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

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

The applicant was born in 1975 and lives in Rijeka. He is a professor of theology. As a professor of theology he was qualified to teach Catholic religious education and courses in ethics and culture, as provided under the relevant domestic law (see paragraph 36 below).

On the basis of a proposal from the applicant’s local priest, the archbishop of the Rijeka Archdiocese (Riječka Nadbiskupija) issued the applicant with a canonical mandate (missio canonica) (no. 492/08-2002) authorising him to teach Catholic religious education.

On 1 September 2003, following the intervention of the Catechetical Office of the Rijeka Archdiocese (Katehetski ured riječke Nadbiskupije), the applicant was offered, without having to undergo a public competition, a contract of employment of indefinite duration as a layman teacher of Catholic religious education in two State high schools in Opatija.

The applicant’s appointment was based on the Agreement of 18 December 1996 between the Holy See and Croatia on education and cultural affairs and the relevant complementary domestic regulations (see paragraphs 32, 40-41, 43-44 below). He was thereby employed in the public service and remunerated by the State.

At the time, the applicant was married to T.F. They had married in a religious ceremony on 14 December 2002 and their marriage had been recognised at the same time by the civil authorities, as provided for under the relevant domestic law (see paragraphs 33 and 38 below).

The applicant’s subsequent divorce from T.F. was registered before the civil authorities, and in March 2006 he married another woman in a civil ceremony.

On 18 April 2006 the Rijeka Archdiocese informed the applicant that his civil marriage to another woman while still bound, in the eyes of the Church, by the religious marriage to his previous wife was contrary to Christian doctrine and disqualified him from teaching religious education. The relevant part of the letter read:

“It has been established that in March this year you concluded a civil marriage although you are still bound by the Sacrament of Matrimony to a third person. The local Catechetical Office of the Rijeka Archdiocese issued you a mandate to teach Catholic religious education in school. Each religious education teacher must demonstrate that he is ‘outstanding in true doctrine and the witness of a Christian life’ (Canon 804 § 2) and must participate in the sacramental and evangelical community of a parish. The new situation does not enable you to do this.

You are therefore invited to explain in writing as soon as possible the manner in which your canonical situation can be harmonised with canonical mandate no. 492/08-2002 and then, by 28 April 2006, to come for a meeting in the Catechetical Office.”

After obtaining the applicant’s explanation of his situation, on 31 August 2006 the Rijeka Archdiocese withdrew his canonical mandate to teach Catholic religious education.

On the same day the Rijeka Archdiocese informed the two schools in which the applicant was employed of the new situation. The relevant part of the letter read:

“We should inform you that on 31 August 2006 canonical mandate no. 492/08-2002 was withdrawn from the teacher of religious education, Petar Travaš.

The canonical mandate was withdrawn under Article 3 § 2 of the Agreement between the Holy See and Croatia on education and cultural affairs (Official Gazette-International Contracts no. 2/1997) because of a breach of Canon Law (Canon 804 § 2). Petar Travaš explained his situation in writing.”

On 8 September 2006, relying on section 106 § 1(2) of the Labour Act (regular termination of an employment contract), the schools dismissed the applicant from his teaching job on the grounds that he could no longer be a teacher of Catholic religious education without a canonical mandate. They stressed that it had been impossible to find another position for the applicant or to offer him an alternative post within the schools. The applicant was given two months’ notice and the right to an indemnity.

On 13 October 2006 the applicant instituted proceedings in the Opatija Municipal Court (Općinski sud u Opatiji), challenging the decisions on his dismissal.

On 22 February 2007 the Opatija Municipal Court dismissed the applicant’s civil action on the grounds that as stipulated in the Agreement between the Holy See and Croatia and the related Agreement between the Government of Croatia and the Croatian Episcopal Conference on Catholic religious education in State schools and pre-school institutions, he could not teach Catholic religious education without a canonical mandate. The Opatija Municipal Court also found that the schools had examined the possibility of appointing the applicant to another suitable post, but that as there was no such post, they had justifiably terminated his contract of employment.

The applicant challenged the judgment of the Opatija Municipal Court by lodging an appeal before the Rijeka County Court (Županijski sud u Rijeci). He argued that he had not breached the Labour Act or any other relevant legislation and that the Agreement between the Government of Croatia and the Croatian Episcopal Conference did not require that a person whose canonical mandate had been withdrawn should be dismissed.

On 17 October 2007 the Rijeka County Court dismissed the applicant’s appeal, endorsing the findings and reasoning of the Opatija Municipal Court.

On 18 and 19 February 2008 the applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) and a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) respectively. He relied, inter alia, on Articles 8 and 14 of the Convention, and the corresponding provisions of the Constitution, arguing that there had been an unjust interference with his private and family life as a result of the decisions on his dismissal, and that his dismissal had been of a discriminatory nature. He contended, in particular, that the conclusion of a second marriage contract in a civil ceremony could not be a reason for dismissal under the Labour Act or any other State laws. He therefore considered that his dismissal based on the fact that he had divorced his former wife and remarried in a civil ceremony had disproportionately affected his private life.

On 3 December 2008 the Supreme Court dismissed the applicant’s appeal on points of law as unfounded, endorsing the reasoning of the lower courts. In particular, the Supreme Court stressed that the applicant’s dismissal had been based on the withdrawal of his canonical mandate, which was a necessary requirement for employment as a teacher of Catholic religious education as provided for under the relevant domestic law. The Supreme Court also held that it was not for the schools or the courts to enter into the examination of the reasons for the withdrawal of the applicant’s canonical mandate by the Church.

On 7 February 2009 the applicant supplemented his constitutional complaint by extending his arguments to the judgment of the Supreme Court. He contended in particular that the Supreme Court’s refusal to examine the reasons for his dismissal had essentially deprived him of the possibility to have those reasons effectively challenged in court.

A public hearing was held and on 22 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint, finding that there had been no violation of his right to respect for his private and family life, or any discrimination against him. The relevant part of the decision reads:

“10.1.2. It follows from the available material and the [appellant’s] constitutional complaint that the appellant’s first marriage had been concluded in a religious ceremony before an official of the religious community and that [the appellant] was divorced on the basis of a final court decision as provided for under the relevant Croatian law. The Constitutional Court notes that the appellant subsequently concluded a new marriage in a civil ceremony without any restriction imposed by the State. It follows that the State did not inhibit his determination to remarry, nor did it prevent him from remarrying and founding a new family.

Accordingly, the appellant’s right to marry under Article 12 of the Convention and his constitutional right to respect for his family life under Article 35 of the Constitution and Article 8 of the Convention has not been breached.

10.2.2. ... [T[he Constitutional Court starts by observing that the Republic of Croatia and the Holy See concluded an Agreement on education and cultural affairs, signed in Zagreb on 18 December 1996. The Act ratifying that Agreement came into force on 11 February 1997 and thereby this international treaty became part of the internal legal order of the Republic of Croatia with precedence in terms of its legal effects over the [domestic] statutes.

By this Agreement the Republic of Croatia undertook certain obligations which must be abided by and respected. Primarily, it undertook to secure Catholic religious education in all State elementary and high schools and all pre-school institutions as a mandatory class for all those who have chosen that course, under the same conditions applicable to other mandatory classes.

[The Agreement] stipulates that Catholic religious education will be taught by qualified religious education teachers who are suitable for that position, in the opinion of the Church authorities, and meet the requisite legal requirements of the Croatian legislation. It also stipulates that teachers of religious education must hold a canonical mandate (missio canonica) issued by the diocesan bishop, and that withdrawal of the mandate leads to an immediate loss of the right to teach Catholic religious education. Under the Agreement, teachers of religious education are members, together with their pupils, of the educational corps ... The Republic of Croatia undertook to regulate the programme and functioning of Catholic religious education in schools of all types and levels by a special agreement between the Republic of Croatia and the Croatian Episcopal Conference.

The Constitutional Court considers it necessary to note at this point that the appellant is wrong when he argues that the Agreement between the Holy See and Croatia on education and cultural affairs does not require a canonical mandate as a condition for employment and that such a requirement only flows from the Agreement between the Government of Croatia and the Croatian Episcopal Conference on Catholic religious education in State schools and pre-school institutions of 29 January 1999. The appellant specifically contends that the Agreement between the Government [of the Republic of Croatia] and the Croatian Episcopal Conference is a bilateral agreement which ‘is not a statute and does not have the status of an international treaty’ and thus could not be binding for [him and the State] nor could it be applied to [his] case, as was done by the [lower] courts.

Although the appellant relies on an erroneous premise that the canonical mandate, as a condition for employment as a teacher of religious education, has been stipulated (only) by the Agreement between the Government [of the Republic of Croatia] and the Croatian Episcopal Conference, it could be held that in essence he considers that the consequences of the withdrawal of the canonical mandate on his contract of employment, and his position of teacher of religious education, are contrary to the Constitution.

The Constitutional Court reiterates that the requirement to hold a canonical mandate in order to teach religious education, and the consequences of its withdrawal (loss of the right to teach Catholic religious education), are provided for under Article 3 of the Agreement between the Holy See and Croatia on education and cultural affairs. ...

