Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Freedom from attachment;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1949 and is currently serving a prison sentence in Lepoglava.

The applicant was a vice-president of the Croatian Privatisation Fund (Hrvatski fond za privatizaciju – hereinafter “the Fund”), a legal entity established by the State and tasked with carrying out the privatisation of publicly owned property.

In August and October 2006 M.M., a businessman from Russia, approached the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta – hereinafter: “the State Attorney’s Office”) alleging that he had been trying to make various business investments in Croatia and that he had been introduced to a certain A.P., allegedly an official of the Fund, who had offered his assistance in pursuing the project in the State. In return, A.P. had asked M.M. to deposit 2,250,000 euros (EUR) in various bank accounts.

In March 2007 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) authorised the secret surveillance of a number of individuals, including A.P., in connection with suspicions of bribe-taking and abuse of power and authority. M.M. was granted informant status.

In the course of further investigation using secret surveillance, several meetings were recorded in which M.M., assisted by a consultant, J.K., discussed with a lawyer, A.Pi., the measures that needed to be taken in order to carry out a business project in the Zadar region. On that occasion A.Pi. mentioned the applicant as her contact in the Fund. She also stated that everybody should make out well in this business undertaking. J.K. also explained that he knew the applicant from before and that very soon they would have a meeting concerning the investment at issue.

On 3 April 2007 J.K. approached the State Attorney’s Office claiming that he was the representative of M.M. and that he had already had a number of contacts with various officials concerning M.M.’s investment in Croatia. In this connection, the day before he had also contacted the applicant, in his capacity as vice-president of the Fund, who had allegedly requested a provision of 5% of the total investment value, which was approximately between EUR 23,000,000 and 25,000,000, to help with the realisation of the project. The applicant had explained to J.K. that that amount would have to be distributed to the bank accounts of three (out of five) vice-presidents of the Fund who would take part in the decision-making process. J.K. consented to act as an informant under the further guidance of the prosecuting authorities.

On 3 April 2007 the State Attorney’s Office asked an investigating judge of the Zagreb County Court to authorise the use of special investigative measures in respect of the applicant, specifically the tapping of his telephone, covert surveillance of him, the use of J.K. as an informant, and conducting a simulated purchase operation.

On the same day the application was allowed and the investigating judge ordered the use of special investigative measures in respect of the applicant. The relevant part of the order reads:

“The application is accompanied by the submission of the Ministry of the Interior’s Criminal Police Department, and the relevant official notes, statements and other material.

The application is well-founded since the case at issue concerns the offences under Article 181 § 3 of the Code of Criminal Procedure, and the investigation into these offences by other means would either not be possible or would be extremely difficult.

Therefore, all the necessary requirements under Articles 180 and 181 of the Code of Criminal Procedure have been met and the order should be issued with a view to securing the information and evidence necessary for the criminal case.”

In the course of the investigation, the investigating judge issued several further orders to the same effect. Various meetings between the applicant and J.K. took place. At a meeting on 11 April 2007 J.K. gave to the applicant EUR 50,000 in connection with his investment project.

On 16 June 2007, on the basis of an application by the State Attorney’s Office, the investigating judge ordered the termination of the special investigative measures, indicating that their use had produced the results sought.

On 16 June 2007 the applicant was arrested and detained in connection with a suspicion that he had taken bribes and abused his power and authority in several privatisation cases.

On 18 June 2007 the State Attorney’s Office forwarded to the investigating judge 288 CD recordings of the secret surveillance operation, and on 19 June 2007 it forwarded a further thirty-six CD and twenty DVD recordings.

On 19 June 2007 the State Attorney’s Office asked an investigating judge of the Zagreb County Court to open an investigation in respect of the applicant and seven other individuals in connection with a suspicion of bribe-taking and offering bribes related to several investment projects in Croatia, including the one in the Zadar region (see paragraphs 9 and 10 above).

In its request for investigation the State Attorney’s Office relied on the results of the special investigative measures suggesting that the applicant, in his capacity as vice-president of the Fund, had requested bribes in order to support M.M.’s investment project in the Zadar region. In particular, it was alleged that he had requested bribes amounting to EUR 220,000 and 5% of the total investment, which amounted to EUR 1,700,000. The secret recordings showed that the sealing of this agreement had taken place first on 11 April 2007 when J.K., acting as M.M.’s representative, had paid the applicant EUR 50,000, and then on 24 April 2007 when J.K. had deposited a further EUR 150,000 in a notary public’s safe in the applicant’s favour. The State Attorney’s Office also alleged that the applicant had organised the bribery of the President of the Fund in respect of the investment in the Zadar region, and had agreed to further bribe-taking with J.K. concerning another investment project related to the privatisation of the hotels Ž. and P.

When questioned with regard to the charges against him, the applicant decided to remain silent and not to give evidence. On the basis of the available evidence, the investigating judge accepted the request of the State Attorney’s Office and opened an investigation.

Meanwhile, on 20 June 2007 the State Attorney’s Office forwarded 191 CD recordings to the investigating judge. It also forwarded an additional ninety-eight CD recordings to the investigating judge containing secret surveillance of individuals in respect of whom an investigation had not been opened at that time.

On 21 June 2007 the investigating judge in charge of the supervision of the special investigative measures forwarded to the investigating judge conducting the investigation 191 CD recordings and the relevant reports concerning the secret surveillance of the suspects and the informants M.M. and J.K.

On 26 July 2007 the applicant asked to have access to and to have copies of the secret surveillance CD and DVD recordings.

The investigating judge conducting the investigation commissioned a telecommunications expert report including transcripts of the relevant secret surveillance recordings. These were produced by M.Đ., a telecommunications expert. By a letter of 30 November 2007 M.Đ. returned ninety-eight secret surveillance CD recordings in the case at issue that did not contain the communications of the suspects in respect of whom the investigation had been opened.

