Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1950 and lives in Ljubljana.

On 8 October 1993 the applicant, following her temporary suspension from work, instituted proceedings before the Ljubljana Labour and Social Court against her employer, company D.

In December 1993, following her dismissal from work, the applicant instituted further proceedings against D. before the Ljubljana Labour and Social Court. The actions were joined.

On 8 December 1995 the Ljubljana Labour and Social Court upheld the applicant’s action concerning the suspension and dismissal and rejected the part of the applicant’s action against the decision of D. ordering the applicant to pay compensation. D. appealed.

On 29 May 1997 the Higher Labour and Social Court upheld the decision on rejection of the applicant’s action against the order to pay compensation and annulled the decision upholding the applicant’s action and remitted the case back to the first instance court.

On 11 September 1998 the Ljubljana Labour and Social Court upheld the applicant’s action against the dismissal and ordered D. to pay the applicant the outstanding salaries for the period between the dismissal and the issuing of the decision and dismissed the action against the suspension. D. appealed.

On 6 May 1999 the Higher Labour and Social Court dismissed the appeal of the defendant.

On 12 August 1999 the applicant instituted enforcement proceedings against D. before the Ljubljana Local Court on the basis of the final judgment issued in the labour proceedings, concerning the payment of SIT 4,931,874.

On 18 October 1999 the Ljubljana Local Court issued an enforcement order against D. D. lodged an objection.

On 5 April 2000 the Ljubljana Higher Court dismissed the objection of D. and upheld the enforcement order. The enforcement order became final.

On 18 July 2000 Ljubljana Local Court sent the enforcement order for execution to the Agency of the Republic of Slovenia for Payments.

On 25 September 2000 the Ljubljana District Court decided to open bankruptcy proceedings against D.

On 18 November 2000 the applicant lodged her outstanding claims against D., including those subject to enforcement proceedings, in the bankruptcy proceedings.

On 19 December 2000 the Ljubljana District Court in the bankruptcy proceedings acknowledged the applicant’s claims, apart from a claim concerning redundancy payment.

On 9 February 2001 the applicant instituted proceedings concerning the redundancy payment before the Ljubljana Labour and Social Court.

On 6 March 2001 the Ljubljana Local Court suspended the enforcement proceedings due to the pending bankruptcy proceedings.

On 9 April 2001 the Ljubljana Labour and Social Court issued a declaratory default judgment acknowledging the applicant’s claim concerning redundancy payment.

On 16 September 2005 the Ljubljana District Court terminated the bankruptcy proceedings and ordered D. to be struck off the court register of companies. The applicant received no payment from the bankrupt’s estate.

On 30 September 2005 the notice of terminated bankruptcy proceedings and the strike-off of D. from the court register of companies was published in the Official Gazette.

According to the applicant she was not aware of the termination of the bankruptcy proceedings and the strike-off of D. from the court register until 3 May 2006 when she inspected the case file. Further to her discovery she requested the Ljubljana District Court for a copy of the decision of 16 September 2005 which she received on 12 May 2006.

On 11 April 2011 the Ljubljana Local Court stayed the enforcement proceedings due to terminated bankruptcy proceedings and strike-off of D. from the court register.

On 17 September 2010 the respondent Government were given notice of the application. The Government was asked to provide information as to whether section 25 of the 2006 Act applied in respect of the present case, which would enable the applicant to avail herself of domestic settlement proceedings before the State Attorney’s Office.

Subsequently, on 3 February 2011, the Government submitted that section 25 of the 2006 Act was not applicable in the present case since they considered that the application had been lodged out of the six-month time-limit. Therefore, the Government refused to offer the applicant a settlement proposal under section 25 of the 2006 Act.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

The applicant was born in 1991 and lives in Mersin.

On 30 December 2011 the applicant was taken into custody on suspicion of membership of a terrorist organisation and of making propaganda for that organisation.

On the same day, the applicant was brought before the investigating judge who ordered his detention on remand taking into account the nature of the offences, and the strong suspicion that he had committed the alleged offences, and the risk of absconding.

On 28 March 2012 the applicant’s lawyer lodged an objection against the decision dated 30 December 2011 ordering the applicant’s detention and requested his release. On 29 March 2012 the Mersin Magistrates’ Court dismissed the objection on the basis of the case file, without holding a hearing. On 16 April 2012 the applicant’s lawyer filed a further objection against that decision. On 17 April 2012 the Mersin Criminal Court with General Jurisdiction dismissed the objection on the basis of the case file, without holding a hearing.

On 5 September 2012 the applicant was released from detention on remand.

On 10 September 2012 the Adana Public Prosecutor filed a bill of indictment against the applicant, accusing him of being a member of a terrorist organisation and of making propaganda in its favour.

According to the latest information in the case file, the proceedings against the applicant are still pending before an assize court.


Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Georgia);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Georgia);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Conditional) (Georgia)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Mark Villiger;Paul Lemmens

The applicant was born in 1958 and lives in Brussels.

He arrived in Belgium via Italy on 25 November 1998, accompanied by his wife and the latter’s six-year-old child. The couple had a child together in August 1999 and another in July 2006.

On 29 December 1998 the applicant was arrested and taken into custody in connection with an offence of theft. On 14 April 1999 he was sentenced to seven months’ imprisonment, which was suspended except for the period of pre-trial detention.

In 1999 and 2000 the applicant and his wife were arrested on several occasions in connection with theft offences.

On 28 April 2000 the applicant’s wife was sentenced to four months’ imprisonment for theft.

On 18 December 2001 the applicant was convicted of a number of offences including robbery with violence and threats, and was sentenced to fourteen months’ imprisonment, which was suspended except for the period of pre-trial detention.

On 9 November 2005 the applicant was sentenced by the Ghent Court of Appeal to three years’ imprisonment for involvement in a criminal organisation with a view to securing pecuniary advantage using intimidation, deception and corruption.

Having already spent time in pre-trial detention, he was subsequently detained in Forest Prison and then in Merksplas Prison, where he continued to serve his sentence until August 2007.

On 26 November 1998, the day after their arrival, the applicant and his wife lodged an asylum application.

When interviewed in connection with her asylum claim, the applicant’s wife stated that she had travelled through Germany.

A request to take back the applicant and his family was sent to the German authorities under the Dublin Convention of 15 June 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities (“the Dublin Convention”).

After the German authorities refused the request, it transpired that the applicant and his family were in possession of a Schengen visa issued by the Italian authorities. A request to take charge of them was therefore sent to the Italian authorities and was accepted on 4 June 1999.

On 22 September 1999 the applicant lodged a further asylum application, using a false identity. It was immediately rejected after his fingerprints were checked.

On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the proceedings concerning the asylum application of 26 November 1998 had been concluded on 11 June 1999 with the refusal of the application.

On 20 March 2000 the applicant lodged a first request for regularisation for a period exceeding three months, on the basis of section 9(3) (current section 9bis) of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). In support of his request, the applicant stated that he and his wife had a daughter born in 1999 and that his wife already had a daughter born in Georgia from a previous relationship.

On 30 March 2004 the Aliens Office declared the request devoid of purpose as the applicant had left the country and been intercepted in Germany. It found that the request was in any case unfounded in view of the fact that the applicant’s medical treatment for tuberculosis had ended (see paragraphs 59 and 60 below). The Aliens Office also referred to the applicant’s lack of integration in Belgium and the numerous breaches of public order he had committed.

On 28 April 2004 the applicant lodged a second request for regularisation of his residence status on the basis of section 9(3) of the Aliens Act. He cited as exceptional circumstances in support of his request the duration of his residence in Belgium and his integration into Belgian society, the risks that a return to Georgia would entail for his children’s schooling, the fact that he had been the victim of persecution and his state of health.

The Aliens Office rejected the regularisation request on 5 April 2007 on the ground that the evidence adduced did not amount to exceptional circumstances for the purposes of section 9(3) of the Act such as to warrant the lodging of the request in Belgium rather than with the competent diplomatic mission or consulate, as was the rule. The Aliens Office noted that the applicant had been allowed to remain in the country for the sole purpose of the asylum proceedings, which had been concluded by a final decision. It also cited as reasons the lack of any need for medical treatment, the applicant’s precarious and unlawful residence status, the absence of a risk of persecution in Georgia and the possibility for the children to continue their schooling in that country.

In a judgment of 29 February 2008 the Aliens Appeals Board rejected the application to set aside the Aliens Office’s decision. The Board noted that since the decision in question had not been accompanied as such by an expulsion order, it could not give rise to a risk of violation of Article 3 of the Convention.

On 10 September 2007, relying on Articles 3 and 8 of the Convention and alleging, in particular, that he would be unable to obtain treatment for his leukaemia (see paragraphs 62 and 63 below) if he were deported to Georgia, the applicant lodged a first request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act.

On 26 September 2007 the Aliens Office refused the request on the ground that, under section 55/4 of the Act, the applicant was excluded from its scope of application on account of the serious crimes which had given rise in the meantime to a ministerial deportation order issued on 16 August 2007 (see paragraph 43 below).