10.2.3. The Constitutional Court considers it necessary to examine the special requirement stipulated by the Vatican agreements for employment as a teacher of religious education – the canonical mandate.

The Constitutional Court firstly notes that the Government of the Republic of Croatia have so far concluded seven agreements on questions of mutual interest with different religious communities, in particular with:

- the Serbian Orthodox Church in Croatia (Official Gazette no. 163/03);

- the Islamic community in Croatia (Official Gazette no. 196/03);

- the Evangelical Church in Croatia and the Christian Reformed Church in Croatia (Official Gazette no. 196/03);

- the Evangelical (Pentecostal) Church in Croatia, the Christian Adventist Church in Croatia and the Baptist Union of Croatia (Official Gazette no. 196/03);

- the Bulgarian Orthodox Church in Croatia, the Croatian Old Catholic Church and the Macedonian Orthodox Church in Croatia (Official Gazette nos. 196/03 and 141/04);

- the Jewish community Bet Israel in Croatia (Official Gazette no. 4/12); and

- the Coordination of Jewish townships in Croatia (Official Gazette no. 4/12).

All these agreements have been concluded under the Act on the Legal Status of Religious Communities (Official Gazette no. 83/02) and they all contain identical provisions concerning, for example, mandatory religious education classes for those who have chosen them, the teaching of these courses under the same conditions as other mandatory courses, and the necessity for teachers of religious education to hold the requisite mandate to teach religious education, which can always be withdrawn ‘for reasons of deficiencies related to the correctness of teaching and personal morality’.

Such a requirement, given the nature of their job and its proximity with the mission of dissemination of the church’s teaching, in the Constitutional Court’s view, is not an excessive burden for persons who have chosen to become teachers of religious education. The assessment of a person’s adequacy [to teach religious education] by the competent church authorities is a concretisation of the freedom of the church’s activity and the right to religious freedom, which [also] includes the right of parents to a religious education of their children.

10.2.4. The enforcement of the obligation undertaken by an international agreement, namely the organisation of Catholic religious education in State elementary and high schools and pre-school education institutions, as provided for under the Agreement between the Holy See and Croatia on education and cultural affairs and the Agreement between the Government of Croatia and the Croatian Episcopal Conference, brought religious education teachers into the employment system of the Republic of Croatia. Although their employment status is not fully defined by these Agreements, the provisions of the Agreement between the Holy See and Croatia on education and cultural affairs in themselves show that the employment status of religious education teachers is a sui generis employment status – in order to teach religious education they must be suitable for that position in the opinion of the Church authorities; they must hold a canonical mandate and the withdrawal of the mandate leads to the loss of the right to teach Catholic religious education.

At the public hearing – on the basis of evidence given by the Director of the Administration for legal affairs of the Ministry of Science, Education and Sport of the Republic of Croatia S.S.B., it has been undoubtedly established that the employment of all teachers of religious education was conducted without an open competition, although that has not been provided for under the relevant law. It was only [later], after the public hearing, by section 12 of the amendments to the Act on Tuition and Education in Elementary and High Schools (Official Gazette no. 90/11) that a new section 107 § 10(6) was introduced, which provides that a contract of employment without an open competition may be concluded for the position of religious education teacher.

In June 2000 the Ministry of Education and Sport forwarded to all county offices for education, culture, information, sport and technical culture a letter concerning the employment status of religious education teachers in elementary and high schools; more precisely, concerning their hiring and dismissal.

The letter indicates that a contract of employment is to be concluded with religious education teachers meeting the relevant requirements, and that if the diocesan bishop by means of a decree withdraws the canonical mandate to teach Catholic religious education from a religious education teacher due to deficiencies related to the correctness of the teaching and personal morality, the contract of employment is to be terminated under section 107 of the Labour Act as an extraordinary dismissal.

10.2.5. It therefore follows that the appellant also entered the State education system without participating in an open competition. At the public hearing he stated that, on the basis of the local priest’s recommendation the bishop had given him the mandate, the Ordinary had acted as an intermediary, and the school had given him the employment. Thus, by having the canonical mandate and meeting all other requirements, the appellant and the defendants concluded a ‘classical’ contract of employment under the Labour Act, which does not mention the canonical mandate or the consequences of its possible withdrawal.

At the public hearing, when asked whether he had been aware of the consequences of his conduct on the right to teach religious education, the appellant stated that he had passed the exam in canon law which he could not have passed without learning [also the issues] concerning those consequences. It follows that the appellant knew that his position depended on the mandate given by the diocesan bishop and that he would lose it if the mandate were withdrawn.

Accordingly, although he had concluded a ‘classical’ employment contract under the Labour Act, the appellant could not have expected, after he had lost the canonical mandate as a consequence of entering into a new civil marriage while he was still in a ‘religious’ marriage with a third person, that he would be able to continue to teach religious education. However, he could have expected, irrespective of the internal instructions of the Minister, that the schools where he was employed would take all necessary measures to employ him in another post. This is because the withdrawal of the canonical mandate leads to the loss of the right to teach Catholic religious education and not dismissal or the loss of his degree in theology. Under section 2 of the By-law on the educational level and pedagogical-psychological education of teachers in high schools (Official Gazette nos. 1/86 and 80/99), a degree in theology [opens the possibility] of teaching courses in ethics and culture.

According to the findings of the first-instance court, the defendants had examined the possibility of employing the appellant in another post but, as such a post had not existed, they terminated his contract of employment by so-called regular dismissal, which gives rise to the right to a notice period and an indemnity. In so doing, the defendants acted in the usual manner for terminating a contract of employment by so-called regular dismissal. The Constitutional Court therefore finds that the appellant has not been treated differently from other workers, including employees in schools, in the situation of a termination of a contract of employment by so-called regular dismissal.

The assessment of the lawfulness of the termination of the appellant’s contract of employment was, in the light of the relevant labour law, conducted by the [competent] courts at three levels of jurisdiction. In view of the fact that for the position of teacher of religious education there is a further special requirement, without which it is impossible to conclude a contract of employment (a canonical mandate), and having found that the appellant, due to the withdrawal of [the canonical mandate] no longer met the requirements for teaching Catholic religious education, and the fact that the defendants had tried to find him another post ..., the [competent] courts, in the Constitutional Court’s view, applied a constitutionally acceptable interpretation according to which the appellant’s contract of employment had been terminated in accordance with the relevant law.

10.2.6. Against the above background, in view of the defendants’ conduct following the withdrawal of the appellant’s canonical mandate and in view of the manner in which the competent courts provided him with judicial protection in terms of the State’s obligations under the Vatican agreements, the Constitutional Court finds that the appellant has been afforded sufficient protection of his [employment rights].”

Judge D.K. appended a concurring opinion to the decision, agreeing with the findings of the majority. However, he argued that the Constitutional Court had not sufficiently appreciated the fact that the applicant had voluntarily consented to his position depending on the canonical mandate, which the diocesan bishop was authorised to issue and to withdraw.

The President of the Constitutional Court gave a dissenting opinion in which she argued, in particular, that the normative framework for the employment of teachers of religious education, based on the Agreement between the Holy See and Croatia on education and cultural affairs, had not been implemented sufficiently precisely in the relevant domestic employment system, which had left a number of issues undetermined.

The decision of the Constitutional Court was served on the applicant’s representative on 27 May 2013.

In March 2010 T.F. applied to the Rijeka First-instance Inter-diocesan Matrimony Court (Interdijecezanski ženidbeni sud prvog stupnja u Rijeci) for the annulment of her religious marriage to the applicant on the grounds that, when entering into the marriage, he had demonstrated “a positive act of the will excluding marriage itself” (see paragraph 45 below, canon 1101 § 2).

On 16 August 2012 the Rijeka First-instance Inter-diocesan Matrimony Court accepted T.F.’s application and annulled her religious marriage to the applicant. The decision was then forwarded for examination to the Zagreb Inter-diocesan Appeal Court (Međubiskupijski prizivni sud u Zagrebu).

The proceedings were held in the applicant’s absence because he had failed to respond to the court’s summons. During the proceedings, an email sent by the applicant to T.F. on 4 December 2009 was admitted as evidence. In the email the applicant stated that if he “could return all other sacraments [he] would gladly do it. This way, if [he] managed to get rid of only one, which, as [they] both knew, never existed, [his] heart would be happier.”

On the basis of the evidence adduced, on 24 April 2013 the Zagreb Inter-diocesan Appeal Court upheld the decision of the Rijeka First-instance Inter-diocesan Matrimony Court annulling the applicant’s religious marriage to T.F.


Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Criminal offence)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant was born in 1958 and lives in Prague.

The applicant claims to have been living in Prague since 18 November 2000, when the Czech authorities granted him a visa for an extended stay (a long-term residence permit). On 18 February 2008 the applicant was granted the right to reside permanently in the Czech Republic (a permanent residence permit). However, he did not de-register his domicile (prebivalište) in Croatia.

On 5 June 2008 the applicant bought a car (a Mercedes S 350 L) in Germany and on 10 June 2008 he registered it in the Czech Republic in his name.

On 11 June 2008 the applicant entered Croatia in his car. He claimed that the purpose of his visit was, inter alia, to de-register his domicile in Croatia.

