HÁLÓZATI GYÓGYSZERTÁRAK SZÖVETSÉGE AND OTHERS v. HUNGARY

András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paul Lemmens;Robert Spano

The first applicant, Hálózati Gyógyszertárak Szövetsége (“HGYSZ”) (“Association of Pharmacy Networks”), is an association registered under Hungarian law, with its seat in Budapest. The other applicants (listed in the Annex) are members of the first applicant. They are companies registered under Hungarian law. The applicants were represented before the Court by Mr J-F. Bellis, a lawyer practising in Brussels.

s, may be summarised as follows.

The applicants listed in the Annex are companies which operate pharmacy networks in Hungary and are as such members of the first applicant, HGYSZ. Each member of HGYSZ holds shares (usually majority shares) in a number of different pharmacies or directly operates (usually more than four) pharmacies. As a result of their respective shareholdings, HGYSZ members own part of the equity, take part in the management and share the profits of a number of pharmacies in Hungary.

Between 1990 and 1994, the operation of pharmacies in Hungary was governed by Ministerial Decree No. 9/1990. (III.28.) SZEM, under which the opening of new pharmacies was allowed without any geographic or demographic limitation. During this period, the number of pharmacies in Hungary increased by about 30% to approximately 2,000 pharmacies.

From the adoption of Act no. LIV of 1994 onwards, and until 2006, the operation of pharmacies was governed by different rules, according to which the opening of new pharmacies was still without obstacles and the takeover/operation of existing pharmacies by companies was possible. However, geographic and demographic barriers to the opening of new pharmacies were introduced, requirements concerning inter alia the qualification of pharmacists and their influence on the management of the pharmacies were applied, and the legal form of companies that may operate pharmacies was prescribed. At the same time, there was no limitation on the number of pharmacies that could be operated by one entity, provided the relevant sector-specific conditions were met.

In 2006, new rules contained in Act no. XCVIII of 2006 (“the Gyftv.”) abolished most limitations on the establishment of pharmacies and the legal form of companies that could operate pharmacies.

Between 1994 and 2010, a number of foreign investors entered the Hungarian pharmaceutical retail market by acquiring shares in pharmacies. The majority of HGYSZ members’ shareholdings date back to the period between 1994 and 2006. Despite the limitations in place between 1994 and 2006, there was no indication that shareholdings in pharmacies would be limited or that any future limitation on shareholdings would affect already existing shareholdings in pharmacies.

At the end of 2010, Hungarian legislation introduced limitations on the shareholdings in pharmacies. These limitations, which Act no. CLXXIII of 2010 (“the Act”) incorporated into the Gyftv. – as of 1 January 2011 – require that the shareholdings of pharmacists in the pharmacies where they work must exceed 25% by 1 January 2014 and 50% by 1 January 2017 and moreover that no one may have shares in more than four pharmacies. The restrictions do not only apply to pharmacies which are established after the amendments entered into force, but ownership in already existing pharmacies must also be brought into line with the limitations by the respective deadlines of 1 January 2014 and 1 January 2017. Moreover, any change in the ownership of the non-pharmacist shareholders entails an immediate obligation to meet the above thresholds, even before the deadlines of 1 January 2014 and 1 January 2017. The amendments do not contain any guarantee for an appropriate compensation for those shareholders who are obliged to give up part of their shareholdings.

The 2010 amendments introduced by the Act entail in particular the limitations outlined below.

Previously, in cases where pharmacies were operated by enterprises, it was sufficient for the pharmacist exercising the professional leadership of the pharmacy concerned to have a 1% share in the enterprise operating that pharmacy. Pursuant to the amendment to section 74 (1) of the Gyftv., introduced by section 84 (1) of the Act, enterprises are now only allowed to operate pharmacies if the combined shares of the pharmacist exercising the professional leadership of the pharmacy concerned and the pharmacist(s) employed in the pharmacy exceed 50%.

According to section 83/A (1) of the Gyftv., introduced by section 87 of the Act, these ownership rules enter into force between 1 January 2011 and 1 January 2017 according to the following schedule.

Between 1 January 2011 and 31 December 2013, with some exceptions (such as the death of the pharmacist), changes in the ownership structure of the enterprise operating a pharmacy entail an immediate obligation under which the combined shares of the pharmacist exercising the professional leadership of the pharmacy and the pharmacist(s) employed in the pharmacy must exceed 25%.

Between 1 January 2014 and 31 December 2016, the combined shares of the pharmacist exercising the professional leadership of the pharmacy and the pharmacist(s) employed in the pharmacy must exceed 25% and, again with some exceptions, changes in the ownership structure of the enterprise operating a pharmacy entail an immediate obligation under which the combined shares of the pharmacist exercising the professional leadership of the pharmacy and the pharmacist(s) employed in the pharmacy must exceed 50%.

As of 1 January 2017, the combined shares of the pharmacist exercising the professional leadership of the pharmacy and the pharmacist(s) employed in the pharmacy must exceed 50%.

According to section 83/A (4) of the Gyftv., introduced by section 87 of the Act, once the combined shares of the pharmacist exercising the professional leadership of the pharmacy and the pharmacist(s) employed in the pharmacy have exceeded 50%, it is prohibited, even before the time-limit of 1 January 2017, to reduce those combined shares to 50% or below.

The applicants submitted that it was difficult to estimate the exact value that they would obtain in exchange for the shares they were required to transfer to pharmacists by 1 January 2017. However, they argued that, in the absence of any provision concerning compensation for the required transfer of shares and in light of the limited financial means of pharmacists in Hungary, the price offered for the shareholdings in question would inevitably be substantially below pharmacies’ normal market value. Indeed, the limited number of cases where HGYSZ members had sold shares since the beginning of 2011 showed that, subsequent to the amendments made to the Gyftv. in 2010, purchase prices were far below the market value.

Moreover, before the amendments introduced by the Act, there was no restriction on how many pharmacies a single shareholder could have shares in. Pursuant to the amendment to section 74 (3) of the Gyftv., introduced by section 84 (2) of the Act, companies that have shares in enterprises operating four or more pharmacies cannot acquire or hold shares in an(other) enterprise operating pharmacies.

Furthermore, section 73 (1) of the Gyftv., as amended by section 83 of the Act, as well as section 74 (5) of the Gyftv., as amended by section 84 (4) of the Act, give pharmacists increased powers in the decision-making of the enterprise that operates the pharmacy, regardless of their shareholding and their position in the enterprise, in derogation from Hungarian company law.

Given the shareholdings of HGYSZ members, the applicants would need to give up substantial shareholdings in order to bring their shares below the 75% threshold by 1 January 2014 and below the 50% threshold by 1 January 2017. Additionally, with the exception of one applicant that holds shares in only three pharmacies, all others would need to give up completely their shareholdings in a number of pharmacies in order to reduce the number of pharmacies in their respective networks to four. For instance, Pharmanova Zrt., the largest member of HGYSZ, which holds shares in 140 pharmacies, would need to surrender its shares in 136 pharmacies and reduce its shares in the remaining four pharmacies below 75% by 1 January 2014 and below 50% by 1 January 2017.

The value of the shareholdings that the applicants would need to give away – because of the restriction on the size of shareholdings – by 1 January 2014 is estimated at 5.8 billion Hungarian forints (HUF), and the value of the shareholdings that they would need to surrender by 1 January 2017 is estimated at an additional HUF 9.9 billion. These figures exclude the further shareholdings to be alienated on account of the restriction on the number of pharmacies owned by one shareholder, whose value will be dependent on the choice of pharmacies to be surrendered.

In the face of the forced sales of these shares representing a very substantial amount of money, the legislation does not guarantee any particular form of compensation.

On 5 June 2012 the Constitutional Court rejected, without an examination on the merits, HGYSZ’s complaint alleging that the amendments brought about by the Act amounted to a breach of constitutional rights. According to the decision, the complaint was inadmissible, partly because HGYSZ was not directly affected by the impugned provisions in that it could not possibly sustain a direct violation of any constitutional right in this context, and partly because the subject matter of the complaint was essentially the same as that of cases previously adjudicated by the Constitutional Court.

Subsequently, a number of new laws were enacted, which amended several health- and health-insurance-related Acts, amongst others, the Gyftv. The latter was amended in particular as of 1 January, 6 July 2013 and 1 January 2014.

Due to these amendments, pharmacists were given privileged rights to purchase those pharmacy shares which the current legal person owners, such as the applicants, would have to sell.

From 1 January 2013 on, the operation of a pharmacy by a company is only allowed if the pharmacist exercising the pharmaceutical management of the pharmacy concerned holds more than 50% of the business shares of the owner company, or if the combined volume of shares of the principal pharmacist and of the ones employed in the pharmacy exceed 50% of the shares. The shares and the combined shares can be taken into consideration in respect of a maximum of four pharmacies.

The requirements for a pharmacist to be entitled to run a pharmacy are regulated by the Gyftv. As of 6 July 2013, a new element was included in the Act, namely that such principal pharmacists must figure in a dedicated register and that, once registered, he or she exercises his or her operational rights independently.

