Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations;Determination (civil));Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Aleš Pejchal;András Baka;Angelika Nußberger;Dmitry Dedov;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Krzysztof Wojtyczek;Ledi Bianku;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paul Lemmens;Paul Mahoney;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano

The applicant was born in 1952 and lives in Budapest.

On 22 June 2009, after seventeen years of service (1991-2008) as a judge at the European Court of Human Rights and, subsequently, more than one year’s service as a member of the Budapest Court of Appeal, the applicant was elected by the Parliament of Hungary, by decision no. 55/2009 (VI.24) OGY, as President of the Supreme Court for a six-year term, until 22 June 2015.

In that capacity, the applicant carried out managerial tasks and also had a judicial role, presiding over deliberations which resulted in uniformity resolutions (on case-law consistency) and in guiding resolutions. He was also President of the National Council of Justice. This second function had been added to the tasks of the President of the Supreme Court in 1997 by the Organisation and Administration of the Courts Act (Act LXVI of 1997). As the head of the National Council of Justice, the applicant was under an explicit statutory obligation to express an opinion on parliamentary bills that affected the judiciary, after having gathered and summarised the opinions of different courts via the Office of the National Council of Justice (see paragraph 44 below).

On 13 October 2011 the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union elected the applicant President of the Network for a two-year term (2011 to 2013).

In April 2010 the alliance of Fidesz–Magyar Polgári Szövetség (Fidesz–Hungarian Civic Union, hereinafter “Fidesz”) and the Christian Democratic People’s Party (“the KDNP”) obtained a two-thirds parliamentary majority and undertook a programme of comprehensive constitutional and legislative reforms. In his professional capacity as President of the Supreme Court and the National Council of Justice, the applicant expressed his views on different aspects of the legislative reforms affecting the judiciary, notably the Nullification Bill, the retirement age of judges, the amendments to the Code of Criminal Procedure, and the new Organisation and Administration of the Courts Bill.

On 12 February 2011, in relation to the Nullification Bill (subsequently Act XVI of 2011, ordering the annulment of final convictions relating to the dispersal of crowds in the autumn of 2006), the applicant’s spokesman explained to the Népszabadság newspaper that, in the applicant’s view,

“the Bill ordering the annulment of certain judicial decisions delivered in relation to the 2006 riots gives cause for concern, because it violates the right of judges to assess evidence freely. This is a serious constitutional problem. ... the judiciary is examining the Bill only from a professional point of view and distances itself from any kind of political debate. András Baka [the applicant], President of the National Council of Justice, hopes that Parliament will choose a legal technique that eliminates the problem of unconstitutionality”.

On 8 March 2011, the day after the Bill’s enactment, István Balsai (Fidesz MP, Chairman of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time), responded at a press conference to the criticisms made by the judiciary, and declared: “The adopted legal solution was said to be unfortunate. Now, I myself find it unfortunate if a member of the judiciary, in any position whatsoever, tries to exert influence over the legislative process in such a way”.

On 24 March 2011, in a speech delivered to Parliament in the course of the debate on the Bill on the Fundamental Law of Hungary (the new Constitution), the applicant expressed his opinion on certain aspects of the proposed constitutional reform which concerned the judiciary, notably the new name given to the Supreme Court – Kúria –, the new powers attributed to the Kúria in the field of ensuring consistency in the case-law, the management of the judiciary and the functioning of the National Council of Justice, as well as the introduction of a constitutional appeal against judicial decisions.

On 7 April 2011, in relation to the proposal to reduce the mandatory retirement age of judges (from seventy years to the general retirement age of sixty-two) in Article 26 (2) of the Fundamental Law of Hungary, the applicant, together with other court presidents, addressed a letter to various actors in the constitutional process (the President of the Republic, the Prime Minister, the Speaker of Parliament) in which they pointed out the possible risks to the judiciary posed by the given proposal. Their concern was that, by abolishing the possibility for judges to remain in office until the age of seventy, the proposed rule would force one-tenth of Hungarian judges (274 persons) to end their careers in 2012, earlier than planned, with all the attendant consequences for the functioning of the judiciary and the length of pending proceedings.

On the morning of 11 April 2011 (the day of the vote on the proposals to amend the retirement age of judges), the applicant addressed a letter to the Prime Minister, in which he stressed that the proposal was humiliating and professionally unjustifiable; it infringed the fundamental principles of the independence, status and irremovability of judges; and it was also discriminatory, since only the judiciary was concerned. He refuted accusations of bias in favour of any political ideology within the judiciary, and continued:

“It is, however, unacceptable if a political party or the majority of Parliament makes political demands on the judiciary and evaluates judges by political standards.”

In his letter the applicant asked the Prime Minister to use his influence to prevent Parliament from adopting the proposal. On the same day, however, Parliament adopted the proposal (see Relevant Domestic Law below).

On 14 April 2011, a joint communiqué was addressed to the Hungarian and European-Union public by the plenary session of the Supreme Court, by the applicant in his capacity as President of the National Council of Justice, and by the presidents of regional and county courts. It argued for the autonomy and independence of the judiciary and criticised the new mandatory retirement age for judges and the proposal to modify the model of judicial self-governance embodied in the National Council of Justice. The relevant extracts from the communiqué read as follows:

“According to the proposal, the mandatory retirement age of judges will be reduced by eight years as of 1 January 2012. As a result, the tenure of 228 judges (among them 121 judges responsible for court administration and professional supervision) will be terminated on that same date, without any transition period, since they will have turned 62. By 31 December 2012 a further 46 judges will have to terminate their careers. As a consequence of this decision, the rapidity of judicial proceedings will significantly deteriorate (nearly 40,000 cases will have to be reassigned, which may even result in several years’ delay in judicial proceedings, concerning tens of thousands of persons). The administration of the courts will be seriously hindered, since it is extremely difficult to replace dozens of retiring judges.

The multiple effect of the forced pensioning-off, with no real justification, of highly qualified judges who have several years of experience and practice, most of whom are at the apex of the hierarchy, will fundamentally shatter the functioning of the court system – leaving aside other unforeseeable consequences. Moreover, the proposal is unfair and humiliating with respect to the persons concerned, who took an oath to serve the Republic of Hungary and to administer justice, and who have devoted their lives to the judicial vocation.

It is incomprehensible why the issue of the retirement age of judges is worth regulation in the Fundamental Law. There is only one answer: by including it in the Fundamental Law, there will be no possibility of contesting this legal rule, which violates the fundamental principles of a democratic state governed by the rule of law, before the Constitutional Court.

Such an unjustified step implies political motivation.”

On 14 June 2011 Bill no. T/3522 on the amendment of certain legislative acts concerning judicial procedure and the judicial system (including the Code of Criminal Procedure) was submitted to Parliament. At the applicant’s request, the Criminal Law Division of the Supreme Court prepared an analysis of the Bill, which was communicated to Members of Parliament. On 4 August 2011, as no substantive changes had been made to the Bill prior to its enactment on 4 July 2011 as Act LXXXIX of 2011, the applicant challenged the Act before the Constitutional Court, on the grounds of unconstitutionality and violation of the obligations enshrined in international treaties, making use of that power for the first time in Hungarian history. The Constitutional Court, in its judgment no. 166/2011. (XII. 20.) AB of 19 December 2011, established the unconstitutionality of the impugned provisions and quashed them (notably, the provision concerning the Attorney General’s right to establish court competence by derogation from the default statutory rules).