On 15 June 2008 the applicant was stopped by the police in Zagreb while driving his car. The police authorities, finding it suspicious that a Croatian national was driving a car with foreign licence plates, impounded the car and reported the matter to the Customs Administration, suspecting that the car had been imported into Croatia without payment of the relevant taxes and that an administrative offence had thus been committed.

On 17 June 2008 the applicant de-registered his domicile in Croatia.

On 15 September 2008 the applicant re-registered his domicile in Croatia.

Meanwhile, on 16 June 2008 the Customs Administration of the Ministry of Finance had instituted administrative proceedings (upravni postupak) with a view to establishing whether the applicant was liable to pay taxes on the importation of his vehicle and if so, in what amount. On the same day the Customs Administration had issued a decision impounding the applicant’s car, against which the applicant did not appeal.

On 11 December 2008 the Customs Administration issued a decision ordering the applicant to pay, by 30 December 2008, the customs debt (consisting of the VAT and the special tax on motor vehicles) owed on the importation of his car, which amounted to 527,747.08 Croatian kunas (HRK).

The applicant did not appeal against that decision, which thus became final and enforceable on 3 January 2009.

Since the applicant did not pay the above sum, on 23 February 2009 the Customs Administration instituted administrative enforcement proceedings and issued a decision confiscating his car and ordering its sale with a view to collecting the above-mentioned customs debt.

By a decision of 5 June 2009 the Ministry of Finance, as the second-instance administrative authority, dismissed an appeal by the applicant and upheld the first-instance decision of 23 February 2009.

On 6 October 2009 the applicant brought an action in the Administrative Court (Upravni sud Republike Hrvatske).

On 9 May 2012 that court, which in the meantime had become the High Administrative Court (Visoki upravni sud Republike Hrvatske), dismissed the applicant’s action.

In the meantime, on 17 July 2008 the Customs Administration had also instituted administrative offence proceedings (prekršajni postupak) against the applicant for importing his car into Croatia without paying the relevant taxes.

On 31 July 2008 the Customs Administration found the applicant guilty of committing an administrative offence under section 241(1) subparagraph 10 of the Customs Act (see paragraph 29 below), and fined him HRK 5,000. The Customs Administration found that the applicant had had his domicile in Croatia at the time of the commission of the offence. Therefore, it was irrelevant that he did not pay income tax in Croatia, that he had health insurance in the Czech Republic and not in Croatia, and that he had been granted the right to reside permanently in the Czech Republic. By having his domicile in Croatia he failed to satisfy the conditions for exemption from payment of customs duties set forth in Article 5 of Annex C to the Convention on Temporary Admission (“the Istanbul Convention”), which stated that the registered owner of a vehicle registered abroad must, in order to qualify for exemption, have his domicile outside the territory of the State into which the vehicle was being brought (see paragraph 45 below).

On 8 September 2008 the High Court for Administrative Offences (Visoki prekršajni sud Republike Hrvatske) quashed the first-instance decision on account of incomplete facts, and remitted the case to the Customs Administration. The relevant part of that decision reads as follows:

“[The Customs Administration] states, as the decisive reason for its decision to find the accused guilty, that [he] has his domicile in ... Croatia, at [an] address in Zagreb, ..., and that the fact that he possesses a residence permit, that is, a valid visa, of the Czech Republic, is not sufficient evidence for the accused to be entitled to import [his] vehicle with total exemption from customs duties under the Convention on Temporary Admission.

However, it is precisely such explanation of the contested decision that, along with the other elements in the case file, shows that the taking of evidence was flawed, that [the Customs Administration] did not give [sufficient] reasons for the decisive facts on which it based its decision, and that they [that is, those facts and the reasons given] are in strong contradiction with each other. [In particular, the Customs Administration] while acknowledging the fact that [the accused] possesses a residence permit, that is, a visa, of the Czech Republic, further gives as reasons [to support the finding] that the accused has a domicile in ... Croatia, that he is not a taxpayer in ... Croatia, and that he is not even insured with the Croatian Health Insurance Fund.

... [D]uring the first-instance proceedings [before the Customs Administration] the accused stated circumstances and furnished evidence which, in his view, suggested that he had not committed the offence of which he was accused. [The Customs Administration therefore] needed to examine the evidence more thoroughly with a view to establishing the [relevant] facts completely and correctly.

This court considers that what is missing in the present case are the reasons for not accepting the status of the accused in the Czech Republic, the explanation of where the accused actually lives [resides] and, consequently, a clear conclusion as to whether or not he satisfied the conditions set out in Article 5 of Annex C of the Convention on Temporary Admission ....”

In the resumed proceedings, by a decision of 9 October 2008 the Customs Administration again found the applicant guilty of committing the same administrative offence and fined him HRK 5,000. The Customs Administration again found that at the time of the commission of the offence the applicant had had his domicile in Croatia according to the Domicile and Residence of Citizens Act (see paragraph 32 below) and thus did not satisfy the conditions for exemption from payment of customs duties set forth in Article 5 of Annex C to the Istanbul Convention (see paragraph 45 below). Therefore, the fact that the applicant resided in the Czech Republic was of no relevance as he had not proved that he had his domicile there. The relevant part of that decision reads as follows:

“After having examined the evidence ..., this authority finds that the accused, Miljenko Žaja, committed the customs-related administrative offence he was charged with, defined in section 241(1) subparagraph 10 of the Customs Act.

Section 241(1) subparagraph 10 [of the Customs Act] provides that a fine for an administrative offence is to be imposed on a person who treats goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for the temporary admission of goods set forth in the Customs Act or in the [Istanbul] Convention.

In the proceedings it was established beyond doubt that on 15 June 2008 the accused was found operating the vehicle in question with foreign licence plates of the Czech Republic on the territory of Croatia as if he satisfied the conditions for temporary admission, and that conduct was contrary to the conditions for temporary admission of goods set forth in the Customs Act or in the [Istanbul] Convention because he was a Croatian national who at the time of the commission of the offence had his domicile in Croatia.

The rights and obligations of participants in customs proceedings and the powers of the customs authorities as regards means of transport imported by natural persons into Croatian customs territory are regulated by the provisions of the [Istanbul] Convention. Likewise, customs proceedings and supervision of means of transport with foreign licence plates in the Croatian customs territory is regulated by the provisions of the Customs Act and the Decree on the implementation of the Customs Act.

It is established beyond dispute that the accused is a Croatian national who at the time of ... the offence had his domicile in ... Croatia. His defence that he had a registered residence in the Czech Republic was not accepted as a ground for exemption from liability ... Namely, the mere fact that he possesses a residence permit is not a proof that would entitle him to import [his] car with total relief from payment of customs duties under the Convention on Temporary Admission because he does not have his domicile abroad.

This is so because the procedure for temporary admission of private means of transport is regulated by Article 5 of Annex C to the [Istanbul] Convention in such a way that means of transport for private use must be registered in a territory other than that of temporary admission in the name of a person having a seat or domicile outside the territory of temporary admission and be imported and used by persons residing in that territory.

As regards his personal status, it has been established beyond doubt that the accused is a Croatian national, and that until 17 May 2008 he had [his] domicile in Croatia, in Zagreb. Furthermore, after the accused was reported as having committed the administrative offence, he de-registered his domicile in Zagreb – in this authority’s view – merely to avoid liability for the offence. At the time of the commission of the offence the accused did not satisfy the conditions for temporary importation with total relief and [was thus not entitled to] operate a vehicle with foreign licence plates. Namely, [Article 5 of] Annex C to the [Istanbul] Convention expressly provides that the right to temporary importation belongs to persons who have domicile outside the territory of temporary admission, that is, outside Croatia.

This authority has examined the argument of the accused that he is not a taxpayer in Croatia, which is evident from the certificate of 23 June 2008 issued by the Tax Administration, as well as the evidence [to the effect] that he is neither insured with the Croatian Health Insurance Fund nor has social security [cover] in Croatia. However, that evidence cannot lead to the adoption of a different decision, because the fact of [having or not] health insurance or social security is not evidence of domicile abroad.

This authority has also taken into account the fact that the accused had health insurance in the Czech Republic as of 3 October 2007. However, having [health] insurance is itself not relevant for the adoption of a different decision because the fact of [possessing] insurance, which according to the accused’s own statement is voluntary, does not give [him] the right to temporary admission of the vehicle in question with total relief.

On the basis of these findings of fact, and in accordance with the foregoing provisions, this authority has established beyond doubt that the accused did not satisfy the conditions for temporary admission, and that, by handling the vehicle in question contrary to [those] conditions, he committed the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act.

This authority has [also] examined the argument of the accused that he is registered in the Czech Republic [as an alien] for an extended stay, of which he submitted evidence [in the form of] a certificate [issued] by the Police of the Czech Republic. However, that evidence does not prove his domicile abroad, but only his stay. What is more, at the hearing held on 30 September 2008 the accused himself stated only the fact of his residence in the Czech Republic, which confirms that at the time of the commission of the offence he did not satisfy the conditions for the temporary admission of vehicles with total relief, in accordance with Annex C to the [Istanbul] Convention.