The latest amendment of the Gyftv. which entered into force on 1 January 2014 prohibits companies running pharmacies from instructing the principal pharmacist (and other employed professionals) on commercial-pharmaceutical practices. Moreover, in the management of companies running pharmacies, the exercise of pharmacists’ shareholder rights must be guaranteed in a manner which reflects the volume of their shares and which is outlined in the articles of associations. This is a strict rule, from which any departure is null and void.

As of 1 July 2013, Government Decree no. 212/2013. (VI.19.) on Facilitating the Increase of Pharmacists’ Share Holding in Pharmacies stipulated the possibility of a preferential loan for those pharmacists who are intended to purchase shares in companies running pharmacies.


CASE OF BULGARU v. THE REPUBLIC OF MOLDOVA

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

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

The applicant was born in 1982 and is currently detained in the Cricova prison.

At the time of the events, the applicant was serving a ten-year sentence and was detained in the same detention facility. In August 2008 a murder was committed there and the applicant was one of the suspects. In December 2008 he was taken to the Chişinău Central police station for questioning. According to him, he was told to confess to the murder and was ill-treated after refusing to do so. On 21 January 2009 the applicant was taken to the police station detention facility again. Since he refused to make a confession, he was subjected to such acts of violence as being struck and slapped all over, and was detained in a very cold cell. As a result, he attempted to commit suicide by cutting the veins in his wrist. On 23 January 2009 he was taken to hospital for medical treatment where, according to the documents in the case file, he was seen by a doctor and given stitches and a bandage. After returning from hospital the ill-treatment continued and intensified. According to the applicant, his arms and feet were tied together behind his back and he was suspended on a metal bar placed on two chairs. He was left in that position until he fainted. As a result, his right hand became numb and stopped functioning. He was also beaten on his lower back with a plastic bottle full of water. As a result, he suffered kidney pain and had blood in his urine. The Government disputed the applicant’s allegations concerning ill-treatment.

On 28 January 2009 the applicant was seen by a medical assistant in the police station detention facility, who noted in his medical records that the applicant had complained of pain around his right bicep and that the tissue in that area was swollen. On 30 January 2009 the same medical assistant noted that the applicant had complained of numbness and tingling in his right arm. On 31 January 2009 the same medical assistant concluded that the applicant’s problem was a result of the self-inflicted laceration to his ligament.

In the meantime, on 28 January 2009 the applicant’s family learned of his situation and employed a lawyer. As a result of the lawyer’s involvement, on 30 January 2009 the applicant was transferred back to Cricova prison.

On 12 February 2009 the applicant’s state of health deteriorated and he was hospitalised in a prison hospital, where he was examined by a neurologist and diagnosed with severe radial neuropathy of the right arm (damage to the radial nerve running down the length of the arm, which controls movement in the triceps and is responsible for extending the wrist and fingers). He was released from hospital on 9 April 2009, but returned later on several occasions.

In the meantime, the applicant’s lawyer complained to the prosecutor’s office that his client had been subjected to ill-treatment, but on 31 July 2009 the complaint was dismissed as ill-founded. The investigating authorities found the applicant’s allegations of ill-treatment to be ill-founded, in view of the absence of any physical evidence except for that resulting from his self-harm. In reaching this conclusion, the investigating authorities relied on the statements of the accused police officers, who denied ill-treating the applicant, and on the conclusion of the medical assistant from the police station detention facility (see paragraph 7 above). The findings of the doctors from the prison hospital (see paragraph 9 above) were not considered.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The applicant was born in 1982 and lives in Warsaw.

On 29 November 2012 the Warsaw-Wola District Court (Sąd Rejonowy) ordered the applicant’s detention on remand on suspicion of drug dealing, as well as facilitating and benefiting from prostitution, committed in an organised criminal group. The domestic court relied on a strong likelihood that the applicant had committed the offences in question, on the fact that he faced a severe penalty and that he was suspected of acting with accomplices. The likelihood that the applicant had committed the offences in question was established, in particular, on the basis of the testimony of a key prosecution witness (the so-called “crown witness”).

On 8 January 2013 the Warsaw Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal against this decision. It stressed that the sole fact that the applicant faced a severe penalty and had been suspected of committing offences in an organised criminal group justified a suspicion that, if released, the applicant would try to obstruct the proceedings by influencing witnesses or his accomplices.

The applicant’s detention on remand was extended by the Warsaw Regional Court on 21 February, 27 May and 8 August 2013. In these decisions, the court repeated the reasons originally relied on. In its decision of 21 February 2013, the Warsaw Regional Court further noted that the case against the applicant was complex, and indicated a number of steps that still had to be taken in order to terminate the investigation. The court noted that not all of those steps required the applicant’s detention and urged the prosecutor to accelerate the proceedings.

The applicant appealed against all these decisions, without success.

On 21 November 2013 the Warsaw Court of Appeal (Sąd Apelacyjny) ordered a further extension of the applicant’s detention on remand. It relied on the same grounds as previously given for his detention. The applicant appealed. The decision was upheld on appeal on 12 December 2013.

The bill of indictment against the applicant was lodged with the Warsaw Regional Court on 30 December 2013. The applicant was charged with ten offences committed in an organised criminal group and – in the case of some of the offences – as a re-offender. The charges included facilitating prostitution by renting an apartment to prostitutes and collecting money from them, and a number of counts of drug possession and distribution. The bill of indictment concerned altogether seventeen accused, charged with 150 offences. Later, the number of accused in the proceedings dropped to fourteen. The prosecutor requested that the court hear over 90 witnesses, including five “crown witnesses”.

Subsequently, the applicant’s detention pending trial was extended by the Warsaw Regional Court’s decisions of 10 January and 7 May 2014 and by the Warsaw Court of Appeal’s decisions of 30 December 2014, 28 April, 27 August and 26 November 2015, and of 25 February and 25 May 2016. The domestic courts continued to rely on the same grounds for detention as in their previous decisions. They also stressed the complexity of the case and the links between the co-accused within an organised criminal group which, according to the domestic courts, justified a suspicion that, if released, they would attempt to obstruct the proper course of the proceedings.

The appeals by the applicant against decisions extending his detention and all his applications for release were unsuccessful.

On 9 May 2016 the trial court ordered the applicant’s release on bail for 80,000 Polish zlotys (PLN) (approximately 20,000 euros (EUR)). The applicant appealed against this decision, contesting the amount of bail as excessive. On 25 May 2016 the Warsaw Court of Appeal upheld the decision. It underlined that the amount of bail had to take into consideration not only the financial situation of the applicant, but also the gravity of the charges against him. The court also stated that it had taken into consideration the fact that the applicant had abused his procedural rights in order to obstruct and delay the proceedings. It indicated that the amount in question had to be such that the prospect of its loss would constitute a genuine deterrent against any illegal activities which, until that moment, had been prevented by the applicant’s detention.

On 30 May 2016 the Warsaw Regional Court again ordered the applicant’s release on bail of PLN 80,000. It also imposed a prohibition on leaving the country. The applicant paid the security required by the court and was released on 31 May 2016.

The case against the applicant and his co-accused appears to be pending before the Warsaw Regional Court (no. XII K 1/14). The material includes 188 volumes.


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

The applicant was born in 1953 and lives in Yerevan.

The applicant is a former employee of a State Revenue Committee (hereinafter “the Committee”). By an order of the Head of the Committee of 27 February 2009 the applicant was dismissed from his job.

On 20 March 2009 the applicant brought an action against the Committee, requesting reinstatement in his job and payment for forced absence up to the day of his reinstatement.

On 11 August 2009 the Kentron and Nork-Marash District Court of Yerevan found in the applicant’s favour. In particular, it decided to declare the order of 27 February 2009 void. Moreover, it ordered the applicant’s reinstatement in his previous position and awarded him compensation for lost earnings.

On 2 September 2009 the Committee appealed against the District Court’s judgment. By a decision of 7 October 2009 the Civil Court of Appeal rejected the appeal and upheld the District Court’s judgment.

On 2 November 2009 the Committee lodged an appeal on points of law against the decision of 7 October 2009 with the Court of Cassation.

On 9 December 2009 the Court of Cassation decided to declare the appeal inadmissible for lack of merit, so the judgment of 11 August 2009 became final.

On 27 January 2010 the Kentron and Nork-Marash District Court of Yerevan issued a writ of execution in respect of its judgment of 11 August 2009.

On 5 February 2010 the bailiff instituted enforcement proceedings. On the same date he decided to oblige the Committee to comply with the requirements of the writ within two weeks.

By a letter dated 11 February 2010 the bailiff requested that the Committee comply with the requirements of the writ.

On 23 March 2010 the bailiff received a response from the Committee, stating that it was impossible to reinstate the applicant in his job, since the structure of the Committee had been modified and the applicant’s former position did not exist anymore.

On 20 April 2010 the applicant was paid 937,114 Armenian drams (AMD) for his forced absence, calculated from 27 February 2009 until 9 December 2009, the date on which the judgment in his favour became final.

