Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran);Violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Krzysztof Wojtyczek;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano

The applicant was born in 1962 and lives in Sweden.

He entered Sweden on 16 November 2009 and applied for political asylum.

On 19 February 2010, counsel appointed the applicant made written submissions to the Migration Board (Migrationsverket) in which he developed the grounds for the applicant’s request for political asylum.

On 24 March 2010 the Migration Board held an oral interview with the applicant in the presence of his counsel and an interpreter. The applicant handed over a declaration of 15 March 2010 from a pastor in Sweden certifying that the applicant had been a member of his congregation since December 2009 and had been baptised. The Migration Board official therefore started the interview by asking about that matter. The applicant replied that it was a private matter “in [his] heart”, adding: “It has nothing to do with this but if you want to ask questions you may. All problems in my home country are caused by Islam entering Iran ...”. The Migration Board official explained that the reason why he was asking questions about it was that he had interpreted the certificate as though the applicant had relied on his conversion as a ground for asylum. The applicant stated: “no, it is not something I want to rely on. It is something private”. The Migration Board official then suggested a break in the interview in order for the applicant and his counsel to confer. After a ten-minute break, counsel stated: “the applicant wants to underline that he has not changed religion in order to enhance his chances of getting a residence permit but out of personal conviction”. When asked when he had converted, the applicant replied that this had happened after he had arrived in the Swedish town of X, where there were not many Iranians. He had got to know a person who went to church four times a week. This person knew that the applicant hated Islam. The applicant continued: “I do not regard Christianity as a religion”. When asked why that was so, the applicant replied: “if regarded as a religion it would be like Islam, but Christianity is about a kind of love you have for God”. He explained that he had been going to the congregation’s gatherings two to four times per week and that he read the Bible. The applicant gave examples of miracles and prophecies from the Bible which had attracted him to Christianity. The Migration Board official asked why, if the applicant did not wish to rely on his conversion as a ground for asylum, he had nevertheless handed in the certificate from the pastor, to which the applicant replied: “I don’t know. I never asked for it and I had not even considered handing it in, but you wanted it. They gave all converts a certificate like that”.

The rest of the interview dealt with the applicant’s political past. The applicant explained that in Iran he had worked with persons connected to different universities who were known to oppose the regime. He had mainly worked on creating and publishing web pages. He and one of the other persons had been arrested in April 2007. He had been released after 24 hours and then hospitalised for ten days due to high blood pressure.

Before the elections on 12 June 2009, the applicant had worked with the Green Movement, who had supported Mousavi for the presidential position, by spreading their message via the Internet. The day before the elections, he and his friends had been arrested, questioned and detained in the polling station overnight.

After the elections, the applicant had participated in demonstrations and other activities. He had been arrested once again in September 2009 and imprisoned for twenty days. He had been ill-treated in prison. In October 2009 he had been taken before the Revolutionary Court, which had released him after a day on condition that he cooperate with the authorities and spy on his friends. He had agreed to the demands and given his business premises as a guarantee. He had also assured them that he would not participate in any demonstrations and that he would respond to their summons. Following his release in a park, he had found that his business premises had been searched. He had kept politically sensitive material there, which the authorities must have noticed, and his passport and other documents were missing.

Subsequently, the applicant was summoned to appear on 2 November 2009 before the Revolutionary Court. He had contacted a friend who, in turn, had obtained the help of a smuggler to enable him to leave the country. The applicant submitted a summons from the Revolutionary Court dated 21 October 2009 stating that he should present himself at Evin prison in Teheran on 2 November 2009.

The interview before the Migration Board lasted approximately two hours and the record was subsequently sent to the applicant and his counsel for comment. Counsel commented that the applicant had not read the certificate from the congregation’s pastor before the interview as it had not been translated and that the applicant intended to submit the formal baptism certificate.

On 29 April 2010 the Migration Board rejected the applicant’s request for asylum. By way of introduction, it stated that while the applicant had not proven his identity or citizenship he had established the probability thereof.

As regards the request for political asylum, the Migration Board held that participation in demonstrations or affiliation with the Green Movement could not, of itself, give rise to a risk of persecution, ill-treatment or punishment on his return to Iran. The Migration Board noted that the applicant had changed his story in some parts during the proceedings, and in particular, he had changed his statements concerning the number of times he had been arrested. Furthermore, he had not been able to name the park where he had been released in October 2009. Thus, the Migration Board found reason to question whether he had been arrested at all. The Migration Board further considered that the applicant’s political activities had been limited. After the questioning in 2007 and until the elections in 2009, he had been able to continue working with the web pages that contained the critical material, even though, according to the applicant, already at that time the authorities had been aware of his activities. For these reasons, the Migration Board found that the applicant could not have been of interest to the authorities on account of his activities or the material he had in his possession.

As to the applicant’s conversion to Christianity, the Migration Board noted that the conversion and baptism had not taken place in the Church of Sweden and that the applicant had not handed in any proof of his baptism. The certificate from the congregation’s pastor could be regarded only as a plea to the Migration Board that the applicant should be granted asylum. The applicant had not initially wished to invoke his conversion as a ground for asylum and had stated that his new faith was a private matter. To pursue his faith in private was not found to be a plausible reason for believing that he would risk persecution upon return. In conclusion, the Migration Board found that the applicant had not shown that he was in need of protection in Sweden.

The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and relying on both political and religious grounds for asylum. As regards the latter he handed in a baptism certificate of 31 January 2010. He reacted against the decision by the Migration Board, which in his view implied that a conversion within a “free church” was of less relevance than if it had been within the Church of Sweden. He explained that the reason why he had not initially wished to rely on his conversion was that he did not want to trivialise the seriousness of his beliefs.

On 16 February 2011 the Migration Court held an oral hearing in the presence of the applicant, his counsel, an interpreter and a representative of the Migration Board.

The Migration Board did not question the fact that the applicant, at the time, professed the Christian faith, but found that this, by itself, was not enough to consider him in need of protection. It referred to the British Home Office’s operational guidance note of January 2009.

The applicant stated that he did not wish to rely on his conversion as a reason for asylum but considered it something personal. He added that “it would, however, obviously cause [him] problems upon return”.

In respect of his political past he explained, inter alia, that he had had contact with the student movement and quite a lot of students and had helped them with their home pages. His computer had been taken from his business premises while he was in prison. Material that was critical of the regime was stored on his computer. While he had not personally criticised the regime, or President Ahmadinejad, or the highest leaders, the applicant had visited some websites and had received cartoons via email. Therefore, in his view, there was enough evidence to prove that he was an opponent of the system. It was much the same as the material he had had on his computer in 2007.

The summons to appear before the Revolutionary Court on 2 November 2009 was also submitted to the Migration Court. The applicant explained that the summons had been served at his home and that his sister had brought it to him. He had left the summons with a friend when he left Iran. Subsequently, the said friend had sent it to another friend, who was going to Ukraine, and who had made sure that the summons was sent to the applicant in Sweden. He had not been summoned again and his family had not been targeted. Something might have happened, though, that his family did not wish to burden him with.

On 9 March 2011 the Migration Court rejected the appeal. It observed that the applicant was no longer relying on his religious views as a ground for persecution and it did not refer further to this issue in its conclusions.

The Migration Court found that the applicant’s story in support of his request for political asylum had been coherent and trustworthy on the most essential points. It found that the uncertainties that had been pointed out by the Migration Board had been satisfactorily explained. However, as regards the summons to appear before the Revolutionary Court, the Migration Court found, regardless of the authenticity of the document, that it could not by itself substantiate a need for protection. The Migration Court pointed out in this respect that the document was merely a summons and that no reason had been given as to why the applicant should present himself at Evin prison. Moreover, the information concerning the applicant’s political activities had generally been vague and lacking in detail. The applicant had only stated that he had participated in the campaign for the opposition before the elections in 2009 by joining demonstrations and having contact with the student movement and students in order to help them with their web pages. Furthermore, the applicant had stated that the material he had had in his possession when he was questioned in 2007 had not differed from the material he had in 2009. These circumstances, together with the fact that he had not been summoned again to appear before the Revolutionary Court after November 2009 and that his family had not been targeted, made the Migration Court doubt that his political activities had been of such a nature and extent as to have resulted in the consequences alleged. The Migration Court found that the applicant had exaggerated the importance of his political activities and their consequences and therefore also the authorities’ interest in him. For these reasons, it considered that the applicant had not made out that the Iranian authorities had a special interest in him and that therefore he was in need of protection.

