CASE OF BRITISH GURKHA WELFARE SOCIETY AND OTHERS v. THE UNITED KINGDOM

Remainder inadmissible (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano;Simon Brown

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

Nepalese Gurkha soldiers have served the Crown since 1815, initially as soldiers in the (British) Indian Army. Following Indian independence in 1947, six Gurkha regiments were transferred to the Indian Army, while four regiments became an integral part of the British Army. More than 200,000 Gurkha soldiers fought in the two world wars, and in the past fifty years they have served in Hong Kong, Malaysia, Borneo, Cyprus, the Falklands, Kosovo, Iraq and Afghanistan. They have served in a variety of roles, mainly in the infantry but also as engineers and in signals and logistics units.

Today, they form the Brigade of Gurkhas (“the Brigade”), in which only Nepali nationals are eligible for service. The Brigade is not an operational brigade in the conventional sense; rather, it is an administrative entity which ensures that Gurkha units, into which all Gurkha soldiers are recruited and serve, are able to be integrated into – and form part of – other operational brigades in the British Army.

The Brigade was originally based in the Far East, in the region formerly known as Malaya. In 1971 the Brigade’s base moved to Hong Kong. On completion of the handover of Hong Kong to China in July 1997, the home base moved to the United Kingdom. Consequently, the majority of Gurkhas are currently stationed in the United Kingdom, although since 1962 a section of the Brigade has been stationed in Brunei.

Pursuant to a memorandum of understanding of 9 November 1947 (“the Tripartite Agreement”), the Governments of the United Kingdom, India and Nepal agreed that the salary of Gurkhas serving in the British Army would be set by reference to rates applied by India in respect of Indian soldiers so as to avoid competition between the Indian and British armies for Gurkha recruits. The Brigade’s basic pay was therefore set in accordance with the Indian Pay Code, although cost-of-living allowances were paid for service outside Nepal. These allowances used to be calculated by reference to local living expenses (for example, in Hong Kong or Brunei), but in 1997, when the Brigade’s home base moved to the United Kingdom, a “universal addition” was introduced to ensure that, whenever a Gurkha soldier was serving outside Nepal, his take-home pay would be similar to that of a non-Gurkha soldier in the British Army of comparable rank and experience. However, the “universal addition” was not treated as pensionable pay.

Prior to 1 April 2006, Married Accompanied Service entitlement (that is, an entitlement for the soldier to be accompanied by wife and children) was for one married accompanied tour of between two and three years in the first fifteen years of service and for permanent accompanied service for Gurkhas ranked Colour Sergeant and above. However, with effect from 1 April 2006, those who had served for three years or more in the Brigade were entitled to Married Accompanied Service (in other words, they were entitled to be joined in the United Kingdom by their wives and children).

Gurkha soldiers are required to retire after fifteen years’ service, subject to the possibility, dependent on rank, of one or more yearly extensions.

In comparison, other soldiers in the British Army are entitled to serve for twenty-two years.

Historically, Gurkha soldiers were discharged to Nepal and it was presumed that they would remain there during retirement.

On 25 October 2004 the Immigration Rules (HC 394) were changed to permit Gurkha soldiers with at least four years’ service who retired on or after 1 July 1997 (the date that the Gurkha’s home base relocated to the United Kingdom) to apply for settlement in the United Kingdom. Approximately 90 per cent of the 2,230 eligible Gurkha soldiers have since applied successfully to settle in the United Kingdom with their qualifying dependants.

On 21 May 2009 the Secretary of State for the Home Department announced a new policy under which all former Gurkhas who had served in the British Army for at least four years would be eligible for settlement in the United Kingdom. Approximately thirty-five per cent of those eligible have since applied for resettlement in the United Kingdom.

The Tripartite Agreement provided that the pensions of Gurkhas serving in the British Army would also be set by reference to the rates applied by India to Indian soldiers.

In 1949 the Gurkha Pension Scheme (“GPS”) was established by Royal Warrant and applied the former Indian Army Pensions Code to Gurkhas serving in the Brigade. Pension entitlements under the GPS were index-linked to the cost of living in Nepal as it was presumed that the Gurkhas would retire there. Pensions were immediately payable upon retirement and could not be deferred. A Gurkha who retired without having served fifteen years would be entitled to no pension whatsoever.

In 1981 Gurkha pensions were reviewed and the rate payable was set at the highest rate applicable under the Indian Army pension arrangements.

In 1999, following a ministerial review, the rates applicable to the pensions of Gurkhas in the Brigade were increased by over 100 per cent, taking them over the scales set by the Indian Army. The rationale for the increase was that a Gurkha who retired from the Brigade to Nepal would not receive the benefit of various schemes which soldiers retiring from the Indian Army could access, such as the provision of certain medical facilities. The increase applied to all Gurkhas regardless of the date of discharge.

Non-Gurkha soldiers retiring from the British Army are entitled to pensions under either the Armed Forces Pensions Scheme 1975 (“AFPS 75”) or the Armed Forces Pensions Scheme 2005 (“AFPS 05”) depending on when they commenced service. Neither scheme is indexlinked with the cost of living in the soldier’s country of origin.

Under the AFPS, soldiers are eligible for deferred pensions, payable at the age of 60, provided that they have rendered at least two years’ service before leaving the British Army. In order to receive an immediate pension officers are required to serve for sixteen years and all other ranks are required to serve for twenty-two years; however, in practice fewer than one fifth of non-Gurkha soldiers in the British Army serve for sufficiently long periods to be eligible for an immediate pension.

The annual pension entitlement under the GPS is broadly equivalent – taking into account the adjustments made in 1981 and 1999 – to one-third of that under the AFPS.

Following the 2004 amendment to the Immigration Rules (see paragraph 13 above), the Secretary of State for Defence announced a review of the Gurkhas’ Terms and Conditions of Service. The review noted that the 2004 amendment to the Immigration Rules and the changes to Married Accompanied Service (see paragraph 9 above) had changed the traditional assumption that British Gurkhas would retire in Nepal, and pointed to a future in which they could be expected increasingly to regard the United Kingdom, rather than Nepal, as their family base. The Review Team therefore concluded that, the affordability issues notwithstanding, the major differences in Gurkha terms and conditions of service could no longer be justified on legal or moral grounds and recommended that they be modernised by bringing them largely into line with those available to the wider Army.

With regard to pensions, the review concluded that on balance the GPS was more suitable than the AFPS to support the life-cycle of the great majority of Gurkhas up until July 1997. However, moving the Brigade’s base to the United Kingdom and the subsequent change to the Immigration Rules had altered the previously valid assumption that Gurkhas would retire in Nepal. For a Gurkha retiring to a second career in the United Kingdom, the GPS profile was

“clearly wrong, paying sums too small to be useful at a time when he does not need them and an inadequate pension at retirement age. As the life profile of the typical Gurkha approaches that of his UK/Commonwealth counterpart, there can be little to be said in favour of providing them with such different pension benefit profiles.”

The report recommended that serving and retired members of the Brigade should be allowed to transfer from the GPS to either AFPS 75 or 05, depending on when they enlisted. Those who were already in the GPS and wished to remain in it could do so, but it would be closed with effect from April 2006.

In March 2007 the United Kingdom formulated the Gurkha Offer to Transfer (“GOTT”) and this was given effect in the Armed Forces (Gurkha Pension) Order 2007 (“the 2007 Order”). Gurkhas who retired before 1 July 1997 did not qualify for the GOTT. However, the GOTT enabled Gurkha soldiers who retired on or after 1 July 1997 to transfer from the GPS to either AFPS 75 or AFPS 05 depending on when they first enlisted in the British Army. The terms of any transfer were such that the accrued rights to a pension for service after 1 July 1997 would transfer into the AFPS scheme on a year-for-year basis.

In respect of service rendered before 1 July 1997 the Explanatory Memorandum to the 2007 Order explained that

“although Gurkha service from 1 July 1997 is transferable on a one-for-one basis, Article 2 L4 provides that pre-1997 Gurkha service counts proportionately depending upon the rank of the transferee. This proportion is not arbitrary: it has been arrived at after careful calculation by the Government Actuary’s Department. It represents broadly the value of the pre-1997 benefits accrued in the GPS. A Gurkha transferring to either AFPS will be given fair pension value for his GPS service.”

Under the actuarial calculation adopted by the Government, a year’s service before 1 July 1997 translated – in terms of pension entitlement – to the equivalent of between 23 and 36 per cent of the value of a year’s service of a non-Gurkha soldier of equivalent rank.

The transition from the GPS to the AFPS for those opting to transfer who were already in receipt of a pension under the GPS did not deprive them of their existing GPS pension, which would continue to be paid. Transfer to the relevant AFPS occurred at 60 or 65, when they received the preserved pension. However, as they had been in receipt of the GPS pension from around the age of thirty-three, the capital value of the pension pot at retirement age would be reduced by the payments received under the GPS up to that date.

Nearly all serving Gurkhas elected to transfer to the AFPS (only 0.3 per cent elected to remain in the GPS). Of those who had retired, but remained eligible for transfer, approximately three per cent elected to remain in the GPS.