The applicant sent several letters to the Committee and to different officials, complaining that no measures had been taken to enforce the final judgment of 11 August 2009 and requesting that the Committee be compelled to comply with that judgment.

On 18 July 2011 the bailiff decided to terminate the enforcement proceedings on the grounds that it was impossible to enforce the judgment of 11 August 2009. In particular, the applicant could not be reinstated because his previous position was no longer vacant.

On 25 July 2011 the applicant contested the bailiff’s decision before the Administrative Court.

On 5 December 2011 the Administrative Court found in favour of the applicant and cancelled the bailiff’s decision of 18 July 2011.

On 20 January 2012 the supervising bailiff decided to set aside the bailiff’s decision of 18 July 2011 and reopen the enforcement proceedings.

By a letter dated 5 March 2012 the bailiff again requested that the Committee reinstate the applicant in his previous position and award him compensation for lost earnings until the date of his reinstatement. The Committee replied that the applicant’s former position had ceased to exist as a result of the Governmental decree of 15 December 2011.

On 26 April 2012 the bailiff again decided to terminate the enforcement proceedings on the grounds that it was impossible to enforce the judgment of 11 August 2009, since the structural unit of the Committee where the applicant had been working had ceased to exist.

On 7 May 2012 the applicant contested that decision before the Administrative Court. He alleged, in particular, that the judgment of 11 August 2009 had not been enforced: firstly, he had not been awarded the full sum for his forced absence, and secondly, he had not been reinstated in his previous position.

By a judgment of 16 October 2012 the Administrative Court decided to grant the applicant’s claim in respect of the payments for his forced absence, stating that the period should be calculated up to 15 December 2011, the day on which that particular unit of the Committee had ceased to exist. As to the applicant’s second claim, the Administrative Court stated that the bailiff’s decision in this respect was lawful, since the applicant’s reinstatement had been impossible.

On 9 November 2012 the applicant lodged an appeal against the judgment of the Administrative Court.

On 21 February 2013 the Administrative Court of Appeal dismissed the applicant’s claim and upheld the Administrative Court’s decision of 16 October 2012.

On 11 March 2013 the applicant lodged an appeal on points of law against the decision of 21 February 2013 with the Court of Cassation.

On 27 March 2013 the Court of Cassation decided to declare the appeal inadmissible for lack of merit.

On 19 April 2013 the bailiff decided to reopen the enforcement proceedings.

On 4 November 2013 the applicant was invited to the Committee and the Committee made him a verbal offer of a similar position in another tax inspectorate unit, but this offer was later turned down by the applicant.

Three days later, via telephone, the applicant was again invited to the Committee, but he failed to appear.

On 8 November 2013 the Head of the Human Resources Department of the Committee sent a letter to the applicant, offering to reinstate him in a position similar to his previous one, that is, the position of a tax inspector in Current Control Division no. 2 of the Shengavit Tax Inspectorate. The letter also stated that the compensation for the applicant’s forced absence up to that date amounted to AMD 4,017,860.

On the same day the applicant refused to accept the Committee’s offer. He claimed that the compensation for his forced absence should amount to AMD 9,975,970. In response, the Committee informed the applicant that it would consider the above-mentioned sum if the applicant submitted substantiating calculations.

On 9 June 2015 the amount of AMD 4,017,860 was transferred by the Committee to the bailiff’s account. On 18 June 2015 the enforcement proceedings were terminated by the bailiff as this amount had been further transferred to the applicant’s bank account.

On 22 July 2015 the applicant appealed to the Administrative Court, requesting that the bailiff’s decision be quashed.

On 22 May 2016 the Administrative Court allowed the applicant’s appeal and quashed the bailiff’s decision of 18 June 2015. That judgment became final on 26 May 2016.


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev

The applicant, Mr Vasyl Vasylyovych Yarushkevych, is a Ukrainian national, who was born in 1959 and lives in Yuzhynets, the Chernivtsi region. He was represented before the Court by Ms N.P. Svyrgun, a lawyer practising in Kyiv.

The Ukrainian Government (“the Government”) were represented by their then Agent, Ms Valeria Lutkovska.

Ms Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1).

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

On 7 September 2000 the Chernivtsi Regional Court found the applicant, a State bailiff at the material time, guilty of fraud in conjunction with abuse of position, as well acceptance of a bribe, also with abuse of position. It sentenced him to a three-and-a-half-year prison term and decided on an injunction against occupying official posts for the same period and confiscation of his personal property.

The applicant challenged the judgment on appeal.

In its 22-28 September 2000 issue, the Molodyy Bukovynets, a triweekly regional newspaper with circulation of about 35,000 copies (according to the information provided by the applicant), published an article on the court proceedings in question. The article, entitled “A bailiff has been convicted” («Засудили судовиконавця»), commenced by the following introductory paragraph:

“On 7 September the criminal panel of the regional court sent Vasyl Yarushkevych, who had served as a bailiff in Kitsman, down for three and a half years behind bars. According to the court’s judgment, he is “deprived of the right to occupy official posts for three and a half years and is to serve a sentence in a high-security colony”. Also all Yarushkevych’s property is to be confiscated.”

Following this introductory paragraph, the article went into detail on the applicant’s conduct which had led to his conviction, including the victims’ last names and details of their statements, an interview with the presiding judge, who explained that the applicant’s personal circumstances, including his status as a Chernobyl victim with no prior criminal record, were taken into consideration in choosing a mild sanction, and the journalist’s allegation that if the applicant were unable to pay his civil debt under the judgment, his car or his apartment might have to be sold. The article finished with the following phrase: “Easy gain turned into heavy consequences”.

On 24 October 2000 the Supreme Court of Ukraine quashed in part the judgment of the first-instance court in so far as it concerned the bribe-taking charge and remitted this part of the case to the prosecution authorities for additional investigation. The Supreme Court also reduced the applicant’s prison sentence and the injunction on the occupancy of official posts to three years. Subsequently (on 9 March 2004) the Kitsman District Court discontinued the criminal proceedings on the bribe-taking charge against the applicant as time-barred.

On 15 October 2003, having returned to his village after serving his sentence, the applicant brought defamation proceedings before the Pershotravnevyy District Court of Chernivtsi (“the Pershotravnevyy Court”) against the Molodyy Bukovynets newspaper and the journalist who had authored the article in question. He alleged that the article contained an untrue statement about his conviction in respect of the acceptance of a bribe. The applicant noted in this connection that the respective part of the judgment had eventually been quashed and that the case had been remitted for additional investigation. The applicant further submitted that the publication had caused him non-pecuniary damage, as it had resulted in his stigmatisation by the villagers as corrupt, that it had brought about complications in his family relationships and had made it more difficult for him to find employment and reintegrate into society. Accordingly, the applicant sought a declaration of the impugned statement as untrue and thus defamatory, publication of its refutation by the defendants, and compensation in respect of non-pecuniary damage.

Although the applicant missed the one-year limitation period established for this kind of claims, the court considered that he had had valid reasons for that and accepted his claim for consideration.

On 15 December 2004 the Pershotravnevyy Court found against the applicant. It noted that the information contained in the disputed article had been accurate at the time of its publication and could therefore not be considered defamatory or subject to refutation.

The applicant appealed. He insisted that neither at the time of the publication nor later had his guilt in respect of acceptance of a bribe been established by a final judicial decision. He further alleged that publishing a full and detailed account of his conviction before it became final was in violation of the constitutional principle of the presumption of innocence.

On 6 April 2005 the Chernivtsi Regional Court of Appeal upheld the first-instance court’s judgment and its major point of reasoning that, when the article at issue had been published, the information about the conviction was accurate. The court further stated:

“As regards the appellant’s arguments that by their publication the defendants violated the principle of presumption of innocence... they are ill-founded.

It has been established that the author of the article did not accuse [the applicant] of crimes before the pronouncement of the judgment in his case, but that he [the journalist] merely reported on the contents of the judgment, which had been publicly pronounced.

Current legislation of Ukraine, including the Law of Ukraine “On Printed Media”,... does not prohibit journalists from providing their readers with information concerning convictions by first-instance courts which have not yet become final. Furthermore, it is well-known that first-instance court judgments are subject to appeal... and the author of the publication did not state that the conviction was final.

The first-instance court’s judgment is also in compliance with the requirements of Articles 6 and 10 of the [Convention] concerning public hearings of criminal cases and freedom of expression.

The case-file materials indicate that the judgment was pronounced in respect of [the applicant] not as a private person, but as an official having a wider range of obligations to the society and the State. Consequently... the journalist had the right to analyse this thoroughly and report the proceedings to the public...”

The applicant appealed on points of law, alleging in particular that the publication went beyond mere reporting on the outcome of the proceedings in the first-instance court. He submitted that it was couched in such terms as to leave no room for doubt in the reader’s mind that the court’s findings were correct. It featured details, unnecessary for reporting on a non-final conviction, such as the court’s reasoning with respect to particular witness statements, a reference to the applicant as an apartment owner and other information not warranted by the context.

On 11 June 2007 the Ternopil Regional Court of Appeal, acting as the cassation instance, rejected the applicant’s request for leave to appeal in cassation.