On 30 March and 19 April 2011 the applicant requested leave to appeal to the Migration Court of Appeal (Migrationsöverdomstolen). He maintained his need for political asylum. He also alleged that before the Migration Court he had relied on his conversion. He submitted that the latter issue had been sensitive for him, that he had considered it a private matter and that had not wanted to tarnish the seriousness of his belief. This was the reason why he, in response to a direct question by the Migration Court, had stated that he was no longer relying on his conversion as a ground for asylum. After the oral hearing before the Migration Court he had become a member of another Christian congregation and had taken part in an initiation ceremony broadcast on the Internet. His fear that his conversion had become known to the Iranian authorities had therefore increased. He enclosed a letter of 13 April 2011 from his new congregation which supported his explanation. In particular, it stated that the applicant had converted shortly after his arrival in Sweden, that he had shown with honest intent and interest that he was willing to learn more about Christianity, and that he took part in church services, prayer meetings and social activities. It also stated that he became a member of the congregation in February 2011 and that his Christian beliefs were no longer private as the services he attended were broadcast on the Internet.

On 8 June 2011 the Migration Court of Appeal refused the applicant’s request for leave to appeal. The removal order thus became enforceable.

On 6 July 2011 the applicant requested the Migration Board to stay the enforcement of his expulsion and to reconsider its previous decision in the light of new circumstances. He stated, inter alia, that the act of conversion from Islam to another religion was a taboo and punishable by death in Iran. The applicant submitted the above-mentioned letter of 13 April 2011 from his new congregation.

On 13 September 2011 the Migration Board refused to re-examine the applicant’s request for asylum based on his conversion. The Migration Board noted that in the original asylum proceedings the applicant had stated that he had been baptised and had converted to Christianity. He had also stated that his conversion was a personal matter which he did not wish to rely on as a ground for asylum. The Migration Board found it noteworthy that the applicant now raised the question of conversion, when he had been given the chance to elaborate on it during the oral hearing before the Migration Court but had declined to do so. It thus concluded that the applicant’s conversion could not be regarded as a new circumstance, which was a precondition for the Migration Board to re-examine the request.

The applicant appealed against the decision to the Migration Court, maintaining his claims. He submitted that since he had not previously relied on his conversion, it should be regarded as a new circumstance.

On 6 October 2011 the Migration Court rejected the appeal. It observed that the authorities had already been aware of the applicant’s conversion in the original proceeding leading to the decision to expel him. Therefore, the conversion could not be considered as a “new circumstance”. The fact that the applicant had previously chosen not to rely on his conversion as a ground for asylum did not change the court’s assessment in this regard.

The applicant’s request for leave to appeal was refused by the Migration Court of Appeal on 22 November 2011.

Since under Chapter 12, section 22 of the Aliens Act, the validity of a deportation order expires four years after the date on which it acquired legal force, in the present case the deportation at issue expired on 8 June 2015.


CASE OF ALEKSANDR VALERYEVICH KAZAKOV v. RUSSIA

Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1960 and lives in Petropavlovsk-Kamchatskiy.

On an unspecified date the prosecutor’s office opened a criminal investigation into the activities of a criminal gang allegedly organised by V., a high-ranking police officer at the time. The members of the gang were suspected of numerous thefts of goods and foodstuffs from various storage facilities. One of the episodes under investigation was a fraudulent attempt by the members of the gang to sell scrap metal, which belonged to a private company, to a scrap metal processing plant. According to the official version, the attempt to sell the scrap metal was carried out by V., the applicant, who was also a high-ranking police officer at the time, and G., another member of the gang. On an unspecified date in November 2000 V., the applicant and G. met with M., a director of the scrap processing plant, and fraudulently represented to him that the scrap metal belonged to K. and that they were acting on her behalf. M. agreed to purchase the scrap metal and on 23 November 2000 he sent a group of workers to the company’s site in order to have the scrap metal removed. G.’s boyfriend Yer., another member of the gang, was also present at the site at the time. The removal of the scrap metal was interrupted by B., one of the private company’s directors. Yer. phoned G., who told him to go to the police station to notify V. of the incident. Then both Yer. and G. returned to the site to settle the issue with B., who had complained to the police about the attempted theft of the scrap metal. B. also informed Vosh., the company’s managing director, of the incident. Acting in his official capacity, V. assigned the investigation into the attempted theft of scrap metal to Yem., who decided to question M. However, V. interviewed M. himself and brought Yem. M.’s statement. Yem. questioned K., who submitted that she had nothing to do with the removal of the scrap metal from the company’s premises.

On 8 May 2002 the applicant was arrested and remanded in custody. On 3 December 2002 he was released on bail.

On 9 December 2002 the applicant was formally charged with more than ten counts of financial fraud, theft and embezzlement committed in collusion with eight members of the gang.

The trial opened in January 2003. At the end of the trial the prosecutor dropped all the charges against the applicant except the attempted theft of scrap metal.

The applicant maintained his innocence. The testimony he gave at the trial was summed up as follows in the judgment:

“... he has known V. since 1996 due to his service in the Ministry of the Interior[.] They have been friends. Since the late nineties he has known G. too, whom he met from time to time at different places and visited her at her home for work purposes. In the summer of 2000, V. asked ... to take him to the site [where the scrap metal was] in order to meet G. G. asked him and V. to help the buyer of the scrap metal to ensure its safety. He and V. promised to ask one of the police patrol teams to secure the scrap metal. They informed accordingly the buyer who arrived later to inspect the scrap metal. He did not talk to anyone about stealing and selling the scrap metal. He did not conspire with such intent and he did not take part in any negotiations about that. He did not receive any proceeds from the sale of the scrap metal or any advance payment. Nor did he take any measures to conceal the crimes committed by G. She falsely accused him of the involvement in the attempted theft of the scrap metal.”

The trial court questioned B., Vosh., and Yem. It further admitted into evidence the statements made by M., Yersh., and K. when questioned by the investigator. As regards witness M., the court noted that he had been away on a business trip and could not attend the court hearing. It considered that this absence amounted to an extraordinary circumstance that would permit the reading-out of his earlier statement. Despite the applicant’s objection, the court dispensed with summoning M. again for questioning and proceeded with the reading-out of his statement. According to the Government, the information concerning M.’s absence was communicated to the court by M.’s wife by telephone.

According to the written statement, used by the court, M. stated as follows:

“... he has been the General Director of the Steel Company LLC since 1995. It specializes in buying scrap metal from individuals and legal entities in the region. One of the long-term suppliers for his company was [G.]. In the spring of 2000 [G.] proposed being a middle person between the Steel Company LLC and her acquaintances who intended to sell a large quantity of scrap metal. She suggested that [he] meet with those persons to discuss the terms and conditions of the transaction. As was suggested by [G.], at the end of May 2000 he met with those persons at the site where the scrap metal was located ... . He met two men whose names were Aleksandr and Vladimir. They claimed that the scrap metal belonged to them and offered him to buy it. Subsequently, [G.] told him that those men were high ranking police officers ... . During the meeting Aleksandr asked him to make an advance payment for the scrap metal in the amount of RUB 150,000. [He also said] that it was for the Steel Company LLC to saw and dismantle the metal structure. When he asked them to show the documents confirming their title to the scrap metal, Aleksandr and Vladimir “stepped back” and explained that they were also middle men and that the scrap metal belonged to another person. [G.] did not take part in the discussion. He suggested that they could get back to discuss the transaction once they had the necessary documents. Then he left. In mid-November 2000 [G.] contacted him again as regards that scrap metal. She explained that police officers Aleksandr and Vladimir would present all the documents for the scrap metal and that she would draft the purchase contract. Several days later [G.] brought [a draft contract] which indicated that the scrap metal belonged to K. ... . According to [G.], the owner of the scrap metal was at the seaside and would contact him later ... . [G.] convinced him that the transaction was legal as the middle men and “underwriters” were high ranking police officers. He has known [G.] for her good reputation. He trusted her assurances as to the guarantees provided by the police officers and signed the contract. He asked his employees to start sawing the metal structure. Then a criminal investigation was opened. [G.] came to see him and explained that the police officers Aleksandr and Vladimir had set her up and that she had paid each of them RUB 10,000 from the amount his company had paid her for the metal. A day later, Vladimir came to see him. He asked him to make a written statement and said that he would resolve all the problems and that the criminal case would be closed. He responded that he had no problems because all his actions had been in compliance with law.”

According to the applicant, the trial court refused to summon K., O. and P., witnesses for the defence.