In particular, it is beyond doubt that at the time of the commission of the offence the accused had his domicile in Croatia. Section 2 of the Domicile and Residence of Citizens Act provides that a citizen’s domicile is the place where he has settled with the intention of permanently living there, and in which he has permanent accommodation secured.

The solemn statement of the commercial company [ERC] of 13 August 2008 stating that it would provide accommodation for Miljenko Žaja as of 1 January 2008 was also examined in the proceedings. However, [that statement] is not decisive for exempting [the accused] from liability because it was issued after this authority adopted its [first] decision of 31 July 2008 and because the statement in question does not give him the right to temporary admission with total relief.

The statement given by P.Ć. (before a notary public on 22 September 2008), which was also examined during the proceedings, is illogical and contrary to [both] the statement of Miljenko Žaja and the solemn statement of 13 August 2008 in that it suggests that the flat [in Prague in which the applicant claimed to be living] was rented to P.Ć., and not to the accused, whereas the solemn statement of ERC of 13 August 2008 suggested that it provided Miljenko Žaja with accommodation at the address [in Prague]. After examining that evidence, this authority considers that it was obtained with a view to proving that the accused had rented accommodation to live in abroad.

Moreover, the evidence of the accused that his wife is a director of company PZM in Prague is not relevant either, because in his statement of 22 July 2008 he stated that his wife lived in Zagreb and had her business in Croatia.

This authority does not dispute the fact that the accused is disabled, with a degree of disability of 100%, of which he submitted as evidence a membership card [issued by an association of disabled persons] in his name indicating his domicile [as being] in Zagreb ...

In the proceedings all the evidence furnished by the accused was examined. However, by that evidence the accused did not prove that he had been living abroad.

From all the evidence it is apparent that at the time of the commission of the offence the accused was a Croatian national who had his domicile in Croatia, with all the rights and obligations attached to that. The accused could not pose in Croatia as a person having domicile abroad and enjoy the rights of [such] a person in [his own] country, where until 17 June 2008 he had his domicile. Therefore, the accused did not satisfy the conditions for the temporary admission of a foreign car to the territory of the Republic of Croatia with total relief under Annex C [to the Istanbul Convention] and the Decree on the implementation of the Customs Act because his domicile was in Croatia at the time of the commission of the offence.

In the light of the foregoing, this authority has adopted a decision finding the accused guilty, as stated in the operative provisions.”

By a decision of 29 October 2008 the High Court for Administrative Offences dismissed an appeal by the applicant and upheld the first-instance decision, endorsing the reasons given therein. The relevant part of that decision reads as follows:

“Against the first-instance decision the accused ... lodged ... an appeal on the grounds of breaches of procedure, incomplete and incorrect findings of fact, misapplication of the substantive law, and a wrong decision on the sanction. In the appeal the accused essentially argues ... that he has proved that at the time of entry into the Republic of Croatia he satisfied all statutory requirements for legally entering [Croatia] with the car in question, that the first-instance authority called into question the validity of the visa of the Czech Republic, where he was [first] granted an extended stay, and from 18 February 2008 the right to reside permanently, [and] that he uses the flat in Prague without restrictions. He therefore considers that there are no legal grounds or evidence for a finding that he committed the administrative offence in question.

The appeal is unfounded.

The accused unjustifiably denies liability for the administrative offence committed, because the first-instance authority[,] ... on the basis of his statement given at the hearing of 30 September 2008 and ... the written evidence[,] ... correctly concluded that his conduct had all the elements of the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act. [The accused] was on 15 June 2008 in Zagreb found operating a Mercedes Benz vehicle ... with foreign licence plates of the Czech Republic as if he satisfied the conditions for temporary admission, and that conduct was contrary to the conditions for temporary admission of goods given that at the time of the commission of the offence he had his domicile in Croatia. Since that conduct was contrary to the conditions for temporary admission of goods set forth in the Customs Act and the [Istanbul] Convention, he committed the administrative offence defined in section 210(1) subparagraph 10 of the Customs Act.

The other appellate arguments are also unfounded because the ... Customs Administration ... correctly and accurately established the [relevant] facts ... and correctly applied the substantive law...

In particular, special conditions for the temporary importation of means of transport are prescribed in Article 5 of Annex C to the Convention on Temporary Admission in Chapter III, where subparagraph (b) provides that means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons having domicile in such a territory. The Domicile and Residence of Citizens Act in its section 2 provides that domicile is the place where a citizen has settled with the intention of permanently living there.

Therefore, given that during the [first-instance] proceedings the decisive fact that the accused is a Croatian national who at the time of the commission of the offence had his domicile in the territory of the Republic of Croatia was established beyond doubt, he did not satisfy the conditions for temporary admission of a foreign car to the territory of the Republic of Croatia set out in the above-cited provisions of the Annex to the Convention on Temporary Admission.

[This court] therefore upholds as correct in its entirety the decision of the first-instance authority ... whereby the accused was found guilty and sanctioned for the administrative offence defined in section 210(1) subparagraph 10 of the Customs Act ...”

The applicant then, on 12 November 2008, lodged a constitutional complaint against the second-instance decision, alleging violations of his constitutional rights to fair proceedings, equality before the law and equality before the courts and other public authorities. In so doing he relied on Article 14 paragraph 2, Article 26 and Article 29 paragraph 1 of the Croatian Constitution (see paragraph 26 below). He argued that the High Court for Administrative Offences had misinterpreted the text of Article 5 of Annex C to the Istanbul Convention, which in the official text did not refer to “domicile” but to “living” abroad. Therefore, the fact that while living in Prague he had kept his domicile in Croatia was not relevant. The applicant further argued that the meaning given to certain legal terms in domestic legislation could not be relied on in interpreting the same or similar terms used in international agreements. In particular, the applicant argued as follows:

“In the decision [of 29 October 2008] the High Court for Administrative Offences totally wrongly quoted the text of Article 5 subparagraph (b) ... of Annex [C] to the Convention on Temporary Admission by stating [that it] ‘provides that means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons having domicile in such a territory’ [emphasis added].

However, the text Article 5 subparagraph (b) ... of Annex [C] to the Convention on Temporary Admission published in the Official Gazette [– International agreements] no. 16/98 is completely different and reads:

‘... means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons living in such a territory’ [emphasis added].

The obvious difference between [the two texts] is that the High Court for Administrative Offences refers to [having] domicile in the territory of another State as a condition for using a foreign car whereas the text of the Convention [on Temporary Admission] ... refers to ... living in the territory of another State, which is legally not the same.

Besides, the fact of living in the territory of another State, that is, in the State from which the disputed car originates, cannot be assessed in accordance with Croatian laws, and especially not in the way [the High Court for Administrative Offences] did it, but in accordance with the Convention [on Temporary Admission] itself and the Decree on the implementation of the Customs Act, .... [T]hat fact of living in the territory of another State is to be proved by work or residence permit.

... all customs offices in Croatia have, upon a citizen’s entry into [Croatia] by car, been establishing the fact of living in another State by checking only work or residence permit.

It is evident that in the instant case [the authorities] departed from the relevant law and the established practice ... by deliberately misquoting the relevant provisions with a view to creating conditions for the complainant’s conviction at all costs.

[T]he complainant proved beyond doubt, by presenting a valid visa for an extended stay, the contract on the use of a flat and a social security certificate, that he has de jure and de facto been living in the Czech Republic, and that he had legally bought the car in accordance with the Czech laws. [It follows that] the complainant perfectly legally entered Croatia in accordance with Article 5 subparagraph (b) ... of [Annex C to] the Convention on Temporary Admission, and that by so doing he did not commit a customs offence defined in section 241(1) subparagraph 10 of the Customs Act. In any event, the customs office [in question] would not have allowed the complainant to enter the territory of Croatia if he did not satisfy the said conditions.

It is totally unclear why the complainant should, as stated in the first-instance decision, pay any customs debt [in the situation] where he did not ask for customs clearance but only temporary admission. If the customs authorities considered that temporary admission was not allowed then they could have ordered that the car be exported from Croatia ... at the expense of the complainant.

The above described proceedings are certainly a chicanery for the reasons as stated and at the same time constitute a dangerous precedent for all other citizens of Croatia ...

If such proceedings would apply to all Croatian nationals operating cars with foreign licence plates, only a few [such] cars daily could enter Croatia. Besides, if that view of the lower judicial and other authorities on the [interpretation of the relevant] substantive law is to be accepted, not a single one of hundreds of thousands of Croatian citizens temporarily working in Germany, Italy or Switzerland could enter Croatia because they all legally have domicile in Croatia. [In this way] several thousands of cars should be confiscated every year, especially from citizens of Bosnia and Herzegovina having double nationality who enter Croatia on a daily basis.

In particular, the [contested] decisions infringed the right to impartial and fair proceedings guaranteed by Article 29 of the Croatian Constitution because for the reasons set out above those decisions are certainly neither fair nor impartial. On the contrary, they are absolutely biased and blatantly unfair.

The decision to prosecute only the complainant and not hundreds of thousands of others certainly constitutes a violation of Article 14 paragraph 2 of the Constitution whereby equality before the law is guaranteed to the complainant, and also of Article 26 of the Constitution which guarantees equality of all Croatian citizens before courts and other State authorities.”

