Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants, Mr Danijel Gurdulić, Ms Katica Gurdulić, Mr Ivan Gurdulić, Ms Antica Gurdulić Šverko and Ms Adela Marangunić are Croatian nationals who were born in 1974 (the first applicant), 1938 (the second applicant), 1972 (the third applicant) and 1939 (the fourth and the fifth applicant). The fifth applicant lives in Trieste (Italy) whereas the other applicants live in Zagreb. They were all represented before the Court by Ms I. Bojić, an advocate practising in Zagreb.

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

The present case concerns the ownership of two plots of land (“the land”) with a total area of 3,156 square metres, which were joined into a single (cadastral) plot (no. 687) on 2 March 1977. The plot(s), together with seven other plots of land, form the Firule Sports Centre in Split. The Sports Centre currently consists of seven tennis courts with red clay surface, two tennis courts with hard surface, a central stadium, one small multi-purpose court, a small gym and an administration building. Of those facilities the central stadium, the multi-purpose court and the access road are located on the plot(s) in question.

In 1905 the applicants’ ancestor J.G. bought and thereby became the owner of the land at issue. On 13 April 1931 he leased it to a sports association, A.T.K. (later on T.D.S. and T.K.S., hereinafter “the tennis club”), which intended to build tennis courts on them.

It would appear that the land has remained in the possession of the tennis club ever since. Even though some tennis courts were built before the Second World War, it seems that the tennis club carried out significant (re)construction works in the period between 1949 and 1952, which resulted in the sports complex consisting of four tennis courts and the central stadium.

By the entry into force of the Nationalisation of Rental Buildings and Construction Land Act (hereinafter “the Nationalisation Act of 1958”) on 26 December 1958 the land was nationalised as undeveloped construction land (neizgrađeno građevinsko zemljište) and thereby passed into social ownership (društveno vlasništvo). Under sections 38-39 of that Act undeveloped construction land remained in the possession of the former owner until the former owner, on the basis of a decision by the relevant municipal authority, surrendered possession of the land to the local authorities or to another person, for construction of a building or other facility or for other works. While in possession of the nationalised land the former owner had the right to use the nationalised land free of charge or to allow another person to use it with or without a charge, according to the rules governing lease of agricultural land (see paragraph 42 below).

In 1961 the two plots of land were recorded in the land register as being in social ownership; the former owners (the applicants’ relatives) had the right to use them until the relevant authority issued a decision transferring possession of the plots to the local authorities or to another person.

On 2 March 1977 the two plots were joined into a single cadastral plot.

In preparation for the Mediterranean Games held in Split between 15 and 29 September 1979 further (re)construction works were carried out to the Firule Sports Centre. It would appear that two more tennis courts, a stadium and a gym were built. The construction was completed in 1979.

On 16 March 1981 the Split Municipality and the tennis club concluded a “self-management agreement” (“the Self-Management Agreement”) under which the Split Municipality transferred to the tennis club the right to manage, use and maintain the tennis courts the Municipality had built for the Mediterranean Games. The Split Municipality also agreed that the tennis club could record the right to use those tennis courts in the land register. The agreement did not specify the cadastral plots on which those tennis courts were located (see paragraph 51 below).

On 12 October 1995 the 1995 Amendment to the Sports Act entered into force. It provided that all sports facilities and other socially owned immovable property which sports organisations and associations had the right to use was to pass into the ownership of the local authorities in whose territory such property was located. However, in order to become owners the local authorities had to issue a decision taking over such property within ninety days of the entry into force of the Amendments (see paragraph 43 below).

By a decision of 5 December 1995, published in the local official gazette and based on the 1995 Amendment to the Sports Act (see paragraph 43 below), the Split Township took over and thus became the owner of all sports facilities and other socially owned immovable property on its territory referred to in those Amendments. The decision listed “Firule tennis courts” among the sports facilities taken over by the township.

On 1 January 1997 the Property Act entered into force. Pursuant to its section 361 all holders of the right to use undeveloped construction land in social ownership became by the operation of law the owners of the land they had the right to use (see paragraph 44 below).

By a decision of 31 December 2009 the Split Township specified the cadastral plots to which its decision of 5 December 1995 (see paragraph 12 above) referred. The plot in question (no. 687) was listed therein.

Meanwhile, on 15 April 1969 the applicants’ relatives brought a civil action in the Split Municipal Court (Općinski sud u Splitu), seeking compensation from the tennis club for unauthorised use of the land at issue.

By a judgment of 6 March 1989 the Split Municipal Court ordered the tennis club to pay the applicants’ relatives 2,089,020 Yugoslav dinars (YUD), with interest, for using the land without any legal basis in the period between 1 January 1967 and 1 January 1986.

By a judgment of 1 September 1989 the Split County Court (Okružni sud u Splitu) dismissed an appeal by the tennis club and upheld the first-instance judgment. It endorsed the finding of the first-instance court that the tennis club had had no legal basis to use the land in question.

By a judgment of 3 January 1997 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed an appeal by the tennis club by endorsing the reasoning of the lower courts. In particular, that court held as follows:

“The land at issue was nationalised on the basis of sections 38 and 39 of [the Nationalisation Act of 1958]. However, the right to use [that land] remained until the present day, recorded [in the land register] in the name of the plaintiffs as [its] former owners. In the early 1950s the defendant commenced construction works on that land and has been using it for its own purposes ever since.

Even though the defendant applied on several occasions to [the relevant authority within] the former Split Municipality to order dispossession of the plaintiffs in its favour, those requests were never met. ..

The plaintiffs throughout this period, namely from the commencement of the construction of the tennis courts until the action was brought in this case, demanded compensation for the land at issue, either by awarding them other immovable property or by paying them financial compensation. However, they did not obtain it, either from the defendant or in the regular proceedings for determining the level of compensation ...

Given that the land in dispute was not taken out of the possession of the plaintiffs, either on the basis of a decision by the Split Municipality or on any other basis, nor was it given to the defendant on the basis of a decision by the relevant authority ... the defendant does not have any [legal] basis to use the land at issue. Even if the defendant had received building permit ... for construction of a tennis court during the time the land was privately owned by the plaintiffs or afterwards, namely after the nationalisation of the land, the possession of building permit itself is not a [legal] basis for losing or acquiring the right of ownership or, after nationalisation, the right to use the land.

By unlawfully retaining the plaintiffs’ land in its possession, the plaintiffs being the holders of the right to use that land, and by not paying them any compensation throughout the entire period the land was in its possession, the defendant is obliged to pay the plaintiffs compensation at their request corresponding at least to the level of rent they would have received if they had been leasing that land to third parties.”

In the meantime, on 7 May 1990 the applicants brought a civil action in the Split Municipal Court, seeking compensation from the tennis club for the use of the land in the period after 1 January 1990.

By a judgment of 19 July 2007 the Split Municipal Court ruled for the applicants, and ordered the tennis club to pay the applicants a total of 6,071,752 Croatian kunas (HRK) in compensation for the use of the land in the period between 1 January 1990 and 30 April 2006, together with the accrued statutory default interest. In particular, it held as follows:

“... section 88 of the Sports Act as amended by the 1995 Amendments provided that only those sports facilities which sports organisations and associations or other legal entities had the right to use passed into the ownership of townships and municipalities in whose territory they were located.

The defendant does not have the right to use the sports facilities built on the plot of land in dispute, because the right to use the land was, on the basis of sections 38 and 39 of [the Nationalisation Act of 1958], recorded [in the land register] in the name of the plaintiffs’ ancestors, which situation remained unaltered until the entry into force of the Property Act whereby the right to use was converted into the right of ownership of those recorded as users, that is, of the plaintiffs ...