On 14 June 2005 the Petropavlovsk-Kamchatskiy Town Court found the applicant guilty of an attempted theft of scrap metal. The applicant was sentenced to six years’ imprisonment.

The Town Court’s findings as regards the applicant’s guilt were based on the testimonies of B., Vosh. and Yem., who were questioned during the trial. The court also referred to the statements given by K. and Yer. during the pre-trial investigation. Lastly, it relied on the statement made by M. during the pre-trial investigation.

The text of the judgment remained silent as to G.’s testimony regarding the attempted theft of the scrap metal. It was indicated that she had pleaded guilty to that charge.

Lastly, the trial court examined and admitted as evidence the following documents: (1) B.’s complaint to the police about the attempted theft of the scrap metal; (2) his company’s financial statements; (3) a contract for removal of the scrap metal signed by G. and M.; (4) G.’s telephone records; (5) M.’s statements recorded by V. and (6) the police order appointing V. to the post of the head of the police station.

On an unspecified date the applicant lodged an appeal against the judgment of 14 June 2005. He complained, inter alia, about M.’s nonattendance.

On 27 September 2005 the Kamchatka Regional Court upheld, in substance, the applicant’s conviction but reduced his sentence to four years’ imprisonment.


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

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

The applicant was born in 1957 and lives in Târgu-Jiu.

On 25 August 2003 the applicant, who was the director of a local bank branch, was arrested and charged with several economic crimes, namely approving loans without respecting the legal requirements, abuse of office, fraud, forgery and conspiracy to commit crimes. Seven other individuals were also charged with various bank frauds allegedly committed in association with the applicant between January 2002 and April 2003.

On 27 July 2007 the Sibiu County Court acquitted the applicant of all the charges against him. The court held that the applicant was not guilty of the crimes of abuse of office, fraud, forgery and conspiracy to commit crimes. As regards the crime of approving loans without respecting the legal requirements, the court held that from 26 March 2007 this was no longer an offence in law and therefore acquitted the applicant of this offence too. On 2 November 2011 the applicant’s acquittal was finally upheld by a judgment of the High Court of Cassation and Justice.

Following the applicant’s arrest on 25 August 2003 for a period of three days, the investigating prosecutor requested the Gorj County Court to confirm the applicant’s pre-trial detention for a total period of thirty days. The prosecutor reasoned the request by quoting the text of Article 148 (1) of the Code of Criminal Procedure which provided for the cases in which a defendant may be arrested, namely that the defendant had made preparations to abscond from the authorities; that there was sufficient evidence that the defendant had tried to obstruct the investigation by influencing witnesses and destroying evidence; that the defendant had committed crimes for which the punishment was imprisonment for more than four years; that there was evidence that if released the defendant would pose a danger to public order and that there were sufficient data to justify the concern that the defendant would exert pressure on the victim or that he would try to make a fraudulent settlement of the case with the latter. No specific reference was made to the applicant’s situation or to the application of the legislation quoted in his particular case.

On 26 August 2003, on the basis of the reasons advanced by the prosecutor, the Gorj County Court granted this request and remanded the applicant in pre-trial custody for twenty-seven days. By the same judgment and with the same reasoning the court remanded the other three co-defendants who were arrested at the same time as he applicant in pre-trial custody.

On 29 August 2003 the Craiova Court of Appeal rejected an appeal by the applicant on points of law against the above-mentioned interlocutory judgment as ill-founded. The court held “In the current case the applicant has committed the above-mentioned offences and their nature leads to the conclusion that the defendant’s release would constitute an actual danger to public order.”

The applicant’s and his co-defendants’ pre-trial detention was subsequently extended on 10 September 2003, with the reasoning that the motives which had justified their arrest still existed. In taking this decision the court also held relevant the fact that two more suspects had been arrested since the beginning of the investigation. An appeal by the applicant on points of law against this judgment was rejected by the Craiova Court of Appeal on 12 September 2003; the court held that the applicant’s release had been correctly deemed by the lower court to be a threat to public order.

Between 10 September and 2 December 2003 the applicant’s and his co-defendants’ pre-trial detention was extended each month by the Gorj County Court with the same reasoning, namely that there was sufficient evidence for the conclusion that the defendants had committed the offences for which they were on trial, and that therefore their release would constitute a danger to public order. On 2 December 2003 the Gorj County Court additionally held that the defendants’ pre-trial detention was also justified by the fact that new crimes had been discovered by the investigators to have been committed at the same bank branch. No details were given about these crimes or about the defendants’ personal situation in this connection.

From 23 December 2003 to 24 June 2004 the Gorj County Court extended the applicant’s and his co-defendants’ pre-trial detention jointly, with the reasoning that there were no new facts capable of justifying a revocation of the remand in custody, the defendants had not yet been heard in court, and the financial losses caused by the crimes had not yet been recovered.

On 24 June 2004 the Gorj County Court decided to allow the applicant’s request for the replacement of his pre-trial detention with a prohibition on leaving the town. The court noted that the applicant had already been held in pre-trial detention for approximately one year, and there was no evidence that he had tried to obstruct the investigation during this period. An appeal by the prosecution on points of law against this decision was allowed on 28 June 2004 by the Craiova Court of Appeal. The court of appeal held that pre-trial detention continued to be justified for all the defendants because of the high number of offences involved, the severity of the punishment provided by law for these offences, and the fact that the defendants had rendered the investigation more difficult by requesting expert reports as well as submitting documents in their defence for the first time before the court and not during the investigation phase.

Between 8 July and 9 November 2004 the applicant’s pre-trial detention was extended a number of times, on the basis of the same reasoning, relying on the severity of the offence and the implied danger to public order. On 30 September 2004 the Gorj County Court additionally held that the defendants’ pre-trial detention was also justified by the fact that new accusations had been made against three of them including the applicant.

The applicant appealed against all the decisions extending his pre-trial detention, alleging that there was not enough evidence from which to acquire a reasonable suspicion that he had committed the offences, and there was no proof that if released he would present a danger to public order. The applicant also emphasised to the courts that the investigation was based mainly on bank documents which had all already been seized, and therefore it would not be possible for him to obstruct the investigation if released from prison. He further mentioned that he was a respected person in his local community, with a family and three minor children for whom he was responsible. He made numerous requests to the courts for his pre-trial detention to be replaced with a prohibition on leaving the town. However, his appeals were rejected as ill-founded, the courts considering that the reasons for his initial pre-trial detention still existed, without analysing the applicant’s specific allegations or his personal situation.

On 11 November 2004 the Gorj County Court again decided to revoke the applicant’s pre-trial detention, but that decision was quashed by the Craiova Court of Appeal on 15 November 2004, with the reasoning that not all the evidence gathered by the prosecutor had been produced before the court.

On 6 December 2004 the High Court of Cassation and Justice decided to grant a request made by one of the defendants and changed the location of the trial to the Sibiu County Court.

At the time he was placed in pre-trial detention the applicant was suffering, among others, from chronic coronary heart disease.

On 15 September 2003 the applicant submitted a request to the Gorj County Court for the revocation of his pre-trial detention for medical reasons. He requested a forensic medical expert report and enclosed medical documents attesting to his state of health.

At a hearing on 13 January 2004 the court ordered that the applicant be examined by the Gorj Forensic Medicine Service.

On 11 February 2004 the Gorj Forensic Medicine Service submitted to the court a forensic report concluding that the applicant was suffering from several diseases. The report estimated that the applicant’s conditions required treatment under strict medical supervision and further cardiology, neurology and orthopaedic tests, hence making him unable to cope with the detention regime. The report also suggested that the suspension of the applicant’s detention was necessary for a period of three months in order for him to seek treatment in a civil hospital. Finally, the report concluded that a failure to undertake the treatment recommended by a specialist doctor might endanger the applicant’s life.

The court requested on 12 February 2004 that the forensic report be supplemented with specific medical recommendations for the applicant’s health problems. A new amended report was submitted on 25 February 2004.

On 4 March 2004, at the request of the prosecutor, the court ordered the revision of the amended report by the Craiova County Control Commission (Comisia de avizare si control a actelor medico-legale) for more clarifications.

At the hearing of 25 March 2004 the court took note that the Craiova County Control Commission had confirmed the forensic report drafted by the Gorj Forensic Medicine Service, but had recommended the suspension of the applicant’s pre-trial detention for only one month instead of three. Again at the request of the prosecutor, the court ordered clarifications from the Control Commission, given that the suspension of the pre-trial detention was not provided by law.