By a decision of 8 April 2009 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint, finding that the contested decisions were based on a “constitutionally acceptable interpretation and application of the relevant substantive law”. The Constitutional Court’s decision was served on the applicant’s representative on 22 April 2009. It reads as follows:

“5. According to section 241(1) subparagraph 10 of the Customs Act a ... natural person shall be liable for an administrative offence if he or she handles [the] goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for temporary admission of goods set forth in the Customs Act or in the Convention on Temporary Admission,

Convention on Temporary Admission, Annex C, Article 5 subparagraph (b) provides as follows:

(b) means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and be imported and used by persons living in such a territory.

Having regard to the cited provisions of the Customs Act and Article 5 subparagraph (b) of the Annex C to the Convention on Temporary Admission, as well as the facts established in the proceedings ... (in particular the fact that it was established ... that at the time of the commission of the offence the complainant had registered domicile in Croatia in accordance with the relevant provisions of the Domicile and Residence of Citizens Act), the Constitutional Court finds that the legal views expressed in the contested decisions are based on a constitutionally acceptable interpretation and application of the relevant substantive law. The Constitutional Court considers that the relevant administrative authority and the High Court for Administrative Offences, relying on the facts established in the proceedings, gave reasons for their views expressed in the contested decisions, which undoubtedly do not result from an arbitrary interpretation and application of the relevant substantive law.

The Constitutional Court therefore finds that the complainant’s right to equality before the law guaranteed by Article 14 paragraph 2 of the Constitution was not violated by the contested decisions.

Article 29 paragraph 1 of the Constitution provides as follows:

Everyone has the right that an independent and impartial court established by law decides fairly and within a reasonable time on his rights or obligations, or as regards suspicion or accusation of a criminal offence.

[In the present case] the administrative and judicial authorities acted within their jurisdiction established by law. It is evident from the case-file that the first-instance administrative authority took evidence in accordance with the Administrative Offences Act and that the High Court for Administrative Offences decided on the complainant’s appeal on the merits. It is also evident that the complainant had an opportunity to follow and participate in the proceedings, and that he could undertake all permitted procedural actions and lodge a remedy. The contested decisions are sufficiently reasoned and adopted in accordance with the relevant procedural rules.

For these reasons, the [Constitutional] Court finds that the contested decisions did not violate the complainant’s constitutional right to fair proceedings.

As regards the complainant’s argument that in similar cases the relevant authorities proceed differently, that in itself does not mean that the complainant’s constitutional right was violated by the contested decisions. In the [Constitutional] Court’s view, in the proceedings [complained of] the contested decisions were adopted in accordance with the relevant legislation. [T]herefore the fact that different decisions may have been adopted in other proceedings is of no relevance for the lawfulness of the decisions contested before the Constitutional Court in these proceedings, nor can it lead to a different decision in this particular case.

Article 26 of the Constitution ... is not relevant in this case.”


No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)

André Potocki;Angelika Nußberger;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in 1953 and lives in Béziers.

The applicant is the former head of the Basque separatist organisation Iparretarrak. After his detention in 1988, he was convicted several times: on 4 March 1991 he was sentenced to six years’ imprisonment for criminal association with a view to preparing a terrorist offence; on 10 November 1992 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing two members of the State security police force (“CRS”); on 9 April 1993 he was sentenced to six years’ imprisonment for armed robbery; on 9 June 1993 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing a gendarme; and on 31 March 2000 he was sentenced to twenty years’ imprisonment for conspiracy to murder, complicity in murder and armed robbery.

By judgment of 1 February 2007 the Sentence enforcement division of the Paris Court of Appeal released him on licence from 14 February 2007 to 14 February 2014, ordering to follow a seven-year programme of assistance and supervision. The Government pointed out that the applicant was the first person sentenced to life imprisonment for offences linked to terrorism ever to have been released on licence.

The Sentence enforcement division reiterated in its judgment that the applicant’s release on licence would be accompanied by the following general obligations (Article 132-44 of the Penal Code): complying with the instructions of the sentence enforcement judge or of the social worker from the Prison rehabilitation and probation service; receiving visits from the latter and providing him or her with information or documents facilitating supervision of his livelihood and compliance with his obligations; informing the social worker of any job changes and, if such changes are liable to hamper compliance with his obligations, obtaining prior authorisation from the sentence enforcement judge; informing the social worker of any changes of address and of any travel lasting for more than two weeks, reporting back to the latter on his return; and obtaining the authorisation of the sentence enforcement judge for any foreign travel and for any change of job or of address liable to impede compliance with his obligations. The division added the following special obligations (Article 132-45 [1], [3], [5] and [14] of the Penal Code): exercising an occupation or following vocational education or training; residing in Béziers; continuing, in accordance with his means, to pay into the Guarantee Fund for the compensation of victims of terrorism; and refraining from possessing or carrying a weapon.

On 7 November 2007 the Criminal Chamber of the Court of Cassation dismissed the appeal on points of law lodged by the Public Prosecutor with the Paris Court of Appeal.

On 24 December 2007 the applicant took part in a peaceful demonstration outside Agen Prison in support of Basque detainees being held there. The media reported on that demonstration.

Consequently, the Paris Sentence Enforcement Court delivered a judgment on 14 May 2008 imposing additional special obligations on the applicant: refraining from attending, in the vicinity of a prison or other detention facility, any demonstration in support of persons detained for terrorist offences or of any association or movement which is committing or has committed terrorist acts (Article 135-45 [9] of the Penal Code); refraining from distributing any document or audiovisual material produced or co-produced by himself concerning, in whole or in part, an offence committed by himself, and refraining from discussing that offence in public (Article 132-45 [16] of the Penal Code).

That judgment was upheld by judgment of the Paris Court of Appeal on 2 October 2008. However, the latter judgment was quashed by judgment of the Criminal Chamber of the Court of Cassation on 10 June 2009, on the grounds that the sentence enforcement court did not have jurisdiction to modify the obligations for release on licence, for which matter the sentence enforcement judge held jurisdiction.

On 18 February 2010 the Public Prosecutor’s Office requested that the sentence enforcement judge of the Regional Court of Paris add both the aforementioned obligations to the applicant’s list of obligations for release on licence, as well as a prohibition on “contacting any person actively engaged in promoting Basque separatism or supporting detainees convicted of or charged with terrorist acts pursuant to Articles 421-1 to 421-6 of the Penal Code, particularly with a view to expressing support for such detainees (Article 132-42 [12] of the Penal Code)”.

By judgment of 28 June 2010 the sentence enforcement judge decided to impose on the applicant the obligation set out in Article 132-45 (16) of the Penal Code: “refraining from distributing any document or audiovisual material produced or co-produced by himself concerning, in whole or in part, the offence committed, and refraining from discussing that offence in public, whereby [these] provisions [are] applicable only in cases of convictions for serious offences of intentional homicide, sexual assault or sexual abuse”. He noted that in its judgment of 1 February 2007 the Paris Court of Appeal had described the applicant “as a calm, respectful person who spent most of his time writing his memoirs”. The judge inferred that “although it is unclear what the word ‘memoirs’ entails, it is quite possible that Mr Bidart might be tempted to publish his memoirs and make statements on the offences of which he was convicted”. Nor did the judgment go into further detail on that point. It explained, however, that “during the adversarial proceedings Mr Bidart was reminded that the prosecution had requested the prohibition only of writings or statements connected with the offences of which he had been convicted”.

That judgment was upheld by judgment of the Paris Court of Appeal on 31 August 2010, stating that the obligation in question “merely prohibited commenting on or condoning the offences committed” and “that the obligation was not a disproportionate measure in the light of the need to protect public order, nor does it prevent Philippe Bidart from expressing his political convictions”.

By judgment of 30 March 2011 the Criminal Division of the Court of Cassation dismissed the appeal on points of law lodged by the applicant, on the grounds that in its judgment the Court of Appeal had properly applied Article 132-45 [16] of the Penal Code, in compliance with the legal texts and conventions relevant to the applicant’s appeal (including Article 10 of the Convention).


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

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

The applicant was born in 1949 and lives in Zagreb.

In 1985 the applicant was employed as an inspector for Zagreb Municipal Council (Grad Zagreb). On 25 June 1991 the Executive Board (Izvršno vijeće) of the Municipal Council removed the applicant from her position and on 26 June 1991 she was made available for redeployment (stavljena na raspolaganje) and subsequently redeployed to the Municipal Council’s Secretariat for Planning, Public Utilities, Transport and Infrastructure (Gradski sekretarijat za prostorno uređenje, komunalne poslove, promet i veze – “the Secretariat”) until 30 September 1991, without being given a permanent role there.

On 30 September 1991 the Secretariat determined that the applicant could not be found a permanent position within the organisation and terminated her employment upon the expiry of her notice period on 31 March 1992. The applicant did not, at the time, receive any severance pay following her dismissal.

On 29 July 2006 the applicant requested payment of severance pay from Zagreb Municipal Council’s Office for Planning, Environmental Protection, Development, Construction, Public Utilities and Transport (Gradski ured za prostorno uređenje, zaštitu okoliša, izgradnju grada, graditeljstvo, komunalne poslove i promet – “the Municipal Office”).

