Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions)

András Sajó;Boštjan Zalar;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1956 and lives in Ljubljana.

On 8 October 1992 the applicant acquired a share in L.E., a limited liability company based in Ljubljana. His name was entered in the court register of legal entities (hereinafter “the court register”) and he became one of nine equal registered members of the company, each holding an 11.11% share. The share capital of L.E. stood at 2,995,250 Slovenian tolars (SIT) (12,498.96 euros (EUR)).

Two of the founding members withdrew from company L.E. at the beginning of 1993. On 2 February 1993 the applicant, in addition to being a member, was also employed by company L.E. as head of its IT department. In addition, he provided assistance to the finance director.

On 19 February 1993 two key members and managers of company L.E. died in a car accident and two others were seriously injured. As a result, the company’s business operations could not be carried out and the company sustained a large financial loss. Moreover, its management was seriously undermined and during the course of 1993 all members except the applicant and another person withdrew from the company’s management board. Following those events, the applicant first assumed the role of acting director of company L.E. on 29 April 1993, and then the role of managing director on 23 February 1995. In that capacity he acted as the company’s representative.

Meanwhile, on 24 August 1993, the Railway Company of Slovenia (Slovenske železnice) had applied for an enforcement order against L.E. based on an authentic document for unpaid transport services. L.E. challenged the enforcement order and the parties were directed to settle the issue in contentious proceedings. The Railway Company lodged a civil action, claiming the payment of three sums totalling approximately SIT 5,000,000 (EUR 20,000).

In 1995, L.E. was converted into a limited liability company in accordance with section 580 of the Companies Act, which required companies falling under its jurisdiction to increase their share capital and to align their operations with the provisions of the Act (see paragraph 34 below). However, at the time of the conversion the company was no longer liquid or solvent.

On 6 May 1996 the applicant stepped down as managing director of L.E. following a decision of the general meeting of the company. The members failed to appoint a new managing director and henceforth the company existed without any management. The applicant’s resignation from the post of managing director was not entered in the court register of legal entities (hereinafter “the court register”).

On 19 June 1997 the members of company L.E. decided at its general meeting to apply for bankruptcy on account of the company’s insolvency. L.E. filed a bankruptcy petition with the competent court, but it was rejected as the company had failed to make the required advance payment to cover costs and expenses of the bankruptcy proceedings in the amount of SIT 150,000 (EUR 626). The members established that they could not incur the costs of bankruptcy and thus decided to wait for the courts to liquidate the company proprio motu, in accordance with the then applicable legislation, namely, the Compulsory Composition, Bankruptcy and Winding-Up Act as amended, which entered into force on 1 July 1997. The amendment to the Act authorised the courts to initiate bankruptcy proceedings of their own motion in certain specified circumstances (see paragraph 34 below).

On 31 July 1997 the applicant stopped working for company L.E. Moreover, by the end of 2000, another two members of the company had died.

In the civil proceedings initiated by the Railway Company against L.E. the applicant was summoned to appear at a hearing to be held on 22 November 2000. As he was unable to attend the hearing, he made written submissions explaining that the company had not been solvent for a number of years. On 22 November 2000 the District Court of Ljubljana rendered a judgment ordering L.E. to pay the Railway Company the three sums claimed.

Meanwhile, on 1 July 1999 the Compulsory Composition, Bankruptcy and Winding up Act was again amended, inter alia, to repeal the provisions on bankruptcy proprio motu. Moreover, on 23 July 1999 the Financial Operations of Companies Act (hereinafter “the FOCA”) entered into force. It introduced a measure decided proprio motu whereby insolvent and/or inactive companies were struck off from the court register without winding up. Thus those companies could be dissolved without the prior procedure of disposing of their assets and repaying – to the extent possible – their creditors. However, in order to ensure that creditors of struck-off companies were protected, the FOCA provided that the members of those companies would assume joint and several liability for the former companies’ debts.

On the basis of a notification from the Agency for Public Legal Records and Related Services that company L.E. had not performed any transactions through its bank account in a period of twelve consecutive months, on 19 January 2001 the Ljubljana District Court, acting in its capacity as the registry court, initiated proceedings to strike off the company from the court register.

On that day, the decision to initiate strike-off proceedings was entered in the court register and an unsuccessful attempt was made to serve it on the company at its registered office. The document was sent to the address of the company, but since no representative of the company was there to receive it, a delivery slip was left in its mailbox, informing the company that the relevant correspondence could be collected at the post office. On 12 February 2001 the document was returned to the registry court with the information that the addressee had failed to collect it. The registry court then served it by posting it on its notice board, as provided for by the Court Register of Legal Entities Act. According to the applicant, company L.E. had ceased to operate at the address of its registered office already in 1997 and had not been present at those or any other premises since. Moreover, there were no mailboxes at the office building at issue and all mail would have been left at the reception desk.

No objection was made to the decision to initiate strike-off proceedings either by company L.E. or by its members. Consequently, on 11 May 2001 the registry court issued a decision to strike off company L.E. from the court register. The decision was published in the Official Gazette on 30 May 2001. The registry court also attempted to serve the decision on company L.E. by sending it to the company’s address, but like the previous document it was returned on 4 June 2001 with the information that the addressee had failed to collect it. Again, the decision was posted on the registry court’s notice board. Neither company L.E. nor any of its members, who were entitled to lodge an appeal against the strike-off decision, appealed against the decision, so on 17 August 2001 it became final.

On 25 September 2001 company L.E. was struck off from the court register and thus ceased to exist. Notification of the strike-off was published in the Official Gazette on 6 February 2002.

The applicant stated that he had become aware that L.E. had been struck off from the court register on 22 December 2004, when an enforcement order was served on him for seizure of his property.

Meanwhile, based on the judgment ordering L.E. to pay the Railway Company approximately EUR 20,000 (see paragraph 9 above), on 5 April 2002 the creditor lodged an application for enforcement with the Ljubljana Local Court against seven members of the company.

On 5 June 2002 the Ljubljana Local Court granted the creditor an enforcement order to seize the applicant’s personal possessions, which was later expanded to include his salary.

On 29 December 2004 the applicant lodged an objection to the enforcement order, arguing that the local court had failed to establish his actual role in company L.E. and to acknowledge his status of an “inactive member” (see paragraphs 48-49 below), which would have exonerated him from liability for the company’s debts. He maintained that the creditor’s claim against the company had arisen before he had joined it, and that he had only become involved in the management of the company because the two members who had previously performed that role had died. Moreover, the applicant was of the view that the onus rested on the creditor to establish that he had been an active member of the company, and that the matter should be examined in contentious civil proceedings. Lastly, he applied for a stay of enforcement.

On 12 March 2005 the applicant’s objection was dismissed. The Local Court found that the onus of proving his inactive status was on the applicant, and that he had failed to prove that he had not been an active member of L.E. The Local Court established that with his 11.11% share in the company, the applicant had enjoyed the rights of a minority member, and furthermore, he had been employed by the company and actively involved in its management since April 1993. In his capacity as acting director and later managing director, he had been authorised to act on behalf of the company. Moreover, even after the applicant had resigned as managing director, he had still been active in the operations of the company and had also signed the bankruptcy petition. The Local Court further dismissed the applicant’s request for a stay of enforcement, as he had failed to demonstrate that the enforcement would have caused him irreparable or serious damage. The applicant appealed against that decision, reiterating the arguments he had raised in the objection to the enforcement order.

On 6 May 2005 the applicant attended a hearing with regard to an objection to the enforcement order raised by D.P., another member of company L.E.

On 9 February 2006 the Higher Court of Ljubljana dismissed the applicant’s appeal on essentially the same grounds as the first-instance court, and the enforcement order thus became final. The court noted, inter alia, that the Constitutional Court had found the measure of “lifting the corporate veil” under the applicable Financial Operations of Companies Act to be in accordance with the principle of separation of a company’s assets from those of its member, and thus consistent with the Constitution. The Higher Court considered it irrelevant whether the applicant had become a member of L.E. before or after the creditor’s claim had arisen. Having joined the company, he had assumed its assets as well as its liabilities, and moreover, he had had the rights of a minority member. The Higher Court placed considerable emphasis on the fact that the applicant had been actively involved in the management of the company. It explained that the reasons for lifting the corporate veil under the FOCA were not identical to those provided for in the Companies Act. The FOCA established a non-rebuttable presumption that members of inactive companies intended to have the companies dissolved and, to that end, made it clear that they assumed joint and several liability for their outstanding debts (see paragraph 41 below).

On 5 May 2006 the applicant lodged two constitutional complaints before the Constitutional Court, one concerning the strike-off proceedings and the other the enforcement proceedings.

On 31 January 2007 the Constitutional Court rejected the applicant’s complaint regarding the strike-off proceedings. The decision was served on the applicant on 5 February 2007. The court observed that the applicant lacked legal interest in challenging the decision of the registry court, as company L.E. had already been struck off from the court register. Therefore, even a positive outcome of the constitutional complaint could not improve the applicant’s legal position. On 9 July 2007 the Constitutional Court rejected also the complaint regarding the enforcement proceedings, finding that the applicant’s human rights had manifestly not been violated. Reiterating that only active members of struck-off companies could be held liable for the companies’ debts, the Constitutional Court found that the lower courts had correctly established that the applicant’s active involvement in the management of company L.E. could not exempt him from personal liability for the latter’s debts.