In the course of the investigation the investigating judge authorised numerous search and seizure operations and questioned a number of witnesses in connection with the offences for which the applicant and the other suspects had been charged.

When questioned as a witness by the investigating judge, M.M. explained that J.K. had offered him the services of his company to help with a business investment in Croatia. In particular, J.K. had explained that he knew how to contact the competent State institutions and how these things could be done in a legal way. Soon afterwards they had sent a letter of intent to the Fund concerning M.M.’s investment but they had not received a reply. J.K. had then contacted the applicant, who had been his colleague at university, and arranged a meeting with him at the Fund. M.M. also explained that it was J.K. who had been in contact again with the applicant concerning the investment in the Zadar region.

The investigating judge also questioned J.K. but he was unable to give evidence owing to his medical condition and hospitalisation.

On the basis of the results of the investigation, the investigating judge twice extended the scope of the investigation to other alleged instances of bribe-taking and abuse of power and authority by the applicant.

Following the completion of the investigation, the investigating judge forwarded the case file to the State Attorney’s Office for further assessment and a decision.

On 12 February 2008 the State Attorney’s Office indicted the applicant and nine other individuals and brought them before the Zagreb County Court on charges of bribe-taking, offering bribes and abuse of power and authority. The applicant was indicted in his capacity as a public official on two counts of bribe-taking and bribery of the President of the Fund related to M.M.’s investment project in the Zadar region, two counts of bribe-taking related to the privatisation of the hotels Ž. and P. and the company P.O., and one count of abuse of power and authority related to the privatisation of the company B.

The indictment was based on voluminous evidence obtained during the investigation and the recordings of the applicant’s telephone communications and secret surveillance of him obtained by the use of special investigative measures. In particular, the State Attorney’s Office indicated the particular sequence of the relevant recordings which it intended to submit as evidence at the trial. The State Attorney’s Office also asked that the case file concerning the special investigative measures be examined.

On 6 March 2008 the applicant lodged an objection against the indictment, arguing that it was confusing and incomplete. He pointed out that his position in the Fund did not fall within the scope of the definition of “public official” under Article 89(3) of the Criminal Code. He further stressed that J.K., a central figure in the case, had not been questioned during the investigation. The applicant also contended that his defence rights had been breached since the defence had “neither seen nor heard” the audio and video recordings on which the indictment had been based.

On 30 April 2008 a three-judge panel of the Zagreb County Court returned the indictment to the State Attorney’s Office on the grounds that one count of the indictment, concerning the applicant’s alleged participation in the bribery of the President of the Fund, had been confusing. It accordingly instructed the State Attorney’s Office to submit an amended indictment consonant with that finding. The State Attorney’s Office complied with the order and submitted an amended indictment on 9 May 2008, following which the Zagreb County Court confirmed it.

On 15 October 2008 the president of the trial panel examined the case file of the special investigative operation. On the same day she commissioned a further expert report from the telecommunications expert M.Đ. ordering him to produce transcripts of the relevant recordings relating to two meetings between the applicant and J.K.

An order for further transcription of the recordings was made on 24 October 2008. This concerned the recordings of three meetings between the applicant, J.K. and several other individuals, and the sequences of the telephone conversations and text messages concerned.

On 7 November 2008 M.Đ. produced transcripts of the recordings indicated in the Zagreb County Court’s order of 15 October 2008 (see paragraph 33 above).

On 10 November 2008 the first hearing was held before the Zagreb County Court. At the hearing the trial bench forwarded the expert report of 7 November 2008 (see paragraph 35 above) to the defence. The applicant pleaded not guilty to the charges against him, contending that he had been entrapped by J.K., who was an agent provocateur. The defence lawyer of one of the co-accused contended that the defence had not been provided with the surveillance recordings and that those measures had been ordered contrary to the requirements of the relevant domestic law. The trial bench dismissed these arguments as unfounded and scheduled the examination of evidence.

On 17 November 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court’s order of 24 October 2008 (see paragraph 34 above).

At the hearings on 27 and 28 November 2008 the Zagreb County Court heard evidence from J.K., who explained that he had represented Russian investors in Croatia regarding their interest in the construction of luxury villas on the site of a former brick factory in the Zadar region. He had therefore contacted the Fund and the local authorities in Zadar in order to complete all the relevant administrative matters for the investment. J.K. stated that he had had several meetings with the applicant and that at one point the applicant had requested a bribe in order to ensure the realisation of the project. J.K. had reported that to the State Attorney’s Office and then he had consented to act as an informant. He further explained that he had given EUR 50,000 in cash to the applicant and that, at the applicant’s request, he had deposited a further EUR 150,000 in a notary public’s safe. It had been also agreed that J.K. would pay EUR 1,500,000 on completion of the project.

On 2 December 2008 the Zagreb County Court commissioned another expert report from M.Đ. concerning several particular sequences of the secret surveillance recordings.

On 9 December 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court’s order of 2 December 2008 (see paragraph 39 above).

The expert report was served on the defence at a hearing on 10 December 2008. At the same hearing the trial bench heard evidence from M.M. He explained that the relevant contacts with the applicant had been arranged and directed by J.K., and that he had not personally participated in any illegal transactions in the applicant’s favour.

At the same hearing the defence counsel reiterated their application for access to the secret surveillance recordings (see paragraphs 31 and 36 above). They argued that according to the available information there were in total 515 CD and 160 DVD recordings which had never been provided to the defence. In these circumstances, the defence counsel contended that they had not had an effective opportunity to prepare for the case. They also asked for access to all the recordings since it was possible that some of them contained exonerating information, which the defence could then submit as evidence.