The first applicant is a non-governmental unincorporated association that acts on behalf of 399 former members of the Brigade.

The second applicant is a former Gurkha soldier who retired from the Brigade on 8 February 1997 after having accumulated fifteen years’ service. As he completed his service prior to 1 July 1997, he is ineligible to transfer any of his pensionable years to one of the AFPSs. His pension continues to be governed by the GPS and, as such, is valued at approximately fifty per cent of that which a British soldier of equivalent rank would receive for the same period and type of service.

The third applicant is a former Gurkha soldier who retired from the Brigade on 31 July 2002 after having accumulated almost thirty-one years’ service. The last five years of service were transferred into the AFPS on a year-for-year basis. The preceding twenty-six years of service were transferred under an actuarial calculation pursuant to the 2007 Order. Under that calculation the pensionable value of each of his years of service was regarded as equivalent to approximately twenty-seven per cent of a pensionable year served by a British soldier of equivalent rank engaged in the same type of service.

On 7 March 2008 the applicants issued an application for judicial review in the High Court challenging the legality of both (a) the decision that Gurkhas who retired prior to 1 July 1997 were not entitled to transfer their pension rights under the GPS into the AFPS and (b) the decision that, for those Gurkhas who retired after 1 July 1997, service before that date did not rank on a year-for-year basis. The challenge was advanced on three grounds: under the Race Relations Act 1976 (namely, that there had been a breach of a procedural duty to promote equality of opportunity); on grounds of irrationality; and under Article 1 of Protocol No. 1 read together with Article 14. In relation to the third ground, the applicants alleged that they were discriminated against in their entitlement to an army pension on the basis of their age and/or nationality. In particular, they argued that they were treated differently both from younger Gurkha soldiers who had (more) years of service after 1 July 1997 and from regular British Army soldiers.

The applicants were granted permission to pursue their judicial review application. A hearing took place in October 2009. At the hearing the parties agreed that the 2009 change to the Immigration Rules (see paragraph 14 above) was irrelevant for the purpose of the proceedings.

On 11 January 2010 the High Court dismissed the application on all three grounds. In respect of the age discrimination challenge the High Court relied on its earlier decision in R (Gurung) v. Ministry of Defence [2008] EWHC 1496 (Admin) (summarised at paragraphs 45 – 49 below), in which it held that the difference in treatment did not occur due to the difference in age but due to the dates at which service had been rendered. The judge in the present applicants’ case noted that

“when lines are drawn for any purpose by reference to dates the result may well include some indirect age discrimination.”

In reaching this conclusion, the court rejected the argument – advanced by the applicants – that age discrimination should be treated as a “suspect” ground.

In respect of the discrimination-on-grounds-of-nationality challenge the High Court considered that it was bound by R (Purja and Others) v. Ministry of Defence [2003] EWCA Civ 1345 (summarised at paragraphs 41 – 44 below), in which the Court of Appeal had ruled that Gurkhas with service before 1 July 1997 were in a markedly different position from other soldiers serving in the British Army before that date. The difference in pension arrangements reflected the different historical position of the Gurkhas. Although the High Court accepted that the 2004 change in the Immigration Rules (see paragraph 13 above) undermined some of the assumptions supporting the decision in Purja, it held that the changes did not affect the reasoning of the Court of Appeal as that reasoning applied to the calculation of pension entitlements which accrued before 1 July 1997. For all the reasons advanced by the High Court Judge in Gurung, the High Court considered that the choice of 1 July 1997 to mark the boundary for different treatment of accrued pension was a rational and reasonable one.

The applicants were granted permission to appeal to the Court of Appeal. On appeal, their case was put exclusively by reference to Article 14 of the Convention read together with Article 1 of Protocol No. 1.

On 13 October 2010 the Court of Appeal dismissed the applicants’ appeal. In respect of the discrimination-on-grounds-of-nationality claim the Court of Appeal, like the High Court, considered itself bound by the decision in Purja (cited above). In respect of the age-discrimination claim the court, relying on the Strasbourg Court’s judgment in Neill v. the United Kingdom, no. 56721/00, 29 January 2002, held that even if a relevant comparison could be drawn between older and younger Gurkhas, the Ministry of Defence could easily justify the difference in treatment.

On 13 December 2010 the Supreme Court refused to grant the applicants permission to appeal.


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

Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque

The applicant was born in 1966 and lives in Valea Călugărească.

In 1993 the applicant was sentenced to twenty years’ imprisonment for homicide. Between 24 November 2004 and 12 November 2008 he was serving his sentence in Arad Prison.

The applicant alleged that, between 24 November 2004 and 2 October 2008, while he had been under a closed prison regime in Arad Prison, he had been taking his daily three hours of exercise in outside yards which lacked access to toilets or running water. At certain times there were as many as fifty prisoners in one recreation yard. Especially during the hot days of summer the situation could have been described as inhuman and humiliating, because he had been forced to satisfy his physiological needs together with other prisoners along the fences of the yard, in the same place where they were supposed to walk and breathe fresh air.

The applicant alleged that he had on numerous occasions asked the Arad Prison administration to provide sanitary facilities and running water in the recreation yards. His requests had been consistently ignored or had received the reply that renovation works were planned for the future.

On 4 June 2008, the applicant lodged a new complaint asking the prison authorities to equip the recreation yards with running water and toilets. The prison authorities noted on the applicant’s request that in fact he had been allowed to take water with him during his daily exercise and he had also been able to go to his cell in order to satisfy his physiological needs during this time. They further noted “At the moment renovation works are under way in the yards.”

On 16 July 2008 the post-sentencing judge in Arad Prison rejected a complaint on the same matter lodged by the applicant. The judge held that Law no. 276/2006 on the execution of sentences did not provide for the right to have access to sanitary facilities and water during the prisoners’ daily outside exercise.

Relying on the provisions concerning the prisoners’ right to daily exercise set forth by Law no. 276/2006 as well as the provisions of Article 3 of the Convention, the applicant made a complaint against the above-mentioned decision before the Arad District Court. He also sought compensation for non-pecuniary damage in respect of the inhuman treatment he had been suffering during his daily exercise since 24 November 2004 in Arad Prison. The Arad Prison administration maintained before the court that the law did not provide for an obligation to equip the recreation yards with sanitary facilities.

In a final judgment of 28 October 2008 the Arad District Court found that the applicant had indeed been deprived of access to a toilet and drinking water during daily exercise, and that this was in breach of Article 48 of Law 275/2006, which regulates prisoners’ right to daily exercise. The court based its decision on witness statements as well as on information submitted by the prison authorities. In view of the evidence before it, the court allowed the applicant’s complaint and ordered the Arad Prison authorities to ensure the applicant’s right to daily exercise in a yard provided with sanitary facilities and drinking water. The applicant’s request for damages was rejected as out of time, since it had not first been raised before the post-sentencing judge.

In the meantime, on 23 October 2008 the post-sentencing judge in Arad Prison had studied another complaint lodged by the applicant in respect of another alleged breach of his rights. In this context the post-sentencing judge held that he was not competent in law to deal with the applicant’s request for compensation for non-pecuniary damage.

On 2 October 2008 the applicant was placed under a semi-open detention regime, because his prison term was approaching its end. He was moved to a different prison wing, where the recreation yard was provided with both toilets and drinking water.

On 12 November 2008 the applicant was conditionally released from prison.

In a letter dated 2 June 2014, submitted by the Government, the National Administration of Prisons mentioned that the recreation yards of Arad Prison could not technically be equipped with sanitary facilities because the prison lacked a sewage collection and disposal system. At the time the letter was sent, running water had been made available in all yards.


CASE OF MOREIRA FERREIRA v. PORTUGAL (No. 2)

Preliminary objection dismissed (Article 35-3-a - Ratione materiae);Remainder inadmissible (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Criminal charge;Fair hearing)

András Sajó;Angelika Nußberger;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Marko Bošnjak;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Paul Mahoney;Paulo Pinto De Albuquerque;Síofra O’Leary;Vincent A. De Gaetano

The applicant was born in 1961 and lives in Matosinhos.

Following an altercation with other persons, the applicant was prosecuted by the public prosecutor at the Matosinhos District Court for threatening conduct. An expert report was produced during the investigation, stating that the applicant had limited intellectual and cognitive capacities but that she should be held criminally responsible for her acts.

In a judgment of 23 March 2007 the Matosinhos District Court dismissed the applicant’s defence of diminished criminal responsibility and sentenced her to 320 day-fines, amounting to a total of 640 euros (EUR), for threatening and insulting conduct, as well as ordering her to pay damages to the victims.

On 13 April 2007 the applicant appealed to the Oporto Court of Appeal (“the Court of Appeal”) against the judgment. She repeated that she had been unaware of the unlawfulness of her acts and sought an acknowledgment of her lack of criminal responsibility owing to the psychiatric disorders from which she claimed to suffer. Consequently, she asked for a fresh assessment of the facts and the opportunity to state her case at a hearing.

On 12 December 2007 the Court of Appeal held a hearing attended by the public prosecutor and counsel for the applicant. However, no examination of the applicant herself took place.