The defendant did not acquire even an unrecorded right of use, because [the defendant] did not provide the court with relevant evidence [to that effect]. The defendant has been continuously in dispute with the plaintiffs and their ancestors over the immovable property in question since 1966 ... the Split Township could not transfer to the defendant the right to administer and use land which it did not have. The immovable property at issue was never taken out of the possession of the plaintiffs in accordance with the law [and] in the relevant proceedings; there is no decision by the relevant authority to that effect; this last is not disputed between the parties. The plaintiffs and their ancestors were recorded as users and now (co-) owners of the land in question.”

Following an appeal by the defendant, by a judgment of 20 November 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It held that the right to use the land in question had been transferred to the tennis club by the Self-Management Agreement of 16 March 1981 (see paragraphs 10 above and 51 below), and that by a decision of 5 December 1995 (see paragraph 12 above), based on the 1995 Amendments to the Sports Act (see paragraph 43 below), the local authorities had become the owners of that land. This meant that since 16 March 1981 the applicants had not had the right to use the land or to claim any compensation from the tennis club. The relevant part of that judgment reads as follows:

“In the early 1950s the defendant had commenced the construction of tennis courts on the land in dispute, which was then nationalised on the basis of [the Nationalisation Act of 1958]. The Split Municipality, which had built the tennis courts, took possession of them and long after the nationalisation [had taken place] transferred to the defendant (the tennis club), the right to administer, use and maintain the tennis courts by the self-management agreement of [16 March] 1981, in accordance with the law.

By the entry into force of the [1995] Amendments to the Sports Act the social ownership of sports facilities was transformed by the operation of law, before the entry into force of the Property Act. On the basis of section 88 of the Sports Act [as amended by the 1995 Amendments], the sports facilities in social ownership, in the present case the tennis courts built on the land in dispute, passed into the ownership of the Split Township, which transferred that immovable property to the defendant, who has thus been using them, in this appellate court’s view, on the basis of a valid legal title.

Contrary to the view of the first-instance court, this appellate court considers in the light of the foregoing that in the period between 1990 and 2006 the defendant was not unlawfully using the cadastral plot no. 687 on which the tennis courts were built.

Therefore, there is no legal basis for the plaintiffs’ compensation claim for the unauthorised use of the disputed land during the above sixteen-year period.”

On 27 March 2012 the Supreme Court dismissed an appeal on points of law (revizija) by the applicants. It endorsed the reasons given by the second-instance court. It added, in reply to the applicants’ main argument in their appeal:

“The plaintiffs’ argument that section 88 of the Sports Act [as amended by the 1995 Amendments] is not applicable in the present case because [the case] does not concern sports facilities in social ownership which sports organisations had the right to use, is unfounded. In particular, the disputed immovable property had passed into social ownership on the basis of [the Nationalisation Act of 1958]; the Split Municipality ... had entered into possession of that property and commenced the construction of tennis courts and by the Self-Management Agreement of [16 March] 1981 transferred to the defendant the right to manage, use and maintain the tennis courts. Therefore, the present case concerns immovable property in social ownership the defendant had the right to use and which, on the basis of section 88 of the Sports Act [as amended by 1995 Amendments], passed into the ownership of the Split Township.”

On 18 June 2012 the applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Supreme Court’s judgment. Relying on Articles 14 paragraph 2, 26 and 48 of the Croatian Constitution (see paragraph 41 below), they alleged violations of their constitutional rights to equality before the law, equality before the courts, fair hearing and the right of ownership.

It would appear that those proceedings are still pending before the Constitutional Court.

Meanwhile, on 25 August 1994 the applicants brought a civil action in the Split Municipal Court against the tennis club, seeking repossession of the land in question. They argued that the tennis club was in possession of the tennis courts situated on that land without any legal basis.

By a judgment of 13 September 1999 the Split Municipal Court ordered the tennis club to surrender possession of the land to the applicants. The relevant part of that judgment reads as follows:

“The defendant has been using the immovable property at issue by building a tennis court on it, which thus serves the needs of the defendant as a tennis club. As can be seen from the [first proceedings for compensation] the disputed immovable property has never been taken out of the plaintiffs’ possession even though the defendant on several occasions unsuccessfully sought possession from [the relevant authority within] the former Split Municipality. It is therefore indisputable that until the present day the immovable property in question has not been taken out of the plaintiffs’ possession, which means that the defendant has been holding it unlawfully without a valid legal title. The plaintiffs therefore have the right to seek that the defendant vacate the property and surrender it to them.

Section 38 of the [the Nationalisation Act of 1958] provided that nationalised construction land was to remain in the possession of its former owners until they surrendered possession of the land to [the local authorities] or to another person, for construction of a building or other facility or for other works, or to allow another person to use it for compensation, on the basis of a decision by the [relevant municipal authority]. Section 39 of that Act provided that the former owner of the nationalised undeveloped construction land had the right to use that land ... as long as it remained in his or her possession, free of charge

Given that the relevant authority has not so far issued a decision on dispossession allowing the disputed immovable property to be taken from the possession of the plaintiffs, [they] still have the right to use it permanently, and the defendant has been unlawfully disturbing them in the exercise of that right, and has not been paying compensation for the entire period during which it has been using the immovable property at issue.

In the light of the foregoing, and given that the land in dispute was not the subject of a decision by the Split Municipality or of any other relevant authority, and has not been taken out of the possession of the plaintiffs and ... given to the defendant for use, this court finds that the defendant does not have any [legal] basis to use the land at issue and thus has to surrender it to the plaintiffs ... to whom that right lawfully belongs. [The] plaintiffs’ claim is therefore well-founded.”

Following an appeal by the defendant, by a judgment of 17 October 2005 the Split County Court reversed the first–instance judgment and dismissed the applicants’ action. In so doing it held as follows:

“It is undisputed that the plaintiffs succeeded in [the first set of civil proceedings for compensation].

What is disputed, however, is whether the plaintiffs can successfully seek repossession and return of the nationalised land relying on the absence of a decision by the relevant authority whereby the defendant would be allowed to take possession of the immovable property in question.

In the view of this court [this] dispute is to be resolved by applying the provisions of the Sports Act. That Act regulated transformation [of ownership] ... of sports facilities ...

By the entry into force of the 1995 Amendments to the Sports Act sports facilities ex lege passed from social ownership ... into the ownership of those townships and municipalities on whose territory they were located.

Section 88a of the Sports Act provided that those entitled [town councils or municipal councils] had to pass an act taking over sports facilities and other immovable property within ninety days of the day of the entry into force of the 1995 Amendments to the Sports Act ...

In the Official Gazette of the Split Municipality no. 5 of 27 March 1981 the Self-Management Agreement was published, transferring the right to administer, and regulating the [legal] relationships concerning the use and maintenance, of newly built tennis courts in Split, whereby the Split Municipality as the developer ... transferred to the [tennis club] the right to use and maintain the tennis courts ...

On 5 December 1995 the Split Township (on the basis of section 88a of the Sports Act) passed the Decision on takeover of sports facilities and other immovable property in social ownership into the ownership of the Split Township, whereby ... inter alia, the Firule tennis courts passed into the ownership of the Split Township ...

In the present case the sequence of events shows that the tennis courts passed into the ownership of the Split Township, and thus the plaintiffs are not entitled to sue the defendant by their rei vindicatio action acting as the owners.

For these reasons ... the contested judgment had to be reversed and the plaintiffs’ action dismissed in its entirety.”

On 17 January 2006 the applicants, alleging violations of their constitutional right to equality before the law and the right of ownership, lodged a constitutional complaint with the Constitutional Court against the County Court’s judgment. They relied on Articles 14 paragraph 2 and 48 of the Croatian Constitution (see paragraph 41 below).

By a decision of 9 October 2008 the Constitutional Court dismissed the applicants’ constitutional complaint. It held:

“The legal views expressed in the contested judgment are based on a constitutionally acceptable interpretation and application of the relevant substantive law. The Constitutional Court finds that the Split County Court gave reasons for its views expressed in the contested judgment, which indisputably are not the result of an arbitrary interpretation and application of the relevant substantive law.