Lastly, on 26 October 2011 the applicant addressed to Parliament a detailed analysis of two new Cardinal Bills: the Organisation and Administration of the Courts Bill (no. T/4743) and the Legal Status and Remuneration of Judges Bill (no. T/4744). According to the explanatory memorandum to the Bills, it was proposed that the National Council of Justice be abolished and replaced by a National Judicial Office and a National Judicial Council. The purpose of those proposals was to separate judicial and managerial functions, which had been “unified” in the person of the President of the Supreme Court, who was at the same time president of the National Council of Justice. The proposed reform sought to concentrate the tasks of judicial management in the hands of the president of the new National Judicial Office, while leaving the responsibility for overseeing the uniform administration of justice with the president of the Supreme Court (renamed with the historical appellation “Kúria”).

The applicant also decided to express his opinion directly before Parliament, as permitted by Article 45 § 1 of Parliamentary Decision 46/1994 (IX.30) OGY on the Rules of Parliament. In his speech, delivered on 3 November 2011, the applicant raised his concerns about the draft legislation. He said that it did not address the structural problems of the judiciary, but left them to “the discretion of the executive of an external administration (the President of the proposed National Judicial Office, which would replace the National Council of Justice in managing the courts), who [would be] assigned excessive and, in Europe, unprecedented powers, with no adequate accountability”. The applicant referred to those new powers (to appoint judges and court executives, to issue normative orders and to designate the court in a given case) as “unconstitutional”. In this regard, he stated:

“This unrestricted, non-transparent and uncontrollable power is unparalleled in contemporary Europe ... The extent and uncontrollability of such centralised authority is without precedent, even in countries where the administration of the judiciary lies with the ministry of justice and even if we think of the socialist dictatorship, in the last years of which Kálmán Kulcsár, member of the Hungarian Academy of Sciences and Minister of Justice responsible for the administration of the judiciary, declared that he would appoint only persons recommended by the professional organs of the judiciary.”

Finally, the applicant again raised in his speech the issue of the new retirement age for judges, saying that it would have a severe effect on the Supreme Court and that the need to have enough judges at the Kúria had not yet been addressed. In this connection, he maintained that the Kúria’s main responsibility, that of ensuring consistency in the judicial application of laws, could be met only if that court were able to deliver judgments in an appropriate number and type of cases.

The Fundamental Law of 25 April 2011 established that the highest judicial body would be the Kúria (the historical Hungarian name for the Supreme Court). The date of entry into force of the Fundamental Law was scheduled for 1 January 2012.

On 14 April 2011, during a debate on the Fundamental Law, a Fidesz politician, Gergely Gulyás, MP, declared on the Inforádió radio station that the President of the Supreme Court would remain the same and that only the name of the institution would change. On 19 October 2011, in an interview on the ATV channel, the State Secretary of Justice, Róbert Répássy, MP, declared that under the Organisation and Administration of the Courts Bill (no. T/4743), the new Kúria would have the same function as the current Supreme Court and that only the Supreme Court’s name would change. He said that the legislation “will certainly not provide any legal ground for a change in the person of the Chief Justice”.

On 6 July 2011, in the “Position of the Government of Hungary on the Opinion on the Fundamental Law of Hungary adopted by the Venice Commission at its 87th Plenary Session (Venice, 17-18 June 2011, CDLAD(2011)016)”, transmitted by the Minister for Foreign Affairs of Hungary, the Government assured the Venice Commission that the drafting of the transitional provisions of the Fundamental Law would not be used to unduly put an end to the terms of office of persons elected under the previous legal regime.

In the period between 19 and 23 November 2011, members of Parliament submitted several amendments proposing that the applicant’s mandate as President of the Supreme Court be terminated.

On 19 November 2011 Gergely Gulyás submitted a Bill (no. T/4996) to Parliament, proposing an amendment to the 1949 Constitution (then in force). The amendment provided that Parliament would elect the President of the Kúria by 31 December 2011 at the latest. The reasoning of the Bill reads as follows:

“In view of the Fundamental Law of Hungary and of the modifications to the court system resulting from that Law, in compliance with the Bill on the Transitional Provisions of the Fundamental Law of Hungary, and with a view to ensuring a smooth transition and continuity in the fulfilment of the tasks of the Kúria as from 1 January 2012, this Bill provides that Parliament must elect, by 31 December 2011 and according to the rules laid down in the Fundamental Law, the President of the Kúria who is to take office on 1 January 2012.”

On 20 November 2011 two members of the parliamentary majority submitted a Bill (no. T/5005) to Parliament on the Transitional Provisions of the Fundamental Law. Under section 11 of the Transitional Provisions of the Fundamental Law of Hungary Bill, the legal successors of the Supreme Court and the National Council of Justice would be the Kúria, for the administration of justice, and the President of the National Judicial Office, for the administration of the courts. Pursuant to section 11(2), the mandates of the President of the Supreme Court and of the President and members of the National Council of Justice would be terminated upon the entry into force of the Fundamental Law. The reasoning of the Bill stated as follows:

“The Bill regulates in a comprehensive manner the succession of the Supreme Court and the National Council of Justice and its president, in that the successor body or person shall be different for the respective duties. Having regard to the modifications to the court system, the Bill provides that the term of office of the President of the Supreme Court currently in office, and that of the President and the members of the National Council of Justice, shall be terminated upon the entry into force of the Fundamental Law.”

On 23 November 2011 another Member of Parliament submitted a proposal for an amendment to sections 185 and 187 of the Organisation and Administration of the Courts Bill. While the previous versions of the Bill submitted by the Government (on 21 October and 17 November 2011) provided that the term of office of the court executives appointed before 1 January 2012 would last until the date fixed at the time of their appointment, this last mentioned amendment provided for an exception. It sought to terminate ex lege the mandate of the President and Vice-President of the Supreme Court. The reasoning of the proposal read as follows:

“The aim of this proposal for an amendment, submitted before the final vote, is to ensure the compliance of consolidated Bill no. T/4743/116, by amending its transitional provisions, with the Fundamental Law, having regard to Bill no. T/4996 on the Amendment of the Act XX of 1949 on the Constitution of the Republic of Hungary and also to Bill no. T/5005 on the Transitional Provisions of the Fundamental Law of Hungary, both submitted to Parliament.”

On 28 November 2011 Parliament adopted both the Organisation and Administration of the Courts Bill (as Act CLXI) and the Constitution of the Republic of Hungary (Amendment) Bill (as Act CLIX), with the content described above.

On 30 December 2011 the Transitional Provisions of the Fundamental Law Bill was adopted without amendment. The Transitional Provisions were published in the Official Gazette on 31 December 2011.

As a consequence of the entry into force of all these constitutional and legislative amendments, the applicant’s mandate as President of the Supreme Court terminated on 1 January 2012, three and a half years before its expected date of expiry.

The applicant remained in office as president of a civil-law division of the Kúria.