In 2010 the enforcement order against the applicant’s salary was executed and part of each of the applicant’s monthly salaries was seized to pay off his debt. On 23 September 2011 the applicant reached an out-of-court settlement with the Railway Company and paid the agreed amount, and the application for enforcement against him was withdrawn. The proceedings against the applicant were terminated on 28 September 2011. In total, the applicant paid EUR 32,795 to his creditor.


Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant, Mr Petru Popovici, is a Moldovan national, who was born in 1962 and lives in Chișinău. He was represented before the Court by Mr R. Zadoinov, a lawyer practising in Chisinau.

The Moldovan Government (“the Government”) were represented by their Agent, Mr L. Apostol.

In 2000 and 2001 the applicant and a group of ten other persons were accused of being members of a criminal gang and of having committed numerous offences, including ten murders and thirteen attempted murders. The applicant was arrested and placed in detention on 12 November 2001.

On 7 October 2003 the Chişinău Court of Appeal acquitted the applicant of all the charges for lack of evidence and ordered his release from custody.

On 1 March 2004, in the applicant’s absence, a panel of three judges of the Supreme Court of Justice examined an appeal lodged by the Prosecutor General’s Office against the judgment of the Court of Appeal, quashed the judgment, convicted the applicant and sentenced him to life imprisonment.

The applicant complained to the Court and, on 27 November 2007, the Court found, inter alia, that his right to a fair trial had been breached on the grounds that the Supreme Court of Justice had convicted him without making a direct assessment of evidence given by the applicant in person (see Popovici v. Moldova, nos. 289/04 and 41194/04, § 72, 27 November 2007).

As a result of the Court’s judgment, the applicant lodged an extraordinary appeal against the judgment of the Supreme Court of 1 March 2004 seeking its quashing and a fresh examination of the appeal against the judgment of the Chişinău Court of Appeal of 7 October 2003. The Prosecutor General’s Office did not object.

On 30 June 2008 the Plenary Supreme Court of Justice examined the extraordinary appeal lodged by the applicant, quashed both the judgment of 1 March 2004 and that of the Court of Appeal of 7 October 2003 and ordered a fresh examination of the case. The Supreme Court also ordered the applicant’s remand in custody for an undefined period of time without there being a request by the Prosecutor General’s Office.

After the communication of the case to the Government, the Court became aware of the fact that on 17 November 2008 the Supreme Court of Justice had examined an extraordinary appeal lodged by the applicant against its judgment of 30 June 2008 and had upheld it. The Supreme Court considered unlawful the quashing in that judgment of the decision of the Court of Appeal of 7 October 2003 and the decision to remand the applicant in custody, and reversed those parts of the judgment.


Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant company, Lanschützer GmbH, is a limited liability company based in Graz. It is represented before the Court by Mrs C. Lanschützer, a lawyer practising in Graz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs.

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

On an unspecified date the applicant company applied, at that time under its previous name, Edelweis Rundfunk GmbH, for a broadcasting licence in Vienna. However, the licence was awarded to another company, the S.R. Company. The applicant company appealed.

On 18 June 2007 the Federal Communications Panel (Bundeskommunikationssenat – “the FCP”) dismissed the applicant company’s appeal.

Afterwards, on 9 August 2007, the applicant company lodged a complaint with the Constitutional Court and requested that suspensive effect be granted to their complaint. It was signed by two of its business managers.

On 10 August 2007 the applicant company sent a letter to the S.R. Company - transmitting a copy of its complaint against the FCP’s decision of 18 June 2007 - proposing to withdraw the complaint if it received payment on its business bank account of 150,000 euros (EUR), an amount which should partially cover the losses sustained by the applicant company because they had not been awarded the licence. The applicant company pointed out that its complaint to the Constitutional Court had not been signed by a lawyer and would be returned in order for that procedural defect to be remedied. Thus, before the complaint was resubmitted by a lawyer the S.R. Company would have the opportunity to obtain the applicant company’s withdrawal from the proceedings by paying the above-mentioned amount.

On 13 August 2007 the S.R. Company’s lawyer informed the Constitutional Court of the applicant company’s letter and enclosed a copy of that letter.

By a letter of 23 August 2007 the Constitutional Court ordered the applicant company to remedy the procedural defects of its complaint. It noted that the complaint did not bear the signature of a lawyer, which was contrary to the statutory requirement, and observed that the applicant company, as could be seen from its letter to the S.R. Company, had been perfectly aware of that requirement. The Constitutional Court ordered the applicant company to remedy that defect by resubmitting its complaint through a lawyer within one week and, within the same time-limit, to clarify its letter of 10 August 2007, a copy of which was attached.

On 29 August 2007 the applicant company replied to the Constitutional Court’s order of 23 August 2007. It submitted that its letter of 10 August 2007 to the S.R. Company had merely been intended to find a viable solution for all parties. In its view, the S.R. Company’s application for a broadcasting licence had had fundamental defects which would have led to the licence being revoked and would have caused an untenable financial risk for the S.R. Company. The amount requested had been justified because, for the applicant company, the time spent waiting for the decision of the Constitutional Court would have resulted in a standstill and loss of opportunities.

On 30 August 2007 the applicant company’s lawyer and member of the Styria Bar, Mr F.P.-P., submitted the same, unsigned, complaint again. Attached to the complaint there was a letter signed by the latter, saying that he represented the applicant company.

On 3 October 2007 the Constitutional Court rejected the applicant company’s complaint as inadmissible for formal reasons. It noted that Mr F.P.-P. had resubmitted the original complaint with a covering letter bearing his signature, along with the statement that he represented the applicant company, but the complaint itself did not bear his official stamp and signature. The Constitutional Court concluded that the applicant company had failed to comply with its order.

Article 144 of the Federal Constitution Act (Bundes-Verfassungsgesetz) reads as follows:

“(1) The Constitutional Court decides on rulings by administrative authorities including independent administrative panels, in so far as the complainant alleges an infringement by the ruling of a constitutionally guaranteed right or the infringement of personal rights caused by an illegal ordinance, an illegal pronouncement on the republication of a law (state treaty), an unconstitutional law, or an unlawful treaty. The complaint can only be lodged after all other legal remedies have been exhausted.

(2) The Constitutional Court can decide to decline to deal with a complaint before an oral hearing if it has no reasonable prospect of success or if the decision cannot be expected to clarify a constitutional problem. It must not decline to deal with a complaint if, under Article 133, the case at hand falls outside the jurisdiction of the Administrative Court.

(3) If the Constitutional Court finds that a right within the meaning of sub-section 1 above has not been infringed by the challenged ruling, and if, under Article 133, the case at hand does not ,fall outside the jurisdiction of the Administrative Court, the Court shall, on the request of the applicant, transfer the complaint to the Administrative Court for a decision as to whether the applicant has suffered an infringement of any other right as a result of the ruling of the administrative authority. This also applies by analogy in the case of decisions in accordance with sub-section 2 above.”

In the report of the Constitutional Committee (Verfassungsausschussbericht) of the National Council (Nationalrat) on the draft amendment of the Federal Constitutional Act 1983 it is stated that if the Constitutional Court decides to decline to deal with a complaint it is dispensed from examining the admissibility of that complaint (AB 766 BlgNR XV. GP, p. 2). In such a case the Constitutional Court is therefore relieved from examining whether all formal criteria, such as time-limits and representation by a lawyer have been complied with. This is also the Constitutional Court’s case-law (see, for example, B 1306/88 27 September 1988; B 880/89, 9 June 1992; B 1850/08, 2 December 2008).

Section 17 of the Constitutional Court Act, in so far as relevant, reads as follows:

“(2) ... complaints must be submitted by an authorised lawyer ...”

Section 18 of the Constitutional Court Act reads as follows:

“Submissions which do not comply with the requirements of section 15 and section 17, or other requirements of form laid down in the present Act, shall be returned by the rapporteur to the complainant for the procedural defects to be remedied within a certain period of time, if it can be expected that the defects are likely to be remedied.”

Section 19 of the Constitutional Court Act, in so far as relevant, reads as follows:

“(1) ... the judgments of the Constitutional Court are given after a public oral hearing to which the complainant, the opposing party and any third parties are summoned.

(2) The judgments are pronounced and delivered on behalf of the Republic.

(3) Upon an application by the rapporteur, the following decision may be taken in a non-public session, without any further proceedings and without conducting a hearing:

The refusal to deal with a complaint, under Article 144(2) and Article 144a(2) of the Constitutional Court Act.

The rejection of a submission:

a) for a clear lack of jurisdiction of the Constitutional Court;

b) for failure to meet a statutory deadline;

c) for a non-remedied deficiency in the formal requirements;

d) in the case of final and enforceable matters, and

e) in the absence of a right to sue or be sued.

The discontinuation of proceedings when an application is withdrawn or deprived of its cause of action (section 86 - Klaglosstellung).”

According to the case-law of the Constitutional Court, the requirement of section 17(2) of the Constitutional Court Act that a complaint must be submitted by an authorised lawyer means that a lawyer representing a complainant must submit his or her own complaint signed by him or her (see, inter alia, Collection of Decisions of the Constitutional Court (VfSLG) 17759/2006).


András Sajó;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Ms Cerasela Tanța Ioviţă, is a Romanian national who was born in 1980 and lives in Drobeta-Turnu Severin. She was represented before the Court by Ms R. Cercel, a lawyer practising in Drobeta-Turnu Severin.