In a final judgment of 19 December 2007 the Court of Appeal upheld the applicant’s conviction for threatening and insulting conduct, but reduced the sentence to 265 day-fines, amounting to a total of EUR 530. It held that there was no need for a fresh assessment of the facts because the applicant had not succeeded in challenging the validity of the assessment conducted by the court of first instance.

The applicant paid the fine in several instalments.

During the hearing before the Court it was pointed out that in January 2016, five years after the fine had been paid in full, the entry concerning the applicant’s conviction had been deleted from her criminal record.

On 15 April 2008 the applicant lodged an application with the Court complaining that she had not been heard in person by the Court of Appeal, and that this violated Article 6 § 1 of the Convention.

In a judgment of 5 July 2011 the Court declared admissible the complaint under Article 6 § 1 of the Convention and found a violation of that provision, holding as follows:

The Court notes that in the present case the Court of Appeal was invited to determine several questions relating to the facts of the case and to the person of the applicant. As before the court of first instance, the applicant raised, in particular, the question whether her criminal responsibility should have been deemed diminished, which might have had a major impact on the determination of the sentence.

The Court takes the view that that question could not have been settled by the Court of Appeal without a direct assessment of the applicant’s personal testimony, particularly since the judgment of the Matosinhos District Court had departed slightly from the conclusions of the psychiatric report without setting out the reasons for such a departure, as required under domestic law ... The Court of Appeal’s re-examination of that question should therefore have comprised a full rehearing of the applicant ...

Those factors are sufficient for the Court to conclude that in the instant case a public hearing should have been held before the appellate court. There has therefore been a violation of Article 6 § 1 of the Convention.”

As regards the claims in respect of pecuniary and non-pecuniary damage under Article 41 of the Convention, the Court stated the following:

“41. The Court firstly considers that when, as in the instant case, an individual has been convicted after proceedings that have entailed breaches of the requirements of Article 6 of the Convention, a retrial or the reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. In that regard, it notes that Article 449 of the Portuguese Code of Criminal Procedure permits the reopening of proceedings at domestic level where the Court has found a violation of a person’s fundamental rights and freedoms. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court’s judgment in that case (see Öcalan v. Turkey [GC], no. 46221/99, § 210, ECHR 2005-IV, and Panasenko v. Portugal, no. 10418/03, § 78, 22 July 2008). In the present case, the only point at issue is the fact that the applicant was not given a hearing by the Court of Appeal.

Secondly, the Court notes that in the present case the only applicable basis for an award of just satisfaction lies in the fact that the applicant was not afforded the safeguards of Article 6. In that regard, it does not discern any causal link between the violation found and the pecuniary damage alleged, and rejects this claim. The Court cannot speculate as to what the outcome of the proceedings before the Court of Appeal would have been if it had examined the applicant at a public hearing (see Igual Coll v. Spain, no. 37496/04, § 51, 10 March 2009). On the other hand, it considers it appropriate to award the applicant EUR 2,400 in respect of non-pecuniary damage.”

On 5 July 2012 the Portuguese Government submitted an action plan to the Committee of Ministers concerning the execution of the Court’s judgment of 5 July 2011. They confirmed that the amount awarded to the applicant had been paid to her on 14 December 2011. As regards the general measures, the Government pointed out that the Prime Minister’s Office had proposed amending the Code of Criminal Procedure to allow hearings to be held in any court of appeal determining the issue of guilt or the sentence in respect of an accused person.

At the hearing before the Court it was pointed out that the aforementioned proposal had not been approved and had therefore not in fact been included in the final version of the revised Code of Criminal Procedure.

At the time of adoption of the present judgment no plans to reform the Code of Criminal Procedure were on the domestic authorities’ agenda. The procedure for supervising the execution of the judgment of 5 July 2011 was still pending before the Committee of Ministers.

Concurrently, on 18 October 2011, relying on Article 449 § 1 (g) of the Code of Criminal Procedure, the applicant lodged an application for review with the Supreme Court. She submitted that the Court of Appeal’s judgment of 19 December 2007 was incompatible with the Court’s judgment of 5 July 2011.

The prosecution submitted that the application should be allowed on the grounds that serious doubts could legitimately be raised about the conviction, particularly as regards the sentencing.

In a judgment of 21 March 2012 the Supreme Court refused to grant a review. It held that there was no cause for a review because the judgment delivered by the Court of Appeal was not incompatible with the Court’s judgment. It considered that the lack of a hearing for the applicant in the Court of Appeal had constituted a procedural irregularity that was not amenable to review, and held as follows:

“... under domestic law, an application for review can be submitted solely in respect of judgments (in particular, convictions), and not in respect of orders concerning the conduct of proceedings, it being understood that ... ‘judgment’ denotes any judicial decision on a case or on a procedural application (see Article 156 § 2 of the Code of Civil Procedure).

In the light of domestic law, however, a review of the judgment in the present case cannot be allowed on the basis invoked by the applicant, because the conviction is not incompatible with the European Court’s judgment (Article 449 § 1 (g) of the Code of Criminal Procedure). On the other hand, the procedure followed by the Court of Appeal in holding the hearing at the close of which the appeal was determined was incompatible with what the European Court has deemed vital in order to guarantee the rights of the defence.

Under domestic law, where the accused is legally required to appear in court, his or her absence entails an irremediable nullity (Article 119 (c) of the Code of Criminal Procedure).

However, even where a nullity is irremediable, it cannot give rise to an extraordinary application for review of the judgment ...

Furthermore, as noted by the European Court, it is impossible to speculate about the decision which the Court of Appeal might have taken if the convicted person had been examined at the hearing which led to the decision on her appeal, and, in particular, about whether or not the sentence would have been the same.

The European Court thus precluded from the outset any possibility that its decision might raise serious doubts about the conviction, regardless of the sentence actually imposed.

In short, the conviction is not incompatible with the European Court’s binding decision, and no serious doubts arise as to its validity.

For that reason, being aware that it is not always possible to secure a retrial or the reopening of proceedings under the applicable domestic law, as in the present case, the European Court decided to require the Portuguese State to compensate the applicant in respect of non-pecuniary damage, and thus to afford redress not for the unfairness of the conviction, which has not been established, but for a serious defect in the conduct of the proceedings which infringed the applicant’s defence rights ...

For the above reasons, the applicant’s argument in support of her application to be granted a review is not substantiated.

Consequently, the judges of the Criminal Division of the Supreme Court decide not to grant a review.”


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1975 and lives in Zemun.

On 12 March 2003 the Serbian Prime Minister, Mr Zoran Đinđić, was assassinated by members of a criminal group known as the Zemun Clan (Zemunski klan).

The Prime Minister’s assassination prompted the Serbian Government to declare a state of emergency and introduce measures in accordance with the State of Emergency Act 1991 (Zakon o merama za slučaj vanrednog stanja, Official Gazette of the Republic of Serbia, no. 19/1991).

During that time a large-scale police operation known as Operation Sabre (Sablja) took place. Approximately 10,000 people were arrested during the operation and placed in pre-trial detention.

The state of emergency lasted until 23 April 2003.

The applicant was a member of a criminal group linked to the Zemun Clan. During Operation Sabre all members of the Zemun Clan and groups linked to it were arrested and questioned about the Prime Minister’s assassination. Those arrested were also questioned about other crimes such as murders, abductions and drug trafficking.

The applicant’s arrest took place at around 4 p.m. on 1 April 2003, when five members of the Special Anti-Terrorist Unit broke into the apartment in which he was hiding with five friends.

The applicant claims that on the arrival of the Special Anti-Terrorist Unit he was subjected to physical and verbal abuse. Its members immediately started to kick and beat him indiscriminately all over his body and face. They put a pillowcase over his head, verbally abused him and made threats aimed at his family. The maltreatment continued for an hour. On the recording of his arrest, which was broadcast on national television at the beginning of April 2003, he was shown with visible bruises on his face.

At around 6 p.m. the applicant and his friends were taken to the police station and left in the corridor. According to the applicant, police officers passing by sporadically hit and kicked him and his friends. He could not identify them as his face was still covered with a pillowcase.

At some point two police officers came and took the applicant for questioning. He was taken to an office in which seven to nine people were present. Two or three of them were women.

According to the applicant, the maltreatment continued there. He was beaten with baseball bats and police truncheons. He was beaten on the soles of his feet and the palms of his hands. A truncheon was inserted several times into his anus. At one point, a nylon bag was put over the pillowcase which made him lose consciousness. During all that time the applicant remembered hearing his friends screaming.

At around 3.30 a.m. on 2 April 2003 two police officers took him to a solitary confinement cell. He was unable to walk so the officers carried him. In the cell his handcuffs were taken off and a detention order was put before him for signature.

As alleged by the applicant, approximately half an hour later two police officers entered the cell. They handcuffed him, put a bag over his head and took him for questioning. During that time he was again beaten, kicked and maltreated. Throughout this time, he was not allowed to drink any water.

In the applicant’s version of events, after approximately two hours of maltreatment he was returned to the solitary confinement cell. He was kept there for eleven days. During the first five days no food was given to him. Afterwards, he was given one sandwich per day. Throughout that period police officers routinely questioned and ill-treated him in the same way as before.

