CASE OF LINDSTRAND PARTNERS ADVOKATBYRÅ AB v. SWEDEN

No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for correspondence;Respect for home;Article 8 - Right to respect for private and family life)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johan Hirschfeldt;Luis López Guerra;Pere Pastor Vilanova

From 20 January 2006 onwards the Tax Agency (Skatteverket) conducted audits of value-added tax, employers’ social security contributions (arbetsgivaravgifter) and income tax at the three Swedish companies Ergonia Sweden AB, SNS-LAN Trading AB (“SNS”) and Mouse Trapper Nordic AB. The audit covered the period June 2001 – June 2005. On 4 March 2008 the Tax Agency applied to the County Administrative Court (länsrätten) in Stockholm for permission to take coercive measures in respect of SNS under section 8 of the Act on Special Coercive Measures in Taxation Procedures (Lagen om särskilda tvångsåtgärder i beskattningsförfarandet, 1994:466 – hereafter “the Coercive Measures Act”), in particular the search and seizure of certain documents and other material.

The Tax Agency’s application contained detailed information on what it had been able to establish in regard to the above-mentioned companies during the audits. The Agency stated that it suspected that significant amounts of money had been withheld from Swedish taxation through irregular transactions between SNS and a Swiss company. According to the Agency, the latter company had been established solely in order to evade taxes on some of the business profits in the above-mentioned Swedish companies. While it was considered highly likely that the persons owning or having a decisive influence in the Swedish companies, including a Mr Toivo Jurik, were also running the Swiss company, it had proved impossible to obtain information on ownership and control of the latter company from the persons involved, who claimed that they had no knowledge of these matters. After Mr Jurik had been shown an extract of the Swiss company register, where he was listed as an executive, he had admitted that he and another person involved in the Swedish companies had been present at the establishment of the Swiss company but that he was listed as an executive only for formal reasons. The other person mentioned had since stated that he would not assist the Tax Agency any further in the audit. The Agency therefore considered that it could not continue to investigate the ownership issue and the accuracy of certain business costs unless it obtained access to documents that showed the Swiss company’s relationship to the Swedish companies and their owners and leaders as well as the Swiss company’s role in the business activities. In the Agency’s view, there were no alternative means of review.

Not considering it appropriate to order SNS to provide the required documents, the Tax Agency further requested that the application for coercive measures should not be communicated to the company and that it should not be notified of the court’s decision before the measures had been undertaken, as there was a risk that the documents to be searched and seized could be withheld or destroyed.

As SNS had recently been liquidated and had not had its own business premises, the requested search should be made at two addresses connected to Mr Jurik, who had been responsible for the bookkeeping in all three audited companies and was also representing SNS in its contacts with the Tax Agency, and therefore could be expected to be in possession of the required documentation. Thus, the search should start at the registered premises of the parent company, Draupner Universal AB (“Draupner”), at the address P.O. Hallmans gata 15, Stockholm. This was a flat which, in addition to being owned by Draupner and serving as its registered address, was rented by Mr Jurik and used as a pied-à-terre. Draupner was owned by Mr Jurik’s children but was represented and run by Mr Jurik himself. If the necessary documents were not found at the first address, the search should continue at the office of Mr Jurik at the applicant law firm (whose name at the time was Hagenfeldt Advokatbyrå AB), at the address Döbelnsgatan 15, Stockholm.

By a judgment of 10 March 2008 the County Administrative Court granted the Tax Agency’s application and ordered that the judgment was immediately enforceable. Agreeing with the Tax Agency, the court considered that there was a substantial risk that documents could be withheld, corrupted or destroyed and that, having regard to Mr Jurik’s connection with SNS and the two addresses in question, there was good reason to assume that the documents relevant to the audit of SNS were to be found at those addresses. While a search and seizure undertaken at a location different from the audited party’s business premises involved a particular encroachment on rights of integrity, the court found that, in the case at hand, the importance of the measures outweighed the intrusion caused.

The search of the two designated premises took place on 14 March 2008 and was conducted by officials of the Enforcement Authority (kronofogdemyndigheten) in Stockholm and several auditors of the Tax Agency. The flat was searched first. Present were Mr Carl Lindstrand, a lawyer of the applicant law firm, representing Mr Jurik (who was at the time in Switzerland), and – towards the end of the search – Mr Roland Möller, who, as an associate of the law firm, had been the liquidator of SNS and who was also the designated person to be served writs on behalf of Draupner in Sweden. According to the minutes of the proceedings, drawn up by one of the officers of the Enforcement Authority, the persons present were reminded of the possibility to request exemption of documents.

During the search of the flat, material of interest that belonged to Draupner was found. Since Draupner had been involved in transactions connected with the activities of SNS, a decision to audit the company was taken on site by the audit manager of the Tax Agency. She also took an interim decision to use coercive measures against Draupner, in accordance with section 15 of the Coercive Measures Act. It was decided to search for and seize material relating to the audit of Draupner both at the flat and at the applicant law firm. In the latter respect, the decision referred to the fact that not only Mr Jurik but also Mr Möller had offices there.

The need for an immediate decision and enforcement was explained by the substantial risk of corruption of material. The decision referred to sections 7-9 of the Coercive Measures Act and to the County Administrative Court’s judgment of 10 March 2008.

At the flat 19 files with accounting material, an external hard disk drive and a torn document were seized and the hard disk drive of a computer as well as a USB memory stick were copied (mirrored). This was specified in a report drawn up and submitted to the parties concerned the same day by the Enforcement Authority.

The premises of the applicant law firm – that is, the offices of Mr Jurik and Mr Möller – were searched thereafter, again in the presence of Mr Lindstrand and Mr Möller. Attending was also a legal representative whom the applicant had appointed. The issue of possible exemption of documents was discussed and the representative was given a list of the officers attending. Cupboards, shelves and computers in the two offices were searched and a safe was opened by Mr Möller, all monitored by the applicant’s representative. However, no material of relevance was found on the premises. At the end of the proceedings, the applicant’s representative requested that the external hard disk drive and the USB memory stick – seized and copied, respectively, at the flat – be exempted from the audit.

The applicant and SNS appealed against the County Administrative Court’s judgment of 10 March 2008. On 7 April 2008 the Administrative Court of Appeal (kammarrätten) in Stockholm dismissed the applicant’s appeal and struck out the case in so far as it concerned SNS. In regard to the applicant, it stated that, while the appealed judgment did indeed allow the use of coercive measures on the premises of the applicant law firm, the reason for this was not that the law firm was the subject of the measures but that it could be assumed that documents relevant to the audit of SNS would be found there. In these circumstances, the appellate court concluded that the applicant was not affected by the appealed judgment in such a way that it was entitled to appeal against it. With respect to SNS, the court considered that, as the coercive measures had already been enforced, it did not have a justified interest in having them examined by a second judicial instance.

By a decision of 19 June 2008 the Supreme Administrative Court (Regeringsrätten) refused the applicant and SNS leave to appeal. On 3 July 2008 the court dismissed an appeal in the same matter lodged by Mr Jurik, noting that he had not previously been a party to the case and could not therefore join the proceedings at the level of the Supreme Administrative Court.

The Tax Agency’s interim decision of 14 March 2008 to use coercive measures against Draupner was referred to the County Administrative Court, which received it on 17 March 2008, the following Monday. The Agency stated as reasons for its decision that Draupner had had transactions connected to SNS, its subsidiary company, that there had been special reasons to search for material at the applicant law firm as two of Draupner’s representatives, Mr Jurik and Mr Möller, had offices there and that the risk of corruption of material was acute in view of the fact that, during the ongoing enforcement, it had become apparent to persons involved which transactions and connected documents were to be examined. Draupner requested that the decision be quashed, referring, inter alia, to attorney-client privilege pertaining to its representatives. By a judgment of 26 March 2008 the interim decision was confirmed by the court, which found that the seizure of the documents at issue had been justified. The court further considered that there was a substantial risk that the documents would be withheld, corrupted or destroyed if they were returned.

Draupner and Mr Jurik appealed to the Administrative Court of Appeal. On 22 August 2008 the court struck out Draupner’s appeal and dismissed that of Mr Jurik. As in the similar case concerning SNS (see paragraph 16 above), the court took into account that the coercive measures had already been enforced and considered therefore that Draupner did not have a justified interest in having them examined by a second judicial instance. In regard to Mr Jurik, it was noted that he had not been a party to the case at the lower court.

On 28 January 2009 the Supreme Administrative Court refused Draupner leave to appeal.

Draupner also appealed against the Tax Agency’s decision of 14 March 2008 to conduct an audit. On 18 June 2008 the Tax Agency dismissed the appeal because, in accordance with Chapter 6, section 2 of the Tax Assessment Act (Taxeringslagen; 1990:324), no appeal lay against such a decision. This determination was upheld by the County Administrative Court on 11 July 2008.

On 19 September 2008 the Administrative Court of Appeal quashed the Tax Agency’s decision to dismiss the appeal and the County Administrative Court’s judgment and referred the case back to the County Administrative Court. The appellate court found that the Tax Agency had lacked a legal basis for its decision; instead of dismissing Draupner’s appeal, it should have submitted it to the County Administrative Court for determination.