The Romanian Government (“the Government”) were represented by their Co-Agent, Ms I. Cambrea, and then by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs.

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

On 15 October 1999 the applicant moved to Italy, where she lawfully took up residence with her husband. She was lawfully employed there and received a fixed monthly income.

On 21 December 2003 the applicant and her husband travelled to Romania for the winter holidays. As they attempted to cross the Romanian border she was stopped and questioned by the Mehedinți border police.

On the same date the border police produced a report attesting that they had withheld the applicant’s passport (dovadă de reținere) as documentary evidence because two of its pages had been replaced.

On the same date the border police opened a criminal investigation against her for forgery of official documents and use of forged documents.

On 6 January 2004 the Gorj Records Office (Serviciul de Evidență Informatizată a Persoanei al Județului Gorj) informed the applicant that, in accordance with Article 14 § 1e of Government Ordinance no. 65/1997 on Romanian passports, her right to use her passport had been suspended until 21 December 2007 following her return from Italy, based on a readmission agreement between the two countries. They also informed her that she had thirty days to challenge the decision before the Passport Service attached to the Romanian Ministry of Internal Affairs (“the Passport Service”).

On 6 February 2004 the applicant lodged a challenge to the decision with the Passport Service.

On 26 February 2004 the Drobeta-Turnu Severin prosecutor’s office informed the applicant that the criminal investigation opened against her had been discontinued and that the case had been referred back to the Mehedinți border police in order for them to identify the potential perpetrators. The prosecutor’s office held that it could not be established that the two pages of the passport had been replaced by the applicant. Moreover, not all the elements of an offence were present as there was no evidence that she knew that her passport was forged.

On 27 February 2004 the Passport Service dismissed the applicant’s challenge of 6 February 2004 and informed her that following the opening of a criminal investigation against her it had been decided that the measure taken by the Gorj Records Office in accordance with Article 14 § 1e of Government Ordinance no. 65/1997 would be maintained. The Passport Service also informed her that her situation would be re-examined after the criminal investigation had ended.

On 9 March 2004 the Passport Service allowed the applicant’s challenge of 6 February 2004 and informed her that the measure taken against her had been cancelled.

On an unspecified date the Gorj Passport Service issued a new passport in the applicant’s name at her request.

She returned to Italy on 5 April 2004.

On 12 May 2004 the applicant brought civil proceedings against the Romanian State, seeking 208,000 Romanian Lei (RON – approximately 51,400 euros (EUR)) in pecuniary and non-pecuniary damages for the restriction on her freedom of movement. She relied on Article 504 § 2 of the Romanian Code of Criminal Procedure (“the CCP”). She argued, inter alia, that the measure taken against her had been unlawful and had prevented her from returning to Italy for four months. As a result, she had been forced to stay in Romania alone, separated from her husband who had had to return to Italy in order not to lose his job. Furthermore, she had lost her salary rights for the four months in question. In addition, she and her husband had been pressured by the border police to admit that she had replaced the two pages of her passport, as she had been held (ținută) for an entire night at the customs office without being allowed to contact her parents in order for them to instruct a legal representative on her behalf.

On 1 July 2004 the Gorj County Court dismissed the applicant’s action. It held that she had not been convicted by a final judgment. Furthermore, the measure to place her in the custody of the border police had been necessary given that the border guards had noticed that two pages of her passport had been replaced and she herself had admitted as much. In addition, the applicant’s right to use her passport had been suspended following her return from Italy on the basis of the readmission agreement between the two countries and Article 14 § 1e of Government Ordinance no. 65/1997. Consequently, the conditions of Article 504 § 2 of the CCP had not been met in her case.

The applicant appealed against the judgment.

On 14 March 2005 the applicant asked the Craiova Court of Appeal to order the Gorj Records Office to disclose the act on which the decision to take the measure against her had been based.

On the same date the court dismissed the request on the grounds that the evidence in question was not relevant to the case.

It also dismissed the applicant’s appeal against the judgment of 1 July 2004. It held that the suspension of her right to use her passport had been necessary pending the outcome of the criminal investigation opened against her, as it was uncontested that two pages of her passport had been replaced. The applicant had to bear the natural consequences of the finding of such an irregularity, namely the criminal investigation. The passport was one of a person’s most important identity documents and was used mainly abroad. Each passport holder was therefore responsible for preserving the document’s integrity. The measure taken against the applicant had thus been necessary because a person could not use a document which had been guaranteed by the State and which no longer met the lawful conditions it had had from the moment it had been issued. The measure taken against the applicant seemed even more justified, given that she had initially admitted altering the passport and had not proven that she had been coerced to admit that.

The applicant lodged an appeal on points of law (recurs) against the judgment. She argued, inter alia, that the lower courts’ decision to dismiss her request for additional evidence had been unjust. The evidence in question was relevant to the case since the reasons the Gorj Records Office had relied on in order to take the measure against her had no legal basis as, as could be seen from the evidence, she had been lawfully residing and working in Italy. Furthermore, there was no distinction between her situation and that of arrest or detention, given that she had been prevented from leaving the country even though she had been living and working in Italy with her husband. Consequently, the domestic courts had to find a way to compensate her for the damage sustained following the arbitrary measure taken against her by the authorities.

On 7 December 2006 the High Court of Cassation and Justice allowed the applicant’Article 504 of the CCP had been met. In spite of the available contradictory evidence, the lower courts had not clarified what had been the legal basis of the measure taken against the applicant. In particular, they had not established whether the measure had been taken in the context of the criminal proceedings opened against her – it was well known that in such cases a passport was material evidence – or had been taken based on either Article 14 § 1e of Government Ordinance no. 65/1997 or on Government Ordinance no. 105/2001 on Romania’s borders by the head of the customs clearance point the applicant had crossed following the interruption of her travels. Moreover, the lower courts had not established the lawful review procedure for the measure imposed on the applicant or whether she had challenged the measure lawfully. Furthermore, they had not established the grounds for cancelling the measure taken against her or for issuing her with a new passport. If the measure had been taken against the applicant within the context of the criminal proceedings, the lower courts had to establish whether the conditions set out in Article 504 of the CCP had been met and whether the State could be held liable.

On 7 October 2008 the Gorj County Court allowed the applicant’s action and awarded her RON 8,000 (approximately EUR 2,040) in pecuniary damages and RON 50,000 (approximately EUR 12,700) in nonpecuniary damages. It noted that following the reopening of the case and in line with the High Court of Cassation and Justice’s instructions the parties had been allowed to adduce written and testimonial evidence to the file. In this connection, the court noted that the judicial and nonjudicial authorities had been asked to submit the documents concerning the criminal investigation opened against the applicant and those justifying the measure taken against her. It also noted that it had heard two witness testimonies.

The court established, based on the available evidence, that on 21 December 2003 the Romanian border authorities had placed the applicant in custody because two of the pages of her passport had been replaced and because she had been pressured by the representatives of the border police to admit that she had replaced them. The applicant had subsequently withdrawn her statement because she had not actually known how the pages had come to be replaced. A criminal investigation had been opened against her. Consequently, at the request of the Mehedinți border police, the Gorj Records Office had decided to suspend the applicant’s right to use her passport and restricted her freedom of movement for four years on the basis of Government Ordinance no. 65/1997. The criminal investigation against the applicant had subsequently been discontinued and therefore the Passport Service attached to the Romanian Ministry of Internal Affairs had cancelled the measure taken against her and she had been able to return to Italy.

The court also held that, given the criminal investigation opened against her and the measure taken, the applicant had sustained pecuniary and nonpecuniary damage since she had been unable to return to work in Italy and had been forced to remain in Romania alone and separated from her husband. The applicant had clearly proven the pecuniary damage sustained by her and, under the joint provisions of Article 998 of the Romanian Civil Code, Article 504 § 1 of the CCP and Article 52 § 3 of the Romanian Constitution, the State was liable for the non-pecuniary damage caused by legal errors.

Lastly, the court held that a person’s freedom of movement was guaranteed both by Article 25 of the Romanian Constitution and Article 2 of Protocol No. 4 to the Convention. Consequently, it could be restricted only in circumstances provided for in the domestic legislation and if the restrictive measure was necessary and proportionate to the aim pursued.

The State appealed against the judgment.

On 24 March 2009 the Craiova Court of Appeal allowed the State’s appeal, quashed the judgment of 7 October 2008 and dismissed the applicant’s action. It held that in 1998 the Romanian Constitutional Court had established that Article 504 § 1 of the CCP was constitutional only in so far as the situations in which the State’s financial liability could be engaged for damage caused by legal errors during criminal proceedings was not limited to the circumstances given in that provision. Subsequently, in 2001 the Constitutional Court held that Article 504 § 2 of the CCP was constitutional only in so far as a person’s right to be compensated if he or she had been acquitted or the criminal investigation opened against him or her had been discontinued after a preventive measure had been taken against him or her were not restricted to the circumstances given in Article 504 § 1.

The court also held that under Article 136 of the CCP, the preventive measures that could justify proceedings based on Article 504 were placement in police custody, detention pending trial and the obligation not to leave town, all measures ordered during criminal proceedings. The right provided by Article 504 of the CCP fell within the area of rights guaranteed by Article 5 of the Convention.

