Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicants live in Moscow. The first applicant is the mother of the second applicant and of Ms Anna Politkovskaya, who was born in 1958 and died in 2006. The third and fourth applicants are Anna Politkovskaya’s children.

Anna Politkovskaya was a well-known investigative journalist who made a name for herself covering alleged violations of human rights in the Chechen Republic committed in the course of the counterterrorism operation in the region, an operation widely known as the “Second Chechen War”. Ms Politkovskaya was also an adamant critic of President Putin’s politics.

On 7 October 2006 Anna Politkovskaya was fatally shot in the lift in her block of flats in Moscow. A Makarov pistol with a silencer and bullet cartridges were found on the stairs.

On the same date the prosecutor’s office of Moscow opened a criminal investigation in case no. 18/377485-06 under Article 105 § 2 (b) of the Russian Criminal Code (“murder of a person committed in connection with his or her professional or civic duties”). Later, the case was transferred to the department for the investigation of particularly important cases of the Prosecutor General’s Office for investigation.

At an early stage of the investigation investigators inspected the crime scene, collected footage from surveillance cameras located in the vicinity, and examined logs of telephone connections made in the area around the time of the killing.

On 9 October 2006 forensic experts established that the death had been caused by gunshot wounds to the victim’s head, chest and right leg. On the same date a death certificate was issued.

On 12 October 2006 the fourth applicant was granted victim status. Later, the third applicant received such status as well.

Seeking to discern the motive for the crime, the investigation studied Anna Politkovskaya’s critical publications to establish against whom they had been targeted. They also questioned Ms Politkovskaya’s colleagues, friends and family as witnesses. In the Government’s submission, as a result of such actions, the investigation established that Anna Politkovskaya had met “a well-known Russian former politician” in London, and that unnamed person had proposed that she publish articles “to discredit the leadership of the Russian State, which she [had] refused to do, to his dislike”.

On 27 August 2007 the Prosecutor General of Russia stated at a press conference that there had been serious progress in the investigation of Ms Politkovskaya’s killing, and that ten people had been arrested in connection with the investigation. Another official of the Prosecutor General’s Office stated that a certain P.R. had been arrested. On 28 August 2007 the Tvoy Den’ newspaper (“Твой День”) published a list of people arrested in connection with Ms Politkovskaya’s murder, and commented that there were known hitmen among those detained. On 29 August 2007 a press officer of the Moscow City Court (“the City Court”) disclosed to the public a list of ten people detained in connection with Anna Politkovskaya’s assassination.

In the course of August 2007 four people, D.M., I.M., S.Kh. and P.R., were arrested in connection with the assassination. Two brothers, D.M. and I.M., had made phone calls near Ms Politkovskaya’s building; their car had been seen leaving the area on the day of the killing. Later, the investigation established that fibres found in their car were identical to those left on the murder weapon. S.Kh., a police officer, was arrested on the basis of a witness statement by D.P., also a police officer. P.R. was an officer of the FSB (Federal Security Service) who had known S.Kh. for a long time.

In June 2008 D.M., I.M. and S.Kh. were formally charged with contract killing in conspiracy with others. S.Kh. was regarded as the leader of the organised criminal group. P.R. was charged in the same set of proceedings with abuse of powers and extortion.

At some point R.M., a brother of D.M. and I.M. whom the investigation suspected to be implicated in the assassination, fled Russia on a forged passport. As appears from the applicants’ and the Government’s respective submissions, the forged passport was issued by staff of a department of the interior.

At some point R.M.’s name was put on an international wanted list. On 16 June 2008 a criminal case against R.M. was severed from the case against S.Kh., P.R., D.M. and I.M.

In June 2008 the investigators prepared a case against S.Kh., P.R., D.M. and I.M. to be transferred to a court. The applicants requested that the case file remain with the investigators. In their view, the investigation was incomplete, and sending the case file to a court would be premature. Nevertheless, the case file was transferred to the Moscow Circuit Military Court (“the Circuit Court”) for a jury trial.

In the course of court hearings in the period 2008-09 D.P., a highranking officer of the Moscow City Department of the Interior, was questioned as a witness for the prosecution. He submitted that, acting in his professional capacity, he had organised and conducted surveillance on Anna Politkovskaya shortly prior to her assassination. A certain L.-A.G. was also questioned as a witness.

At an unspecified point in time in the period 2008-09, the investigation included a summary of its findings in the case material, which the applicants referred to as a “presentation”. In particular, the summary contained details regarding Anna Politkovskaya, including the fact that she had had American nationality. The “presentation” was never shown to the jury.

On 19 February 2009, having heard the prosecution and the defence, the jury delivered a not-guilty verdict in respect of S.Kh., P.R., D.M. and I.M.

On 20 February 2009 the Circuit Court acquitted S.Kh., P.R., D.M. and I.M. The prosecution appealed. The third and fourth applicants decided not to appeal against the acquittal.

On 25 June 2009, in the appeal proceedings, the Supreme Court of Russia quashed the judgment of 20 February 2009 and remitted the case to the Circuit Court for fresh examination.

On 5 August 2009 the third and fourth applicants requested that the Circuit Court remit the case to the prosecutor’s office for further investigation. On 7 August 2009 the Circuit Court dismissed the application. The applicants appealed.

On 3 September 2009 the Supreme Court granted the third and fourth applicants’ application, and the case was transferred to the prosecutor’s office for further investigation.

On unspecified dates the charges against P.R. were dropped; L.A.G. was indicted.

On 31 May 2011 R.M., who had spent some time hiding in Belgium, was arrested in the Chechen Republic.

According to the applicants, at an unspecified point in time a certain O.G. informed them that he had information which was crucial for the investigation, and that he was willing to testify as a witness. At the applicants’ request, an investigator questioned him. O.G. stated that D.P. was implicated in the murder. According to the Government, the investigator in charge of the case attempted to find O.G., but could only gather evidence from him after he had been informed of the witness’s whereabouts in Ukraine.

On 26 August 2011 the Basmannyy District Court of Moscow (“the District Court”) ordered D.P.’s placement in custody.

On 31 August 2011 D.P. entered a guilty plea with the investigating authorities. He claimed that his acquaintances, L.-A.G. and S.Kh., had proposed that he organise unauthorised surveillance of Ms Politkovskaya. L.-A.G. had expressed his intention to kill the journalist and had said that D.P. could take part in the preparation for the assassination for a fee, which D.P. had accepted. Having received a large sum of money and instructions from L.-A.G., he had bought a pistol with a silencer from a stranger and passed it on to R.M. In the Government’s submission, L.-A.G. had not reported the motives for the killing, but had “mentioned that the crime [had been] ordered by a wellknown person living in the United Kingdom”.

On 29 August 2012 the criminal case against D.P. was severed and a separate investigation was created; the applicants disagreed with that decision. On 14 December 2012 the Moscow City Court (“the City Court”) sentenced D.P. to eleven years’ imprisonment. The applicants appealed against the judgment, arguing that the sentence was too lenient. On an unspecified date D.P.’s conviction was upheld on appeal.

At some point the case file against S.Kh., R.M., D.M., I.M. and L.A.G. was transferred to the City Court for trial.

On 20 June 2013 the City Court commenced a jury trial of S.Kh., R.M., D.M., I.M. and L.-A.G.

On 14 November 2013 the jury was dismissed for the reason that only eleven jurors out of twelve appeared in the courtroom.

On 14 January 2014 hearings before a new composition of the jury commenced.

On 29 May 2014 the jury delivered a verdict finding all five coaccused guilty of Anna Politkovskaya’s murder. They also found R.M. guilty of kidnapping a third party in October 1996.

On 9 June 2014 the City Court delivered a judgment. It found that L.-A.G. had “accepted an offer from an unidentified person who had been dissatisfied with publications by Anna Politkovskaya in Novaya Gazeta concerning violations of human rights, the embezzlement of State property, and abuse of public office by civil servants” – an offer of a fee of at least 150,000 United States dollars to organise the journalist’s killing. L.A.G. had then involved his nephews, R.M., D.M., and I.M., as well as “a person in respect of whom the criminal case had been severed” and his acquaintance S.Kh. in the preparation for the killing. On the basis of the jury’s guilty verdict, the City Court characterised the murder as one committed by an organised group for a fee in connection with the victim’s performance of her professional and civic duties. It also found that L.A.G., R.M. and D.M. were guilty of illegal arms operations. It refused to terminate the proceedings against R.M. regarding the events of 1996 under the statute of limitations, because the latter had been wanted in connection with those events since 1997, and found him guilty of kidnapping and extortion. The City Court sentenced L.A.G. – regarded as the organiser of the killing – and R.M. – regarded as the hitman – to life imprisonment. D.M. and I.M. were sentenced to fourteen and twelve years’ imprisonment respectively. S.Kh. was sentenced to twenty years’ imprisonment. Civil claims by the third and fourth applicants were resolved as follows. The third and fourth applicants were each awarded 700,000 Russian roubles ((RUB) – approximately 14,790 euros (EUR)) to be paid by L.-A.G. and R.M. respectively, RUB 500,000 (approximately EUR 10,570) to be paid by S.Kh., and RUB 300,000 (approximately EUR 6,340) to be paid by D.M. and I.M. respectively.