On 10 October 2006 the Municipal Office found that the request for payment should have been submitted within three years of the applicant’s dismissal and rejected it as lodged out of time. The relevant part of the decision reads as follows:

The request of Dragica Markeš is inadmissible, as the conditions for initiating proceedings have not been met...

By the Secretariat’s decision... the applicant’s employment was terminated on 31 March 1992 in accordance with section 383 of the Public Administration Act.

On 29 July 2006 the applicant requested the severance pay, relying on section 383(a) of the Public Administration Act.

This Office finds that in the present case the conditions for initiating proceedings following the request of Dragica Markeš have not been met.

Section 138 of the Labour Act... sets the statute of limitations for claims arising from employment at three years.

Section 214 subsection 1 of the Obligations Act... provides that the right to claim fulfilment of an obligation ceases when the statutory limitation period expires...

In the present case, the statute of limitations ran from 1 April 1992. It follows that the applicant lodged her request for severance pay out of time...”

The applicant appealed against this decision to the Chief of the Municipal Office and on 9 November 2006 he dismissed the appeal as without merit and upheld the first-instance decision. The relevant part of the decision reads as follows:

The appeal is without merit.

After an examination of the appeal and the entire case file, it was found that the first-instance body had fully and correctly established the factual background and had rendered a correct decision. There had been no breaches of procedural rules or errors in the application of the law to the detriment of the appellant...

As regards the appellant’s allegations that, instead of provisions of the Labour Act and the Obligations Act, the provisions of the State Administration Act and Administrative Proceedings Act should have been applied to her case, [this authority finds them to be] unfounded...

Section 371 of the Obligations Act provided that claims became time-barred after five years, if no other statutory limitation period was prescribed by law.

Section 138 of the Labour Act provides that the statute of limitations for claims arising from employment, including severance pay, is three years.

In the light of the above, it is apparent at the outset that under both the Obligations Act, relevant for determining the statute of limitations at the time the appellant’s employment was terminated, and under the Labour Act, relevant for determining the statute of limitations at the time of lodging the request, the appellant’s claim is time-barred.

The validity of the decision of the first-instance authority is therefore clear...”

On 23 December 2006 the applicant brought an administrative action against the appeal decision in the Administrative Court (Upravni sud Republike Hrvatske). Subsequently, the Administrative Court forwarded the case for comment to the Municipal Office.

On 15 February 2007 the Municipal Office submitted its observations to the Administrative Court. In those observations the Municipal Office raised the issue of the applicant’s entitlement to severance pay for the first time and reiterated that the request for payment had been lodged out of time. These observations were not forwarded to the applicant. The relevant part of the observations reads as follows:

II. It is further noted that even if the claimant had requested severance pay within the statutory time-limit, she would not have been entitled to it, as her employment was not terminated on the basis of section 383(a) of the State Administration Act, on which the claimant relied, but on the basis of section 383 of that Act....

Section 383 of the State Administration Act, on the basis of which the claimant’s employment was terminated, envisages the restructuring of units or individual posts as grounds for being made available for redeployment or termination of employment, and as such does not envisage severance pay...

On the contrary, section 383(a) envisages the needs of the civil service as grounds for being made available for redeployment or termination of employment.

It is further noted that section 383(a) of the State Administration Act, relied upon by the claimant, came into force on 8 October 1991, at the time when the decision setting the claimant’s notice period, on basis of section 383 of the State Administration Act, had been already rendered. Upon the expiry of that period, the claimant’s employment was terminated.

On 26 September 2007 the applicant requested that the proceedings before the Administrative Court be expedited. On 7 February 2008 the applicant again requested that the proceedings be expedited and an oral hearing held in her case. On 24 May and 9 December 2008 the applicant requested that the Administrative Court expedite the proceedings and decide her case with or without holding an oral hearing.

On 31 March 2009 the applicant asked the Administrative Court and the President of the Supreme Court (Vrhovni sud Republike Hrvatske) to exclude the assigned judge and the President of the Administrative Court from her case. She expressed concerns that her case had been deliberately delayed.

On 16 April 2009 the President of the Supreme Court dismissed the applicant’s request for exclusion of the President of the Administrative Court as groundless.

On 23 April 2009 the President of the Administrative Court dismissed the applicant’s request for exclusion of the assigned judge as unsubstantiated.

On 6 May 2009 the Administrative Court dismissed the applicant’s action. The relevant part of the judgment reads as follows:

The complaint is without merit.

It transpires from the above-mentioned statutory provisions that the claimant’s employment was terminated on the basis of section 383, and not section 383(a) of the State Administration Act, and that the claimant’s claim is unfounded because her employment was terminated due to the restructuring of units or individual posts, and not due to redeployment for the needs of the civil service, as prescribed by section 383(a) of the Act. In the light of the above, the claimant has no grounds for severance pay.

However, the defendant authority did not entertain the claimant’s severance pay entitlement. Instead, it declared her request inadmissible as time-barred...

Given that the claimant lodged her request after the expiry of the statutory time-limit, the defendant authority correctly dismissed the claimant’s appeal against its decision ...”

On 10 July 2009 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, inter alia, of a lack of adversarial proceedings before the Administrative Court. On 30 March 2011 the Constitutional Court declared the applicant’s complaint inadmissible as manifestly ill-founded. The relevant part of the decision reads as follows:

“The constitutional complaint is declared inadmissible.

The constitutional complaint was lodged against the decision of the Administrative Court... of 6 May 2009 whereby [that court] dismissed the complainant’s administrative complaint and upheld the decision of the Municipal Office... of 9 November 2006.

By that decision the complainant’s appeal against the first-instance decision whereby her request for severance pay had been declared inadmissible was dismissed.

The complainant considers that her rights guaranteed by Articles 14 § 2, 19 § 1, 29 § 1 and 48 § 1 of the Constitution were violated by the contested decisions. She also cites Articles 6, 13 and 14 of the European Convention on Human Rights...

The conditions for examining the merits of the case have not been met.

... Section 32 of the Constitutional Court Act provides:

“The Constitutional Court shall declare inadmissible any request or complaint in respect of which it has no jurisdiction; which is lodged out of time; and in other situations where the conditions for examining the merits of the case are not met.

By “examining the merits of the case”, section 32 of the Constitutional Court Act refers to scrutinising the constitutional law aspects of the case.

In accordance with the Constitution and the Constitutional Court Act, the Constitutional Court does not form part of the regular judicial system, does not conduct court proceedings and does not decide on the merits of judicial matters. The Constitutional Court is a separate body established under the Constitution for the protection of individual human rights and fundamental freedoms (constitutional rights) in proceedings instituted by a constitutional complaint.

A constitutional complaint is not a regular or extraordinary remedy within the system of domestic legal remedies. It is a special, constitutional remedy for the protection of constitutional rights in individual cases. It is therefore not sufficient to base a constitutional complaint on breaches resulting from alleged unlawful acts committed by a competent body or a court. The legal protection against such unlawfulness is provided by general and specialised courts in proceedings taking place before several levels of jurisdiction. They can exceptionally be examined before the Constitutional Court, but only in so far as they can [be argued to have] violated human rights and fundamental freedoms protected by the Constitution.

It is also not sufficient to repeat the submissions from the appeal or cassation proceedings or to merely enumerate constitutional rights that have allegedly been violated. The constitutional complaint must contain specific and reasoned claims of a breach of a constitutional right.

In the present case, the Administrative Court accepted the findings of the administrative bodies that the complainant’s claim had been time-barred, as her employment had been terminated on 31 March 1992 and she had submitted her request for severance pay on 29 July 2006.

The Constitutional Court finds the claims in the constitutional complaint to be a repetition of the claims in the administrative complaint.

In her constitutional complaint, the complainant was unable to show that the Administrative Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide on.

Meanwhile, on 28 November 2008 the applicant lodged a complaint with the Supreme Court (Vrhovni sud Republike Hrvatske) about the length of the administrative proceedings.

On 30 October 2009 her complaint was dismissed. The Supreme Court found that the proceedings had lasted for two years, eight months and fifteen days at two levels of jurisdiction, which was not deemed to be excessive.

The applicant appealed against this decision and on 7 February 2011 a panel of judges of the Supreme Court dismissed her appeal.

On 18 April 2011 the applicant lodged a constitutional complaint before the Constitutional Court against the decisions of the Supreme Court.

On 2 June 2011 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the contested decisions were not susceptible to constitutional review.


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

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

The applicant was born in 1952 and lives in Vukovar.

The applicant worked for the Borovo Municipality until 16 January 1991, when he was made redundant.

On 28 March 1991 the applicant brought a civil action against the Borovo Municipality in the Vukovar Municipal Court (Općinski sud u Vukovaru), seeking reinstatement and salary arrears.