On 17 December 2007 the applicant lodged a request under the ordinary procedure for a stay of execution of that decision together with an application to set aside. He alleged in particular that the Aliens Office had referred exclusively to the ministerial deportation order in finding that section 9ter of the Aliens Act was not applicable in his case, without investigating his state of health or the risk he ran of being subjected to treatment contrary to Article 3 of the Convention, and without weighing up the interests at stake as required by Article 8 of the Convention.

In a judgment of 20 August 2008 the Aliens Appeals Board dismissed the applicant’s claims in the following terms:

“It is clear from the wording of [section 9ter] that there is nothing to prevent the administrative authority, when dealing with a request for leave to remain on the basis of the above-mentioned section 9ter, from ruling immediately on the exclusion of the person concerned from the scope of application of the said section 9ter without first taking a decision on the medical evidence submitted to it, if it considers at the outset that there are substantial grounds for believing that the person concerned has committed any of the acts referred to in section 55/4, cited above. The examination of that evidence would be superfluous in such a situation since the person responsible for taking the decision has in any event already decided that section 9ter should not apply.

As regards the alleged violation of Article 3 of the Convention, it should be observed that the decision complained of in the present application is not accompanied by any expulsion order, with the result that the alleged risk of discontinuation of treatment in the event of the applicant’s deportation to Georgia is hypothetical.”

The Aliens Appeals Board also dismissed the complaint under Article 8 of the Convention in view of the fact that the impugned decision was not accompanied by any expulsion order.

On 10 September 2007, relying on the same grounds as those invoked under section 9ter of the Aliens Act (see paragraph 27 above) and on his family situation, the applicant lodged a request for regularisation on grounds of exceptional circumstances under section 9bis of the Aliens Act.

On 7 July 2010 the Aliens Office refused the request for regularisation, taking the view that the protection of the State’s best interests took precedence over the applicant’s social and family interests and that by committing serious punishable acts the applicant himself had placed his family’s unity in jeopardy. That decision was served on the applicant on 11 July 2010.

On 26 July 2010 the applicant lodged a request with the Aliens Appeals Board under the ordinary procedure for a stay of execution of the refusal decision of 7 July 2010, together with an application to have the decision set aside (Aliens Appeals Board case no. 57.444). In so far as necessary, the application also related to the order to leave the country issued on the same date (see paragraphs 48 to 51 below). The applicant alleged a violation of Articles 2 and 3 of the Convention and argued that his serious health problems amounted to exceptional humanitarian circumstances as defined by the Court in D. v. the United Kingdom (2 May 1997, Reports of Judgments and Decisions 1997III), that he would not have access to treatment in Georgia and that the withdrawal of treatment would lead to his premature death. He further alleged an infringement of Article 8 of the Convention and of the International Convention on the Rights of the Child, on the ground that if he were deported to Georgia he would be separated from his family permanently.

A hearing was held on 16 November 2010. On 31 May 2011 the Aliens Appeals Board ordered a fresh hearing to enable the parties to update the factual and legal evidence in the case. A hearing was scheduled for 17 November 2011 but was cancelled on 10 November 2011.

According to the information in the case file these proceedings are still pending before the Aliens Appeals Board.

In the meantime, on 2 April 2008, the applicant had lodged a second request for regularisation on medical grounds on the basis of section 9ter of the Aliens Act. In addition to his various medical problems he referred to the fact that he had been continuously resident in Belgium for eleven years and had lasting social ties in that country, and to his family situation. He also argued that if he was sent back he would be left to fend for himself while ill in a country in which he no longer had family ties and where the medical facilities were unsuitable and expensive.

The request was refused by the Aliens Office on 4 June 2008 for the same reason it had cited previously (see paragraph 26 above).

On 16 July 2008 the applicant lodged an application with the Aliens Appeal Board to have that decision set aside (Aliens Appeals Board case no. 29.316).

According to the information in the file those proceedings are currently pending.

On 10 June 1999, on the grounds that the Belgian authorities did not have responsibility under the Dublin Convention for examining the asylum application, the Aliens Office issued an order for the applicant and his wife to leave the country with a view to their transfer to Italy. However, their departure was postponed because the applicant’s wife was pregnant.

After the birth, the family was granted leave to remain until 14 October 1999 because the new-born baby was in hospital. Their leave to remain was subsequently extended until 15 March 2000 on the ground that the child needed regular supervision by a paediatric gastroenterologist.

The time-limit for enforcement of the order to leave the country was extended several times during the first half of 2000 because of the need to treat the applicant’s tuberculosis (see paragraphs 59 and 60 below) and the six-month course of anti-tubercular treatment required by the whole family.

On 23 October 2000 the Aliens Office informed the applicant’s lawyer that the time-limit had been extended until the applicant and his child had made a full recovery.

On 16 August 2007, in a deportation order issued under section 20 of the Aliens Act, the Minister of the Interior directed the applicant to leave the country and barred him from re-entering Belgium for ten years. The order referred to the applicant’s extensive criminal record, allied to the fact that “the pecuniary nature of the offences demonstrate[d] the serious and ongoing risk of further breaches of public order”.

The order became enforceable on the date of the applicant’s release but was not in fact enforced because the applicant was undergoing medical treatment at the time (see paragraph 63 below).

The applicant, who was in hospital, did not contact his lawyer in order to lodge an application to have the ministerial order set aside. However, on 15 November 2007 the lawyer lodged an application on his own initiative.

In a judgment of 27 February 2008 the Aliens Appeals Board rejected the application as being out of time.

In the meantime, as the applicant was about to finish serving the prison sentence imposed in 2005, he had been transferred on 14 August 2007 to Bruges Prison with a view to enforcement of the ministerial deportation order. He remained there until 27 March 2010, when he was transferred to Merksplas Prison.

In parallel with its decision of 7 July 2010 refusing the applicant’s request for regularisation on grounds of exceptional circumstances (see paragraph 31 above), the Aliens Office on 7 July 2010 issued an order for him to leave the country, together with an order for his detention. These were served on the applicant on 11 July 2010.

Also on 7 July 2010 it was decided that the applicant should be transferred on 11 July to the Merksplas closed facility for illegal aliens with a view to his expulsion to Georgia.

On 16 July 2010 the Georgian embassy in Brussels issued a travel document valid until 16 August 2010.

As stated above (paragraph 32), the applicant lodged a request with the Aliens Appeals Board on 26 July 2010 under the ordinary procedure for a stay of execution of the refusal decision of 7 July 2010, together with an application to have the decision set aside. In so far as necessary, the application also related to the order to leave the country issued on the same date (Aliens Appeals Board case no. 57.444). According to the information in the file those proceedings are still pending (see paragraph 34 above). On the same day the applicant also lodged a request under the ordinary procedure for a stay of execution and an application to set aside, directed specifically against the aforementioned order to leave the country dated 7 July 2010 (Aliens Appeals Board case no. 57.447). Those proceedings are likewise still pending.

On 30 July 2010, two days after the indication by the Court of an interim measure (see paragraph 57 below), an order was made for the applicant’s release and he was given until 30 August 2010 to leave the country voluntarily.

In a letter dated 30 August 2010 the applicant’s lawyer applied for an extension of the time-limit for enforcement of the order to leave the country. The time-limit was extended initially until 13 November 2010 and was subsequently extended several times until 28 February 2011.

The applicant continued to make regular requests for extension but received no reply.

On 18 February 2012 the Aliens Office issued an order to leave the country “with immediate effect” on the basis of the ministerial deportation order of 16 August 2007.

On 23 July 2010 the applicant applied to the Court for an interim measure under Rule 39 of the Rules of Court. Relying on Articles 2, 3 and 8 of the Convention, he alleged that if he were expelled to Georgia he would no longer have access to the health care he required and that, in view of his very short life expectancy, he would die within an even shorter period of time, far removed from his family.

On 28 July 2010 the Court indicated to the Belgian Government that it was desirable, in the interests of the parties and the proper conduct of the proceedings before the Court, to suspend enforcement of the order for the applicant to leave the country issued on 7 July 2010 “pending the outcome of the proceedings before the Aliens Appeals Board”.

In August 1999 the applicant’s wife gave birth to a child.

In 2000 the applicant was diagnosed with “active pulmonary tuberculosis responding to antibiotic treatment”.

The applicant continued to be treated for his tuberculosis and received emergency medical assistance and social welfare assistance for that purpose.

In July 2006 the applicant’s wife gave birth to their second child.

In 2006, while the applicant was in prison (see paragraphs 12 and 13 above), he was diagnosed with hepatitis C and chronic lymphocytic leukaemia (CLL) in Binet stage B, with a very high level of CD38 expression (a marker associated with a poor prognosis and a risk of progression of the disease). No treatment was commenced.

As his health had deteriorated, the applicant was admitted to the Bruges prison hospital complex from 14 August to 23 October 2007 in order to receive a course of treatment based on Leukeran (Chlorambucil).

During his time in Bruges Prison from 14 August 2007 to 27 March 2010 (see paragraph 47 above) the applicant received visits on an almost daily basis from his wife and/or his children. Merksplas Prison, to which he was subsequently transferred and where he remained until 11 July 2010 (see paragraphs 47 and 49 above), informed the applicant that they did not have a record of the number of visits he had received.