In order for a new president to be elected to the Kúria in due time, the Constitution of the Republic of Hungary (Amendment) Act (Act CLIX of 2011, adopted on 28 November 2011, see paragraph 31 above) entered into force on 2 December 2011. On 9 November 2011 the Organisation and Administration of the Courts Bill was amended, and an additional criterion for the election of the new president of the Kúria was introduced. This provided that he or she would be elected by Parliament from among the judges appointed for an indeterminate term and having served at least five years as a judge (section 114(1) of Act CLXI of 2011 – see Relevant Domestic Law below). On 9 December 2011 the President of the Republic proposed that Parliament elect Péter Darák as President of the Kúria and Tünde Handó as President of the National Judicial Office. On 13 December 2011 Parliament elected those candidates, in line with the proposal by the President of the Republic.

Firstly, the applicant lost the remuneration and other benefits (social security, presidential residence, personal protection) to which a president of the Supreme Court was entitled throughout the period of the fixed presidential term.

Secondly, the legislation dealing with certain post-term benefits for outgoing presidents of the Supreme Court (Remuneration and Allowances Act 2000) was repealed as from 1 January 2012. Section 227(1) of the Legal Status and Remuneration of Judges Act 2011 (as amended on 28 November 2011, in force from 1 January 2012) supplemented this abrogation, and stipulated that the repealed legislation would be applied to any former president of the Supreme Court only to the extent that he or she was entitled to the allowance specified in sections 26(1) and 22(1) (pension supplement for life), had reached retirement age at the time of the entry of force of the Act and had requested the allowance. Since the applicant had not attained retirement age by 1 January 2012, he could not claim payment of that post-function benefit.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1980 and lives in Kushchevskaya, Krasnodar Region.

On 9 December 2010 the applicant was charged in absentia with accessory to murder and his name was put on the wanted list.

On 16 December 2010 the Kushchevskiy District Court of the Krasnodar Region issued a detention order against the applicant in absentia.

On 21 January 2011 the applicant reported to the police station where he was arrested.

On 29 March 2011 the District Court remanded the applicant in custody. In particular the court held, as follows:

“... [the applicant] is suspected of having committed an extremely serious offence entailing 8 to 20 years’ custodial sentence or life imprisonment. As it has been established that during investigation [the applicant] stated that he intended to leave Russia and talked on the phone with a person living in Geneva ..., if released, [the applicant] might abscond, commit another offence, and threaten witnesses or other parties to criminal proceedings, destroy evidence or in any other way interfere with the investigation...”.

On 19 April 2011 the District Court extended the applicant’s pre-trial detention on the following grounds:

“[The applicant] is accused of an extremely serious offence entailing 10 years’ imprisonment. The case materials contain evidence confirming his involvement in crimes. Moreover, ... he may abscond or, if released, commit other crimes. These circumstances existed as of the date of [the applicant’s] placement into custody and have not changed at the present time. ... Taking into account that it is necessary to conduct numerous investigative activities, the court shall grant the investigator’s request [to extend the applicant’s detention]”.

The applicant remained in detention pending investigation and trial. The courts extended his detention, using the above formula. The courts referred also to the applicant’s family status, personality, state of health, possibility to put pressure on witnesses and interfere with the investigation, absence of job. In particular, on 25 January 2012 the court held as follows:

“... taking into account the personality of the accused, his family status, state of health and other circumstances, the court shall grant the investigator’s request and extend [the applicant’s] detention”.

The applicant lodged appeals against some detention orders but the courts rejected them.

On 2 November 2011 the applicant was additionally charged with membership in a criminal gang, six counts of unlawful transportation of fire arms and ammunition, attempted murder and murder.

In October 2012 the applicant, along with two co-defendants, was committed to stand trial before the Krasnodar Regional Court.

On 7 June 2013 the applicant was released.

On 19 June 2013 the Krasnodar Regional Court acquitted the applicant of all charges and held that the applicant be informed of the right to rehabilitation.

On 30 September 2013 the Supreme Court of the Russian Federation upheld the judgment of 19 June 2013 on appeal.

The applicant brought a claim against the Federal Treasury seeking compensation for pecuniary damage (legal expenses).

On 3 June 2014, the Regional Court awarded the applicant 680,600 Russian roubles as reimbursement of legal fees.


Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

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

The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law.


Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant, Mr Stipan Jurišić, is a Croatian national who was born in 1962 and lives in Split. He was represented before the Court by Mr J. Franceschi, a lawyer practising in Split.

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

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

The applicant was a senior military officer in the Croatian Army, holding the rank of brigadier.

On 7 June 2006 an investigating judge of the Split County Court (Županijski sud u Splitu) opened a criminal investigation against the applicant and another individual on suspicion of abuse of power and authority related to the unlawful misappropriation of goods.

The applicant appealed against the investigating judge’s decision before a three-judge panel of the Split County Court. On 29 August 2006 the panel dismissed his appeal and upheld the investigating judge’s decision on opening an investigation into his alleged abuse of power and authority.

On 28 September 2006 the competent military prosecutor indicted the applicant in the Split Military Disciplinary Court (Vojnostegovni sud u Splitu) on the grounds that the opening of a criminal investigation against him suggested that there was a reasonable suspicion that he had committed a criminal offence which could be prosecuted ex officio, which in itself amounted to a disciplinary offence under section 58 of the Military Service Act (see paragraph 18 below).

On 13 October 2006 the Split Military Disciplinary Court found the applicant guilty under section 58 of the Military Service Act because there was a reasonable suspicion that he had committed an offence for which criminal proceedings had been instituted and sentenced him to a reduction in rank.

On 30 January 2007, on appeal by the military prosecutor, the Higher Military Disciplinary Court (Viši vojnostegovni sud), as the appellate court, upheld the applicant’s disciplinary conviction and dismissed him from military service.

After the completion of the criminal investigation by the investigating judge of the Split County Court, on 17 May 2007 the Split Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Splitu) indicted the applicant and another individual in the Split Municipal Court (Općinski sud u Splitu) on charges of abuse of power and authority.

On 13 May 2009 the Split Municipal State Attorney’s Office dropped all charges against the applicant owing to a lack of evidence and on the same day the Split Municipal Court dismissed the charges against him.

On 16 June 2009, following the dismissal of the charges against him in the criminal proceedings, the applicant sought to reopen the disciplinary proceedings before the Higher Military Disciplinary Court. He argued that the criminal charges against him had been dismissed, which warranted a re-examination of his disciplinary conviction.

On 1 September 2009 the Higher Military Disciplinary Court dismissed the applicant’s application on the grounds that the dismissal of the charges against him in the criminal proceedings could not lead to a reopening of the disciplinary case.

The applicant challenged that decision before the Administrative Court (Upravni sud Republike Hrvatske). He submitted that the competent prosecutor in the criminal proceedings had dropped the charges against him, which suggested that the suspicion of him committing a criminal offence had been unjustified. In his view, the final judgment of the criminal court to dismiss the charges against him had amounted to a new fact which had shown that there had been no reasonable suspicion that he had committed an offence. Accordingly, the Higher Military Disciplinary Court’s refusal to reopen the case had deprived him of an effective means to challenge his unjustified dismissal from military service.

On 10 March 2010 the Administrative Court dismissed the applicant’s complaints as ill-founded, upholding the decisions of the lower disciplinary bodies.

