, that he is suspected of having committed a serious crime, it is impossible to apply a more lenient preventive measure.”

On an unspecified date the applicant was charged with conspiracy to commit robbery.

On 27 September 2004 the Novgorod Town Court extended the applicant’s pre-trial detention until 8 November 2004 noting as follows:

“Regard being had to the [applicant’s] character and the seriousness of the charges against him, the court considers that it is not possible to lift or replace the earlier imposed preventive measure because [the applicant] may interfere with the establishment of the truth or abscond.”

On 4 November 2004 the Town Court extended the applicant’s detention until 8 January 2005. It reiterated verbatim its earlier reasoning.

On 7 December 2004 the investigator dropped the murder charges against the applicant for lack of corpus delicti. He further re-classified the charge against the applicant as robbery committed by a group of persons.

On 30 December 2004 the Town Court extended the applicant’s pretrial detention until 28 January 2005. The court noted as follows:

“Regard being had to the seriousness of the charges, the [applicant’s] character and the negative references, the court does not discern grounds to change the earlier imposed preventive measure or to release [the applicant].”

On 25 January 2005 the Novgorod Regional Court upheld the decision of 30 December 2004 on appeal noting that, in view of the seriousness of the charges, the applicant might interfere with the establishment of the truth, abscond or re-offend.

On 14 February 2005 the Regional Court fixed the preliminary hearing of the applicant’s case for 24 February 2005. The court also ruled that the applicant should be detained pending trial. On 28 April 2005 the Supreme Court of the Russian Federation upheld the said decision on appeal.

On 20 July 2005 the Regional Court rescheduled the preliminary hearing in the applicant’s case for 4 August 2005. The applicant and his lawyer were present. The lawyer asked for the applicant’s release into his mother’s care pending trial. The court dismissed the request and extended the applicant’s detention until 27 October 2005 noting that “the preventive measure earlier imposed on [the applicant] should remain unchanged”. Both the applicant and his lawyer appealed.

On 21 September 2005 the Supreme Court upheld the decision of 20 July 2015 on appeal. The court decided to consider the matter in the applicant’s absence noting that the applicant had attended the hearing on 20 July 2005 and had been provided with an opportunity to be heard. The applicant’s lawyer and the prosecutor were present and made submissions to the court. As regards the extension of the applicant’s detention, the court ruled that the circumstances underlying the applicant’s remand in custody continued to exist. In this connection the court noted as follows:

“It follows from the materials of the case that [the applicant] has earlier committed another crime, that he had been absent from classes in school and had demonstrated anti-social behavior. He had not spent nights at home and had not lived with his mother for extended periods of time. His mother could not control his behavior; she did not pay due attention to his upbringing and had no influence over him. The [applicant’s] release into his mother’s care ... would not ensure his due behavior pending trial.”

On 17 October 2005 the Regional Court extended the applicant’s and two other defendants’ detention until 27 January 2006. The court noted:

“The defendants are charged with particularly serious offences; the circumstances of their remand in custody have not changed. The court does not discern circumstances that would allow it to apply a more lenient preventive measure, including the [applicant’s] release into his mother’s care.”

On 15 December 2005 the Supreme Court upheld the decision of 17 October 2005 on appeal.

On 24 January 2006 the Regional Court extended the applicant’s detention and two other defendants’ detention until 27 April 2006. The court reiterated verbatim its reasoning of 17 October 2005.

On 13 February 2006 the Regional Court found the applicant guilty of robbery and sentenced him to four and a half years’ imprisonment. On 27 September 2006 the Supreme Court of Russia upheld, in substance, the applicant’s conviction on appeal.

On 2 August 2007 the Nevelskiy District Court of the Pskov Region released the applicant on parole.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant, Ms Tatyana Sergeyevna Ryabtseva, is a Russian national who was born in 1949 and lives in Voronezh. She was represented before the Court by Mr Sivoldayev, a lawyer practising in Moscow.

On 30 June 2009 the applicant was dismissed from her post as director of a municipal art school in Voronezh.

A month later the applicant took Voronezh Town Council to court, seeking reinstatement.

On 20 August 2009 Judge Z. of the Central District Court of Voronezh dismissed her claim in full. It found that her dismissal had been lawful and had come as a response to her unsatisfactory performance at work.

The applicant appealed. She then submitted an addendum to the appeal, stating that Judge Z. was biased because the judge’s daughter worked as a lawyer at the Town Council. The applicant also alleged that as Judge Z. was also a Deputy President of the Central District Court and, among other duties, was in charge of the allocation of civil cases, she had intentionally taken charge of the applicant’s case.

An internal inquiry into the impartiality of Judge Z. was ordered by the President of the Central District Court of Voronezh.

The inquiry showed that there were no reasons for the judge to recuse herself suo motu in accordance with Article 16 of the Russian Code of Civil Procedure (see paragraph 10 below). There were no grounds to believe that Judge Z. had allocated the applicant’s case to herself intentionally. She had received the case because she was a senior judge who dealt with complex issues, such as reinstatement disputes, on a regular basis. Furthermore, her daughter had no evident connection to the applicant and had never been involved with the case. Also, the judge’s daughter had been on maternity leave since April 2009.

On 26 November 2009 the Voronezh Region Court dismissed an appeal in cassation by the applicant. The Regional Court addressed the applicant’s allegations of impartiality and also found them unsubstantiated.

Section 16 of the Russian Code of Civil Procedure reads as follows:

“1. ... a judge shall not hear a case and shall be recused when:

1) he or she was involved in the case as a prosecutor, court clerk, representative, witness, expert or interpreter;

2) he or she is related to any person involved in a case or their respective representatives;

3) he or she has a personal direct or indirect interest in the outcome of a case or there are some other grounds to doubt his or her impartiality.”


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicant, Mr Stoyan Dimitrov Stefanov, is a Bulgarian national who was born in 1950 and lives in Sofia. He was represented before the Court by Ms I. Ivanova, a lawyer practising in Sofia.