The defendants appealed against the conviction.

On 26 June 2015, in the appeal proceedings, the Supreme Court of Russia found that the guilty verdict was based on a thorough examination of the evidence. Upholding the conviction as a whole, the Supreme Court slightly mitigated the sentence regarding illegal arms operations in respect of L.-A.G., R.M. and D.M. However, pursuant to the rules on combining sentences for multiple offences, this did not affect L.A.G.’s and R.M.’s life sentences. D.M.’s term of imprisonment was reduced to thirteen years and nine months.

In the Government’s submission, the investigation into Anna Politkovskaya’s killing has not been terminated. They provided copies of the City Court’s judgment of 9 June 2014 and the Supreme Court’s appeal judgment of 26 June 2015.


CASE OF ERLA HLYNSDOTTIR v. ICELAND (No. 3)

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

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

The applicant, Ms Erla Hlynsdóttir, is an Icelandic national who was born in 1978 and lives in Reykjavík. She is a journalist, working for the newspaper DV.

In May 2007 the Director of Public Prosecutions issued an indictment against two individuals for importing cocaine into Iceland. The cocaine had been hidden in a Mercedes Benz vehicle, where it had been discovered by customs officers. The police had removed the cocaine and put another substance in its place. One of the accused, Mr A, had collected the car from customs and had paid customs duties for it. He and the other accused had driven the vehicle to a garage, where the substance had been removed.

The newspaper DV published an article on 5 July 2007 on the ongoing criminal proceedings against Mr A and his co-accused before the Reykjavík District Court. A picture of Mr A was published on the front page of the newspaper showing him walking into the courtroom. There was a large headline under the photograph which read “Scared cocaine smugglers” and underneath that it was written that both the accused were afraid of retaliation by their accomplices and had therefore refused to identify them. Mr A´s name also appeared on the front page, with a report that he and his co-accused could expect prison sentences of seven to eight years and three to four years respectively for removing the substance.

The article itself was reproduced on page 2 of the newspaper and the applicant was identified as its author. Next to the article appeared another photograph of Mr A, again using his name. The article stated that Mr A had been afraid to reveal the identity of the man he claimed had actually been behind the importation, and that he feared for his family’s and his own safety. The article contained the following passage:

“The Director of Public Prosecutions is requesting a punishment of seven to eight years´ imprisonment in respect of [Mr A], who has been indicted for importing nearly 3.8 kilograms of cocaine, intended for sale, together with an unknown accomplice. A punishment of three to four years is requested in respect of [Mr B], who is also charged in the case with removing the alleged drug from the vehicle, in cooperation with [Mr A],”.

In the next paragraph it was stated:

“The cocaine was hidden in a vehicle which [Mr A] imported into the country and took possession of in February 2007, believing that the cocaine was still in the vehicle, but the police had already confiscated the cocaine and replaced it with a decoy drug.”

This sentence was a verbatim rendering of a part of the description of the facts contained in the indictment, without explicit reference being made to that document.

By a judgment of 12 July 2007 the District Court acquitted both Mr A and his co-accused of all charges, and on 29 May 2008 the Supreme Court upheld the acquittal.

On 21 October 2008 Mr A lodged defamation proceedings before the Reykjavík District Court against the applicant and Mr S.M.E., who was the editor of DV at the time. In his writ he requested that the headline (“Scared cocaine smugglers”) which had appeared on the front page of the newspaper published by DV on 5 July 2007 and the passage quoted in paragraph 9 above be declared null and void. In addition, Mr A requested that the respondents jointly and severally be ordered to pay him 2,500,000 Icelandic krónur (ISK) in respect of non-pecuniary damage and ISK 500,000 to cover the costs of publishing the judgment in the case in three newspapers.

Mr A argued that the responsibility for the statements lay with the applicant as the author of the article, in accordance with section 15 (2) of the Printing Act no. 57/1956. No one had been identified as the author of the front-page headline, and therefore the publisher or editor was responsible for it (see section 15 (3) of the same Act, at paragraph 23 below).

By a judgment of 26 June 2009 the District Court found for the applicant and the editor. In its reasoning it referred to the right to freedom of expression and protection of private life, as guaranteed by the Icelandic Constitution. It further stated:

“When there is an overlap of the defendant’s aforementioned interest in the enjoyment of freedom of expression and the plaintiff’s interest in the enjoyment of respect for his private life, it must be examined whether the publication of the material, for which the defendants are responsible, can be considered to have taken place in the context of a general public debate and therefore to be of interest to the public. The disputed comments appeared in newspaper coverage of public criminal proceedings in which the plaintiff had been accused of a serious crime. The proceedings were open to the public and to those who wanted to observe, in accordance with the usual practice, and the defendants’ account is in accordance with what was revealed at the proceedings. News reporting of criminal cases being tried before the domestic courts must be considered normal and part of a journalist’s work. It cannot be a requirement that news reporting must await the outcome of a trial before publication. It makes no difference that the plaintiff was later acquitted of the charges. It must therefore be held that the published material, at the time it was published, was relevant to the public and was newsworthy. Although the headline on the front page is sensationalist, it has to be kept in mind that it refers to what was revealed during the testimony of the plaintiff in the criminal case, namely that he did not want to reveal the name of the person on whose behalf he was acting in respect of the charge of importing the drugs, as he feared for his own and his family’s safety. In view of all this, the statements are not considered to have been insulting or hurtful to the plaintiff, as defined in Article 234 of the Penal Code, or to contain an insinuation, as in Article 235 of the same Code. Moreover, they will not be deemed to entail an illegal injury to his character and honour ...”

Mr A appealed against the District Court’s judgment to the Supreme Court.

By a judgment of 11 March 2010, the Supreme Court overturned the District Court judgment. It declared null and void the words “cocaine smugglers” on the front page and the statement “... believing that the cocaine was still in the vehicle” and ordered the applicant and the editor jointly and severally to pay the appellant ISK 100,000 (approximately 575 euros (EUR)) in compensation for non-pecuniary damage, plus interest, and ISK 50,000 for the costs of publishing the judgment. Its judgment contained the following reasons:

“When the statements at issue in the present case appeared in DV on 5 July 2007, the criminal proceedings against the appellant and another man were pending before the District Court. This was clearly stated in the article, in which the substance of the charges against them was reproduced, along with a few essential points from the prosecution’s evidence and the statements which they had given at the hearing. It is not argued that the narrative was in any way incorrect, with the exception of those statements which are at issue in this case. The material published concerned a serious criminal case, which was being tried at a public hearing. It was therefore not subject to any limitations under Article 10 of the Code of Criminal Procedure no. 19/1991, in force at the time, which would have prevented the media from utilising its freedom [of expression] under Article 73 of the Constitution, to report on the case, including freedom to identify the accused. However, in that discussion special weight ought to be attached to the fact that it is the role of the courts, not the media, to determine whether an accused person is guilty of an offence.

... The appellant was acquitted of the ... criminal charges by a judgment of the District Court exactly one week after the publication of the statements in DV, and that conclusion was unaltered after the adoption of the Supreme Court judgment of 29 May 2008. By virtue of that conclusion the courts had rejected the accusation that the appellant and the co-accused in this case had been guilty of being ‘cocaine smugglers’, and also that the appellant in February 2007 had taken possession of the aforementioned vehicle ‘believing that the cocaine was still in the vehicle’. However, these two assertions were made in the statements which the appellant seeks to have declared null and void, without any reservation being made with reference to the fact that the assertions were based on an indictment which was contested in court. Bearing in mind the outcome of the criminal proceedings that had been instituted by that indictment, the statements in question contained an insinuation against the appellant, and there is no ground for rejecting his request for them to be declared null and void. As regards the other statements which the appellant claims should be declared null and void, it must be held that the word ‘scared’ in the headline on the front page contained a value judgment, and was also supported by comments made by the appellant and the co-accused during the criminal proceedings. The narrative in the article inside the newspaper, stating that the cocaine had been hidden in the vehicle which the appellant had imported into the country and had taken possession of in February 2007, after the police had confiscated the drugs and replaced them with another substance, was merely a description of facts that were later substantiated during the criminal proceedings. There are therefore no grounds for declaring the statements relating to this matter null and void.

The statements which are declared null and void were published in an article, of which [the applicant] was named as the author, except for one word [kókaínsmyglarar] in the headline on the front page. She is liable to pay compensation for them, as provided for in section 15(2) of the Printing Act. On the other hand, since the author of the front-page headline was not identified, liability to pay compensation for that statement falls on the defendant [Mr S.M.E.] as the editor of the newspaper, under section 15 (3) of the same Act. The statement in the front-page headline and those in the article on page two were linked to such a degree [voru þau tengsl] that the defendants must be ordered jointly to pay compensation for them. It is considered that since, in the present case, declaring the statements null and void alone rectifies the appellant’s position to a great extent, compensation in the amount of ISK 100,000 is appropriate, with default interest, as further specified in the operative part of the present judgment. With reference to Article 241 § 2 of the Penal Code, the defendants must also be ordered to pay ISK 50,000 to the appellant to cover the costs of publication of the outcome of this case; he has not claimed interest on that amount.”