Relevant domestic law can be found in the judgment in the case of Ukrainian Media Group v. Ukraine (no. 72713/01, §§ 22-24 and 26, 29 March 2005).


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

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

The applicants were born in 1961 and 1996 respectively and live in Muğla.

The first applicant was the husband and the second applicant was the son of Mrs Özlem Gürakın, who died on 3 September 2001.

On an unspecified date, the applicants brought compensation proceedings against the Dokuz Eylül University Hospital, alleging that Mrs Özlem Gürakın had been a victim of medical negligence. The applicants further requested legal aid for the court fees. In respect of their legal aid claim, they submitted documents attesting to their poor financial situation.

On 13 December 2006 the Izmir Administrative Court rejected the applicants’ legal aid claim, without indicating any specific reasons. They were notified that they had to pay 1,683 Turkish liras (TRY) (approximately 870 Euros (EUR)) in court fees within one month to continue the proceedings and that failure to do so would result in the discontinuation of the proceedings.

As the applicants failed to pay the court fees within the time-limit, the İzmir Administrative Court sent a further warning letter to the applicants and ordered them to pay the court fees.

On 6 April 2007 the applicants made a second request for legal aid and asked the court to reconsider its former decision.

On 20 April 2007 the Izmir Administrative Court once again rejected the applicants’ request and granted them one month to pay the court fees.

On 12 July 2007 the court decided to discontinue the proceedings, because the applicants had not paid the necessary court fees.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)

The applicant was born in 1965 and lives in Bucharest. At the time of the facts of the case, the applicant was in private legal practice and was a senator.

On 10 December 2009 the Anti-Corruption Department of the Prosecutor’s Office attached to the High Court of Cassation and Justice (referred to herein as “the prosecutor” and “the DNA”) started criminal proceedings against the applicant (urmărirea penală) on suspicion of trading in influence (traffic de influenţă). In particular, the prosecutor alleged that: (i) the applicant had accepted 200,000 euros (EUR) from a businessman, C.C., in return for using his connection to Judge F.C. of the High Court of Cassation and Justice in order to influence the outcome of a case pending before that court which concerned a dispute between C.C.’s company and a state agency; and (ii) that he had accepted money from M.L., under the pretext of providing legal services through his law firm, in order to facilitate M.L.’s access to the head of the police with the aim of discussing criminal investigations that were being conducted against M.L.

On 11 December 2009 the applicant was returning home during the day in a car belonging to the Senate. Close to his home, his route was blocked by another car. Several armed individuals jumped out, dragged the applicant from his car and, in front of his neighbours and a crowd of passers-by, handcuffed him and put him in their car. He was then taken to the DNA’s headquarters, where he was informed of the criminal proceedings against him. The applicant gave a statement to the prosecutor.

At the DNA’s headquarters, the applicant found out that he had been under investigation for a crime against national security. However, the prosecutor had decided on 27 November 2009 not to prosecute that offence. The evidence gathered in that investigation, in particular through intercepting the applicant’s telephone, had led the investigators to suspect the commission by the applicant of the crimes of corruption for which he was currently under investigation by the DNA.

On the same date, the prosecutor issued an order prohibiting the applicant from leaving town for thirty days.

Upon the applicant’s request, on 12 January 2010 the prosecutor sent him a copy of the decision of 27 November 2009.

On 9 March 2010 the prosecutor sought, through the Minister of Justice, Parliament’s approval to arrest the applicant. On the same date, the DNA issued a press release informing the public that it had sought authorisation for the arrest.

From the moment the DNA informed the public about the proceedings against the applicant, the media took great interest in the case. Numerous panel discussions were broadcast and journalists and politicians commented publicly on the events.

Excerpts from conversations between the defendants which had been obtained through telephone tapping during a criminal surveillance operation conducted prior to the criminal prosecution made it into the newspapers before the applicant and his co-accused had been committed for trial. Those excerpts gave the impression that the applicant and Judge F.C. had tried to manipulate some of the judges from the panel ruling in a commercial case involving C.C., and had reported back to the latter on the progress of those alleged manoeuvres. In the conversations among them, the applicant and the codefendants expressed in strong terms their disappointment that the outcome had not been favourable to C.C., and made assumptions as to whether the remaining judges on the panel had been influenced by someone else.

The transcripts of telephone conversations intercepted during the surveillance operation first appeared in the press between 18 and 22 March 2010.

Other pieces of evidence from the prosecution file were likewise published and commented on in the press.

On 24 March 2010 the Senate met to discuss the prosecutor’s request. The applicant was unable to take part in the session, as he was in the hospital at the time. The Senate allowed the prosecutor’s request.

Upon obtaining the Senate’s approval, the prosecutor submitted a detention order to the High Court of Cassation and Justice, which examined it in private on 30 March 2010 and endorsed it. The applicant was arrested on the same day.

The High Court then took a statement from the applicant and proceeded to examine the prosecutor’s application for the applicant’s pretrial detention. It heard arguments from the parties, reviewed the evidence presented by the prosecutor and concluded that there were serious indications and evidence in the file that the applicant had committed the crimes of which he was accused and that he had abused his important official position, thereby damaging the reputation of the legislature and the judiciary, as well as undermining the public’s trust in the judicial system. It therefore considered that the specific danger that the applicant posed to the public order was serious enough to justify his detention.

Upon the applicant’s appeal, by a final decision of 2 April 2010 the High Court, sitting as a ninejudge bench, upheld the previous decision. At the applicant’s request, this hearing was held in secret and journalists and the public were removed from the courtroom. The High Court found that the evidence lawfully included in the file justified a reasonable suspicion that the applicant had committed the crimes under investigation. It also dismissed the applicant’s argument as to procedural flaws, in so far as it found that the prosecutor had heard the applicant on 11 December 2009 and considered that his right to mount a defence had not been disregarded because of the mere fact that a certain lapse of time had passed between the date of his statement and that of the arrest order.

The applicant sought his conditional release. On 12 April 2010 the High Court dismissed his application, on the grounds that the evidence in the file indicated that he had tried to influence one of the witnesses and to create false evidence in his defence. It also considered that the reasons underlying the court decision to place him in pre-trial detention were still valid, given that, in particular, such a short time had passed since that decision.

This decision became final on 16 April 2010, when the High Court dismissed the applicant’s appeal.

The High Court examined the applicant’s pre-trial detention on ten more occasions and the applicant repeatedly applied for release pending trial conditioned on the obligation not to leave town (decisions of 23 April, 25 May, 16 June, 14 July, 10 September, 6 October, 16 November 2010, 12 January, 9 February and 4 March 2011).

The High Court considered that the evidence in the file offered a reasonable indication that the applicant had committed the crimes he was accused of and that his continued detention was needed given the difficulty involved in investigating such crimes. It also referred to his attempt to influence witnesses, to his personal situation (first time on trial, family situation), his personality, his office during the alleged commission of the offences, and the nature and severity of the crimes under investigation. The High Court also took into account the fact that the proceedings on the merits had only recently started, on 20 May 2010.

It referred to the European Court’s case-law and the relevant Council of Europe texts, and considered that the grounds for the applicant’s detention were still valid and the time spent in pre-trial detention was not excessive within the meaning of Article 5 of the Convention.

For these reasons, it did not consider it opportune to substitute the preventive measure that had been applied with a less strict measure.

The appeals lodged by the applicant against each of these court orders were dismissed by a different panel of the High Court on 26 April, 31 May, 21 June, 22 July, 30 September, 13 October and 29 November 2010, 20 January, 28 February and 14 March 2011 respectively.

On 4 April 2011 the High Court examined a new application for release on probation lodged by the applicant and decided that he could be released. It held that the vast majority of the evidence for the prosecution had already been heard in court, thus the risk of the applicant trying to influence witnesses was no longer acute. The court ordered him not to leave town and not to contact his co-accused.

However, on 11 April 2011 the decision was quashed and a fivejudge panel of the High Court dismissed the applicant’s application for release. The High Court examined the suitability of releasing’s case-law on the subject. It considered that the severity of the crimes allegedly committed and the particular circumstances in which they had occurred, coupled with the applicant’s attempts to influence a witness, were sufficient factors to justify extending the applicant’s detention pending trial, which remained the only adequate preventive measure. It also considered that the overall length of the measure remained reasonable in the applicant’s particular situation.

On four more occasions (27 April, 11 May, 8 June and 12 July 2011) the High Court was called to examine the necessity of keeping the applicant in detention and each time it decided to release him pending trial for the same reasons as those advanced on 4 April 2011. The High Court replaced the measure with the obligation not to leave town.

However, each order, save for the last one, was quashed by a five-judge panel of the High Court and the applicant’s detention was extended (on 29 April, 24 May and 17 June 2011 respectively).

On 18 July 2011 the High Court dismissed an appeal lodged by the prosecutor against the court order of 12 July 2011.

As a consequence, the applicant was released from detention on the same day.

The applicant was arrested on 30 March 2010 and remained in pretrial detention until 12 July 2011. He described the overall conditions of his detention as follows: it was very cold in the cell, hot water was only available for one hour a week and basic hygiene was lacking. He had to share a 9 sq. m cell with ten other inmates and the lack of space triggered violent clashes within the cell.