The trial bench dismissed the application by the defence on the grounds that the recordings which were to be examined at the trial as evidence had been duly transcribed by an expert and that the relevant transcripts had been served on the defence. In the trial bench’s view, this allowed the defence sufficient time and facilities to prepare for the case as they would be able to raise all objections concerning the recordings after their examination at the trial. Moreover, the trial bench stressed that the sole purpose of the recordings was to examine them during the trial and that Article 155 § 1 of the Code of Criminal Procedure, although providing for the possibility of access to and copying of the case file, did not envisage the copying of CD and DVD material. The trial bench also stressed that the defence could have examined the relevant material in the court-house in the same manner as they had generally examined the case files.

On 10 December 2008 the defence counsel sent a joint statement to the Croatian Bar Association (Hrvatska odvjetnička komora) complaining that they had been unable to effectively carry out their tasks as defence lawyers since they had been denied access to the secret surveillance recordings. They also contended that the evidence had been hidden from the defence and that it had been impossible for them to identify whether certain recordings could exonerate their clients or whether there had been suggestions of unlawfulness in some of them.

At a hearing on 11 December 2008 the trial bench found that there were in total 212 CD and twenty-seven DVD recordings which had been provided to the court with the indictment of the accused. There were also ninety-eight CD recordings from the same secret surveillance operation but which concerned different persons and not the accused.

On 12 December 2008 another hearing was held before the Zagreb County Court at which the defence asked for an adjournment in order to examine the case file concerning the secret surveillance operation. The defence argued that they wanted to examine all the circumstances in which the secret surveillance had been ordered and conducted. The trial bench dismissed the request by the defence on the grounds that the case file concerning the secret surveillance order had been incorporated into the case file concerning the criminal proceedings at issue and could therefore have been consulted by the defence. The trial bench also reiterated its previous arguments concerning the reason for the dismissal of the application by the defence to obtain the copies of the CD and DVD material.

On 12 December 2008 the defence counsel sent a letter to the Zagreb County Court asking for access to and the possibility to examine the secret surveillance recordings. They stressed that the CD and DVD material had never been made available to the defence and that there were no technical means available in the court-house which would allow for the examination of the recordings by the defence. They also pointed out that because of the technical impossibility of examining the recordings in the court-house, the practice of the Zagreb County Court in several other cases had been to make copies of the CD and DVD recordings and to send them to the defence. In these circumstances, the defence argued that the Convention rights of the accused to effectively prepare their defence had been breached.

On 12 December 2008 the president of the trial panel commissioned another expert report from M.Đ. concerning several further secret surveillance recordings.

On 14 December 2008 defence counsel for one of the co-accused sent a letter to the President of the Zagreb County Court indicating that it had been impossible for the defence to obtain access to and to examine the secret surveillance recordings by any means whatsoever.

Further hearings before the Zagreb County Court were held on 15 and between 17 and 19 December 2008 at which the secret surveillance recordings were played back. The applicant argued that the recordings were incomplete and confusing and that there were discrepancies between the transcripts and the recordings. He contended that it was impossible for his counsel to work thoroughly since they had not had access to the recordings. The lead prosecutor also indicated that there were certain discrepancies between the transcripts and the recordings, which she then tried to clarify at the hearing. The trial court ordered the State Attorney’s Office to provide the relevant clarifications and it also commissioned a report from the expert M.Đ. in order to provide explanations concerning his particular findings.

Meanwhile, on 18 December 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court’s order of 12 December 2008 (see paragraph 48 above).

On 22 December 2008 the president of the trial panel commissioned another expert report from M.Đ. concerning several other secret surveillance recordings. The expert produced his additional report on 2 January 2009.

At the hearings between 12 and 14 January 2009 additional secret surveillance recordings were examined. The applicant argued that he had been entrapped and that the recordings were unlawful evidence.

Further hearings before the Zagreb County Court were held between 26 and 29 January; 11-13 and 16-17 February; 4-6 and 9-10 March 2009 at which the trial court heard witnesses and examined further secret surveillance recordings.

On 9 March 2009 the applicant asked the Zagreb County Court to again question the informant J.K. and to take further evidence concerning his activities in the Fund.

A hearing was held on 12 March 2009 where the trial bench heard further witnesses.

At a hearing on 16 March 2009 the State Attorney’s Office asked that further secret surveillance recordings be admitted into evidence and examined. The applicant contended that the recordings had been unlawfully obtained as the use of secret surveillance measures had been ordered contrary to the requirements of the relevant domestic law. The trial bench accepted the request of the State Attorney’s Office and commissioned an expert report from M.Đ., instructing him to provide transcripts of the recordings.

Further hearings were held on 17, 23-26 and 30 March 2009 at which the trial bench heard evidence from several witnesses.

On 30 March 2009 M.Đ. produced transcripts of the secret surveillance recordings related to the Zagreb County Court’s order of 16 March 2009 (see paragraph 57 above).

Further hearings were held on 15-17 and 20 April 2009 at which the trial bench heard further witnesses. The applicant contended that the initial contacts of J.K. and M.M. with the State Attorney’s Office showed that they had been prepared to act as agents provocateurs and that he had been entrapped into engaging in illegal activities. He therefore asked that the evidence obtained by the use of informants be excluded as unlawfully obtained. The trial bench dismissed the applicant’s arguments on the grounds that nothing suggested that he had been entrapped.

At the hearings between 22-24 and 27-28 April 2009 the trial bench questioned the accused. The applicant stated that he had been incited to engage in illegal activities by J.K. but he refused to answer any further questions on the matter.

On 29 April 2009 the State Attorney’s Office submitted an amended indictment specifying the charges against the accused on the basis of the evidence adduced at the trial. At a hearing on 5 May 2009 the applicant pleaded not guilty to the amended indictment. He reiterated his arguments that he had been entrapped by J.K. and that he had not taken any actions which he had not been entitled to take as vice-president of the Fund.

Further hearings were held between 8 and 12 May 2009 at which the trial bench heard the parties’ closing arguments.