After a new examination of the case, the County Administrative Court dismissed the appeal in a decision of 3 October 2008, finding that no appeal lay against a decision to conduct a tax audit and that the European Convention was not applicable to such a decision. In addition, it noted that, while the audit decision itself did not involve any harm to Draupner, possible detriment caused by the audit procedure could be removed or mitigated through a request for the exemption of documents from the audit. Such a request was at the time already under examination by the court (see paragraphs 35-43 below).

On 15 January 2009 the Administrative Court of Appeal rejected Draupner’s further appeal, agreeing with the lower court’s assessment.

By a letter dated 14 March 2008, the day of the search of the flat and the law office, and received by the County Administrative Court on 17 March 2008, the applicant requested that those parts of the material seized and copied at the flat that could concern the law firm be exempted from the audit. It mentioned, in particular, the external hard disk drive and the USB memory stick. Noting that both SNS and Draupner were clients of the law firm, the applicant argued that the material it sought to have exempted was protected by attorney-client privilege.

By a decision of 26 March 2008 the County Administrative Court dismissed the request, finding that the applicant lacked legal standing in the matter. It noted that the material had been seized from Draupner and was therefore not under the applicant’s right of disposition.

The applicant appealed to the Administrative Court of Appeal, demanding that all seized and copied material except for the files with accounting material be exempted. It also requested that an oral hearing be held on the question of its legal standing in the matter. Mr Jurik joined the applicant’s appeal.

On 18 April 2008 the Administrative Court of Appeal refused the request for an oral hearing, finding it unnecessary.

By a judgment of 22 August 2008 the Administrative Court of Appeal rejected the applicant’s appeal and agreed with the lower court that the applicant did not have legal standing concerning the requested exemption of documents, as the coercive measures had not been directed against the law firm. Mr Jurik’s appeal was dismissed, as he had not been a party to the case at the lower court.

The applicant made a further appeal, stating, among other things, that the Tax Agency’s original interim decision of 14 March 2008 concerning Draupner and the County Administrative Court’s judgment of 26 March 2008 confirming that decision had been directed against the law firm because they allowed a search in the firm’s offices. Moreover, the coercive measures employed had led to the seizure of material which allegedly belonged to the applicant and could contain information covered by attorney-client privilege. In the latter respect, the applicant claimed that the external hard disk drive and the USB memory stick had been used by its associate lawyer Mr Jurik in his work for the firm.

On 28 January 2009 the Supreme Administrative Court refused the applicant leave to appeal.

In the decision of the Administrative Court of Appeal of 18 April 2008 not to hold an oral hearing (see paragraph 28 above) three judges participated, one of whom was a co-opted member (adjungerad ledamot). She was also a civil servant at the Tax Agency, albeit formally on leave of absence while temporarily serving with the court. The Tax Agency being the opposing party, the applicant challenged her impartiality and called for her disqualification from the case.

On 14 May 2008 the Administrative Court of Appeal, sitting in a different formation, rejected the objection, noting that the co-opted member was on leave from her post at the Tax Agency.

By a judgment of 5 March 2009 the Supreme Administrative Court, which had regard to Strasbourg case-law, rejected the applicant’s appeal, declaring that the objection had not been justified. It considered that the issue of objective impartiality had to be examined in light of the individual character of the case at hand. In this respect, it noted that the co-opted member’s tasks at the Tax Agency had concerned activities of a different type than those relevant in the case and had been performed in a different part of the country. Furthermore, she was only one of three judges participating in the decision in question, which had concerned a request for an oral hearing. She had not participated in the judgment on the merits of the case.

Draupner, represented by Mr Lindstrand, requested that all material seized or copied during the audit be exempted, in particular because it contained information protected by attorney-client privilege pertaining to the applicant law firm and its clients.

On 16 October 2008 the County Administrative Court rejected the request. It stated that Draupner was the subject of a tax audit and that all electronic or paper documents linked to the company’s business found on its premises should be considered as belonging to it and being eligible for examination in the audit. The court noted that the company register listed Mr Jurik as a board member and signatory of Draupner. Furthermore, the available evidence in the case showed that he was the representative of the company and that the flat where the search and seizure had taken place constituted the company’s business premises. As the documents at issue had been found at that flat, they should be considered to belong to Draupner, concern its business and, as a rule, be included in the audit. While the coercive measures used could not therefore be considered to have contravened the Coercive Measures Act or the Convention, the question remained whether there were reasons to exempt some or all of the material. Noting that the burden of proof rested with the audited party, the court considered that the company had not demonstrated that the documents were covered by any of the exemptions under the Act.

Upon Draupner’s appeal, the Administrative Court of Appeal, on 5 March 2009, decided to quash the County Administrative Court’s judgment and refer the case back to that court. The appellate court found that the lower court had not examined the contents of all the documents, which was a requirement for the assessment of the question of exemption.

The County Administrative Court then directed Draupner to specify its request in greater detail, which the company did. By a judgment of 14 September 2009 the court rejected the company’s requests for an oral hearing and an inspection of the flat but granted that a few seized documents be exempted from examination by the Tax Agency, as they were considered to be Mr Jurik’s private documents. It further considered that deleted files, which were readable only after reconstruction, could not be the object of a seizure under the Coercive Measures Act and could therefore neither be exempted nor used by the Tax Agency.

Draupner and the Tax Agency appealed. Draupner agreed that 17 of the 19 files seized on 14 March 2008 could be handed over to the Tax Agency for examination, following which the request for exemption concerned the remaining material seized and copied on that day. The Tax Agency requested that it be allowed to examine deleted and reconstructed data files.

On 14 September 2010 the Administrative Court of Appeal rejected Draupner’s appeal, but granted that of the Tax Agency. Draupner’s procedural requests for an oral hearing and an inspection were rejected, but the court held a preparatory meeting with the parties to determine the continued proceedings in the case, notably the method for examining the disputed material. The court found that, due to the extremely extensive data material – more than 300,000 files and entries –, it was impossible to examine each and every data file, and the Tax Agency was therefore instructed to list the documents and files it considered as part of its examination after which Draupner would have an opportunity to lodge a new request for exemption. The appellate court agreed with the County Administrative Court’s assessments that the material, including the hard disk drive and the USB memory stick, had been seized on Draupner’s business premises, that there was, accordingly, a presumption that it was included in the audit and eligible for the Tax Agency’s examination and that the burden of proof for exemptions rested with the company, even though a modest level of evidence was sufficient. With regard to Draupner’

On 15 November 2010 the Supreme Administrative Court refused Draupner leave to appeal.

After the Tax Agency had listed the documents and files it wished to examine, Draupner made a new application for exemption of documents which was partially approved by the County Administrative Court on 24 November 2011 in regard to some documents which were considered to be of a private nature. However, none of the documents for which exemption had been requested were found to have such content that attorney-client privilege applied.

On 21 February 2012 the Administrative Court of Appeal upheld the lower court’s judgment. On 8 May 2012 the Supreme Administrative Court (now Högsta förvaltningsdomstolen) refused Draupner leave to appeal.

The applicant and Mr Jurik made a complaint to the Parliamentary Ombudsman (Justitieombudsmannen) against the handling of the case by the Tax Agency, the County Administrative Court and the Administrative Court of Appeal and assessments made by these instances. On 11 December 2008 the Ombudsman found no reason to take action.

The applicant also petitioned for a re-opening of the Supreme Administrative Court’s decision of 28 January 2009 not to grant leave to appeal in the case concerning the applicant’s request for exemption of documents. This petition was rejected by the Supreme Administrative Court on 20 September 2010.

The audits concerning SNS and Draupner were eventually discontinued and no taxation decisions were taken on the basis of the audits. All documents were returned to Draupner. Like SNS, Draupner has since been liquidated.


No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in 1956 and lives in Kaunas.

In March 2008 the applicant’s mother passed away. At the time of her death, her estate consisted of an apartment, a car, and cash savings of 6,360 Lithuanian litai (LTL, approximately 1,842 euros (EUR)). In her will she left half of the apartment to the applicant’s niece and the remaining property to the applicant and his sister in equal parts. On 27 May 2008 the applicant renounced his part of the inheritance (see paragraph 20 below).

In September 2008 V.L. brought a claim against the applicant before the Kaunas District Court. V.L. submitted that the applicant owed her LTL 14,488 (approximately EUR 4,196) in maintenance payments for their son which he had not paid because he had been insolvent. V.L. argued that by renouncing his part of the inheritance the applicant had violated her rights as a creditor because the inherited property could have been used to cover the applicant’s debt. V.L. therefore invoked Article 6.66 of the Civil Code (see paragraph 23 below) and asked the court to annul the renouncement as being contrary to the interests of the applicant’s creditors. She also asked the court to recognise that the applicant had de facto accepted the inheritance because he had been using his mother’s estate since her death (see paragraph 21 below).

In October 2008 a similar claim under Article 6.66 of the Civil Code was brought by D.L. She submitted that the applicant had been under an obligation to pay her maintenance and that he owed her LTL 8,734 (approximately EUR 2,530). D.L. asked the court to annul the applicant’s renouncement of the inheritance and to recognise that he had de facto accepted it. In March 2009 the Kaunas District Court decided to examine V.L.’s and D.L.’s claims together.