The Bulgarian Government (“the Government”) were represented by their Agent, Ms R. Nikolova, of the Ministry of Justice.

An ancestor of the applicant, of whom the applicant is the only heir, owned land in the city of Kyustendil that was expropriated after 1944. Following the adoption of denationalisation legislation in Bulgaria, in 1997 the applicant initiated restitution proceedings.

In a decision of 5 August 1998 the governor of the Sofia region (“the Sofia governor”) held that the land could not be restituted in kind, and awarded the applicant compensation in lieu of restitution. The Sofia governor found that the land had been taken for the construction of buildings and streets, that the construction works had been completed, and that the land which remained unoccupied was insufficient to be registered as separate plot. These findings were reached on the basis of documents submitted by the Kyustendil municipality, including a letter dated 30 June 1998 stating expressly that the unoccupied land was insufficient for a separate plot.

According to the applicant, since he had no ground to question the veracity of the documents submitted by the municipality, he did not seek a judicial review of the Sofia governor’s decision, which thus became final. In June 1999 the applicant received the compensation awarded to him, which took the form of compensation bonds.

Subsequently the applicant became aware that at about the time when he had sought restitution the municipality had initiated a procedure aimed at separating that part of the land claimed by him which had been unoccupied by buildings or other construction and creating from it an independent plot. The creation of a new plot with a surface of 2,600 square metres was approved by the mayor of Kyustendil in a decision of 5 February 1999. After that the plot was sold to a third party and construction works were commenced.

In 2002 the applicant brought a tort action against the Kyustendil municipality, arguing that it had failed to submit to the Sofia governor correct information regarding the status of the land claimed by him. He considered that this had caused him damage, in that had he been awarded partial restitution in kind on the basis of the correct information, he would have received more than what he had actually received after the sale of his compensation bonds. The applicant assessed the losses he had incurred at 30,329 Bulgarian levs (BGN).

The Sofia City Court commissioned an expert report, which confirmed that the documents submitted by the Kyustendil municipality in the restitution proceedings had not accurately reflected the land’s true status. In point of fact, the land unoccupied by construction at the time had been sufficient to form a separate plot under the statutory requirements. The Sofia City Court accepted the report’s findings.

In a judgment of 30 March 2005 it dismissed the applicant’s action. It noted that a number of circumstances should have been established in order to substantiate the tort claim; however, it had not been shown that the land claimed by the applicant had been expropriated on any of the grounds giving rise to an entitlement to restitution, that the applicant had in fact sought restitution in kind, and that, lastly, the Sofia governor had refused such restitution in kind (and if he had, on what legal ground). Thus, it had not been shown that a causal link existed between the alleged damage and the defendant’s actions.

On appeal, on 5 April 2006 the above judgment was upheld by the Sofia Court of Appeal. It also pointed out that in order to prove his claim the applicant had had to establish a causal link between the alleged damage and the actions of the defendant, consisting of a number of elements, and that the failure to establish just one of them would lead to the rejection of the claim. Like the first-instance court, the Court of Appeal pointed out that a number of elements in the causal link were missing. It held that it was not clear on what evidence the Sofia governor had relied in granting compensation in the restitution proceedings. It further held that the applicant had not requested restitution in kind and that it was not proven that he had been entitled to restitution in kind, as it was not established that the documents submitted by the Kyustendil municipality had been the only basis for holding that such restitution was impossible.

Upon a further appeal by the applicant, the Court of Appeal’s judgment was upheld by the Supreme Court of Cassation in a final judgment of 29 June 2007. The Supreme Court’s main argument was that the applicant had failed to apply for a judicial review of the Sofia governor’s decision of 5 August 1998 and seek to establish that a partial restitution in kind had been possible. Thus, any damage incurred by the applicant had not been due to actions on the part of the Kyustendil municipality but rather to his own failure to act.

In separate proceedings, in 2001 the applicant brought an action against the governors of the Sofia and Kyustendil regions. That action was dismissed in a final judgment by the Supreme Court of Cassation of 4 February 2005. On 20 June 2006 the Supreme Court also dismissed an application by the applicant for the re-opening of the proceedings.


Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Ms A.T.H., was born in 1979 in Ethiopia and is currently living in the Netherlands. She was represented before the Court by Ms S. den Boer, a lawyer practising in Eindhoven.

The Netherlands Government were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Italian Government, who had been invited to intervene under Rule 44 § 3 of the Rules of Court, were represented by their Agent, Ms E. Spatafora, and their co-Agent, Ms P. Accardo.

The following summary of the facts of the case is based on the submissions of the applicant and on the replies received from the Governments of the Netherlands and Italy to factual questions put to them under Rule 49 § 3 (a) of the Rules of Court.

The applicant claims to be a national of Eritrea because both her parents were nationals of that country. She had lived in Ethiopia all her life when she left that country in 1999, out of fear of deportation to Eritrea, where she would have to undertake military service. Subsequently, having stayed for some time in Sudan and Libya, the applicant arrived in Italy on 2 October 2007, where she applied for asylum under another identity. She was granted a residence permit in Italy which was valid for one year until 26 November 2008 and was later extended for another three years until 7 April 2012. However, she left Italy for the Netherlands in 2009 because, having been granted a residence permit, she purportedly received no other support. She was not provided with (money for) food or medical assistance, and was forced to live on the street. Allegedly, she applied to State authorities and human rights organisations for help on a number of occasions, but without success.

At the time of her entry to the Netherlands in 2009, the applicant was pregnant. She was subsequently diagnosed as being HIV-positive.

The applicant applied for asylum in the Netherlands on 2 October 2009.

On 11 February 2010 the applicant gave birth to a daughter in the Netherlands.