After his acquittal, Mr A initiated proceedings before the domestic courts, seeking compensation from the Icelandic State for unlawful detention during the above-mentioned criminal investigation, but to no avail. The Supreme Court, in its judgment of 16 June 2010, found the detention to have been justified even though he was later acquitted.

In April 2009, Mr A was again arrested for involvement in importing drugs into Iceland, and in December 2009 he was sentenced by a final judgment to ten years´ imprisonment for his part in the crime.


Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Ms Marina Vuletić, is a Croatian national, who was born in 1976 and lives in Zagreb. She was represented before the Court by Ms I. Bojić, a lawyer practising in Zagreb.

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

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

In December 1997, after a verbal altercation in a bar, A.B. attacked the applicant, causing a multiple fracture of her right arm.

The injury was characterised by a medical expert as grave bodily injury, and the applicant sought psychological help concerning the attack.

On 29 April 1998 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) indicted A.B. in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of causing serious bodily injury.

On 26 January 1999 the applicant submitted a civil claim for damages to the Zagreb Municipal Criminal Court.

In the period between 22 October 1998 and 21 February 2002 several hearings were held, at which the trial court heard the applicant, A.B. and several witnesses, and obtained the relevant medical evidence. During the proceedings, the applicant assumed the victim status and was represented by a lawyer.

On 18 March 2003 the Zagreb Municipal Criminal Court adopted a judgment which was quashed on appeal by the Zagreb County Court (Županijski sud u Zagrebu) on 8 July 2003, and a retrial was ordered.

In the resumed proceedings, on 3 February 2004 the Zagreb Municipal Criminal Court terminated the proceedings against A.B., on the ground that the prosecution had become statute-barred. This decision was not served on the applicant. It became final on 7 March 2004.

In November 2010 the case file was destroyed according to the internal court rules (see paragraph 16 below). Only the decision terminating the proceedings was kept in the archives of the Zagreb Municipal Criminal Court.

On 21 November 2012 the applicant inquired in the Zagreb Municipal Criminal Court about the status of her case and was then served with the decision of 3 April 2004 by which the proceedings had terminated.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows:

Article 23

“No one shall be subjected to any form of ill-treatment ...”

The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003 and 190/2003) provide:

Article 19

“(1) Criminal prosecutions for the purposes of applying the criminal legislation of the Republic of Croatia, ..., may not be instituted after expiry of the following periods, calculated from the time the offence was committed:

- three years if the case concerns a criminal offence punishable by a sentence of more than one year’s imprisonment ...”

Article 20

(1) The limitation period shall start to run from the date on which the offence was committed.

(3) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence.

(5) The statutory limitation period shall start to run again after each interruption.

(6) Criminal prosecutions shall in all cases become time-barred after expiry of the double statutory limitation period.”

“(1) Anyone who inflicts grievous bodily harm on another or seriously impairs another’s health shall be sentenced to imprisonment for a term from six months to three years.”

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002, 143/2002, 62/2003 and 115/2006) provided:

“(1) The president of the trial panel shall terminate proceedings and shall serve his or her decision on the parties and the victim ... when ...

2) he has learned that the proceedings cannot be continued for the reasons provided for in Article 353 ... (6) ... of this Code. ... “

“A judgment dismissing the charges shall be issued if ...

6) the proceedings have become statute-barred ... “

The relevant provision of the Courts’ Rules (Sudski poslovnik, Official Gazette nos. 158/2009, 03/2011, 34/2011, 100/2011, 123/2011, 138/2011, 38/2012, 111/2012, 39/2013 and 48/2013) provides:

Section 278

After the expiry of the relevant time-limit ... the case files shall be transferred from the common archives to the archives, that is to say given [for recycling] or destroyed.”

Section 280

“The case files shall be kept in the common archives:

... five years after the final termination of the [criminal] proceedings ...”


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home)

Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1962 and lives in Moscow.

On 17 March 2005 the applicant bought a flat in Moscow at 69/42 Bolshaya Filevskaya Street (“the flat”). The seller of the flat, Mr S., had acquired it under the privatisation scheme in 2004.

Before its privatisation the flat was owned by the City of Moscow. On an unspecified date it was allocated to Mr P. as social housing.

On 17 April 2001 Mr P. died.

On 14 December 2001 the Moscow City housing authorities authorised a certain exchange of flats which resulted in Mr M. moving into the flat which had previously been allocated to Mr P.

On 20 November 2002 and 5 March 2003 respectively Mr M. registered his grandfather, Mr S., and his grandmother, Mrs S., as also living in the flat.

On 23 March 2004 Mr M. and Mrs S. moved out of the flat.

On 18 May 2004 Mr S. signed a social tenancy contract with the Housing Policy and Housing Fund Department of the City of Moscow (Департамент жилищной политики и жилищного фонда г. Москвы, hereinafter “the Moscow Housing Department”).

On 10 September 2004 the Moscow Housing Department transferred the ownership of the flat to Mr S. under the privatisation scheme.

On 1 November 2004 Mr S. registered his ownership of the flat in the State register (Единый государственный реестр прав на недвижимое имущество и сделок с ним).

On 25 January 2005 an “informational ban” (информационный запрет) was imposed in respect of the flat by the criminal investigations service of the Moscow Department of the Interior (УУР ГУВД г. Москвы) in view of the possible illegal alienation of the flat.

On 17 March 2005 Mr S. sold the flat to the applicant. The terms of the purchase included an undertaking by the seller to buy the applicant an equivalent flat in the event that she lost the title for reasons relating to any defects in the title which pre-dated her purchase of the flat.

According to the Government, on 18 April 2005 the applicant’s representative was informed that the registration of her ownership of the flat had been postponed for one month.

On 17 May 2005, at the request of Mr S., the “informational ban” in respect of the flat was lifted.

On 18 May 2005 the applicant’s ownership of the flat was entered in the State register.

The applicant moved into the flat and has been living there ever since.

On 25 November 2008 the criminal investigations service of the Moscow Department of the Interior informed the Moscow Housing Department that it had discovered that the exchange of flats between Mr P. and Mr M. had taken place after the former’s death (see paragraph 9 above).

On 25 May 2009 the Moscow Housing Department instituted proceedings against Mr M., Mr and Mrs S. and the applicant, asking the court to declare null and void the flat exchange between Mr P. and Mr M. of 14 December 2001, the social tenancy contract between Mr S. and the Moscow Housing Department of 18 May 2004, the privatisation of the flat in favour of Mr S. of 10 September 2004 and its subsequent sale to the applicant of 17 March 2005. They further sought the applicant’s eviction, the termination of her title to the flat, and the return of the flat to the city of Moscow.

On 27 September 2010 the applicant lodged a counterclaim seeking to have her title to the flat recognised by the court. She contended that she had purchased the flat in good faith (as a bona fide buyer) and that she had not known that Mr S. had had no right to sell it.

On 8 December 2010 the Dorogomilovskiy District Court of Moscow (“the District Court”) granted the claim of the Moscow Housing Department. The court found that, since Mr P. had died on 17 April 2001, the flat exchange and all the subsequent transactions in respect of the flat should be declared null and void. The court refused to recognise the applicant as a bona fide buyer, having found that she could and should have known of the “informational ban” imposed on the flat, of which the registration service had informed her representative on 18 April 2005.

By an additional judgment of 31 March 2011 the District Court dismissed the counterclaims lodged by the applicant.

On 14 June 2011 the Moscow City Court quashed the judgments of 8 December 2010 and 31 March 2011 on appeal and remitted the case to the District Court for a fresh examination by a different bench. In particular, the court held that the District Court’s refusal to recognise the applicant as a bona fide buyer had not been based on sufficient grounds. Furthermore, having recognised the Moscow Housing Department as the owner of the flat and having found that the flat had left the City of Moscow’s possession without the latter’s intention to divest itself of it, the District Court had not taken into consideration that the flat exchange had not stripped the owner of its title, and that the subsequent transfer of the flat to Mr S. under the privatisation scheme had taken place with the participation of the Moscow Housing Department. Therefore, in violation of the principle of equality of arms the District Court had failed to examine why, in transferring the title to the flat to Mr S. on 10 September 2004, the Moscow Housing Department had failed to check the circumstances under which Mr S. had acquired the right to own the flat. The court further noted in this connection that by 10 September 2004 Mr P. had no longer been registered as living in the flat, as the information on his death had already been available.

On 31 January 2012 the District Court granted the claim of the Moscow Housing Department and dismissed the applicant’s counterclaims. The court found the flat exchange and all the subsequent transactions in respect of the flat null and void. It refused to recognise the applicant as a bona fide buyer, holding that she should have known of the existence of the “informational ban” imposed on the flat, as it had caused a month’s delay in the registration of her title with the State. The court also pointed out that the flat had been owned by Mr S. for only six months before being sold to the applicant and that the applicant had bought it below the market price, which should have raised reasonable doubts as to the legal status of the acquired property.