The Kaunas District Court held an oral hearing on 11 November 2009 in which the applicant and both claimants were present. The applicant argued that he had renounced his part of the inheritance for the benefit of his sister who had paid all the expenses of their mother’s funeral. The applicant also submitted that his sister and niece had accepted the entire inheritance and that he had not used any of the property belonging to his late mother’s estate.

On 25 November 2009 the Kaunas District Court partly upheld V.L.’s and D.L.’s claims. It held that the applicant had acted in bad faith by renouncing the inheritance while being insolvent and owing money to the claimants. Accordingly, the court annulled the renouncement on the grounds that it violated the interests of the applicant’s creditors (see paragraph 23 below). However, the court held that there was insufficient evidence to find that the applicant had de facto accepted the inheritance and dismissed that part of the claim.

The applicant appealed against that judgment. D.L. also appealed but the Kaunas District Court refused to accept her appeal for examination because of formal deficiencies – D.L. had asked to be completely exempted from paying court fees on the grounds that she was disabled and had a low income, but domestic law allowed only for partial exemptions (see paragraph 24 below). D.L. was given ten days to correct the deficiencies in her appeal. On 28 January 2010 the Kaunas District Court held that D.L. had not submitted a corrected appeal within that time-limit so it considered that she had not appealed (see paragraph 25 below). However, on 1 February 2010 the Kaunas District Court referred both the applicant’s and D.L.’s appeals to the Kaunas Regional Court.

On 3 February 2010 the applicant received notice from the Kaunas District Court that the civil case and both his and D.L.’s appeals had been referred to the Kaunas Regional Court, and he was asked to submit a reply to D.L.’s appeal within twenty days. However, a copy of D.L.’s appeal was not enclosed. The applicant sent a letter to the Kaunas Regional Court requesting a copy of the appeal. He received it on 10 April 2010 and submitted a reply on 16 April 2010.

Subsequently the applicant asked the Kaunas Regional Court to proceed with the examination of the case in his absence – the applicant stated that he had presented all his arguments in his appeal and in his reply to D.L.’s appeal and had nothing else to add. On 15 September 2010 the Kaunas Regional Court held an oral hearing from which the applicant and D.L. were absent but where D.L.’s lawyer was present.

By a judgment of 29 September 2010 the Kaunas Regional Court dismissed the applicant’s appeal and upheld D.L.’s appeal. The court upheld the findings of the first-instance judgment that the applicant had acted in bad faith by renouncing the inheritance while being insolvent and owing money to his creditors (see paragraph 10 above). The Kaunas Regional Court also found that since his mother’s death the applicant had been using the car previously owned by her and on that basis the court concluded that the applicant had de facto accepted the inheritance (see paragraph 21 below).

The applicant submitted an appeal on points of law but on 27 December 2010 the Supreme Court refused to examine it as raising no important legal questions.

In March 2011 D.L. brought a new claim against the applicant and his sister. D.L. submitted that although the court in previous proceedings had acknowledged that the applicant had de facto accepted the inheritance (see paragraph 14 above), the applicant had not formally completed that acceptance and his sister had remained the official heir to their mother’s estate. D.L. asked the court to annul the applicant’s sister’s rights to one half of the inheritance and to recognise the applicant’s rights to that property.

On 5 March 2012 the Kaunas District Court dismissed D.L.’s claim. The court found that the total value of the applicant’s mother’s estate (the car and the savings) had been LTL 6,860 (approximately EUR 1,987), and that the applicant’s sister had spent LTL 7,817 (approximately EUR 2,264) on their mother’s funeral. In line with domestic law, an heir had the right to cover funeral expenses from a deceased person’s estate before formally accepting the inheritance (see paragraph 22 below). On that basis, the Kaunas District Court held that the applicant’s sister had not inherited any property which could have been used to cover the applicant’s debt to D.L., and thus there were no legal grounds to satisfy D.L.’s claim. That judgment was not appealed against and became final.

In March 2011 the applicant submitted a complaint to the Commission on Judicial Ethics and Discipline concerning the judge of the Kaunas District Court who had examined the civil case (see paragraph 10 above). He complained that the judge had acted in abuse of office by referring D.L.’s appeal to the Kaunas Regional Court because that appeal had not been submitted in accordance with procedural rules (see paragraph 11 above). On 8 June 2011 the Commission dismissed the applicant’s complaint. It held that although the judge had been “insufficiently attentive” and had referred D.L.’s appeal to the Kaunas Regional Court by mistake, that mistake had not been so grave as to constitute abuse of office.

In August 2011 the applicant petitioned the Prosecutor General to investigate the actions of the judges of the Kaunas District Court and the Kaunas Regional Court. On 30 September 2011 the prosecutor’s office denied the applicant’s request on the grounds that no crime appeared to have been committed. The prosecutor’s decision was subsequently upheld by the courts.


CASE OF BOTNARI 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 - Prohibition of torture;Degrading treatment)

The applicant was born in 1972 and is currently detained in Chișinău.

On 17 March 2010 the applicant was arrested by police office and charged with fraud and forgery of official documents. She was placed in the detention centre of the General Directorate for Fighting Organised Crime of the Ministry of the Interior (“the GDFOC”).

According to the applicant, she was held there in an underground cell which offered substandard conditions of detention.

The applicant further submitted that she was transferred to Prison no. 13, where she was detained in a cell with sixteen other inmates and was subjected to passive smoking. She was not provided with bedding and was not able to sleep normally. The cell was infested with vermin and the food was of a very poor quality.

According to the Government, the applicant was transferred from the detention facility of the Ministry of the Interior to Prison no. 13 on 29 March 2010. On 30 March 2011 she was released from detention and was placed under house arrest. On 26 January 2012, after having been declared a wanted person, the applicant was again arrested and again placed in detention in Prison no. 13. On 19 September 2012 she was released from prison and was placed under house arrest. On 5 June 2013 the applicant was again placed in detention in Prison no. 13. On 10 June 2013 the Centru District Court found the applicant guilty as charged and sentenced her to thirteen years and six months’ imprisonment. The case was pending before the Chişinău Court of Appeal at the time of the parties’ observations.

According to the Government, during her detention in Prison no. 13 after 5 June 2013 the applicant was held in cells nos. 108 and 110, each designed to hold eight detainees and measuring 18 sq. m, and in cell no. 109 designed to hold six detainees and measuring 18 sq. m. Cell no. 109 was lit by a 100-W bulb and had a window, as well as a tap and a toilet separated from the rest of the cell by a partition. All the cells were regularly disinfected.

On 26 February 2003 the applicant was diagnosed with non-Hodgkin lymphoma (“NHL” – a type of blood cancer). This disease affected her spleen, bone marrow and lymph nodes. She was also diagnosed with chronic hepatitis.

According to the applicant, while being detained in the detention facility of the GDFOC, her medical treatment was interrupted and the GDFOC administration refused to transfer her to a hospital. After she had been transferred to Prison no. 13, she was not provided the medical assistance required for her condition.

According to the applicant, while in detention, her state of health deteriorated. In both detention facilities there was no specialist oncologist and chemotherapy was unavailable. The applicant undertook her last chemotherapy session in a specialist civilian hospital in April 2013 while under house arrest. Following an enquiry lodged in December 2013 by the applicant’s lawyer about the medical care received by the applicant while in detention, the Prisons Authority replied on 14 February 2014 that she had been registered as an oncology patient since 5 June 2013 and had been provided with medical treatment in line with her diagnosis.

According to two extracts from the applicant’s medical records dated 26 June 2014 and 9 July 2015 and signed by the head and the deputy head of the medical unit of Prison no. 13, the applicant was in need of specific medical treatment from the Institute of Oncology and her medical condition was qualified as being of medium seriousness.

The Government submitted that from 24 April 2010 to 9 July 2012 the applicant had refused on several occasions to be hospitalised either in the prison hospital (Prison no. 16) or in the medical section of Prison no. 13. On two occasions the applicant had refused to undergo inpatient treatment at the Institute of Oncology, which was a specialist civilian hospital. The applicant had been examined on several occasions by a therapist and a haematologist and given medical treatment. Every year, the Prisons Authority concluded a service contract, with a budget amounting to 35,000 Moldovan lei (MDL – approximately 1,555 euros (EUR)), with the Institute of Oncology. Accordingly, specific types of treatment such as chemotherapy and radiotherapy were available.


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

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano

The applicant was born in 1980 and lives in Ljubljana.

He suffers from progressive spinal muscular atrophy and needs twenty-four hour assistance with all his daily activities.

In 2006 the Pensions and Disability Insurance Institute of the Republic of Slovenia (“the Institute”) awarded the applicant an assistance and attendance allowance (hereinafter “the allowance”) of 70% of the reference amount.

On 28 May 2009 the applicant’s general practitioner applied for an increase in the allowance due to the applicant’s worsening condition, referring in particular to the deterioration of the applicant’s respiratory functions. In the application the general practitioner indicated that the applicant needed twenty-four hour assistance by a family member or a lay care assistant, along with permanent professional assistance. At that time the applicant organised his care by hiring students to assist him in his daily activities and to provide the necessary aid. He also relied significantly on the assistance of his family members.