A report prepared on 11 February 2008 by Antwerp University Hospital, where the applicant was being treated, stated that his condition was life-threatening and that, on the basis of the averages observed in 2007, his life expectancy was between three and five years. The report stated that, following treatment, his white blood cell count had fallen from 110,300/mm3 with 97 % lymphocytes in August 2007 to 28,900/mm3 with 83 % lymphocytes in January 2008.

During 2008 the applicant’s tuberculosis was found to have become active again.

From 8 to 14 May 2010 the applicant was confined to hospital in Turnhout with respiratory problems. The medical report concerning his stay prescribed antibiotics and bronchodilators. It also noted an increase in his white blood cell count to 72,440 mm3, with 85% lymphocytes, and the progression of the applicant’s other conditions. It recommended that the applicant be treated as an outpatient by a lung specialist and a haematologist. This treatment did not materialise on his return to Merksplas Prison, where he was being held.

On 22 July 2010 a doctor from Antwerp University Hospital visited the applicant in the Merksplas closed facility, to which he had been transferred in the meantime, in order to carry out a full medical check-up. The doctor’s report noted that the treatment administered for the applicant’s lung disease was insufficient. It went on to note that the applicant had not received adequate medical care for his leukaemia, which was progressing rapidly towards Binet stage C, and that his treatment needed to be switched to chemotherapy combining Fludarabine and Cyclophosphamide. Lastly, the doctor observed that no medical examination had been carried out in connection with the applicant’s hepatitis C. He recommended that the applicant be admitted to hospital for urgent tests and treatment. The report was forwarded to the Aliens Office.

In a fax dated 28 July 2010 the doctor attached to the Merksplas facility for illegal aliens expressed the view that the applicant required specialised treatment which could not be provided within the closed facility. The doctor therefore recommended that he be released on medical grounds.

On 30 July 2010 the applicant was released (see paragraph 52 above).

On 12 September 2012 a doctor from the haematology department of St Pierre University Hospital in Brussels (“the University Hospital”), where the applicant was being treated following his release, drew up a certificate which stated as follows:

D. Possible complications if treatment is discontinued. Failure to treat the liver and lung disease could result in organ damage and ensuing disorders (respiratory insufficiency, cirrhosis and/or liver cancer). Without treatment, the CLL could lead to the patient’s death as a result of the disease itself or the effects of serious infections.

A return to Georgia would expose the patient to inhuman and degrading treatment.

E. Progression and prognosis

Chronic lymphocytic leukaemia (CLL): good if treated, but the risk of relapse is real so that close monitoring is required even during remission. Chronic obstructive pulmonary disease (COPD): stabilisation if treated. Hepatitis C: good prognosis if patient responds to treatment.

F. Specific needs

Regular biological and radiological monitoring in a specialised facility. Chemotherapy centre.”

The applicant was requested to report to the Aliens Office’s medical service on 24 September 2012 for a medical check-up and to enable the Belgian authorities to “reply to the Court’s questions”.

The report prepared by the medical adviser on that occasion listed the consultations held and the treatment, in particular chemotherapy, undertaken since the applicant’s release in July 2010. It stated that the leukaemia had stabilised after several cycles of chemotherapy and was being monitored closely, that the applicant was receiving medical care for his lung disease and that his treatment consisted of Zovirax to prevent herpes, Pantomed to prevent gastric problems and Flixotide, an antiinflammatory corticosteroid.

Referring to the Court’s judgment in the case of N. v. the United Kingdom ([GC], no. 26565/05, ECHR 2008), the report concluded as follows:

“On the basis of this medical file it cannot ... be said that the threshold of severity required by Article 3 of the Convention, as interpreted by the Court, has been reached ....

It appears from the file that the diseases to which the medical certificates refer ... are not directly life-threatening. The conditions from which the applicant suffers are serious and potentially fatal but are currently under control.

None of the patient’s vital organs is in a condition that presents a direct threat to his life. His hepatitis C is not currently causing any cirrhosis. The pulmonary disease is controlled by the treatment, consisting solely of an inhaled corticosteroid. The patient’s haematological disorder is currently stable. The lymph nodes are no longer swollen and the patient’s haemolytic anaemia is resolved. Chemotherapy has been discontinued for the time being.

... Neither monitoring of the patient’s vital parameters nor ongoing medical supervision is necessary in order to ensure the patient’s survival.

The disease cannot be considered at present to be in the terminal stages. ... The patient is close to Binet stage A at present. His chronic obstructive pulmonary disease is also currently under control.”

On 5 November 2009 the applicant’s wife lodged a request for regularisation on the basis of section 9bis of the Aliens Act (exceptional circumstances), relying on her family situation and the length of her residence in Belgium.

On 29 July 2010 she and her three children were granted indefinite leave to remain.


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

The applicant was born in 1963 and lives in Khorly.

At the material time the applicant was the head of Khorly Village Council.

On 8 May 2007 he signed a permit allowing a businessman, Ya., to set up a tent with game machines in the village. This permit had no official stamp on it. According to the applicant, it was not stamped because the council’s accountant was away on a work matter and had the stamp with her. However, according to the court findings in the criminal case against the applicant (see below), the applicant told Ya. that the permit would be stamped upon receipt of 20,000 Ukrainian hryvnias (UAH – approximately 3,800 euros (EUR)).

On 14 May 2007 Ya. complained to the police. On the same day he was given audio and video-recording equipment and marked banknotes. When he entered the applicant’s office the applicant showed him a piece of paper with something written on it, pointed to the bus stop outside his window and said “There is a man out there”. Ya. went to the bus stop and gave money to V., who was standing there. Later, police officers seized the marked banknotes from V. in the presence of I. and L.

On the same day criminal proceedings were instituted against the applicant for requesting a bribe.

At 7 p.m. on 14 May 2007 the applicant was arrested.

On 16 May 2007 the applicant was charged with taking a bribe.

On 17 May 2007 the Komsomolskiy District Court (“the District Court”) authorised the applicant’s custody until 24 May 2007. The court held that there was no information about the applicant’s previous convictions, if any, or his family situation, state of health and so on; therefore the court “could not authorise a preventive measure, such as pre-trial detention”. That decision was not open to appeal.

On 22 May 2007 the District Court remanded the applicant in pre-trial detention, since he had been accused of a serious crime and might abscond, hinder the investigation or continue his criminal activity.

The applicant appealed. His lawyer indicated that, when requesting that the applicant be remanded in custody, the prosecutor’s office had failed to comply with the court decision of 17 May 2007 (see paragraph 12 above), and had submitted only documents referring to the absence of previous convictions and the applicant’s satisfactory state of health. The lawyer further argued that the applicant had not committed any crime, there were no indications that he would abscond or hinder the investigation, his state of health was not satisfactory, and that council members and village inhabitants had signed a petition for his release.

On 1 June 2007 the Kherson Regional Court of Appeal upheld the decision of 22 May 2007 (see paragraph 13 above). The court noted that the case file contained material confirming the applicant’s wish “to go to Russia to his brother”. It also noted that he might hinder the investigation by using his official position.

On 27 July 2007 the District Court released the applicant on bail.

On 16 January 2008 the District Court again remanded the applicant in pre-trial detention at the prosecutor’s request. The relevant decision reads as follows:

“On 16 January 2008 the Komsomolskiy District Court of Kerson ... established:

The criminal case concerning the accusation of [the applicant] under Article 368 paragraph 2 of the Criminal Code of Ukraine is pending before the Komsomolskiy District Court of Kherson.

The prosecutor requested that the preventive measure against [the applicant] be changed in view of the fact that [the applicant], using publications in ... newspaper, is putting pressure on witnesses in the case (K. and A.) who have not yet been questioned by the trial court. [This] could affect the truthfulness of their testimony and their appearance before the court. In the hearing, the prosecutor further provided additional evidence to confirm the fact of [the applicant’s] putting pressure on I., a witness, and the victim, Ya.

Having heard the prosecutor’s explanations, as well as [the applicant] and his lawyers, the court finds that the application has to be allowed on the following grounds.

[The applicant] is accused of having committed a crime under Article 386 paragraph 2 of the Criminal Code of Ukraine. The sanction established for the crime is imprisonment for the period from five to nine years. On 27 July 2007 bail ... was chosen as a preventive measure in respect of [the applicant].

Pursuant to Article 148 of the Code of Criminal Procedure, preventive measures shall be applied to a defendant with the aim of preventing attempts ... to obstruct the truth from being established in a criminal case. ... Preventive measures shall be applied if there are sufficient grounds to consider that the defendant will try to abscond from the trial or obstruct the truth from being established in a case.

[The applicant] has no criminal record, has committed a serious crime linked to his professional activity as the head of Khorol Village Council, is currently removed from his position and accordingly is not able to continue his criminal activity, [and] is well thought of at his place of work and place of residence. However, the court believes that [the applicant], acting through unidentified individuals, has taken steps aimed at obstructing the truth from being established in the case in the course of the court’s consideration of his case.