On 22 August 2012 the Moscow City Court, in appellate proceedings, upheld the judgment, having endorsed the District Court’s reasoning. It appears from the record of the appeal hearing that the plaintiff explicitly stated that it had no grounds to doubt that the applicant had bought the flat in good faith.

On 24 December 2012 the Moscow City Court refused to institute cassation proceedings, having found no violations of material or procedural norms in the previous proceedings.

The applicant requested a suspension of the execution of the judgment of 31 January 2012 in so far as it concerned her eviction. On 18 March 2013 the District Court dismissed her request. On 8 July 2013 the Moscow City Court upheld that decision on appeal.

According to the applicant’s latest submissions, she has not yet been evicted but considers it imminent.


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Ms Izabel Skokandić, is a Croatian national who was born in 1965 and lives in Žrnovo. She was represented before the Court by Mr I. Surjan, a lawyer practising in Zagreb.

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

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

On 19 April 2004, after obtaining all the relevant permits from the competent domestic authorities, the applicant applied to the Korčula Office of the Dubrovnik State Administration (Ured državne uprave u Dubrovačko-neretvanskoj županiji, Ispostava u Korčuli, hereinafter “the Korčula Office”) for a permit for the construction of a house in Žrnovo.

On 3 August 2004 the applicant was granted a construction permit, and this decision became final on 26 August 2004.

During the building work, on 24 May 2005, a building inspector of the Ministry of Ecology, Spatial Planning and Construction (Ministarstvo zaštite okoliša, prostornog uređenja i graditeljstva, hereinafter “the Ministry”) carried out an on-site inspection and, after examining the construction permit, found no irregularities in the work.

On 21 June 2005 a certain M.C. asked the Ministry to carry out a further inspection of the applicant’s construction work and her construction permit.

On 11 July 2005 the construction inspector requested the Ministry to revoke the applicant’s construction permit. He considered that the construction permit had not been properly issued, as it allowed construction in excess of the maximum limit of construction on a single plot of land. The inspector also considered that the construction of a flat roof as authorised by the construction permit would not be permissible under the relevant spatial planning regulations.

On 17 August 2005, on the basis of its supervisory review powers, the Ministry revoked the applicant’s construction permit on the grounds that the construction permit had not been issued in accordance with the relevant construction regulations.

The applicant challenged this decision before the Administrative Court (Upravni sud Republike Hrvatske) on 26 September 2006, arguing that she had lawfully obtained a construction permit, which had become final and enforceable. The applicant considered that the revocation of the permit was an abuse of powers by the construction inspector, and that there had been no legal grounds to revoke the construction permit for the reasons cited by the Ministry.

On 16 May 2007 the Administrative Court dismissed the applicant’s administrative action on the grounds that it appeared from the available evidence that the applicant’s construction permit had been issued contrary to the relevant construction regulations.

On 5 October 2007 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), contending that by the revocation of the construction permit the status of her property had become precarious as, although the house could not be demolished, she could never obtain a residential use permit, which was a further permit to be obtained as a necessary condition for a fully lawful use of house. She also considered that she had been made to bear an excessive individual burden as a construction investor.

On 25 November 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.

On 28 March 2013, following the enactment of the Unlawful Construction Act (Zakon o postupanju s nezakonito izgrađenim zgradama, Official Gazette no. 86/2012), which provided for the possibility of legalisation of unlawful constructions, the applicant requested legalisation of the construction status of her house.

In support of that request she submitted a new architect’s plan, for which she paid 15,000 Croatian kunas (HRK; approximately 1960 euros (EUR)). In addition, the Korčula Office ordered her to pay the legalisation fees in the amount of HRK 500 (approximately EUR 60).

On 23 October 2014 the Korčula Office granted the applicant’s request and authorised legalisation of her construction.

The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows:

“The right of ownership shall be guaranteed ...“

The relevant provisions of the Construction Act (Zakon o gradnji, Official Gazette nos. 175/2003 and 100/2004) read:

“(1) Construction may commence only on the basis of a final construction permit ...”

“(1) If an administrative inspection or an inspection conducted by a construction inspector finds that the issuing of a construction permit ... which [is] final ... manifestly breached the substantive provisions of this Act, the Ministry shall revoke that permit on the basis of its supervisory rights ...”

“A decision on revocation based on the [Ministry’s] supervisory rights may be issued within one year of the date of finality of the act being revoked.”

The relevant provision of the State Administration System Act (Zakon o sustavu državne uprave, Official Gazette nos. 75/1993, 92/1996, 48/1999, 15/2000, 127/2000, 59/2001, 190/2003, 199/2003 and 79/2007), as in force at the material time, read as follows:

“Damage caused to a citizen, legal entity or any other party by an illegal or improper act on the part of a State administration body, local administration body or any legal entity with public powers in the exercise of its authority shall be redressed by the Republic of Croatia.”

The same provision is contained in section 14 of the amended State Administration System Act (Official Gazette nos. 150/2011 and 12/2013).

In decision no. U-III-2314/06 of 21 February 2007 the Constitutional Court stressed:

The Constitutional Court points out that the State Administration System Act establishes a system of responsibility of the State on the basis of the principle of causality (causa) and not on the basis of guilt (culpa).

The primary and immediate responsibility of the State for damage caused by an illegal or improper conduct on the part of a State administration body or a legal entity with public powers is an expression of the principle of rule of law as one of the highest values of the Croatian constitutional order set out in Article 3 of the Constitution.”

On 13 February 2008, in decision no. U-III-822/2005, the Constitutional Court further stated by way of clarification:

“[Section 13] provides for primary and immediate responsibility of the Republic of Croatia irrespective of the level of governance (state, county, municipality or legal entity with public powers) at which damage has been caused by illegal or improper conduct. Such a responsibility of the State, which was also accepted in judicial practice (see Supreme Court decision no. Rev-903/03-2 of 4 January 2005), is an expression of the rule of law as one of the highest values of the Croatian constitutional order set out in Article 3 of the Constitution. The Constitutional Court points out that the State Administration System Act establishes a system of responsibility on the basis of the principle of causality and not on the basis of guilt (culpa).”

The Government provided a judgment of the Rijeka Municipal Court (Općinski sud u Rijeci), no. P-4553/11 of 30 March 2012, final on 27 February 2014, by which, on the basis of the Constitutional Court’s case-law (see paragraphs 21-22 above), a civil action was allowed and damages awarded under section 13 of the State Administration System Act for the local administration’s errors in authorising a construction permit.


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

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall

The applicant was born in 1957. He is currently detained in Timişoara Prison.

On 28 December 2009 the Cluj Directorate for Investigating and Combating Organised Crime and Terrorism (“DIICOT”) charged the applicant with aggravated fraud and organising a criminal group, and placed him in police custody for twenty-four hours.

By an interlocutory judgment of 29 December 2009 the Cluj County Court allowed a request by DIICOT to detain the applicant pending trial for thirty days. On the same date he was detained in the Cluj Police Department. His pre-trial detention was subsequently extended to cover the entire duration of his trial.

By a judgment of 5 December 2011 the Cluj County Court convicted the applicant of aggravated fraud and organising a criminal group, and sentenced him to four years’ imprisonment. The judgment remained final, after the Cluj Court of Appeal dismissed an appeal by the applicant on 29 May 2012 and the Court of Cassation dismissed an appeal by him on points of law (recurs) on 24 September 2012.

In his initial letters to the Court, the applicant contended, without providing details, that during the criminal investigation opened against him in 2009 he had been beaten up by police officers.

On 17 June 2010 he brought civil proceedings against the Romanian Ministries of Finance and Justice seeking financial compensation for inadequate medical treatment during his pre-trial detention. In his written submissions he also stated that he had been subjected to violence after his arrest.

By a final judgment of 7 January 2011 the Cluj County Court dismissed the proceedings as inadmissible on the grounds that it was not competent ratione loci to examine his claim. It referred the case to the Bihor County Court.

By a judgment of 31 October 2011 the Bihor County Court dismissed the proceedings on the grounds that the statute of limitations for his claim had taken effect. In addition, the Romanian Ministries of Finance and Justice lacked the locus standi to be sued. There is no evidence in the file that the applicant appealed against the judgment.

In his letters to the Court, the applicant contended that in Aiud, Gherla, Rahova, Jilava, Slobozia, Dej and Miercurea-Ciuc Prisons he had been forced to share cells with between thirty and forty-five smokers, even though he was a non-smoker. They had been noisy and violent. Also, he would constantly be transferred from one prison to another, sometimes for distances of up to 400 kilometres in a vehicle with between thirty and forty detainees, who would smoke, eat and be noisy. Moreover, he had not been provided with adequate medical care during his pre-trial detention.