The immovable property in question, being socially owned, had been passed on the basis of section 88 of the Sports Act [as amended by 1995 Amendments] into the ownership of the Split Township, which transferred them to the defendant, who has thus been using them on the basis of a valid legal title. The Constitutional Court therefore finds that the second-instance court correctly applied the substantive law when holding that the complainants were not entitled to sue the defendant acting as the owners.

As regards the complainants’ argument that the relevant provisions of the Property Act (in particular section 361) should have been applied in the present case, the Constitutional Court notes that this provision is not relevant in the present instance. The Constitutional Court finds that in the instant case the [statutory] requirement for returning the immovable property in question, which in kind constitutes a sports facility (the Firule tennis courts), to the complainants was not satisfied because [that property] had been transferred into social ownership when [the Nationalisation Act of 1958] was applied. [That is so because] the transformation of social ownership of sports facilities was regulated by the Sports Act, which entered into force before the Property Act.

Since the second-instance court by reversing the first-instance judgment correctly applied the relevant substantive law and dismissed the complainant’s action, the Constitutional Court finds that the complainants’ constitutional right guaranteed by Article 14 paragraph 2 of the Constitution was not breached ...

The Constitutional Court protects the right of ownership at the constitutional level in a manner that prevents restriction or taking of that right by the State authorities, unless a restriction or taking is provided for by law ... interferences with ownership by other legal subjects (natural or legal persons) are property disputes of a private-law nature. The Constitutional Court examines also such decisions of judicial and other authorities if it finds that the contested decision, having regard to the protection of human rights and fundamental freedoms guaranteed by the Constitution, is based on an erroneous or unacceptable legal view.

Given the subject matter of the civil proceedings that preceded these proceedings before [it], the Constitutional Court finds that the complainants’ right [of ownership] guaranteed by Article 48 of the Constitution were not breached.”

The Constitutional Court’s decision was served on the applicants’ representative on 22 October 2008.

On 27 September 1996 the Split Township, relying on section 88 of the 1995 Amendment to the Sports Act (see paragraph 43 below), lodged an application with the Land Registry Division of the Split Municipal Court seeking to be recorded in the land register as the owner of the plot of land claimed by the applicants.

On 17 April 1998 and 2 March 1999 the applicants, relying on section 361 of the Property Act (see paragraph 44 below), lodged an application with the same judicial authority, seeking to be recorded in the land register as the owners of the same plot of land.

On 15 June 2005 the Land Registry Division of the Split Municipal Court allowed the application by the applicants and recorded them in the land register as the owners of the plot of land in question.

By a decision of 5 December 2011 the Land Registry Division of the Split Municipal Court dismissed the Split Township’s application of 27 September 1996 for recordation as owner. The Split Township appealed and the appellate proceedings are currently pending before the Split County Court.

On 3 January 2007 the applicants brought a civil action against the tennis club and the Split Township seeking compensation for the unlawful use of the land in question from June 2006.

On 15 May 2009 the Split Township brought a counterclaim against the applicants, seeking to be declared the owner of the land in dispute. Shortly afterwards the Municipal Court decided to split the proceedings into two, one for compensation and the other for declaration of ownership.

By a judgment of 29 October 2010 the Split Municipal Court dismissed the applicants’ action for compensation.

By a judgment of 5 June 2012 the Split County Court dismissed an appeal by the applicants and upheld the first-instance judgment.

On 24 September 2012 the applicants lodged an appeal on points of law with the Supreme Court against the second-instance judgment. The proceedings are currently pending before that court.

The proceedings between the applicants and the Split Township for declaration of ownership are currently still pending before the Split Municipal Court as the first-instance court.

The relevant Articles of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998 (consolidated text), 113/2000, 124/2000 (consolidated text), 28/2001 and 41/2001 (consolidated text), 55/2001 (corrigendum)), 76/10 and 85/10 read as follows:

“Everyone in the Republic of Croatia shall enjoy rights and freedoms regardless of their race, colour, sex, language, religion, political or other beliefs, national or social origin, property, birth, education, social status or other characteristics.

All shall be equal before the law.”

“All citizens of the Republic of Croatia and foreigners shall be equal before the courts and other State or public authorities.”

“In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.”

“1. The right of ownership shall be guaranteed.

Ownership implies duties. Owners and users of property shall contribute to the general welfare.”

The relevant provisions of the Nationalisation of Rental Buildings and Construction Land Act (Zakon o nacionalizaciji najamnih zgrada i građevinskog zemljišta, Official Gazette of the Federal People’s Republic of Yugoslavia no. 52/58 – “the Nationalisation Act of 1958”), which entered into force on 26 December 1958, provided as follows:

“(1) Buildings, parts of buildings and construction land nationalised by this Act shall pass into social ownership on the day of its entry into force.

(2) A decision of the relevant authority rendered in the proceedings prescribed by this Act and [relevant] subordinate legislation ... shall determine which objects are nationalised by this Act.”

“All developed or undeveloped construction land located in ... towns ... shall be considered construction land and shall be nationalised [pursuant to this Act].”

“Nationalised undeveloped construction land shall remain in the possession of its former owners until they surrender possession of the land to [the local authorities] or to another person for construction of a building or other facility or for other works, on the basis of a decision by the [relevant municipal authority],

Possession of the land shall not be surrendered to [the local authorities] or to another user before the user needs it to perform construction or other works with a view to bringing the land into its designated use.”

“The former owner of nationalised undeveloped construction land shall have the right to use that land ... as long as it remains in his or her possession, free of charge, and shall also have the right to allow another person to use it with or without charge, according to the legislation governing the lease of agricultural land.”

The relevant provisions of the Sports Act (Zakon o športu, Official Gazette of the Republic of Croatia nos. 60/92 69/92 (corrigendum), 25/93, 11/94 and 77/95), which was in force between 9 October 1992 and 30 October 1997, as amended by the 1995 Amendment (Zakon o izmjenama i dopunama Zakona o športu, Official Gazette of the Republic of Croatia no. 77/95), which entered into force on 12 October 1995, read as follows:

“Sports facilities and other immovable property in social ownership which sports organisations and associations or other legal entities established to manage sports facilities (companies, institutions, work organisations) have the right to use shall pass into the ownership of townships and municipalities in whose territory they are located.”

“An act of taking over the sports facilities and other immovable property referred to in paragraph 1 of section 88 of this Act shall be passed by the town or municipal council within ninety days of the entry into force of this Act.”

The relevant provisions of the Ownership and Other Rights In Rem Act (Zakon o vlasništvu i drugim stvarnim pravima, Official Gazette nos. 91/96, 68/98, 137/99, 22/00, 73/00, 129/00, 114/01, 79/06, 141/06, 146/08, 38/09, 153/09 and 143/12), which entered into force on 1 January 1997, read as follows:

“(1) The right to use undeveloped construction land in social ownership which has not been extinguished before the enactment of this Act shall by its entry into force be converted into the right of ownership of the holder of that right or of his or her legal successor...

(2) ...

(3) The entries in the land register of the right [to use undeveloped construction land] referred to in paragraph 1 ... of this section made before the entry into force of this Act shall be considered as entries of the right of ownership.”

The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/77, 36/77 (corrigendum), 36/80, 69/82, 58/84, 74/1987, 57/89, 20/90, 27/1990 and 35/91 and Official Gazette of the Republic of Croatia nos. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07, 84/08, 123/08, 57/11 and 148/11), which has been in force since 1 July 1977, are as follows:

“When a court’s decision depends on the prior resolution of the question whether a certain right or legal relationship exists, and this question has not yet been decided by a court or other competent authority (the preliminary question), the court may settle that question itself, unless special legislation provides otherwise.

The court’s decision on a preliminary question shall have legal effect only in the civil proceedings in which that question was settled.”

“(1) The plaintiff may by his or her action ask the court merely to establish the existence or non-existence of a right or legal relationship, or authenticity or inauthenticity of a document.