On 14 April 2010 the Minister of Justice (Minister van Justitie) rejected the applicant’s request, finding Italy responsible for the determination of her asylum application, pursuant to Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). The Minister dismissed the applicant’s claim that, given her appalling living conditions in Italy between 2007 and 2009, she would risk treatment contrary to Article 3 if returned to Italy, considering that that claim remained wholly unsubstantiated. The general reports relied on by the applicant, which contained negative accounts of the situation of asylum-seekers in Italy, were not considered specific facts and circumstances relating to her individual case such as to form a basis for assuming that Italy would not comply with its obligations flowing from the Convention. Lastly, the applicant’s contention that her medical situation did not allow her transfer to Italy was rejected by the Minister, who considered that the applicant was not receiving any specialist medical treatment in the Netherlands and that, moreover, it had not been alleged or demonstrated that adequate medical treatment would not be made available to her in Italy.

An appeal by the applicant against the Minister’s decision was rejected by the Regional Court (rechtbank) of The Hague sitting in Maastricht on 7 July 2010. It upheld the Minister’s decision and reasoning.

A further appeal, together with a request for a provisional measure (voorlopige voorziening) staying her removal, was lodged by the applicant with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State. On 23 September 2010 the President of the Division granted the request for a provisional measure, deferring the applicant’s transfer to Italy pending the outcome of the further appeal proceedings.

On 14 July 2011 the Division allowed the further appeal. It quashed the judgment of 7 July 2010, as well as the Minister’s decision, as it found that he had failed to have due regard to the general reports submitted by the applicant concerning the situation of asylum-seekers in Italy, which might be relevant to the applicant’s individual case. As to the merits of the case, the Division found that the reports submitted by the applicant were insufficient to assume that her transfer to Italy would result in a violation of Article 3 due to the general living conditions of asylum-seekers in that country. Furthermore, as the applicant had been granted a residence permit in Italy earlier, she was not at risk of expulsion to her country of origin. The Division ordered that the legal consequences of the refusal of the applicant’s asylum request should be maintained.

No further appeal lay against that decision. On an unspecified date the applicant was informed that she and her child would be placed in an aliens’ detention centre (vreemdelingenbewaring) for removal purposes.

The application was lodged with the Court on 26 August 2011, and on the same day the applicant asked the Court to issue an interim measure within the meaning of Rule 39 of the Rules of Court.

On 31 August 2011, in reply to questions put to them under Rule 49 § 3 (a), the Netherlands Government informed the Court of practical aspects of the applicant’s scheduled transfer to Italy. A copy of that reply was sent to the applicant for information.

On 31 August 2011 the President of the Section decided, under Rule 39, to indicate to the Netherlands Government that it was desirable, in the interests of the parties and of the proper conduct of the proceedings before the Court, not to expel the applicant to Italy for the duration of the proceedings before the Court.

On 18 January 2012 the President of the Section decided that the Government of Italy should be invited, under Rule 44 § 3, to answer factual questions about the applicant’s situation in Italy when she had lived there previously and about the general accommodation, subsistence and medical care offered to asylum-seekers in Italy.

The Government of Italy submitted their answers on 12 March 2012. The applicant’s comments in reply were received on 25 April 2012. Additional information was received from the Government of Italy on 15 October 2013. A copy was sent to the Netherlands Government and the applicant for information.

On 3 December 2014 additional factual questions were put to the Netherlands Government about the practical effects given to the Court’s judgment of 4 November 2014 in the case of Tarakhel v. Switzerland ([GC], no. 29217/12, ECHR 2014 (extracts)).

In their reply of 7 January 2015, the Netherlands Government indicated that – following the Tarakhel judgment and where a case concerned the transfer of a family with minor children to Italy – the Netherlands authorities would only transfer such a family after guarantees had been obtained from the Italian authorities that the family would remain together, and where information was available about the specific facility where the family was to be accommodated, in order to guarantee that the conditions there were age-appropriate in respect of the children. For this reason, the actual transfer to Italy would be announced ten to fifteen days beforehand, in order to give the Italian authorities the opportunity to provide information on the specific facility where the family was to be accommodated, to guarantee that the conditions in this facility were suitable, and to guarantee that the family would not be split up. If these guarantees were not received within the time-limit for transfers, as laid down in the Dublin Regulation, the persons involved would be channelled into the Netherlands asylum procedure. However, as long as a Rule 39 indication was in place, the Government were not in a position to commence the preparations for the applicant’s transfer to Italy.

The applicant’s comments in reply were submitted on 27 February 2015. Having noted those submissions, the Chamber decided to lift the Rule 39 indication on 24 March 2015.

By letter of 5 August 2015 the Netherlands Government submitted a copy of a circular letter dated 8 June 2015 and sent by the Dublin Unit of the Italian Ministry of the Interior (Ministero dell Interno) to the Dublin Units of the other member States of the European Union, in which the Italian Dublin Unit set out the new policy of the Italian authorities on transfers to Italy of families with small children. The relevant part of the Netherlands Government’s letter reads:

“A new policy was considered necessary in view of the fact that reception facilities, specifically reserved for such families, frequently remained unavailed of as a result of families having left for an unknown destination prior to transfer, or having obtained a court order barring their transfer. In order to safeguard appropriate facilities where families may stay together, the Italian authorities earmarked a total of 161 places, distributed over twenty-nine projects under the System for Protection of Asylum Seekers and Refugees (SPRAR). The authorities confirmed that this number will be extended should the need arise. As may be inferred from the letter of 8 June, this comprehensive guarantee is intended to avoid the need for guarantees in specific cases.

The Dutch Dublin-Unit will continue to inform its Italian counterpart at an early stage of an intended transfer of a family with minor children. On 13 July 2015, the Dutch, German and Swiss migration liaison officers to Italy issued a report on SPRAR in general, including on the requirements the accommodations must fulfil, and on two projects they had visited on the invitation of the Italian Government. It is understood that later this year also the European Asylum Support Office (EASO) will report on the matter.

The Government is of the opinion that the new Italian policy will adequately safeguard that families with minor children are kept together in accommodations appropriate to their needs.”