Between 8 January and 3 March 2010 the applicant was detained on several occasions in Dej Prison Hospital for a total of thirty-nine days, in non-smoking cells. He was afforded between 4 and 5.62 sq. m of living space, and was provided with adequate medical treatment for his condition.

Between 3 February 2010 and 18 January 2011 he was detained in Gherla Prison on several occasions for a total of two hundred and seventyfour days, in non-smoking cells. For sixty-three days of his detention he was afforded 5.31 sq. m of living space. For the remaining period he was afforded between 2.06 and 3.43 sq. m of living space.

Between 10 and 15 February 2010 the applicant was detained on two occasions in Jilava Prison for a total of four days, in non-smoking cells. For most of his stay he was afforded between 1.78 and 3.69 sq. m of living space; however, for a few hours he was afforded 6.38 sq. m or more of living space.

Between 9 and 11 February 2010 the applicant was detained in Slobozia Prison for three days, in a non-smoking cell. He was afforded 4.66 sq. m of living space.

Between 11 May and 8 November 2010 the applicant was detained repeatedly in Jilava Prison Hospital for a total of forty-five days, in nonsmoking cells. He was afforded between 4.68 and 5.43 sq. m of living space, and was provided with adequate medical treatment for his condition.

On 4 October 2010 the applicant was detained in Rahova Prison for three days, in a non-smoking cell. He was afforded 2.10 sq. m of living space.

On 23 December 2010 the applicant was detained in Miercurea-Ciuc Prison for twelve days. He was afforded 1.80 sq. m of living space.

The applicant was detained in Aiud Prison repeatedly, but only while in transit to another facility. He would only remain there for a few hours, in a non-smoking cell, and would be afforded between 1.45 and 2.05 sq. m of living space.

The applicant was transferred between detention facilities in twentytwo special vehicles fitted with windows, lights, heating and sunroofs. The vehicles had between sixteen and thirty-eight seats. The number of detainees transported would never exceed the number of available seats. Detainees were provided with food and water during transfers, and were allowed bathroom breaks and access to running water and smoking areas every time the vehicle stopped at a prison. Smoking was strictly prohibited during transfers.

During his detention, the applicant had refused to provide information on his pre-existing medical condition and had repeatedly refused treatment for his chronic and psychiatric problems.

On 18 January 2011 the applicant was released from pre-trial detention under the condition not lo leave the country pending the outcome of the criminal proceedings opened against him.

On 10 June 2013 the applicant was detained again following his conviction of 24 September 2012 (see paragraph 8 above) and was incarcerated in Timişoara Prison.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

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

The applicant was born in 1964 and is serving a prison sentence in the Voronezh Region.

On 19 September 2002 a search of the applicant’s flat was carried out. He was then charged with drug trafficking. The applicant was kept in police custody until 21 September 2002, when he was released on undertakings of good behaviour and to not leave town.

In separate proceedings, on 19 September 2003 the applicant was arrested on suspicion of causing bodily harm to another person. On 21 September 2003 he admitted the charge, allegedly under duress. According to the applicant, lawyer V., assigned to represent him, was not present at the interview and signed the record later on. However, there was no mention of counsel’s name in the list of visitors in the detention centre. On 23 September 2003 Judge M. of the Talovskiy District Court, the Voronezh Region (“the District Court”) authorised the applicant’s continued detention and stated that he “had indeed committed a very serious offence”. The applicant was charged with causing bodily harm resulting in the victim’s death. On the same date, the police took him to a hospital and required him to undergo a blood test.

The applicant confirmed his earlier confession in V.’s presence during an on-the-spot interview, which was recorded on video. On an unspecified date, the applicant terminated V.’s representation of him. A new lawyer, B., was appointed for the trial.

On 27 November 2003 Judge L. of the District Court convicted the applicant of drug trafficking. In February 2004 the District Court issued a decision admitting the applicant’s mother, K., as the applicant’s lay defender in the appeal proceedings concerning the drug-trafficking conviction. On 29 March 2004 the Voronezh Regional Court (“the Regional Court”) quashed the judgment of 27 November 2003 and ordered a retrial.

By a judgment of 22 November 2004, the District Court convicted the applicant of causing bodily harm resulting in the victim’s death. However, on 1 March 2005 the Regional Court quashed this judgment, considering that the trial court had wrongly allowed the reading out of a pre-trial witness statement, despite the defence’s objection and in the absence of the applicant. Thus, the appeal court ordered a retrial and that the applicant be held in custody pending it.

On 23 March 2005 the District Court extended the applicant’s detention, referring to the gravity of the charges against him and the risk that he would continue criminal activity, if at large.

In April 2005 the Regional Bar Association decided on a complaint brought by the applicant and imposed a disciplinary penalty on V., the applicant’s former lawyer, apparently, in relation to the drug-related case.

On 26 April 2005 the District Court returned the case about drug trafficking to the prosecutor. On 29 April 2005 the prosecutor joined the criminal cases against the applicant. On 30 April 2005 the investigator dismissed a number of motions lodged by the defence. In particular, the investigator stated that K. could no longer act as the applicant’s lay defender, since the decision to admit her to the proceedings issued in February 2004 had concerned only the appeal proceedings.

On 3 May 2005 the joined cases were submitted for trial before the District Court.

Hearings were held on 8 July and 21 July 2005. On the latter date Judge M. stripped K. of her lay-defender status in the criminal proceedings against her son, because she had been interviewed as a witness in the bodily harm case.

Subsequently, the case was assigned to a trial panel of three judges, including Judge M. as the presiding judge.

In the meantime, the applicant sought the withdrawal of Judge M. from the case, arguing bias on account of, inter alia, the judge’s statement in the detention order of 23 September 2003 (see paragraph 7 above) and his failure to ensure decent conditions of detention pending retrial or to issue permission for a visit from the applicant’s mother. The judge refused to withdraw from the case, stating that the trial court was not competent to deal with the issue of conditions of detention and that the trial court’s competence as regards visits was limited under Article 395 of the Code of Criminal Procedure to the period following delivery of the trial judgment. While admitting that the remark in the detention order was “unfortunate”, the judge stated it did not contain any information to the effect that he had an “interest in the outcome of the criminal case”. The Regional Court upheld the judge’s refusals to withdraw.

In reply to a renewed challenge by the applicant, on 1 August 2005 the matter was submitted to the remaining two judges on the trial panel. They considered that there were no reasons for Judge M. to withdraw from or to be removed from the criminal case against the applicant. In particular, they stated that the Custody Act required “compelling reasons” for refusing a visit by a next-of-kin to a detainee. They concluded, however, that there was no evidence that any such visit had been refused without valid reason in the applicant’s case.

On 7 September 2005 the District Court discontinued the case against the applicant on charges of drug trafficking, because the prosecutor had dropped the charges.

As to the remaining charges of causing bodily harm, the trial panel noted the defence’s challenge to the expert report concerning the victim’s injuries and granted its request for another expert report.

On 24 January 2006 the District Court convicted the applicant of causing bodily harm resulting in the victim’s death and sentenced him to eight years’ imprisonment. The court relied on several witness statements, the applicant’s pre-trial confession and his on-the-spot interview.

On 20 April 2006 the Regional Court upheld the conviction and sentence.

In or around October 2006 the applicant sought statutory compensation payable by the State to individuals who have been acquitted of criminal offences or in respect of whom the charges have been dropped. On 3 April 2007 the District Court granted the applicant’s claims in part as regards pecuniary and non-pecuniary damage. On 17 July 2007 the Regional Court ordered a retrial in respect of the pecuniary claims. The award in respect of the non-pecuniary claim became final. On 10 April 2008 the District Court granted the applicant’s pecuniary claim in part. On 3 July 2008 the Regional Court, considering that the applicant’s presence at the appeal hearing was not necessary, upheld the judgment.

In the meantime, the applicant sought supervisory review of the above judgment, challenging the factual and legal findings made by the courts and their refusal to confirm his right to compensation on account of his prosecution on drug-trafficking charges. Having heard the applicant, on 13 February 2008 the Presidium of the Regional Court amended the judgments of 24 January and 20 April 2006 recognising his right to compensation. The court rejected the applicant’s remaining complaints as unfounded. He received a copy of the supervisory-review ruling on 19 February 2008.

On 29 December 2008 the applicant applied for early release from prison. In his letter, which was sent to the Paninskiy District Court of the Voronezh Region, he asked that the necessary supporting documents be requested by the court from the prison administration. It appears that this letter reached the District Court on 10 February 2009. By letter dated 11 February 2009, a judge of the District Court informed the applicant of the refusal to examine the application. The letter read as follows:

“Hereby I return your application for early release as it requires amendment. Certain necessary documents were not enclosed with it, namely the prison’s reports on your personality and disciplinary penalties, as well as certificates relating to employment, your medical and psychiatric conditions ...

No court decision [on your application] may be issued in the absence of these documents.”

The applicant did not appeal, as he was not provided with a copy of any formal decision.