(3) If the decision in a case depends on the existence or non-existence of a particular legal relationship which became disputed before or during civil proceedings, the plaintiff may [amend his or her original action and] raise another claim asking the court to declare that this legal relationship does or does not exist, provided that the court before which the civil proceedings are pending is competent to deal with such a claim.”

“The court shall order a stay of proceedings:

1) if it has decided not to settle the preliminary issue itself (section 12) ...,

2) ...,”

“[Civil] proceedings concluded by a final court decision may be reopened following a petition by a party ...

9) if the competent authority by a final decision subsequently resolves the preliminary issue (section 12 paragraph 1 and 2) on which the court decision is based ...”

“A petition for reopening [of civil proceedings] shall be filed within a thirty-day time-limit ...

5) in cases referred to in section 421 paragraph 1 sub-paragraph ... 9 of this Act – from the time the party had available to it the final decision which is the ground for reopening ...

A petition for reopening [of civil proceedings] cannot be filed after the expiry of the five-year time-limit from the day the decision [contested by the petition] became final.”

In decision no. Rev 54/1993 of 7 October 1993 the Supreme Court held that the courts in the new civil proceedings for (further) compensation for injuries sustained in a road traffic accident were not bound by the findings on the defendant’s tort liability made in the earlier civil proceedings for compensation between the same parties concerning the same accident. That was so because in both proceedings the issue of the defendant’s tort liability was a preliminary question for ruling on the main issue, namely whether the plaintiff was entitled to compensation from the defendant. The relevant part of that decision reads as follows:

“The question of the defendant’s liability was in those [earlier] proceedings the preliminary question on which the court decided in those proceedings (section 12 of the Civil Procedure Act). The court’s assessment of the defendant’s liability is contained in the reasons for the judgment delivered in those proceedings. That assessment binds the court and has legal effect only in those proceedings (section 12 paragraph 2 of the Civil Procedure Act). It does not have the force of res judicata. That ruling on the defendant’s possible liability was not entered into the operative provisions but in the reasons for that judgment. In any other civil proceedings that question of the defendant’s liability for the road traffic accident which took place on 1 December 1990 can be resolved differently. That further means that this assessment and view of the court made in the [earlier] proceedings on the exclusive liability of the defendant binds the court only in those proceedings and is of no relevance in the present proceedings, in which the plaintiff asks for further compensation.”

In decision no. Rev 1975/1999 of 3 May 2001 the Supreme Court held that the courts in the later civil proceedings for declaring a loan contract null and void were not bound by the findings made in the earlier civil proceedings, in which the courts had ordered payment on the basis of the same contract after having first preliminarily found that the contract was valid.

In decisions nos. U-III-487/2001 of 31 October 2001 and U-III-632/2001 of 5 December 2001 the Constitutional Court also held, like the Supreme Court in the case no. Rev 1975/1999 (see the preceding paragraph), that the courts in the subsequent civil proceedings were entitled to declare a loan agreement null and void because they were not bound by the earlier finding on the preliminary question that the agreement was valid made in the context of previous civil proceedings where the courts had ordered payment in performance of that agreement. The relevant part of those decisions reads as follows:

“The fact that civil proceedings were conducted between the same parties in which the plaintiff’s claim for specific performance was allowed, on the basis of a particular legal relationship, does not mean that it was also established with the force of res judicata that this legal relationship exists and that it is legally valid.

Therefore, in the present case the final judgment ordering the defendant to take a specific action does not at the same time presuppose the validity of the legal ground giving rise to that obligation. [That is so] because the validity of that legal ground was not the object of examination in the previous civil proceedings ...”

Croatian legal scholars expressed the following opinion on the legal effects of the civil courts’ rulings on preliminary questions (see Triva, Siniša; Dika, Mihajlo: Građansko parnično procesno pravo [Civil Procedure Law], Narodne novine, Zagreb, 2004, p. 100):

“When the civil court itself adopts a view on the preliminary question, its view has legal effect only in the civil proceedings in which that question was settled. The decision [on the preliminary question] does not appear in the operative provisions but [only] in the reasoning, as one of the reasons for the court’s decision on the main issue. No other authority – including the one before which that issue arises also as a preliminary question – is bound by the views of the civil court on preliminary question. The court’s view on the preliminary question expressed in the reasoning of a judgment does not acquire the force of res judicata.”

The “incidental declaratory action” (incidentalna tužba za utvrđenje) provided in section 187(3) of the Civil Procedure Act (see paragraph 45 above) is a procedural instrument enabling parties to civil proceedings to turn a preliminary question which was disputed before, or which became disputed during those proceedings, into a main issue, with the effect that the decision on that issue would be entered into the operative provisions of the judgment and thus acquire the force of res judicata and be binding in any other proceedings between the same parties in which that issue arose or may arise. The same legal scholars (see the preceding paragraph) explained the function and importance of this action in the following terms (see Triva, Siniša; Dika, Mihajlo: Građansko parnično procesno pravo, Narodne novine, Zagreb, 2004, pp. 401-402):

“If the decision in a case depends on the existence or non-existence of a particular legal relationship which became disputed before or during the civil proceedings, the plaintiff may [amend his or her original action and] raise another claim asking the court to declare that this legal relationship does or does not exist, provided that the court before which the civil proceedings are pending is competent to deal with such a claim.

The disputed [legal] relationship must be of preliminary relevance for a decision on the main claim ... The fact that this [preliminary question] is also disputed justifies the conclusion that there is a legal interest in seeking that [this question] also be resolved with the force of res judicata.

[Section 187(3) of the Civil Procedure Act] ... enables plaintiffs to ask already in their action that the court, besides deciding on their claim for specific performance, (for example, on a claim for payment), by the same judgment declares that the legal relationship from which that claim arises exists, namely that it inserts in the operative provisions a “declaratory preamble” ... The court must in any event examine and take a preliminary view on it. Deciding on the principal legal relationship is of special importance in situations where the plaintiff in particular proceedings exercises only some of its powers ... [Therefore] a declaratory judgment on the existence of the principal legal relationship may serve as a ground for substantially identical adjudication in subsequent civil proceedings in which the plaintiff would be exercising his or her other powers from the same [legal] relationship. [The same applies] to civil proceedings on the rights in rem and other absolute rights in which a res judicata declaration of the [existence of the] principal [legal] relationship may be important even outside the particular civil proceedings for surrendering the property or for any other performance based on the existence of that absolute right.”

The relevant clauses of the Self-Management Agreement of 16 March 1981 on the transfer of the right to manage, and on the regulation of relationships as regards the use and maintenance of the newly built tennis courts in Split (Samoupravni sporazum o prijenosu prava upravljanja i uređenju odnosa u pogledu korištenja i održavanja novoizgrađenih tenis igrališta u Splitu, Official Gazette of the Split Municipality no. 5 of 27 March 1981) read as follows:

“By this Agreement the parties regulate mutual rights, obligations and responsibilities as regards the management, use and maintenance of the tennis courts built by the Split Municipality as the developer for the purposes of holding the Mediterranean Games in Split in 1979.”

“The Split Municipality as the developer of the tennis courts transfers to [the tennis club] the right to manage, use and maintain the tennis courts, with all secondary facilities.”

“The Split Municipality agrees that [the tennis club] be recorded in the land register as the user of the tennis courts.”


Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award

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

On 10 April 2006 a group of seven people living in the Dokuzparinskiy District of Dagestan, a mountainous region close to the border with Azerbaijan, posted a written notice informing the district authorities that on 25 April 2006 they would hold a public demonstration in the village of Usukhchay. The applicants’ names were not mentioned in the list of organisers of the demonstration. The principal aims of the demonstration were to criticise the work of the head of the local administration, Mr A., to denounce corruption and the misuse of public funds by the local administration, and to draw attention to the inactivity of the law-enforcement agencies vis-à-vis abuses committed by Mr A. and his colleagues. The demonstration was supposed to be held in a recreational park in the village of Usukhchay from 11 a.m. to 5 p.m.; the estimated number of participants was 5,000. The organisers asked the police to dispatch officers for the protection of those participating in the demonstration. Although the applicants’ names were not in the notice, they claimed that they had played an active part in the organisation of the meeting in their respective communities.