On 9 July 2009 the first-instance disability commission of the Institute (“the commission”) reported that the applicant did not need permanent, professional, medical assistance. The commission was composed of F.V., an internal medicine specialist, and M.F.B., an occupational medicine specialist. It gave its opinion on the basis of an examination of the medical documentation provided by the applicant, specifically opinions of a doctor of internal medicine, a pulmonologist and a clinical neurologist. They also examined the applicant.

On 20 July 2009, the Ljubljana unit of the Institute, relying on the opinion of the commission, dismissed the request for an increase in the allowance.

On 28 July 2009 the applicant lodged an appeal.

On 23 September 2009 the second-instance disability commission (“the second-instance commission”) of the Institute examined the applicant’s file and again reported that he did not need permanent professional assistance and that he could be cared for by a combination of care assistants without specific medical knowledge and by members of his family. The second-instance commission was composed of L.S., an occupational medicine specialist, and M. G., a specialist neuropsychiatrist.

On 24 September 2009 the Institute, referring to the conclusions of the second-instance commission, dismissed the applicant’s appeal. The Institute further referred to the 1998 Decision on Assistance and Attendance Allowance for Beneficiaries Suffering from a Severe Disability (see paragraph 23 below), according to which beneficiaries were only entitled to a higher allowance if they were in need of twenty-four-hour assistance by family members and further professional medical assistance.

On 22 October 2009 the applicant instituted court proceedings against the Institute before the Ljubljana Labour and Social Court, requesting the appointment of an independent expert to examine his medical file.

On 30 September 2010 the Ljubljana Labour and Social Court heard the applicant’s testimony and reviewed the case file. Subsequently it dismissed the applicant’s claim. The court rejected the applicant’s request for the input of an independent expert, concluding that the opinions of the first- and second-instance disability commissions of the Institute together with other evidence sufficed to establish that the applicant did not need professional assistance. The relevant part of the decision read as follows:

“The court therefore fully accepts the opinions of the first- and second-instance disability commissions that the [applicant] did not require permanent professional care because the opinions of the disability commissions were in accordance with the other evidence adduced (the general practitioner’s request and the reports submitted by specialists).”

On 2 November 2010 the applicant lodged an appeal, challenging the conclusions of the court that he did not need professional assistance, and complaining that the court had failed to appoint an independent medical expert. The applicant highlighted that the court itself lacked the expertise to assess on its own the kind of assistance he was provided with and the kind he needed.

On 24 January 2011 the Higher Labour and Social Court dismissed the applicant’s appeal. It found that the first-instance court had based its decision on the opinions of the disability commissions of the Institute which had been composed of experts capable of assessing whether the applicant needed professional assistance. The relevant part of the decision reads as follows:

“The appeal is unfounded in claiming that the [first-instance court] had concluded, without outside reference, despite the fact that it had no medical knowledge, that the care received by the [applicant] had been adequate. The court based its decision on the above cited opinions of the disability commission that had been assembled for the purposes of the pre-judicial proceedings. The [applicant] was examined by the first-instance disability commission; in giving their opinions both commissions also took into consideration the medical records submitted by his general practitioner.”

On 9 March 2011 the applicant lodged an application for leave to appeal on points of law. He, inter alia, challenged the position of the lower courts that there had been no need to appoint an independent medical expert as being contrary to the established case-law of the Supreme Court. According to the Supreme Court the opinions of the Institute’s Disability Commissions could not be considered independent in proceedings instituted against the decisions of the Institute and thus should not be used as evidence in these proceedings (see paragraph 29 below).

On 17 May 2011 the Supreme Court dismissed the applicant’s application, holding that the challenged decisions had not departed from the established case-law.

On 28 July 2007 the applicant lodged a constitutional complaint.

On 11 June 2012 the Constitutional Court dismissed the applicant’s constitutional complaint with reference to section 55.b of the Constitutional Court Act (see paragraph 30 below).


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1966 and lives in Panevėžys.

The applicant was employed as the head of a municipal kindergarten in Panevėžys.

On 11 December 2007 she was informed by the local office of the Special Investigation Service that, as a person of equivalent status to a civil servant, she was under investigation on suspicion of fraudulent management of accounts, abuse of office and forgery of documents. In May 2008 she was informed of additional suspicions against her concerning further acts of abuse of office, forgery of documents and misappropriation of property.

In June 2008 the applicant submitted a request to the pre-trial judge to terminate the criminal investigation on the grounds that it had been excessively long. The judge refused the request, noting that the investigation had been completed earlier that month and the case was ready for trial.

On 4 July 2008 the case was referred for judicial examination. On 13 July 2009 the Panevėžys District Court (hereinafter “the first-instance court”) found the applicant guilty on several of the charges against her. She was sentenced to a fine of 2,600 Lithuanian litai (LTL, approximately 753 euros (EUR)) and a prohibition on working for the civil service for two years and six months.

The judgment was amended on appeal: on 19 February 2010 the Panevėžys Regional Court (hereinafter “the appellate court”) upheld the applicant’s conviction on some of the charges and acquitted her on several others. Her sentence was reduced to a fine of LTL 1,820 (EUR 527) and a prohibition on working for the civil service for one year and nine months. Soon afterwards the applicant was dismissed from her job by the Panevėžys City Municipality in line with the decision of the appellate court.

By a final judgment of 16 November 2010 the Supreme Court of Lithuania upheld the reasoning of the appellate court but changed the applicant’s sentence. The Supreme Court found that when determining the length of the applicant’s prohibition on working for the civil service, it was necessary to take into account the fact that she had been suspended from her post during the criminal investigation (see paragraphs 12-19 below). As a result, the period of prohibition was reduced to one year and three months.

Immediately after the launch of the criminal investigation against the applicant (see paragraph 7 above), on 12 December 2007 the first-instance court granted the prosecutor’s request to have the applicant suspended from her job as the head of the kindergarten for three months. The court held that there were grounds to believe that the applicant, as a person of equivalent status to a civil servant, might use her official position to hinder the investigation by, for example, destroying or fabricating evidence, or attempting to influence the witnesses in the case, who were her subordinates.

The applicant appealed against the decision, arguing that she could not be equated to a civil servant because she worked under an employment contract with the Panevėžys City Municipality. She further argued that all the important documents had already been collected from the kindergarten and all the relevant witnesses had been questioned, so there was no possibility for her to interfere with the investigation. The applicant also submitted that she had no prior convictions and had never been subject to any disciplinary action at work and that her employer’s evaluation of her had always been positive; thus there were no grounds to believe that she would use her official position to hinder the investigation. Lastly, the applicant submitted that her job in the kindergarten was her only source of income and therefore the suspension would cause significant difficulties for her and her young daughter, whom the applicant was raising alone. However, the appellate court dismissed the applicant’s appeal and upheld the reasoning of the first-instance court.

Subsequently the first-instance court granted the prosecutor’s requests to extend the applicant’s suspension from her post by further periods of one to three months on essentially the same grounds. The applicant appealed against all the decisions, raising the same arguments as before, but her appeals were dismissed by the appellate court (on 27 December 2007, 21 March 2008, 26 May 2008, 18 June 2008 and 6 August 2008). On 6 August 2008 the appellate court noted, inter alia, that the applicant was only suspended from holding a specific post in a particular kindergarten, so the suspension did not affect her ability to take a different job and thus obtain a source of income.

On each of the above-mentioned occasions the decision of the first-instance court was taken following a written procedure, while the appellate court held oral hearings (see paragraphs 23 and 25 below). Neither the applicant nor her representative was present at any of these hearings. The prosecutor was present at the hearing of 21 March 2008.

After the criminal case was referred for judicial examination (see paragraph 9 above), in October 2008 the first-instance court held an oral hearing in which it extended the applicant’s suspension from her post by two months on the same grounds as before. The applicant and her representative were present at the hearing. The applicant’s appeal was subsequently dismissed by the appellate court.

On 1 December 2008 the first-instance court in an oral hearing at which the applicant and her representative were present, terminated the applicant’s suspension from her post. The court found that almost all the witnesses had been questioned, so there were no grounds to believe that the applicant might attempt to influence them or otherwise hinder the investigation. The applicant returned to her job as the head of the kindergarten the following day.

However, on 12 December 2008 the appellate court overturned the decision of the first-instance court, finding that the investigation had not been completed yet, so there was still a risk that the applicant may hinder it. Since the appellate court was not authorised by law to adopt a new decision extending the suspension, the prosecutor submitted a new request for an extension to the first-instance court. During this period the applicant continued working as the head of the kindergarten.

On 16 January 2009 the first-instance court, in an oral hearing at which the applicant and her representative were present, renewed the applicant’s suspension from her post for a period of three months. However, on 12 February 2009 the appellate court allowed an appeal by the applicant against this decision and quashed the above extension ordered by the first-instance court. The applicant returned to her job and remained the head of the kindergarten until her dismissal in February 2010 (see paragraph 10 above).

On 20 December 2007 the applicant submitted a complaint to the Inspector of Journalistic Ethics concerning several articles in the Panevėžio rytas newspaper. The publications commented on the criminal case against the applicant and presented statements from her subordinates criticising her competence and personality. The applicant complained that these articles had been defamatory and insulting. She also complained about a comment posted by a user on the website of the Lietuvos rytas newspaper which insulted the applicant and her young daughter on the grounds that the applicant was a single mother.