At approximately 10 p.m. on 12 April 2003 the applicant was transferred to Belgrade District Prison (Okružni zatvor), where he remained for a year and two months pending the outcome of the criminal proceedings instituted against him.

On 15 April 2003 a prison doctor examined him and issued a medical certificate, which contained an extensive list of his injuries. These included large haematomas on the soles of his feet, palms of his hands, face, shoulders and buttocks, as well as conjunctival hyperaemia (redness) on the external parts of his eyes. The certificate also contained a statement that the applicant had been “beaten in the police station”.

During the first sixty days of his detention in Belgrade District Prison he was placed in a solitary confinement cell and only had contact with the doctors who examined him. After two months he had fully recovered from the ill-treatment he had suffered.

On 13 October 2003 the applicant was charged with illegal production and trafficking of drugs (neovlašćena proizvodnja i stavljanje u promet opojnih droga), abduction (otmica) and unlawful deprivation of liberty (protivpravno lišenje slobode). On 22 June 2004 he was sentenced to four years and ten months’ imprisonment. He was released from pre-trial detention on 25 June 2004 pending the outcome of appeal proceedings.

On 18 May 2004 the applicant’s mother lodged a complaint with the Inspector General’s Service of the Ministry of the Interior (Generalni inspektorat Ministarstva unutrašnjih poslova), alleging that her son had been tortured by members of the Special Anti-Terrorist Unit and police officers working for the Narcotics Department of the Criminal Police Directorate (Odeljenje za suzbijanje narkomanije Uprave kriminalističke policije, also known as the Fourth Department) in Belgrade.

On 11 May 2005, 26 May 2005, 8 June 2005 and 12 January 2006 the applicant’s mother submitted additional information complaining that her son had been ill-treated, and that moveable property had been confiscated from his home.

On 24 February 2006 the applicant was invited to the Inspector General’s Service to give a statement about his mother’s allegations. He confirmed that he had been ill-treated.

On 16 March 2006 the Inspector General’s Service interviewed D.S., the Deputy District Public Prosecutor (zamenik Okružnog javnog tužioca) in Belgrade, who stated that in April 2003 he had been at the police station during the applicant’s questioning. D.S. gave the names of several of the police officers involved and stated that he had not seen any injuries on the applicant. On the contrary, the applicant had seemed pleased because he had been informed that he would be charged with lesser offences than expected. D.S. also claimed that the applicant had had no complaints about his treatment.

On 13 June 2006 statements were taken from two police officers, R.P. and A.K. Both claimed that they had not participated in the immediate arrest, but had entered the apartment after the members of the Special Anti-Terrorist Unit had already arrested the applicant and his friends. In the apartment they had seen several people dressed in only their underwear, being handcuffed and lying face down. They denied having seen any bruises or injuries on those arrested.

On 10 July 2006 the Inspector General’s Service interviewed the applicant’s wife, who made no complaints about the applicant’s treatment during his arrest or while in detention. She only complained about the confiscation of certain movables from their home.

On 28 September 2006 the chief of the Fourth Department of the Criminal Police Directorate in Belgrade (Načelnik četvrtog odeljenja UKP SUP), Z.K., gave a statement to the Sector for the Internal Control of the Police. He said that he had had no knowledge of the applicant or his friends having been subjected to any ill-treatment.

On 21 March 2007 the applicant’s mother’s complaint of ill-treatment of her son was rejected by the Inspector General’s Service for lack of evidence of a crime.

On 1 July 2007 the applicant lodged a criminal complaint with the First Municipal Public Prosecutor’s Office (Prvo opštinsko javno tužilaštvo – “the prosecutor’s office”) against a number of the unknown perpetrators as well as against three police officers identified only by surname.

On 20 July 2007 the prosecutor’s office opened an official inquiry with requests for the police to provide evidence and the names of those involved in the applicant’s arrest and questioning, and an investigative judge to question the applicant. He was interviewed on 9 October 2007.

On 30 November 2007 the Sector for the Internal Control of the Police identified three police officers, V.M., S.P., and Z.K., in connection with the applicant’s arrest and questioning. The officers stated that no violence had ever been used against the applicant. On 27 December 2007 the prosecutor’s office dropped the charges against them for lack of evidence.

At the same time the case against the unidentified police officers remained open because, according to the prosecutor’s office, “it transpired from the evidence gathered that Krsmanović Đorđe had sustained injuries while in detention” (iz prikupljenih dokaza utvrđeno je da je Krsmanović Đorđe zadobio povrede u periodu dok mu je bio određen pritvor). It would appear that the case is still open.

After learning of that decision, on 23 January 2008 the applicant took over the criminal proceedings as a subsidiary prosecutor (oštećeni kao tužilac) by requesting to have an investigation opened against V.M., S.P., and Z.K.

On 21 April and 18 November 2008 the investigating judge to whom the case was assigned interviewed three doctors who worked at the prison hospital. On 15 January 2009 he also interviewed the police officers accused of ill-treatment. On 24 March 2009 he refused to open an investigation because there was not enough evidence to prove that the accused had committed the crime they were suspected of. On 23 September 2009 the pre-trial chamber of the First Belgrade Municipal Court upheld the decision of the investigating judge. The applicant appealed. On 13 April 2010 the Belgrade Appellate Court upheld that decision.

On 10 July 2010 the applicant lodged an appeal on points of law with the prosecutor’s office, which was rejected on 11 October 2010.

On 11 July 2010 the applicant also lodged a constitutional appeal. He complained principally about the lack of an effective investigation into the events under Articles 21, 25, 27, 29, 32, 33 and 36 of the Constitution and Articles 3, 6, 13 and 14 of the Convention. On 23 July 2013 his constitutional appeal was rejected by the Constitutional Court, whose decision was served on the applicant on 11 September 2013. The court primarily considered the applicant’s complaints under Article 6 of the Convention and found them to be manifestly ill-founded. As to the applicant’s complaint under Article 3 of the Convention, the Constitutional Court found it to be outside its temporal jurisdiction in view of the date of entry into force of the Constitution itself. In respect of the other complaints, the Constitutional Court held, inter alia, that:

“it is not enough to allege a violation of one’s rights in a constitutional appeal or list the constitutional rights that are considered to be violated and reasons for their violations based on the appellant’s subjective estimation or evaluation, but to put each mentioned reason into a direct relationship with the allegedly violated constitutional right, and a violation or denial of a certain constitutional right has to be caused by an act or action that occurred before the entry into force of the Constitution. This also implies that specific and detailed reasons of the alleged violation of the constitutional right have to be specified in the constitutional appeal, because only a causal link presented in such manner may compel the Court to find a violation or denial of a certain right.”


André Potocki;Ganna Yudkivska;Síofra O’Leary

The applicant was born in 1935 and lives in the city of Ternopil, Ukraine.

The applicant stated that in 1999 she had lent 21,500 United States dollars (USD) to Mrs Sh. She also stated that the loan had been repaid in part, and as of June 2002, a debt of USD 13,400 remained outstanding.

According to the applicant, on the morning of 30 July 2002 Mrs Sh. and Mrs Sh.’s husband beat her in the front yard of their house after the applicant had asked them to repay the outstanding debt. She also alleged that the incident had occurred in public “in front of passers-by who eyewitnessed it”.

In the testimonies she gave to the police after the criminal investigation had been opened (see paragraph 15 below), the applicant specified that in the course of the conflict Mrs Sh. had struck her on the head with a wet towel, then punched her on the head and on her breast, and Mr Sh. had also punched her on the head.

According to the statements of Mr and Mrs Sh. and several other witnesses who were interrogated by the police (see paragraphs 16 and 23 below), the applicant and Mrs Sh. had a confrontation on 29 July 2002. No injuries were inflicted on the applicant in the course of that dispute.

On 30 July 2002 the applicant was taken by ambulance to the emergency unit of the Ternopil Town municipal hospital, being admitted there at 5.30 p.m. According to the medical records, at the time of the applicant’s admission she was diagnosed with a brain concussion but no other traumatic injuries. On 31 July 2002 the doctors diagnosed bruising to the applicant’s breast.

The applicant remained in hospital from 30 July to 23 August 2002.

On 30 July 2002 the applicant’s husband lodged a complaint with the Ternopil Town police department. He claimed that Mrs Sh. and her husband had punched the applicant in the head and breast in the yard of their house.

On 9 August 2002 the police refused a request to institute criminal proceedings against Mr and Mrs Sh. for lack of corpus delicti.

On 4 September 2002 the Ternopil Regional Bureau of Forensic Medical Examinations (Обласне бюро судово-медичної експертизи) carried out a forensic medical examination. The forensic experts recorded that on 30 July 2002 the applicant had been admitted to hospital. Upon hospitalisation the applicant stated that at 11.00 a.m. that morning she had been beaten by “an acquaintance”. The forensic experts also found that the applicant had sustained a brain concussion and had a bruise on the right side of her chest. As she had suffered from the brain concussion for more than three weeks, this injury was qualified as a bodily injury of medium severity. The bruise was qualified as a light bodily injury.