On 26 May 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), relying on Article 18 of the Constitution (right to appeal), Article 28 (presumption of innocence), Article 29 (right to a fair trial), and Article 31 (ne bis in idem). He submitted that his disciplinary conviction and dismissal from military service had been based solely on the fact that he had been under criminal investigation. In his view, that had been unreasonable, particularly because all the charges against him had been dismissed in the subsequent criminal proceedings. The applicant thus contended that the disciplinary case should have been reopened and re-examined in order to remove the effects of the disciplinary conviction, in accordance with the principle of the presumption of innocence. However, given that his request to reopen the disciplinary proceedings had been dismissed, the applicant considered that there had been a violation of his constitutional rights to an effective appeal, a fair trial, the presumption of innocence and not be prosecuted and punished twice for the same offence.

On 28 October 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that a case on reopening proceedings did not involve a determination of the applicant’s rights and obligations.

The relevant provision of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014), reads as follows:

“Everyone has the right to respect for and the legal protection of his or her private and family life, dignity, reputation and honour.”

The relevant provision of the Military Service Act (Zakon o službi u oružanim snagama Republike Hrvatske, Official Gazette no. 33/2002, 175/2003 and 136/2004) which was applicable at the time, provided as follows:

“Disciplinary offences are:

- the commission of a criminal offence which can be prosecuted ex officio, or the existence of a reasonable suspicion that such an offence has been committed, ...”


András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr Andrzej Piotrowski, is a Polish national, who was born in 1952 and lives in Łódź. He was represented before the Court by Ms M. Wentland-Walkiewicz, a lawyer practising in Łódź.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

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

On 23 April 1977 the applicant married D. in a civil ceremony. In 2004 the applicant and D. married in church.

On 12 January 2010 the applicant filed a petition for divorce. He asked for a no-fault divorce (that is, for the court not to make any findings that either party was at fault for the breakdown of the marital relationship). The applicant stated that for a few years he could not agree with his wife on many issues touching on the basic aspects of everyday life, and that their life together had not been harmonious. This had caused a number of arguments and in May 2009 he had moved out of their flat.

In her reply to the petition, the respondent submitted that her marriage to the applicant was amicable, pleasant and that they used to be considered by other couples as having an exemplary relationship. She was of the opinion that the only reason the applicant had petitioned for divorce after thirty-two years of married life was because he was having an affair with another woman. The applicant had moved out of their flat in May 2009 but had returned in October of that year (despite continuing his relationship with the other woman). The respondent was of the view that this was a brief period of foolishness and that she could forgive her husband for his affair.

In pleadings dated 2 April 2010 the applicant changed his claim. He applied for a divorce on fault-based grounds (wina wyłączna). In his opinion, the respondent used to be controlling, incapable of reaching a compromise on any issue and unwilling to accept his arguments. This was, in his view, the main reason for the breakdown of their marriage.

During a hearing held on 16 June 2010 the applicant’s aunt, M.P., testified. She said that D. was a very good wife. She cared deeply about the applicant and was very conscientious about household tasks. The witness had never heard the applicant complaining about his marriage. A second witness, B.L., the parties’ friend, testified that the applicant and the respondent had complementary personalities and that she had never seen them fighting. A third witness, J.K., also their friend, recalled that the applicant used to say that he had “a wife and a mother in one” because of the good care the defendant had been taking of him. In his opinion, the applicant was satisfied with his marriage. A fourth witness, W.T., the respondent’s brother, said that in his view the marriage was good.

During a hearing on 4 October 2010 the applicant’s mother testified that she had considered her son’s marriage to be good. The applicant had never complained about his wife, but she sometimes complained about his flaws. She was not convinced that her son had really carefully considered his decision about the divorce. The parties’ home had been clean and well-kept thanks to the respondent’s efforts and work. She recalled only minor misunderstandings between the parties. The second witness, M.K., the applicant’s cousin, stated that the applicant had been deeply in love with the respondent. She had not heard the applicant praising the quality of his married life or complaining about it.

During a hearing on 7 February 2011 two witnesses expressed the opinion that the marriage was good.

The parties to the proceedings were also heard. The applicant testified that his new partner was against his divorce. Nevertheless, his new involvement had helped him to ponder carefully his decision to divorce. The applicant accused the respondent of infidelity, which had allegedly taken place during their engagement. He described his marriage as boring. The respondent did not agree to the divorce. In her opinion the applicant’s affair was just a passing period of foolishness. She declared that she loved the applicant and her willingness to give him a second chance.

On 16 February 2011 the Łódź Regional Court refused to grant the divorce. The court established that the applicant and D. had married in 1977. They did not have children. In 2004 they had married in church. Subsequently, the applicant had met another woman. In May 2009 he had informed D. that he had fallen in love with someone else.

The court held, having regard to the evidence gathered in the proceedings, that the breakdown of the marriage was complete and irretrievable within the meaning of the provisions of the Family and Guardianship Code on divorce. The financial, emotional and sexual relations between the spouses had come to end, essentially because of the applicant’s relationship with another woman. The court was of the view that there was no prospect of him returning to his wife.

The court further observed that D. was a very good partner to him and was not at fault for the breakdown of the marriage. She still loved her husband and was ready to forgive him for his affair. The court stressed that the applicant was the only person responsible for the marital breakdown. He was at fault not only because he had failed to comply with the spousal obligations enumerated in Article 23 of the Family and Guardianship Code, but also because he had not been loyal towards the respondent. He had failed to respect his obligation of fidelity and had clearly stated during the proceedings his intention to continue his relationship with another woman. Having regard thereto, the court considered that the wife’s refusal to give consent had to be considered to be legitimate and compatible with the principles of social coexistence within the meaning of Article 5 of the Civil Code. In this regard the court referred to established case-law of the Supreme Court concerning situations where an innocent spouse refuses to consent to a divorce. The court stressed that a refusal of consent to a divorce was a right and could not as such be presumed to be against the principles of social coexistence (Supreme Court judgment nos. II CKN 956/99 of 26 October 2000 and III CR 278/65 of 7 December 1965). Even considerable length of a separation between spouses did not override the presumption that a refusal to give consent to divorce complied with those rules (Supreme Court judgment no. III CR 147/65 of 18 August 1965).

The applicant appealed, challenging the findings of fact made by the court. He argued that his relationship with his wife had never been good. The fact that he had entered into a new relationship had been precisely because of the poor quality of their marriage. The court had been wrong in finding that his involvement with another woman had caused the marital problems. His relationship with her was viable as they had been living together for several months over the previous two years. The applicant referred to a new factor he had not raised before, namely that the respondent had not wanted to have sex with him. He changed his claim once again, asking this time for a divorce where both parties were considered at fault.

On 12 July 2011 the Łódź Court of Appeal upheld the first-instance judgment. It considered that the applicant’s wife was not at fault for the breakdown of the marriage and that her refusal to consent therefore had to be regarded as legitimate. The court noted that even the witnesses called by the applicant had testified that their marriage had been good and generally amicable.

The applicant and his legal representative were present at the hearing and during the oral pronouncement of the judgment. The president of the court read out the operative part and afterwards orally explained the main grounds for the decision.

On 14 July 2011 the applicant’s legal representative asked for the written grounds of the appellate judgment. On 5 September 2011 they were served on him.

Pursuant to Article 56 § 1 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy), either spouse may file a petition for divorce if there has been a complete and irretrievable marriage breakdown (zupełny i trwały rozkład pożycia). For the purposes of establishing whether a complete breakdown has occurred, the established judicial practice is to examine ex officio whether the financial, emotional and sexual ties between the spouses have ended (Supreme Court decision no. III CKN 386/98 of 22 October 1999, and Katowice Court of Appeal decision no. I ACa 51/10 of 12 March 2010). The courts establish it applying the general procedural rules governing the taking of evidence, in addition to certain specific rules provided for by the Code of Civil Procedure for the purposes of divorce proceedings.