On 15 May 2009 the Zagreb County Court delivered a judgment finding that the applicant, in his capacity as a public official as defined under Article 89(3) of the Criminal Code, had taken bribes (Article 347 § 1 of the Criminal Code), facilitated bribe-taking (Article 348 § 1 of the Criminal Code) and abused his power and authority (Article 337 §§ 1, 3 and 4 of the Criminal Code) in connection with M.M.’s investment project in the Zadar region, the privatisation of the hotels Ž. and P. and the privatisation of the company B. The court sentenced him to eleven years’ imprisonment. At the same time, it acquitted the applicant on charges of bribe-taking related to the privatisation of the company P.O. (see paragraph 29 above).

The Zagreb County Court explained that all the relevant facts concerning the circumstances of the case had been duly established and that therefore there was no reason for the examination of further evidence requested by the applicant.

As regards the application by the defence to obtain the secret surveillance recordings and a complaint of non-disclosure of certain recordings, the Zagreb County Court noted:

“With regard to the recordings which [the State Attorney’s Office] asked to be examined at the trial, an expert report was commissioned, that is to say, transcripts were prepared which were served on all the parties, the accused and their lawyers, who were thereby fully informed of the substance of the recordings submitted into evidence. In addition, this panel finds, that, with regard to the recordings which were to be examined at the trial, there was no obstacle to the defence lawyers examining [those recordings] in the court-house before the commencement of the trial.

With regard to the other conversations of the accused, these [recordings] were not submitted into evidence but the defence could have examined their substance by the examination of the written reports filed in the [special investigation case file] after the submission of the indictment.

This panel also considers that the recordings at issue were made solely for their examination at the trial and had they been provided to the parties, the court would not have had any legal basis at its disposal to prevent and prohibit the parties from reproducing [them] outside of the court[-house] before their examination at trial, and [the court would not have had any legal means] to prevent possible misuse of the recorded material.

This in particular concerns the recordings which were not submitted into evidence; that is to say [the recordings] which concern other individuals and not the accused. Since these recordings were not submitted into evidence, the application by the defence to obtain them is completely unfounded.

Furthermore, this panel has found that ... 212 CD and twenty-seven DVD recordings were given [to the court] whereas the remaining ninety-eight CD recordings concern individuals who had been under secret surveillance ... but were not [subsequently indicted].

Moreover, as was noted above, the defence had knowledge of the substance of the material submitted into evidence and they had no right to examine material which does not concern these proceedings; that is to say [material which concerns] individuals who were not indicted in these criminal proceedings ...

This is because section 42(7) of the Office for the Suppression of Corruption and Organised Crime Act provides that if within six months following the termination of a secret surveillance operation criminal proceedings have not been instituted against the [individual under surveillance], all the material collected [during the operation] must be destroyed.

It is clear that, since criminal proceedings were not instituted against these individuals, the recordings at issue are still confidential and should have been destroyed; they could not be and were not evidence in these criminal proceedings ...

If these recordings were put at the disposal of the defence, that would amount to a breach of the above-cited provisions of law, particularly because [the recordings constitute] confidential material concerning individuals who are not under indictment.

Moreover, Article 35 of the Constitution guarantees respect for the private life of every individual, and the court is obliged to act under the Constitution ..., so if it provided the defence with the recordings concerning other individuals ... that would amount to breach of the above-cited provision of the Constitution ...”

As to the applicant’s plea of entrapment, the Zagreb County Court noted:

“... This panel finds that [the evidence obtained by the use of informants] is not unlawful evidence because it was obtained on the basis of an investigating judge’s orders. The substance of the adduced evidence and the examined recordings do not show that there was incitement by the informant ... as was further demonstrated.”

With regard to the charges against the applicant and the evidence obtained by the use of informants, the Zagreb County Court extensively examined the secret surveillance recordings. It in particular analysed the recordings concerning a meeting on 3 April 2007 where the applicant had indicated to J.K. that a deposit should be made with regard to the investment and where he had also assured J.K. that the project would pass the procedure. During the conversation the applicant had explained to J.K. that it was usual to remunerate for lobbying and he had further stated the following:

“However, for [the investor], these [things], this information, this access and the [action] which will be taken while the project is [in the pipeline] – for this lobbying ... that is worth ... what I told you the last time. And he can do it, that is fifty thousand euros ... for them that is for a drink, for this company ... That is three or four [glasses of] wine compared to [our other possibilities]. So that’s that and then, then we can make a deposit as you said. After that, if the decision goes through something ... is to be given to me, that is, for him... let’s say one hundred thousand euros more or less when the whole thing goes through. Because on an investment of twenty-two million euros to give one hundred thousand ... for him that would not be even 2% ... I would be overly modest if that would be so, you understand [sic].”

The applicant challenged the first-instance judgment by lodging an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske). He contended that he had been entrapped and unlawfully and unjustifiably placed under secret surveillance. He pointed out in particular that the secret surveillance orders had not been properly reasoned and had been issued under the Code of Criminal Procedure and not the Office for the Suppression of Corruption and Organised Crime Act (hereinafter “the OSCOC Act”). He also complained that the relevant evidence had not been disclosed to the defence, and that the first-instance court had erred in the legal qualification of his position as falling under the term “public official” under Article 89 § 3 of the Criminal Code.

On 17 February 2010 the Supreme Court quashed the first-instance judgment in respect of the charges of bribery of the President of the Fund related to M.M.’s investment project in the Zadar region and ordered a retrial. At the same time, it upheld the applicant’s conviction on charges of bribe-taking under Article 347 § 1 of the Criminal Code and abuse of power and authority under Article 337 § 4 of the Criminal Code.

As to the applicant’s complaint concerning the unlawfulness of the secret surveillance measures, the Supreme Court noted:

“The first complaint to the effect that the results of the special investigative measures are unlawfully obtained evidence because the investigating judge’s orders were made under the Code of Criminal Procedure and not the [OSCOC Act] is ill-founded.