On 9 June 2008 the Inspector of Journalistic Ethics partly satisfied the applicant’s complaint. The Inspector found that the comment on the website of Lietuvos rytas was insulting to the applicant and her daughter and ordered the newspaper to remove it from the website. With respect to the articles in Panevėžio rytas, the Inspector held that the applicant was a public figure and therefore had to accept a greater level of media attention and criticism. The Inspector also found that the statements about the applicant in the articles in question reflected the opinions of the interviewed individuals, so the newspaper could not be held accountable for their factual accuracy.

The Inspector’s decision indicated that it could be appealed to the court within thirty days. The applicant did not appeal.


No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The first applicant was born in 1957 and the second applicant in 1963. They live in Jedwabne.

The applicants’ son M.O. was a student in Białystok. At the relevant time he was 22 years old. On 13 February 2010 he and some of his friends were celebrating the end of examinations in one of the clubs in Białystok. M.O. left the club at around 3 a.m. on 14 February 2010 with his friend J.O. They were walking together to the university campus. M.O. wanted to take a shortcut and go through the border guards area. J.O. did not agree and she took the normal road and continued alone. The applicants’ son took the shortcut and while crossing the border guards area, he was apprehended by the border patrol, who called the police. Soon afterwards two police officers Z.W. and T.B. arrived and at 3.45 a.m. took the applicants’ son to the police station in Białystok.

According to the police officers, M.O. was under the influence of alcohol. However, his state did not qualify him to be taken to the soberingup centre. They did not make him undergo a breath test. They were not sure with what offence he could be charged, if any, and therefore they ordered him to appear at the police station at 2 p.m. and let him go. It was about 4.30 a.m. and the temperature outside was below zero centigrade.

At 5.30 a.m. the applicants’ son telephoned his sister E.O. He requested her to come with her car and collect him from a bus station in Łomża. When she got there she telephoned her brother who then asked her to come to Białystok, some 80 km away. According to E.O.’s statement her brother sounded frightened on the phone. While she was driving to Bialystok M.O. called again and told her to go back home because he would manage to come back by himself.

On 14 February 2010 at 9.58 a.m. the second applicant called her son. She asked him whether he was on the campus and he apparently confirmed. She asked him some more questions but he did not reply although the telephone call was still ongoing. According to the second applicant she was not sure whether she was speaking to her son or someone else.

The applicants then went to the campus to check whether their son was indeed there but he was not. They contacted all hospitals in Białystok, the sobering-up centre and all police stations, including the Białystok police station No. 3 where their son was interrogated the night before. They were informed however that their son had been neither arrested nor had his identity been checked.

In one of the hospitals they were informed that the previous night two unidentified men had been brought there. One of them was then taken by the police to the police station No. 3. The applicants went to the police station again where they were told that no men of unknown identity had been there the previous night.

The applicants then officially reported their son as missing and started to look for him on their own.

Only on 19 February 2010 they were informed by the police station No. 3 that their son had been brought there on the night of 14 February 2010 and released because there were no grounds to keep him there.

According to the minutes taken by the police officers on the night of 14 February 2010, the applicants’ son was drunk; he mumbled and was unsteady on his legs. The officers had problems communicating with him.

The applicants’ son never returned to the campus. He was found dead on 6 March 2010 in a meadow, some 300 metres from the exit road towards Warsaw. His body was frozen.

The body was on its back with the legs crossed. In the photographs taken on location, hospital shoe covers can be seen in the victim’s jacket pockets. These objects were later not found or examined.

A.W., who found the body on 6 March 2010, informed the police immediately. Two police officers, Z.W. and T.B., the same who had interviewed the applicants’ son on the night of 14 February, were sent to the scene.

On 8 March 2010 the body was shown to the applicants who recognised it as the body of their son. The first applicant noted that in the pockets of his sons’ clothes there was no mobile phone.

On 9 March 2010 an investigation into the circumstances of the applicants’ son’s death was opened by the Białystok District Prosecutor.

On the same day a post-mortem examination of the applicants’ son’s body was carried out. Dr M.R., who participated in the post-mortem examination, found that there were chafes on the applicants’ son’s palms, face and abdomen. The back side of his legs was covered with bright green algae. The doctor found that the reason for M.O.’s death was hypothermia. She also found that he had been under the influence of alcohol at the moment of his death. The blood alcohol level was 0.9 per mille.

According to the applicants the expert opinion prepared by Dr M.R. raised many doubts and was partly contradictory. M.R. described their son’s vermiform appendix although he had his appendix removed as a child. No samples of the algae which covered M.O.’s legs were collected for examination. The expert pointed out some characteristics of M.O.’s inner organs which could indicate that M.O. died suddenly, which was in contradiction to her conclusion that he died of hypothermia. Also the position in which the body was found contradicted the conclusion that the applicants’ son died of hypothermia. He was found lying on his back with his legs crossed whereas, according to the expert opinion, a person who falls down from exhaustion should lie face down. Furthermore, the expert did not determine the date of M.O.’s death. According to her later depositions, she had not received any such order from the prosecutor.

The expert took liver samples, but as it turned out later it was impossible to examine them because they had been improperly secured.

In the course of the post-mortem examination fingernail scrapings were secured for further examination. However, the samples were never examined.

As emerges from the minutes of the post-mortem examination, when M.O.’s body was being undressed before the examination, a mobile phone fell out of his pocket. As noted above, the applicants checked their son’s clothes before the post-mortem examination and the mobile phone was not there.

On 29 April 2010 the applicants’ lawyer requested the prosecutor to examine the blood samples from M.O.’s body and clothes taken when his body was found.

On 30 May 2010 the prosecutor granted the request and ordered that the samples be examined by the Białystok Medical University. However, the decision on the merits was given by the prosecutor without the results of the relevant examination.

On 25 June 2010 Białystok District Prosecutor discontinued the investigation finding that the applicants’ son died of hypothermia without involvement of any third persons. The prosecutor based his decision on various evidence including the post-mortem examination, the expert opinion referred to above, as well as depositions made by several witnesses heard in the course of the investigation.

On 23 July 2010 the applicants’ lawyer appealed against the prosecutor’s decision. His references to the numerous shortcomings of the investigation covered nearly thirty pages.

On 20 January 2011 the Białystok District Court quashed the challenged decision and remitted the case to the prosecutor for reexamination. The court agreed with the applicants that the circumstances of their son’s death had not been sufficiently established.

First of all, the court recognised that the decision discontinuing the investigation was given without the results of the examination of the secured blood sample, which had been previously ordered by the prosecutor (see paragraph 26 above).

Subsequently, the court found that in the opinion following the analysis of the applicants’ son’s blood, there were some inaccuracies which needed further clarification; the toxicological examination allegedly showed presence of phenetylamine in the secured blood sample. However in another part of the opinion it was stated that the presence of this substance was not confirmed and its amount was not determined “for lack of pattern”.

The court also referred to the examination of samples of M.O.’s liver which was ordered on 22 April 2010 but not carried out. According to the medical expert appointed by the court, the examination could not be carried out because the Białystok Medical University did not have the relevant reagents whereas as emerges from the minutes of the interview with a medical expert from the Łódź Medical University, the examination was impossible because of the way the samples had been secured.

The court further pointed out that in the first phase of the investigation, an examination of biological and dactyloscopic traces on M.O.’s mobile phone and three cigarette lighters found in his clothes was ordered by the prosecutor. The criminological laboratory in Białystok stated that they were unable to carry out the examination and stressed that it should be carried out in a specialised biological laboratory in the Regional Police Station in Olsztyn or Warsaw. The prosecutor however did not request the institutions indicated for the examination.

The court also stressed the inaccuracies in the medical expert opinion prepared by dr M.R. It further pointed out that the prosecutor had failed to refer to the merits of the opinion and to indicate which part of it and what reasons constituted the basis for his decision. The court also ordered the prosecutor to examine further the part of the expert opinion which concerned the position in which M.O.’s body was found.

Finally the court referred to the applicants’ statements as regards further evidence which should be examined. The applicants requested that dactyloscopic traces be taken from the police van in which their son was transported. They also considered that traces on the ground where their son’s body had been’ lawyer’s appeal was examined 11 months after M.O.’s body was found.

Following the court’s decision, the case was remitted to the Białystok District Prosecutor. The prosecutor heard Z.W., a specialist from the Białystok Medical University, who had carried out a toxicological examination of M.O.’s urine and blood. She said that she only examined the samples to check whether there was amphetamine in the blood. She did not check the presence of phenetylamine.

The prosecutor further requested the University of Cracow to carry out an examination of the secured liver samples. The University replied however that examination of the samples was impossible given the way the samples had been secured.

The prosecutor also heard the medical expert M.R. who admitted that she had mistakenly described M.O.’s vermiform appendix.

On 29 June 2011 the Białystok District Prosecutor, having reexamined the case, again discontinued the proceedings for the same reasons as the previous time.