The notice (уведомление) was sent to the district administration with copies to the Dokuzparinskiy district prosecutor and the head of the district police department. The applicants produced a copy of a payment slip from a post office in Makhachkala indicating that the notice had been posted by registered mail on 10 April 2006. It appears from the documents submitted by the Government that the notice was received by the district administration on 17 April 2006.

On 17 April 2006 the head of the district administration, Mr A. – the same person who was the principle target of the criticism by the demonstrators – informed the organisers that the district administration was opposed to the demonstration. In his letter of 17 April 2006 Mr A. said that, first, the notice had been lodged (подано) outside the time-limit fixed in the Public Gatherings Act. Secondly, the park in Usukhchay was not supposed to admit more than 500 people, so it was impossible to hold a demonstration there. Thirdly, the purpose of the demonstration was to condemn the embezzlement of public funds and the deliberate destruction of financial records by the district administration. However, according to Mr A., the competent law-enforcement authorities, in particular the prosecutor’s office, and financial authorities such as the Ministry of Finance of Dagestan, had already inquired into those allegations and concluded that there had been no case to answer. The letter also contained a warning addressed to the organisers that if they proceeded with the demonstration as planned, they would be held liable in accordance with the law.

At about 4 p.m. on 19 April 2006, a group of men armed with iron rods and sticks attacked another group of individuals near the village of Khiv. Two persons were injured. Having received information about the clash, the Derbent police dispatched a group of officers to the scene. The police set up an improvised roadblock near the “Gereykhanov Sovkhoz” (Kasumkent village) to check the passing cars and prevent further clashes. A few hours later a group of about 300 people armed with wooden sticks, iron rods and similar objects arrived at the roadblock in several cars without licence plates. The police stopped those cars. According to the authorities, the second applicant then climbed onto the roof of his car and started to incite his fellow villagers to resist the police and to run them over. His followers started to abuse the police verbally, pushed them out of their way and tried to overturn a police vehicle and a truck which the police had used to block the road. One of the police officers was injured, and his uniform was ripped. As a result, the police gave up and let the cars pass.

The second applicant denied having participated in the scuffle. He maintained that on that day he had been taking part in a gathering in the Kurakhskiy District. As to the episode near the police roadblock, he claimed that he had argued with the police officers, asking them to let him and his car through, and the windscreen of his car had been broken by them. However, he had not committed any unlawful acts.

On an unspecified date the prosecutor’s office opened a criminal investigation into the events of 19 April 2006 (case no. 6424).

On 21 April 2006 the second applicant was arrested with reference to case no. 6424, which concerned the riot on 19 April 2006 in the village of Khiv. On 22 April 2006 the Khiv District Court granted the police’s request to detain the second applicant on remand. The second applicant was suspected of having committed a crime under Article 212 § 3 (“Mass riots”), and Article 318 § 1 (“Use of violence against a public official”) of the Criminal Code of the Russian Federation. The court ruled that the second applicant should be detained because otherwise he might obstruct the establishment of the truth, destroy evidence or abscond. The second applicant appealed, claiming that the court’s decision was unsubstantiated, but on 28 April 2006 the Supreme Court of Dagestan dismissed the appeal in a summary fashion.

On 20 June 2006 the Sovetskiy District Court of Makhachkala ordered the second applicant’s release, indicating that he had a permanent place of residence, three children to take care of and an elderly father who was ill, and that the charges against him were not serious. The second applicant was released.

Subsequently, the criminal case against the second applicant was closed by the trial court for “active repentance”.

Despite the decision of the local administration of 17 April 2006 whereby the demonstration of 25 April 2006 had not been allowed, the organisers decided to hold it as planned. The first and the third applicants took part in that “unauthorised” demonstration; the second applicant was not amongst the protesters since at that time he had been detained on remand in connection with the episode of on 19 April 2006 in the village of Khiv (see paragraphs 8 to 13 above).

At about 10 a.m. on 25 April 2006, a group of approximately 1,000 people gathered on the outskirts of Usukhchay. Other demonstrators were unable to reach the assembly point because the roads had been blocked by the police.

The organisers tried to meet representatives of the village administration in order to discuss the situation, but to no avail. When the demonstrators started moving towards the centre of the village, the police blocked their way. At the same time another group of demonstrators from the neighbouring village of Miskindzha were stopped by the police on the way to Usukhchay; they were ordered to return to Miskindzha and hold their demonstration there separately, if they so wished.

In the afternoon the demonstrators from Usukhchay started moving towards Miskindzha. As the police had blocked the road, the demonstrators had to leave their cars and walk. Because of the bad weather and the long distance to walk, some of them decided to give up. As a result, when the demonstration arrived at Miskindzha, there were no more than 200 to 300 participants.

The meeting was peaceful; however, at about 3 p.m. the demonstrators were encircled by police officers from the Special Police Force Unit (the “OMON”). The police opened fire with automatic rifles above the demonstrators’ heads. They also used tear gas, smoke bombs and stun grenades to disperse the demonstration. The demonstrators started to run in the direction of the village; the police officers followed them. The police beat the demonstrators with rubber truncheons and rifle butts. As a result, one person was shot dead, five people were severely injured and several dozen people were beaten up or were injured by the shells of the tear-gas bombs which had exploded in the midst of the crowd. Sixty-seven people were arrested, and the organisers of the meeting were charged in connection with their participation in the organisation of an unauthorised demonstration. From the first and the third applicants’ submissions it appears that they were present at the scene of the confrontation in Miskindzha up to a certain moment but left when the clash started at about 3 p.m. None of them was hurt during the clash.

As to the gunshot injury received by a police officer, one of the participants in the demonstration, referring to the words of another witness, Mr S.F., claimed that the wound had been self-inflicted: the officer concerned had shot himself in the leg by accident, because his gun had not been locked.

On 24 April 2006 the Ministry of Internal Affairs of Dagestan issued Order No. 7 “On measures to stabilise the situation in the Dokuzparinskiy District of Dagestan”. The order described the unauthorised demonstration of 25 April 2006, which supposedly would involve about two thousand people “with an aggressive predisposition”. The order mentioned the risks of blocking the roads and disturbing the normal work of State institutions. A “mixed squad” was formed comprising of thirty-five police officers from the Special Forces Unit of the Ministry (OMON) and 147 officers from eight local police stations. Colonel Iz. was appointed as commander of the “mixed squad”. The order provided for undercover observation of the leaders of the demonstrators, video-recording of the events, strengthening of identity checks at the roadblocks and other security measures.

The squad moved to Usukhchay and took position at several roadblocks controlling roads leading to the village and near certain buildings occupied by State bodies. The aim of the operation was to secure public order, guarantee the constitutional rights and freedoms of the population and prevent clashes between the supporters of Mr A. and his opponents.

In their observations, the Government claimed that on the eve of the demonstration someone had taken alcohol, foodstuff and illegal drugs to Usukhchay. It had all been distributed amongst the residents of the village. In addition, there was information about individuals from other villages who had arrived in Usukchay with the aim of inciting the local population to participate in the unlawful demonstration and to insubordination to the lawenforcement authorities.

At about 11 a.m. on 25 April 2006, three groups of people gathered near the premises of the village administration. One group of about 150 people were supporters of Mr A., the head of the district administration. The two other groups – which counted about one thousand people in aggregate – were the opponents of Mr A. Official documents contained in the case file also refer to another group of about 450 to 500 people, who arrived in Usukhchay to take part in the demonstration; it is unclear whether that group was able to join the gathering in the centre or was stopped by the police on the outskirts of the village.

In view of the risk of clashes between the opposing groups, representatives of the protesters were invited to take part in negotiations in the local prosecutor’s office. The negotiations involved Colonel Iz., the Deputy Minister of Internal Affairs of Dagestan, the prosecutor, Ms Lg., and the head of the local police, Mr Akb. The authorities proposed to the organisers that they could hold the demonstration in a municipal garage.