On 31 August 2015 the Netherlands Government informed the Court that the applicant’s transfer to Italy under the Dublin Regulation had been scheduled for 7 September 2015, that the Italian authorities had been informed that the transfer concerned a single mother with a minor child, and that, with the applicant’s permission, due reference had been made to her medical condition and the treatment required. They also submitted a copy of a letter of 4 May 2015 from the Head of Office of the Italian Ministry of the Interior, Department for Civil Liberties and Immigration, received by the Dublin Unit of the Netherlands Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) via e-mail as a document titled “Tarakhel Garanzie – [the applicant’s name]”. The letter stated, inter alia, “We assure you that, after the transfer to Italy, this family group will be accommodated in a manner adapted to the age of the children and the family members will be kept together”. The letter enclosed a note from the Ministry of the Interior, detailing a reception project regarding the transfer of the applicant and her child.

The Netherlands Government further submitted a copy of the standard form – prescribed under Article 31 of Regulation (EU) no. 604/2013 of the European Parliament and of the Council of 26 June 2013 – by which the Italian authorities had been notified on 19 August 2015 of the applicant’s transfer to Italy, scheduled for 7 September 2015. It was indicated in that form that the applicant had health problems and that a medical report was attached to the form. The Netherlands official completing the form also noted:

“Since this transfer concerns a mother with a minor child, I assume this family will be accommodated in one of the centres included in the list of SPRAR-projects as mentioned in the annex to your letter dated 8 June 2015.”

The applicant’s comments on the Government’s submissions of 5 and 31 August 2015 were submitted on 2 September 2015. On the same day she asked the Court to issue a fresh indication under Rule 39 of the Rules of Court, submitting that the information provided by the Netherlands Government contained only general guarantees, which were insufficient to ensure that she and her child would be provided with suitable accommodation and adequate medical care in Italy, emphasising her special needs as a HIV-positive person. The applicant further contended that the 161 places in SPRAR projects which were earmarked for families with minor children were far from sufficient, taking into account the high number of migrants having arrived in Italy in 2015. The applicant argued that, without individual and specific guarantees, she ran a considerable risk of ending up living on the streets, without the special care she and her child needed.

Having noted the parties’ submissions, on 3 September 2015 the President of the Section decided to reject the applicant’s fresh Rule 39 request.

No further information about the current whereabouts of the applicant and her child has been submitted.

The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland (cited above, §§ 28-48); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98117, 10 September 2013); Halimi v. Austria and Italy ((dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013); Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013); Daybetgova and Magomedova v. Austria ((dec.), no. 6198/12, §§ 25-29 and 32-39, 4 June 2013); and Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013).

The Joint United Nations Programme on HIV and AIDS (UNAIDS) estimated that in 2013 a total of 120,000 (between 110,000 and 140,000) persons aged 15 or more with HIV or AIDS were living in Italy, of whom 13,000 (between 11,000 and 15,000) were women. According to a comparative study carried out by the HUMA Network (Health for Undocumented Migrants and Asylum Seekers) – covering 16 European Union member States and published in November 2010 – on the question of whether undocumented migrants and asylum-seekers are entitled to access health care in the European Union, asylum-seekers in Italy are entitled to access health care on equal grounds as Italian nationals with regard to coverage and conditions. The same applies for unaccompanied children.

An information brochure on access to the Italian National Health Service by non-EU nationals, published (in English, among other languages) by the National Institute for Health, Migration and Poverty (Istituto Nazionale Salute, Migrazione e Povertà) of the Italian Ministry of Health, and provided to asylum-seekers and undocumented migrants, states that asylum-seekers have a statutory right to registration in the National Health Service (SSN) system and to be provided with an SSN health insurance card. It further reads:

“Asylum or international protection seekers are exempted from the co-pay fee following the statement of indigence. This principle is valid up to six months following the submittal of the asylum application. As of the seventh month, asylum seekers are entitled to work. In order to notify their status of unemployment, they need to register with the Employment Office and obtain the exemption card for low-income reasons.”


CASE OF CHENGELYAN AND OTHERS v. BULGARIA

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

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicants were born in 1950, 1979, 1988, 1958, 1947, 1927 and 1932 respectively. They live in Plovdiv, apart from Ms Asthig Hampartsum Bedrosyan, who lives in New York, United States of America. Before her death in 2014, Ms Anaiys Hampartsum Shirin lived in Burgas.

Ancestors of the applicants owned a plot of land measuring 246 square metres in the old part of Plovdiv, which had a two-storey house built on 160 square metres of it. In 1949 the building was declared a cultural monument. In 1966 the property was expropriated and the applicants’ ancestors received compensation. After that, the building was the subject of substantial renovation work, in particular after a fire destroyed part of it in 1978.

After the adoption of the Restitution of Property Expropriated under Building Planning Legislation Act (“the Restitution Act”) in 1992 (see paragraph 15 below), some of the applicants and other heirs of the original owners (from whom the remaining applicants succeeded in the course of the domestic proceedings) applied for the revocation of the expropriation. On 28 June 1993 they were informed that their application had been refused by the mayor of Plovdiv municipality, and on 7 July 1993 they applied for judicial review of that refusal. In a judgment of 9 October 1997 the Plovdiv Regional Court upheld the administrative decision.

However, in a final judgment of 2 October 1998 the Supreme Administrative Court reversed. It found that the applicants’ property had been taken under legislation regulating expropriations made with a view to carrying out public works, namely expropriations intended to be followed by the construction of new buildings or infrastructure. The property in issue, however, had been declared a cultural monument, and had been expropriated to be used as such, thus the expropriation had been in breach of the law. The fact that no construction work had ever been envisaged had to be assimilated to a situation where no public works within the meaning of the Restitution Act had ever been commenced. In addition, the renovation work carried out after the expropriation did not represent “public works” either, as it had only aimed to preserve the building. Lastly, it was noted that the property still existed. All of those factors meant that the preconditions for restitution had been fulfilled. On this basis, the Supreme Administrative Court revoked the expropriation, quashing the mayor’s refusal in that regard.

Following the above judgment, in order to make the restitution effective (see paragraph 16 below), on 21 May 1999 the applicants paid back to the municipality the monetary compensation received by their ancestors at the time of the expropriation. The parties disagreed as to whether the applicants had also received compensation in the form of other property at the time of the expropriation, and whether they had to return that as well.