According to the relevant provisions of the Polish Code of Criminal Proceedings, no further appeal is available for the applicants if the investigation was discontinued for the second time. However, on 24 October 2011 the applicants requested the Prosecutor General to resume the investigation. Their request was transferred to the Białystok Appelate Prosecutor who, having reexamined the case-file found a number of shortcomings in the discontinued proceedings and, on 12 December 2012, ordered that the investigation be resumed. The prosecutor relied on Article 327 of the Code of Criminal Proceedings according to which discontinued investigation may be resumed de novo at any time by the prosecutor provided that it would not be conducted against a person who had been a suspect in the previously discontinued proceedings.

The prosecutor recalled that in the decision of 20 January 2011 the Białystok District Court had indicated to a number of shortcomings (see paragraphs 30-35 above) and ordered that further steps be undertaken in the proceedings. Having analysed the case-file the prosecutor concluded that the court’s orders had been performed in an insufficient way or had not been performed at all. The relevant part of his decision read as follows:

“....it was found in the Białystok hospitals that in the time when M.O. was missing, he was not admitted to any of them. The prosecutor did not hear the employees of the first-aid station and ordered that the police do it on his behalf. In consequence the records of the hearings are superficial and still do not explain the circumstances of your [the applicants] conversation with one of the employees, Ms. P. It is important because this person was supposed to inform that on 14 February 2010 in the morning a young unidentified man had been brought to the hospital and subsequently taken by the police. If the prosecutor investigated into these events he should explore it in the most detailed way possible. The prosecutor also tried to have samples of liver examined requesting opinion of Collegium Medicum of the Jagiellonian University although at that time he already knew that the examination had not been possible because the samples had been improperly secured.

The prosecutor, in spite of the court’s order, failed to have M.O.’s blood samples, secured fingerprint and biological traces examined.

The decision discontinuing the investigation must be found premature...

The case concerns death of a young man and its circumstances have not been sufficiently cleared. It is still unknown in what way and why M.O. was on a meadow in a place unknown to him, far from the police station which he had left at 4.30 a.m. on 14 February 2010.

It was also found that the last telephone call which M.O. answered was at 9.57 a.m. and it was a conversation with G.O. [the first applicant] but the information where M.O. telephone logged in at that time is missing. This should be completed as soon as possible.”

The prosecutor further considered that it was crucial to find out what were the weather conditions on 14 February 2010, in particular the air temperature and the snow precipitations. He also ordered that the state of M.O.’s alcohol intoxication be examined on the basis of so called “prospective examination”; the alcohol level in his blood was established only for the moment of his death. The prosecutor ordered therefore detailed hearing of all persons with whom M.O. spent the day of 13 February 2010 as regards the amount and kind of alcohol drunk on that day, amount and kind of meals he had, whether he had been tired, etc. The prosecutor considered that all these circumstances were crucial taking into consideration the version according to which M.O.’s died of hypothermia. He also indicated a professor in Gdansk, a specialist in cases of hypothermia death and found out that the professor had been contacted by the prosecutor’s office and had agreed to prepare the opinion requested however, for unknown reasons, the prosecutor decided not to request this evidence.

On 11 January 2012 the Białystok District Prosecutor resumed the investigation.

She requested an opinion of a forensic expert from the Gdansk University indicated by the Appelate Prosecutor on 12 December 2012. The expert Z.J. confirmed that M.O. had died because of hypothermia. He further submitted that death of hypothermia usually happens in low temperatures but also when the temperature is above zero centigrade, between 0 and 8. Air humidity and alcohol were other factors which influence the risk of death. The expert further excluded the possibility of establishing for how long M.O. had been exposed to low temperatures finding that each person reacted differently to low temperatures and that additional factors such as weather conditions and air humidity could influence the result of such examination. As regards the presence of phenetylamine in M.O.’s blood the expert submitted that given many possible sources of this substance, such as various kinds of food, excessive physical effort, etc., it was impossible to determine its origin in this particular case.

As regards M.O.’s blood samples the prosecutor found that their examination was impossible because too much time had passed from the day on which they were secured.

As regards the indication to hear all persons with whom M.O. celebrated his final exams on 13 February 2010 the prosecutor established that on that day at about 7 p.m. M.O. and several friends had had been drinking alcohol at the student home. At about 11 p.m. they all went to the city centre where they had a meal and subsequently went to a club where they were dancing and drinking beer. The details regarding the amount and kind of drinks and food that they had had were not established.

The prosecutor further referred to the data of a meteorological station in Białystok and listed the average air temperature on particular days between 14 February and 6 March 2010 as well as average snow precipitations on these days.

On 31 January 2013 the Białystok District Prosecutor discontinued the investigation. She concluded that due to evidence difficulties it was impossible to reproduce the course of events after M.O. had left the police station. She further stated on the basis of the above-mentioned evidence, in particular the expert opinion, that no third persons had been involved in M.O.’s death.

On 12 February 2013 the applicants appealed. In particular, they submitted that in the course of the investigation it was not clarified for what reasons and where from M.O. had had hospital shoe covers in his pocket. They further submitted that M.O.’s clothes were covered in mud; its origin was likewise not cleared; M.O. had been found on the meadow covered with a thick layer of snow and therefore his clothes should normally not bear traces of mud. They again referred to the position in which the body had been found considering that a person who falls down because of exhaustion should have been found with his face down. They also pointed to the fact that in the challenged decision the prosecutor had considered that the examination of blood samples was impossible because of the lapse of time whereas previously, the prosecutor had refused to examine the blood samples and DNA test finding that these were immaterial for the present case.

On 8 May 2013 the Białystok Regional Court upheld the challenged decision. As regards the arguments raised in the applicants’ appeal, the court considered that they were a “chain of suppositions leading the applicants to a conclusion that third persons were involved in M.O.s’s death”. Having referred to, in particular, the forensic expert evidence who confirmed that M.O. had died of hypothermia, the court accepted the prosecutor’s findings that no involvement of third persons in M.O.’s death could be discerned.

On 11 March 2010 the investigation opened on 9 March 2010 was severed and the part of it which concerned the alleged failure to perform their duties by the police officers Z.W. and T.B. was transferred to the Białystok Regional Prosecutor.

On 31 October 2011 the Białystok Regional Prosecutor discontinued the investigation finding that no offence of abuse of power or failure to perform their duties had been committed by the police officers. The Prosecutor examined, among other things, whether the applicants’ son had been under the influence of alcohol at the time of his arrest. She found that according to the handwritten note made by the police officers M.O. “mumbled and was unsteady on his legs but he had documents on him, knew where he was and what was going on, the contact with him was logical. He assured that he would not drink more alcohol and come back straight to the university campus”. She further found that according to the depositions of witnesses, M.O. had been under the influence of alcohol but he was not drunk to such an extent which would require taking him to the sobering-up centre or which would raise suspicions that he might have problems getting home on his own. The Prosecutor further examined why the police officers who spoke with the applicants’ son on the critical night had not realised until 19 February 2010 that the missing person they were looking for and M.O. whom they had checked at night on 14 February 2010 was the same person. She found that M.O.’s personal data had been established on the basis of his personal number (PESEL) via telephone and entered into a handwritten note by one of the police officers. M.O.’s presence at the police station had not been saved in the police computer system, because at that time there was no access to the KSIP system (System of Police Information). The Prosecutor admitted that the above circumstances spoke for deficiencies in the communication within the police station in question, she found however that no prohibited behavior could be attributed to the police officers.

The applicants’ lawyer appealed against this decision.

On 1 March 2012 the Sokółka District Prosecutor upheld the challenged decision.


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in 1958 and lives in Karan.

He was employed by Raketa-Putnički Saobraćaj AD, a company based in Užice (hereinafter “the debtor”).

Since the debtor had failed to fulfil its obligations toward its employees, the applicant brought three separate civil claims, seeking payment of salary arrears and various social security contributions.

On 31 August 2007 and 19 September 2007, respectively, the Municipal Court (Opštinski sud) in Užice rendered decisions ordering the debtor to pay the applicant certain sums. Both decisions became final on 9 October 2007.

Due to the debtor’s failure to fulfil its obligations from these decisions, the applicant submitted an enforcement request. On 15 May 2009 the Municipal Court (Opštinski sud) in Požega issued an enforcement order to that effect.

On 23 July 2009 the Municipal Court in Užice rendered a decision in the third set of civil proceedings brought by the applicant ordering the debtor to pay him an additional sum from the outstanding debt. On 2 September 2009 this decision became final.

Due to the debtor’s failure to fulfil its obligations from this decision, the applicant submitted an enforcement request. On 29 September 2009 the Municipal Court in Požega issued an enforcement order to that effect.

On 12 July 2010 the Commercial Court (Privredni sud) in Užice opened insolvency proceedings in respect of the debtor. As a result, all of the ongoing enforcement proceedings against the debtor were terminated.

The applicant duly reported his claim based on the above-mentioned court decisions to the insolvency administration.

On 8 June 2011 the court accepted the applicant’s claim.

The insolvency proceedings in respect of the debtor are still ongoing.

The debtor, which operated as a socially-owned company, was privatised on 27 December 2002.

On 17 July 2007 the privatisation was annulled because the buyer in question had failed to fulfil his contractual obligations.

Following the annulment of the debtor’s privatisation the State owned 58.18% of shares in the company.

On 11 December 2008 the State sold its shares to a private company.