The Prison Administration submitted a full record of the applicant’s stay in prison, giving details of the cells the applicant was kept in, their occupancy and the facilities offered. According to this information, the applicant was held in Bucharest Remand Centre No. 1 (“Bucharest Remand Centre”) on 30 March 2010 and again from 16 April 2010 to 13 July 2010. He was held in two separate cells, one of 9 sq. m with four beds and another of 14.57 sq. m with six beds. The cells were at full occupancy at that time. Each cell was equipped with beds, a table, chairs, a squat toilet, a sink with cold and hot water and a shower separated from the living space by a curtain. The inmates cleaned the cell themselves with products provided by the administration or purchased by them.

The applicant described these cells as badly lit and ventilated, humid and foul smelling. He further explained that because the toilet was not partitioned off from the beds, the inmates lacked privacy when using it. The tap for washing dishes and clothes and for showering was placed above the toilet and the water ran straight into the toilet. There was frequently no running water at all, which rendered it impossible to flush the toilet. The hot water was never sufficient for all of the inmates to take showers.

The records show that from 30 March to 16 April 2010 the applicant was held in Jilava Prison Hospital in a hospital room measuring 30 sq. m which was equipped with five beds and had access to hot water twice a week.

The applicant spent the remainder of his pre-trial detention in Bucharest-Rahova Prison, where he was held, at his request and because of his position as a senator, in a cell for vulnerable individuals. The cell measured 24.59 sq. m, had eight bunk beds and was at full occupancy at that time. The cell had a window which allowed in natural light and ventilation. The detainees had at their disposal a table, benches, shelves and a TV set. Adjacent to the cell there was a bathroom equipped with a toilet, sinks and a shower. Cold water was continually available and hot water was available twice a week. The cell was heated to 18oC during the winter. The applicant explained that it was very hot in the summer and very cold in the winter; the heating system was old and broke down frequently, leaving the cells brutally cold. Hot water was scarce and there was never enough for all of the inmates to take showers.

On 28 February 2011 the applicant was transported from BucharestRahova Prison to the prosecutor’s office in Piteşti and back, a trip of around two hours each way. According to the applicant, they left in the morning from Bucharest-Rahova Prison. He was transported in the back of a prison van. Although the outside temperature was no more than 2-3oC, there was no heating in the van; in addition cold air from outside was able to enter the van through two hatches in the roof which could not be closed completely. There was insufficient light in the van because there were no windows in the detainee’s compartment, the only source of light being a small window separating the detainee’s compartment from the driver’s cabin. The applicant, who was alone in the back of the van, had nothing to sit on or lean against, thus having to stand up during the entire journey with nothing to hold on to.

When the van arrived in Piteşti and returned to Bucharest, he was allowed to stretch, warm up and do some physical exercise.

The Prison Administration informed the Government that the applicant had been transported in a van designed for transporting sixteen people, as follows: two people in the forward cabin, ten detainees on chairs in a separate compartment, and four guards in another separate compartment in the back of the van. The van had natural and artificial ventilation, a heating system, and artificial light, which was kept on throughout each journey in order to allow the guards to keep watch over the detainees. The applicant had been transported alone, thus having ten chairs at his disposal.

The journey had started at 8.45 am and ended at 1.35 pm.

In his observations in reply to the official information supplied by the Prison Administration, the applicant explained that the back of the van where he had been held had been completely opaque without any natural light and that the artificial lighting and the heating system had not been working. He reiterated that the two hatches on the roof had remained open during the journey, resulting in freezing temperatures inside the van. The guards had had blankets to cover themselves during the journey, but he had not been given one. In addition, the seats in the detainees’ compartment had not been fitted with safety belts, which had made it difficult to keep his balance.


CASE OF BUKOVČANOVÁ AND OTHERS v. SLOVAKIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

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

The applicants were born in 1952, 1947, 1973 and 1980 respectively and live in Bratislava.

They are co-owners of a residential house located in the Bratislava-Staré Mesto municipality. The house was built in 1929 by their familial predecessors, who during the previous regime donated it to the State under circumstances that would later be accepted as constituting duress. The ownership of the house was restored to the first and second applicants on 10 December 1991 under special legislation on restitution. Consequently, each of them acquired a 4/12 share of the ownership of the house. The third and fourth applicants each acquired a 2/12 share of the ownership of the house on 25 January 1995 and 29 March 1999 respectively.

At the time the applicants acquired the ownership of the house five flats were inhabited by tenants with regulated rent. Under the relevant legislation this meant that (i) the applicants had to accept that their flats were occupied by these tenants, (ii) they could charge them no more than the maximum amount of rent fixed by the State, (iii) they could not unilaterally terminate the leases, and (iv) they could not sell the flats other than to the tenants (“the rent-control scheme”).

The rent-control scheme applies, or has applied, to the flats in question, as follows: a four-room flat with a surface area of 129 sq. m which had been subject to rent control until January 2006 (“the first flat”); a four-room flat with a surface area of 130 sq. m which had been subject to rent control until September 2008 (“the second flat”); a two-room flat with a surface area of 87 sq. m and two four-room flats measuring 126 sq. m each (“the third, fourth and fifth flats”), to which rent control still applies.

The monthly rent chargeable for the flats under the applicable legislation was equivalent to some 10 to 17.5 euros (EUR) between 1992 and 1999. After several increases in the regulated rent, in June 2007 the applicants were able to charge some EUR 73.5 monthly in respect of the two-room flat and approximately EUR 125 monthly in respect of the fourroom flats. According to the Government’s calculations the regulated rent reached EUR 236 and EUR 400 respectively in 2014.

The parties provided differing figures as to the market rent.

The applicants relied on data from the National Association of Real Estate Agencies (“the NAREA”) and claimed that the monthly market rent for comparable tworoom flats in the area reached around EUR 662 and for comparable fourroom flats some EUR 1,296 between 2004 and 2007.

The Government submitted an expert valuation according to which the monthly market rent for the applicants’ flats in 2010 amounted to EUR 561 and EUR 772 to EUR 797 respectively.


Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

A list of the applicants is set out in the appendix. They were all represented by Mr L. Šušak, a lawyer practicing 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.

The applicants’ family lived in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People’s Army and paramilitary Serbian armed forces in the period between August and November 1991, during the war in Croatia.

According to the applicants, on 17 November 1991 their respective husband and father, K.L., was taken from his home in Borovo Naselje, a district of the town of Vukovar, by Croatian soldiers and killed on 18 November 1991.

According to the Government, the town of Vukovar fell on 18 November 1991; after the surrender of the last Croatian forces on 20 November 1991 the Yugoslav Peoples’ Army and Serbian paramilitary forces established their control over it.

After the fall of Vukovar, the applicants went to live in Serbia.

Between 1992 and 1996 Vukovar was a part of the United Nations Protected Area (UNPA). In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (UNTAES), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began.

An investigation was opened on 27 November 1991 by an investigating judge of the Belgrade Military Court. On 26 February 1992 the first applicant gave evidence in those proceedings.

On 1 April 1992 an indictment was lodged before that court against M.F., Z.Š., M.D. and D.S., Croatian soldiers imprisoned by the Serbian forces, on charges of war crimes against the civilian population.

On 26 June 1992 the Belgrade Military Court found the accused guilty as charged. The conviction of Z.Š. and M.D. covered, inter alia, responsibility for the killing of K.L. M.D. was sentenced to twenty years’ imprisonment and Z.Š. to death. This judgment was upheld by the Serbian Supreme Military Court on 29 December 1992 and thus became final.

On 14 February 2007 the applicants submitted a claim for damages with the State Attorney’s Office in respect of the death of K.L. They requested that V.P. and M.S. be heard as witnesses.

The Croatian authorities learned about the death of the applicants’ relative for the first time when they made the above request. An investigation ensued. On 15 June 2007 the police interviewed V.P., who had no knowledge whatsoever about the killing of K.L. and said that she had never been to Vukovar. It was also established that M.S. had died.

The applicant’s request was refused.

Between 24 November 2010 and 3 July 2013 the police interviewed the applicants, M.K., P.D., V.M., Z.Š. and M.V. None of them had any relevant knowledge about the circumstances of the killing of K.L.

In the meantime, on 3 January 2011 the Vukovar County State Attorney’s Office asked the Serbian Prosecution Office for War Crimes for all evidence in respect of the killing of K.L. On 4 May 2011 the latter Office sent to the Croatian authorities completed documentation which did not contain any of the judgments of the Serbian Military Courts.

On 5 March 2008 the applicants brought a civil action against the State before the Vukovar Municipal Court, seeking compensation in connection with the death of their relative. They asked that witness M.K. be heard in respect of the circumstances surrounding the killing of K.L.