In 2001 the applicants obtained a notarial deed, which named them as the property’s owners.

Despite the events described above, the applicants could not take possession of the property, because it was being held and used by the Plovdiv municipality, which in 1997 had declared it a public municipal property and had rented a room in the building to an organisation called “13 Centuries Bulgaria” National Endowment Fund (“the Fund”, see paragraphs 19-20 below).

After unsuccessfully attempting to negotiate an agreement, in December 2003 the applicants brought rei vindicatio proceedings against the Plovdiv municipality and the Fund. The action was dismissed by a final judgment of the Supreme Court of Cassation of 8 June 2007. In the first place, the domestic courts found that they were competent to examine the action. According to the second-instance Plovdiv Regional Court, the judgment of 2 October 1998 was open to indirect judicial review, because it was replacing the mayor’s administrative decision on the applicants’ request for restitution, and did not have a res judicata effect in proceedings specifically concerning the right to property. According to the Supreme Court of Cassation, the defendants to the rei vindicatio action, namely the Plovdiv municipality and the Fund, had not participated in the earlier judicial proceedings and therefore were not bound by the judgment of 2 October 1998.

Next, the domestic courts found that the reparation work carried out on the building which the applicants were claiming had been so substantial (the building’s appearance had been preserved, but the internal construction had been largely modified – the roof, some windows and other elements had also been replaced) that, within the meaning of the Restitution Act, it could not be said that the building still existed. In addition, the property was being used for the purpose for which it had been expropriated, namely as “a cultural monument”, which, in the courts’ view, constituted “public works” within the meaning of the same Act. Accordingly, none of the preconditions for restitution had been satisfied.


Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant, Mr Seyit Rüfai Deniz, is a Turkish national who was born in 1964 and lives in Ankara. He was represented before the Court by Mr M.N. Eldem, a lawyer practising in Ankara.

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

At the time of the events giving rise to the application, the applicant worked as a teacher at a state school in Ankara.

On 20 November 2008 a disciplinary investigation was started against the applicant following allegations that he did not have the book of guidelines for teachers to hand during a class inspection, that he did not prepare lesson plans and that he had addressed his hierarchical superior using the secondperson singular instead of the second-person plural, which is deemed more acceptable for the purposes of politeness in the Turkish language.

On 4 December 2008, the applicant was requested to submit his defence statements against those allegations. On 15 December 2008, the applicant submitted, inter alia, that he should not be held responsible for not having the book of guidelines for teachers since it had been the school administration’s responsibility to supply the teachers with the necessary materials and the administration had failed to do so. Concerning lesson plans, he stated that there had not been an obligation on his part to prepare them. He also submitted that he had not addressed the principal in the second person singular.

On 29 December 2008, the applicant received a disciplinary sanction in the form of a reprimand in respect of those allegations pursuant to section 125(B) of the Civil Servants Act.

On an unspecified date the applicant lodged an objection with the Directorate of the Ministry of Education, asking for the reprimand to be revoked. This was dismissed on 13 January 2009, in a decision which was not amenable to judicial review.

On 24 September 2014, at the applicant’s request, the reprimand was removed from the applicant’s service records pursuant to section 133 of the Civil Servants Act.

A full description of the relevant domestic law at the material time can be found in Karaçay v. Turkey (no. 6615/03, §§ 14-16, 27 March 2007) and İsmail Sezer v. Turkey (no. 36807/07, §§ 14-19, 24 March 2015).

Section 125 of the Civil Servants Act catalogues certain acts and misconduct according to the disciplinary sanction to which they give rise. Accordingly, section 125(B) defines blameworthy behaviour in carrying out tasks or orders in an incomplete or late fashion, or not carrying out the necessary procedure or failing to maintain, properly use or care for official equipment as misconduct requiring a reprimand, whereas section 125(C) defines the same behaviour, when it is deliberate, as misconduct that requires the sanction of salary reduction. Section 125(B) defines being disrespectful to a superior while on duty as an act that requires a reprimand, whereas section 125(C) defines speaking disrespectfully to a superior as an act that requires the sanction of salary reduction. Likewise section 125(D) punishes any display of humiliating behaviour towards a superior with deferral of promotion to a higher rank for a minimum of one year and a maximum of three years. Furthermore, a civil servant will receive a heavier sanction if he repeats misconduct for which he has previously received a disciplinary sanction during the period for which the sanction remains on his service record. Finally, the list of acts and misconduct in section 125 is not exhaustive in so far as it is provided that acts comparable to those listed under this section will be punished with a disciplinary sanction appropriate to the gravity of the offence.


Damage - claim dismissed (Article 41 - Pecuniary damage);Damage - award (Article 41 - Pecuniary damage)

Anatoly Kovler;Angelika Nußberger;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Isabelle Berro-Lefèvre;Jean-Paul Costa;Luis López Guerra;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The first applicant, Mr Mustafa Kurić, was born in 1935 and lives in Koper (Slovenia). He is a stateless person. The second applicant, Ms Ana Mezga, is a Croatian citizen. She was born in 1965 and lives in Portorož (Slovenia). The third applicant, Mr Tripun Ristanović, was born in 1988 and is currently living in Slovenia. He is a citizen of Bosnia and Herzegovina. The fourth applicant, Mr Ali Berisha, was born in 1969 in Kosovo. According to the most recently available data, he is a Serbian citizen. He currently lives in Germany. The fifth applicant, Mr Ilfan Sadik Ademi, was born in 1952. He lives in Germany and is a Macedonian citizen. The sixth applicant, Mr Zoran Minić, was born in 1972. According to the Government, he is a Serbian citizen. His exact whereabouts are unknown.


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

The applicants were born in 1959 and live in Budapest.

On 27 October 2003 the applicants started labour-law litigation concerning their resignation and its legal and pecuniary consequences. On 21 May 2009 the Budapest Labour Court gave judgment, partly finding for the plaintiffs. On appeal, on 9 June 2010 the Budapest Regional Court reversed part of the decision. On 18 January 2012 the Kúria upheld the second-instance decision.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award

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

The applicant was born in 1984 and lives in Leeds.