Thus, according to statements of 28 December 2007 made by the victim, Ya., and I., a witness, unknown individuals acting on [the applicant’s] behalf, have put psychological pressure on them, trying to prevent their appearing at the hearing of 29 December 2007.

The above-mentioned fact is evidence of a breach by [the applicant] of his undertakings.

Bearing in mind that the court proceedings in the criminal case are still ongoing, that K. and A., witnesses, have not yet been questioned, and that there may be a need for additional questioning of I., a witness, and Ya., the victim, the court believes that the prosecutor’s application is well-founded and should be granted in order to prevent further possible pressure [being put] on the witnesses and the victim, and thus to eliminate obstacles to establishing the truth in the case ...

Given what has been stated above, ... the court rules to change the preventive measure in respect of [the applicant] ... ”

On the same date the President of the District Court rejected an application by the applicant’s lawyer for the judge who was dealing with the case to be withdrawn on the basis of bias. He held that the expression “has committed a serious crime” used by the court concerned “the classification of the offence of which the applicant was accused”, and did not mean that the court was biased.

On 23 January 2008 the Kherson Regional Court of Appeal refused the applicant leave to appeal against the decision of 16 January 2008 remanding him in pre-trial detention (see paragraph 17 above), since that decision was not open to appeal.

On 15 and 22 February 2008 the applicant unsuccessfully asked the court to change the preventive measure to a non-custodial one.

On 29 February 2008 the District Court released the applicant on bail. It found that Ya. and I. had complained on 28 December 2007 to the police that that they had been threatened by individuals unknown to them. However, by 29 February 2008 no further investigation of this allegation had been carried out by the police, so it was decided that the applicant should be released.

On 16 April 2008 the District Court sentenced the applicant to five years’ imprisonment for taking a bribe. The applicant appealed, arguing, inter alia, that the principle of the presumption of innocence had been breached in his case.

On 24 June 2008 the Kherson Regional Court of Appeal upheld the District Court’s judgment.

On 26 February 2009 the Supreme Court of Ukraine rejected an appeal by the applicant on points of law.

The applicant served his sentence at Dariyivska Correctional Colony no. 10 (“the prison”) from 16 July 2008 to 14 March 2011. According to the applicant, there were up to ninety inmates in the living quarters. There was no ventilation. The washing facilities were situated in the basement, which was constantly flooded by underground water. There were five basins and three taps for 300 detainees. There was no electricity or light at night. The food was of a very low quality and the water was undrinkable.

According to the Government, the applicant was held in a block which measured 271.7 square metres and was designed to accommodate up to ninety prisoners, thus each prisoner had no less than 3 square metres of personal space. They did not provide any facts or comments with respect to the remainder of the applicant’s complaint.


Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1955 and lives in Săvârșin.

She was adopted on 25 February 1972, at the age of seventeen.

The applicant’s adoptive mother also had another adopted daughter, H.M. The applicant’s mother died in 1986.

In 2003, the two sisters were jointly granted title to ten hectares of forest, based on their entitlement through adoption to inherit land which had been expropriated from their grandmother.

Subsequently, the applicant brought an action for division of the land between the sisters.

While the proceedings were ongoing, H.M. brought an action for annulment of the applicant’s adoption. She claimed that the main aim pursued by her adoptive mother when she had sought to adopt the applicant had been to ensure emotional and financial support for her in old age and help with everyday activities. H.M. averred that the only aim pursued by the applicant in agreeing to the adoption had been to obtain inheritance rights.

The applicant submitted that the main reason why her sister had lodged the action for the annulment of her adoption had been to preclude her from inheriting half of the ten hectares of land and to keep all the property inherited from their adoptive mother for herself. In this respect she claimed that the lawfulness of the adoption order had never been questioned before, although it had been issued thirty-two years previously. She concluded that the misunderstandings which had arisen between her and her sister after the death of their adoptive mother could not justify the annulment of an adoption concluded in accordance with the law.

In his final oral submissions before the first-instance court the applicant’s lawyer raised the objection of lack of locus standi of the plaintiff. He contended that H.M. had not proved a legitimate and current interest in seeking the annulment of her sister’s adoption.

On 7 December 2004 the Suceava County Court dismissed the applicant’s objection and declared the applicant’s adoption void, finding that it had not had a purpose envisioned by the Family Code. It held that the only aim of the applicant’s adoption had been the fulfilment of the patrimonial interests of the adoptive mother and the adopted child, and that it had not been intended to ensure a better life for the applicant.

The applicant lodged an appeal on points of law, maintaining that she had lived with her adoptive mother since she was nine years old, although the adoption order had only been issued in 1972 when she was seventeen. She submitted that the family relationship established between her and her adoptive mother since she was nine had been proved by witness statements which were in the case file, and that it was also attested to in the report drafted by the authorities when they carried out a social investigation in connection with her adoption.

The judgment of the court of first instance was upheld by a decision of the Suceava Court of Appeal rendered on 15 April 2005. A dissenting opinion to that decision stated that the adoption had not been improper, as its main aim had been the welfare of the applicant, who had been born into a family with eight children and a difficult financial situation.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in 1955 and is currently detained in HMP Whatton.

On 25 April 2007 he received an indeterminate sentence for public protection (“IPP sentence”) following his conviction of the sexual assault of a fifteen-year old girl. The offence had been committed while the applicant was on licence in the community following his release from a sentence for indecent assault against girls under the age of sixteen and while he was undertaking the Sex Offender Treatment Programme (“SOTP”) in the community. A minimum term (“tariff”) of four years was fixed.

The applicant was initially detained in HMP Armley. It was recommended in 2007 that he complete the SOTP.

In June 2008 he was transferred to HMP Rye Hill. He completed an Enhanced Thinking Skills (“ETS”) course in 2008 and the core SOTP on 8 March 2009. On an unknown date, he completed an Alcohol Awareness course.

In August 2009 a Structured Assessment of Risk and Need (“SARN”) report identified that further work was required to reduce the applicant’s risk of reoffending. It was recommended that he complete the extended SOTP and, possibly, a Better Lives Booster (“BLB”) programme. The extended SOTP consisted of seventy-four interactive sessions plus some individual work and generally lasted for around six months.

At a Parole Board review on 7 September 2009 the Panel said that much offending work still had to be done in order to reduce the applicant’s risk and that he should therefore remain in closed conditions.

In September 2009 the applicant was transferred to HMP Acklington. He claims that he had been informed that the extended SOTP was available at that prison.

A memo dated 24 August 2010 from the Programmes Department of HMP Acklington confirmed that the applicant had been assessed as suitable to attend the extended SOTP and that he would have to be transferred to another establishment to complete the course as it was not offered at HMP Acklington.

On 27 August 2010 the applicant completed the Thinking Skills Programme (“TSP”) at HMP Acklington.

In January 2011 a pre-tariff-expiry paper Parole Board review took place. By letter dated 24 February 2011 the applicant was informed that the Parole Board had not recommended his release. His request for an oral hearing was refused.

The letter explained:

“... The [Intensive Case Management] decision provides a detailed account of the index offence and your previous offending record ... You are given credit for the offence related work you have undertaken but further work in the form of an Extended SOTP (and possible a BLB programme thereafter) is considered necessary to further address your risk factors ... It is clear that significant risk reducing work is required in closed conditions before you can progress further.”

By letter dated 6 April 2011 the National Offender Management Service informed the applicant that the Secretary of State agreed with the Parole Board recommendation. She considered that a number of risk factors were outstanding, namely sexual offending, feelings of grievance, distorted thinking, alcohol misuse and outbursts of anger. She was of the view that the extended SOTP was necessary to reduce the applicant’s risk level. She also indicated that an assessment for the BLB programme was necessary following completion of the extended SOTP and recommended that the applicant continue addressing his alcohol misuse. The letter expressed the expectation that the relevant interventions, or other equivalent risk reduction work, would be completed prior to the next Parole Board review. It clarified, however, that the Secretary of State could not guarantee to place the applicant on the courses identified as there were limits on the availability of resources.

The review period was set at twenty-one months and was made up the following: transfer to an establishment to undertake the extended SOTP; participation in the extended SOTP; participation in post-course reviews; consolidate and test the skills learned; continued development and practice of appropriate risk strategies; assessment for the BLB programme; continued monitoring of alcohol misuse and relapse prevention work if necessary. The review was scheduled to commence in March 2012 and conclude in November 2012, with an oral hearing in September.

On 26 April 2011 the applicant’s tariff period expired.

The applicant sought advice on possible judicial review proceedings in respect of the delay in providing access to the extended SOTP. A letter was sent to HMP Acklington by his solicitors. On 22 September 2011 he was transferred to HMP Whatton.

On 10 October 2011 the applicant requested information from HMP Whatton as to when he would begin the extended SOTP. He was informed in reply that he would be contacted to arrange an assessment as soon as possible.

Meanwhile, the applicant’s solicitors wrote to HMP Whatton seeking information on when he would be allowed to participate in the extended SOTP. By reply dated 28 October 2011, the deputy extended SOTP treatment manager explained:

“In order that we can be responsive to the needs of Mr Dillon, it is essential that we allow him a period of settling in at HMP Whatton before an assessment for the Extended SOTP can take place.