Instead, the applicant resubmitted his application to the District Court, this time with some supporting documents. During the hearing, which took place before another District Court judge, the prison administration expressed their disagreement with his application, considering it to be premature. By a judgment of 25 March 2009 that District Court judge examined the applicant’s request. While acknowledging that the applicant had already served two-third of the sentence, the court rejected the application, referring inter alia to the fact that the applicant had received several penalties for violations of the internal prison regulations, including one placement in a punishment cell. The applicant appealed. On 23 June 2009 the Regional Court upheld the judgment.

Between 2002 and 2009 the applicant lodged numerous complaints, initiated proceedings against lawyer V. and various public officials accusing them of criminal offences, contesting criminal proceedings against him or complaining about the conditions of his detention (see also paragraphs 3739 below).

In November 2002 the applicant lodged a complaint, alleging that during the search of his house in September 2002 one of the officers had taken him into the bedroom and had pushed him against the wall. On 30 November 2002 an investigator refused to institute criminal proceedings on account of the alleged ill-treatment. In 2003 the matter was examined and a new refusal was issued by a deputy prosecutor on 28 May 2003. By a judgment of 2 September 2005, the District Court confirmed this refusal to prosecute. On 3 November 2005 the Voronezh Regional Court upheld that judgment.

The applicant was detained in Talovskiy Temporary Detention Centre (“TDC”), which was attached to Talovskiy police station, on numerous occasions between September 2003 and 2005 for periods at times in excess of one month. The applicant was also held in the TDC on several occasions between 2006 and 2008.

According to the applicant, although he was alone in the cell, no arrangements were made for a proper bed and bedding. Neither were there any facilities for taking a bath or shower or for outdoor exercise. He was given one meal a day. The walls were rendered with shuba, a coarse type of concrete, designed to prevent detainees from leaning on the walls. The cell windows were covered with metal shutters blocking access to fresh air and natural light.

In late 2003 the applicant had bronchitis and allegedly failed to receive appropriate treatment. In December 2003 he attempted suicide and self-harmed, being unable to stand the appalling conditions of detention and the duration of his placement in the TDC.

The applicant submitted that the conditions of detention in the TDC improved between 2006 and 2008, when he was allowed to take a shower and daily outdoor exercise and was provided with two meals a day.

Between October 2003 and July 2005 the applicant was also kept in Voronezh Remand Centre no. 36/1. According to him, at times, twenty-three detainees were held in a cell with twelve beds; thus the cell measurements were below the required international and even national standards.

In his observations before the Court, the applicant further argued that he had been kept in a cell measuring 25 sq. m. together with eleven other detainees. On average, the cell accommodated sixteen or seventeen detainees although it only had six bunk beds. At times, it accommodated some 20-23 detainees. The applicant enclosed diagrams of cells 141, 156, 171, 177 and 189, which, according to him, measured 27.5 sq. m. and had twelve beds each. He also provided several written statements from individuals who had been kept in the remand centre for varying periods between 2003 and 2006, at times in the same cell(s) as the applicant. For instance, T. submitted that on some occasions between twenty and twenty-seven detainees had been kept in cells measuring about 30 sq. m. with twelve beds. Another detainee stated that cell no. 171 had twelve beds but accommodated, sometimes, twenty-four detainees; they had to take turns to sleep during the day or at night.

Drawing on the statements from other detainees, the applicant’s lawyer argued in the observations that the cells had lacked mandatory ventilation although many detainees smoked, and, at times, the temperature there went up to 50 C. The toilet in the cells was separated in the main area by a metal bar of 1.5 m in height, which did not provide sufficient privacy. Sometimes, there was no water supply in the drainage system, so the use of the toilet had to be limited in order to reduce unpleasant smells. The cells were infested with flies, cockroaches and bugs.

In reply to the applicant’s initial complaint relating to the cell sizes and insufficiency of beds, the respondent Government submitted a certificate signed on 12 August 2009 by the acting chief officer of the remand centre. This certificate listed the cells in which the applicant had been kept for varying periods since October 2003 (cells nos. 1, 8, 44, 86, 90, 137, 141, 156, 171 and 188).

The applicant unsuccessfully complained to various public authorities about the conditions of his detention in the Talovskiy TDC. These complaints were forwarded to the Voronezh Region Prosecutor’s Office for examination. By letters of 16 March, 27 April and 26 August 2004, and 23 October 2006 the Prosecutor’s Office rejected his complaints as unfounded. It indicated that the applicant’s repeated placements in the temporary detention centre were due to logistical difficulties with transferring him between Talovskiy TDC and the Voronezh Remand Centre, which were a considerable distance apart. On 28 March and 12 September 2005 as well as on 29 September 2006 the Talovskiy District Prosecutor’s Office rejected the applicant’s renewed complaints as unsubstantiated.

By letters of 2 and 12 September 2005, the President of the District Court declined jurisdiction to deal with the applicant’s complaints about his repeated and prolonged detention in the Talovskiy TDC, including his complaints about the physical conditions of detention there.

By letter of 1 September 2008, the Regional Prosecutor’s Office informed the applicant that his earlier complaints had been examined by the district prosecutor, who had issued decisions dated 11 October 2006, 25 June 2007 and 28 January 2008 confirming unspecified violations in relation to the conditions of detention in the TDC.

The applicant is now detained in prison no. 3, located in Pereleshino in the Voronezh Region. According to him, the living area of the prison measures 64 square metres and houses 38 detainees; the artificial lights in the dormitory are insufficient; the food is bad.

Between January 2004 and March 2005 the applicant received visits in the remand centre from his mother, K.

Around April 2005 the applicant started to complain that he was no longer receiving visits from his mother. According to the Government, she did not come to the remand centre and did not request any visits at that time; nor did she lodge any complaints of visits being refused.

By letter of 1 April 2005, Judge M. of the District Court stated that the Code of Criminal Procedure did not require a court decision in response to the applicant’s complaint concerning family visits. Section 18 of the Custody Act did not necessitate a request for such a visit to be granted; the decision on whether to authorise such a visit remained within the discretion of the authority dealing with the criminal case. Article 395 of the Code of Criminal Procedure provided that visits could be authorised following delivery of the trial judgment and before its enforcement.

By letter of 7 April 2005 the President of the District Court dismissed the applicant’s renewed complaint. He indicated that family visits could be allowed under Article 395 of the Code of Criminal Procedure after pronouncement of a trial judgment.

The applicant also complained to the Regional Prosecutor’s Office that a police officer (apparently, the officer in charge of Talovskiy TDC) was refusing to allow visits from his mother. This complaint was forwarded to the Talovskiy District Prosecutor’s Office for examination. In July 2005 the district prosecutor dismissed the complaint from the applicant, stating that while K. had been accepted in February 2004 as a lay defender in the appeal proceedings concerning the drug-trafficking case against the applicant, this case had been joined to the second case pending before the District Court. The prosecutor noted that the District Court had not yet issued any decision accepting K. as a lay defender in the joined cases.

The applicant complained to the Supreme Court of Russia about the refusal to allow visits from his mother. This complaint was forwarded to the District Court. By letter of 29 July 2005, the President of the District Court stated as follows:

“I consider that section 18 of the Custody Act does not require the court “dealing with the criminal case” to grant applications for the authorisation of visits. Such visits may be authorised depending on the circumstances relating to the criminal proceedings. Following the quashing of the judgments [in respect of the applicant] on appeal and the decision to order a retrial, the retrial has not started yet. Article 395 of the Code of Criminal Procedure requires the court to grant visits from next-of-kin following delivery of the trial judgment ... K. had been accepted as [the applicant’s] lay defender, in addition to counsel, and was granted permission to pay visits to [the applicant] ... Section 18 does not require the court to issue any additional authorisations for visits ...”

The applicant also complained to the Regional Prosecutor’s Office in June 2005. This complaint was forwarded for examination to the Talovksiy District Prosecutor’s Office. By letter of 3 August 2005 the district prosecutor dismissed his complaint.

The applicant tried to lodge an appeal before the Regional Court in relation to the above letter of 29 July 2005. By letter of 12 September 2005, Judge M. of the District Court refused to process the applicant’s appeal against the letter. The judge indicated that a letter was not amenable to appeal.

The applicant submitted to the Court a statement made by his mother. She affirmed that on several occasions during the year 2004 she had been afforded the opportunity to talk for a short time with the applicant through a metal partition, because there was no meeting room in Talovksiy TDC. Between March and August 2005 she had lodged six requests before Judge M. of the District Court seeking authorisation for a meeting with the applicant in the TDC. In her requests, she referred to her next-of-kin status rather than her position as a lay defender in the criminal proceedings. The judge had dismissed her requests orally without issuing any formal decision which would be amenable to appeal. Her similar requests to the President of the District Court were also dismissed. She had presented the decision of 16 February 2004 to the chief officer of the Talovskiy police station but he had demanded a recent court order. Apparently, her ensuing complaints against the officers had not been processed by the District Court. Between February 2004 and July 2005 no permission had been granted for her to visit as a lay defender (which would have had the benefit of visits not being limited in frequency and duration, see paragraph 56 below).