The facts of the case may be summarised as follows.

The applicant arrived in the United Kingdom on 26 January 2001 and thereafter lived illegally at an address in Bedford.

Whilst living in the United Kingdom the applicant successfully applied for three jobs using a false French passport. Between April 2003 and November 2004 he was employed by a recruitment agency. Between August 2004 and January 2006 he was employed in a cash and carry business and between January 2006 and February 2007 he was employed as a forklift truck driver.

The applicant had used the false passport to support his assertion that he was entitled to work in the United Kingdom. All of his employers subsequently stated that they would not have employed him had they known of his true immigration status. Between April 2003 and February 2007 the applicant earned a total gross salary of 73,293.17 pounds sterling (GBP) from his employment. At the end of this period he had total savings of GBP 21,649.60.

In January 2007 the applicant applied to the Driving and Vehicle Licensing Agency for a provisional driving licence. The application was accompanied by the same false French passport that the applicant had used to obtain employment in the United Kingdom. When the falsity of the passport was discovered, the police were informed.

On 4 June 2007 the applicant pleaded guilty in the Crown Court at Luton to three counts of dishonestly obtaining a pecuniary advantage by deception (counts one, two and three on the indictment). He also pleaded guilty to one count of having a false identity document with intent (count four), one count of driving whilst disqualified (count five) and one count of driving a motor vehicle without insurance (count six). On 29 June 2007 the applicant was sentenced to concurrent terms of fifteen months’ imprisonment for the first four counts together with a consecutive sentence of two months’ imprisonment for the offence of driving whilst disqualified. No separate sentence was imposed for driving without insurance. The trial judge also recommended the applicant for deportation.

In addition to the custodial sentence and the recommendation for deportation, the prosecution sought a confiscation order under section 6 of the Proceeds of Crime Act 2002 in respect of the applicant’s earnings (see relevant domestic law and practice below). The trial judge accepted that the applicant had paid all the tax and national insurance due on his earnings and that the money he had made from his employment had been truly earned. After deducting tax and national insurance payments, it was calculated that the benefit the applicant received from his earnings was GBP 50,000. It was agreed that of the GBP 50,000 the applicant still had assets of GBP 21,949.60. On this basis, on 29 June 2007 the trial judge imposed a confiscation order in the sum of GBP 21,949.60 upon the applicant, with a consecutive sentence of twelve months’ imprisonment to be served in default of payment. Thus, the confiscation order had the effect of depriving the applicant of all of the savings that he had accumulated during the four years of employment.

On 8 April 2008 the applicant sought an extension of time within which to appeal to the Court of Appeal against the imposition of the confiscation order. In his grounds of appeal, he contended that the grant of the confiscation order had not respected “European law”. That application was refused on 13 June 2008. The Single Judge noted that the applicant had failed to establish good reason for the extension of time sought and that he had no arguable grounds of appeal because he had benefited from the use of the false passport to the extent that it had enabled him to work and earn money and there had been no breach of his rights under the Convention.

The applicant renewed his application before the Court of Appeal which, on 14 November 2008, granted him an extension of time and leave to appeal. Leading counsel was appointed on his behalf. Counsel initially argued first; that the applicant’s earnings were not a relevant benefit from criminal conduct within the meaning of the Proceeds of Crime Act 2002; and secondly, that the prosecutor’s decision to seek a confiscation order in this case constituted an abuse of process.

The Court of Appeal heard part of the appeal on 18 February 2009. However, it decided to adjourn the appeal pending the publication by the Department of Public Prosecution (“the DPP”) of guidance for prosecutors on the circumstances under which a confiscation order could be sought.

In a supplementary skeleton argument dated 5 June 2008, counsel for the applicant accepted that in light of the decision in R v. Carter and Others [2006] EWCA Crim 416 (see relevant domestic law and practice below), the court was bound to reject the first ground of appeal, namely that the applicant’s earnings were not a relevant “benefit”. He therefore accepted that the issue on appeal was whether it was oppressive and therefore an abuse of process for the Crown to seek and the court to impose a confiscation order for what amounted to the applicant’s entire savings over nearly four years of genuine work. In this regard, counsel submitted that there would be an abuse of process where, on a correct application of the law to the facts, the resulting “benefit” figure yielded a disproportionate or oppressive result. He further noted that Parliament has intended the Proceeds of Crime Act 2002 to be applied in a manner compatible with the requirements of the Convention. Therefore, in light of Article 1 of Protocol No. 1, in order to remain proportionate the application of the confiscation regime had to remain rationally connected to the public interest aims pursued and go no further than necessary to achieve them. It was therefore submitted that to seek the imposition of a confiscation order on the basis of a benefit figure which far exceeded the value of the defendant’s crimes could properly be described as disproportionate – either in the traditional sense used in criminal sentencing (“not fitting the punishment to the crime”) or in the language of the Convention – and was therefore an abusive exercise of jurisdiction.

The applicant further submitted that a confiscation order could be described as oppressive where it did not pursue any of the legitimate aims of the confiscation regime and/or did not further the Parliamentary intent of stripping defendants of the proceeds of crime. He reiterated that Parliament had intended the legislation to be compatible with the Convention.

On 28 July 2009, after the DPP guidance had been promulgated (see relevant domestic law and practice below), the Court of Appeal held that the decision to seek a confiscation order against the applicant did not constitute an abuse of process. The court therefore dismissed the applicant’s appeal against the order. In reaching this conclusion, the Court of Appeal said that the guidance represented a fair analysis of the effect of previous Court of Appeal and House of Lords decisions on the confiscation order regime.