In view of the lack of response from the Control Commission, on 13 May 2004 the court ordered a new forensic report to be drawn up by the Bucharest National Institute of Forensic Medicine.

On 16 September 2004, the court took note of the receipt of the opinion from the Bucharest Control Commission, which concluded that the applicant’s condition required a coronarography procedure, which could be done in detention and did not require him to be released for one month as previously recommended. Therefore, the court decided that the applicant could be treated within the prison health system, and refused his request for revocation of his pre-trial detention for medical reasons. An appeal by the applicant on points of law against this decision was rejected as ill-founded on 22 September 2004 by the Craiova Court of Appeal.

On 30 November 2004 the applicant complained to the court that his state of health had worsened during his detention, and requested a new forensic expert report to establish whether he could be treated within the prison health system. The court granted the applicant’s request and ordered the report to be carried out by the Gorj Forensic Medicine Service. No such report was ever submitted to the court.

On 5 January 2005, on the basis of the medical documents available in the file, the Sibiu County Court ordered the revocation of the applicant’s pre-trial detention for medical reasons. The applicant was ordered not to leave his town of residence without authorisation. An appeal by the prosecutor against this judgment on points of law was rejected on 10 January 2005 by the Alba Iulia Court of Appeal. The applicant was released the same day.

In 2012, after his final acquittal by the judgment of the High Court of Cassation and Justice of 2 November 2011, the applicant brought a civil action before the domestic courts which was based on the provisions of Article 504 of the Code of Criminal Procedure. He requested pecuniary damages, alleging that his pre-trial detention had been unlawfully ordered by the prosecutor and excessively and unlawfully extended by the courts, an issue which had caused him material losses and also caused his state of health to worsen.

On 4 February 2013 the Craiova Court of Appeal finally refused the applicant’s request. The court held that the applicant was acquitted of one of the offences he had been charged with because it was no longer punishable by law. Therefore, given that he was not held in detention once the new law entered into force, his pre-trial detention was lawful and he was not entitled to receive any kind of damages.


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

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in 1960 and lives in Cheboksary.

In 2001 the applicant obtained an award of remuneration arrears in the proceedings against a private company that went under insolvency administration. On 15 May 2003 the applicant sued the insolvency manager of the company seeking the recovery of the remuneration awarded to him by the court.

On 30 November 2004 the Novocheboksarskiy Town Court of the Republic of Chuvashiya dismissed the applicant’s claim. The applicant appealed.

On 12 January 2005 the Supreme Court of the Republic of Chuvashiya upheld the judgment of 30 November 2004.

On 3 July 2004 the applicant lodged a claim with the Supreme Court of the Republic of Chuvashiya against the Novocheboksarskiy Town Court seeking recovery of nonpecuniary damages for excessively long examination of his claim against the insolvency manager.

On 8 July 2004 the Supreme Court of the Republic of Chuvashiya returned the applicant’s claim on the ground that it did not have jurisdiction to examine it. The court directed the applicant to lodge the claim with a district court. The applicant appealed.

On 17 August 2004 the Supreme Court of Russia amended the decision of 8 July 2004 and dismissed the applicant’s claim without consideration on the merits on the ground that it could not be examined in the course of civil proceedings. The relevant part of the decision reads as follows:

“... According to Article 16 of the Federal Law “On the Status of Judges in the Russian Federation” a judge could only be held responsible for actions committed in the course of administration of justice if he or she had been convicted of abuse of powers ... Since the issue of holding a judge responsible for an opinion expressed or a decision taken while administering justice could only be resolved in the course of the procedure established by law, the disputes of such kind could not be examined by courts in the course of civil proceedings.

With regard to the issue of compensation for damages caused by unlawful actions ... of a judge in cases when the judge’s fault had been established in the course of other type of proceedings than criminal, the issues of the basis for and the procedure of compensation by the state of the damage caused by unlawful actions ... which manifested themselves, among other things, in the breach of [the requirement of] the reasonable length of court proceedings ... are at present not determined by law [as well as] the courts’ jurisdiction in such cases.”

In the meantime on an unspecified date the applicant lodged with the Leninskiy District Court of Cheboksary, as advised by the Supreme Court of the Republic of Chuvashiya (see paragraph 10 above), a claim against the Treasury of the Russian Federation and the Novocheboksarskiy Town Court seeking nonpecuniary damages for the excessive length of the civil proceedings in his case.

On 15 July 2004 the District Court dismissed the applicant’s claim without examination on the merits. The court noted that the procedure for challenging the actions of a judge required a special legal framework which had not yet been set up. The applicant appealed. The relevant part of the decision reads as follows:

“... Taking into account the nature of the judiciary and the constitutional immunity of the judge, the procedure of appeal against the judge’s acts not resulting in the decision on the merits of a case required an adoption of special legislation. Currently there is no legislative framework in this respect ...”

On 23 August 2004 the Supreme Court of the Republic of Chuvashiya dismissed the applicant’s appeal. It stated that procedural rules for resolution of the issue raised by the applicant had not yet been established. The relevant part of the decision reads as follows:

“... Taking into account the material law providing responsibility of the judges and judiciary, disputes arising from the applicant’s claim could be resolved only in the course of the civil proceedings established by law. On the date of adoption of the decision disputed by the applicant, the legislator did not provide any legal framework for such cases ...”


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicant was born in 1974 and is detained in Diyarbakır.

On 8 March 1995 the applicant was taken into police custody on suspicion of membership of Hizbullah, an illegal organisation. The applicant’s right of access to a lawyer was restricted during his police custody according to the now defunct Law no. 3842. On the same day he was examined by a doctor at his own request. The doctor noted, in a police document, that there was no sign of physical violence on the applicant’s body.

On 16 March 1995 the applicant was taken part in “an identification parade with statements (ifadeli yüzleştirme tutanağı)” with other accused persons and identified, in the absence of a lawyer, certain persons as members of the said organisation and confessed to committing a murder.

On 26 March 1995 the applicant further participated in the reconstruction of the events (olay ve yer gösterme) in the course of which he had confessed, in the absence a lawyer, having carried out an arson attack.

On 29 March 1995 the applicant was questioned by the police officers in the absence of a lawyer. In his statement, the applicant gave a detailed description about his involvement in Hizbullah.

On 5 April 1995 the applicant was brought before the public prosecutor and the investigating judge respectively, again in the absence of a lawyer. Before the public prosecutor and the investigating judge, the applicant denied his police statements claiming that he had been subjected to torture. The investigating judge ordered the applicant’s detention on remand. On the same day and before his statements were taken, he had been examined by a doctor at the request of the police. The doctor noted, in a police document, that there was no sign of physical violence on the applicant’s body.

On 12 April 1995 he was examined by a doctor at his own request claiming that he had been subjected to torture while in police custody. The doctor noted that there was no sign of physical violence on the applicant’s body.

On 2 May 1995 the applicant gave evidence as complainant before the public prosecutor and stated that the had been subjected to various forms of torture, which included beatings, electric shock treatment, blindfolding, hosing with cold water, and being stripped naked.

On 23 May 1995 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and several other persons. The applicant was accused of carrying out activities for the purpose of bringing about the secession of part of the national territory, proscribed by Article 125 of the former Criminal Code.

On 19 October 1995 the State Security Court held the first hearing in the case.

By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court.

On 31 March 2005 the Diyarbakır Assize Court convicted the applicant of attempting to undermine the constitutional order, proscribed by Article 146 § 1 of the former Criminal Code, and sentenced him to life imprisonment.

On 11 December 2006 the Court of Cassation quashed the judgment of 31 March 2005 in respect of some of the accused, including the applicant, and remitted the case to the Diyarbakır Assize Court.

On 9 November 2007, the Diyarbakır Assize Court convicted the applicant of attempting to undermine the constitutional order, proscribed by Article 146 § 1 of the former Criminal Code, and sentenced him to life imprisonment again.

On 19 January 2009 the Court of Cassation upheld the first-instance court’s judgment.


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev

The eight applicants in this case are all Cypriot nationals and retired army colonels. Their case concerns the conditions under which they retired from the Cypriot National Guard. They are represented before the Court by Mr A. Markides, a lawyer practising in Nicosia with Markides Markides & Co. A list of the applicants is set out in the appendix.

At the material time the conditions of service of commissioned army officers in the Cypriot National Guard, including matters of promotion and retirement, was regulated by the Army of the Republic Law of 1990 and by the Officers of the Army of the Republic (Appointments, Hierarchy, Promotions and Retirements) Regulations of 1990–2002 (“the Regulations”).