In September 2005 the Court received the applicant’s application form dispatched, by registered mail, on 30 July 2005 from Remand Centre no. 36/1 (as indicated on the envelope). In March 2006 the Court received the applicant’s additional application form, with enclosures, sent by registered mail on 4 February 2006 from the same remand centre (as indicated on the envelope). In August 2006 the Court received two further packages, with numerous enclosures, from the applicant. According to the applicant, the above correspondence was, in fact, dispatched by his mother, K.

The Court also received the applicant’s letter dated 15 December 2006, which he submitted had been sent by his mother, in which he complained that prison no. 3 had not dispatched his letters of 27 June, 2 August and 8 September 2006.

Subsequently, the applicant also complained to the Court that the remand centre had not dispatched his letter dated 27 April 2006. He submitted a copy of a note, apparently written by a remand centre officer, stating that his letter had been dispatched. The Court did not receive this letter.

The applicant claimed that on 26 December 2006 the staff of the prison refused to dispatch a letter dated 15 December 2006 to the Court. He was then transferred to the TDC in Talovaya. According to the applicant, his mother then tried to dispatch the letter from there, but the staff of the postal office refused to dispatch it.

On 16 May 2008 the Registry of the Court received the applicant’s letter dated 28 December 2006, apparently dispatched by the applicant’s mother. In that letter the applicant alleged that on 26 December 2006 the administration of prison no. 3 had refused to dispatch his letter of 15 December 2006.

The Registry also received the applicant’s letters of 31 March, 10 October, 15, 21 and 29 December 2008, and several letters in 2009 from prison no. 3.


Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicant was born in 1967 and lives in Chelyabinsk.

In 2012 the applicant, while serving a prison sentence, was diagnosed with lymphoma. He was admitted to prison hospital no. 3 of the Chelyabinsk Region and underwent two courses of chemotherapy.

In December 2012 a court authorised the applicant’s early release on health grounds. He was then monitored by an oncologist in a civil hospital, having continued with chemotherapy. The Government submitted that in May 2013 the applicant had undergone an in-depth examination in the oncology department of the Chelyabinsk regional hospital, where he was diagnosed with lymphoproliferative disorder affecting the cervical, axillary, mediastinal and retroperitoneal lymph nodes. The applicant did not complete the medical examinations or treatment, including chemotherapy. He was arrested on 10 September 2013.

By judgments of 30 September 2013, 22 November 2013, and 16 December 2013 the applicant was convicted of fraud, robbery and theft respectively. He was sent to serve his sentence in detention facility no. 3. On 3 March 2014 he was transferred to the prison tuberculosis hospital.

On 13 March 2014 a medical panel, comprising the deputy head of the prison tuberculosis hospital and doctors from the same hospital, examined the applicant and diagnosed him with progressive non-Hodgkin lymphoma in acute III B stage, with lesions of the cervical, axillary and abdominal lymph nodes. The panel concluded that the applicant was eligible for early release as he suffered from malignant formations of lymphatic and haematogenous tissues, a disease included in the List of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation of 6 February 2004 (hereinafter “the List”).

On 10 April 2014, with reference to the conclusions of the medical panel, the applicant made an application for early release. On 26 May 2014 the Metallurgicheskiy District Court of Chelyabinsk dismissed the application. Having accepted that the applicant’s illness was included in the List, and describing his condition as “stable [but] serious”, the court, nevertheless, found that the drugs necessary for his treatment were available in the prison tuberculosis hospital, and that the applicant was undergoing the necessary medical procedures. The court further pointed out that it was not clear who would take care of the applicant in the event of his release from prison. The applicant did not appeal against the decision.

On 30 June 2014 the applicant’s sister gave a written undertaking to take care of the applicant should he be released.

According to a certificate issued by the prison tuberculosis hospital at the request of the applicant’s lawyer, the drugs necessary for the applicant’s chemotherapy were unavailable at the hospital.

On 1 July 2014 the medical panel from the prison tuberculosis hospital again examined the applicant. The diagnosis was that the applicant had progressive non-Hodgkin lymphoma in acute IV B stage with lesions of the abdominal lymph nodes. It was once again noted that the applicant was eligible for release on health grounds.

The applicant made another application for release at the end of July 2014. He submitted that his disease had progressed to its final stage and that he had relatives who could take care of him.

On 12 September 2014 the Metallurgicheskiy District Court held a hearing. B., a doctor from the prison tuberculosis hospital, testified that the applicant needed chemotherapy and radiation therapy, but was unable to receive such treatment in detention since the necessary equipment was unavailable at the hospital. On the same date the District Court dismissed the application for release once again, noting that the applicant had a tendency to reoffend and concluding that he was receiving adequate medical care in detention.

The applicant appealed.

In October 2014 the applicant asked the Court to apply Rule 39 of the Rules of Court and to authorise his immediate release from detention as an interim measure. The applicant claimed that he was not receiving the necessary medical assistance and treatment in detention, despite his suffering from a life-threatening and rapidly progressing illness. He relied on a certificate from the prison hospital confirming the absence of drugs for his chemotherapy (see paragraph 13 above).

On 16 October 2014 the Court decided to indicate to the Russian Government, under Rule 39, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts, including an oncologist, independent from the prison system with a view to determining: (1) whether the treatment he was receiving in detention was adequate for his condition; (2) whether his current state of health was compatible with detention in the conditions of a correctional colony or prison hospital; and (3) whether his current condition required his placement in a specialised hospital or release. The Russian Government were also asked to ensure the applicant’s immediate transfer to a specialised hospital if the medical experts concluded that the applicant required placement in such a hospital.

On 7 November 2014 the Government responded to the Court’s letter of 17 October 2014, submitting the following documents:

- a handwritten copy of the applicant’s medical history drawn up during his detention. The history included a form for consent to treatment, signed by the applicant. It also contained a detailed schedule showing the daily intake of drugs by the applicant. As appears from that document, he received basic analgesic and anti-inflammatory drugs, antihistamines, sleeping pills, antidepressants, antiemetics and neuroleptics.

- certificates issued by the acting head of the prison tuberculosis hospital, indicating that the applicant had not been provided with chemotherapy for his lymphoma as he had not consented to that treatment when it had been offered to him, in March and June 2014. According to the acting head of the hospital, the applicant had refused to make a written statement to that effect. The certificate also indicated that an oncologist had examined the applicant four times, once in March and September 2014 and twice in October 2014. At the end of October 2014 the applicant’s condition was considered to be serious: he was suffering severe pain and increasing asthenia, had coughed blood, and his lymph nodes continued to grow. In another certificate, the acting head of the hospital stressed that the applicant was suffering from a life-threatening oncological disease, particularly taking into account the advanced stage of his illness. In addition, in a separate certificate, the acting head of the hospital noted that the prison tuberculosis hospital where the applicant was detained employed an oncologist and had the necessary medicines for the applicant’s treatment.

- copies of the applicant’s complaints to various Russian officials, including the Chelyabinsk regional ombudsman, the Prosecutor General’s office, the regional department for the execution of sentences and the acting head of the prison tuberculosis hospital, about the poor quality of his medical care in detention. The complaints also contained a request for a medical examination and for his early release on health grounds.

The Government also answered the three questions which, in its letter of 17 October 2014, the Court had asked them to refer to independent medical experts. In particular, in their answer to the first question concerning the adequacy of the applicant’s treatment, the Government stressed that the applicant had regularly undergone in-patient treatment and examinations in relation to his oncological illness. They noted that the applicant’s condition was considered to be moderately serious and stressed that in March and June 2014 he had failed to consent to the cancer treatment. They further directed the Court to the documents enclosed with their reply (see paragraph 20 above).

In their response to the second question about the compatibility of the applicant’s state of health with the conditions of the correctional colony and prison hospital, the Government emphasised that the applicant’s hospital employed the necessary specialists, and had the necessary equipment and drugs to treat him. They further noted that the applicant was in pain and was weak, that he occasionally coughed blood and that his lymph nodes continued to grow. The Government continued by indicating that he would be provided with chemotherapy as soon as the general blood test results allowed and the applicant consented.

In replying to the third question as to whether the applicant needed to be transferred to a specialised hospital or be released, the Government observed that the applicant’s oncological illness was incurable and could lead to his death. They relied on the two reports issued by the doctors from the prison tuberculosis hospital on 13 March and 1 July 2014, according to which the applicant was suffering from a condition included in the list of serious illnesses precluding the serving of sentences in correctional institutions, as provided for by Decree no. 54 of the Government of the Russian Federation. However, the Russian courts had refused to release the applicant on health grounds. Another examination of the applicant by the hospital medical panel had been scheduled for November 2014.

The applicant informed the Court that on 28 November 2014, acting upon his appeal, the Chelyabinsk Regional Court had quashed the decision of 12 September 2014 and ordered his release. With reference to B.’s testimony, the Regional Court held that the District Court’s findings as to the adequacy of the treatment received by the applicant in the hospital were not in accordance with the established facts. It also pointed to the District Court’s failure to comment on the undertaking by the applicant’s sister to take care of the applicant after his release.