In particular, under Article 431 of the Code of Civil Procedure, a decision in a divorce case cannot be based exclusively on the admission of the claim or of certain facts by the respondent. Article 432 of the Code provides that both parties to a divorce case are to be heard in person. Under Article 442, if the respondent admits the divorce claim and the spouses have no minor children, the court may limit the taking of evidence to hearing the parties.

Under Article 56 §§ 2 and 3 of the Family and Guardianship Code, a divorce may not be granted even where there has been a complete breakdown of the marriage, if:

“(2) ... it would be detrimental to the well-being of [the] minor children [of the marriage] or if, for other reasons, granting the divorce would be contrary to the principles of social coexistence (zasady współżycia społecznego);

(3) ... it has been requested by the spouse who is at fault for the breakdown of the marriage, unless the other spouse has expressed his or her consent thereto, or the refusal of such consent by the other spouse is – in the circumstances at issue – contrary to the reasonable principles of social coexistence...”

Article 5 of the Civil Code reads:

“No one shall exercise any right of his in a manner contrary to its socio-economic purpose or to the principles of social coexistence (zasady współżycia społecznego). An act or omission [fulfilling this description] on the part of the holder of the right shall not be deemed to be the exercise of the right and shall be protected [by law].”

The courts have developed ample case-law addressing situations where a respondent spouse refuses to consent to a divorce. In particular, they have held that an innocent respondent has a right to refuse to consent. A presumption of good faith was therefore applicable to such a refusal, until it was demonstrated, with reference to the specific circumstances of a case, that the refusal ran counter to the principles of social coexistence within the meaning of Article 5 of the Civil Code (Supreme Court decision nos. II CKN 956/99 of 26 October 2002 and I CKN 305/01 of 26 February 2000). In particular, the respondent spouse’s intention to frustrate the petitioner’s plans to formalise his or her extramarital relationship should not, by itself, be regarded as being incompatible with these principles, if it has been shown that the refusal was inspired by a wish to continue the marriage, consistent with ethical and social standards (Supreme Court decision no. CKN 305/01 of 26 February 2002).

The courts are obliged to assess whether or not a refusal to consent to a divorce amounts to an abuse of rights in the light of the spouses’ situation and conditions caused by the breakdown of their marriage, both of the innocent respondent and the petitioner. It is only in the light of these findings that a thorough assessment can be made whether a refusal is consonant with universally accepted morality rules (reguły moralności) and whether or not it is detrimental to other interests worthy of legal protection (Supreme Court decision no. I CKN 871/00 of 4 October 2001). The factors to be taken into account include, inter alia, the spouses’ health, age and ability to earn a living and the length of the marriage (Supreme Court decision nos. I CR 565/57 of 22 May 1958 and III CKN 573/98 of 9 October 1998, and Białystok Court of Appeal decision no. I ACa 48/97 of 6 March 1997). The fact that the petitioner has children born from an extramarital relationship is also of relevance (Supreme Court decision no. C 1115/52 of 8 July 1952).

The refusal of an innocent spouse should be overridden if it is shown that the respondent is motivated merely by a wish to harass the petitioner and to prevent him or her from formalising his or her new relationship (Supreme Court decision no. III CKN 665/00 of 21 November 2002).

The respondent’s conduct after the marriage breakdown also has to be taken into consideration; if it is spiteful and reprehensible, the refusal of consent can be overridden (Supreme Court decision no. II CKN 1270/00 of 21 March 2003). Likewise, the causes of the breakdown and the circumstances which have arisen thereafter, including the existence of other relationships and extramarital children, have to be taken into consideration by the court (Supreme Court decision no. III CKN 1032/99 of 10 May 2000).

Under Article 326 § 3 of the Code of Civil Procedure, the president of a judicial panel reads out the operative part of the judgment in open court. Afterwards the president or judge rapporteur orally explains the main grounds for the decision (podaje ustnie zasadnicze powody rozstrzygnięcia).

Under Article 328 of the Code, written grounds for a judicial decision may be prepared at a party’s request submitted within one week of its delivery. Written grounds must consist of a summary of the facts established by the court, refer to the evidence relied on by the court, indicate the reasons why the court considered that evidence to be credible and give legal reasons for the decision adopted.


No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

The applicant was born in 1982 and lived in Novocheboksarsk before the arrest.

On 20 November 2008 the applicant was remanded in custody on suspicion of rape.

Between 22 November 2008 and 7 September 2009 the applicant was held in remand prison IZ-77/3 in Moscow. The parties submitted differing information about the material conditions of his detention.

The applicant claimed that the facility was overcrowded. Cell 517, in which he stayed throughout his detention, measured 24 sq. m and accommodated up to twelve inmates. Walls were mouldy and the lavatory pan was not separated from the rest of the cell. Ventilation did not function; no toiletries were distributed and the bedding was ragged. The food was of low quality. The detainees were allowed to take a shower only once per week. In support of his allegations, the applicant submitted two identicallyworded statements by his cellmates, who – without further detail – declared that they “fully support[ed] Mr Istratov’s complaint to the European Court”.

The Government submitted a number of certificates issued by the director of remand prison IZ-77/3 on 18 June 2012, which demonstrated that the applicant was held in four cells having the following characteristics:

cell 608, which measured 34.11 sq. m, was equipped with 8 sleeping places and actually hosted between 5 and 8 inmates;

cell 207, which measured 32.17 sq. m, was equipped with 8 sleeping places and accomodated between 6 and 8 detainees;

cell 517, which measured 37.07 sq. m, was equipped with 9 sleeping places and hosted between 6 and 9 inmates;

cell 510, which measured 13.22 sq. m, was equipped with 2 sleeping places and held the same number of detainees.

It follows from the certificates that the applicant was provided with bedding and toiletries and afforded daily one-hour-long outdoor exercise, a weekly shower and access to washing facilities. There was forced ventilation and artificial lighting in the cells. In addition, the windows were not covered by shutters, allowing natural light to penetrate into the cells, and were equipped with a small opening pane that provided access to fresh air. Lavatory pans were separated from the rest of the cells by a brick partition and were located two metres away from dining tables. In addition, all four cells were equipped with a water tap with hot and cold running water. Heating was provided during the winter season.

The Governement also submitted copies of the prison population register which covered two weeks out of each month during the period of the applicant’s detention and presented the following information about the numbers of sleeping places in the cells and their actual occupancy:

cell 608 was equipped with 8 sleeping places and held a maximum of 6 detainees;

cell 207 was equipped with 14 sleeping places and held between 4 and 8 inmates;

cell 517 was equipped with 5 sleeping places and held a maximum of 5 detainees;

cell 510 was equipped with 3 sleeping places and held 2 inmates.

It appears that the applicant complained to the Moscow city prosecutor about the conditions of his detention. In his reply of 14 December 2010 the prosecutor acknowledged that “not every detainee was afforded the [statutory] standard of four square metres due to overpopulation of the prison”.