The court stated:

“Abuses of the confiscation process may occur and, when they do, the appropriate remedy will normally be a stay of proceedings. However an abuse of process cannot be founded on the basis that the consequences of the proper application of the legislative structure may produce an ‘oppressive’ result with which the judge may be unhappy. Although the court may, of its own initiative, invoke the confiscation process, the responsibility for deciding whether properly to seek a confiscation order is effectively vested in the Crown. When it does so, the court lacks any corresponding discretion to interfere with that decision if it has been made in accordance with the statute. The just result of these proceedings is the result produced by the proper application of the statutory provisions as interpreted in the House of Lords and in this court. However to conclude that proceedings properly taken in accordance with statutory provisions constitute an abuse of process is tantamount to asserting a power in the court to dispense with the statute.

As a matter of principle, that is impermissible, and this court has said so. This, in R v. Shabir [2009] 1 CAR (S) 497, it was observed:

‘This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic.’

We repeat what was said at an earlier hearing involving Paulet.

‘The abuse of process jurisdiction is one which needs to be exercised with great circumspection. The jurisdiction cannot be converted on a case by case basis into a structure which involves, on proper analysis, something like wholesale undermining of the statutory provisions. It is not easy to conclude that it is an abuse of process for those responsible for enforcing legislation to see that it is indeed properly enforced.’”

The Court of Appeal found that applicant’s case could not be distinguished from its previous ruling in R v Carter and Others (see relevant domestic law and practice, paragraph 31 below). It concluded:

“The reality is that throughout the period of his employment [the applicant] was relying on a continuing dishonest representation to three different employers. He deceived them into thinking that he was entitled to obtain employment with them. That was a crucial element of his criminality. His earnings, of course, reflected the fact that he had done the necessary work, as we shall assume, to the satisfaction of his various employers. But the opportunity for him to do so, that is the pecuniary advantage, was unlawfully obtained. If the employee worked to his employer’s satisfaction, and he paid his tax and National Insurance contributions on his earnings, and his deception either lacked any significant wider public interest, or, perhaps because of the passage of time, but for whatever reason, had ceased to have any meaningful effect on his employers’ decision to continue his employment, the resolution of the issue might well be different. As it is there was here a wider public interest. The appellant was deliberately circumventing the prohibition against him seeking remunerative employment in this country in any capacity. No basis for interfering with the order made in the Crown Court has been shown. In our judgment the appropriate link between the appellant’s earnings and his criminal offences, in the context of the wider public interest, was plainly established. The appeal therefore fails.”

On 27 October 2009 the Court of Appeal refused to certify a point of law of general public importance which ought to be considered by the Supreme Court.

Enforcement proceedings have since been instigated against the applicant.

On 28 June 2007 the applicant applied for asylum in the United Kingdom, alleging that his father had been killed in a land dispute between the Dioula and Bete community and that he would be at risk in Ivory Coast owing to his Dioula ethnicity. On 4 October 2007 his application was refused by the Secretary of State for the Home Department, who found no objective evidence that the Dioula were targeted solely on account of their ethnicity, and that the delay in claiming asylum had adversely affected the credibility of the rest of the applicant’s claim. A deportation order made by the Secretary of State was served on the applicant on 19 November 2007. On 24 April 2008 the applicant brought judicial review proceedings challenging the refusal of asylum and the decision to make a deportation order. This application was refused by the High Court on 16 May 2008 as the application had been lodged out of time and, in any event, the applicant had failed to avail himself of his statutory appeal rights by applying to the then Asylum and Immigration Tribunal. His renewed application for judicial review was rejected by the High Court on 27 June 2008. However, it appears that on 3 April 2008 the applicant submitted a notice of appeal to the Asylum and Immigration Tribunal. This was rejected by the Tribunal on 29 April 2008 as out of time.


Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mr Agnis Pūce, is a Latvian national, who was born in 1968 and lives in Ventspils.

On 3 December 2006 the applicant was arrested on suspicion of having damaged an oil product pipeline and of attempted theft. On 4 December 2006 the applicant’s pre-trial detention was ordered by a judge. On 13 July 2007 the Ventspils Court (Ventspils tiesa) convicted the applicant of the aforementioned crimes and sentenced him to two years in prison. Considering that the applicant had been previously convicted and that in those criminal proceedings he had been given a suspended prison sentence of two years, the final sentence for the applicant’s two convictions was set at three years’ imprisonment.

On 7 January 2008 the Kurzeme Regional Court (Kurzemes apgabaltiesa) upheld the judgment of the Ventspils Court. On 7 January 2008, following an appeal on points of law, the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments) upheld the applicant’s conviction, but remitted the judgment with regard to the final sentence that was determined for the applicant’s two convictions.

On 27 March 2008 the Kurzeme Regional Court set the final sentence for the applicant’s two convictions at two years and eight months’ imprisonment. The Criminal Cases Division of the Senate of the Supreme Court upheld this judgment with a final decision of 6 May 2008.

The applicant was arrested on 3 December 2006 at 0.30 a.m. At the time of the arrest the applicant was driving a car and was wearing no shoes, only woollen socks. The applicant submits that at the time of the arrest he had asked the police officers to take him home to pick up some shoes; this request was, however, rejected.

The protocol of detention states that the applicant was arrested at the time of commission of the crime. In its judgment of 13 July 2007 the Ventpils Court established that after having realised that his co-accused had been arrested the applicant had attempted to dispose of his boots, which were subsequently found in the forest.

During the trial hearing before the Ventspils Court that took place on 5 July 2007 police officer A.K. and investigator K.G. testified that A.K. had offered the applicant the shoes that had been available at the police office, and that the applicant had refused them. In his application to this Court the applicant denied that he had been offered any shoes. Furthermore, A.K. testified, and the applicant confirmed, that the applicant’s wife had been telephoned and invited to bring the applicant shoes. However, the Court has no information who provided the applicant with shoes and when this happened.

Section 6(3) of the Law on the Prosecutor’s Office (Prokuratūras likums), providing for an appeal against action taken by a prosecutor, was cited in Leja v. Latvia (no. 71072/01, § 34, 14 June 2011).

Regulation no. 827 (2005) of the Cabinet of Ministers, effective since 5 November 2005, provides that the Head of the Prisons Administration decides on legal challenges brought by private individuals against “administrative acts” issued by or “actions of a public authority” taken by its subordinate officers, unless otherwise prescribed by law (paragraph 6 and 13). The decision of the Head of the Prisons Administration can be brought to court (para 13).