On an unspecified date after 28 November 2014 the applicant was released.


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

A list of the thirty-two applicants, who are all Slovak nationals, is set out in the appendix (“the applicants”).

The applicants were represented before the Court by Mr M. Hrouda, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

This application and three others (nos. 42812/10, 48554/10 and 44019/11) concern the regularisation of the relationship between ownership and use of real property located in the cadastral area of Košice-Sever.

Certain land in this area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. The sports centre comprises buildings and various other facilities, such as a tennis court, a grandstand, a water station and paved areas.

After the post 1989 political, constitutional and legal changes, litigation took place with a view to resolving various property claims made by the original owners (or their legal successors) against the entities that owned or operated the sports centre or various parts of it.

The land concerned is divided into a number of plots with various owners, many of whom are linked by family relations and history, and who had the same legal representation in the above-mentioned proceedings. Their lawsuits followed a similar pattern, but sometimes had varying results. They included the following proceedings.

The applicants in the present case are all successors in title to a plot of land in the above-mentioned area. They inherited their title from the original owner, who died in 1958.

On 3 October 1994 the applicants or, as the case might have been, their legal predecessors, represented then and throughout the proceedings by a laywer, lodged an action against the owner of a sports club seeking to obtain a court order for the removal of the constructions on the land.

The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law. The applicants were therefore the lawful owners of the land in question, in particular plot no. 10624 (recorded on sheet no. 1630 of the “old” records), and the defendant had no lawful title to have the constructions on the applicants’ land.

The action was subsequently amended to state that, alternatively, the applicants sought a judicial ruling establishing an easement on their land for the benefit of the owner of the sports centre in return for financial compensation payable to the applicants. It was also extended to two more defendants, a municipality and a private company, and to additional plots of land.

The action was examined and determined at first instance by the Košice I District Court (Okresný súd). In its judgment (rozsudok) of 24 November 2008, the District Court acknowledged that (i) the expropriation of 1984 was legally ineffective on account of procedural flaws; (ii) the applicants were the owners of the land in question; (iii) the constructions on it had been built without a valid legal title in so far as the land was concerned; and (iv) the applicants were entitled to seek redress under general civil law, that is to say Article 135c of the Civil Code (Law no. 40/1964 Coll., as amended), which was not subject to any statute of limitation, unlike the special legislation on restitution, which contained specific time-limits.

As regards the options available under Article 135c of the Civil Code for resolving the discrepancy between the ownership and use of the land and the constructions concerned, the District Court found that, for practical reasons, it was out of the question to have the applicants established as the owners of the constructions and to order them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order the physical removal of the constructions in question. The establishment of an easement for the benefit of the owners of the constructions in return for compensation payable by them to the applicants was therefore an option.

However, in that connection, on the basis of expert evidence, the District Court observed that part of the land concerned lay under a construction that fell within the definition of a “building” in terms of the law, whereas the remainder of the impugned land was not underneath “buildings” under the said definition.

However, the District Court held that an easement over land could only be established for the benefit of the owner of a building in terms of civil law.

A distinction therefore had to be made between the part of the land that was under buildings, in respect of which the action was granted and an easement for the benefit of the owner of the buildings was established, and the remainder of the land, in respect of which the action was dismissed.

At the same time, the District Court transferred the claim for compensation for the easement established by the former ruling to another set of proceedings.

The applicants challenged the first-instance judgment by means of an appeal (odvolanie) to the Košice Regional Court (Krajský súd).

They argued in particular that the District Court had failed to appreciate that the property in question was a part of a large complex serving a single purpose; that a number of claims had been raised in respect of that property; that the legal nature of those claims was identical to those raised by the applicants, differing only in the technical parameters of the specific plots at stake; and that in its judgment in case no. 15C 251/94, the District Court had established an easement in respect of plots of land comprising the sports centre, without differentiating between plots that had “buildings” on them and those that did not (see paragraphs 23 et seq. below).

On 20 April 2009, the Regional Court, sitting in chambers, dismissed the applicants’ appeal and upheld the first-instance judgment.

It summarised in detail the written, oral and expert evidence taken and fully endorsed the factual and legal conclusions of the District Court, providing further detailed explanations of the position taken, accompanied by references to the existing judicial practice. It also observed that the applicants could have asserted their property rights by other means, for example by lodging actions aimed at obtaining declaratory rulings and orders for compensation in respect of unjustified enrichment. However, they had not done so and the courts were bound by the legal classification of the claims they had pursued in the present proceedings.

Nevertheless, the Regional Court provided no specific answer to the arguments that the buildings and the adjacent facilities belonged to a single integrated complex and that a different conclusion had been reached in case no. 15C 251/94.

On 24 June 2009 the applicants, except for the twenty-third applicant, lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended).

Citing similar grounds to those mentioned above, coupled with the lack of a judicial response to what they considered to be crucial arguments, the applicants complained that the outcome of the proceedings had been arbitrary and alleged that their rights under, inter alia, Article 6 § 1 of the Convention (access, fairness, adequate reasoning) and the constitutional equivalent of Article 1 of Protocol No. 1 had been violated.

On 8 September 2009 the Constitutional Court declared the complaint inadmissible as being manifestly ill founded. It observed that it was not a court of further appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgments.

The decision was served on the applicants’ lawyer on 7 October 2009.

The position taken by the courts was subsequently fully endorsed by the Public Prosecution Service when it dismissed the applicants’ petition for an extraordinary appeal on points of law to be lodged on their behalf in the present case.

Article 135c deals with situations concerning so-called “unlawful constructions”, that is buildings (stavba) constructed on somebody else’s plot of land (pozemok) without an entitlement to do so.

At the request of the owner of the land, the court has the power to order the removal of such buildings at the cost of the person who constructed them (paragraph 1).

However, if the removal of the building is not practical, and subject to consent by the owner of the land, the court has the power to rule that the title to the building be transferred to the owner of the land in return for compensation (paragraph 2).

The court also has the power to regularise the relationship between the owner of the land and the owner of the building by taking other measures, in particular by establishing an easement, which is necessary for the exercise of ownership rights in respect of the building, in return for compensation (paragraph 3).

In a case registered at the District Court under file no. 15C 251/94 a different group of claimants raised essentially the same claims as the applicants in respect of other plots of land under the same sports centre, the defendant being the respective municipality.

Before the case was resolved on the merits with final effect, the Supreme Court had determined the claimants’ appeal on points of law (dovolanie) (no. 3 Cdo 96/98) against a previous judgment of the Regional Court. In its judgment of 25 February 1999, the Supreme Court observed that before the action could be determined on the merits (of the claim for an easement), preliminary questions had to be answered as to whether the claimants were the owners of the property concerned and, if they were, whether they had standing to sue in the case.

The Supreme Court further observed that, when dealing with those questions, the Regional Court had noted that the land in question had been expropriated in 1984. The Regional Court had therefore held that, even assuming that the expropriation had been flawed, it could only have been challenged by means of administrative-law remedies and within the timelimits prescribed for such remedies. That, however, had been beyond the scope of the case at hand and, therefore, the Regional Court held that the 1984 expropriation should be considered as being a matter of fact.

The Supreme Court disagreed with the Regional Court’s position described above. As was found in the present case (see paragraph 12 above), it found that the expropriation of 1984 was legally ineffective. As a consequence, the courts were bound to examine the preliminary question of the claimants’ ownership independently and irrespective of the expropriation decision.

The case was finally decided on the merits by the District Court on 13 March 2002. The action was granted and an easement was established for the benefit of the claimants in respect of the entire property covered by their claim, that is to say including some plots on which no “buildings”, in the sense explained above, were situated.

The judgment was not appealed against and became final and binding on 3 May 2002.

The ensuing question concerning the financial compensation payable by the municipality to the claimants for the easement was resolved by the District Court in a judgment of 13 December 2006 (case no. 15C 717/02) on the basis of an expert assessment.

In another similar case concerning property in the same area as in the present case, the claimants raised in principle the same claims. The court took the same position as in the present case, that is to say that the claimants were entitled to assert their property claims under the general provisions of the Civil Code and the determinative factor was whether or not the land in question was under “buildings”. As that was not so, the action was dismissed. The respective judgments were given on 11 August 2008 (the District Court) and 2 February 2009 (the Regional Court), and the final decision was given by the Constitutional Court on 18 March 2010.

In a number of other cases concerning property in the same area and in a situation similar to the present case, the position was taken that the claimants could not assert their rights under the general provisions of the Civil Code, as those provisions constituted a lex generalis, and their application was excluded by virtue of the special legislation on the restitution of property, as a lex specialis. However, that position does not appear to be settled.

The relevant parts of the report state that, in order for the principle of legal certainty – essential for maintaining confidence in the judicial system and the rule of law – to be achieved, the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner. As the existence of conflicting decisions within the highest courts may be contrary to this principle, it is necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case-law.

The relevant parts of the Opinion read as follows:

“47. While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system.

Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law.

Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision.”