Pursuant to the Regulations, each officer was subject to an annual performance review by the Army’s Supreme Evaluations Board. Under Regulation 14(3) and (4), that review would lead to one of four category ratings/outcomes:

(i) the officer being promoted;

(ii) the officer being confirmed in the post at the same rank;

(iii) the officer being deemed to have “successfully terminated his or her career”. This would be the case if he or she did not meet the criteria either for promotion or confirmation in post (i.e. categories (i) and (ii) above) and his or her further service would hinder the advancement of younger officers; or

(iv) the officer being retired. This would be the case when it was not considered appropriate for the officer to continue exercising the duties of his or her rank owing to a lack of substantial qualifications.

As a means of allowing officers of lower ranks to advance to higher ranks, Regulation 18(1) provided that, of the senior officers evaluated by the Supreme Evaluations Board every year, a certain percentage were to be considered as falling within categories (iii) and (iv). For colonels, the percentage was to range from 30–40%. Regulation 18(2) provided that, in complying with Regulation 18(1), the Supreme Evaluations Board should accord priority to requests from officers for retirement on the basis of having successfully terminated their career.

Regulation 19(1)(b) and (c) of the Regulations sets out the terms on which an officer falling within categories (iii) and (iv) would leave the army.

For colonels, this regulation provided that a colonel who received a category (iii) rating would be promoted one rank, that is to brigadier, on the day proceeding his or her retirement. His or her pension would then be calculated based on the salary a major general (one rank higher than a brigadier) received at the full age of retirement. The officer would also receive a lump sum payment calculated with reference to his or her pension.

By contrast, a colonel compulsorily retiring with a category (iv) rating would do so at his or her existing rank. His or her pension would be calculated based on the salary of a brigadier at full retirement age and the lump sum payment would be calculated with reference to his or her pension. Thus the pensions and lump sum payments would be higher for a colonel on a category (iii) rating than a category (iv) rating.

The applicants were all colonels in the Cypriot National Guard. Between February 2003 and February 2004, they submitted requests for retirement on the basis of having successfully terminated their career, pursuant to Regulations 14(4)(c) and 18(2). Their written requests specified that these were without prejudice to any legal rights which might arise from any declarations of unconstitutionality or nullity of the Regulations.

The Supreme Evaluations Board considered the requests of the first five applicants at its annual meeting on 9 May 2003; it considered the remaining requests on 9 March 2004. It approved all eight requests and the applicants were consequently deemed to have successfully completed their military careers. In accordance with Regulation 19, the applicants were promoted from colonel to brigadier with effect from the day before their retirement, and their pensions and lump sum payments were determined with reference to the salary of a major-general.

In 2002, the Supreme Evaluations Board gave category (iii) ratings to a number of officers who had held the same rank and who had completed the same number of years of service as the applicants. These officers had not submitted requests for voluntary retirement: the category (iii) rating was the result of their annual performance review.

These officers applied to the Supreme Court for annulment of the Board’s decisions claiming that they deserved a higher rating.

On 15 September 2004, the Supreme Court annulled the Board’s decisions, finding that the Board had failed properly to examine whether the conditions in the 2002 Regulations had been met. The court found that it was not open to the Board to find that officers would not qualify for receiving category (i) or (ii) ratings simply in order to fill the 30-40% quota for category (iii) ratings set out in the Regulation 18(1).

Further to the decision, the Ministry of Defence made settlement offers to the officers concerned. The offers included the following terms:

(i) the officers would be re-evaluated for the years 2002-2004 and, as a result, some of them would be promoted from colonel to brigadier.

(ii) the officers would receive an ex gratia payment of CYP 4,000 (EUR 6,834) for each year they would have served before reaching the age of mandatory retirement which applied to their new ranks (sixty years of age for brigadiers as opposed to fifty-eight for colonels).

Having accepted these settlement offers, the officers submitted requests for voluntary retirement. These requests were accepted by the Ministry of Defence and they retired in April 2005.

On 23 January 2006, the applicants wrote to the Minister of Defence requesting that the offers made to their fellow officers should also apply to them since their requests for voluntary retirement had been made without prejudice (see paragraph 8 above).

The Minister rejected the applicants’ request on 17 February 2006, relying on legal advice to the effect that the Supreme Court’s decision of 15 September 2004 had not annulled the 2002 Regulations and the settlement the Ministry had reached with the other officers was in conformity with the Supreme Court’s decision.

The applicants challenged the Minister’s refusal before the Supreme Court, submitting that it was contrary to the principles of equality and nondiscrimination enshrined in Article 28 of the Constitution (see paragraphs 20 and 21 below).

On 20 July 2007 a single judge of the Supreme Court annulled the Minister’s decision. The judge noted that the Minister had accepted that the applicants were in an equivalent position to their fellow officers in terms of rank and years of service, but had submitted that there was a reasonable distinction between the two groups: the latter group had sought to vindicate their rights through the courts and thus the extra benefits they had received were provided pursuant to Article 146(6) of the Constitution (the right to damages in administrative recourse proceedings before the Supreme Court: see paragraph 22 below). The judge found that the only distinction between the two groups was that the other officers had submitted their requests for voluntary retirement after succeeding in their applications to the Supreme Court. There was thus no reasonable distinction between those officers and the applicants and, in the applicants’ case, there had been a violation of Article 28 of the Constitution.

The Minister appealed against the decision of the single judge to the plenary of the Supreme Court and, on 14 June 2011, the plenary court allowed the Minister’s appeal (appeal no. 131/2007). The court found that applicants had accepted the terms of their retirement unconditionally and without reservation. By contrast, the other officers had contested the legality of the Board’s decisions in their cases and they had subsequently received benefits that were determined in light of the Supreme Court’s judgment annulling the Board’s decisions. In addition, the other officers had continued to serve in the National Guard while their appeal to the Supreme Court had been pending and until they accepted the settlement offers made by the Ministry of Defence. The context surrounding the two groups of officers was different and therefore there had been no discrimination contrary to Article 28.

Article 28(1) of the Constitution provides that everyone shall be equal before the law, administration and justice, and everyone shall be entitled to equal protection and treatment. Article 28(2) protects against direct and indirect discrimination on ground of community, race, religion, language, sex, political or other convictions, national or social descent, birth, colour, wealth, social class, or on any ground whatsoever, unless there is express provision to the contrary in the Constitution.

Article 28 of the Constitution is not absolute and reasonable distinctions in treatment may be made when the special circumstances of a case so require (see, inter alia, among others, Soteriades v Theofylaktou and others (2002) 3 A.A.D 56; Theocharides v the Republic (1998) 3 A.A.D 63).

Article 146(1) provides for recourse against administrative decisions to the Supreme Court. Should the recourse succeed, the power of the Supreme Court is confined to declaring an act or decision null and void, or, in the case of an omission, that it ought not to have occurred, in that what had not been done should have been done (Article 146 (4)). Article 146(6) provides for compensation in such proceedings in the following terms:

“Any person aggrieved by any decision or act declared to be void under paragraph 4 of this Article or by any omission declared thereunder that it ought not to have been made shall be entitled, if his claim is not met to his satisfaction by the organ, authority or person concerned, to institute legal proceedings in a court for the recovery of damages or for being granted other remedy and to recover just and equitable damages to be assessed by the court or to be granted such other just and equitable remedy as such court is empowered to grant.”

The relevant provisions of these Regulations are as follows.

Regulation 12 provided for the annual evaluation of army colonels and brigadiers.

Regulation 14(3) provided that, for such officers, their evaluations would fall into one of four categories: promotion; confirmation (i.e. being confirmed in post at the same rank); being deemed to have successfully terminated his or her career; or retirement. Regulation 14(4) set out the criteria for the four possible evaluations. For promotion or confirmation in post, an officer was required to meet certain merits-based criteria, including grade of at least “very good” in the relevant assessments (Regulations 14(4)(a) and (b)). Regulation 14(4)(c) provided that the officer would be deemed to have successfully terminated his or her career if he or she did not meet the requirements for promotion or confirmation in post and his or her further service would hinder the normal advancement of younger officers. Regulation 14(4)(d) provided for retirement when it was not considered appropriate for an officer to continue exercising the duties of his or her rank owing to a lack of substantial qualifications.

Regulation 15 provided that senior officers evaluated by the Supreme Evaluations Board as falling within Regulation 14(4)(c) or (d) (i.e. receiving a category (iii) or category (iv) rating) would have to leave the army.