The Administrative Procedure Law (Administratīvā procesa likums) that took effect on 1 February 2004 provides, among other things, for the right to challenge administrative acts and actions of public authorities before the administrative courts. The relevant provisions of that Law were summarised in the case of Melnītis v. Latvia (no. 30779/05, §§ 24-26, 28 February 2012).

Section 11 of the Law on Restrictions regarding the Sale, Advertising and Use of Tobacco Products (Likums “Par tabakas izstrādājumu realizācijas, reklāmas un lietošanas ierobežošanu”), effective since 21 January 1997, sets out the restrictions on smoking. In particular, section 11(1)(2) prohibits smoking in detention facilities, apart from in premises specially set aside for that purpose. Section 11(1)(2) adds that the internal rules of the relevant establishment may provide for the possibility of smoking outside such premises, having due regard to the physical and mental health of the inmates

Regulation no. 358 (1999) of the Cabinet of Ministers governed the medical care of convicts in penal institutions until 28 March 2007. On the said date it was replaced with Regulation no. 199 (2007) of the Cabinet of Ministers, which was in force until 23 January 2014. The relevant provisions of both Regulations were cited in the case of Fedosejevs v. Latvia ((dec.), no. 37546/06, §§ 33-34, 19 November 2013).

Section 10 of the Medical Treatment Law (Ārstniecības likums), as in force until 5 October 2007, provided that the Inspectorate of Quality Control for Medical Care and Working Capability (“the MADEKKI”) was responsible for monitoring the professional quality of medical care in health-care establishments. Following the reorganisation of the MADEKKI, from 5 October 2007 onwards, that task was entrusted to the Health Inspectorate. The competence of these institutions and the domestic case-law with regard to the supervision of medical care in prisons is outlined in the case of Antonovs v. Latvia ((dec.), no. 19437/05, §§ 63-65, 71-79, 11 February 2014).

Finally, section 138 (1) of the Criminal Law (Krimināllikums) provides that in cases of inadequate performance of professional duties by a medical professional resulting in serious or moderate bodily injury, such professional may be held criminally responsible. Criminal responsibility for inadequate performance of professional duties by a medical professional resulting in infection with the hepatitis B or C viruses was established by means of amendments to section 138 (2) of the Criminal Law, coming into force on 1 July 2009. Criminal responsibility for wilful infection with the hepatitis B or C viruses was established by way of amendments to section 133 of the Criminal Law effective from 1 July 2009.


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

The applicant was born in 1962 and lives in Baku.

He was the chairman of the Azerbaijani National Statehood Party.

In December 2010 the applicant sold his car to a certain E.R., who encountered a number of technical problems with it.

On 7 January 2011 E.R. contacted the applicant and they agreed to meet on the same day. During the meeting E.R. expressed his dissatisfaction with the car and requested that the applicant return his money and take the car back. The applicant got angry, started to insult E.R. and then assaulted him together with a certain C.

A passer-by intervened and stopped the altercation. E.R. reported the incident to the police on the same day.

On 8 January 2011 criminal proceedings were instituted against the applicant by the Nasimi District Police Office under Article 221.3 (hooliganism) of the Criminal Code. The investigator’s decision stated that at around 8.30 p.m. on 7 January 2011 the applicant and a certain C. had insulted and assaulted E.R. on the street in Baku.

On 8 January 2011 the police compiled a record of the applicant’s arrest as a suspect.

On 10 January 2011 the applicant was charged under Articles 127.2.3 (deliberate infliction of less serious injury to health) and 221.3 (hooliganism) of the Criminal Code.

On the same day the Nasimi District Court, relying on the charges brought against the applicant and an application from the prosecutor to apply the preventive measure of remanding the applicant in custody, ordered his detention pending trial for a period of two months. The court justified the application of the preventive custodial measure by the gravity of the offences imputed to him, the risk of his reoffending and the likelihood that he might abscond if released.

On 12 January 2011 the applicant appealed against that decision, stating that there was no justification for the application of the preventive measure of remand in custody and that the court had failed to substantiate the necessity for his detention pending trial. He also submitted that the court had failed to take account of his personal situation and to consider the possibility of another preventive measure, such as house arrest or release on bail.

On 17 January 2011 the Baku Court of Appeal dismissed the appeal, finding that there were no grounds to quash the first-instance decision.

On 2 March 2011 the prosecutor in charge of the criminal case applied to the court for an extension of the applicant’s pre-trial detention for a period of one month. He submitted that more time was needed to complete the investigation.

On 3 March 2011 the Nasimi District Court extended the applicant’s detention pending trial by one month, until 8 April 2011. The court justified its decision by the need for more time to carry out further investigative actions, the complexity of the criminal case and the likelihood that the applicant might abscond and obstruct the investigation if released.

On 4 March 2011 the applicant appealed against that decision, arguing that the first-instance court had failed to substantiate its decision on his continued detention.

On 9 March 2011 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 3 March 2011.

No further extension decisions are available in the case file.

On 17 June 2011 the Nasimi District Court found the applicant guilty on all counts and sentenced him to six years’ imprisonment.

The applicant was released from serving the remainder of his sentence by a presidential pardon issued on 17 March 2016.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property

The applicants are Russian citizens whose details are tabulated in the Appendix.

The applicants brought court actions against the authorities, seeking to recover the monetary value of the State promissory notes for purchasing of Russian-made cars. On the dates listed in the Appendix the domestic courts granted their actions and awarded them different amounts in compensation, payable by the Ministry of Finance. The judgments were upheld on appeal and became final on the dates listed below. They remained unenforced.

On various dates the supervisory review courts, upon applications from the Ministry of Finance and by way of supervisory-review proceedings, quashed the first-instance and the appeal judgments in the applicants’ favour, re-examined the cases and dismissed the applicants’ respective actions, having found that the lower courts had incorrectly interpreted and applied the domestic law.