Assessments and placements are prioritised on a number of factors including tariff expiry, risk level and treatment readiness. However, please be assured that an assessment will take place as soon as practically possible.

We anticipate delivering 4 Extended Programmes in 2012 and Mr Dillon will be considered for one of these programmes, if he is found suitable. The extended programme lasts 5 months. A SARN report will then have to be completed within 26 weeks of treatment being completed. The SARN report will identify any further treatment that is necessary.”

On 12 November 2011 the applicant indicated to HMP Whatton his concern that he might not be adequately prioritised for the extended SOTP, referring to the expectation that the course would be completed by his next Parole Board review. He requested confirmation that he would be prioritised for the extended SOTP.

By reply dated 18 November 2011 he was informed that HMP Whatton made “every attempt to ensure prisoners are treated fairly and have access to offending behaviour programmes”. However, the letter noted that there were limited resources and that there was a large number of IPP prisoners and life sentence prisoners at HMP Whatton whose tariffs had expired.

On 6 January 2012 the applicant’s solicitors wrote to the Governor of HMP Whatton to notify him of the fact that judicial review proceedings were being contemplated. They sought an undertaking that the applicant would be given access to an extended SOTP scheduled to begin in April 2012.

On 19 January and 6 February 2012 the applicant was reassessed for participation in the extended SOTP. In a report dated 6 February 2012 he was found not to be sufficiently motivated to undertake the course. The report noted that the second meeting had had to be terminated on account of the applicant’s use of abusive and disrespectful language and his loud and aggressive tone. It explained that while, given the applicant’s tariff expiry date, he would have been prioritised for the April 2012 extended SOTP course, it was considered that he was not ready for secondary treatment at that time. It was recommended that the applicant complete individual work with his offender supervisor to consider, inter alia, the costs and benefits of engaging in the extended SOTP and to address his outstanding treatment needs. Further assessment would take place in June/July 2012.

The applicant subsequently pursued a request for a place on an extended SOTP scheduled to commence in August 2012.

On 13 June 2012 the Parole Board notified the applicant of its decision on the papers not to direct his release or to recommend his transfer to open conditions. The Parole Board set out the details of the index offence and noted that the applicant had committed the offence while on a three-year extended licence following another conviction for sexual offences (see paragraph 6 above). It considered that he had breached the trust placed in him and expressed concern that this might not bode well for the applicant’s likely compliance with licence conditions. The Parole Board reiterated the applicant’s risk factors and turned to examine the evidence of any change during sentence. It explained:

“You completed the Core SOTP in 2009 and the Thinking Skills Programme in 2010. It was then recommended that you complete the Extended SOTP. Once this has been completed you will be assessed for other programmes such as the Better Lives Booster Programme and the Healthy Sexual Functioning Programme. You are reported to have attended for a programme assessment for the ESOTP at HMP Whatton but prison records state that this was a challenging meeting and that you were not sufficiently motivated to commence the group. You do not agree with this assessment. You will be offered the opportunity to attend for suitability assessment in the future. You have also been put forward for the CALM programme due to the violent offences on your record and difficulties in managing your emotions.”

The Parole Board agreed that the applicant posed a high risk of harm to children. It commended the applicant on his completion of the ETS and core SOTP. However, it concluded:

“... [T]here is a considerable amount of accredited offending behaviour work still recommended for you to complete to reduce your risks to a level that can be safely managed in less secure conditions. In the first instance it is recommended that you complete the Extended SOTP and CALM and that following the SARN you may need to be assessed for the Better Lives Booster Programme and Health Sexual Functioning Programme. Clearly this will take some considerable time and whilst core areas of risk remain unaddressed there is no merit in an oral hearing being held ...”

The applicant was reassessed for the extended SOTP in July 2012. He was found to be suitable to participate.

In late July 2012 the applicant was informed that he was being considered for a place on an extended SOTP commencing in October 2012.

The applicant completed the extended SOTP in March 2013. He was advised that a SARN report would be completed within the next six months to identify any further work that needed to be done. The SARN report was completed in March 2014.


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

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

The applicant was born in 1948 and lives in Vienna.

At the time of the events the applicant worked for the association “Asyl in Not”, which offers legal and social support to asylum seekers and refugees.

In 2005, an amendment to a number of laws concerning the status of foreigners and of asylum seekers and concerning relevant proceedings (Fremdenrechtspaket 2005) was drafted and adopted by Parliament. The amendments entered into force on 1 January 2006.

On 31 December 2006 the then Federal Minister for Interior Affairs, L.P., died unexpectedly of an aneurysm at the age of 55.

On 1 January 2007 the applicant published a statement on the association’s website entitled “One less. What’s coming now?” (“Eine weniger. Was kommt danach?”). It continued: “The good news for the New Year: L.P., Minister for torture and deportation, is dead.” (“Die gute Meldung zum Jahresbeginn: L.P., Bundesministerin für Folter und Deportation, ist tot”) After referring to some specific individual stories of asylum seekers, the text stated further that “Mrs P. was a desk war criminal just like many others there have been in the atrocious history of this country: completely desensitised, indifferent to the consequences of their laws and regulations, the compliant instrument of a bureaucracy contaminated with racism. No decent human is shedding tears over her death.” (“L.P. war eine Schreibtischtäterin, wie es viele gab in der grausamen Geschichte dieses Landes; völlig abgestumpft, gleichgültig gegen die Folgen ihrer Gesetze und Erlässe, ein willfähiges Werkzeug einer rassistisch verseuchten Beamtenschaft. Kein anständiger Mensch weint ihr eine Träne nach.”). The applicant concluded the text by suggesting that their goal for the New Year was to fight for a new minister who would make good the damage done by L.P. so that Austria could return to being a country welcoming asylum seekers and a place where human rights were respected.

G.P., the late Minister’s husband, filed a private prosecution (Privatanklage) for defamation against the applicant and the association.

On 19 September 2007 the Vienna Regional Court (Landesgericht für Strafsachen Wien) convicted the applicant of defamation in respect of the above-quoted passages of the statement and sentenced him to a fine in the amount of EUR 1,200. Half of the fine was suspended for three years. It dismissed G.P.’s request for recognition of the association’s liability for its employee’s actions.

The court found that the average reader would understand the relevant passages of the statement to mean that L.P. had ordered or tolerated the torture pending expulsion or the deportation of detainees and had violated human rights. The word “torture”, in particular, implied the intentional infliction of physical or psychological suffering. An average reader would also place the word “deportation” (Deportation) in the context of the historical events under the national-socialist regime which forcefully deported segregated groups of people to ghettos and camps to subject them to forced labour or extermination. The statement in question suggested that L.P. exercised her political function in a particularly despicable way, that she was indifferent to officials’ criminal abuse of authority in relation to asylum seekers and that her actions were motivated by racist, sadistic, xenophobic and national-socialist attitudes. The publication of the statement had triggered considerable reaction from the media and the public. The applicant had been criticised as tactless and disrespectful. In response thereto, on 9 January 2007, the applicant published in a daily newspaper a reply in which he stated that his comments had been directed solely towards L.P. and he apologised to her family members, who were not responsible for the late Minister’s inhumane policies.

The Regional Court acknowledged that a criminal charge of defamation was at odds with the right to freedom of expression as guaranteed by the Convention. It found that the voicing of opinions by refugee associations criticising politicians and their legislative projects represented an important corrective element and that the limits of acceptable criticism were particularly widely drawn in the context of the present case. However, in the court’s opinion, the published statement overstepped the limits of acceptable criticism. The legislative background to the amendment of the laws governing foreigners and asylum seekers and the fact that criticism was allowed to be shocking, still could not justify positioning L.P. in a national-socialist and racist context and suggesting that she had tolerated the intentional physical ill-treatment of detainees pending expulsion or “deportations”. Such accusations against the then only recently passed away L.P – together with the acclamation of her death and the call on “decent” people not to mourn her passing – clearly went beyond the limits of acceptable criticism in a democratic society. Moreover, the allegations made by the applicant had not been proven to be true, nor had he shown any journalistic diligence in that regard.

The applicant filed an appeal on points of law and fact, and also appealed against the sentence.

On 7 May 2008 the Vienna Court of Appeal (Oberlandesgericht Wien) dismissed his appeal. Referring to the reasoning of the first-instance court, it conceded that the word “deportation” nowadays had acquired the additional meaning of “expulsion or removal” and was not only used in the context of the national-socialist regime, but also in the context of the forced expulsion of foreigners. However, the context of the word in which it had been used (“a desk war criminal just like many others there have been in the atrocious history of this country”) acted as a reminder of the national-socialist history of the country. Therefore, even though the statements at issue were political value judgments (“politische Wertungen”), the applicant had not produced any proof of a factual basis for his allegations. The applicant had further argued that, following the case-law of the European Court of Human Rights and of the domestic courts with regard to Article 10, the impugned statement was covered by freedom of expression. The Court of Appeal, however, found that even such case-law did not provide carte blanche for the applicant to make comparisons with the national-socialist regime without any factual basis.