Some time later the applicant brought a civil claim for compensation in connection with inadequate conditions of detention in remand prison IZ77/3. On 7 June 2012, the Khoroshevskiy District Court of Moscow examined the claim and held that:

“According to a prison population certificate issued by the director of remand prison IZ-3 of Moscow, cell 608 measures 34.02 sq. m and is equipped with 12 sleeping places. Cell 207 measures 31.17 sq. m and is equipped with 14 sleeping places. Cell 517 measures 37.75 sq. m and is equipped with 12 sleeping places and cell 510 measures 13.45 sq. m and is equipped with 4 sleeping places.

It follows from the case file that Mr Istratov was always provided with a separate sleeping place and that the number of detainees never exceeded that of sleeping places.

It was established ... that the applicant’s argument about the overpopulation of the cells he had been held in, [affording as a result] less than 4 sq. m per person, had been substantiated.

However, considering that Mr Istratov did not complain that he had been afforded personal space below the sanitary standard (4 sq. m) ... and was always provided with a separate sleeping place ... the court considers it appropriate to reject Mr Istratov’s claim.”

On 12 May 2009 the Khoroshevskiy District Court of Moscow found the applicant guilty and gave him a custodial sentence. The applicant appealed, complaining about an erroneous interpretation of law and improper assessment of evidence by the District Court.

On 12 August 2009 the Moscow City Court upheld the conviction on appeal.


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)

The applicant was born in 1986 and is currently in detention at HMP Risley.

On 17 April 2007, after pleading guilty to counts of rape, indecent assault and robbery, the applicant was sentenced to an indeterminate sentence for the public protection (“IPP”). The minimum term that the applicant had to serve before being eligible for release (the “tariff”) was set at 4 years 273 days. His tariff was due to expire on 16 January 2012.

On 16 October 2007 the applicant completed alcohol in cell work and on 31 October 2007 he completed an alcohol awareness course.

In March 2008 the applicant was transferred to HMP Wayland. From 30 May 2008 to 2 July 2008 he participated in the Enhanced Thinking Skills (“ETS”) course.

In November 2008 the applicant completed the Living with Loss course.

On 16 July 2009 the applicant completed the Core Sex Offenders Treatment Programme (“SOTP”). In a post-programme progress review dated 30 November 2009, further work to reduce his risk of reoffending was identified, namely full engagement in the Structured Assessment of Risk and Need (“SARN”) process and full engagement in further assessments for sexual offending programmes.

A SARN Report dated 8 April 2010 prepared by a forensic psychologist in training noted that the applicant was assessed at a high statistic and high dynamic risk of sexual reoffending. It recommended personality and psychiatric assessments followed by completion of the extended Sex Offenders Treatment Programme (“ESOTP”) in order to reduce his risk. It concluded that the risk presented by the applicant was not low enough for him to be transferred to open conditions. The applicant was placed on a waiting list for the ESOTP.

On 20 May 2010 the applicant was informed by the Parole Board that it had not directed his release on licence or transfer to open conditions as some risk factors were outstanding. It noted that the Secretary of State had identified the need for sex offending and alcohol awareness work to reduce the level of risk. The applicant’s next parole process was to commence in May 2011, with an oral hearing in November 2011.

On 13 September 2010 the applicant made a formal application to HMP Bure, where he was then detained, to ask whether it intended to run the ESOTP. He was advised in reply that the prison planned to run the ESOTP in around April 2011. The applicant was not selected to participate in the course.

On 13 July 2011 the applicant completed a further alcohol awareness course.

On 26 September 2011 the Parole Board decided, on the papers, not to direct the applicant’s release. It noted that the applicant had completed an accredited alcohol course, the ETS course and the SOTP and that he hoped to complete the Thinking Skills Programme (“TSP”) and ESOTP in the near future. It concluded:

“You have been consistently well motivated to engage with all work identified as necessary for you. This is to your credit, as is your calm and personable approach. You have made some progress in that you now talk more openly and in more depth about your sexual offences. This has enabled you to work constructively with programme facilitators, and has provided a foundation on which to build in the ESOTP. You are motivated to complete that programme, and it is only available in the closed estate – any move to open conditions would therefore be premature. Release is, at present, out of the question. There is some lack of clarity around some of the risk factors in your case, and you yourself recognise that there is more to be done in terms of addressing risk ...”

In November 2011 the applicant completed the TSP.

By letter dated 1 December 2011, the applicant was informed that the Secretary of State had considered the Parole Board recommendation and agreed that the applicant was not suitable for release or transfer to open prison conditions. The next review period was set at twenty months, allowing eight months for completion of TSP, six months for completion of ESOTP and six months for production of a further SARN report. The review would therefore commence in October 2012 with a view to completion by July 2013.

In a Sentence Planning and Review Report dated 5 December 2011, it was recognised that ESOTP was a course that the applicant should concentrate on as part of his sentence plan. The report observed that the applicant’s need to improve his use of alternative styles of thinking had been addressed through his attendance at the TSP. The report further noted:

“Alcohol was an area that was problematic before his incarceration ... He has completed an accredited alcohol course (TADS) and continues to work with CARATS to address this issue. Mr Alexander has completed TSP and reports following completion were positive ... His sentence plan also recommends that he is assessed for the Extended SOTP. I understand from the programmes department that due to lack of resources this remains an objective. However, I am confident that subject to local prioritization strategy this should be completed in 2013.”

The applicant’s tariff expired on 16 January 2012.

On 27 April 2012 the Prison Service notified the applicant’s solicitors that the applicant was listed on their database “as a priority for assessment” prior to the next ESOTP scheduled to commence in August 2012. The applicant was not selected to participate in the course.

On 24 May 2012 the applicant completed a “Change is Possible” group work session. On an unknown date, he attended a brick-laying course.

On 12 October 2012 the applicant made a formal application to HMP Bure to ask for an assurance that he would have a place on the next ESOTP. He was advised in reply that no such assurance could be given but that he was a “high priority”.

On 28 November 2012 the Prison Service advised the applicant’s solicitors that he would continue to be considered for the next group to participate in the ESOTP, in line with the prioritisation strategy.

On 18 December 2012 the applicant’s Parole Assessment Report commented on the work done to date and noted:

“Unfortunately, Mr Alexander has yet to get a place on the [ESOTP] and it is hoped that he will in March 2013.”

In its recommendation, the report stated:

“It is hoped that [the applicant] will be able to participate in the ESOTP (6 months in duration) that is scheduled for March 2013. Until that programme is completed and a further SARN written to identify whether further intervention is required to manage risk, there can be no change to his current assessments and there is no support for a move to less secure conditions at this time ...”

On 12 February 2013 the Parole Board decided on the papers not to direct the applicant’s release, deeming him still a risk to the public until he completed the ESOTP. Its report stated:

“Through no fault of your own, you have been unable to complete ESOTP but it is anticipated that you will have the opportunity to do so in 2013.”

On 13 February 2013 the applicant was informed by HMP Bure programmes team that his placement onto the ESOTP expected to run in June 2013 would depend on the assessment process, which was ongoing, and on his level of priority.

On 11 March 2013 the applicant’s solicitors advised him that HMP Bure had informed them that the applicant would be assessed for a place on the ESOTP to commence in May 2013.

On 13 March 2013 the applicant was informed that the Parole Board decision of February 2013 was final and that the next review would commence in October 2013, with a view to a hearing in May 2014.

On 2 April 2013 the applicant was assessed as being suitable for the ESOTP.