That claim was dismissed on 13 April 2010. The Municipal Court found that the claim had been submitted after the expiry of the applicable time-limit specified in the statute of limitations. The applicants were also ordered to pay to the State the costs of the proceedings in the amount of 9,750 Croatian kuna (HRK). In an appeal against the first instance-judgment and an appeal on points of law before the Supreme Court the applicants complained about the manner in which the rules on the time-limit specified in the statute of limitations had been applied. The first-instance judgment was upheld by the Vukovar County Court and the Supreme Court on 1 July 2010 and 12 October 2011 respectively.

On the latter day the applicants sent to the Supreme Court copies of judgments of the Belgrade Military Court and the Serbian Supreme Military Court (together “the Serbian Military Courts”) (see paragraph 11 above).

On 16 February 2012 the applicants lodged a constitutional complaint. They enclosed the judgments of the Serbian Military Courts and argued, inter alia, that there had been a conviction by a criminal court in respect of the killing of K.L. and that therefore their civil claim could not have become statute-barred. The applicants’ constitutional complaint was dismissed on 16 May 2012 as ill-founded. The Constitutional Court did not make any reference to the judgments of the Serbian Military Courts.

The State authorities instituted enforcement proceedings in the Vukovar Municipal Court against the first applicant, seeking the payment of the costs of the above-mentioned civil proceedings, together with applicable interest and the costs of the enforcement proceedings.

An enforcement order was issued on 19 April 2011; under the order, one-third of the first applicant’s pension was to be seized each month.

The first applicant lodged an appeal, arguing that her monthly pension amounted to HRK 1,200 and the seizure of one-third of that amount put her in a precarious position since it did not leave her with sufficient resources for subsistence.

The appeal was dismissed by the Vukovar County Court on 14 October 2011 and a subsequent constitutional complaint lodged by the first applicant was dismissed by the Constitutional Court on 4 April 2012.

Section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 reads:

“1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ...

If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted.

In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.”

The relevant provisions of the 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 statute-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.

“(1) Where the damage was the result of a criminal offence and the statutory limitation period for criminal prosecution is longer, the claim for damages against the person responsible becomes statute-barred at the same time as the criminal prosecution.

(2) The interruption of the statutory limitation period in respect of criminal prosecution entails the interruption of the statutory limitation period in respect of a claim for damages.

“The statutory limitation period is interrupted by the lodging of a civil action or any other action by a creditor against a debtor, before a court or other competent body, which is brought in order to secure or enforce the creditor’s claim.”

The relevant part of the Act on the Nullity of Certain Legal Acts of the Judicial Bodies of the Former Y[ugoslav] P[eoples’] A[rmy], the former S[ocialist] F[ederal] R[epublic of] Y[ugoslavia] and the Republic of Serbia (Zakon o ništetnosti određenih pravnih akata pravosudih tijela bivše JNA, bivše SFRJ I Republike Srbije, adopted on 21 October 2011 and published in the Official Gazette no. 124/2011 of 4 November 2011 – hereinafter the “Nullity Act”) reads as follows:

“It is to be established that by the enactment of this Act all legal acts of the former YPA, its judicial bodies, the judicial bodies of the former SFRY and the judicial bodies of the Republic of Serbia which concern the Homeland War in the Republic of Croatia, under which citizens of Croatia have been [deemed to be] suspects, or accused or convicted for criminal offences recognised by international law ..., committed on the Croatian territory, are null and void and without legal effect, including:

- a war crime against the civilian population ...

Legal acts adopted by judicial bodies of the Republic of Serbia for which the Croatian judicial authorities establish that they comply with the standards of the Croatian criminal legislation are exempted from nullity.”


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1977 and is currently detained in Giurgiu Prison.

In a final judgment by the Dolj County Court, the applicant was sentenced to life imprisonment for murder.

The applicant was detained in Craiova Prison between 2 December 1997 and 26 June 2008. During that time he was transferred to other prisons or prison hospitals for short periods. On 26 June 2008 he was transferred to Poarta Albă Prison. He has been serving his sentence in Giurgiu Prison since 2 September 2010.

The material conditions of detention in Craiova Prison were described by the applicant as being inhuman and degrading.

As a result of the severity of his sentence, the applicant was classified as a dangerous prisoner in accordance with the prison regulations and was held in solitary confinement. He alleged that he had insufficient living space in his cell because it contained unnecessary beds. His requests for some of the beds to be removed were always refused by the prison administration. He also complained that he felt isolated, as he had been forbidden to share the cell with another person or to meet other detainees for the entire duration of his detention. This situation was aggravated by the complete lack of activities outside the cell. In this respect he contended that he had participated in educational activities only in 2002 and 2003. For the rest of the time he had spent in Craiova Prison, no activities had been proposed to him.

There was a severe lack of drinking water, and of hot and cold water in general. The insufficient provision of hot water, namely once a week for one hour for a high number of detainees in collective showers, made it impossible to maintain a proper standard of personal hygiene.

Heating was provided for only two hours in the morning and two in the evening, which was not enough to heat the cell. The applicant therefore suffered constantly from the cold during the winter.

The food was insufficient and of very poor quality. The applicant, who did not have the financial means to buy additional food, suffered from hunger for most of the time.

There was not enough light in the cell because the window was too narrow and artificial light was only provided in the evening.

The applicant was systematically handcuffed every time he was taken out of his cell, even when he was taken to the prison’s religious facilities.

The applicant alleged that those conditions had had a negative impact on his physical and psychological well-being. In this connection, it appears from his prison medical file that he was suffering from chronic depressive psychopathy and had attempted to commit suicide. He was also diagnosed with gastritis and duodenitis, both of which became chronic as from 2004.

The applicant was held alone in a cell measuring 9.03 sq. m, in which three rows of bunk beds were installed each measuring 1.90 m by 0.80 m. The cell also contained a table and two chairs. All the furniture was fixed on the floor and could not be moved. During his detention in Craiova Prison, the applicant shared the cell with other detainees for various periods of time. On one occasion, he even planned an escape with his cellmate, R.A. The applicant participated in two educational activities in the course of 2002 and one educational activity from January to April 2003.

There was a constant supply of cold drinking water, in accordance with the international conventions signed by Romania. Until 2001 inmates had had an opportunity to take a bath once a week in the collective bathing facilities. As from the second half of 2001, hot water was supplied daily, for a minimum of one hour.

In winter, heating was available between 1 November and 31 March, in accordance with a pre-established schedule, for an average of eight hours per day.

With respect to the quality and quantity of food served, the Government submitted that it was in accordance with the European standards and the internal prison regulations.

Concerning the alleged lack of light in the applicant’s cell, the Government submitted that the cell contained a window measuring 1.50 m high and 0.75 m wide, which afforded the necessary light during the day. In addition, artificial lighting was available if needed until 10 p.m., in accordance with the prison’s schedule for the provision of electricity.

Prisoners classified as dangerous, such as the applicant, were handcuffed whenever they were taken out of their cells and during transportation, in accordance with the prison regulations. The handcuffs were removed while they were attending educational or ethic/religious programmes and during visits.

The applicant was detained alone in a cell measuring 7 m by 1.50 m. A very small window was covered with metal bars and metallic netting.

The applicant could leave his cell for only three hours per day for a walk outside, but had no other activities.

The prison rubbish dump was outside the cell window and made the air smell unbearably fetid.

Whenever the applicant needed something, he had to tap on the door in order to draw the guard’s attention. For this he was disciplined, usually by members of the special intervention units wearing masks.

The applicant was detained in five different cells, all of which had the same specifications, namely a surface of 10.24 sq. m, two beds measuring 1.93 m by 0.83 m and one bed-side table.

The prison’s rubbish dump was, and still is, located around 100 m from the window of the applicant’s cell and the rubbish is collected at least once per month. The Government submitted that there were situations when a fetid smell was released in the air but measures to remedy the situation were always taken. No specific measures were given as examples in that respect.

As for the activities available to prisoners in Giurgiu Prison, the Government submitted a general overview of the internal regulations on that matter.

On 23 January 2007 and 14 May 2009 the Court sent two letters to the applicant at Craiova Prison. The second letter was returned to the Court by the postal services with the mention “recipient unknown at this address”.

On 5 August 2010 the Court invited the Government to submit information on whether the applicant was still detained and if so, in which prison he was currently being held.

On 16 September 2010 the Government submitted information confirming that the applicant was detained at that time in Poarta Albă Prison.

The Court sent two more letters by registered mail on 21 September and 30 November 2010 to Poarta Albă Prison. In view of the applicant’s failure to reply to those letters and of the difference between the applicant’s signature on the application form and the signatures on the return receipts, on 12 January 2011 the Court asked the Government to submit additional information as to whether the two letters had reached the applicant.

On 24 February 2011 the Government replied that as the applicant had been transferred to Poarta Albă Prison and subsequently to Giurgiu Prison, the two letters had not reached him until 1 October and 10 December 2010 respectively.

In support of those allegations, the Government submitted copies of incoming mail registers showing that the two letters had been returned from Craiova Prison owing to the applicant’s transfer. They also submitted a copy of a page from a register entitled “Planning of personnel for prisoner’s escort”, on which the applicant’s name, his signature and the registration number of the letter of 21 September 2010 appeared. The page was not dated. A copy of a page from Giurgiu Prison’s incoming mail register showed the applicant’s name and signature confirming receipt of the Court’s letter of 30 November 2010 on 10 December 2010. Another copy of a page from an incoming mail register of 31 January 2011 showed the applicant’s signature for a delivery from the Council of Europe.