By a partial judgment (djelomična presuda) of 15 October 1996, the Vukovar Municipal Court annulled the decision on the applicant’s dismissal as unlawful and ordered his reinstatement within eight days of the judgment becoming final. At the same time, the court decided to wait until the partial judgment became final before examining the applicant’s claim for salary arrears. The relevant part of the partial judgment in question reads as follows:

“The decision of the defendant, the Borovo Municipality, ... of 16 January 1991 on the termination of the plaintiff’s [the applicant’s] employment is hereby annulled,

... the defendant, the Borovo Municipality, is ordered to reinstate the plaintiff in his post ... and to acknowledge his employment-related rights ..., and to do so within eight days of this judgment becoming final ...

On the remaining part of the claim and the [claim for] costs and expenses [the court] shall decide by a definitive [i.e. later] judgment.”

The judgment was served on the applicant’s representative on the same day, and on the defendant on 13 November 1996.

On 5 December 1996 the defendant, represented by the Zagreb State Attorney’s Office, appealed against the partial judgment. The applicant received a copy of that appeal on 27 January 1997.

In the meantime, after having submitted several written requests for reinstatement to the Borovo Municipality without success, on 17 December 1996 the applicant wrote to the President of the Vukovar County Court (Županijski sud u Vukovaru) seeking help in that regard. In particular, he submitted that on 26 November and 16 December 1996 he had requested the Vukovar Municipal Court to certify that its partial judgment had become final (see paragraph 8 above) by adding a stamped endorsement to that effect (klauzula pravomoćnosti – “certificate of finality”). He alleged that his requests had been refused orally with the explanation that the defendant’s appeal of 5 December 1996 had prevented the judgment from becoming final.

On 6 February 1997 the applicant lodged a response to the defendant’s appeal, arguing, inter alia, that the Vukovar Municipal Court should declare the appeal inadmissible as it had been lodged out of time.

By a decision of 28 March 1997 the Vukovar Municipal Court declared the defendant’s appeal inadmissible as having been lodged outside the statutory time-limit, finding that the last day for lodging the appeal had been 28 November 1996. The defendant appealed against that decision.

On 30 September 1997 the applicant took early retirement on grounds of disability.

By a decision of 2 July 1998 the Vukovar County Court dismissed the defendant’s appeal against the Vukovar Municipal Court’s decision of 28 March 1997 (see paragraph 12 above).

On 13 October 1998 the Vukovar Municipal Court stamped the applicant’s copy of its partial judgment of 1996 (see paragraph 8 above) to indicate that it had become final. The stamp indicated that the partial judgment had become final on 29 November 1996.

In the resumed proceedings concerning the salary arrears (see paragraph 8 above), by a judgment of 28 April 2004 the Vukovar Municipal Court found for the applicant and ordered the defendant to pay him salary arrears for the period between 1 March 1991 and 1 October 1997, that is, 110,226.19 Croatian kunas (HRK) in total, together with the accrued statutory default interest.

However, following an appeal by the defendant, on 16 June 2004 the Vukovar County Court reversed the first-instance judgment, dismissing the applicant’s action in its entirety. That court noted, inter alia, that under section 238 of the Enforcement Act (see paragraph 30 below) an employee could apply for the enforcement of a judgment ordering his reinstatement within thirty days of its becoming final. The partial judgment (see paragraph 8 above) had become final on 29 November 1996 (see paragraph 15 above and paragraph 27 below) but the applicant had never applied for its enforcement, and he should have done so by 29 December 1996. The County Court therefore held that the applicant had not only lost the right to seek reinstatement but consequently also the right to receive salary arrears.

On 23 July 2004 the applicant lodged an appeal on points of law (revizija) against the second-instance judgment. He argued that he could not possibly have applied for enforcement of the partial judgment (see paragraph 8 above) by 29 December 1996 because at that time the defendant’s appeal of 5 December 1996 (see paragraph 9 above) against the partial judgment had still been pending and he had consequently been unaware that the partial judgment had become final. That the partial judgment had actually become final on 29 November 1996 had become apparent to him only on 13 October 1998, when it had been confirmed by the stamped endorsement of the Vukovar Municipal Court. However, since he had retired on 30 September 1997 (see paragraph 13 above), he had not been able to apply for enforcement of the partial judgment and seek reinstatement.

On 8 December 2004 the Supreme Court (Vrhovni sud Republike Hrvatske) quashed the second-instance judgment in part and upheld it in part. In particular, it quashed the second-instance judgment in the part dismissing the applicant’s claim for salary arrears for the period between 1 March 1991 and 29 December 1996 (that is, for HRK 76,477.7, together with the accrued statutory default interest) and in that part remitted the case to the first-instance court. However, it upheld the second-instance judgment in the part dismissing the applicant’s claim for salary arrears for the period between 29 December 1996 and 1 October 1997 (that is, for HRK 33,748.42, together with the accrued statutory default interest). The relevant part of that judgment reads as follows:

“In dismissing the plaintiff’s claim for payment of salary arrears for the period between 1 March 1991 and 29 December 1996 [the County Court] misapplied the substantive law.

In the proceedings it was established that the defendant’s decision on the termination of the plaintiff’s employment ... had been annulled by the final partial judgment of the Vukovar Municipal Court of 15 October 1996, [whereby] the defendant had [also] been ordered to reinstate the plaintiff ...

It was [further] established that the [partial] judgment in question had become final on 29 November 1996, and that the plaintiff had not instituted enforcement proceedings for reinstatement within the thirty-day time-limit laid down in section 238 of the Enforcement Act.

Given that the [partial] judgment in question is final, the plaintiff is entitled to the rights he would have acquired had the annulled decision never been rendered. Therefore, the defendant has to pay the plaintiff the salary arrears ... as if the unlawful decision on dismissal had never existed.

Since the lower courts erred in law, the factual background was not properly established. The appeal on points of law is therefore allowed [in part] and the impugned judgment quashed in the part whereby the plaintiff’s claim for salary arrears for the period between 1 March 1991 and 29 December 1996 was dismissed. In that part the case is remitted to the first-instance court.

As regards the [part of the contested] judgment whereby the plaintiff’s claim for salary arrears for the period after 29 December 1996 was dismissed, it is to be noted that the lower courts correctly applied the substantive law in dismissing the plaintiff’s claim as unfounded. In particular, the plaintiff failed to institute enforcement proceedings for reinstatement within the strict thirty-day time-limit set forth in section 238 of the Enforcement Act ... It follows that the plaintiff did not work from 29 December 1996 onwards owing to his own omission. He is therefore not entitled to salary arrears for that period.

For these reasons the appeal on points of law has to be dismissed ... in so far as it contests that part of the impugned judgment ...”

On 8 December 2004 the applicant lodged a constitutional complaint against the Supreme Court’s judgment, alleging a violation of his constitutional right to a fair hearing. In so doing he repeated the argument raised in his appeal on points of law.

On 20 November 2006 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint, serving its decision on the applicant’s representative on 29 November 2006. The relevant part of that decision reads as follows:

The constitutional complaint is unfounded.

As regards the complainant’s argument that he could not have obtained a certificate of finality and thus observed [the statutory time-limit laid down in] section 238 of the Enforcement Act, the Constitutional Court finds ...

... that this [argument] cannot be raised for the first time in a constitutional complaint. Rather, it should have been raised in proceedings before the ordinary courts.

Moreover, the complainant’s submissions suggest that he never instituted enforcement proceedings for reinstatement, but only unsuccessfully contacted the defendant on several occasions requesting to be returned to work. The complainant therefore lost the right to salary arrears from 29 December 1996 onwards owing to his own failure to undertake the procedural steps required by section 238 of the Enforcement Act ...”

Meanwhile, in the resumed proceedings following the part of the Supreme Court’s decision of 8 December 2004 remitting the case (see paragraph 19 above), by a judgment of 27 January 2006 the Vukovar Municipal Court ordered the Borovo Municipality to pay the applicant salary arrears for the period between 1 March 1991 and 29 December 1996.

By a judgment of 13 July 2007 the Vukovar County Court dismissed an appeal by the defendant and upheld the first-instance judgment.


András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicants, Mr Audrius Lazauskas and Mr Darius Lazauskas, are Lithuanian nationals who were born in 1970 and 1966 respectively and live in Panevėžys, Lithuania and Vicar, Spain. They are represented before the Court by Mr S. Zabita, a lawyer practising in Vilnius.

The applicants are brothers. After their mother’s death in 2006, they requested a notary to issue them with a document confirming their right to inherit their late mother’s property. They were issued with the document on 17 July 2006. The document stated that they had the right to inherit the money that their mother had deposited in several banks. On 17 November 2006 a bailiff drew up a factual circumstances statement record (faktinių aplinkybių konstatavimo protokolas) which indicated that 1,043,970 Lithuanian litai (LTL, approximately 302,354 euros (EUR)) had been found in a safe in a bank. On the basis of this document, on 22 November 2006 the applicants were issued with another document that stated that they had inherited LTL 1,043,970 in cash that had been found in a safe in a bank.

In 2006 a pre-trial investigation was instituted in order to determine the origin of the money found in that safe. On 21 November 2006 the prosecutor decided to restrict the applicants’ property rights to the money found in the safe and to the money in the deposit accounts.

On 22 November 2006 the Panevėžys District Court authorised a search to be conducted in the apartment of the applicants’ mother; the search was performed on 27 November 2006. The first applicant was present during the search and did not have any objections to it; he signed the search report.