Furthermore, the court held that according to the available evidence, none of the aforementioned preventive measures which could justify proceedings under Article 504 had been taken against the applicant during the criminal investigation initiated against her. No measures restricting her liberty for the purposes of Articles 136 and 504 of the CCP taken together with Article 5 of the Convention had been taken against her.

The only measure that had been taken had been one restricting her freedom of movement, as guaranteed by Article 2 of Protocol No. 4 to the Convention. It had been taken based on Article 14 § 1e of Government Ordinance no. 65/1997 and she had failed to challenge the measure as permitted by Article 15 of the same ordinance.

The court noted that the applicant had admitted during the preliminary stages of the criminal investigation that she had replaced the two pages of her passport. After she had been informed of the criminal charges against her and of her right to a legal representative, she had intentionally or very negligently obstructed or had attempted to obstruct the investigation. Consequently, the provisions of Article 504 § 3 of the CCP were applicable in the instant case. However, the provisions of Article 5 of the Convention could not be applied to her case, given that there had been a reasonable suspicion that she had committed an offence.

The court lastly held that the applicant’s right to freedom of movement was not absolute. The right could be restricted in certain circumstances provided for by law – those provided for by Government Ordinance no. 65/1997 were proportionate to the aim pursued, necessary, accessible and foreseeable.

Consequently, the State’s potential civil liability in tort could not be engaged as the provisions of Article 5 of the Convention and Article 2 of Protocol No. 4 to the Convention had not been breached.

The applicant appealed on points of law against the judgment.

By a final judgment of 4 November 2009 the High Court of Cassation and Justice (Civil Division) dismissed the applicant’s appeal on points of law. It held that her freedom of movement had not been restricted as a result of the preventive measure taken during the criminal investigation opened against her by the judicial authorities, but as a result of the measure to suspend her right to use her passport. That measure had been ordered by the police because the passport used by her to cross the border had presented elements of forgery. That fact was undisputed.

The court also held that the measure taken against the applicant was provided for by law. Furthermore, it had been justified given that the document had presented elements of forgery and she had been responsible for the integrity of the document. In addition, it had been necessary in order to ensure public safety within the meaning of Article 2 § 3 of Protocol No. 4 to the Convention.

The court also held that under Article 15 of Government Ordinance no. 65/1997, the applicant could have challenged the measure before the domestic non-judicial authorities and then before the administrative court. She had successfully challenged the measure before the Passport Service and a new passport had been issued for her.

The appellate court’s decision had thus been lawful given that the applicant had not proven that the domestic authorities had taken the measure against her unjustly and unlawfully, and it had not been proven that a legal error for the purposes of Article 504 of the CCP had been committed during the criminal investigation.

The applicant submitted an article from an unidentified newspaper which had reported on a criminal investigation initiated by the National Anticorruption Prosecutor’s Office against a border guard for allegedly receiving a bribe from the applicant in order to help her with her passport problems. The article referred to a statement by the applicant, in which she claimed that the border guard who had checked her passport had suggested she admit to the unlawful act because the problem was not serious and could be solved. The applicant also claimed that once she had written the confession, the border guard had told her that she should pay some money for the situation to remain uncomplicated. The applicant also stated that even though she and her husband had paid EUR 100, the border guard had been displeased with the amount and had started searching their luggage and unlawfully confiscating champagne, sweets and coffee. She stated that she had realised afterwards that her problems would not be solved and that she had become the subject of a criminal investigation.

The article also quoted a local senior police officer who had stated that the applicant’s allegation of bribe taking was being investigated by the relevant authorities and that the investigation into the incident had been referred to the National Anticorruption Prosecutor’s Office.

The relevant provisions of Government Ordinance no. 65/1997 on Romanian passports, in force at the material time, read as follows:

“Passports ... are issued by the Passport Service of the Romanian Ministry of Internal Affairs or its subordinate local offices and are kept (se păstrează) by their holders.”

“(1) A Romanian citizen may be temporarily refused a passport or, if the passport has already been issued, it may be withdrawn or the right to use suspended where:

(a) there is a reasonable suspicion that he has committed an offence punishable by more than two years’ imprisonment and that he intends to use the passport to abscond. The measure shall be taken at the request of the police for a maximum period of seven days;

(b) is charged with a criminal offence or is indicted during criminal proceedings and the magistrate has ordered that a measure not to leave town or the country is to be taken against him, in order to ensure the proper administration of justice, regardless of the stage of the proceedings;

(e) has committed acts abroad which could affect national security, the preservation of public order, the protection of another person’s health, morals or fundamental rights and freedoms, which have been established by a court judgment or are the subject of a criminal investigation. The acts committed abroad shall be proven by judicial acts recognised by Romanian law. In such cases, the measure shall be taken by the ... local Records Office for a period between one and five years, to be determined in proportion to the seriousness of the act and its consequences. The same measure may also be taken against a person ... who has been returned on the basis of a readmission agreement between Romania and other States ...;

(2) In the circumstances provided for by paragraph 1 (a), (b) ... the measure shall only be taken ... on the basis of a written request by criminal investigation bodies, the courts ...”

“(1) ... the decision to suspend the right to use a passport shall be notified in writing to the person concerned within fifteen days of the date the measure was taken, including the reasons for it.

(2) ... the person concerned may challenge the measure before the body hierarchically superior to the one that has taken it, within thirty days of the date of notification.

(3) The challenge shall be examined within thirty days of the date of registration and, if the person is dissatisfied with the outcome, [he or she] may bring proceedings before the competent administrative court.”

“The following acts amount to contraventions of the passport scheme:

(d) the loss, damage or destruction of a passport or other travel document, owing to the fault of the holder;

(f) making unlawful changes or additions (adăugări) to a passport or other travel document, if the act has not been committed in conditions that, under the law, amount to an offence.”

“The contraventions mentioned in Article 18 ... are punishable by a fine ...”

Article 504 of the former Romanian Code of Criminal Procedure, in force at the material time, reads as follows:

“(1) Anyone who has been convicted by a final decision is entitled to compensation from the State for any loss or damage sustained where after a retrial it is held in a judgment against which no appeal lies that he did not commit the offence in question or that the offence did not take place.

(2) Anyone against whom a preventive measure has been taken, and in whose favour a decision to discontinue proceedings or of acquittal has been given for the reasons listed in the preceding paragraph, also enjoys a right to compensation for the damage sustained.

(3) The person who intentionally or out of serious negligence has obstructed or has attempted to obstruct the investigation during the criminal investigation or trial, does not enjoy a right to compensation for the damage sustained.

Article 52 § 3 of the Romanian Constitution provides, inter alia, that the State is liable for damage caused as a result of legal errors. Its liability may also be established in accordance with the law.

Articles 18 and 19 of Law no. 554/2004 on administrative litigation provide, inter alia, that when examining applications the administrative courts must also decide any claims for pecuniary and non-pecuniary damage lodged by the applicants. If the person asks for the administrative act to be cancelled without claiming damages at the same time, the statutory limitation period for seeking damages runs from the moment he or she became aware or ought to have become aware of the seriousness of the damage suffered.

The relevant provisions of the former Romanian Civil Code concerning civil liability for tort, in particular Articles 998 and 999, are described in the case of Elena Cojocaru v. Romania (no. 74114/12, § 70, 22 March 2016).

The Government submitted seventeen final judgments (no. 8540 of 26 November 2004, no. 8851 of 9 December 2004, no. 984 of 17 February 2005, no. 1187 of 24 February 2005, no. 1574 of 10 March 2005, no. 2096 of 30 March 2005, no. 2128 of 31 March 2005, no. 2297 of 6 April 2005, no. 2434 of 12 April 2005, no. 3055 of 16 May 2005, no. 3138 of 18 May 2005, no. 5147 of 25 October 2005, no. 5679 of 25 November 2005, no. 361 of 2 February 2006, no. 734 of 7 March 2006, no. 1783 of 17 May 2006 and no. 3911 of 10 November 2006) delivered by the Administrative Division of the High Court of Cassation and Justice concerning proceedings brought by various applicants against the Passport Service, seeking to have cancelled decisions to suspend or maintain the suspension of their right to use their passports taken on the basis of Article 14 § 1 of Government Ordinance no. 65/1997. Referring to the provisions of the relevant domestic legislation and the particular circumstances of each case, the High Court of Cassation and Justice allowed the applicants’ actions and either cancelled the decisions in full or in part. In its assessment of the applications the court held, inter alia, that the prosecutor’s office could no longer ask for the applicants’ right to be suspended pending the outcome of criminal proceedings once the case files had been referred to the courts. Furthermore, Article 14 § 1e of Government Ordinance no. 65/1997 did not impose a duty on the authorities to take the measure in question, but rather provided them with the option to do so.

The Government also submitted two final judgments (no. 4985 of 18 October 2005 and no. 2946 of 19 September 2006) delivered by the Administrative Division of the High Court of Cassation and Justice concerning proceedings brought by two applicants against the Passport Service seeking to have cancelled the suspension of their right to use their passports taken on the basis of Article 14 § 1 of Government Ordinance no. 65/1997 as well as compensation for the and non-pecuniary damage sustained following the decision. In judgment no. 4985 of 18 October 2005, the court allowed the applicant’s action in part, cancelled the suspension and awarded him pecuniary damage. It held, inter alia, that the decision taken against the applicant had been unlawful and had deprived the applicant of his income. However, the applicant had not proven that he had suffered nonpecuniary damage and a simple cancellation of the administrative decision could not lead to the conclusion that he had suffered psychological trauma. In judgment no. 2946 of 19 September 2006, the court dismissed the applicant’s action. It held, inter alia, that as the decision had been taken within the lawful exercise of the domestic authorities’ right of assessment and within the limits of their powers of decision, it could not establish that the applicant’s rights had been violated. As the decisions had been lawful, no link could be established between the allegedly unlawful decision and the damage sustained.