It is true that the [OSCOC Act] is lex specialis, but the appellants failed to observe that section 41(1) of that Act provides that the investigating judge may order, ‘save for the measures under Article 180 of the Code of Criminal Procedure’, two additional measures which are not provided under the Code of Criminal Procedure, namely the use of simulated business services and simulated business contracts. The special investigative measures ... applied in the case at issue are not provided for under the [OSCOC Act] and therefore the [investigating judge’s] orders could have been based only on the Code of Criminal Procedure. Had the investigating judge authorised any of the measures provided for in section 41(1) of the [OSCOC Act], he would have been obliged to rely on that Act.

The further arguments that the results of the special investigative measures are unlawfully obtained evidence because the investigating judge, when making the orders, around thirty of them, failed to comply with the requirements set out in the case-law of the Constitutional Court [no. U-III-857/2008] to the effect that the orders must be sufficiently reasoned, are also ill-founded ...

This court considers that mere flaws in the reasoning of the secret surveillance orders do not make the results of such measures unlawfully obtained evidence. This is because Article 9 § 2 of the Code of Criminal Procedure provides that unlawfully obtained evidence is evidence which has been obtained in breach of the Code of Criminal Procedure, and is expressly provided for by the [Code of Criminal Procedure].

Article 182 § 6 of the Code of Criminal Procedure provides that evidence obtained by the use of secret surveillance, under Article 180 of the Code of Criminal Procedure, cannot be used as evidence in criminal proceedings only [in a case where] it is unlawful. That is to say, evidence which is obtained without a warrant issued by the investigating judge, or if the [police] acted contrary to Articles 180 and 182 § 2 of the Code of Criminal Procedure, but [this does not concern] the evidence obtained contrary to Article 182 § 1 of the Code of Criminal Procedure, which provides that the order [authorising special investigative measures] should, inter alia, refer to the facts which warrant the application of such measures, specifically that there is a reasonable suspicion that an individual has committed a criminal offence and that the investigation could not have been carried out by other means or that [to do so] would have been extremely difficult.

Article 182 § 6 of the Code of Criminal Procedure is compatible with the legal nature of [special investigation] orders. Such orders [made by the investigating judge] are transmitted to the State Attorney, who is authorised to request them, and they are executed by the police. There is no legal avenue [to challenge] such orders since the [State Attorney] has no legal interest in challenging them. The police were therefore, moreover, not allowed to challenge the orders. If the argument of the appellants that secret surveillance orders would be unlawful when they are not sufficiently reasoned were to be accepted, it would call into doubt the [use of] secret surveillance measures, particularly in situations where all other legal conditions had been met but the order was merely not sufficiently reasoned, which would be absolutely unacceptable.”

As to the applicant’s plea of entrapment, the Supreme Court held:

“The complaints ... that the informants J.K. and M.M. had incited the accused were raised by all the accused during the first-instance proceedings, and the [first-instance] court correctly found that [this claim] was not clear from the reviewed material. The same complaints are now raised by the accused, Matanović, P. and Pa., and this court considers that their complaints are ill-founded.

The witnesses M.M. and J.K. testified that they had become informants after certain accused asked them for bribes [for carrying out the investment]. [M.]M. consented to act as an informant on 2 March and J.K. on 3 April 2007. After that the activity of gathering evidence commenced.

The offence of bribe-taking, which is the subject matter of these proceedings, is committed [just] by making a request for a gift or benefit, and since the witnesses contacted the State Attorney after they had been asked to make a payment to the accused ... the plea of incitement cannot be accepted.”

With respect to the complaint about the non-disclosure of evidence, the Supreme Court noted:

“The argument that the rights of the defence were violated by the non-disclosure of 515 CD and 177 DVD recordings, which were the result of the secret surveillance operation, cannot be accepted ...

It is undisputed that at the hearing held on 11 December 2008 the trial court established the exact number of recordings and found that 212 CD and twenty-seven DVD recordings had been submitted with the indictment, while it was found that the [special investigation] case file contained a further ninety-eight CD recordings concerning the secret surveillance of other persons who are not accused in the proceedings at issue. It is also not disputed that the State Attorney asked that eighteen CD and twenty-three DVD recordings be examined as evidence, and that the telecommunications expert made transcripts of these recordings, which were then forwarded to the parties. It is further undisputed that the recordings were reviewed at a hearing, that the accused and their lawyers were present, and that they made their objections concerning the transcripts and not concerning the recordings. It is to be noted that the transcripts are not evidence on which a conviction can be based but are only of auxiliary technical assistance. The only evidence on which a conviction can be based is the recordings, in respect of which no objections were made.

Therefore, the defence had access to all the evidence from the secret surveillance, and the trial court allowed them to comment on the evidence adduced and they exercised that right.

The trial court rightly held that, given that the defence had been informed of the substance of the evidence adduced, they had no right to have the other material which did not concern the accused in the proceedings at issue disclosed. The trial court also rightly pointed to the provision of section 42(7) of the OSCOC Act, which provides that the material obtained by the use of secret surveillance shall be destroyed if, within the six-month time-limit, criminal proceedings have not been instituted against the persons under surveillance ...

Whether the State Attorney, when he was making his selection of the secret surveillance material [to be submitted to the court], excluded certain evidence in favour of the accused ... is of no relevance to the lawfulness of the proceedings at issue. Under the relevant provisions of the Code of Criminal Procedure the State Attorney adduces only relevant evidence concerning the substance of the charges, and therefore he is in a position to make a selection of the evidence.”

As regards the applicant’s complaint of the erroneous legal qualification of his position, the Supreme Court noted that the applicant’s position in the Fund had not been one of a “public official” but rather of a “responsible person” under Article 89 §§ 6 and 7 of the Criminal Code. However, in the Supreme Court’s view, this did not render the conviction unlawful. In this connection the Supreme Court explained:

“... [T]he omission at issue had no bearing on the legal qualification of the offence because the criminal offence under Articles 347 § 1 and 337 § 4 of the Criminal Code can be committed by public officials and responsible persons when they take the actions for which the court found ... Matanović guilty ...”