On 29 October 2002 the Ternopil deputy prosecutor quashed the decision of 9 August 2002 and instituted criminal proceedings against Mr and Mrs Sh.

On 30 October 2002 the police questioned Mrs Sh. The Government provided copies of her testimony, which are, however, incomplete. It would appear that Mrs Sh. stated that she had borrowed USD 8,100 from the applicant without signing any formal documents, and had subsequently repaid this sum. She also testified that on 29 July 2002 the applicant and the applicant’s husband had come to her house and demanded the interest on the above amount. Mrs Sh. refused to pay the interest and there had been a dispute with the applicant, following which the applicant left.

On 19 November 2002 the police questioned the applicant’s husband as a witness.

On 2 and 4 January 2003 the police questioned three individuals, Mrs P., Mr Pukh. and Mr Pa., who were eye-witnesses to the incident.

On 3 January 2003 the deputy head of the investigation office of the Ternopil Town police department (заступник начальника СВ ТМВ УВСУ в Тернопільській області) ordered an additional forensic medical examination.

On 13 January 2003 the expert commission of the Ternopil Regional Bureau of Forensic Medical Examinations confirmed the findings of the expert examination of 4 September 2002. In addition, the experts noted that the applicant’s brain concussion and the bruise had been inflicted by a blunt object and could not have been sustained by falling. The experts also stated that the dynamics of the applicant’s clinical picture corresponded to her allegation that the injuries had been inflicted on her on 30 July 2002. They finally concluded that the brain concussion had been caused by a series of blows to the head.

On 14 January 2003 the police questioned Mr Sh. as a suspect. He gave the same testimony as his wife (see paragraph 16 above).

Between 15 January and 27 January 2003 multiple face-to-face confrontations were carried out between the applicant, the suspects and various witnesses who had been questioned earlier, including Mr T., Mr Pa., Mrs P. and Mr Pukh.

On 25 February 2003 the deputy head of the investigation office of the Ternopil Town police department terminated the criminal proceedings against Mr and Mrs Sh. for lack of evidence that a crime had been committed. Two accounts of events were noted in that decision, one suggested by the applicant and another one put forward on the basis of the statements of Mr and Mrs Sh. and two witnesses, T. and B. According to this second account of events, there had been a verbal confrontation between the applicant and Mrs Sh. on 29 July 2002 in the yard of the latter’s house, during which no injuries had been inflicted on the applicant. It was noted in the decision that numerous witnesses had been questioned, facetoface interrogations had been held and forensic medical examinations had been carried out. It was concluded that, in view of the conflicting witness statements, it was impossible to establish whether the incident had occurred on 29 or 30 July 2002 and the police did not have sufficient evidence to prosecute Mr and Mrs Sh.

On 4 March 2003 the Ternopil Town Prosecutor quashed the above decision and ordered an additional investigation.

On 4 April 2003 the police again terminated the criminal proceedings against Mr and Mrs Sh. They noted that Mr and Mrs Sh. testified that they had borrowed USD 8,100 from the applicant and had subsequently repaid this sum. Mr and Mrs Sh. maintained that on 29 July 2002 the applicant had come to their house together with her husband and had demanded the interest on the above amount. According to them, the applicant had with her a small pot containing an unknown liquid, which she said was acid. She had threatened to pour the acid into the eyes of the Sh.’s child. Mr Sh. called the police, but the applicant and her husband had left before they arrived. The police concluded that the evidence obtained as a result of the investigative measures was insufficient to prosecute Mr and Mrs Sh. and the identity of the applicant’s assailant had not been established.

Between March 2003 and September 2006 the criminal proceedings in the applicant’s case were terminated on eight occasions (on 4 April 2003, 5 June 2003, 5 August 2003, 14 September 2003, 28 December 2003, 17 May 2004, 27 August 2004 and 16 February 2005). All of these decisions were quashed by a senior prosecutor who ordered an additional inquiry, finding repeatedly that the investigation of the case had been “incomplete”.

In particular, in the decision of 5 May 2003 the deputy head of the investigation office of the Ternopil Town police department ordered that a reconstruction of the incident be staged with a view to establishing the facts of the case and in order to support or rebut the conflicting statements of the witnesses. He ordered specifically that it be established in the course of the reconstruction whether the witnesses (including T. and B.) could in fact have been able to observe the incident from the street outside the yard, as claimed by them. In a later decision, of 8 December 2004, a senior prosecutor from the Ternopil Regional Prosecutor’s Office noted, inter alia, the need to also question the ambulance personnel who had conveyed the applicant to the emergency unit on 30 July 2002.

On 6 May 2003 the police questioned Mr K., a taxi driver. He testified that on 30 July 2002 he had been driving his taxi and had picked up the applicant and her husband on the street where the house of Mr and Mrs Sh. is located. He added that the applicant had been in distress and held her hands to her head.

On 17 January 2004 the first deputy Ternopil City Prosecutor (перший заступник прокурора міста Тернополя) noted that the investigating officer had failed to follow instructions and take the investigative measures required by the decision of 5 May 2003 (see paragraph 27 above).

In 2004 disciplinary proceedings were instituted against investigating officer Z. for certain procedural violations, as a result of which the investigation became protracted. The outcome of these proceedings is unknown.

On 23 September 2006 the police took two procedural decisions in the case. By the first decision the police terminated the criminal proceedings against Mr and Mrs Sh., reiterating the reasons given in the decision of 4 April 2003. By the second decision the criminal investigation of the case was stayed until the identity of the person who inflicted the injuries on the applicant could be established.


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

The applicants, Mr Savo Bogdanović, Ms Rosa Bogdanović and Mr Milan Bogdanović are Croatian citizens of Serbian ethnic origin. They were born in 1954, 1952 and 1950 respectively and live in Bosanski Brod, Bosnia and Herzegovina. They were represented before the Court by Mr L. Šušak, a lawyer practising in Zagreb.

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

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

On 11 May 1992 the applicants’ father B.B. was killed in his house in Slavonski Brod in Croatia.

On 14 May 1992 the police carried out an on-site inspection of the crime scene and interviewed several persons. An autopsy was carried out on 15 May 1992.

Firearms were confiscated from three persons, J.G., J.M. and V.P. A ballistics report was drawn up on 22 May 1992, showing that the cartridges found at the crime scene had not been shot from the confiscated firearms.

The police lodged a criminal complaint against an unknown perpetrator on 22 May 1992 with the Požega County State Attorney’s Office on charges of murder.

On 26 August 2004 the third applicant asked the Slavonski Brod police for a certificate confirming that his father had died on 11 May 1992, which was issued the following day.

On 3 May 2012 the applicants’ lawyer asked the Slavonski Brod County State Attorney’s Office for a copy of the case file concerning the investigation into B.B.’s death, for the purposes of having brought their application with the Court. He was informed that the criminal prosecution for the criminal offence of murder had become statutory barred on 11 April 2007.

On 30 December 2004 the applicants brought a civil action against the State in the Zagreb Municipal Court, seeking compensation in connection with the death of their father. They based their claim on the 2003 Liability Act.

The claim was dismissed on 24 March 2006. This judgment was upheld on appeal by the Zagreb County Court and the Supreme Court on 13 May 2008 and 9 June 2010 respectively. The national courts found that the claim for compensation had been submitted after the statutory limitation period prescribed by the laws related to the compensation of damages in civil proceedings had expired.

A subsequent constitutional complaint lodged by the applicants was dismissed on 4 May 2011.

The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999), as then in force, read as follows:

“(1) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired.

(2) The statute of limitations [bars a right to claim] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired.

“(1) A claim for damages shall become statute-barred three years after the injured party learned about the damage and the identity of the person who caused it.

(2) In any event that claim shall become statute-barred five years after the damage occurred.

Article 34 of the Criminal Code (Krivični zakon, Official Gazette nos. 25/1977, 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 8/1991, and 53/1991) prescribes imprisonment of at least five years for murder. Qualified murder was punishable by up to twenty years’ imprisonment.

The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/00, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011 and 143/2012) reads:

“(1) On account of the statute of limitations, the criminal legislation of the Republic of Croatia may not be applied after the period determined by this Code has elapsed. The period is calculated from the time the offence was committed, sentence was pronounced or another criminal sanction was ordered.

(2) The previous rule does not apply in respect of the criminal offences of genocide ..., aggressive war ..., crimes against humanity ..., war crimes ... and other criminal offences which are not subject to statutory limitation according to the Constitution or international law”

“(1) Criminal prosecutions may not be instituted, save for the criminal offences referred to in Article 18 of this Code, after expiry of the following periods from the time the offence was committed:

- twenty-five years for the offence punishable by long-term imprisonment;

- fifteen years for the offence punishable by more than ten years’ imprisonment;

- ten years for the offence punishable by more than five years’ imprisonment

“(1) The limitation period shall start to run from the date on which the offence was committed.

(3) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence.

(5) The statutory limitation period shall start to run again after each interruption.

(6) Criminal prosecutions shall in all cases become time-barred after expiry of the double statutory limitation period.”

The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002) provide:

“(1) A claim for compensation for damage caused by a criminal offence shall be examined in the criminal proceedings where so requested by authorised persons, provided that this does not cause significant delays in the proceedings.