However, that offer was declined. The demonstrators started to move from Usukhchay to Miskindzha, where they arrived at about 1 or 2 p.m. In the meantime, however, someone had blocked the road with objects including paving stones, timber beams and water pipes. This was a federallevel road connecting several villages and its blockage caused a considerable traffic jam.

The authorities warned the organisers that if the road remained blocked, the organisers would be held liable, and that the law-enforcement authorities present on the spot would use force and “special equipment”.

The organisers refused to follow the instructions and told other demonstrators to disobey the police orders. When the police, following the orders of Deputy Minister Colonel Iz., started to remove the barricade from the road, unidentified men in the crowd started to throw stones at them. In addition, several shots were fired from a garden situated uphill on the left side of the road. Some of the protesters were armed with cold weapons such as iron rods, which they used as bats while attacking the police, whereas others tried to grab the service guns from the police officers.

As a result, the police had to use firearms and special equipment. In particular, they used two stun grenades, twenty-three tear-gas grenades, thirtysix rubber bullets, and fired 747 shots from automatic rifles above the heads of the crowd. Fifty-two of the most active protesters were arrested and taken to the Dokuzparinskiy police station.

In addition, unidentified police officers used pump-action shotguns loaded with 22 mm grenades filled with tear gas. Those shots were fired in the direction of the crowd.

Following the clash between the police and the demonstrators, several police officers were injured. Eleven had bruises on their arms and legs, scratches and concussion; one had a ruptured spleen; and one, Mr Il., had a gunshot wound in the form of a perforated bullet hole in the right thigh.

Four civilians were seriously injured and one died. Mr Akh. had a blunt gunshot wound to the right side of the thorax with fractured ribs; Mr Nsr. had a gunshot wound to the left side of the thorax with broken shoulder bones; Mr Al. was wounded by a shell fragment in the right shin and thigh; Mr Gnd. had a gunshot wound to the right forearm with a fractured bone; and Mr Ng. received a mortal wound by a gas grenade to the thorax and died on the way to hospital.

In support of their account, the Government produced some documents apparently obtained in the course of the investigation (case no. 67610). It is unclear, however, whether all those documents related to case No. 67610 and whether they constituted the entirety of the materials collected within that case. The content of those documents, insofar as relevant, is described below.

The Government produced medical certificates describing the injuries of several police officers, but not Mr Il. They also produced several medical certificates describing the injuries sustained by the protesters, all of whom had bruises and scratches. According to the certificates, the protesters claimed that the police had kicked, beaten and battered them with rubber truncheons and gun butts. Some of the protesters had been injured by the rubber bullets used by the police. Others claimed that they had been beaten up after having been arrested and taken to the police station.

In his testimony Mr Akb., the head of the Dokuzparinskiy police, gave an account of the events which was generally consonant with that of the Government. He said that he had been warned about the demonstration in a telegram sent by the organisers. On 17 April 2006 he had met one of them and discussed the event. He further explained that at some time after 10 a.m. on 25 April 2006, his men had stopped a large group of protesters who had been trying to enter Usukhchay. Mr Akb. had spoken with the leaders of the protesters and explained to them that “the demonstration had not been authorised, and that the actions [of the demonstrators] were unlawful”. Subsequently, he had been involved in the negotiations with the demonstrators. The deputy head of the district administration had proposed to the protesters that they hold the demonstration in a municipal garage, explaining that if they stayed in the square near the district administration premises, they risked blocking the main road. The leaders of the protesters visited the garage, but were not satisfied with that offer. They informed the authorities that they would send the protesters to Miskindzha and hold their demonstration there, in the village community centre. When the negotiations were over, a small group of protesters started to move towards the village centre, whereas others marched to Miskindzha, accompanied by the police. At about 1 p.m. Mr Akb. was informed that the federal road had been blocked by two large heaps of stones. He arrived at the scene and started to negotiate with the leaders of the protesters. He tried to persuade them to unblock the road, but they refused and insisted on meeting the leadership of the Dagestan Republic. New people arrived at the scene, armed with stones and sticks. Since the negotiations had failed, Mr Akb. ordered the police to start clearing the road. The men who had gathered on the sides of the road started to throw stones at the police officers, several of whom were hit, so Mr Akb. authorised the use of shields and rubber truncheons. Once the first heap of stones had been removed and the traffic had started to move, the police discovered that 300 metres further down the road it had again been obstructed with pipes. Throughout that time the police officers had stones thrown at them. Mr Akb. authorised them to use firearms but only above the heads of the protesters. By 6 p.m. the road had been unblocked.

Mr Yakh., one of the protesters, testified that when they had arrived in Miskindzha, the road had not yet been blocked. People had started to block the road spontaneously with stones in order to draw the authorities’ attention to their claims. The leaders of the demonstration, who spoke before the crowd, called everybody to order and asked them not to break the law. Then a police colonel appeared. He asked the leaders of the protesters to unblock the road, but they refused. The police then attacked the protesters from two sides and started to shoot and throw gas grenades into the crowd. People started to run in the direction of Miskindzha. Mr Yakh. testified that he had not seen protesters throwing stones at the police: by contrast, the police had thrown stones at the crowd in order to unblock the road.

Witness Mr Ag., a district administration official, testified that all the protesters, including women and elderly people, had been drunk, because earlier a mini-lorry had brought a cargo of vodka which had been distributed to the protesters. Mr Ag. joined the crowd and went with the protesters to Miskindzha, where he listened to the speeches of the leaders of the demonstration before a crowd of approximately 300 people. After the failure of the negotiations between the protesters and the authorities, the leaders started to incite the protesters to throw stones; he also heard the sound of shots coming from the side where the protesters had gathered. A police officer was wounded. The police started to move towards the protesters and fired two or three warning shots above their heads. When the police started to remove the stones from the road and arrest the protesters, Mr Ag. left. On the way back he overheard two women complaining that the organisers had not paid them and that they had been used as a human shield against the police.

According to an undated report by the head of the Special Forces Unit, Major Kr., the police had started using gas grenades only when a large group of about 1,000 men armed with iron rods, wooden sticks and knives had attacked them. Major Kr. also specified that when his officers were moving from the first barricade to the second, someone had started to shoot at them from under the nearby trees with an automatic gun and a hunter’s gun.

Witness Mr Agb. testified that on 25 April 2006 he had been going on his business but had been stopped by the crowd. He had heard the first applicant calling the protesters not to block the road but to gather in the community centre of Miskindzha. However, some of the demonstrators disobeyed; two lorries arrived and dumped stones on the road. Some of the protesters were throwing stones at the police.

One of the witnesses, Mr Chub., was the driver of the lorry that had brought stones for the first barricade. He explained that he had loaded the stones near the river in order to build a shed in his garden. Near the entry to Miskindzha he was stopped by a group of youngsters who ordered him, under the threat of violence, to dump the stones directly on the road.

The written testimonies of several other eyewitnesses were inconclusive. Some of them testified that a group of adolescents had been throwing stones at the police; others said that the police had used firearms by shooting in the air, whereas the demonstrators had no firearms. Some witnesses heard shots from the side of the protesters.

On 29 April 2006 the first applicant was arrested for participating in the organisation of an unauthorised demonstration on 25 April 2006 (criminal case no. 67610). He was suspected of having committed a crime under Article 213 § 2 (“Hooliganism”), and Article 318 § 2 (“Use of violence against a public official”) of the Criminal Code of the Russian Federation (for all further references to the Criminal Code see “Relevant domestic law” below).

In particular, the police suspected that the first applicant had incited the demonstrators to block the road and to “disobey the lawful orders of the police with the use of firearms”. The police applied to the Sovetskiy District Court for a detention order against the first applicant.