The Government further submitted that the signatures on the return receipts belonged to the prison employee in charge of receiving and distributing correspondence from and to the detainees, as provided for by the prison regulations. In this connection, they submitted a copy of the procedural rules for ensuring prisoners’ right to correspondence, as approved by the National Administration of Prisons, as well as a copy of the relevant internal regulations in force in Poarta Albă Prison. It appears from those documents that the correspondence addressed to prisoners is collected by designated staff members, who confirm the collection of mail by signing the post office register. Subsequently, the receipt of mail by the detainee to whom it is addressed is confirmed by the detainee’s signature in the prison’s incoming mail register.

Among the documents attached to the Government’s response was a copy of a statement signed by the applicant on 4 February 2011 and drafted in the following terms:

“... With respect to the letter sent by the E.C.H.R. [the Court] to the Romanian Ministry of Foreign Affairs concerning the letters addressed to me, which remained without reply, I declare that I submitted these 2 (two) petitions, being unsatisfied with the conditions of detention in Craiova Prison. ... I was transferred to Poarta Albă Prison and subsequently to Giurgiu Prison. I declare that I no longer wish to correspond with the E.C.H.R. because I was transferred to another prison and the previous problems do not interest me anymore. In order to clarify any suspicions, I can hand over copies of the letters in question to the Giurgiu Prison. ...”

In a letter dated 16 May 2011 the applicant replied to the Government’s submissions, stating that the authorities in the prisons of Craiova, Poarta Albă and Giurgiu continuously refused to ensure that his correspondence reached the Court, even threatening him that if he continued to complain before the Court “he would get out of prison only in a coffin” (“Dacă mai continui procesul la Curtea Europeană te vom scoate de aici în patru scânduri”). He further alleged that he had been transferred from Poarta Albă to Giurgiu Prison only to make him give up his application before the Court, and that he had been forced to sign the statement of 4 February 2011 in the office of the prison section director and in the presence of three masked guards. He mentioned that he intended to pursue his application before the Court.

The applicant also mentioned that he had received the Court’s letters of 21 September and 30 November 2010 with excessive delay. They had been opened.

The Government submitted that all letters addressed to detainees were opened in order to check them for forbidden elements. They were then handed to the recipients without their content being read by the authorities. However, correspondence received from non-governmental organisations or international institutions such as the Court was never opened. With respect to the two letters in question, the Government contended that they had been handed to the applicant in due time and without being opened.


CASE OF EUROMAK METAL DOO v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

The applicant company was set up in 1998 as a limited liability company. Its founders and sole shareholders were Ms Zhaneta Pavlovska and Mr Rasko Pavlovski. It traded in scrap metal and for that purpose it purchased waste aluminium, copper, iron and other metals, processed them and then offered the product for sale.

The applicant was registered for the purposes of the Value Added Tax Act (the “VAT Act”) and declared VAT on all invoices issued. VAT was also declared on all incoming invoices. This made it possible for the applicant company periodically to request VAT deductions from the State, which it did (in accordance with the rules of the “tax credit” system).

Until the subsequent events, the applicant company had been submitting regular tax returns to the tax authorities, notifying the State of its VAT calculations, payments and deductions. The State had processed the tax returns without indicating any wrongdoing or additional amounts due on the part of the applicant company.

On 22 September 2009 the Internal Revenues Office, regional directorate – Skopje (Управа за јавни приходи, Регионална дирекција Скопје – “the IRO”) issued an order to audit the applicant company for the purposes of VAT. The audit took place over several days during the months of October and November 2009 and took into account the period between 1 January 2005 and 30 June 2009.

On 6 November 2009 a tax assessment was compiled by the IRO. It was established that the applicant company’s suppliers were registered for the purposes of VAT but some of them had not declared or paid VAT to the State, even though it had clearly been declared in the invoices sent to the applicant company. That finding was based on earlier audits of those companies, which remained without further specification. The audit further established that some of the invoices did not contain the addresses of the suppliers. Lastly, the audit found that all invoices from the suppliers had been paid in full by the applicant company and that VAT had been declared on all invoices from the applicant company. On account of the above issues related to the applicant company’s suppliers, the audit concluded that the applicant company had failed to meet the conditions necessary to benefit from the VAT deductions it had received.

Relying on the tax assessment conducted earlier, on 20 November 2009 the IRO issued two decisions in respect of erroneous calculation of VAT, ordering the applicant company to pay an additional 3,827,546.00 Macedonian denars (MKD, around 62,000 euros (EUR)) in VAT. According to the IRO, those were the amounts the applicant company had unlawfully deducted from its tax obligations during the period 2005-07. An appeal lodged against those decisions had no suspensive effect.

The applicant company lodged an appeal with the Minister of Finance against the decisions of 9 December 2009. In the appeal it stated that it had met all of its VAT obligations stemming from the suppliers’ invoices and that it could not be held responsible for the suppliers’ mistakes.

On 8 February 2010 the Minister of Finance dismissed the appeal, reiterating the same findings and reasoning as in the audit report.

On 22 March 2010 the applicant company received a written reprimand from the IRO. The reprimand stipulated the full amount, including interest, to be paid by the applicant company. It amounted to MKD 6,059,124 (around EUR 100,000).

On 23 April 2010 the applicant company lodged an administrative action with the Administrative Court (Управен суд).

On 29 April 2010 the IRO blocked the applicant company’s bank account pursuant to the payment decisions.

By a decision of 28 March 2011 the Administrative Court remitted the case to the Ministry of Finance, having found that the second-instance decision had been issued by an unauthorised person acting in the name of the Minister.

On 26 May 2011 the Ministry of Finance again dismissed the appeal of the applicant company, reiterating the findings from the audit.

On 22 July 2011 the applicant company lodged another administrative action.

On 1 March 2013 the Administrative Court dismissed the action. The relevant part of the judgment reads:

“... the cumulative conditions to obtain a deduction ... were not met. Specifically, the income of the applicant company was created by companies which failed to meet their legal obligations in relation to the payment of VAT ...

In the deliberations the court took into account the claims by the appellant that it was wrongfully deprived of the right to claim VAT deductions because the errors found in the tax assessment had pertained to other [companies] ... These claims were rejected by the court ... inter alia taking into account that it is in the interests of every taxpayer to know and be aware of those with whom they engage in business.”

On 17 September 2013 the applicant company appealed to the Higher Administrative Court (Виш управен суд).

In a final judgment of 13 March 2014 the Higher Administrative Court upheld the findings and conclusions of the tax authorities and stated the following:

“... [T]he appellant failed to fulfil the cumulative conditions prescribed in sections 33 and 34 of the VAT Act to obtain a VAT deduction specifically because the monetary inflow of the appellant as a taxpayer was done by other taxpayers who failed to meet their obligations to declare or pay tax.

The court examined the complaint that all of the outstanding issues in the audit reflected errors committed by third parties and that the appellant should not be forced to bear the obligations of third parties ... but dismissed them ... having in mind that every taxpayer has an interest to enter into relations with other subjects.”

On 2 February 2017 the applicant company was removed from the register of companies and ceased to exist. According to a document issued by the register of companies, it was removed in accordance with section 552-B of the Companies Act (Закон за трговски друштва), specifically for not having submitted an annual financial statement (завршна сметка) to the authorities for the year 2014.

The applicant company’s bank account remained blocked by the IRO until 10 April 2017, when it was closed. Due to lack of funds on the account, the IRO failed to collect any money from the applicant company.

On 9 December 2011 the prosecution for organised crime (Основно јавно обвинителство за гонење на организиран криминал и корупција) filed an indictment against several individuals for criminal enterprise, abuse of office and tax evasion. The indictment encompassed the individuals responsible for several, but not all, of the applicant company’s suppliers. It was alleged that the individuals used the supplier companies to issue fake invoices which were not the result of real commercial activity. The supplier companies as legal entities were not directly indicted. The domestic courts found the accused guilty of the offences by a judgment of 29 March 2013, which became final on 9 January 2014.


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

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

The applicant was born in 1981 and lives in Niš.

On 2 February 1999 the applicant gave birth to a daughter, A.C. One year later, she married V.C. (“the respondent”), her daughter’s biological father.

On 1 February 2005 V.C. lodged a claim with the Niš Municipal Court, seeking dissolution of the marriage, custody of A.C. and child maintenance.

On 16 May 2005 the Niš Social Care Centre granted the applicant interim care and custody of A.C. until the marriage was dissolved.

On 23 June 2005, while the applicant and A.C. were visiting a mental care institute where the child was undergoing treatment for her disturbed mental health as a result of her parents’ divorce, V.C. forcibly removed A.C. from the applicant’s custody and, in so doing, assaulted the latter physically, knocking her unconscious.

On 25 July 2005 the Niš Municipal Court issued an interim custody order requiring that V.C. surrender custody of A.C. to the applicant until the end of the marriage dissolution proceedings.