The Government also submitted a final judgment (no. 3131 of 20 June 2007) delivered by the Administrative Division of the High Court of Cassation and Justice concerning proceedings brought by an applicant against the Passport Service seeking compensation for pecuniary and nonpecuniary damage sustained following a decision to suspend his right to use his passport which had been previously cancelled by the domestic courts. The applicant relied on Article 19 of Law no. 554/2004 and on Articles 998 and 999 of the Romanian Civil Code. The court dismissed the applicant’s action. It held, inter alia, that there had been no direct link between the damage sustained by the applicant and the measure taken by the domestic authorities as the damage, in particular the loss of income, had arisen following a decision of the foreign authorities to dismiss his application for asylum.


CASE OF BAŞTOVOI v. THE REPUBLIC OF MOLDOVA

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 - Degrading treatment;Prohibition of torture)

The applicant was born in 1959 and is currently detained in Chișinău.

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

On 23 December 2013 the applicant was arrested and charged with embezzlement and organising the attempted murder of two businessmen. Since that date he has been detained in Prison no. 13.

According to the applicant, he has been detained in a cell measuring 6 square metres with five other inmates, which left very little space for each detainee. Due to overcrowding, detainees had to share beds. He was not provided with bedding or a pillow. There was no sink or running water in the cell. The food was of poor quality and inedible. The squat toilet was not separated from the rest of the cell and gave off a foul odour. There was also a lack of daylight and poor ventilation.

The applicant asserted that he had been detained with inmates diagnosed with tuberculosis, HIV/AIDS and other infectious diseases. As a result of being held in inhuman conditions of detention, he had been ill with mycosis, gastritis and a respiratory infection. He was not provided with any medical assistance and was forbidden from receiving herbal medicine from his wife.

The applicant complained of inhuman conditions of detention to the Chișinău prosecutor’s office and Court of Appeal. On 14 April 2014 the Prisons Department replied that after examining his allegations, it had not found any violation of domestic law.

The Government submitted that the applicant’s cell (no. 130) measured 10 square metres and was designed to accommodate four people. All detainees had their own beds. The cell was equipped with a sink and running water. The applicant was provided with bedding, hygiene products tailored to his needs and hot food three times a day, in accordance with Government Decision no. 609 concerning the minimum daily food requirements for detainees. The Government contended that the cell in question had not accommodated people with infectious diseases. They added that the applicant had been provided with medical assistance and submitted evidence of various medical check-ups.


Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano

The applicant, Mr X is a San Marinese national, who was born in 1963 and lives in Fiorentino. He was represented before the Court by Mr F. Cocco, a lawyer practising in Rimini, Italy.

On an unspecified date the applicant, a police superintendent, lodged a criminal complaint for defamation against a newspaper and a journalist, as well as GF the elected chief of the administrative district of Fiorentino (Capitano di Castello) (who had given an interview to the newspaper), in connection with press articles which were published on 20, 23 and 25 February 2012. The articles claimed that, inter alia, a policeman (a title presumably traceable to the applicant) was fraudulently obtaining benefits from the State, including the use of a State apartment, despite it being needed by other persons.

Subsequent to the articles, the administrative body in question removed the apartment from the applicant’s possession. According to the applicant, the articles questioned his morality – they cast doubts over whether rent and service charges had been paid, hypothesised as to whether other benefits were also being enjoyed by the applicant, and posed questions regarding the possibility of the applicant’s involvement in other minor fraud infractions, even though, according to the applicant, such infractions were common in lease contracts. The last article also focused on the applicant’s profession and, in his view, was written in a manner intended to bring him into disrepute. Moreover, it was not based on the truth in so far as no substantiation was given to the allegations that the applicant was not wanted for the post of commander of the police brigade; or that that there had been friction between him and the citizens of Fiorentino; or that some persons had in fact complained about the applicant, as had been claimed by GF in the interview.

Prior to this last article and following the first two articles the applicant had written to various media outlets with a statement in his defence clarifying his situation. He also clarified the situation regarding the apartment that was the subject of the articles, which was in his possession by title of lease. The entirety of the applicant’s statement was published, together with comments by the journalist who authored the press articles, in the third above-mentioned article.

Criminal proceedings no.175/2012 were instituted against the abovementioned persons and testimony was heard from the applicant, the journalist and other witnesses.

On 31 January 2013 the investigating judge (Commissario della Legge, hereinafter “the Commissario”) requested that criminal proceedings no.175/2012 be archived. The Commissario recalled the importance of freedom of expression, noting that this was not however unlimited and could be curtailed in view of the dignity, honour and reputation of other persons. Having regard to the principles derived from the right to freedom of expression, the articles complained of were not offensive, and thus could not be subject to criminal liability.

The Commissario considered that neither the title (“A Fiorentino abita l’ultimo giapponese” – “The last Japanese living in Fiorentino”) nor the content of the first article contained any criminally relevant statement. The applicant had confirmed that, as mentioned in the beginning of the article, he had lived in an apartment provided by the State situated in the cultural centre (centro sociale) of Fiorentino. The Fiorentino authorities (through GF) had also confirmed that an application had been lodged to regain possession of the property (as mentioned in the central part of the article). As to the questions posed in the last part of the article (namely, concerning the rent of the apartment and the fact that a family was living in a cultural centre built for other purposes, and so forth), the subject matter was one of public interest and the formulation of the questions appeared to be correct and did not exceed the limits of the exercise of journalistic functions. The same was valid for the second article (called “Appartamenti dello Stato, per i cittadini bisogna vederci chiaro” – “Clarification needed for the citizens on State-owned apartments”) which reconstructed the historical context in the eighties, explaining the existence of an anti-drug unit and an anti-drug squad, and reiterated the content of the previous article. Nor was the third article, which contained an interview with GF, as well as the applicant’s letter and a comment by the journalist and a third person, subject to any criminal liability. The article had not related to “eviction” as mentioned by the applicant, but correctly to the authorities’ decision to have the apartment reassigned to someone else, a procedure which did not require the intervention of the applicant. Similarly the applicant’s confused challenge to a reference to an anti-drug dog could not be upheld since the comment – to the effect that it had made sense for the applicant to benefit from the use of the apartment at the time when a canine squad existed, but no longer now that the squad had been disbanded – reflected reality and was a reserved statement. Lastly, the adjective sbroccato (a person who lost it), which was today a term of general use (sdoganato) could not be considered defamatory, as the term was not offensive or intimidating. Any other considerations put forward by the applicant appeared to refer to disagreements within the police department, which even if they were true do not appear to be relevant to the present case.

The Commissario considered that as the information was true and in the general interest, the articles fell within the legitimate exercise of the right to information. Moreover, the applicant had been given a right of reply, and a faithful reproduction of his statement had been published in its entirety.

The Commissario considered that a balance had to be reached between both constitutionally guaranteed rights, specifically, on the one hand that of the honour, reputation and dignity of the individual, and on the other that of freedom of expression and of the press to impart information and for persons to receive information. “Justification” was the crux of the right to report news, thus abstract “defamatory” statements made within the requisite limits were licit and part and parcel of freedom of expression as long as they did not exceed the requisite limits and thus amount to abuse. The balance between the right to respect for the dignity, honour and privacy of the individual and that of freedom of expression was not subject to precise definition, even more so given that that freedom of expression may take various forms – including rapidly developing trends or changes in language – which remain in any event subjective. Indeed, according to domestic case-law, it was a priori impossible to dictate the general limits between what was licit and what was not.

In the light of such principles, the Commissario considered that in the present case the articles had been justified in order to impart information on a matter of public interest, specifically in reference to a policeman, the use of public property and the involvement of the authorities. They had not been intended to offend anyone’s honour. The content of the articles did not overstep the limits of free speech, and the sole fact that the articles may have inconvenienced the applicant did not suffice to make them amount to a criminal act of defamation (the sole matter subject to the court’s jurisdiction).

The Attorney General agreed and on 14 February 2013 the Commissario ordered that criminal proceedings no.175/2012 be archived on the basis of the above-mentioned reasoning, noting that there were no elements to issue a bill of indictment.

The applicant challenged that decision (opposizione) on 21 March 2013.

By a decision of 3 May 2013 notified on 27 May 2013 the judge of criminal appeals ordered that criminal proceedings no.175/2012 be archived, and rejected the applicant’s objection as manifestly ill-founded. The judge noted that the applicant had reiterated his arguments without referring to the reasons given by the first-instance court, and ignoring the fact that the allegations made by the accused had been substantiated by documentary evidence. Further, the judge stated that the three impugned articles had not offended the applicant’s reputation. They questioned the use of State apartments without attributing to the applicant any particular untoward behaviour. They contained whole truths and, although the articles were written as a form of criticism, the applicant had had a right – which he made use of – to defend himself in the press. Lastly, GF had provided a copy of his correspondence with the authorities which related to the use of the apartment in question and in respect of which he had given an interview which had then been published. Thus, his actions had not been a gratuitous accusation but a supply of correct information concerning the applicant’s activity and functions.