“A claim for compensation in criminal proceedings may be lodged by persons entitled to lodge such a claim in civil proceedings.”

“Persons entitled to lodge a claim for compensation (Article 128) may, until the end of the trial, withdraw their claim in the criminal proceedings and pursue it in the civil proceedings. ...“

The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005) read as follows:

“If it is necessary for a court, in order to make its decision, to first settle an issue of the existence of a right or legal relationship, and no decision on this issue has yet been adopted by a court or other competent body (preliminary issue), the court may settle the issue itself, unless otherwise provided for under special rules.

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

In civil proceedings, where an issue arises in relation to a criminal offence and the perpetrator’s criminal liability, the court shall be bound by the final judgment of the criminal court by which the accused was found guilty.”

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

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

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

“The Republic of Croatia shall be liable for the damage referred to in section 1 of this Act ....”

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

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

“(1) Where the statutory limitation period began before 3 February 1996, it shall continue after the entry into force of this Act, and the period which had expired before the statutory limitation period was interrupted shall be counted into the overall statutory limitation period.

(2) Where the damage occurred after 3 February 1996 the statutory limitation period begins from the entry into force of this Act.”

The domestic courts of appeal, on the subject of the possibility for a civil court to apply a longer statutory limitation period under section 377 of the Civil Obligations Act, held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence.

This view was confirmed by the practice of the Supreme Court. For example, in its decision no. Rev- 217/05-2 of 20 October 2005 it held as follows:

“The lower court correctly established that section 377 of the Civil Obligations Act was not applicable in this case. ... The longer statutory limitation period [under section 377 of the Civil Obligations Act] applies only when it has been established by a judgment in the criminal proceedings that the damage was caused by a criminal offence ...”

The Supreme Court, in its decision no. Rev-2563/1992-2 of 6 April 1993, examined the possibility for a court in civil proceedings to assess the statutory limitation period under section 377 of the Civil Obligations Act if criminal liability had not been established by a final criminal court judgment. The relevant part of the decision reads as follows:

“The conclusion of the lower courts that section 377 of the Civil Obligations Act is applicable only if the criminal offence has been established by a final judgment of the criminal court is incorrect. This is because, according to the well-established case-law, if damage has been caused by a criminal offence but no criminal proceedings have been instituted or concluded against the perpetrator because of his death or mental illness, or the offence at issue has been exempted from prosecution by a pardon or amnesty, or if there exist some other circumstances preventing criminal responsibility from being established or barring the criminal prosecution, the fact that the damage was caused by a criminal offence may, if the defendant has invoked the statute of limitations, be established (as a preliminary issue) in the civil proceedings.

It is also to be noted that the longer statutory limitation period under section 377 of the Civil Obligations Act is applicable not only in respect of the perpetrator of the criminal offence but also in respect of the person responsible for the damage.”


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione personae);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1947 and lives in Riga.

The applicant was a professor and the head of the Department of Dermatological and Venereal Diseases of the Faculty of Medicine of Riga Stradiņa University (hereafter “the University”), which is a State university. The applicant had been elected to the position of head of department with effect until 13 April 2013. He was also an elected member of the constituent assembly of the University (Satversmes sapulce).

On 22 February 2010 the Council of the Faculty of Medicine decided to merge the Department of Dermatological and Venereal Diseases and the Department of Infectious Diseases. That decision was approved by the Senate of the University (Senāts) on the following day. It appears that as a result of the merger the position of head of department occupied by the applicant was abolished. Accordingly, on 24 February 2010 the applicant received a warning (brīdinājums) to that effect and was given the opportunity to agree to the changes in his contract with the University. He was also informed that if he refused, his employment relationship with the University would be terminated.

On 28 February 2010 the applicant sent various emails to the Rector of the University concerning the circumstances of the reorganisation and the abolition of his department. He criticised the decisions taken by the deputy dean, G.B.

On 3 March 2010 the applicant sent another email to the Rector of the University and to several other recipients, including the members of the Senate. The email criticised the lack of democracy and accountability in the leadership of the organisation, which, according to the applicant, stemmed from the fact that all the members of the Senate were also a part of the executive authority of the University and there was thus an inadequate system of checks and balances. He also drew the recipients’ attention to the alleged mismanagement of the University’s finances. In support of this allegation the applicant relied on the conclusions adopted by the State Audit Office (Valsts Kontrole) in December 2009.

The applicant further spoke in unfavourable terms about several representatives of the management of the University, stating, for example, that [Mr ...]. “pretends to be a God-fearing Catholic ... yet, as far as is known, has several children born out of wedlock”, that [Mr ...] “cannot decide a single question by himself, does not keep his word, is lying” and that [Mrs ...] “has called me and asked me to break the law in the interests of her protégés”.

Finally, the applicant came up with a proposal involving several amendments to the constitution of the University, such as changes in the election of the members of the Senate (an obligation to inform the constituent assembly of the candidate’s CV at least one week before the elections, the setting-up of an independent electoral commission); separation of powers between the University’s governing bodies (Senate members should not be part of the executive body of the University); and the granting of independence to the Senate (changing the remuneration system so that the Rector did not unilaterally fix the remuneration of members of the Senate). He asked the Rector to forward his proposals to the members of the constituent assembly and to send him the email addresses of those members or inform him where to find those contacts.

It appears that on 16 March 2010 the applicant expressed his disagreement with the reorganisation at the meeting of the Senate of the university which upheld the decision.

On 20 March 2010 the applicant sent an email to the Rector of the University. The subject-line of the email read “Settlement agreement”. The text of the email read as follows:

“To the Rector of the University .... Confidential

[1] Dear Rector,

[2] In view of the situation which has evolved and the advice of my lawyers and supporters, I hereby propose the following settlement agreement.

[3] It would entail:

[4] Version 1

[5] You (the University) revoke all the orders and decisions of the Senate concerning the abolition/merger of the Department of Dermatological and Venereal Diseases. I for my part withdraw all my appeals, thereby restoring the situation as it was before the decision of the Senate of 23 February 2010. Meanwhile the three lecturers ... (all of them were recognised as plagiarists by a decision of the [Latvian association of doctors]) who expressed their intention to move to the Department of Infectious Diseases, are transferred to that Department. I have no objections if the specialist ... who, it is common knowledge, is the mother of ...’s daughter, is transferred to another post or fired. This month she did not spend a single day at work in the Department of Dermatological and Venereal Diseases (presumably she reports to ... or has been transferred to ... or another department, or maybe [she has] submitted her resignation, I don’t know).

[6] Version 2. I, as a head of department elected until 2013, and after having received a certain amount of compensation on which we would agree (for example, LVL 100,000), as provided for by my agreement with the University, agree terms with you, the dispute is terminated and I leave the post.

[7] Of course I understand that at the constituent assembly of the University you, as Rector, can secure a decision that is favourable to you. However by this means nothing would come to an end but would only start, as I reserve the right to appeal against all the decision [adopted by] the University in the administrative, district and regional courts, while of course making everything public beforehand and attracting the attention of society.

[8] I do not believe that in an election year, taking into consideration the latest news (the conclusion adopted by the State Audit Office on the illegalities at the University, plagiarism on the part of lecturers and professors of the University etc.), you would want to have additional tasks and trouble (nodarbošanos un nepatikšanas).

[9] I am sure that I don’t want this and I wish to be allowed to work in a creative manner with students in my field as before. In addition, I have much work to do organising two large European congresses in 2011 and 2012 in Riga, in both of which my participation as president has been confirmed.

[10] Since I have also not received the list of members of the constituent assembly of the University (which was requested from you and the Senate in my letter of 3 March 2010!?, a fact which demonstrates the lack of democracy [at] the University), I will await a reply from you by Monday, 22 March 2010 at 11 a.m. If we are unable to reach agreement by signing a settlement agreement I will make all my current information public in the form of an open letter so that the members of the constituent assembly of the University also have at least one day before the meeting to think about their vote.

Professor A. Rubins

P.S. [contains a request concerning one of the applicant’s staff members who was on sick leave but at the same time attended meetings of the Senate].

On 22 March 2010 the Rector replied to the applicant that he could not agree to any of the proposals.

The following day, 23 March 2010, at the meeting of the constituent assembly of the University, the applicant expressed his disagreement with the reorganisation and asked that the decision concerning the merger of faculties be annulled. His request was not upheld. On the same day the national news agency LETA published the applicant’s views about the alleged shortcomings in the management of the University. The criticisms referred to the conclusions of the State Audit Office.

On 25 and 31 March 2010 the Rector asked an ad hoc investigative committee and the ethics committee to review the applicant’s conduct.

On 6 May 2010 the applicant received a notice of termination of employment (uzteikums) from the University, in which he was informed that his employment contract with the University would be terminated ten days after receipt of the notice. The legal basis for the applicant’s dismissal was section 101(1)(1) and (3) of the Labour Law, and the applicant was deemed to have acted in contravention of several provisions of the University’s staff regulations (see Relevant domestic law part, paragraphs 30 and 34 below). The notice stated, inter alia, as follows:

“The ground for dismissal is the email you sent to the Rector of [the University] on 20 [March] 2010, in which, while addressing the Rector concerning issues of interest to you, you included inappropriate demands, including elements of blackmail and undisguised threats. As a consequence your actions are considered as very grave infringements of basic ethical principles and standards of behaviour, and as absolutely contrary to good morals. The fact of sending such a letter, and its contents, are clearly contrary to good morals, all the more so taking into account the circumstances in which the letter was sent and your attitude.”