According to the Government, the decision of the Prosecutor of the Dagestan Republic (hereinafter “the RPO”, the Regional Prosecutor’s Office) to seek the first applicant’s detention was based on the witness statements of Mr Als., Mr Agsh., Mr Shk. and an anonymous witness. Those witnesses identified the first applicant as one of the leaders of the demonstration who had incited the crowd to attack the police.

On 30 April 2006 the Sovetskiy District Court of Makhachkala placed the first applicant in pre-trial detention. In its ruling the court noted that he was suspected of having committed a serious crime and that he might continue his criminal activity, abscond or obstruct the course of justice. The court also referred to his “personality”.

The first applicant’s lawyer appealed. He indicated that the first applicant worked as head of a municipal social-security office, had a permanent place of residence and four children, and had good references from his colleagues and neighbours. The lawyer also stated that the first applicant had not been contacted by the investigators before his arrest. The lawyer noted that a suspect could be held in pre-trial detention before being formally charged only in exceptional circumstances. The court’s ruling did not refer to any specific facts showing that the first applicant indeed intended to continue his criminal activities, abscond or obstruct the course of justice. Furthermore, the lawyer pointed to various irregularities in the application by the police and in the court’s ruling imposing the detention order.

On 6 May 2006 the Supreme Court of Dagestan dismissed the appeal in a summary fashion. The Supreme Court’s reasoning was identical to that of the lower court.

On 8 May 2006 the first applicant was charged under Article 213 § 3 and Article 318 § 2 of the Criminal Code. In the indictment the first applicant was referred to as “the organiser of the demonstration”. The indictment also mentioned that, as one of the organisers of the demonstration, the first applicant had ordered the protesters to block the road, throw stones in the direction of the police and use firearms.

It appears that in the meantime the first applicant had a confrontation with the witnesses who had earlier identified him as one of the instigators of the riot. According to the Government, they had all denied their previous allegations concerning his role in the riot.

On 27 June 2006 the Sovetskiy District Court of Makhachkala refused to extend the first applicant’s pre-trial detention. The court ruled that the police had not produced any evidence that he might abscond or obstruct the course of justice, and that another preventive measure could not be applied. The court also stated that the need to question other demonstrators who had used violence against the police was not a good reason for extending his detention. The court lastly stated that the first applicant had no previous convictions, was married, was in employment, had good references, had been awarded State decorations and had a permanent place of residence. The first applicant was released.

On 25 December 2006 the criminal case against the first applicant was discontinued for lack of evidence. The investigator established that the road going to Miskindzha had been blocked by the protesters; when the police had tried to clear the road, the protesters had started to throw stones and sticks at them. Several police officers had been injured; police officer Il. had been wounded by a bullet fired from a hunter’s gun.

The investigator’s decision to discontinue the case referred to the protocol of examining the site of the clash during which he had discovered the following objects: 139 5.45 mm cartridges (the type used in the police’s automatic guns), one 7.45 mm cartridge (standard army Kalashnikov rifle), two cardboard cartridges (hunter’s gun) and one cartridge from a teargas grenade.

The investigator further referred to the testimony of several demonstrators who had stated that when the police had approached the demonstrators, most of the people had remained calm. However, some time later, a group of young men whom the witnesses had identified as “the people of Mr Kanberov”, had arrived and started to throw stones and shout insults at the police.

Two police officers questioned by the investigator were granted anonymity. They testified that the leaders of the demonstration, including the first and third applicants, had ordered the protesters to disobey the police and throw stones at them. The testimony of the two anonymous witnesses was confirmed by several other police officers who testified under their real names, including Mr Sch. However, during a face-to-face confrontation with the first applicant, officer Sch. retracted his statement.

Police officer Mr Msl. testified that the first applicant had left the scene of the confrontation between 12 noon and 1 p.m., namely before the start of the clash, because of an emergency in his family. That fact was confirmed by witness Mr Dzhv. Witness Mr Um. testified that the first applicant had tried to persuade the protesters to follow the orders of the police and had designated thirty people to keep order during the demonstration.

The first and third applicants were also questioned. They denied their guilt and claimed that they had been collaborating with the police and had tried to call the protesters to order.

The investigator lastly referred to a video recording of the demonstration which showed that the first and third applicants had asked the protesters not to react to provocations and to remain calm.

On 25 December 2006 the first applicant was informed of his right to claim damages in connection with the criminal prosecution against him.

The third applicant was arrested on 29 April 2006. Whereas it is undisputed that the third applicant was present during the demonstration of 25 April 2006, his arrest was connected not to that demonstration but to his role in the events of 19 April 2006 in the village of Khiv and was ordered within criminal case no. 6424 (see paragraphs 8 to 13 above).

On 1 May 2006 the Sovetskiy District Court of Makhachkala ordered the third applicant’s pre-trial detention. The court reasoned that as he might be given a prison sentence, he might abscond. The court noted that although the arrest warrant had been issued by the police on 20 April 2006, the third applicant had not been arrested until 29 April 2006.

The third applicant appealed. He stated, in particular, that before 29 April 2006 the police had not taken any steps to enforce the arrest warrant of 20 April 2006. He had been arrested on the premises of the Ministry of the Interior of Dagestan, where he had gone of his own motion.

On 6 May 2006 the Supreme Court of Dagestan upheld the findings of the first-instance court in a summary fashion. On the same day the third applicant was charged under Articles 212 and 318 of the Criminal Code for participating in the events of 19 April 2006 in the village of Khiv. The charges against him were similar to those against the second applicant.

On 26 June 2006 the Sovetskiy District Court of Makhachkala refused to extend the third applicant’s pre-trial detention. The court ruled that the police had not produced any evidence that he might abscond or obstruct the course of justice. The court also indicated that the need to conduct further investigative steps was not a legitimate reason for extending his detention. The court concluded that it was possible to apply a milder preventive measure. The third applicant was released.

As follows from the Government’s submissions, the accusations against the third applicant were based on the testimony of one witness. The prosecution authorities decided to drop the charges against him.

On 25 April 2006 the RPO ordered a criminal investigation into the events in Usukhchay and Miskindzha (case no. 67611). The facts were categorised under Article 105 § 2 (e) (“Murder”) and Article 222 (“Unlawful possession of or trafficking in firearms”) of the Criminal Code (“the CC”).

On 7 May 2006 Colonel Mk., acting head of the Special Forces Unit (OMON) of the Ministry of Internal Affairs of Dagestan, drew up a report on the events of 25 April 2006. He explained that the tear-gas grenades had been used when the protesters attacked the police with iron rods and tried to grab the service guns.

On 10 May 2006 an internal inquiry carried out by the federal Ministry of the Interior concluded that the police’s actions on 25 April 2006 had been appropriate. In particular, according to the final report of the inquiry, at 4.45 p.m. Colonel Iz. had ordered his officers to unblock the road, but the officers were attacked by a group of men armed with iron rods, stones and knives. Some of those men tried to grab the officers’ service guns. When the police entered Miskindzha, they discovered a lorry loaded with alcohol, cigarettes and foodstuff. Lieutenant-Colonel Mr Og. testified that his men had been fired at from the nearby gardens located on the left side of the road. Officer Il. (who had sustained a bullet wound to his thigh) testified that a hooded man had shot at him with a hunter’s gun. An appendix to the internal inquiry described restrictions on the use of gas grenades; in particular, it was prohibited to “shot gas grenades directly at humans”.

On an unspecified date in May 2006 the first applicant drafted and submitted to the investigator his account of the events of 25 April 2006 (a copy was submitted by the Government). He claimed that the demonstration had started peacefully, despite information that a group of Mr A.’s supporters had occupied the park in Usukhchay. During the negotiations with the authorities in the morning of 25 April 2006 the authorities’ representatives warned the protesters that if they insisted on holding the demonstration in Usukhchay, there would be bloodshed. In the afternoon, when the demonstrators refused to leave the road near Miskindzha, the police started to shoot and beat them with rubber truncheons. The first applicant submitted to the prosecutor a video recording of the start of the clash, and requested the questioning of several participants of the events.