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

The applicants, Mr Ivica Brkić, Ms Davorka Tkalić and Ms Željka Vidić, live in Zadar. The first and the second applicants were born in 1972 and the third applicant in 1968. They were represented by Mr Z. Zrilić, a lawyer practising in Zadar.

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

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

On an unspecified date the applicants brought a civil action in the Zadar Municipal Court for damages against the State caused by the killing of their mother, K.-J.B., born in 1935. They alleged that their mother had been killed by firearms in front of her house in Z.G. village on 11 March 1992 when that village had been occupied by Serb paramilitary forces. She had been killed solely because of her Croat ethnicity. Therefore, her death had been motivated by ethnic hatred and had had no connection to any military or belligerent activity, which was also evident from the fact that she had not had arms on her person nor could she have put up any resistance. On the same day four other persons of Croat ethnicity had been killed in the same village. Such an act had amounted to an act of terrorism under the Liability Act (see below).

On 5 January 2007 the claim was dismissed. The Municipal Court held that about a third of the territory of the State had been occupied and that the civilians killed on that territory had been mostly of Croat ethnicity, as had the applicants’ mother. It further held that the applicants’ mother had been killed by one S.M., a member of the Serb paramilitary forces during the armed conflict between these forces and the Croatian Army. Therefore, the killing of the applicants’ mother was war damage within the meaning of the Assessment of War Damage Act, for which the Republic of Croatia was not liable. As to that conclusion, the relevant part of the judgment reads as follows:

“It is not disputed between the parties that on 11 March 1992, the day of the killing of K.-J.B., the village of Z.G. was part of the occupied [territory of the State] ... The decision on investigation in respect of the accused S.M. ... shows that K.-J.B. was one of the victims of the same perpetrator, killed on 11 March 1992 in Z.G. during an exchange of fire between Serb paramilitary forces and the Yugoslav Army on the one side and the armed forces of the Republic of Croatia on the other side ...

This court holds that section 2(2) of the Assessment of War Damage Act is applicable in the case at issue ... The killing of K.-J.B., a civilian of Croat ethnicity, in Z.G., which was at the time a part of the occupied [territory of the State], by a member of a paramilitary group – the so-called territorial defence force of the so-called Republic of Serb Krajina whose paramilitary force operated within the so-called Yugoslav Army – is direct life-threatening damage under section 2(2) of the Assessment of War Damage Act, and from the claimant’s position it concerns non-pecuniary damage on account of the death of a parent. Therefore, the damage in the specific case was indisputably caused by the enemy, illegal groups or allies of such groups[, and that] damage was caused in the period [provided in] section 1 of that Act, as K.-J.B. was killed on 11 March 1992.”

After concluding that the killing of the applicants’ mother was war damage, the Municipal Court also held that it had been a terrorist act for which the Croatian State was not liable as it had had no control over the occupied territory of the State. The relevant part of the judgment reads as follows:

“The crucial aspect which is missing and is a condition for the liability of the Republic of Croatia as a State for the damage in this case is its sovereignty. The defendant had no sovereignty over Z.G., which was a part of the broader, temporarily occupied territory of Croatia at that time, during the Homeland War. It did not have control over the territory and inhabitants of that territory, the basic elements of State sovereignty. Thus, as said above, the act of damage ... amounts to an act of terror, that is to say an act of violence committed for political motives with the aim of causing fear, terror and the feeling of personal insecurity in citizens. However, the terrorist act of the killing of the applicants’ mother by a member of the occupying enemy Serb paramilitary forces was done in occupied Croatian territory, that is to say in the territory where the Republic of Croatia had no sovereignty before the act of damage occurred, on the day when it occurred, or for years afterwards. Given the time (during a state of war), the territory (occupied Croatian territory), and all the circumstances in which the damage occurred, this court concludes that [the act of damage] in the case at issue amounts to a terrorist act which in these circumstances could not have been prevented by the State or its bodies. The defendant did not contribute to such acts of terror or violence in any manner, but instead it attempted to prevent them by all legitimate means, including the defensive Homeland War, one of the aims of which was the liberation of the occupied Croatian territory in which, in the end, it succeeded.”

The applicants then lodged an appeal in which they argued that the Municipal Court had held contradictory views, stating that the killing of their mother was war damage for which the State was not liable and at the same time that it had been a terrorist act for which the State was not liable because it had had no control over the territory where the damage had occurred. The applicants asserted that the killing of their mother had been a terrorist act and that the State’s liability could not be excluded only because it had occurred in occupied territory. They argued that the legislation governing the State’s liability for terrorist acts provided that this liability was based on the principles of solidarity, equal distribution of the public burden and fair and prompt compensation, and that State liability existed irrespective of whether a perpetrator had been identified, criminally prosecuted or found guilty. In the applicants’ view, this implied that the State was liable for damage not because it had responsibility for it but as an act of social solidarity with victims of terrorist acts.

The first-instance judgment was upheld by the Zadar County Court on 10 September 2009, which endorsed the reasoning of the Zadar Municipal Court.

The applicants then lodged an appeal on points of law in which they reiterated their arguments from the appeal and pointed out that the appeal court had not addressed these arguments. On 12 April 2011 the Supreme Court upheld the lower courts’ judgments. The relevant part of the Supreme Court’s judgment reads:

“... even though the damage was caused by violence with terror as one of its essential elements, it does not amount to a terrorist act within the meaning of section 1 of the Liability Act, but was caused by belligerent activity of the enemy military or paramilitary forces with the aim of provoking fear in and displacement of the civilian population and has the characteristics of war damage for which the Republic of Croatia is not liable”

The applicants’ subsequent constitutional complaint was dismissed on 19 January 2012. The decision was served on the applicants on 21 February 2012.

The relevant part of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations of 23 July 2003 (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows:

“(1) This Act regulates liability for damage caused by acts of terrorism or other acts of violence committed with the aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ...

(2) A terrorist act within the meaning of this Act is especially an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.”

“The Republic of Croatia shall be liable for the damage referred to in section 1 of this Act on [the basis of] the principles of social solidarity, equal distribution of the public burden and fair and prompt compensation.”

“The obligation to compensate damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.”

“The victim shall have the right to compensation [in the form of damages] for damage resulting from death, bodily injury or impairment of health.”

The Liability Act (Croatian Army and Police) (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003) outlines the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. The relevant provisions read as follows:

“The present Act governs the liability of the Republic of Croatia for damage caused by members of the Croatian Armed Forces and the police force in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996.”

“The Republic of Croatia is liable under general rules governing liability for damage only in respect of damage defined in section 1 hereof which does not have the character of war-related damage.”

“(1) War-related damage within the meaning of this Act is, in particular:

– damage caused at the time when and in territory where military actions were carried out with any means of war ... (bombardment, shelling, machine-gun fire, explosions, mining, movement of troops and the like);

– damage resulting in direct and concrete military gains if, given the time and place where it occurred, it directly served military operations, and in particular:

(a) damage which was a direct consequence of any protective or planning measure which the competent military authorities carried out with the aim of removing or preventing an enemy attack;

(b) damage which was a direct consequence of protective or planning measures which the competent military authorities carried out in anticipation of an enemy action (work in fields, confiscation of movable property, occupation of real estate and the like);

(c) damage which was a direct consequence of measures taken with the aim of preventing the consequences of the damage described in subsection 1 of this section from spreading or of alleviating such consequences;

– damage which, having regard to its results and the specific time and place where it occurred, was directly caused by the state of war and is directly connected with military operations (direct consequences of war events in connection with unrest, turmoil, panic, evacuations and similar events [occurring] immediately after the military operations have been carried out).

(2) It is to be presumed that the damage caused by members of the Croatian Armed Forces and the police force in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996 is war-related damage, if it occurred at the time when and in territory where military combat actions took place, but the injured party may prove the opposite.”

The relevant part of that Act (Zakon o utvrđivanju ratne štete, Official Gazette nos. 61/1991 and 70/1991) reads:

“[This Act provides for] the setting up and the activities of the State, municipal and special commissions for the listing and assessment of war damage caused [in the territory] of the Republic of Croatia to its natural and legal persons, and in connection with enemy activities and military operations carried out against [the Republic of Croatia] in the period from 15 August 1990 until the termination [of the said activities].”

“War damage within the meaning of this Act, is pecuniary and non-pecuniary damage, direct and indirect damage, and in particular:

damage caused to bodily integrity, life and health of persons, freedom or dignity;

War damage, within the meaning of this Act, is damage caused by enemy, illegal forces, legal bodies of the Republic of Croatia, as well as allies of the said forces and bodies, when it was indirectly or directly caused in the period mentioned in section 1 of this Act.”

The Supreme Court has held that the Republic of Croatia was not liable for war-related damage caused by enemy forces on the occupied territories (for example in its judgments nos. Rev-90/09-2 of 9 June 2010; Rev-1199/08-2 of 2 June 2010; Rev-1264/08-2 of 17 March 2011; and Rev-848/10-2 of 19 June 2012). In the latter the Supreme Court endorsed findings of the lower courts that the killing of persons at the occupied territories amounted to war-related damage and added, in so far as relevant, the following:

“Even though the act giving rise to the plaintiffs’ claim for damages presents certain similarities with a terrorist act since [both] imply [an act of] violence, the act of damage [in the present case] differs significantly from terrorist acts in its features since it contains additional elements and amounts to war-related damage for which the defendant is not liable. This is because the damage did not occur in the territory under the de facto sovereignty of the Republic of Croatia but in the then occupied territory, where there was no possibility for lawful action by the bodies of the Republic of Croatia; this circumstance excludes the otherwise objective liability of the defendant. Furthermore, the act of damage in the present case was not carried out with the sole aim of seriously disturbing public order (this being the aim characteristic of an act of terror) but also involved the use of force, killing and expulsion of the civilian population on that territory with the aim of destroying the internal security and stability of the Republic of Croatia and preventing its lawful bodies from functioning.