On 5 August 2005 a bailiff accompanied the applicant to the respondent’s home, requesting that the child be surrendered. The respondent’s father and A.C. were also present. The respondent stated that he would not prevent the mother from seeing her child but refused to hand her over, even if it meant paying a fine, claiming that the applicant could not provide suitable living conditions for A.C. and that A.C. preferred living with him.

Faced with the respondent’s failure to comply with the enforcement order, on 12 August 2005 the Niš Municipal Court ordered him to pay a fine in the amount of 10,000 Serbian dinars (RSD; approximately 120 euros (EUR)), within three days and to return the child to her mother by the same deadline.

On 18 August 2005 the bailiff again went to the respondent’s home, but there was no one there. On the same day the court contacted the Niš Social Care Centre asking for urgent action, since the applicant alleged that domestic violence was taking place there.

On 22 August 2005, the social care centre informed the court that it had advised the applicant and the respondent to visit a mental care institute in order to be provided with appropriate guidance in communicating with each other and in order for the child to resume the interrupted course of treatment. The court was informed that the Doljevac Social Care Centre had taken over responsibility for the case, since that was where the respondent’s residence was located.

On 12 September 2005 the Municipal Court ordered the respondent to pay a further fine in the amount of RSD 50,000 (approximately EUR 590) and to return A.C. to her mother.

On 15 September 2005 the respondent and his father contacted the court, declaring that the child did not want to go to her mother and refusing to pay the fine.

On 20 September 2005 a new attempt was made to enforce the interim order, this time in the presence of a psychologist from the Doljevac Social Care Centre, civilian police officers, the enforcement judge, a bailiff and the applicant. The child started to cry and refused to go with the applicant. The respondent stated that he had spoken with the child, encouraging her to go and live with her mother if she wanted, but the child had refused. The applicant was of the opinion that the child had been given instructions and put under pressure and was in fact strongly attached to her. She wanted to take the child immediately, regardless of her behaviour. The psychologist was against forcible transfer of the custody, claiming that it could have a negative influence on the child’s mental health and lead to autism. The child had already showed some of those symptoms, but they stopped after she had moved into her father’s home, where she had been living for five years. The psychologist proposed that mother and child start to meet under the supervision of the Centre on its premises. She also noted in the minutes that the parents should cease their manipulation of the child.

On 3 October 2005 the first meeting between mother and child was held on the premises of the Centre, but the applicant later told the court that it had not been successful because the child was allegedly subjected to pressure by her father.

At the next meeting, held on 14 October 2005, the child was constantly holding on to her father, crying and avoiding contact with her mother. The psychologist was not present during the meeting, being on sick leave at the time. After leaving the premises of the Niš Social Care Centre, the applicant and respondent and other persons present started to fight. The respondent’s father allegedly physically attacked the applicant. The court informed the Doljevac Social Care Centre about the incident, seeking advice as to how to proceed further.

On 2 March 2006 the applicant asked the court to enforce the interim custody order in the presence of the police.

The enforcement of the interim order was to be attempted on 20 March 2006 on the premises of the Niš Social Care Centre in the presence of the judge, a psychologist and a teacher from the Centre, the applicant and the respondent’s representative. The respondent and the child did not appear. The child was allegedly ill.

On 29 May 2006 the next enforcement attempt was made. The respondent again failed to appear. According to his representative, he had not been properly summoned. At the hearing, two psychologists were present, one from the Niš Social Care Centre and the other from the Doljevac Social Care Centre. Both gave their opinion concerning the forced return of the child to her mother, the psychologist from Niš contending that it was the only option, since the father was not willing to hand over the child voluntarily, and the psychologist from Doljevac arguing against it, on the basis that it could have a negative influence on the child’s further development.

The enforcement attempt scheduled for 13 June 2006 was also postponed due to the absence of the respondent and his representative.

On 29 June 2006 the respondent appeared without the child, because she was allegedly sick, but he did not submit any evidence in support of this allegation. Throughout the meeting he claimed that he was willing to hand over the child to the mother but that the child was refusing to cooperate.

On 27 July 2006 the court again ordered the respondent to pay a fine in the amount of RSD 20,000 and to return the child to her mother.

On 25 December 2006 the court asked the Niš Mental Care Institute to prepare an opinion concerning the enforcement of the interim custody order because of the difficulties encountered in the proceedings.

The Niš Mental Care Institute issued an experts’ report on 28 June 2007. The report contained the opinions of a psychologist, a sociologist and a neuropsychiatrist, all of whom had conducted interviews with the child and both her parents. The experts found that the child’s intellectual ability was on the low side and that her emotional and social maturity was underdeveloped as a result of the family situation. They also found that both parents were manipulating the child and not doing what was in her best interests. Their ultimate opinion was that the forcible removal of the child from her father and her current social environment without proper psychological preparation could at that stage provoke certain psychological disorders. The experts advised that the child should receive psychological and social counselling to help her overcome her resistance towards her mother, that the father and his family should be helped to change their attitude and stop influencing the child’s opinion towards her mother, and that both parents should receive counselling on how to behave in the best interests of the child.

On 14 January 2008 the Municipal Court ruled in favour of the father. The marriage was thus dissolved, V.C. was granted custody of A.C., and the applicant was ordered to contribute towards her maintenance on a monthly basis. Lastly, the court held that the applicant was entitled to spend time with A.C. on the premises of the Doljevac Social Care Centre every Saturday between 10.00 a.m. and 12.00 a.m. until such time as a different access arrangement might be warranted.

On 12 June 2008 and 28 May 2009 the Niš District Court and the Supreme Court of Serbia upheld the Municipal Court’s judgment at second and third instance, respectively.

All of the above-mentioned courts reasoned that, “notwithstanding her earlier forcible removal from ... [the applicant’s custody] ...”, it was in the best interests of A.C. to remain with her father since a separation could prove psychologically detrimental. In support of this conclusion, the courts referred to a separate opinion drafted by the Doljevac Social Care Centre, in addition to an expert’s report, stating that it would indeed be advisable for A.C. to remain in the environment to which she had become accustomed, where she was surrounded by love and care, and where she had made social connections (see paragraph 27 above).

In addition, the Supreme Court found that there was no evidence that the respondent had committed acts of violence against the child or the applicant.

On 8 September 2008 the Municipal Court suspended the interim custody proceedings.

The applicant never sought enforcement of the judgment of 14 January 2008 as regards the weekly meetings with the child.

On 16 March 2010 the applicant lodged an appeal with the Constitutional Court, alleging a breach of her parental and family rights, essentially complaining about the non-enforcement of the Municipal Court’s interim custody order of 25 July 2005. She also argued that the Supreme Court’s ultimate ruling on the issue of A.C.’s custody had failed to take into account the child’s best interests and had instead retroactively endorsed V.C.’s violent and unlawful conduct and had permanently separated her from her child.

On 15 March 2012 the Constitutional Court dismissed the complaint regarding the interim custody order of 25 July 2005 for being out of time, having been lodged more than 30 days after the applicant had been served with the District Court’s judgment of 12 June 2008. With respect to the applicant’s complaint regarding the Supreme Court, the Constitutional Court rejected it on the merits, accepting the Supreme Court’s reasoning entirely.

On 19 October 2007 the Niš Municipal Court found V.C. guilty of unlawfully removing A.C. from the applicant’s custody and sentenced him to six months’ imprisonment, suspended for a period of two years. The respondent was ordered to return the child to the applicant within fifteen days of the date on which the judgment became final. This judgment was upheld by the Niš District Court on 8 April 2008.

On 18 August 2008, acting upon the applicant’s initiative, the Niš municipal public prosecutor requested the revocation of the respondent’s probation, but withdrew the request on 16 December 2008 because the respondent had in the meantime been granted custody of A.C. On 25 December 2008 the Municipal Court terminated the proceedings seeking revocation of the probation.

Following the applicant’s claim for review of the judgment of 14 January 2008, on 12 October 2012 the Niš Municipal Court granted the applicant custody of A.C. and ordered V.C. to contribute towards her maintenance on a monthly basis. In its reasoning the court explained that A.C. had stated that she now wanted to live with the applicant and that V.C. himself no longer had any objections to this arrangement. This judgment became both final and enforceable on 10 November 2012 and A.C. moved to the applicant’s flat shortly thereafter.

In July 2013 the Niš Public Prosecutor’s Office received a criminal complaint that had been lodged against V.C. for failure to make maintenance payments.

It would appear that the applicant re-established contact with her daughter on 19 August 2012, that is to say after a period of seven years, and soon afterwards A.C. went to live with the applicant. However, it seems from the documents submitted by the Government that the mother-daughter relationship was not well re-established. A.C. kept returning to her father whenever she had a misunderstanding with her mother. She even gave a statement to the police to the effect that her mother was maltreating her.

On 27 August 2015 A.C. moved to her father’s home and it appears that she is still living with him by choice. It would also appear that the respondent filed a claim for review of the judgment of 12 October 2012 on custody of A.C. and that those proceedings are still pending.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.