That decision was served on the applicant’s counsel on 3 June 2008.

On 7 November 2008 the applicant lodged a request for the renewal of the criminal proceedings (“Erneuerung des Strafverfahrens”) pursuant to Article 363a of the Code of Criminal Procedure with the aim of having the proceedings re-opened and the conviction set aside.

On 14 October 2009 the Supreme Court dismissed the request. It stated that the admittedly broad limits of tolerable criticism in the political discourse did not cover excessive value judgments without any factual basis. Statements made in even heated political conflicts needed to respect a minimum of decency and moderation. In the present case the Supreme Court found that the evaluation by the courts had rightly led to the conclusion that the text in question justified the limitation of the applicant’s right to freedom of expression. The value judgment suggesting criminal behaviour on the part of L.P. had no factual basis. The courts had not misjudged the considerable public interest in the discussion concerning migration and asylum policy. However, the applicant’s statements had not contributed to that public discussion, since they were directed at defaming and discrediting the late Minister. The court further noted that the sanction imposed was, in view of the disrespectful statements and their temporal proximity to L.P.’s death, appropriate and even moderate.

The Supreme Court’s decision was served on the applicant’s counsel on 10 November 2009.


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Civil rights and obligations;Public hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1959 and lives in Linz. He has been a lawyer since 1986 and he practises in Linz.

In 2006 criminal investigation proceedings were pending before the Linz Regional Court against O.G., a regional politician from Upper Austria, and a Moldovan citizen, T.S., who was in detention pending trial. Both were suspected of human trafficking. O.G. was also suspected of fraud. During the investigation proceedings, T.S. accused O.G. of having accepted money for facilitating the illegal entry or transit of nineteen nationals from Moldova to Austria or through Austria to Italy.

E.W., an association of which O.G. was president, commissioned the applicant to represent T.S. in the criminal proceedings. The applicant’s fees were covered by this association. Having accepted the mandate the applicant remained in close contact with O.G. and transmitted to him information concerning the criminal investigation proceedings against T.S. He did not represent O.G. in the proceedings.

On 17 August 2006 the applicant visited T.S. in prison in order to prepare for the trial on that day. During this visit an affidavit (Eidesstättige Erklärung), prepared in advance by the applicant, was signed by T.S. in which she submitted that her former allegations against O.G. had been untrue.

On the same day, the Linz Regional Court convicted T.S. of the crimes as charged and sentenced her to fifteen months’ imprisonment. T.S. did not retract the statements she had made to the investigating authorities, nor was the affidavit submitted to the court. Instead, the applicant transferred it to the lawyers of O.G.

On 21 August 2006 the lawyers of O.G. transferred T.S.’s affidavit to the public prosecutor to be taken into consideration in the proceedings against O.G.

On 31 October 2006 and 4 December 2006, in the course of the criminal proceedings against O.G., the judge of the Linz Regional Court reported to the Upper Austrian Bar Association (Rechtsanwaltskammer, hereinafter “the Bar Association”) that he suspected the applicant of double representation. The judge stated that the applicant had kept close contact with O.G. and had transferred to him information concerning the investigation proceedings regarding T.S. The judge further stated that the applicant had asked T.S. to submit the affidavit, whose contents were untrue but in favour of O.G., to the court.

On 11 July 2007, upon a request by the Linz public prosecutor, the Linz Regional Court instituted a preliminary investigation into allegations of attempting to aid the perpetrator (versuchte Begünstigung), false testimony (Falsche Beweisaussage) and falsifying evidence (Fälschung eines Beweismittels) against the applicant, and informed the Bar Association.

On 17 July 2007, 17 August 2007 and 6 September 2007 the Linz public prosecutor requested that the court conduct further preliminary investigations in the case, in particular the questioning of several witnesses and to put the applicant on the stand. The Linz Regional Court took the requested evidence and heard evidence from the applicant.

On 24 September 2007, the Linz public prosecutor requested the inclusion of a further file regarding the falsification of evidence in a case not related to that of O.G. The file was included in the preliminary investigation against the applicant and the requested evidence was gathered.

Because of the reform of the Code of Criminal Procedure, which entered into force on 1 January 2008, the investigating judge transmitted the file to the Linz public prosecutor, who took charge of the case.

On an unspecified date the Linz public prosecutor decided not to file a formal indictment (Anklageschrift, Strafantrag) against the applicant until a final court decision in the case against O.G. had been taken. There is no indication that a formal decision on the postponement was taken on this matter or sent to the applicant.

On 4 February 2009 the Linz public prosecutor ordered the suspension of the criminal proceedings against the applicant since the criminal proceedings against O.G. were still pending. Again, it appears that no formal decision was sent to the applicant in this regard.

On 5 May 2009 the applicant lodged a request with the Linz public prosecutor for the discontinuation of the investigation proceedings.

On 6 July 2009 the criminal proceedings against the applicant were resumed and he was charged with the offence of attempted aiding of the perpetrator and falsifying evidence.

The Linz Regional Court summoned the applicant on 17 July 2009 for trial on 22 September 2009. The applicant lodged a request to have more witnesses questioned on 10 September 2009 and submitted a statement.

On 22 September 2009 the first hearing in the criminal proceedings against the applicant was held before the Linz Regional Court.

The next hearing was held on 24 November 2009. The hearing was adjourned until the final decision in the case of O.G. had been taken.

As the criminal proceedings against O.G. were still pending, the Linz Regional Court continued criminal proceedings against the applicant and a further hearing was held on 27 April 2011, with a new judge presiding.

On 17 June 2011 the Linz Regional Court acquitted the applicant on all counts.

On 8 November 2011 the Linz Court of Appeal dismissed an appeal by the public prosecutor. This judgment was served on the applicant on 30 November 2011.

Following the notice of the investigating judge of 31 October 2006 the Disciplinary Prosecutor (Disziplinaranwalt) on 13 December 2006 applied to introduce disciplinary proceedings against the applicant on charges of double representation and falsification of evidence.

Accordingly, on an unspecified date, the Disciplinary Council of the Bar Association (Disziplinarrat der Oberösterreichischen Rechtsanwaltskammer, hereinafter “the Disciplinary Council”) initiated disciplinary proceedings against the applicant.

On 24 September 2007 the Disciplinary Council held an oral hearing and adjourned the disciplinary proceedings until the criminal proceedings at the Linz Regional Court had become final.

On 25 September 2007 the Disciplinary Prosecutor applied for the withdrawal of the applicant’s right to represent clients before the Linz courts in criminal cases as an interim measure.

The applicant was informed of this application and submitted his written comments on 4 October 2007 and 30 October 2007 in which he opposed the measure.

On 17 December 2007 the Disciplinary Council, without holding a hearing, withdrew the applicant’s right to represent before the Linz District Court, the Linz Regional Court and the Linz Court of Appeal in criminal law cases as an interim measure by virtue of section 19 of the Disciplinary Act (Disziplinarstatut für Rechtsanwälte und Rechtsanwaltsanwärter). It held that because of the accusations against the applicant the imposed interim measure was proportionate.

The applicant appealed on 5 February 2008 against this interim measure and complained that the preconditions for it had not been met, that the Disciplinary Council had failed to hear evidence and that it had not held an oral hearing. Furthermore the measure had not been proportionate to the accusations.

On 28 August 2008 the Appeals Board (Oberste Berufungs- und Disziplinarkommission) dismissed the applicant’s appeal without having held an oral hearing. It found that it was the task of the criminal courts to hear evidence. The applicant had submitted his comments and had therefore been able to sufficiently present his arguments. Moreover, the measure imposed upon the applicant had been proportionate.

On 28 October 2008 the applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof) and again complained about the lack of an oral hearing and that the measure was disproportionate.

On 25 November 2008 the applicant lodged a request for information (Auskunftsbegehren) with the Disciplinary Board and asked if the interim measure of 17 December 2007 would automatically expire after six months. If not, he asked to have the interim measure withdrawn as the criminal proceedings were still pending. He claimed that it was disproportionate to sustain the interim measure over such a long period of time.

On 2 December 2008 the Disciplinary Board replied to the request of 25 November 2008 and informed the applicant, that the interim measure would not expire automatically but would remain in force.

On 1 December 2009 the Constitutional Court dismissed the applicant’s complaint and held that the reasoning of the authorities had been sufficient and therefore the imposed measure was not arbitrary. Furthermore it found that the proceedings had overall been fair. As the preliminary measure imposed on the applicant had not been a “criminal charge” in the sense of Article 6 of the Convention, an oral hearing had not been compulsory.

On 9 December 2010 the Bar Association asked for information about the state of the criminal proceedings. A written reply was sent on 14 January 2011.

On 17 June 2011, after the applicant had been acquitted on all counts by the Linz Regional Court, he lodged another request with the Bar Association to have the interim measure withdrawn referring to the court’s decision.

This request was dismissed by the Bar Association as the public prosecutor had appealed against the decision of the Linz Regional Court.

The applicant appealed on 18 July 2011 against this decision and complained about the length of time the imposed measure had already been in force.