The national tax authority was informed about the pre-trial investigation and started its own inspection. On 15 June 2007 it determined that no documents confirming the origin of the money in the safe existed. The national tax authority calculated the personal income tax on the money found in the safe; together with late-payment interest, it amounted to LTL 320,533 (approximately EUR 92,833).

On 19 July 2007 the Panevėžys Regional Court decided to apply interim measures and seized the immovable property of the applicants’ mother, as well as LTL 320,533 of the money deposited in the bank. These measures were never complained against.

On 18 July 2007 the prosecutor and the national tax authority instituted court proceedings seeking to extend the time-limit for their lodging a complaint with the Panevėžys Regional Court about the applicants’ failure to pay the tax due and to oblige the applicants to pay LTL 320,533 in tax surcharges. The domestic law provided that creditors of a deceased person could declare their claims to that person’s heirs or to the court within three months of the date on which the inheritance of the heirs was declared. The prosecutor and the national tax authority stated that they had only found out about the unpaid tax when the national tax authority had inspected tax declarations dated 15 June 2007 submitted by the applicants’ mother. On 31 January 2008 the Panevėžys Regional Court extended the timelimit for lodging the above-mentioned complaint. The court also held that the claims against the deceased should automatically pass to the heirs and that they should become personally liable for the deceased’s debts. The court ruled that each applicant had to pay an equal part of the income tax (plus late-payment interest) in respect of the money belonging to their mother found in the safe of the bank.

On 16 December 2008 the Court of Appeal upheld the decision of the court of first instance.

On 6 May 2009 the Supreme Court held that the lower courts had not respected the principle of equality of arms because one applicant had lived in Spain and his request for the hearing of 16 December 2008 before the Court of Appeal to be postponed had been refused one day before the start of that hearing. Consequently, the case was remitted for re-examination by the Court of Appeal.

On 30 March 2010 the Court of Appeal held that income declarations submitted by the applicants’ mother had been examined and that no proof of the origin of the money in the safe had been found; therefore, her heirs were liable to pay income tax on their inheritance. The applicants asked the court to summon the manager of the bank where the money was found in the safe, but this request was refused. The court considered that the manager had no knowledge about the contents of the safe and that to hear him would have been excessive and unnecessary. The applicants also, without providing any details, complained that the lowerinstance court had been biased as it had been discussed in the media that one of the applicants had allegedly been a member of an organised criminal group. However, the Court of Appeal stated that there was no evidence that discussion of that information in the media had influenced the decisions of the domestic courts; moreover, the applicant had not provided any details regarding that alleged bias. The applicants lodged a cassation appeal with the Supreme Court, which dismissed it on 7 July 2010 as not raising important legal issues.

Article 92 of the Law on Tax Administration provides that tax surcharges that have not been paid by a deceased person shall be paid by his heirs, in accordance with the procedure laid down in the Civil Code.

Article 5.50 § 1 of the Civil Code provides that acceptance of an inheritance may not be partial or subject to conditions or exceptions. Article 5.50 § 3 and Article 5.60 § 1 provide that heirs must either accept their inheritance or renounce it within three months of the day on which the inheritance procedure commences. Article 5.63 § 1 provides that the creditors of a deceased person shall have the right, within three months of the day of the opening of succession, to make claims against the heirs who have accepted the succession or the executor of the will or administrator of the inheritance, or to bring an action in respect of the inheritable property. Article 5.63 § 4 provides that the court may extend the time-limit specified in § 1 of this Article, where the time-limit was missed for important reasons and the time lapse from the opening of the inheritance does not exceed three years.

Article 5.52 of the Civil Code at the material time provided that if an estate was accepted by several heirs, all those heirs were to be liable for the debts of the deceased to the extent of their entire respective property.

The relevant parts of Article 145 of the Code of Criminal Procedure provide that in cases where there are grounds for assuming that there are, on particular premises or in any other place or in the possession of some person, instruments used in a crime, tangible objects and valuables obtained through criminal activity, or items or documents that might be relevant for the investigation of a crime, a pre-trial investigator or a prosecutor may conduct a search in order to locate and seize them. Such a search is carried out on the basis of a reasoned approval issued by a pre-trial investigation judge. This approval must specify what objects are to be searched for. In cases of utmost urgency, a search may be carried out with the authorisation of a pre-trial investigation officer or a prosecutor; however, in such a case approval of the legitimacy of the search in question must be obtained from a pre-trial investigation judge within three days of the time at which the search was conducted. The search must be carried out in the presence of the owner, tenant, or manager of the flat, house or any other premises in which the search is being conducted, or an adult member of their family or a close relative. Article 149 of the Code of Criminal procedure provides that an officer has to announce the authorisation to conduct the search and to give one copy of that authorisation to the person whose premises are being searched. Only objects relevant to the investigation can be taken, and all of the objects and documents found have to be shown to those participating in the search and be entered in the record of the search.

Article 6 § 1 of the Law on Income Tax at the material time provided that the income tax could amount to 15 or 33 per cent.

Summary of the Supreme Administrative Court of 21 September 2011, compiling case-law related with tax legislation (Lietuvos vyriausiojo administracinio teismo praktikos, taikant mokesčių administravimą reglamentuojančias teisės normas, apibendrinimas), provides that in respect of some violations of tax laws criminal or administrative responsibility may arise. However, the duty to pay taxes and related matters are regulated by tax laws; therefore, the laws on criminal or administrative responsibility are not applicable.

Summary of the Supreme Administrative Court of 7 March 2012, compiling case-law related with tax legislation, provides that late-payment interest is intended firstly to compensate the State for financial losses that arise when taxpayers do not pay their taxes in on time.

The Supreme Court has noted that the courts, when deciding whether to extend the time-limit specified in Article 5.63 § 1 of the Civil Code, have to assess why the time-limit has been missed, and to adopt a procedural decision on the extension of the time-limit (for example, decision of 14 April 2014 (no. 3K-7-18/2014)). The Supreme Court has also noted that the courts, when deciding on whether to extend the time-limit, have to assess not only the objective circumstances, but also other circumstances of legal importance (for example, decision of 15 June 2007 (no. 3K3258/2007)). The assessment of the important reasons is done by the court examining the case on a case-by-case basis (for example, decision of the Supreme Court of 30 October 2006 (no. 3K-3-546/2006)).


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The applicant was born in 1972 and resides in Sakarya.

The applicant is a Russian citizen of Chechen origin. He left his country in 1993 and arrived in Turkey, where he was granted a residence permit. He claimed that in view of the ongoing armed conflict in his country of origin, he would face extrajudicial killing, imprisonment or death by torture if he were to be deported or extradited there.

On 9 May 2010, following an order issued by the Bakırköy public prosecutor, the police arrested the applicant at Istanbul Atatürk International Airport on suspicion of illegal entry into Turkey with a false passport.

At 8.15 a.m. on 10 May 2010 the applicant was questioned by the police at the airport. He was subsequently detained at the airport police facility for three days without any judicial order to that effect. He submitted that he had been kept in an overcrowded room.

On 12 May 2010 the police took the applicant to the Kumkapı Removal Centre for Foreigners (“the Kumkapı Removal Centre”) pending his deportation.

The applicant alleged that he had been detained in unhygienic, unhealthy and overcrowded conditions at the Kumkapı Removal Centre.

On 29 September 2010 the applicant’s lawyer lodged a complaint with the Istanbul public prosecutor’s office against police officers from the foreigners’ department of the Istanbul police headquarters alleging that he had been unlawfully detained by State officials. He also complained about the conditions of detention at the Kumkapı Removal Centre, particularly overcrowding, insufficient ventilation and poor hygiene.

On 30 September and 4 October 2010 the applicant’s lawyer filed petitions with the Ministry of the Interior and the Istanbul governor’s office requesting the applicant’s immediate release, claiming that his detention was unlawful.

On 4 October 2010 the applicant’s lawyer also applied to the Istanbul Magistrates’ Court for the applicant’s release, challenging the lawfulness of his detention.

On 13 October 2010 the police released the applicant from the Kumkapı Removal Centre on condition that he applied for the renewal of his residence permit.

On 6 December 2010 the Istanbul governor’s office decided not to examine the applicant’s complaint regarding his detention.

On 10 January 2011 the applicant’s lawyer appealed against that decision. He pointed out, inter alia, that on 19 October 2010 he had requested to be provided with the content of the applicant’s file and that on 8 November 2010 he had been given only a limited number of documents. He submitted that some documents had not been provided as they had been classified as “confidential” and that such practice by the police was not prescribed by law.

On 15 March 2011 the Istanbul Regional Administrative Court quashed the decision, holding that the governor’s office had to decide on whether authorisation should be granted for the prosecution of police officers at the Kumkapı Removal Centre.

On an unspecified date the Istanbul governor’s office decided not to authorise the prosecution of the police officers. Subsequently, on 13 September 2011 the Istanbul public prosecutor decided to terminate the investigation opened at the applicant’s request. In his decision the public prosecutor noted that the applicant had been banned from entering Turkey and that he had been apprehended with a false passport. He further noted that the applicant had not been imprisoned but remanded in custody pending his deportation.