On 17 May 2010 the University dismissed the applicant from his post. Soon afterwards he took up a post in another university in Latvia.

The applicant submitted a claim to the Riga City Kurzeme District Court, asking the court to invalidate the notice of termination and to order his reinstatement and payment of the unpaid salary and benefits together with compensation for non-pecuniary damage.

In a judgment of 11 March 2011 the Kurzeme District Court allowed the applicant’s claim in part. It held that the fact that the applicant’s employer had been offended by his email was not a legitimate reason for his dismissal, since section 101 of the Labour Law did not include such a ground. The court considered that the allegation that the applicant’s email had contained elements of blackmail and threats was merely speculation on his employer’s behalf. It was additionally found that the applicant had not been given an adequate opportunity to respond to the allegations contained in the termination notice before that notice was sent to him. Accordingly the court annulled the termination notice and ordered the applicant’s reinstatement with back-payment of his salary. The applicant’s claim for compensation in respect of non-pecuniary damage was rejected as unsubstantiated.

Both the applicant and the University appealed. During the court hearing the applicant mentioned that he had requested that several illegalities be examined at the meeting of the constituent assembly of 23 March 2010. Counsel for the defendant stated that both the ad hoc investigative committees set up by the Rector had found that the content of the letter was to be perceived as blackmail and threats. He contended that the request to receive a certain amount in compensation and the deadline by which the reply had to be received all proved the breach of ethical norms. The defendant further alleged that several “defamatory facts about the University” had been published on 23 March by LETA, and considered that the above activities therefore confirmed the threats made in the applicant’s email.

On 18 January 2012 the Riga Regional Court quashed the first-instance court’s judgment and dismissed the applicant’s claim in full. The appeal court considered that in his email of 20 March 2010 the applicant had invited the Rector to carry out “unlawful actions”, namely to annul a decision of the Senate of the University (concerning the merger of two departments within the Faculty of Medicine). Such action was deemed to be “unlawful” because annulling decisions of the Senate of the University exceeded the Rector’s authority. The court also considered that the applicant had requested “unreasonably high compensation” for the termination of his employment. These two considerations led the appeal court to conclude that the applicant had failed to observe basic ethical principles such as honesty, collegiality and responsibility.

The conclusions of the appeal court echoed those reached by the University’s ethics committee and by two ad hoc investigative committees set up on 25 March and 6 April 2010. In particular, the court observed in point 10.1 that the committee had concluded that the infringements committed by the applicant were demonstrated by the fact that he had sent the email and had carried out “other activities after the Senate’s decision of 23 February 2010 ... including making unfounded statements, for example, about the abolition of the department, the circumstances of the reorganisation that had been directed against the applicant, and threats made by G.B. against the applicant. The email of 28 February 2010 ... comprises statements, for example, about ... private life and religious convictions”.

The court further noted that it was apparent from the materials in the case file that on 23 March 2010 the national news agency LETA had published the applicant’s views about events in the University, in which he had criticised the leadership of the University, stating that a group of twelve to fifteen persons had usurped all power and set up an authoritarian or even dictatorial regime. The court also referred to the content of the email the applicant had sent on 3 March 2010 (see paragraph 9 above) and came to the conclusion that he had contravened the obligation to treat the staff of the University with respect.

The court turned next to the question of “good morals” and, after finding that this term had no precise legal definition, proceeded to conclude that it consisted of three “basic ethical principles”: “the principle of integrity and righteousness”, “the principle of responsibility” and “the principle of loyalty”. It found that the applicant had acted in breach of these principles and that there was:

“[11.2] ...no reason to conclude that the applicant had only intended to inform [the Rector] about [his plan] to exercise his democratic rights, [that is], to submit complaints to the courts and to publish information in the media, while respecting the interests of society. The content of the letter [of 20 March 2010] attests to [the applicant’s] wish to act for a selfish cause, namely to retain his position as a head of department, contrary to the Senate’s decision on reorganisation, or to receive substantial financial compensation, regardless of [the need to use] the budget of [the University] in an economical and reasonable way in compliance with the goals of the [University].

[The appeal court] finds that there is no evidence that prior to the letter of 20 March 2010 [the University] had obstructed the applicant’s democratic rights to inform society and the competent institutions about the alleged violations in the [University].

Taking into account the aforementioned finding, [that is], that the [applicant’s] aim in writing the letter of 20 March 2010 was selfish, the [appeal court] finds that the [applicant] sought to achieve a result beneficial to himself by trying to persuade [the Rector] to take unlawful steps. In view of the aforementioned considerations, this should be considered a threat.”

Turning to the applicant’s claim for compensation in respect of non-pecuniary damage, the appeal court cited section 9(1) of the Labour Law (see the Relevant domestic law part, paragraph 29 below) and disagreed that the applicant’s dismissal had created “unjustified consequences” (nepamatotas sekas) or caused non-pecuniary damage simply because the applicant had expressed legitimate concerns about the reorganisation of the University and about the way its financial resources were used. The court’s reasoning in that regard read as follows:

“[The appeal court], on the basis of experience and logic, finds that a calm and positive atmosphere and a respectful attitude among colleagues best contribute to achieving constructive dialogue.

Having analysed the above-mentioned evidence, the [appeal court] considers that nothing prevented the applicant from expressing his opinion in a manner compatible with ethics and the staff regulations”.

The applicant submitted an appeal on points of law, disputing, inter alia, the appeal court’s findings to the effect that, by sending one confidential letter to one recipient (namely the Rector of the University), in which he had raised points concerning the unjustified use of funds from the State budget, he had committed an infringement of work-related rules and ethics of such gravity as to justify his dismissal. The applicant also invoked in this connection that he had an obligation to inform the society about the unjustified use of funds, therefore the appellate court had erred in finding that the impugned email was unethical. The applicant’s appeal on points of law was rejected by the Senate of the Supreme Court in a preparatory meeting on 26 September 2012.

On 27 September 2010 the Rector of the University sought to institute criminal proceedings against the applicant for extortion. The criminal proceedings were instituted on 30 January 2012 on the basis of section 183 of the Criminal Law (extortion) and the applicant was ordered not to leave his permanent residence for more than twenty-four hours without the permission of the competent investigative authority. The criminal proceedings were discontinued on 9 February 2012 for lack of corpus delicti. The decision to discontinue the criminal proceedings stated, inter alia, that according to the linguistic expert’s conclusions the impugned email contained clearly expressed demands to pay a certain amount of money as well as undisguised threats to disclose disreputable information about [the Rector] prior to the meeting of the Senate. It also noted that the email demonstrated the applicant’s wish to act selfishly, either in order to maintain his post or to receive a significant amount in compensation for the termination of his employment contract. However, as the Rector’s attitude demonstrated that the threats were not perceived as real, the court ruled that the criminal proceedings should be terminated and that the Rector had the right to institute defamation proceedings.


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicant, Mr Mikhail Serezhayevich Ovakimyan, is a Russian national who was born in 1974 and lives in Balakovo, a town in the Saratov Region. He was represented before the Court by Mr T. Kalmykov, a lawyer practising in Kharkov.

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

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

On 14 October 2011 the applicant married A.V. The couple settled in Saratov.

On 4 February 2012 A.V. gave birth to a son, S.

On 17 October 2012 A.V. left the applicant. Together with the child she moved to her parents’ house in Kirsanov, a town in the Tambov Region. The applicant was prevented from seeing the child.

Following an application by A.V., on 26 November 2012 the Justice of the Peace of Kirsanov dissolved the marriage between the applicant and A.V.

On 2 November 2012 the applicant brought court proceedings against A.V., seeking to have the terms of his contact with his son determined.

On 29 January 2013 the Kirsanovskiy District Court of the Tambov Region (“the District Court”) granted the applicant’s claims in part. The District Court held that contact sessions between the applicant and his son should take place in the presence of A.V. twice a month on the first Saturday and third Sunday of the month from 10 a.m. to 2 p.m., either at the child’s place of residence or in public recreation facilities. The judgment was not appealed against and became final on 4 March 2013.

Regardless of the above judgment, A.V. continued to hinder the applicant’s contact with the child.

On 20 May 2013 the applicant brought court proceedings against A.V., seeking to have the obstacles to his contact sessions with S. removed and the terms of his contact with his son revised, in particular so as to allow him to take the child on summer holidays both in Russia and abroad, to spend public holidays with him, and to spend birthdays with him (those of the child, the applicant and the paternal grandmother).