On 14 November 2011 the interim measure imposed on the applicant, prohibiting him from representing clients before the Linz courts in criminal cases was lifted by the Bar Association.

On 30 January 2012 he was summoned to a hearing by the Disciplinary Council on 27 February 2012.

The applicant filed statements in preparation of the hearing on 8 and 22 February 2012 denying that there was a case of double representation and referring to the decision of the Linz Court of Appeal of 8 November 2011.

On 11 March 2013 the Disciplinary Council of the Bar Association found that the applicant had not knowingly organised for T.S. to submit an affidavit that was untrue. However, he had acted in double representation within the meaning of section 10 of the Lawyers Act (Rechtanwaltsordnung) in criminal proceedings, as he had acted in the interests of O.G. and the association E.W. as well as in those of T.S., whom he had represented. The Disciplinary Council stated that the fact that the disciplinary proceedings had lasted almost seven years and the fact that the right of the applicant to represent before certain courts in criminal cases had been withdrawn for about four years had to be taken into account. Therefore it found it reasonable to impose a fine of 1,000 euros (EUR) in addition to another disciplinary fine he already had been ordered to pay for another case of violation of the Lawyers Act.

The applicant lodged an appeal on points of law and an appeal against the fine.

The Supreme Court, acting as the highest court in disciplinary proceedings against lawyers, held a hearing on 20 May 2014 and dismissed the applicant’s appeal on points of law, but reduced the additional disciplinary fine to EUR 500. It explicitly mentioned the length of disciplinary proceedings as a violation of the applicant’s rights under Article 6 of the Convention and took account of the fact that the applicant’s right to represent before the Linz Courts in criminal cases had been withdrawn for four years. The Supreme Court found that a different set of disciplinary proceedings had been already pending when the present incident occurred. Therefore, the applicant should have acted with special caution. A total waiver of the fine would not be adequate in this situation.

The Supreme Court’s judgment was served on 11 August 2014 on the applicant.


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

Kristina Pardalos;Pauliine Koskelo;Ksenija Turković

The applicant lives in Kutina.

From 1 January 2001 the applicant concluded several consecutive fixed-duration contracts of employment with the company C.N.S. Ltd. concerning the same post. The contracts were for a continuous period which in total amounted to over seven years and seven months.

On 5 June 2009 the applicant’s employer returned the applicant’s employment registration book to him, without any written or oral notification, showing that his employment had been terminated.

On 20 July 2009 the applicant brought a civil action before the Ivanić Grad Municipal Court (Općinski sud u Ivanić Gradu). He asked it to recognise that he had concluded an open-ended contract of employment, given that he had been in continuous employment with his employer for over three years, which was the time-limit for fixed-term employment contracts under the Labour Act. He also asked the Municipal Court to establish that his employment had not been terminated and to order his reinstatement.

On 22 January 2010 the Ivanić Grad Municipal Court dismissed the applicant’s claim as time-barred.

Upon an appeal by the applicant, on 16 February 2011 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) quashed the firstinstance decision and remitted the case for fresh consideration. It held that the first-instance court should have declared the applicant’s claims inadmissible as time-barred, without examining it on the merits.

In the fresh proceedings, the Ivanić Grad Municipal Court on 6 May 2011 declared the applicant’s action inadmissible as having been lodged outside the prescribed time-limit. The first-instance court, relying on section 133 of the Labour Act, held that the applicant and his employer had concluded a fixed-term contract lasting until 31 May 2009 and that the applicant must have known that his contract would end on that day. He had not concluded a new contract of employment with his employer and he had therefore been obliged to lodge an application for the protection of his rights with his employer within the fifteen-day time-limit, starting from 1 June 2009. However, he had failed to do so and consequently his claim had been lodged out of time. Rejecting the applicant’s argument, the firstinstance court also held that the defendant company had not been obliged to adopt a formal decision on terminating his employment or to send him any other kind of notification, given that he must have known that his contract would come to an end on 31 May 2009.

On 12 May 2011 the applicant lodged an appeal with the Velika Gorica County Court.

On 26 July 2011 the Velika Gorica County Court upheld the firstinstance decision.

On 14 November 2011 the applicant lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske), which was dismissed as ill-founded on 25 September 2012. The Supreme Court also held that the applicant had failed to seek the protection of his rights in respect of his employer within the deadlines prescribed by section 133 of the Labour Act. Accordingly, his claim had been lodged out of time.

On 14 March 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He complained that the courts had wrongly declared his claim inadmissible because it had been of a declaratory nature and as such had not been subject to deadlines. He relied on a decision by the Velika Gorica County Court of 16 January 2013 in the case of a colleague of his, who for the same reasons as the applicant had also sought to have the court recognise that he had concluded an open-ended contract of employment. In that decision the Velika Gorica County Court, in accordance with instructions given in the Supreme Court’s decision no. Revr-1697/11 of 6 June 2012, had dismissed the defendant’s (the employer’s) objection that the claim was time-barred. Namely, the Supreme Court had held that the claim had been of a declaratory nature and as such was not subject to deadlines.

On 6 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The applicant was born in 1976 and lives in Neftekamsk, Bashkortostan Republic.

On 4 September 2008 the applicant was arrested on suspicion of causing and inciting prostitution of minors and unlawful breaking and entering. According to the record of the arrest, a number of witnesses made statements about the applicant’s involvement in the said crimes.

On 5 September 2008 the Leninskiy District Court of Ufa remanded the applicant in custody noting as follows:

“[The applicant] is charged with serious offences, which fact suggests that, being a former law enforcement officer, if released, he may interfere with the establishment of the truth, influence or threaten witnesses and victims, continue criminal activities or abscond and it will not be possible to complete the investigation or conduct a trial. The Court considers that [a less strict] restrictive measure cannot be applied.”

The applicant remained in custody pending investigation and trial. Relying on the seriousness of the charges against the applicant, the District Court extended the applicant’s detention during investigation on 30 October and 18 December 2008. On 15 July and 20 October 2009, 20 January, 15 April, 16 June, 19 August and 15 November 2010 the Supreme Court of the Bashkortostan Republic extended the applicant’s detention pending trial. Each time the Supreme Court issued a collective detention order in respect of five defendants, including the applicant, and noted that the circumstances underlying their remand in custody had not ceased to exist. Relying further on the seriousness of the charges against the five defendants, the Supreme Court reasoned that, if released, they might abscond, continue criminal activities or interfere with the establishment of the truth. The applicant’s appeals were to no avail.

On an unspecified date the applicant was charged with abuse of power and organisation of a criminal gang.

On 27 December 2010 the Supreme Court of the Bashkortostan Republic found the applicant guilty of several counts of causing and inciting prostitution of minors, abuse of power and unlawful breaking and entering. He was acquitted of organisation of a criminal gang and one count of causing and inciting prostitution of minors.

On 27 April 2011 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal.

On 21 July 2011 the applicant was released on parole.

Following the remand in custody on 5 September 2008, the applicant was detained in remand prison no. IZ-3/1 in Ufa. On 20 April 2009 the applicant was transferred to remand prison no. IZ 3/5 in Dyurtyuli where he was detained until 12 October 2009.

On 27 February 2009 the applicant sent a letter to the Court alleging a violation of his right to liberty and asking the Court to send him an application form. His letter was registered as application no. 19857/09.

On 17 April 2009 the Court sent a letter to the applicant which contained an application form to be filled out. In the letter the Court advised the applicant that he was to submit a completed application form by 12 June 2009. The Court’s letter was sent to remand prison no. IZ-3/1 in Ufa. The applicant was not detained at the remand prison at the moment and the Court’s letter was forwarded, to correctional colony no. IK-4. According to the stamp on the Court’s letter of 17 April 2009, the correctional colony received it on 2 September 2009. Then the administration of the correctional colony sent the letter back to remand prison no. IZ-3/1. The remand prison received it on 14 September 2009 and forwarded it to remand prison no. IZ3/5 where the applicant was detained. The letter arrived there on 2 October 2009 and on the same day the applicant received it (according to the applicant, he received the letter on 5 October 2009).


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

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in 1960 and lives in the village of Karakert, Armenia.

The applicant has been a member of an opposition political party, the National Democratic Union, since 1995. Since 1997 he has headed the party’s local offices in the Baghramyan area.

In March and April 2004 a series of protest rallies were organised in Yerevan by the opposition parties who voiced their criticism of the alleged irregularities which had taken place during the presidential election of February-March 2003 and challenged the legitimacy of the re-elected President. It appears that the applicant participated in these rallies. He alleged that the authorities retaliated by arresting, harassing and searching opposition supporters.

On 10 April 2004 at 5.10 p.m. the applicant was arrested and taken to a police station where an administrative case was initiated against him for disobeying the lawful orders of police officers.

On the same date the Armavir Regional Court sentenced the applicant to ten days’ administrative detention.

The running of the ten-day administrative sentence was to be calculated from 10 April 2004 at 5.10 p.m. The applicant was taken to a detention facility in the town of Ejmiatsin where he served his sentence.