On 20 April 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his arguments of entrapment, the unlawfulness of the secret surveillance orders, the lack of access to evidence and the erroneous legal qualification of his conviction. He relied, inter alia, on Articles 29 § 1, 31, 35 and 36 of the Constitution and Articles 6 §§ 1 and 3 (b) and 8 of the Convention. The applicant also complained that the statements of various public officials breached of his right to the presumption of innocence.

On 30 June 2011 the Constitutional Court, relying on the Court’s case-law in Peša v. Croatia (no. 40523/08, 8 April 2010) found a violation of the applicant’s right to the presumption of innocence but dismissed his other complaints, endorsing the findings and reasoning of the Supreme Court.

Meanwhile, on 19 September 2011, following a retrial in respect of the charges of bribery of the President of the Fund related to M.M.’s investment project in the Zadar region (see paragraph 70 above), the Zagreb County Court acquitted the applicant, and this judgment was confirmed by the Supreme Court on 18 January 2012.

On 1 June 2012 the applicant, represented by I.F., a lawyer, lodged an application for the reopening of the proceedings before the Zagreb County Court. He relied, in particular, on a document allegedly issued by the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske) on 3 March 1993 indicating that J.K. had worked as a police officer in the period between 1974 and 1993. Together with the document in question the applicant submitted a written statement by A.P., a lawyer, indicating that the document had been “accidently” left in her office by M.M. some time in May 2007. The applicant contended that this shed light on the actions of J.K., who had acted as an agent provocateur in his case.

On 24 January 2014 the Zagreb County Court dismissed the applicant’s application for the reopening of the proceedings on the grounds that, even if the document submitted by the applicant suggested that J.K. had worked as a police officer, there was no doubt that he had not been a police officer at the moment when he had acted as an informant in the applicant’s case. The Zagreb County Court also considered that there were no new relevant facts warranting the reopening of the proceedings.

The applicant appealed against the above decision to the Supreme Court on 13 February 2014; it appears that the proceedings are still pending.


Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano

The applicant, Mr Ljubinko Mitranić, is a citizen of Bosnia and Herzegovina, who was born in 1936 and lives in Banja Luka. He was represented before the Court by Mr S. Ivetić, a lawyer practising in Banja Luka.

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

On 13 April 1992 the applicant’s brother, Vladimir Mitranić, was killed in his house in Livno together with his friend K.P.

On 14 April 1992 the investigating judge of the then Livno First Instance Court conducted an on-site investigation in the presence of criminal and medical experts and two police officers. Some members of the family were also present.

It would appear that no other procedural steps were taken thereafter.

On 17 June 1995 the applicant wrote to the Livno Cantonal Prosecutor, to the Livno Cantonal Court, to the Cantonal Ministry of Interior and to the International Police Task Forces (IPTF) in Bosnia and Herzegovina, enquiring whether the perpetrators had been identified or arrested. It would appear that he received no answer.

On 5 December 2005 the applicant lodged a constitutional appeal complaining about the lack of an effective investigation into the killing of his brother. On 14 March 2006 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) joined the applicant’s case to 35 other similar cases (some of which concerned missing persons and others, like the applicant’s, war time killings) and found a violation of Articles 3 and 8 of the Convention. It ordered the competent authorities to conduct effective investigations into the relevant disappearances and murders without delay and to inform the relatives of the results (decision no. AP-1248/05).

On 5 February and 22 October 2007 the applicant informed the Constitutional Court that, following its decision of 14 March 2006, no procedural steps had been taken with a view to investigate his brother’s murder.

On 23 May 2007 the Constitutional Court adopted a procedural decision (a decision which merely acknowledges the fact of non-enforcement and which is transferred to the State Prosecutor for further, if any, action), to the effect that its decision of 14 March 2006 had not been fully enforced as regards, in particular, the applicant’s and several other cases.

On 19 February 2008, following the applicant’s enquiry, the Livno Cantonal Prosecutor informed him that the case file (the photographs taken at the crime scene, the record of the on-site investigation and other material gathered during the on-site investigation) had been transferred to the State Prosecutor because the case concerned a war crime. It is not clear when the transfer took place.

On 11 June 2008 the applicant was invited to provide information concerning war crimes committed in the territory of the Livno municipality to the State Prosecutor on 23 June 2008.

On 1 July 2008, following the applicant’s enquiry, the State Prosecutor informed him that all the necessary steps were being taken with a view to discovering those involved in the murder of his brother.

The 2003 Criminal Code (Official Gazette of Bosnia and Herzegovina nos. 3/03, 37/03, 32/03, 54/04, 61/04, 30/05, 53/06, 55/06 32/07 and 8/10) entered into force on 1 March 2003. The relevant part of Article 173 of the Code provides as follows:

“ 1. Whoever in violation of rules of international law in time of war, armed conflict or occupation, orders or perpetrates any of the following acts:

a) Attack on civilian population, settlement, individual civilians or persons unable to fight, which results in the death, grave bodily injuries or serious damaging of people’s health ;

b) Killings...

shall be punished by imprisonment for a term not less than ten years or by long-term imprisonment”.


Aleš Pejchal;Armen Harutyunyan;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Mahoney;Robert Spano

The applicant, Mr Veikko Eklund, is a Finnish national who was born in 1947 and lives in Helsinki. He was represented before the Court by Mr Matti Jousinen, a lawyer practising in Helsinki.

The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

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

Apparently in 1997 the applicant was subject to an enforcement inquiry (ulosottoselvitys, utsökningsutredning) in which he had to provide information on his assets, debts and income. Another enforcement inquiry was carried out on 9 February 2004.