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

Aleš Pejchal;Alvina Gyulumyan;András Sajó;Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Gilbert Guillaume;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mark Villiger;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant, Mr Sabah Jaloud, is an Iraqi national who was born in 1943 and lives in An-Nasiryah, Iraq. He is the father of the late Mr Azhar Sabah Jaloud, who died on 21 April 2004 at the age of twenty-nine.

On 21 April 2004, at around 2.12 a.m., an unknown car approached a vehicle checkpoint (VCP) named “B-13” on the main supply route “Jackson” north of the town of Ar Rumaytah, in the province of AlMuthanna, south-eastern Iraq. The car slowed down and turned. From inside the car shots were fired at the personnel guarding the VCP, all of them members of the Iraqi Civil Defence Corps (ICDC). The guards returned fire. No one was hit; the car drove off and disappeared into the night.

Called by the checkpoint commander, ICDC Sergeant Hussam Saad, a patrol of six Netherlands soldiers led by Lieutenant A. arrived on the scene at around 2.30 a.m.

Some fifteen minutes later a Mercedes car approached the VCP at speed. It hit one of several barrels which had been set out in the middle of the road to form the checkpoint, but continued to advance. Shots were fired at the car: Lieutenant A. fired 28 rounds from a Diemaco assault rifle; shots may also have been fired by one or more ICDC personnel armed with Kalashnikov AK-47 rifles (see paragraphs 21 and 49-52 below). At this point the driver stopped the car.

The applicant’s son, Mr Azhar Sabah Jaloud, was in the front passenger seat of the car. He had been hit in several places, including the chest. Netherlands soldiers removed him from the car and attempted to administer first aid. Despite this, Mr Azhar Sabah Jaloud died. He was declared dead one hour after the incident.

The body was subjected to X-ray examination. The radiographs show objects identified as metallic inside the chest and elsewhere.

An autopsy was performed by an Iraqi physician, who drew up a brief report in Arabic. Metal objects identifiable as bullet fragments were found in the body.

It was not determined by whom the bullet or bullets had been fired, nor from what weapon.

An official record by Sergeant First Class (wachtmeester 1e klasse) Schellingerhout of the Royal Military Constabulary (Koninklijke marechaussee), As-Samawah detachment, shows that a telephone call was received at 3.25 a.m. from the batallion operations room, reporting the shooting incident. A car had crashed into the VCP. Shots had been fired by Netherlands and Iraqi armed forces and the car’s passenger had been wounded. He had been taken to hospital. The Royal Military Constabulary was asked to investigate.

A seven-person Royal Military Constabulary duty group (piketgroep), accompanied by an interpreter, had left at 3.50 a.m. and arrived on the scene at around 4.50.a.m. Royal Military Constabulary Sergeants First Class Broekman and Van Laar had begun securing evidence at 5 a.m. Also at 5 a.m., the Royal Military Constabulary staff in The Hague and the public prosecutor of the Regional Court (rechtbank) of Arnhem were informed of the incident.

The body was seized by Royal Military Constabulary Warrant Officer (adjudant-onderofficier) Kortman at 7.30 a.m. and transported to the mobile hospital at Camp Smitty. At 11.45 a.m., after permission had been given in writing by a local court, the body was transported to the General Hospital in As-Samawah. The post-mortem examination was carried out in the absence of any police witness by an Iraqi physician.

The Mercedes car was seized at around 5.10 a.m. by Warrant Officer Kortman and later towed to Camp Smitty.

At around 7.50 a.m. Sergeant First Class Schellingerhout seized Sergeant Hussam Saad’s Kalashnikov AK-47 rifle; at around 11.55 a.m. he also seized Lieutenant A.’s Diemaco C7A1 rifle. Both weapons were later labelled and placed at the disposal of the Arnhem public prosecutor.

The following statements were submitted to the investigating and judicial authorities in the domestic proceedings.

On 21 April 2004, at around 5.05 a.m., Royal Military Constabulary Warrant Officer Mercx took a statement from the driver of the Mercedes car, Mr Dawoud Joad Kathim, with the aid of an interpreter. Mr Dawoud Joad Kathim admitted to having drunk two cans of beer, but no more, on the previous night, and did not consider himself to have been intoxicated. He stated that he had not noticed any checkpoint until it was too late to avoid hitting two barrels. It had been dark at the time, and there had been no lighting. To his complete surprise, his car had been fired at as he was driving through the checkpoint. His friend Mr Azhar Sabah Jaloud had been hit; Mr Dawoud Joad Kathim had heard him say that he was dying. He wished to submit a complaint because the checkpoint had not been clearly marked.

On 21 April 2004, at around 5.15 a.m., Royal Military Constabulary Sergeant First Class Weerdenburg took a statement from ICDC Sergeant Hussam Saad The latter stated that he had reported shooting from a car at around 2.10 a.m.; Lieutenant A. had arrived at approximately 2.30 a.m. Sergeant Hussam Saad had gone to look for spent cartridges with Lieutenant A., another Netherlands soldier and the interpreter. He had suddenly heard a bang and seen a car approaching from the direction of Ar Ruyaythah. The car had continued to move forward, despite being ordered to stop. He had then heard shooting from the left side of the road. He had not, however, fired any rounds himself.

Sergeant First Class Weerdenburg next questioned the other Iraqi soldiers, but they provided no pertinent information.

On 21 April 2004, at around 7 a.m., Royal Military Constabulary Sergeant Klinkenberg took a statement from Mr Walied Abd Al Hussain Madjied, an interpreter working with the ICDC. The interpreter had been accompanying Lieutenant A.’s patrol between two checkpoints. After arriving at VCP B1.3 and being told about the first shooting incident by ICDC Sergeant Hussam Saad, he had joined Lieutenant A. and others in the search for spent cartridges. He had suddenly heard the sound of barrels falling over, turned around and seen a car approaching. He had shouted “stop, stop, stop” but the car had driven on. Across the road from where he was standing, a Netherlands soldier had fired at the car. After the car stopped, he had assisted its occupants by providing interpretation. The passenger’s left arm had been covered in blood and the driver had smelled of alcohol.

On 21 April 2004, at around 9.30 a.m., Royal Military Constabulary Sergeant First Class Van Laar and Sergeant Klinkenberg took a statement from Infantry Sergeant (sergeant) Teunissen. Arriving at VCP B1.3 at 2 a.m., he had been given information by the ICDC sergeant. Together with his lieutenant, the ICDC sergeant and the interpreter, he had gone up the road to look for spent cartridges. At a distance of approximately 100 metres from the VCP hut, he had turned around, startled by a sound. He had seen a car drive into the VCP at speed; when the car had passed the VCP, he had heard shooting from the VCP. The four of them had dived for cover. When the car had reached their level, shots had been fired from across the road, where the lieutenant was positioned. He had shouted “Stop firing”, but that had not been heard. When the firing stopped, the car had also stopped. The passenger had been bleeding from the lower body and the left shoulder. Sergeant Teunissen and Private Finkelnberg had removed him from the car, laid him on the ground and bandaged his wounds. He and Lieutenant A. had attempted to resuscitate the passenger until told by the doctor that there was no longer any point.

On 21 April 2004, at around 11.15 a.m., Royal Military Constabulary Sergeants First Class Broekman and Van Laar heard Lieutenant A. under caution. Lieutenant A. stated that he was responsible for monitoring two vehicle checkpoints, one of which was VCP B1.3 on the Jackson road north of Ar-Rumaythah. After the first shooting incident had been reported, he had arrived at VCP B1.3 at around 2.30 a.m.; he had been intending to reconnoitre the area on foot, together with Sergeant Teunissen and the ICDC sergeant. At around 2.45 a.m. he had been startled by a noise. Looking behind him, he had seen two blazing car headlights approaching. Shots had then been fired from the direction of the car; on hearing them, he had dived for cover on the verge of the road. He had been convinced that shots were being fired from inside the car. When the car had reached his level, he had cocked his weapon; when it had just passed, he had started to shoot at its rear. He had fired 28 cartridges in aimed fire. He had been responding to the danger arising from his having been fired at first. He had fired the entire contents of a magazine, 28 rounds; this had taken approximately seven seconds. The passenger being wounded, he and Sergeant Teunissen had attempted to resuscitate him until help arrived. By that time there had been no pulse. Shortly afterwards, the company commander had arrived; Lieutenant A. had briefed him.