Regulation 18(1) provided that for the senior officers evaluated by the Supreme Evaluations Board every year, a certain percentage were to be considered as falling within Regulation 14(4)(c) or 14(4)(d). For colonels, the percentage was to range from 30–40%. Regulation 18(2) provided that, in complying with Regulation 18(1) the Supreme Evaluations Board should accord priority to requests for retirement on the basis of having successfully terminated their career.

As stated at paragraphs 5–7 above, the different pension benefits for senior officers leaving the army with category (iii) and category (iv) ratings were set out in Regulations 19(1)(b) and 19(1)(c) respectively.


No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Georges Ravarani

The applicant was born in 1975 and lives in Budapest.

She is the widow of a well-known Hungarian poet, György Faludy. They married in 2002, and their relationship, partly due to a significant difference in age, as well as their life and work, were constantly the subject of widespread media coverage. They often appeared in the tabloids.

The applicant’s husband died in 2006.

On an unspecified date in 2008 an article was published in a daily newspaper, Blikk, based on an interview with the applicant, revealing that she wanted to have a child who would be a blood relative of both her and her late husband and have the same intellect and attitude as him. The applicant explained that she envisaged her own sister and her late husband’s grandson being the parents of that child.

Following some talks with the applicant, on 26 March 2008 Helyi Téma, at the material time the biggest weekly journal, republished the same story, adding that the late poet’s grandson had dismissed the idea of having a child with the applicant’s sister. The front page of the newspaper contained a photograph of the applicant with her late husband and the headline “Trampling on the memory of Faludy. The widow does everything for the limelight”. Despite a previous request by the applicant, the article made no mention of a book to be published on the applicant’s late husband.

Subsequently, in reaction to a complaint by the applicant, the newspaper published an additional article on the book under publication; however, it did not appear on the front page as the applicant’s had presumably wished. The applicant asked for a further article to be published but the newspaper declined.

Dissatisfied, the applicant lodged a civil action against the publisher of the weekly newspaper under article 78 of the (old) Civil Code, alleging a violation of her personality rights, in particular her right to reputation. She maintained that the headline published on 26 March 2008 had negatively affected her public image. She sought an injunction against any further infringement of her right to reputation, an apology from the publisher and compensation for non-pecuniary damage in the amount of 4,000,000 Hungarian forints (HUF – approximately 13,000 euros (EUR)).

According to the witnesses who gave evidence before the first-instance court, the applicant had been truly saddened by the way the article had presented her family plans, especially that her statements had been hurtful to the memory of her late husband. She had also received a lot of criticism from her acquaintances. In a judgment of 5 April 2009 the Budapest Regional Court granted an injunction against any further infringement, ordered a public apology and obliged the publisher to pay the applicant HUF 600,000 (EUR 2,000) in respect of non-pecuniary damage. The remainder of the applicant’s claim for compensation was dismissed. The court established the following:

“..the private life of the plaintiff and her late spouse was previously at the centre of media attention ... György Faludy and the plaintiff have already shocked public opinion with the declaration of their love. It turned out that she seduced the poet from a man ... The poet-prince (költőfejedelem) happily introduced to the world his then yet unknown lover, who became his muse and who was 65 years younger than him. The Kossuth Prize winner and internationally recognised poet had a tendency to push the boundaries, openly admitted his homosexual adventures and love affairs, and held that taboos were to be dismantled. Therefore, when the country just began to digest and accept his relationship with Fanny, the poet accepted an offer from Penthouse magazine, which has since closed down, agreeing to be presented in the magazine in high-quality erotic pictures with his lover ... [The plaintiff] had even been subject of numerous hurtful and degrading remarks and attacks during György Faludy’s life. The media echoed that opinion, doubting her true feelings towards her husband, and some of the publications stressed that theirs was a marriage of convenience ... They planned to adopt a child during the poet’s lifetime, but since that plan failed, György Faludy came up with the idea of having a child through his son, but since his son was terminally ill, that plan could not go ahead either.

...the plaintiff’s idea can be said to be bizarre and eccentric, nonetheless, how she has spoken about childbearing does not, following the rules of formal logic, mean that she has trampled on her husband’s memory.

Based on the witness statements and the role the plaintiff’s late husband played in public life, the court concluded that the applicant’s idea about childbearing was not contrary to the thinking of György Faludy...”

The Regional Court added that both the applicant and her late husband had unusual, provocative personalities and ways of thinking, and the statement according to which she had infringed her late husband’s memory did not correspond to reality and was unjustifiably hurtful. According to the court, statements in a front page headline constituted journalistic opinion, and were protected by the right to freedom of expression, as long as they were not devoid of any factual basis and did not amount to a blatantly humiliating or offensive value judgment. The court concluded that the statement that the applicant did everything for the limelight had not infringed her personality rights, whereas the statement that she had trampled on her husband’s memory had infringed her right to reputation and dignity (33.P.22.472/2009/16.).

On 8 December 2011 the Budapest Court of Appeal reversed the previous judgment finding an infringement of the applicant’s reputation and dismissed her action in its entirety. The court reiterated the Constitutional Court’s case-law on the different fundamental rights at stake, pointing out that even shocking, disturbing or inaccurate opinions were protected by the right to freedom of expression and were not susceptible of proof. It also stressed that statements should be assessed in context and with regard to their background. The court explained in detail that the applicant and her husband had triggered controversial reactions and “everyday people with an average mindset” would have had an opinion on their relationship and marriage. It held that the headline was not a statement of fact but a value judgment expressed in connection with the applicant’s own “peculiar” statements. According to the court, the main issue at stake was whether, in the light of the applicant’s own conduct “diverging from the widelyaccepted social and ethical norms”, the statement could be regarded as unreasonably hurtful and humiliating.

The court also found that the headline could not have infringed the applicant’s reputation since her own statements were irrational and undignified, putting György Faludy’s grandson in an embarrassing situation.

The applicant lodged a petition for review with the Kúria. In a judgment of 12 September 2012, the Kúria endorsed the finding of the second-instance court that the headline did not constitute a statement of fact but a value judgment concerning the unusual manner in which the applicant intended to start a family. Since it was not devoid of factual basis, it could not be considered humiliating, hurtful or offensive and as such had not infringed the applicant’s dignity. The court nonetheless stated that it was irrelevant whether the applicant’s previous unconventional conduct justified the value judgment (Pfv.IV.20.710/2012/5.).


CASE OF ANTSIFEROV AND NOVIKOV v. RUSSIA

Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicants were prosecuted in Russia for crimes. They were arrested and detained while the crimes were investigated and pending trial. Their detention was ordered and extended by the courts. The detention orders were essentially based on the gravity of the charges, the primary grounds being the risk of the applicants’ absconding and interfering with the course of justice. The detention and extension orders used stereotypical formulae, without addressing specific facts or considering alternative preventive measures.

The first applicant was born on 20 August 1983 and lived, prior to his arrest, in Yekaterinburg, Sverdlovsk Region. The applicant was arrested on 30 March 2005 on suspicion of fraud and placed in detention. He remained in custody pending investigation and trial.

On 19 April and 14 July 2006 his pre-trial detention was extended. His appeals against these detention orders were considered on 23 July and 3 November 2006 respectively. The applicant and his lawyer did not attend the hearing on 19 April 2006.

On 23 October 2006 the Leninskiy District Court of Yekaterinburg convicted the applicant of fraud and sentenced him to three years’ imprisonment.

The second applicant was born on 2 November 1972 and lived, prior to his arrest, in Vorkuta, Komi Republic. The applicant was arrested on 14 January 2008. He remained in custody pending investigation and trial.

On 5 June and 2 September 2009 the applicant’s pre-trial detention was extended. His appeals against these detention orders were examined on 24 July and 30 October 2009. The applicant and his lawyer were not present at the hearings on 24 July, 2 September and 30 October 2009.

On 6 November 2009 the Vorkuta Town Court of the Komi Republic convicted him of drug dealing and sentenced him to fourteen years and nine months’ imprisonment and a fine.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1964 and lives in Moreni.

On 17 July 2000, R.C.A. was hired as an inspector by the Moreni City Council on the recommendation of the applicant and another person, G.A. She had a contract for a limited period of time, namely three months, which was extended for another three months. In order to obtain a permanent contract she took part in a competition organised by the City Council in February 2001. She succeeded, being the only candidate. After a few months, the atmosphere at the workplace became tense. R.C.A. was on probation in her new post and was therefore monitored and kept under close scrutiny.