On 19 October 2006 the RPO opened a criminal investigation under Article 286 § 3 (b) and (c) of the CC (“Abuse of office”) concerning the killing of Mr Ng. (case no. 668459).

On 4 December 2006 cases nos. 668459 and 67611 were joined.

According to the Government, within those two cases the investigators questioned more than seventy witnesses and conducted ballistic and medical forensic examinations. The relatives of the victims or the victims themselves were granted the status of victims in those proceedings.

However, the prosecution was unable to establish the persons responsible for the facts at the heart of the investigation. As a result, on 20 February 2007 the investigation was suspended. The investigator held that “in breach of the instruction on the use of special equipment ... No. 865dsp, officers of the Special Forces Unit ... fired twenty-three 23mm gas grenades ...” However, it was impossible to identify the police officers who had fired the fatal shot.

It appears that on an unidentified date the investigation was reopened and on 16 January 2010 it was suspended again.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva

The applicants were born in 1979 and 2006 respectively and live in Würzburg, Germany.

In 2009 the two applicants and V.P., the first applicant’s husband and the second applicant’s father, travelled to Germany, to take up a nine-month paid traineeship in State institutions which the first applicant had been granted there.

On 27 February 2010 the father went to Bulgaria with the second applicant. He refused to return the child to Germany on 20 March 2010, despite the child’s having a ticket for that date and contrary to what had been agreed with the mother.

As a result, the first applicant interrupted her training and returned to Bulgaria on 25 March 2010 where she joined V.P. and their child.

The first applicant brought judicial proceedings seeking protection against V.P. The proceedings were suspended on an unspecified date, following a joint request by the first applicant and V.P. The proceedings were later resumed after the first applicant claimed that the abuse continued.

The Ruse District Court issued, on 28 April 2011, a protection order in favour of the two applicants, prohibiting V.P. from approaching them for the next six months. The court established that, during the period between 25 March 2010 and 31 March 2010, V.P. had subjected the two applicants to psychological abuse. In particular, he had repeatedly insulted the mother in front of the child, had called her a bad mother, had not allowed the two of them to have contact unsupervised by him and, for that purpose, had locked the bathroom and bedroom doors in the apartment at night. The court also found that V.P. had made the first applicant sleep on the floor, had driven at a high speed with the child on the front seat of the car, had held the child over the balcony banister pressing the child’s carotid (neck) artery and had threatened the first applicant that he would “rip [her] open from top to bottom and serve the corresponding jail time”.

As a result of the restraining order V.P. did not have contact with the child between 12 May 2011 and 26 November 2011.

On 31 March 2010 the two applicants left the family home and the first applicant has exercised actual custody over the second applicant ever since. The first applicant was initially granted a scholarship to study for a master’s degree in Germany during the academic year 2010/2011. The father did not give his consent to the child’s travel to Germany. As a result, the second applicant lived with his maternal grand-parents from the autumn of 2010 onwards.

In order to spend as much time as possible with her child, the first applicant traveled frequently between Germany and Bulgaria. She submitted that between March 2010 and October 2012 she spent around half her time in Bulgaria with her child. This negatively affected her studies: because she was often absent from classes in order to visit her child, she needed longer overall time to complete her master’s programme, namely two years instead of one year. She was awarded another scholarship for a doctorate degree in Germany, starting in the academic year 2012/2013.

On 9 April 2010, the first applicant filed a claim for divorce.

On 8 October 2010 the district court pronounced the divorce of the first applicant and her husband as being due to V.P.’s fault, and granted the exercise of parental rights to the first applicant. The father’s contact rights were determined with a view to the child’s possible residence in Germany and were as follows: one week every three months and twenty consecutive days in the summer before the second applicant started school, and half of every school holiday after that.

Following an appeal by V.P., the regional court upheld the lower court’s findings. The Supreme Court of Cassation dismissed his subsequent cassation appeal as inadmissible. The judgment declaring the divorce final became enforceable on 28 February 2012.

In parallel with the divorce proceedings, on 29 April 2010 the first applicant brought proceedings before the district court under Article 123 § 2 of the Family Code (see paragraph 26 below). She sought to obtain a court decision dispensing with the father’s consent to the child’s travel outside the country. More specifically, she requested permission freely to leave the country with her son for a period of one year as of the date of entry into force of the court judgment.

Several court hearings were held. The applicant informed the court about her intended studies in Germany for the academic year 2010/2011, the fact that she had been granted a scholarship, that she had the financial means to take care of her son and that he had adapted well to the social environment in Germany. She did not specifically invoke a provision under the Convention; instead, she expressed her wish to live with and care for her child while she was pursuing her studies in Germany. However, it appears that she did not formally limit in writing her request for permission to travel with her child to Germany or to any other country.

The district court granted the first applicant’s request on 31 August 2010. It found in particular that there was no reason to suspect that she would permanently leave the country with the second applicant. It also held that the father’s access rights had been determined in a preliminary court decision (определение) of 3 August 2010 and, if the first applicant were to obstruct them, V.P. could bring separate proceedings in that connection.

After an appeal by V.P. the regional court upheld that judgment on 7 January 2011. The court observed that the second applicant’s right to freedom of movement was protected under the United Nations Convention on the Rights of the Child, the Constitution of Republic of Bulgaria and the Bulgarian Identity Documents Act (see paragraphs 25, 28 and 32 below). The right to freedom of movement could only be limited in exceptional situations, namely in order to protect national security, public order, public health and morals or the rights and freedoms of others. None of those exceptions had been established or even claimed in the applicants’ case. The court observed that the first applicant offered good material conditions to the child in Germany, that the child had adapted well during his stay there before March 2010, that the first applicant was going to specialise in European law in the Wurtzburg University and that the second applicant enjoyed considerable care and attention from his mother. The court also held that V.P.’s arguments about his access rights were unrelated to the present proceedings; those arguments had to do with the enforcement of a future court decision in which the exercise of the parental rights in respect of the second applicant were to be definitively determined. The court concluded that it was in the interest of the second applicant to have a passport issued and to travel with the first applicant abroad.

Upon a cassation appeal by V.P., the Supreme Court of Cassation refused the first applicant’s request in a final judgment of 26 June 2012. The court relied on its well established and binding case-law according to which permission for a child’s unlimited travel abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interest of the child. The reasons were more specifically that there was a risk that the requesting parent could take the child to countries which were in a state of war or in which there was a high risk of natural calamities, and thus endanger the child’s well-being while depriving the State of the possibility to ensure his or her protection. Such permission could be granted, when that was in the interest of the child, in respect of concrete destinations and for a limited period of time. Finally, the court rejected the first applicant’s request that the court define of its own motion concrete boundaries within which travel could be permitted, stating that it was bound by the formulation presented in the applicant’s request.

On 9 July 2012 the first applicant brought a new request for permission of the second applicant’s travel with his mother to Germany and the other European Union countries for a period of three years without the father’s consent. This time she brought her claim under Article 127a of the Family Code 2009, which provision was adopted in the meantime and which governs specifically the question of minors’ travel abroad and the issuing of identity documents for that purpose (see paragraph 26 below). She pointed out that she had consistently facilitated V.P.’s access to the child in accordance with his contact rights determined in the divorce proceedings. She submitted that, because she could not take the second applicant with her to Germany while she was pursuing her studies there, both her child and she were deprived of personal contact with each other. She claimed this negatively affected their family life as she was practically deprived of the possibility to raise her child while the exercise of parental rights had been granted to her. She submitted that her doctoral studies in Germany, which were to last three years as of the fall of 2012, would give her the flexibility necessary for her taking care of her child, given that she could do most of her work from home. Finally, she pointed out that the second applicant continuously asked to be with his mother at all times as he is very attached to her.

In a decision of 6 December 2012, the Ruse District Court allowed the second applicant’s travel to Germany and within the European Union, for the period of three years, accompanied by his mother. The decision was not appealed against and became enforceable on 29 December 2012.