On 20 April 2004 at an unspecified hour, the Armavir Regional Court examined and granted an investigator’s motion, which had apparently been lodged on the same date, seeking to have the applicant’s home searched. The judicial warrant stated:

“The investigating authority has found it substantiated that on 27 March 2004 at around 12 noon the residents of the village of Myasnikyan of the Armavir Region [K.K. and B.K.] inflicted violence dangerous for health in the pasture located in the administrative area of Lernagogh village in the Armavir Region on representatives of the authorities performing their official duties, [namely] the head of Lernagogh village [S.M.] and head of staff of the Village Council [A.M.]. According to operative information, [B.K. and K.K.] had a weapon during the incident[. F]or the purpose of hiding the mentioned weapon, they gave it to the resident of Karakert village, member of the Union of Yezidis of the Baghramyan area, [the applicant], who may have hidden the mentioned weapon in one of his homes in Karakert village.

On 27 March 2004 the Armavir Regional Prosecutor’s Office instituted criminal proceedings no. 65200604 ... concerning this fact.

In view of the fact that the facts of the criminal case provide sufficient grounds to believe that an illegally possessed weapon and ammunition may be found in [the applicant’s] home situated in Karakert village in the Armavir Region, as well as other objects and valuables having significance for the criminal case, the court therefore finds that the motion is well-founded and must be granted.”

It was stated in the warrant that it could be contested within 15 days before the Criminal and Military Court of Appeal.

The applicant alleged that on that day, several hours before the expiry of his administrative sentence, he was taken from the Ejmiatsin detention facility to the Baghramyan Police Department. From there he was escorted home by at least ten police officers.

According to the search record, the search was conducted from 5.10 p.m. to 6.55 p.m. by seven police officers of the Baghramyan Police Department, E.M., B.M., M.G., A.Ge., S.M., G.E. and A.Ga. Two neighbours, G.G. and M.S., were asked by the head of the police team to participate in the search as attesting witnesses. The applicant was asked to surrender the illegal weapon allegedly hidden in his house. The applicant stated that he had no illegal objects at home. As a result of the search, a plastic bag containing a cannabis-like herb was found in the boiler situated in the hallway. The applicant stated that he did not know what it was and who it belonged to. It was mentioned at the end of the record that the applicant had refused to sign the record without providing any reasons.

According to the applicant and the statements of the two attesting witnesses which were appended to the application form, the search was conducted in the following manner. Upon his return home, accompanied by police officers, the applicant found his pregnant wife in a critical condition, apparently suffering a miscarriage, and his one-year-old son crying beside her. On seeing him, the applicant’s wife fainted. A doctor was called and a number of female neighbours came to help. At that point the head of the police team informed the applicant that his house was to be searched, briefly showing him the relevant search warrant. The applicant alleged that attesting witnesses G.G. and M.S. were asked to participate only after the search had already begun. It appears that G.G. was a war veteran who had suffered concussion and was seriously disabled, while M.S. was seventyfour years old. The search was conducted by more than ten police officers who also used two specially trained dogs. Having searched the house and not found anything, the police officers started searching the yard and the adjacent buildings. The applicant alleged that during the search of the outside premises, the front door of his house was left open and people, including police officers, were coming and going. Moreover, a group of police officers was standing by the front door while the others continued the search. Having found nothing outside the house, the head of the police team announced that they would again search inside the house, to which attesting witness G.G. objected. Following the additional search the police officers found the above-mentioned plastic bag. The attesting witnesses submitted that their objections were not recorded. Moreover, they were persuaded and bullied by the police officers to sign the search record.

The applicant alleged that he was taken back to the police station where the chief of police promised that, if he renounced his political convictions and resigned from the party, no further action would be taken in relation to the cannabis. The applicant refused to make such a deal.

The applicant further alleged that he was kept at the police station overnight. There he was given a meal, including a hamburger. About 15 to 20 minutes after having eaten the meal he felt sick, started vomiting and lost consciousness. An ambulance was called and some injections were administered. According to the applicant, his meal had been laced with a drug.

On 21 April 2004 criminal proceedings were instituted against the applicant under Article 268 § 2 of the Criminal Code on account of illegal drug possession. On the same date at 11.18 p.m. the applicant was formally arrested.

On the same date the investigator decided to subject the applicant to a forensic toxicological examination. The applicant alleged that he did not receive a copy of this decision. He was taken to the Republican Centre for Narcotics where a urine sample was taken.

It appears that on the same date, a lawyer was engaged in the case. It further appears that the applicant was questioned and denied the drug possession allegations.

On an unspecified date the plastic bag and the herbal substance, weighing approximately 59 grams, were examined by a forensic expert and the substance was found to be cannabis.

On 23 April 2004 the applicant was formally charged with illegal drug possession and detained by a court order.

On the same date, a toxicological expert opinion was produced, according to which the applicant’s urine sample contained traces indicating cannabis consumption.

On the same date the lawyer filed a motion with the Armavir Regional Prosecutor seeking to stop the prosecution on the ground that, inter alia, the search had been conducted with numerous procedural violations. A similar complaint was lodged on 27 April 2004.

According to the applicant, on an unspecified date his lawyer requested a further examination of the cannabis and the plastic bag by a forensic expert. This request was rejected. He further alleged that, during the investigation, the police officers put pressure on the two attesting witnesses not to attend confrontations which had apparently been requested by the applicant.

On 7 May 2004 the applicant’s lawyer applied to the Armavir Regional Prosecutor, challenging the investigator’s impartiality and complaining in detail about the unlawful manner in which the search had been executed, alleging, inter alia, that the bag containing cannabis had been planted by the police officers conducting the search.

On 9 June 2004 the applicant’s lawyer complained to the Armavir Regional Prosecutor that the search warrant had lacked proper grounds and that the search had been conducted with numerous procedural violations. The lawyer argued that the investigator had failed to obtain any evidence when investigating his allegations of irregularities. Such evidence could have been obtained by questioning the applicant’s neighbours and the doctor who had provided first aid to his wife, who had been present during the search, and by holding confrontations between the applicant and the attesting witnesses.

On an unspecified date the applicant’s criminal case was brought before the Armavir Regional Court.

It appears that, in the proceedings before the Regional Court, the applicant’s lawyer filed a motion seeking to exclude the results of the search as unlawfully obtained evidence. It further appears that the Regional Court did not take any decision on this motion.

Attesting witnesses M.S. and G.G. both testified before the trial court. In reply to the questions put by the applicant’s lawyer M.S. stated, inter alia, that he and G.G. were watching the police officers as much as they could while entering and going out of the rooms together with the police officers. When giving his account of the events G.G. stated among other things that he helped one of the police officers to reach the water boiler from which a plastic bag and a plate were taken out. He further stated that both the plastic bag and the plate were covered with dust. However, the plate was dustier compared to the plastic bag. Both M.S. and G.G. stated that they did not remember whether they were informed of their right to have the objections that they might have included in the search record and that the applicant refused to sign it stating that the discovered bag did not belong to him.

On 22 June 2004 the Armavir Regional Court found the applicant guilty as charged and sentenced him to one and a half years’ imprisonment. In doing so, the Regional Court relied on, inter alia, the witness testimony of the police officers who had conducted the search, including E.M., A.Gh., M.G., M.M., L.F. and A.Ga., and of the two attesting witnesses, as well as the results of the analysis of the applicant’s urine sample.

On 29 June 2004 the applicant’s lawyer lodged an appeal. The lawyer argued, inter alia, that the search of the applicant’s home had been conducted with a number of procedural violations and therefore its results could not be used as evidence. In particular, he claimed that the search warrant was not presented to the applicant to get acquainted with it, no signature was obtained from him in this respect and that his objections were not included into the record of the search. He further argued that the search had been authorised by the court on the basis of fabricated police materials and therefore lacked any valid grounds. He also submitted that, according to the Code of Criminal Procedure, the Regional Court should not have relied on the testimony of the police officers, since they had been summoned and examined solely in connection with the performance of their procedural duties and not in connection with the irregularities alleged by the applicant. Furthermore, the Regional Court had failed to take into account the submissions of the attesting witnesses which confirmed the applicant’s allegations of irregularities.

On 10 August 2004 the Criminal and Military Court of Appeal upheld the applicant’s conviction finding, inter alia, that no significant procedural violations had taken place during the investigation of the case. The Court of Appeal relied on the same evidence, except for the testimony of the police officers.

No appeal was lodged against this judgment within the ten-day statutory time-limit, so it became final.

On 6 September 2004 the applicant was released on parole.

On 15 November 2004 an advocate holding a special licence lodged an appeal on points of law on behalf of the applicant against the final judgment of the Court of Appeal. He requested that the judgment of the Court of Appeal be quashed and the case be remitted for further investigation due to the procedural violations taken place during the investigation, including the execution of the search.

On 10 December 2004 the Court of Cassation examined the appeal on the merits and decided to dismiss it finding that, inter alia, no significant violations of the procedural law had taken place which required the case being remitted for further investigation.


Violation of Article 6 - Right to a fair trial (Article 6-1 - Civil rights and obligations;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

All the applicants were parties to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law or incorrect assessment of evidence by lower courts (for more details see the Appendix).