According to R.C.A.’s statements, she was persecuted by her superiors and even sexually harassed by the mayor. Therefore, she asked for the protection of the applicant, to whom she allegedly gave 1,000 German marks (DEM).

According to the applicant’s statement, the money was given to her as a loan with no prearranged date of reimbursement in the summer of 2001. The applicant also stated that another colleague, C.M., had borrowed money from R.C.A., and that the practice of borrowing money from each other was common in their workplace. The applicant’s statements were confirmed by her colleague, who was heard as a witness before the court.

On 24 January 2002 R.C.A. denounced the applicant to the police for influence peddling. She claimed that the applicant had asked her for DEM 1,000 in order to persuade the mayor to give her a permanent position within the City Council.

On 29 January 2002 R.C.A. obtained the authorisation of the prosecutor’s office attached to the Ploiești Court of Appeal to record conversations between herself and the applicant. Subsequently, all the conversations that took place between the applicant and herself between 29 January and 2 February 2002 were recorded. The recording was carried out using two recording devices, one belonging to R.C.A. and the other to a police officer.

Following a request by R.C.A. for the return of the money, the applicant and R.C.A. met in a cake shop close to the applicant’s home on 2 February 2002. The applicant stated that she was accompanied by a colleague, D.C. According to R.C.A.’s version, the applicant was alone, while she herself was accompanied by her husband and brother, who waited outside the cake shop. The applicant handed over to R.C.A. 400 United States dollars (USD) (the equivalent of DEM 1,000).

On 4 April 2002 a criminal investigation was initiated against the applicant on the charge of influence peddling.

On 12 June 2002 R.C.A. was invited to the prosecutor’s office attached to the Dâmbovița County Court to give clarification on the recordings. After some discussion of the transcripts of the conversations she said she had a headache and left, promising to come back the same day. However, she never came back to continue the discussion with the prosecutor. This was mentioned in the record of the meeting drafted by the prosecutor.

On 24 September 2002 the Ploiești Division of the National AntiCorruption Directorate decided to discontinue the investigation against the applicant on the ground that the actus reus of the offence was missing.

On 9 December 2002 the chief prosecutor decided to reopen the criminal investigation against the applicant. He noted that the investigation had been incomplete and that there were several aspects to be clarified in connection with the charges against the applicant. He also ordered a preliminary investigation against the mayor of Moreni.

On 27 March 2003 R.C.A. enquired the chief prosecutor about the progress of the investigation. She expressed concern about the integrity of the transcripts of the recordings, as she had noted that the parts of the conversations had been erased.

The file was presented to the applicant on 5 June 2003. The minute certifying the taped conversations was drafted afterwards, on 13 June 2003.

By a bill of indictment of 20 June 2003, the prosecutor’s office committed the applicant for trial on a charge of influence peddling in violation of Article 257 § 1 of the Romanian Criminal Code and Articles 1 (a) and 6 of Law no. 78/2000. By the same decision the prosecutor decided not to open a criminal investigation against the mayor, without giving any reasons.

Several hearings were held before the Dâmbovița County Court.

According to a witness statement given by the mayor of Moreni before the county court on 4 November 2003, R.C.A. was well known as a person who recorded her private conversations at work, about which many colleagues had complained. A similar aspect was revealed by another witness, G.A. She stated that R.C.A. had changed her behaviour at work after she had obtained a permanent contract. As G.A. was the person who had recommended R.C.A. for the job, other employees informed her that R.C.A. was leaving her office during working hours. G.A. had tried to advise R.C.A. to change her behaviour; she noted that the latter was recording their conversation.

On 16 December 2003 the court granted a request by the applicant for a technical report on the contents of the tape recordings. On 4 January 2004 the applicant’s lawyer asked to see the authorisation for the recording of the conversations and the minute drafted of the occasion when R.C.A. handed over the recordings. She also lodged a written request for an expert assessment of the authenticity and integrity of the recordings.

On 4 February 2004 the National Institute for Forensic Expert Opinions, which was in charge of the preparation of the report, asked the court to send it all the technical equipment used for the recording of the audio tapes.

On 30 March 2003 R.C.A. submitted written notes by which she informed the court that on 12 June 2002 she had refused to confirm that the transcripts of the recorded conversations presented by the prosecutor corresponded to the recordings performed by her (see paragraph 17 above).

On 11 May 2004, the court imposed a fine on R.C.A. as she had refused to provide the court with the original tapes and equipment used for recording the applicant.

As R.C.A. refused to attend the court hearings or to submit the original tapes, two orders for her to be brought before the court were issued by the county court.

By a judgment rendered on 2 July 2004, the Dâmbovița County Court acquitted the applicant on the ground that the elements required for the offence were not present.

The county court held that R.C.A.’s version of events was supported only by the testimony of her husband and brother and by the taped conversations, whose authenticity and integrity could not be established by an expert, mainly because R.C.A. had refused to provide the expert with the technical equipment used for the recording. Moreover, R.C.A.’s statements contained many contradictions. In this respect the county court stated:

“... although R.C.A. stated that the money was given to the applicant before the competition which was to take place on 6 February 2001, during the proceedings before the court she stated that it was given later, after the competition, then she changed her previous statement only when she was asked by the prosecutor attending the hearing about the logic of such an action ...

In conclusion, the statements mentioned above are not corroborated by the facts or circumstances resulting from all the evidence adduced in the case, and cannot be confirmed by the audio recording of the conversations, since these were not executed in accordance with the provisions of Article 911 or with the Code of Criminal Procedure (in force until 1st January 2004, in accordance with Law 281/2003) ...

Contrary to the above-mentioned legal provisions, in the case file there are three minutes, all dated 13 June 2003, which mention only that the conversations between R.C.A. and the defendant were authorised under no.502 on 29 January 2002 (although the transcripts from pages 75-78 of the file indicate a previous date, namely 22 January 2002), and after the tapes had been heard it was confirmed that their contents were mentioned in the transcripts.

Moreover, according to the letter of 8 April 2004 from the Dâmbovița Police Department and the statements of R.C.A. and the witness B.M., the recording of the conversations was made by devices belonging to R.C.A., who submitted to the criminal investigation body recordings made before she had made her accusations, and thus before she had obtained authorisation from the prosecutor.

Despite the fact that a forensic report intended to establish the contents of the audio tapes was ordered at the request of the defendant ... it could not be adduced before the court in the absence of the technical equipment (microphone and tape recorder) used for the recording of the tapes. The Dâmbovița Police Department stated in the abovementioned letter that the police officer’s recording device had been lost, and the other one was in the possession of R.C.A., who had refused to hand it over.”

The prosecutor’s office appealed against the judgment rendered by the Dâmbovița County Court. It argued that the applicant’s guilt was proved by the statements of the accuser, R.C.A., and confirmed by the audio recordings of the conversations between R.C.A. and the applicant.

On 14 October 2004 the Ploiești Court of Appeal ordered an expert technical report on the authenticity or otherwise of the tape recordings. At the hearing held on 7 March 2005 the court revoked that order on the ground that “R.C.A. no longer has the originals of the audio tapes”.

On 15 March 2005, the Ploiești Court of Appeal dismissed the appeal on the ground that the applicant could not be convicted on the basis of recordings obtained in breach of the applicable legal provisions. It noted that the prosecutor had not observed the legal provisions concerning the attestation of the authenticity of the recordings, and considered that the correct procedures for telephone tapping had not been observed. With respect to R.C.A.’s statements the Court of Appeal arrived at the same conclusion as the first-instance court. It held that most of her statements were contradictory and were corroborated only by her husband and brother. However, the applicant’s statement that she had received the money from R.C.A. as a loan was confirmed by the statements of four other colleagues. Two of them stated that they had heard R.C.A. threatening the applicant that she would claim that the money given as a loan was in fact a bribe.

The appeal on points of law submitted by the prosecutor was allowed by the High Court of Cassation and Justice on 14 October 2005. That court quashed the decisions of the first two domestic courts and convicted the applicant of influence peddling, sentencing her to two years’ imprisonment, suspended, with probation. Without hearing evidence directly from the applicant, R.C.A. or any witnesses, the court arrived at the conclusion that R.C.A.’s statements were not contradictory and that in fact the applicant’s statements were corroborated only by the testimony of one witness, C.M., a colleague of the applicant and one of the individuals who had also persecuted R.C.A.

It mainly based its decision on the statements of R.C.A., the testimony of R.C.A.’s husband and brother and the audio tapes containing the conversations between R.C.A. and the applicant.