On 8 November 2013 the District Court obliged A.V. not to hinder the exercise of the applicant’s contact rights. It further held that the contact sessions between the applicant and his son should take place in the presence of A.V. twice a month, on the first Saturday and third Sunday of the month, from 9 a.m. to 1 p.m., either at the child’s place of residence or, if the weather permitted, outside. A.V. was also obliged to give the applicant monthly updates about the child’s health and the choice of pre-school and school facilities for him. The District Court rejected the remainder of the applicant’s claims, finding, with reference to the local authority child services report, that the above contact schedule would be appropriate considering the young age of the child, his attachment to his mother, and the importance of maintaining his routine. The District Court further took into account the extremely tense relationship between the applicant and A.V. and their inability to reach a mutual agreement on the matter. The applicant appealed.

’s best interests.

The applicant lodged a cassation appeal with the Presidium of the Regional Court, asking it to quash the judgment of 8 November 2013, as upheld on appeal on 15 January 2014.

On 20 March 2014 a judge of the Regional Court decided not to refer the case for consideration by the Presidium of that court.

On 3 February 2014 the District Court issued a writ of execution in respect of the judgment of 8 November 2013.

On 6 March 2014 the applicant applied to the Kirsanovskiy District Bailiffs Service (“the District Bailiffs Service”) for institution of the enforcement proceedings.

On 18 March 2014 a bailiff from the District Bailiffs Service began the enforcement proceedings and appointed an officer to be present at each scheduled meeting between the applicant and his son, to eliminate the obstacles to the applicant’s contact with the child which A.V. could create.

According to the applicant, in the period between 5 April and 2 August 2014 when he tried to see his child without the assistance of the bailiff, A.V. prevented him from doing so on three occasions (on 22 May, 24 May and 24 July 2014), and either she or her parents interfered with his contact on three occasions (on 15 June, 23 July and 1 August 2014).

According to the Government, between 5 April and 2 August 2014, with the assistance of the bailiff, the applicant met his child on days determined by the judgment of 8 November 2013.

The bailiff’s report on the applicant’s meeting with his son on 20 April 2014 mentions that the applicant used abusive language in the presence of the child.

The bailiff’s reports of 1 June, 7 June, 5 July and 6 July 2014 mention that the applicant did not attend the meetings.

On 15 June 2014, while out walking with his son, the applicant took the child by the hand, went to his car and drove off with him without the bailiff’s permission. The bailiff followed the applicant. The applicant tried to take the child to the house of some of his acquaintances, but the bailiff stopped him. After that, the applicant kept the child in his car for one hour. He insulted the child’s mother and the bailiffs. Later, A.V. called the police. The applicant’s contact session ended at 6 p.m. in the police station.

On 19 July, 20 July and 2 August 2014 the applicant drove off with his son in an unknown direction and in the absence of the mother. While driving off, he insulted the bailiffs and argued that their presence was hindering his contact with the child.

On 2 August 2014 the bailiff took a decision to terminate the enforcement proceedings and return the writ of execution to the applicant, because his actions were preventing the enforcement. In particular, the applicant had gone off with the child in an unknown direction and had had contact with him in the absence of A.V., in breach of the judgment of 8 November 2013, following which he had refused to return the child to the mother at the prescribed time. The applicant challenged the lawfulness of the bailiff’s decision to terminate the enforcement proceedings.

On 25 September 2014 the District Court dismissed the applicant’s appeal.

On 1 December 2014 the Regional Court upheld the above decision on appeal.

On 19 August 2014 the enforcement proceedings were reopened following the resubmission of the writ of execution by the applicant.

On 6 and 7 September 2014, when the applicant was supposed to meet his son, A.V. and the child were not at home.

In this connection, on 9 September 2014 A.V. was found administratively liable under Article 5.35 § 2 of the Russian Code of Administrative Offences. The bailiff gave her an administrative fine in the amount of 2,000 Russian roubles (RUB).

Furthermore, the bailiff obtained explanations from A.V. for her failure to let the applicant meet his son on 6 and 7 September 2014. A.V. explained that she had hindered the applicant’s meeting with the child because, during the previous meetings, he had tried to hide the child in the house of his acquaintances and she had only managed to get her son back with the help of the police. Besides, the applicant regularly got into fights or arguments in the presence of the child and was aggressive towards her. In particular, on 22 May 2014, under Article 116 § 1 of the Russian Criminal Code, the District Court had found the applicant guilty of beating A.V. The proceedings had subsequently been terminated as a result of the parties reconciling. On 19 November 2012 the Justice of the Peace of the 1st Court Circuit of the Kirsanovksiy District of the Tambov Region had found the applicant administratively liable under Article 20 § 1 of the Code of Administrative Offences, because on 17 November 2012, upon arriving at A.V.’s house to visit his son, he had behaved aggressively and used abusive language. On 19 December 2012 the District Court had upheld the above judgment on appeal. The applicant had subsequently been found administratively and criminally liable on 14 February, 21 March and 27 July 2014 for inflicting physical injuries on A.V., and insulting both her and her mother.

During his meeting with his son on 15 November 2014 the applicant went off with the child in an unknown direction and never returned him to A.V.

On 19 November 2014 the bailiff entrusted the Saratov Regional Bailiffs Service with establishing that the child was at the applicant’s place of residence.

On an unspecified date the Saratov Regional Bailiffs Service informed the District Bailiffs Service that the applicant and the child did not reside at the address in the Saratov Region indicated in the enforcement document.

On 30 December 2014 the bailiff received a request from the applicant for return of the writ of enforcement without execution.

On the same day the enforcement proceedings were terminated.

A.V. brought court proceedings against the applicant, seeking to have it determined that her son should reside with her.

On 4 June 2015 the Balakovskiy District Court of the Saratov Region granted her claim and held that the child should reside with her.

Regardless of the above judgment, the applicant continues to retain the child.

A parent living apart from his or her child is entitled to maintain contact with the child and participate in his or her upbringing and education. The parent with whom the child resides may not hinder the child’s contact with the other parent, unless such contact undermines the child’s physical or psychological health or moral development (Article 66 § 1).

The parents have the right to conclude a written agreement on the way the parent living apart from the child may exercise his parental duties. If the parents cannot reach an agreement, the dispute must be resolved in court with the participation of the childcare authority, upon a claim lodged by the parents (or one of them). In the event of non-compliance with the court decision, measures set out in the civil procedural legislation are applied to the parent guilty of non-compliance. In the event of persistent non-compliance with the court decision, the court may, upon a claim by the parent living apart from the child, take a decision to place the child in his or her care, based on the child’s interests and taking into account the child’s opinion (Article 66 §§ 2-3).

Judgments in cases involving issues relating to the upbringing of children are enforced by a bailiff in conformity with the procedure laid down by the civil procedural legislation. If one of the parents (or another person in whose charge the child is) obstructs the enforcement of the court judgment, measures stipulated by the civil procedural legislation will be applied to him or her (Article 79 § 1).

A bailiff must issue a decision to open enforcement proceedings or to refuse to open proceedings within three days of receipt of a writ of execution (section 30).

A writ of execution which has not been enforced or which has been enforced in part shall be returned by the bailiff to the person in whose favour a judgment has been made if the latter prevents enforcement by his own actions. The bailiff shall draft a report outlining the circumstances warranting the return of the writ of execution to that person, which shall be approved by the chief bailiff or his deputy. After that, the bailiff shall make a decision on termination of the enforcement proceedings and the return of the writ of execution to the person in whose favour the judgment was made (section 46(1) and (6), 46(2) and 46(3)).

The return of the writ of execution to the person in whose favour a judgment has been made does not prevent that person from resubmitting the writ of execution for enforcement within the time-limit provided for by section 21 of the present law (section 46(4)).

The enforcement of a writ of execution concerning contact rights consists of the bailiff securing free contact between the person in whose favour a judgment has been made and the child, in accordance with the schedule determined by the court (section 109.3(3)).

In the event of a breach of enforcement proceedings by the person against whom a judgment has been made, that person shall be found administratively or criminally liable in accordance with Russian law (section 113).

The decisions, actions or inaction of the bailiff can be challenged by the parties to the enforcement proceedings before the bailiff’s superiors or before a court (section 121(1)).

Violations by parents or other legal representatives of the rights and interests of minors by preventing the minors from having contact with their parents or other close relatives, provided that such contact is not contrary to the interests of the child; deliberately concealing minors’ whereabouts; and non-compliance with court judgments determining minors’ places of residence are all punishable by an administrative fine ranging from RUB 2,000 to RUB 3,000, and an administrative fine of up to RUB 5,000 or administrative arrest for up to five days in the case of a repeat offence (Article 5.35 §§ 2-3).


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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1959 and lives in Budapest.

On 6 January 2000 the applicant brought an action against his parents before the Siófok District Court for dissolution of joint ownership of a real property.

On 21 March 2000 the court suspended the proceedings pending the adjudication of a preliminary question in other proceedings. Upon termination of the other proceedings on 17 November 2005, the Siófok District Court continued hearing the case.

On 25 August 2006 the court again suspended the proceedings pending the adjudication of a preliminary question in another related procedure. Upon termination of these proceedings on 30 August 2007, the Siófok District Court ordered continuation of the case on 17 November 2008.

An agreement was reached between the parties which was acknowledged and incorporated into a judgment by the Siófok District Court on 5 May 2011.