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant, the publishing house Pskov News (автономная некоммерческая организация «Издательский дом “Новости Пскова”»), is a Russian non-profit organisation. It was represented before the Court by Mr V. Bykov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by their Agent, Mr G. Matyushkin.

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

The applicant is the publisher of Pskovskaya Guberniya, a regional weekly. The applicant and the newspaper are two distinct legal persons. In 2003 two officials sued the newspaper for defamation over an article about their encounters with the law. On 8 August 2003 the Pskov Town Court found the article’s allegations false and ordered the newspaper to issue a retraction but refused damages for emotional distress. On 23 September 2003 the Pskov Regional Court affirmed the judgment.

According to the Tax Service’s company register, in July 2009 the applicant was liquidated.


CASE OF ŠANTARE AND LABAZNIKOVS v. LATVIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev

The applicants were born in 1960 and 1956 respectively and live in Riga.

On an unspecified date the Bureau for the Prevention and Combating of Corruption (“the KNAB”) received information concerning allegedly unlawful activities of officials of the State Pharmacy Inspectorate. Aiming to verify that information, the KNAB launched operational proceedings (operatīvā izstrāde). In the context of those proceedings the second applicant, who at that time was the owner of a chain of pharmacies in Latvia, was summoned to the KNAB to give statements about the activities of certain State officials supervising pharmaceutical matters in Latvia.

According to the document (uzziņa) prepared by the Supreme Court on 27 July 2012 and addressed to the Government, on 10 March 2005 an operational measure – the interception of the second applicant’s telephone conversations – had been authorised until 12 May 2005. The document was based on “the Supreme Court’s register of special proceedings (lietvedība) relating to classified State secrets for the year 2005, Volume 13, entry no 21264s of 19 March 2005”.

Upon being summoned by the KNAB, on 12 April 2005 the second applicant went to its offices, where he was questioned by two investigators, H. and J. Initially, he refused to cooperate and instead asked J. questions about his duties.

On 13 April 2005 the second applicant arranged a meeting with J. away from the KNAB’s offices. On the KNAB’s behalf, the meeting was organised as an undercover operation under section 15(3) of the Law on Operational Activities, and prior authorisation from a specially authorised prosecutor of the Prosecutor General’s Office was obtained.

On 13 and 14 April 2005 three meetings took place between the second applicant and J. During the second meeting, which was video and audio recorded by J., the second applicant offered J. a bribe in the amount of 50,000 Latvian lati (LVL) and monthly payments of LVL 1,000 in return for the cessation of any investigative activities concerning his business and the State officials connected with it. During the meeting the second applicant paid J. LVL 18,000 as a first instalment.

Meanwhile, the second applicant called the first applicant, who was a board member of the company he owned. He asked her to withdraw cash from the company’s account. He explained that the money would be spent on “protection”. Their phone conversations were intercepted and recorded.

The next day, the second applicant arranged another meeting, during which he gave the investigator LVL 27,000. On the same day he was arrested by KNAB officers.

After the second applicant’s meeting with J., on 13 April 2005 the KNAB instituted criminal proceedings for bribery. The second applicant was charged as a suspect. The charging decision was sent to the Prosecutor General’s Office so that the prosecution could commence.

On 22 April 2005 a prosecutor of the Prosecutor General’s Office questioned the second applicant. The second applicant pleaded guilty and stated that the payments had been intended to prevent further investigation into his business activities.

In a letter of 31 May 2005 the KNAB informed the supervising prosecutor at the Prosecutor General’s Office that the second applicant’s phone had been tapped in accordance with section 17(3) of the Law on Operational Activities “upon the authorisation of a judge of the Supreme Court”. The KNAB asked for the recordings to be included in the criminal case file.

On 2 June 2005 the Office of the Prosecutor brought a charge of aiding and abetting against the first applicant, and a charge of bribery against the second applicant.

On 30 June 2005 both applicants were questioned by a prosecutor of the Prosecutor General’s Office. The first applicant pleaded guilty.

On 12 July 2005, having studied the material in the criminal case file, the representative of the first applicant asked the prosecutor to disclose a document attesting to the lawfulness of the interception of the telephone conversations between both applicants. On the same day the supervising prosecutor dismissed that request, arguing that the decision to authorise interception of the telephone conversations of the applicant and other persons had been adopted under 17(3) of the Law on Operational Activities, and therefore was not a procedural document. Moreover, the document had been classified as a State secret. The prosecutor also argued that the existence of such authorisation had been confirmed by the KNAB, and that there were no grounds to question the validity of that confirmation. The first applicant did not appeal against that reply to a more senior prosecutor.

On 15 July 2005 the criminal case concerning both applicants was referred to a court.

It appears that on 18 October 2005 the representative of the first applicant sent a complaint about the activities of KNAB officials in relation to the phone tapping to the Prosecutor General’s Office. The prosecutor in charge replied that the phone tapping had been authorised by a judge of the Supreme Court, and that the KNAB had not infringed any provisions of the Law on Operational Activities. The prosecutor also stated that the information obtained as a result of the operational activities was open to assessment in the course of the criminal proceedings. The first applicant did not appeal against that reply to the Prosecutor General.

On 2 November 2005 the Riga City Vidzeme District Court, acting as a first-instance court and presided over by Judge B.T., acquitted the first applicant. The court found the second applicant guilty and gave him a suspended sentence of two years’ imprisonment. He pleaded guilty during the hearing, therefore the court proceeded without assessing the evidence.

On 8 November 2005 the prosecutor submitted an appeal contesting the acquittal of the first applicant, and asked for an immediate custodial sentence to be imposed in relation to the second applicant. He asked the appellate court to give a new judgment in respect of the parts of the original judgment which were contested. The second applicant submitted an appeal concerning the severity of his sentence.

Between 24 and 27 October 2006 the Riga Regional Court, acting as an appellate court, held several hearings during which the second applicant pleaded guilty. The representative of the first applicant submitted that the case file did not contain any information pertaining to the authorisation of the interception of phone conversations, which had been the main evidence against her. During the hearing, the prosecutor confirmed orally that judicial authorisation had been obtained.

On 31 October 2006 the appellate court adopted a judgment which upheld the prosecutor’s appeal and quashed the disputed parts of the lower court’s judgment. The appellate court found the first applicant guilty, giving her a suspended sentence of one year’s imprisonment. It also revoked the suspension of the second applicant’s prison sentence and he was taken directly to prison from the courtroom. The appellate court stated, inter alia, “the court recognises all the evidence in the criminal case as admissible, on the grounds that the factual information has been obtained and established (nostiprinātas) in line with procedure and in accordance with the order set out by law ...”.

In an appeal on points of law the first applicant argued that the tapped phone conversations should not have been admitted as evidence, as they had been obtained without proper authorisation. The second applicant submitted, inter alia, that the appellate court had not assessed the lawfulness of the phone tapping and had ignored the fact that the criminal case had contained no reference to any authorisation to carry out the above activity as prescribed by Article 176¹ of the Code of Criminal Procedure. In this regard, he also submitted that the appellate court had consequently failed to observe that interference in a person’s private life should be in accordance with the law, as required by Article 8 of the Convention.

On 19 January 2007 the Senate of the Supreme Court dismissed the appeal on points of law in open court. In response to the Article 8 complaint, the Senate stated that the phone had been tapped “in accordance with section 17 of the Law on Operational Activities, and not as a special investigative measure under Article 176¹ of the Code of Criminal Procedure”.

Meanwhile, during a judges’ conference on 4 November 2005, the Minister of Justice stated in her opening speech:

“Today I would say that I, like the majority of you sitting in this hall, am powerless against the actions of our colleagues, which neither society nor I personally understand”.

A daily news report on 4 November 2005 mentioned that the minister had admitted to journalists that she had been referring to the judgment adopted by Judge B.T. in her speech (see paragraph 21 above):

“Yes, I am not authorised to comment on particular cases where the adjudication is still pending, but I consider that I have the right to express an opinion on behalf of other judges who carry out their work honestly.”


CASE OF GEROVSKA POPČEVSKA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano;Ksenija Turković

The applicant was born in 1954 and lives in Skopje.

On 3 April 2006 the State Anti-Corruption Commission, chaired at the time by M.M., who subsequently (July 2006) became the Minister of Justice, asked the State Judicial Council (“the SJC”) to review (предлог за проверка) a civil case (no. IV P.br. 2904/01) which the applicant had adjudicated at first instance as president of a three-judge panel. The case concerned compensation proceedings against the State.

On 19 April 2006 the Civil Division of the Supreme Court convened to draw up an opinion stating that there were grounds for instituting professional misconduct proceedings in respect of the applicant regarding civil case no. IV P.br. 2904/01. According to the record of that meeting, the opinion had been requested by Judge D.I., who was the President of the Supreme Court at that time. The record did not list the members of the Civil Division of the Supreme Court that adopted the opinion. According to the applicant, Judge D.I. was a member of the Civil Division that adopted the opinion.

On 26 April 2006 the SJC asked the plenary of the Supreme Court, under section 21 of the State Judicial Council Act of 1992 (“the 1992 Act”, see paragraph 24 below), to draw up a report on the issue of whether the applicant’s dismissal from the office of judge would be justified.