On 10 March 2008 the applicant was charged on two counts of making a false statement in court (perätön lausuma tuomioistuimessa, osann utsaga inför domstol) as he had, inter alia, given false information in 2006 and 2007 before the domestic courts in a matter in which he was heard as a witness.

On 14 May 2008 the Vantaa District Court (käräjäoikeus, tingsrätten) convicted the applicant as charged and imposed a suspended prison sentence of five months.

The applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten).

On 18 June 2010 the Helsinki Appeal Court upheld the District Court judgment. Justice P.V. was part of the composition of the Appeal Court. The Appeal Court judgment became final as no appeal was lodged.

On 17 January 2011 charges were pressed against the applicant who was accused, inter alia, of aggravated debtor’s fraud (törkeä velallisen petos, grovt gäldenärsbedrägeri) for not having declared, during the enforcement inquiry on 9 February 2004, the real estate which was used as his principal residence but which was officially owned by a limited liability company, all of whose shares were owned by the applicant’s children.

On 11 January 2012 the District Court convicted the applicant of, inter alia, aggravated debtor’s fraud for failing to declare the above real estate on 9 February 2004 and sentenced him to a total of two years and ten months in prison. The court found that the applicant had been obliged to declare the property concerned and since he had not done so during the inquiry on 9 February 2004, he was guilty of concealing his property.

By letter dated 9 February 2012 the applicant appealed to the Appeal Court, requesting that the District Court judgment be quashed. He alleged in particular that the District Court had not explained why, on 9 February 2004 during the enforcement inquiry, he should have declared the real estate as his personal property when it was owned by a limited liability company. The company had obtained legal confirmation of ownership (lainhuuto, lagfart) and had been officially entered in the land register as the owner of the real estate. The property rights of the company or its shareholders were never even put into question. The applicant claimed that he had given truthful information on 9 February 2004.

On 11 September 2012 the oral hearing started before the Appeal Court and the names of the justices sitting in the composition became known to the parties. The oral hearing continued on 12, 14, 24 and 25 September 2012.

On 6 November 2012 the Appeal Court upheld the District Court judgment as far as the count of aggravated debtor’s fraud was concerned. It agreed with the lower instance that during the enforcement inquiry on 9 February 2004 the applicant had been obliged to declare the property concerned and since he had not done so the conviction should be upheld. Concerning any possible issue of self-incrimination, the Appeal Court found it established that on 9 February 2004, during the enforcement inquiry, the applicant had not been charged with any crime. He had not therefore had any right to remain silent on 9 February 2004 but should have declared the real estate. This judgment was delivered by the Appeal Court composition which included Justice P.V.

By letter dated 18 December 2012 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. He also referred to the prohibition on self-incrimination and claimed that, when making his statement on 9 February 2004, it could not be ruled out that he could have been accused of debtor’s fraud, had he given any information. Moreover, he claimed that Justice P.V. had been biased as he had been part of the Appeal Court composition also on 18 June 2010 when the applicant had been convicted of making a false statement in court.

On 11 March 2013 the Supreme Court refused the applicant leave to appeal.

By letter dated 20 August 2013 the applicant lodged an extraordinary appeal with the Supreme Court, requesting that the Appeal Court judgment of 6 November 2012 be annulled and the proceedings reopened due to the fact that the Appeal Court had been biased and the prohibition of selfincrimination had been violated.

On 7 May 2014 the Supreme Court refused the applicant’s request for annulment and reopening.

At the material time, the provisions on enforcement inquiry were included in Chapter 3 of the Enforcement Act (ulosottolaki, utsökningslagen, Act no. 37/1895, as amended by Act no. 679/2003). These provisions stated that, for the purpose of obtaining the necessary information for enforcement, the Bailiff could carry out an enforcement inquiry. For the enforcement inquiry, the debtor had to provide information on his assets, debts and income, as well as his or her address and the name of his or her employer. He also had to give information about the whereabouts of any object or document which, by a judgment, he had been ordered to give to another person or which by law had to be given to the enforcement authority.

In the enforcement inquiry, the debtor had to provide such information as was necessary to establish whether property disposed of and related transactions could be recovered for the purposes of enforcement. Where requested by the Bailiff, the debtor in the enforcement inquiry had to prepare a list of assets, debts and income, or verify and confirm by signature such a list prepared by the Bailiff on the basis of information given by the debtor.

If the debtor or his or her representative failed to comply with their obligations, the Bailiff could order the debtor to fulfil the obligations within a specified time-limit under threat of an administrative fine. Payment of the administrative fine was ordered if the obligations had not been fulfilled or had been contravened without a valid reason.

As from 1 March 2004 Chapter 3, section 73, of the Enforcement Act contained also a provision prohibiting the Bailiff from transmitting incriminating information to other authorities. This provision read as follows:

“The Bailiff must not disclose information which has to a substantial extent been received from:

2) the debtor, when asked about a fact referred to in paragraphs 6 to 8 of section 52, if the answer indicates that the debtor may have committed an offence in a context other than the enforcement procedure, and the disclosure of the information entails a risk of charges for the debtor;

The Enforcement Act was replaced by the Code of Enforcement (ulosottokaari, utsökningsbalken, Act no. 705/2007) with effect from 1 January 2008. The contents of the relevant provisions essentially remained the same.

Concealment of property and provision of incorrect information in an enforcement inquiry are punishable offences under the Penal Code (rikoslaki, strafflagen, Act no. 39/1889, as amended by Act no. 769/1990).


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

Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in 1967 and is currently detained in Łódź Remand Centre.

On 29 November 2006 the applicant was arrested on suspicion of committing a number of offences in an armed organised criminal group.

On 6 December 2006 the Łódź District Court (Sąd Rejonowy) remanded the applicant in custody until 28 February 2007. The court relied on a strong suspicion that the applicant had committed the offences he had been accused of. The risk of the applicant fleeing was also taken into account as a ‘wanted’ notice (list gończy) against him had been issued in October 2006. At that time he had not been residing at his permanent address and his whereabouts had not been established. The court further anticipated a heavy prison sentence to be imposed on the applicant if convicted.