On 10 April 2013 the applicant’s solicitors advised him that they had been informed by HMP Bure that he was a “relatively high priority” to complete the next ESOTP running at HMP Bure in May/June 2013.

In June 2013 the applicant was transferred to HMP Whatton. In February 2014 he underwent further assessments for the ESOTP in order for prison staff to decide whether he could access the ESOTP at another prison or whether he should undertake the course at HMP Whatton.

On an unknown date in autumn 2014 the applicant commenced the ESOTP at HMP Risley. He was due to complete the course in March 2015.


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant, Mr Leonardo Biloglav, is a Croatian national who was born in 1965 and lives in Zagreb. He was represented before the Court by Mr M. Čaržavec, a lawyer practising in Zagreb.

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

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

The applicant was a soldier in the Croatian Army. He was wounded in the war in 1991 but continued to serve in the army until he was honourably discharged in 2013.

On 11 September 2012 a medical board of the Ministry of Defence (Ministarstvo obrane Republike Hrvatske) declared the applicant medically unfit for military service. The decision was based on his medical records. He was informed that he could appeal against that decision to the Ministry’s second-instance medical board.

The applicant appealed. On 3 October 2012 he was summoned to appear before the second-instance medical board and to submit further medical documentation concerning his condition. The applicant failed to appear and did not provide any further medical documentation.

On 10 January 2013 the second-instance medical board dismissed his appeal as unfounded, on the grounds that given his failure to appear before the board and in view of the available documentation, there was no reason to call into question the existing medical assessment of his condition. The applicant was informed that he could challenge the Ministry’s decision by lodging an administrative action with the Administrative Court, which, however, did not have suspensive effect.

The decisions of the Ministry’s medical board became final and enforceable on 21 January 2013.

On 11 February 2013 the applicant lodged an administrative action with the Zagreb Administrative Court (Upravni sud u Zagrebu) challenging the decision of the Ministry’s medical board of 10 January 2013. He argued that the Ministry’s assessment of his fitness for military service was flawed and unfounded. He contended in particular that he had never been properly summoned or examined by the Ministry’s medical board and that their findings contradicted the fact that he had carried out all his military assignments efficiently and had even participated in a mission to Afghanistan.

On 13 September 2013, after hearing the parties’ arguments and examining further submissions from them, the Zagreb Administrative Court declared the applicant’s administrative action inadmissible on the grounds that the Ministry’s medical board was not a public authority against whose decisions an administrative action could be lodged, and that the applicant could only lodge an action against the Ministry’s decision to terminate his employment in the army.

The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining, in particular, that he did not have access to court concerning the assessment of his fitness for military service.

On 30 October 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. That decision was served on the applicant on 18 November 2013.

On 12 February 2013 the Ministry’s department for human resources terminated the applicant’s service in the army by an honourable discharge. It ordered that the discharge would take effect on 20 February 2013. The Ministry relied on section 189(1) of the Military Service Act, providing that military service would terminate ex lege thirty days after the decision of a medical board declaring a soldier medically unfit for military service became final (see paragraph 19 below).

The decision on the applicant’s discharge from the army was confirmed on appeal by a second-instance administrative body within the Ministry on 21 June 2013.

On 30 July 2013 the applicant lodged an administrative action in the Zagreb Administrative Court challenging the decision on the termination of his military service. He contended in particular that he had not been able to participate effectively in the proceedings before the Ministry’s medical board concerning the assessment of his fitness for military service. He also reiterated his complaints concerning the alleged failures of the medical board to properly assess his medical condition.

During the proceedings, the Zagreb Administrative Court heard the applicant and obtained the parties’ further written submissions on the matter of the termination of the applicant’s employment in the army. Concerning the applicant’s allegations of inadequacy of the assessment of his fitness for military service, the Administrative Court heard B.B., who had presided over the Ministry’s first-instance medical board. B.B. was also questioned by the applicant and his representative. He explained the methodology and procedures applied for the assessment of the applicant’s fitness for military service, and stressed that the available medical documentation in the applicant’s case had suggested that he was not medically fit for military service.

On 5 December 2014 the Zagreb Administrative Court dismissed the applicant’s administrative action. It examined in detail the manner in which the applicant’s unfitness for military service had been established and found that there was nothing in the procedure or findings of the medical board which would raise doubt as to the necessity of the applicant’s discharge from the army.

The relevant Military Service Act (Zakon o službi u oružanim snagama Republike Hrvatske, Official Gazette nos. 33/2002, 58/2002, 175/2003, 136/2004, 76/2007, 88/2009 and 124/2009) provided in section 188(1) that the military service could terminate only in the following circumstances: (1) ex lege under the conditions provided for in that Act; (2) on the basis of a personal request; (3) by the expiry of a term for which an individual was recruited; (4) by dismissal; (5) by the expiry of the probationary period; and (6) on the basis of an agreement.

In section 189(1) the Military Service Act provided:

“(1) Military service shall terminate ex lege ... by a decision of a medical board declaring [a soldier] medically unfit for military service – thirty days after the decision becomes final.”

The Government provided several decisions of the Administrative Courts declaring inadmissible administrative actions against decisions of the Ministry’s medical board on the assessment of appellants’ fitness for military service (Us-894/2002-5 of 20 November 2002; Us-3009/2003-6 of 8 March 2007; UsI-3938/12-8 of 28 March 2013 and UsI-709/13-4 of 3 March 2014).

These decisions of the Administrative Courts are based on findings that the Ministry’s medical board was not a public authority against whose decisions an administrative action could be lodged, and that further administrative actions could be lodged against any further administrative decisions based on the findings of the medical board.

The parties also provided several decisions of the Administrative Courts upholding the findings of the Ministry’s medical board in administrative proceedings against decisions terminating appellants’ employment in the army (Us-2993/2002-5 of 20 November 2002; UsI-2619/13-10 of 25 February 2014 and UsI-2543/13-7 of 28 May 2014).


CASE OF GUMENIUC v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in 1978 and lives in Calaraseuca.

On 27 July 2005 the applicant was stopped by the traffic police for speeding.

By an order of 5 September 2005 the traffic police fined the applicant 60 Moldovan lei (MDL) (the equivalent of some 4 euros (EUR) at the time). The applicant did not challenge the police order.

As the applicant failed to pay the fine, on an unspecified date a bailiff applied to the Ocnita District Court to have the fine converted into thirty days’ administrative detention, under Article 26 § 5 of the Code of Administrative Offences (see paragraph 14 below). According to the bailiff, the applicant had been ordered to pay the fine by 28 February 2006; however, he had failed to do so and had thus acted in bad faith.

On 26 May 2006, at a hearing conducted without the presence of the parties, the Ocnita District Court accepted the bailiff’s request and ordered the applicant’s administrative detention for a period of thirty days. The document constituting the court’s decision was a pre-printed template which the judge had completed by hand with the specific details of the case, such as the names of the judge, the applicant and the bailiff, the relevant dates, the amount of the fine, the applicant’s address and the number of days of detention to be served by the applicant. It did not contain any indication that the applicant had been summoned to appear at the hearing.

At 8 a.m. on 12 June 2006 the applicant was arrested at home and placed in detention. At about 5 p.m. the same day he suffered a heart attack and was taken by ambulance to a hospital. He recovered shortly thereafter and was soon discharged from hospital.