On the same date the SJC, composed in accordance with Article 104 of the Constitution (see paragraph 22 below), instituted (поведува постапка) professional misconduct proceedings in respect of the applicant due to misapplication of procedural and substantive law in civil case no. IV P.br. 2904/01. It referred to the request submitted by the State AntiCorruption Commission and further relied, inter alia, on the opinion of the Civil Division of the Supreme Court. The applicant responded in writing.

In December 2006 eight members of the SJC (all judges) were appointed in accordance with Amendment XXVIII of the Constitution (see paragraph 23 below). V.G., a member of the SJC, was nominated as the complainant (овластен предлагач), as set out in section 55 of the State Judicial Council Act of 2006 (“the 2006 Act”, see paragraph 25 below), in the applicant’s case.

On 25 December 2006 the plenary of the Supreme Court, chaired by Judge D.I., drew up an opinion regarding the applicant’s case. The relevant part of the opinion, signed by Judge D.I., reads as follows:

“The plenary of the Supreme Court ... unanimously endorses the complete [text of] the opinion of the Civil Division and finds that there are grounds for dismissing (the applicant) for professional misconduct.”

On 26 February 2007 a hearing was held before the SJC Commission for determination of professional misconduct by a judge (Комисија за утврдување нестручно и несовесно вршење на судиската функција, hereinafter “the Commission”), set up under section 58 of the 2006 Act (see paragraph 25 below). V.G. was not a member of the Commission. Both the applicant, who was represented by legal counsel, and V.G. submitted their arguments verbally. The Commission also took into account the opinions of the Civil Division and the plenary of the Supreme Court. On 28 February 2007 it drew up a report, which it communicated to the SJC.

On 14 March 2007 the plenary of the SJC, which included only ten of its members, namely eight judges elected by their peers, as well as the then Minister of Justice and Judge D.I., who were ex officio members of the SJC (see Amendment XXVIII to the Constitution, paragraph 23 below), dismissed the applicant from the office of judge for professional misconduct. The SJC found that she had wrongly applied procedural and material law in civil case no. IV P.br. 2904/01, which she had decided out of the established order in which cases should have been dealt with. The dismissal decision referred to the request submitted by the State AntiCorruption Commission and further was based on evidence adduced at the hearing before the Commission, including the opinions of the Civil Division and the plenary of the Supreme Court.

The applicant challenged that decision at second instance, namely before an appeal panel formed within the Supreme Court (“the Appeal Panel”). Such panels were set up on an ad hoc basis in each separate case. As specified in section 60 of the 2006 Act (see paragraph 25 below), the Appeal Panel was composed of nine judges, of whom three were Supreme Court judges, four Appeal Court judges and two judges from the court of the applicant. On 8 May 2007 the Appeal Panel dismissed the applicant’s appeal and upheld the SJC’s decision. The Appeal Panel included Judge L.Š., who had adjudicated in another case allegedly related to case no. IV P.br. 2904/01. According to the applicant, her request for the withdrawal of Judge L.Š., a copy of which was not produced, was to no avail.

On 19 December 2007 the Constitutional Court rejected (отфрла) a constitutional appeal in which the applicant claimed that her dismissal had violated her freedom of conscience, freedom of thought and freedom of public expression. As regards the dismissal, the Constitutional Court found that it had no jurisdiction to review the lawfulness of the SJC’s decision. As to whether the applicant’s dismissal affected her freedom of expression, the court held that a distinction had to be made between exercising the office of judge and that particular freedom. It ruled that the office of judge entailed the right and duty to adjudicate in accordance with the law, and that that right and duty did not form part of the rights and freedoms on which it had competence to decide under the Constitution (У.бр.145/2007).

The applicant submitted copies of several articles published between April and December 2006 in the daily newspapers Vreme and Dnevnik.

An article published on 20 April 2006 quoted a report by the Supreme Court stating that the law had been wrongly applied in civil case no. IV P.br. 2904/01.

An article of 27 December 2006 stated that the Supreme Court had confirmed that the applicant should be dismissed from office. It reported Judge D.I. as saying that the SJC in its new composition should follow their recommendations. In this connection, the article quoted Judge D.I. as saying:

“We only gave a reminder that responsibility should be established (треба да се сноси одговорност).”

An article of 28 December 2008 stated:

“D.I., the President of the [Supreme] Court, asked (the SJC) to dismiss (the applicant) for professional misconduct.”

An article dated 11 January 2007 published in the daily newspaper Dnevnik quoted Judge D.I. as saying, inter alia:

“We will submit an opinion as to whether (the applicant) should be dismissed once the responsibility of other institutions has been established. For the Supreme Court, that there has been professional misconduct [on the part of the applicant] is beyond any doubt (не е спорна нестручноста и несовесноста на судијката во случајов). The Civil Division has already established that.”


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

The applicant, Mr Sreten Glendža, is a Montenegrin national, who was born in 1962 and lives in Ulcinj. He was represented before the Court by Mr R. Vukmanović, a lawyer practising in Ulcinj.

The Montenegrin Government (“the Government”) were represented by their Agent at the time, Mr Z. Pažin.

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

On 19 January 2009 the Supreme State Prosecution (Vrhovno državno tužilaštvo) issued an indictment against the applicant on suspicion that he had committed a war crime against civilians.

On 21 January 2009 the High Court (Viši sud) in Podgorica ordered his detention.

On 23 January 2009 the applicant was arrested. The same day he appealed against the detention order, which appeal was received at the High Court on 24 January 2009 at the latest.

On 24 February 2009 the applicant complained to the Supreme Court that, inter alia, he had received no decision upon his appeal against the detention order.

On 2 March 2009 the Court of Appeals (Apelacioni sud) in Podgorica dismissed the applicant’s appeal in this regard.

On 23 March 2009 the applicant lodged a constitutional appeal. He submitted, inter alia, that the Court of Appeals had failed to rule on his appeal against the detention order within 48 hours, contrary to the relevant domestic provisions in that regard (see paragraphs 14 and 23 below).

On 29 March 2011 the High Court acquitted the applicant and he was released. On an unspecified date thereafter the High Court decision would appear to have been quashed, but no order was given for the applicant to be re-detained.

On 2 June 2011 the Constitutional Court found a violation of Article 5 § 4 of the Convention and Article 30 § 3 of the Constitution of Montenegro. In particular, the Constitutional Court established that the High Court had not immediately transmitted the applicant’s case-file to the Court of Appeals for a ruling on his appeal against the detention order. Notably, on 5 February 2009 the High Court had sent the applicant’s case-file to the Court of Appeals, which had received it on 9 February 2009. The same day the case-file had been returned to the High Court because certain documents had been served improperly on some of the co-accused in the same set of criminal proceedings. On 27 February 2009 the High Court had transmitted the documents to the Court of Appeals, which court had received them on 2 March 2009 and the same day had ruled on the applicant’s appeal. The decision of the Constitutional Court was served on the applicant on 28 July 2011.

On 22 November 2012 the High Court acquitted the applicant, which judgment was upheld by the Court of Appeals on 17 May 2013.

On 12 February 2013 the applicant lodged a compensation claim, pursuant to the relevant provisions of the Criminal Procedure Code 2009 (see paragraph 25 below), seeking both pecuniary and non-pecuniary damage for unlawful detention. The claim would appear to be currently pending before the first-instance court.

Article 30 lays down detailed rules as regards detention. In particular, paragraph 3 provides that a detainee has the right to lodge an appeal against a detention order, on which the court shall rule within 48 hours.

Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

The Constitution entered into force on 22 October 2007.

Section 48 of the Montenegro Constitutional Act provided that a constitutional appeal could be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies had been exhausted.

Sections 49-59 provided additional details as regards the processing of constitutional appeals. Section 56 provided that if the impugned decision had lost its force (prestalo pravno dejstvo) by the time the Constitutional Court ruled on the constitutional appeal, the Constitutional Court would only find a violation if it considered that a human right or freedom was breached.

None of the sections provided for a possibility for the Constitutional Court to award damages.

This Act entered into force in November 2008.

At the relevant time Article 16 provided, inter alia, for an obligation of the courts to conduct the proceedings without delay, and to keep the duration of detention to the shortest time needed.

Article 147 § 2 provided for a duty of all the bodies involved in criminal proceedings to act with particular urgency if the accused was in detention.

Article 149 provided, inter alia, that a detainee could appeal against a detention order within 24 hours. The appeal, the detention order and other relevant documents were to be immediately forwarded to the panel of judges, which was to rule on the appeal within 48 hours.

Articles 15, 174 § 2 and 176 of this Act correspond, in substance, to sections 16, 147 § 2 and 149 of the Criminal Procedure Code 2003.

Articles 498-506 set out details as regards compensation for, inter alia, unlawful detention. Article 502, in particular, provides that an individual is entitled to compensation if he or she was in detention and was subsequently acquitted by means of a final judgment.

This Code entered into force on 1 September 2011, repealing the 2003 Code, except for Chapter XXIX, which Chapter is not relevant in the present case.

Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or other personal rights (prava ličnosti) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.

Section 166 provides, inter alia, that a legal entity (pravno lice), which includes the State, shall be liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or in relation thereto.