On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Warrant Officer Kortman and Sergeant First Class Broekman took a statement from Private Finkelnberg. At 2 a.m. on 21 April 2004 he had arrived with Lieutenant A. and Sergeant Teunissen, among others, at VCP B1.4, where the ICDC sergeant reported to Lieutenant A. that there had been a shooting incident at VCP B1.3. The patrol had therefore gone to that checkpoint, arriving at 2.30 a.m. Lieutenant A., Sergeant Teunissen, the ICDC sergeant and the interpreter had gone up the road towards Hamza to look for spent cartridges. A dark-coloured motorcar had approached at high speed and driven past him through the checkpoint, hitting some barrels in the road. Through his image intensifier he had seen Lieutenant A., to the left of the road, going for cover; he had then seen muzzle flashes from several weapons on the left side of the road and heard shots from that direction. The firing was in single shots. At a certain moment he had seen the car stop. While the shots were being fired, he had heard Sergeant Teunissen shout “Stop firing”. He had gone up to the vehicle and cut the passenger’s clothes loose. While Sergeant Teunissen administered first aid, he had searched the car for weapons. He had found an icebox containing an almost empty bottle of alcoholic drink. He had then joined Sergeant Teunissen and Lieutenant A. in their attempts to resuscitate the passenger until the latter was declared dead. He was critical of Lieutenant A. for firing while his own troops were on the opposite side of the road and for firing so many rounds, and also of the ICDC for firing in the general direction of their own personnel.

On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Sergeant Major (opperwachtmeester) Wolfs and Sergeant First Class Van Laar took a statement from Cavalry Sergeant (wachtmeester) Quist. On 21 April 2004 at around 2 a.m. he had been at VCP B1.4 with Lieutenant A. and the other members of his patrol unit, which had been led by Sergeant Teunissen. There had been shooting at VCP B1.3 and they had gone there. Upon arrival, he had noticed no ICDC personnel manning the checkpoint, but had seen a group of people to the left of the road opposite the hut. After Cavalry Sergeant Quist had parked his vehicle, Lieutenant A., Sergeant Teunissen, the interpreter Walied and the ICDC sergeant had walked off north to look for spent cartridges. At a certain point, he had seen a car approaching at high speed from Ar-Rumaythah; when the car reached the checkpoint, it had hit some of the barrels or rocks placed there. He had heard automatic gunfire from where the ICDC members were, which had then stopped. There had been further firing approximately 100 metres distant from him, but he could not tell who was firing up ahead. He did think that there had been firing from a plurality of weapons. He had seen the vehicle stop 50 metres away. He had made a situation report. He had seen Lieutenant A. and Sergeant Teunissen trying to resuscitate the victim.

On 23 April 2004, at around 3.35 p.m., Royal Military Constabulary Sergeant First Class Broekman and Warrant Officer Kortman took a second statement from Lieutenant A. The latter stated that the very last time he had seen the ICDC sergeant the latter had been at the checkpoint, fiddling (klungelen) with his AK-47 rifle. Lieutenant A. had told the sergeant not to point the rifle at him. On the subject of the firing incident, he stated that as far as he remembered he had probably lain on a flat part of the road; he had not fired from a standing position. He had performed mouth-to-mouth resuscitation on the wounded passenger of the car and remembered him tasting of alcohol. The ICDC deputy company commander had given him a list of names of the ICDC personnel who had fired their weapons and the corresponding numbers of cartridges, and had asked for replacement ammunition.

On 22 April 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Heijden examined the car seized by Warrant Officer Kortman the day before. It was a black Mercedes Benz 320 E AMG. It had black number plates with markings in Arabic script; these visibly covered white number plates bearing black letters in Latin script and numerals. The car had damage consistent with hitting foreign objects at speed. The rear window was shattered. Holes were found in the rear of the car, in the body on the right and left sides, and in the seats. Metal tips were found in various places; one, identified as a bullet fragment, had clearly passed through the passenger seat. The conclusion was that the car had been fired on from both the left and the right; from the left, with a weapon firing ammunition smaller than 6 mm calibre and, from the right, with a weapon firing ammunition larger than 6 mm calibre. The precise firing angles relative to the car could not, however, be determined.

On 9 May 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Klinkenberg took receipt of a CD-ROM containing X-rays of Azhar Sabah Jaloud’s body. These showed fragments of metal in the left chest cavity, the left hip and the left lower arm. The Xrays had been made by Warrant Officer Dalinga, X-ray technician at Camp Smitty, As-Samawah, Al-Muthanna province.

The file contains photocopies of the above-mentioned X-rays and of photographs. They are accompanied by descriptions, contained in an official report by Warrant Officer Kortman. The photographs include pictures of a road and a checkpoint area, some taken by daylight, some apparently taken at night. Several of the photographs show cartridges lying on the ground, including some described as 7x39mm (as fired by the Kalashnikov AK-47 rifle), both spent and live, and a quantity of spent cartridges stated to be 5.56x45mm (as fired by the Diemaco C7A1 rifle) in a pile close together. Others show a male body with wounds to an arm, the upper left quarter of the back and the right buttock. Further pictures show a dark-coloured Mercedes motorcar; details are included of holes in the bodywork and upholstery that could be bullet holes.

On 22 April 2004 ICDC Lieutenant Colonel Awadu Kareem Hadi, the commanding officer of 603 ICDC Battalion, sent a report from his batallion headquarters to the headquarters of the Iraqi police. It reads as follows (rough handwritten translation, from Arabic into English, submitted by the applicant):

“The details of the accident which is happened at date (20/04/2004) and information coming from the first batallion (Ar-Rumaytha) and the details are:

At the hour (21.05 [sic] after the midnight) from the date (20/04/2004) [sic] a car type (Mercedes) coming by high speed directed from (Al Hamza) to (Al Nassiriya) and when the car is reached to the location of the checkpoint does not stop and making a crash with the obstacles present in checkpoint and he was carelessness and the soldiers shouting on him and calling to stop and he is continued and does not stop and after that Dutch soldiers see that there is no way and shoot on him and then injured person ([Azhar Sabah Jaloud]) then he is died and he was sitting near the driver.

With our greetings

[signed] Lieutenant Colonel Awadu Kareem Hadi

A copy to / PJCC”

An official report by Royal Military Constabulary Warrant Officer Voorthuizen, dated 21 June 2004, states that on 2 June 2004 a document was received in Arabic, which, translated orally by an interpreter, was identified as a report by the Baghdad police. The report stated that three metal fragments had been examined in Baghdad at the request of the AlMuthanna police with a view to identifying the ammunition from which they had come and the weapon from which they had been fired; however, the provenance of the metal fragments could not be determined, as they were too few in number. A copy of a document in Arabic was attached to Warrant Officer Voorthuijzen’s report. It is not stated in whose custody the metal fragments had been left or where they were being stored.

On 21 April 2004 Mr Dawoud Joad Kathim, the driver of the Mercedes car, lodged a complaint with the Iraqi police against the troops who had fired at his car. It appears from the statement, as taken down in writing, that Mr Dawoud Joad Kathim was under the misapprehension that the foreign troops involved had been Polish rather than Netherlands. Mr Dawoud Joad Kathim also put on record that he had been told by the interpreter to say that all of the shots had been fired by the ICDC, whereas in fact he had not seen any shots fired by ICDC personnel.

After the Chamber’s relinquishment of jurisdiction to the Grand Chamber, the Government provided an official record of the following statements taken from the ICDC members. The following is a sworn translation subsequently submitted by the applicant:

“Name: A Saad Mossah

Weapon number: GL 5574

Ammunition: 4 X 30 cartridges

‘During the second incident I was lying in a position with all-round security. I saw that a car was travelling at high speed towards the checkpoint from the direction of Ar Rumaytha. I saw that it rammed into two drums by the checkpoint and simply continued going. My commander [ICDC Sergeant Hussam Saad] walked forwards together with the interpreter and two Dutch soldiers and then I heard a large number of shots fired. I myself did not fire any shots. I cannot tell you any more than this.’

Name Haider Shareef

Weapon number UE 0481 1984

Ammunition 4 Cartridge clips and 120 cartridges in total

‘1 cannot tell you anything about the first incident because I was asleep at the time in the watch hut.

During the second incident I was standing by the vehicle checkpoint and I saw a Mercedes Benz driving towards the checkpoint. I saw that the Mercedes Benz rammed into two oil drums and drove on in the direction of Hamsa. I heard the Dutch soldiers shouting stop, stop, and then I heard shots being fired. I saw nothing else because I was standing behind a hut on the opposite side to the watch hut.’


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

Erik Møse;Julia Laffranque;Khanlar Hajiyev

On 19 July 2010 the Supreme Court of the Chuvash Republic found the applicant guilty of corruption and an abuse of official powers and gave him a custodial sentence. The applicant appealed alleging, in particular, that he was innocent, that the prosecution had been unlawful and the trial court had applied the criminal law erroneously.

On 26 October 2010 the Supreme Court of Russia quashed the judgment on appeal and remitted it for a new hearing.

On 2 March 2011 the Supreme Court of the Chuvash Republic found the applicant guilty as charged before and sentenced him to five years’ imprisonment. The applicant lodged an appeal. He complained, among other matters, about erroneous interpretation of law, improper assessment of evidence by the courts, and an excessive severity of the penalty

On 23 May 2011 the Supreme Court of Russia upheld the judgment on appeal reducing the sentence to four years’ imprisonment.

Between 2 March and 16 June 2011 the applicant was held in remand prison IZ-21/1 in the Cheboksary Region. The facility was overcrowded. Thus, cell 39 measuring 23 sq. m was equipped with fourteen sleeping places and accommodated up to ten inmates.

The applicant submitted the following evidence in support of the above allegations: his complaints to the prison management and their reply and statements by three cellmates.