CASE OF MILEUSNIĆ AND MILEUSNIĆ-ESPENHEIM v. CROATIA

No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Effective investigation)

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

The applicants were born in 1936 and 1967. Until his death the first applicant lived in Novska, Croatia. The second applicant lives in Dieskau, Germany.

According to the applicants, on 18 December 1991, during the armed conflict in Croatia, a number of the first applicant’s neighbours, together with the other members of their family, gathered in the first applicant’s home in Novska, Croatia, because the town was being shelled. At about 9.45 p.m. several soldiers broke into the house and immediately started to hit and kick the first applicant. He could not see them well because the house, like the rest of the town, was without electricity. When he fell to the ground, they dragged him into the kitchen where V.M., the first applicant’s wife and the second applicant’s mother, and G.M., the first applicant’s daughter and the second applicant’s sister, and B., one of their neighbours, were sheltering. In the candlelight, the first applicant saw five men in military uniforms of the Croatian Army with balaclavas on their heads. They continued to hit and kick the first applicant and one of the men cut through the first applicant’s palm with a knife. The other man cut one of B.’s fingers off with the knife. One of the soldiers shot G.M. in the head, the other then cut B.’s throat with a knife and subsequently shot at her with a firearm. The soldiers then ordered V.M. to make coffee for them. One of the soldiers introduced himself as Grgić from a nearby village, Bročice. He asked the first applicant if he knew him and then hit him on the head with the shotgun. One soldier then cut a muscle in the first applicant’s right hand. Next, the soldiers shot V.M. dead. After that, a soldier shot the first applicant through his right cheek. The soldiers then left the kitchen. The first applicant escaped through the window and ran away, reaching a nearby medical centre. From there he was transferred to a hospital in Kutina, then to Zagreb where he lay in a coma for three days. When he came round, one of the doctors told him that three men had been looking for him and wanted him killed. His sister sent an ambulance from Germany and he was transferred from Zagreb to Germany, where he was treated from 6 January to 15 May 1992.

When the first applicant returned to his home in Novska on 19 July 1992, he found refugees accommodated in part of the house. In the intervening period, all of his possessions had been taken away.

It appears that the police were alerted of the above-described events the following day. On 30 December 1991 the Sisak County Court ordered an investigation into the events in respect of suspects Ž.B., D.L, D.M., I.G. and Z.P.

On 23 March 1992 the Zagreb Military Prosecutor dropped the charges against I.G. and Z.P. on the ground that there was insufficient evidence that “any projectiles had been shot from their weapons”.

On 23 March 1992 the Zagreb Military Prosecutor indicted the remaining three suspects, Ž.B., D.L. and D.M. before the Zagreb Military Court on three counts of murder aggravated by an exceptionally immoral purpose.

The Zagreb Military Court terminated the proceedings against Ž.B., D.L. and D.M. on 2 November 1992 on the basis of the General Amnesty Act.

D.L. died on 19 January 1997.

On 30 October 2008 the applicants lodged a criminal complaint against six suspects, namely, Ž.B., D.L., D.M., I.G. and Z.P., on charges of war crimes against the civilian population.

On 10 December 2008 the Sisak County State Attorney’s Office dismissed the complaint against D.L. since he had died in 1997.

On 12 January 2009 an investigating judge of the Sisak County Court heard evidence from the first applicant. On 13 January 2009 the first applicant asked that two witnesses be called and provided their addresses and telephone numbers to the County Court.

On 9 February 2009 the Police interviewed the potential witnesses, M.B. and P.U.

On 30 July 2009 the State Attorney’s Office in Sisak County submitted a request to the Sisak County Court to open an investigation into the above-mentioned criminal complaint. The request was denied on 1 October 2009. However, upon an appeal lodged by the Sisak County State Attorney’s Office of 6 October 2009, the Supreme Court of Croatia ordered on 30 March 2010 that the investigation in respect of Ž.B., D.M., I.G. and Z.P. be carried out.

On 20 May 2010 the investigating judge heard evidence from the four suspects. One of them confessed to some of the charges but the other three remained silent. The investigating judge ordered the detention of all four suspects.

The investigating judge heard evidence from the first applicant and one other witness on 11 June 2010 and from another four witnesses on 28 June 2010. She heard the first applicant again on 5 July 2010, as well as an expert witness and one of the accused.

On 9 July 2010 the Sisak County State Attorney’s Office indicted Ž.B., D.M., I,.G and Z.P. in the Sisak County Court on charges of war crimes against the civilian population, which included the killing of V.M. and G.M. and seriously wounding the first applicant. The accused lodged objections to the indictment which were dismissed by the Supreme Court (Vrhovni sud Rpublike Hrvatske) on 19 August 2010.

Hearings were held on 23 and 24 September 2010. On the latter date the County Court commissioned a report on the autopsy of V.M. and G.M. and a psychiatric report in respect of the accused Ž.B. The report on the autopsy was submitted on 2 November 2010 and the psychiatric report on 11 November 2010.

Hearings were held on 15, 16 and 19 November 2010. On the last-mentioned date a judgment dismissing the charges was delivered on the ground that the accused had already been tried for the same offence before the Zagreb Military Court. The charges against I.G. and Z.P. had been dropped by the prosecutor and the proceedings against Ž.B. and D.M. had been terminated under the General Amnesty Act.

The Sisak State Attorney’s Office lodged an appeal on 23 February 2011 and on 21 February 2012 the Supreme Court upheld the judgment in respect of I.G. and Z.P. and quashed the judgment in respect of Ž.B. and D.M. As regards I.G. and Z.P. the Supreme Court concluded that the prosecutor had dropped the charges against them because there had not been sufficient evidence that they had participated in the shooting of the victims. Neither had the evidence adduced in the proceedings before the Sisak County Court indicated their involvement in the killing and wounding of the victims. The relevant part of the judgment referring to the actions of I.G. and Z.P. reads:

“The evidence presented [at the trial] ... did not establish any activity on the part of the accused I.G. and Z.P. so as to indicate [that they had committed] acts of violence towards Petar Mileusnić or any other person in the house, before Ž.B., D.M. and the late D.L. started to shoot at the victims. The [first-instance] court concluded that the accused I.G. had not entered the house at all and that the accused [D.]P. had quickly entered and exited the house of the victim Petar Mileusnić, without having committed any act in the house.”

The Supreme Court further held as follows:

“Since no new facts were established in the fresh criminal proceedings in which the impugned judgment was delivered ... save for those [facts] in respect of which the State Attorney had already dropped the charges, irrespective of their different legal qualification, the conclusion of the first-instance court that [the situation] was a matter of res judicata is correct and, contrary to the assertion of the State Attorney in the appeal, the indictment was correctly dismissed in respect of the accused I.G. and Z.P. in accordance with Article 353 point 5 of the Code of Criminal Procedure (1997).”

The case was then transferred to the Zagreb County Court.

Hearings before the Zagreb County Court were held on 28 November 2012 and 23 January 2013.

On 29 October 2013 that court found the accused Ž.B. and D.M. guilty as charged and sentenced them to ten and nine years’ imprisonment respectively. The judgment was upheld by the Supreme Court on 7 March 2013.

On 22 December 2004 the applicants brought a civil action against the State in the Novska Municipal Court (Općinski sdu u Novskoj), seeking compensation in connection with the deaths of V.M. and G.M., wounding of the first applicant as well as pecuniary damage as regards the expenses incurred for the stone erected on the grave of their relatives. In these proceedings the Croatian State was represented by the State Attorney’s Office.

On 29 September 2005 the Municipal Court dismissed the applicants’ claim, finding that it had become time-barred.

That judgment was upheld by the Sisak County Court on 31 August 2006 and by the Supreme Court of Croatia on 21 February 2007.

A subsequent constitutional complaint lodged by the applicants concerning the assessment of facts and interpretation of laws was dismissed by the Constitutional Court (Ustavni sud Republike Hrvatske) on 13 May 2009.

On 25 November 2014 the second applicant and the Republic of Croatia, Ministry of Defence, represented by the State Attorney’s Office, reached a settlement by which the State was to pay the second applicant the following amounts: 150,000 Croatian Kuna (HRK) for non-pecuniary damage for the killing of his mother; HRK 75,000 for non-pecuniary damage for the killing of his sister; HRK 12,800 for pecuniary damage concerning the expenses incurred for the stone erected on the grave of his mother and sister; and HRK 2,500 for costs he incurred in the civil proceedings. The said amounts, together with the applicable interest rates, were paid to the second applicant on 8 December 2014.