On 16 June 2006 the applicant lodged an appeal against the Ocnita District Court’s decision of 26 May 2006, arguing, inter alia, that he had not been summoned to appear at the hearing of 26 May 2006, that he had had no knowledge of the decision of 26 May 2006 prior to his arrest, and that he had not been given a chance to contest the court’s decision before being placed in detention. The applicant also argued that the traffic police’s order of 5 September 2005 imposing a fine on him for speeding had been abusive because the police had no evidence to prove that it had been his car which had been caught speeding and not other cars on the road.

On 30 August 2006 the Balti Court of Appeal dismissed the applicant’s appeal, finding that the applicant had not challenged the traffic police’s order of 5 September 2005 within the statutory time-limit. The Court of Appeal did not respond to the applicant’s argument about the failure to summon him to the hearing of 26 May 2006.

It does not appear from the materials of the case that the applicant served the rest of the detention term.


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The details concerning the applicants may be found in the Annex.

In July 2008 these two applicants, who were in a committed stable relationship with each other, declared their intention to marry, and requested the Civil Status Office of the Trent Commune to issue the relevant marriage banns.

On 25 July 2008 their request was rejected.

The two applicants challenged the decision before the Trent Tribunal (in accordance with Article 98 of the Civil Code). They argued that Italian law did not explicitly prohibit marriage between persons of the same sex, and that, even if that were the case, such a position would be unconstitutional.

By a decision of 24 February 2009 the Trent Tribunal rejected their claim. It noted that the Constitution did not establish the requirements to contract marriage, but the Civil Code did and it precisely provided that one such requirement was that spouses be of the opposite sex. Thus, a marriage between persons of the same sex lacked one of the most essential requirements to render it a valid legal act, namely a difference in sex between the parties. In any event there was no fundamental right to marry, neither could the limited law provisions constitute discrimination, since the limitations suffered by the applicants were the same as those applied to everyone. Furthermore, it noted that European Union (“EU”) law left such rights to be regulated within the national order.

The applicants appealed to the Trent Court of Appeal. While the court reiterated the unanimous interpretation given to Italian law in the field, namely to the effect that ordinary law, particularly the Civil Code, did not allow marriage between people of the same sex, it considered it relevant to make a referral to the Constitutional Court in connection with the claims of unconstitutionality of the law in force.

The Italian Constitutional Court in judgment no. 138 of 15 April 2010 declared inadmissible the applicants’ constitutional challenge to Articles 93, 96, 98, 107, 108, 143, 143 bis and 231 of the Italian Civil Code, as it was directed to the obtainment of additional norms not provided for by the Constitution (diretta ad ottenere una pronunzia additiva non costituzionalmente obbligata).

The Constitutional Court considered Article 2 of the Italian Constitution, which provided that the Republic recognises and guarantees the inviolable rights of the person, as an individual and in social groups where personality is expressed, as well as the duties of political, economic and social solidarity against which there was no derogation. It noted that by social group one had to understand any form of community, simple or complex, intended to enable and encourage the free development of any individual by means of relationships. Such a notion included homosexual unions, understood as a stable cohabitation of two people of the same sex, who have a fundamental right to freely express their personality in a couple, obtaining – in time and by the means and limits to be set by law – juridical recognition of the relevant rights and duties. However, this recognition, which necessarily requires general legal regulation aimed at setting out the rights and duties of the partners in a couple, could be achieved in other ways apart from the institution of marriage between homosexuals. As shown by the different systems in Europe, the question of the type of recognition was left to regulation by Parliament, in the exercise of its full discretion. Nevertheless, the Constitutional Court clarified that without prejudice to Parliament’s discretion, it could however intervene according to the principle of equality in specific situations related to a homosexual couple’s fundamental rights, where the same treatment of married couples and homosexual couples was called for. The court would in such cases assess the reasonableness of the measures.

It went on to consider that it was true that the concepts of family and marriage could not be considered “crystallised” in reference to the moment when the Constitution came into effect, given that constitutional principles must be interpreted bearing in mind changes in the legal order and the evolution of society and its customs. Nevertheless, such an interpretation could not be extended to the point where it affected the very essence of legal norms, modifying them in such a way as to include phenomena and problems which had not been considered in any way when it was enacted. In fact it appeared from the preparatory work to the Constitution that the question of homosexual unions had not been debated by the assembly, despite the fact that homosexuality was not unknown. In drafting Article 29 of the Constitution, the assembly had discussed an institution with a precise form and an articulate discipline provided for by the Civil Code. Thus, in the absence of any such reference, it was inevitable to conclude that what had been considered was the notion of marriage as defined in the Civil Code, which came into effect in 1942 and which at the time, and still today, established that spouses had to be of the opposite sex. Therefore, the meaning of this constitutional precept could not be altered by a creative interpretation. In consequence, the constitutional norm did not extend to homosexual unions, and was intended to refer to marriage in its traditional sense.

Lastly, the court considered that, in respect of Article 3 of the Constitution regarding the principle of equality, the relevant legislation did not create unreasonable discrimination, given that homosexual unions could not be considered equivalent to marriage. Even Article 12 of the European Convention on Human Rights and Article 9 of the Charter of Fundamental Rights did not require full equality between homosexual unions and marriages between a man and a woman, as this was a matter of Parliamentary discretion to be regulated by national law, as evidenced by the different approaches existing in Europe.

In consequence of the above judgment, by a decision (ordinanza) lodged in the relevant registry on 21 September 2010 the Court of Appeal rejected the applicants’ claims in full.

In 2003 these two applicants met and entered into a relationship with each other. In 2004 Mr Felicetti decided to undertake further studies (and thus stopped earning any income), a possibility open to him thanks to the financial support of Mr Zappa.

On 1 July 2005 the couple moved in together. In 2005 and 2007 the applicants wrote to the President of the Republic highlighting difficulties encountered by same-sex couples and soliciting the enactment of legislation in favour of civil unions.

In 2008 the applicants’ physical cohabitation was registered in the authorities’ records. In 2009 they designated each other as guardians in the event of incapacitation (amministratori di sostegno).

On 19 February 2011 they requested their marriage banns to be issued. On 9 April 2011 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below).

The two applicants did not pursue the remedy provided for under Article 98 of the Civil Code, in so far as it could not be considered effective following the Constitutional Court pronouncement mentioned above.

In 2002 these two applicants met and entered into a relationship with each other. In the same year they started cohabiting and since then they have been in a committed relationship.

In 2006 they opened a joint bank account.

In 2007 the applicants’ physical cohabitation was registered in the authorities’ records.

On 3 November 2009 they requested that their marriage banns be issued. The person in charge at the office did not request them to fill in the relevant application, simply attaching their request to a number of analogous requests made by other couples.

On 5 November 2009 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below).

Mr Perelli Cippo and Mr Zacheo challenged the decision before the Milan Tribunal.

By a decision (decreto) of 9 June 2010 lodged in the relevant registry on 1 July 2010 the Milan Tribunal rejected their claim, considering that it was legitimate for the Civil Status Office to refuse a request to have marriage banns issued for the purposes of a marriage between persons of the same sex, in line with the finding of the Constitutional Court judgment no. 138 of 15 April 2010.

The applicants did not lodge a further challenge (reclamo) under Article 739 of the Code of Civil Procedure, in so far as it could not be considered effective following the Constitutional Court pronouncement.