The applicant’s pre-trial detention was extended by the Łódź Regional Court (Sąd Okręgowy) on 27 February 2007, 26 June 2007 and on 19 September 2007. Subsequently, it was extended by the Łódź Court of Appeal (Sąd Apelacyjny) on 21 November 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008.

In their decisions to extend the applicant’s pre-trial detention the courts relied on a reasonable suspicion, supported by evidence given by witnesses and other members of the criminal group, that the applicant had committed the offences in question. The courts further emphasised the risk of the applicant fleeing or obstructing the proceedings and the likelihood of a heavy prison sentence being imposed on him if convicted. The domestic courts attached importance to the complex character of the case, to the complex structure of the criminal group and the number of suspects involved and the necessity of collecting additional evidence for the inclusion in the already voluminous case file.

On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and drug-trafficking committed in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court.

On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain.

In their decisions the courts repeated the grounds previously given for the applicant’s detention.

Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place.

The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and due to problems with sound system in the court room.

In May 2010 the Regional Court gave a severance order and decided to determine charges against two co-accused separately.

The bill of indictment was only finally read out to the defendants at the hearing held on 27 May 2010.

At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the judge lodged by one of the co-accused.

In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges.

Meanwhile, on 17 August 2011 the Łódź Regional Court ordered that the applicant’s detention on remand be lifted on condition that he paid the bail in the sum of 20,000 Polish zlotys (PLN) within the period of two weeks from the date of the decision.

On the same date the applicant was released on bail and police supervision. He was also prohibited from leaving the country.

The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses.

Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of the presiding judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties.

Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants.

The criminal proceedings against the applicant are still pending before the first-instance court.

On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and PLN 20,000 in compensation.

On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź Regional Court had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation.


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

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of civil proceedings. Some applicants also raised other complaints under the provisions of the Convention.


The applicant was born in 1966 and lives in Budapest.

On 30 March 2004 the applicant was detained on suspicion of misuse of illegal pornographic material.

In the ensuing criminal proceedings, the Budapest IV/XV District Court acquitted the applicant on 9 April 2008, after holding three hearings.

On appeal, the Budapest Regional Court upheld the acquittal on 17 March 2009.


No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom to choose residence)

András Sajó;Angelika Nußberger;Branko Lubarda;Egbert Myjer;Egidijus Kūris;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Iulia Motoc;Johannes Silvis;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer;Georges Ravarani;Pere Pastor Vilanova

The applicant was born in 1971 and now lives in Vlaardingen.

On 25 May 2005 the applicant moved to the city of Rotterdam. She took up residence in rented property at the address A. Street 6b. This address is located in the Tarwewijk district in South Rotterdam. The applicant had previously resided outside the Rotterdam Metropolitan Region (Stadsregio Rotterdam).

The applicant stated that no later than early 2007 the owner of the property asked her and her two young children to vacate the property as he wished to renovate it for his own use. He offered to let the applicant a different property at the address B. Street 72A, also in the Tarwewijk area. She further stated that, since it comprised three rooms and a garden, the property was far more suitable for her and her children than her A. Street dwelling which comprised a single room. However, whether the A. Street property was actually renovated or required renovation at all remains in dispute (see paragraph 83 below).

In the meantime on 13 June 2006, Tarwewijk had been designated under the Inner City Problems (Special Measures) Act (Wet bijzondere maatregelen grootstedelijke problematiek, see paragraph 21 below) as an area where only those households could move into housing who had been granted a housing permit (huisvestingsvergunning) to do so in relation to an identified property. Accordingly, on 8 March 2007 the applicant lodged a request for a housing permit with the Burgomaster and Aldermen (burgemeester en wethouders) of Rotterdam in order to be permitted to move to B. Street 72A.

On 19 March 2007 the Burgomaster and Aldermen gave a decision refusing such a permit. They found it established that the applicant did not satisfy the statutory requirements for a housing permit (see paragraph 21 below) on the basis that she had not been resident in the Rotterdam Metropolitan Region for six years immediately preceding the introduction of her request. Moreover, since she was dependent on social-security benefits under the Work and Social Assistance Act (Wet Werk en Bijstand), she also did not meet the income requirement that would have qualified her for an exemption from the residence requirement.

The applicant, who was represented throughout the domestic proceedings and before the Court by the same lawyer, lodged an objection (bezwaarschrift) with the Burgomaster and Aldermen.

On 15 June 2007 the Burgomaster and Aldermen gave a decision dismissing the applicant’s objection. Adopting as their own an advisory opinion by the Objections Advisory Committee (Algemene bezwaarschriftencommissie), they referred to the fact that housing permits were intended to be an instrument to ensure the balanced and equitable distribution of housing and to the possibility for the applicant to move to a dwelling not situated in a “hotspot” area.

The applicant lodged an appeal (beroep) with the Rotterdam Regional Court (rechtbank). In so far as relevant to the case, she argued that the hardship clause ought to have been applied. She relied on Article 2 of Protocol No. 4 of the Convention and Article 12 of the 1966 International Covenant on Civil and Political Rights. She also submitted that the requirement of six years’ residence in the Rotterdam Metropolitan Area, as applied to her, constituted discrimination based on income status contrary to Article 26 of the International Covenant on Civil and Political Rights.

The Regional Court gave a decision dismissing the applicant’s appeal on 4 April 2008 (ECLI:NL:RBROT:2008:BD0270). In so far as relevant to the case before the Court, its reasoning was as follows:

“Section 8(1) of the Inner City Problems (Special Measures) Act [see paragraph 21 below] provides for the possibility of temporary restrictions on freedom of residence in areas to be indicated by the Minister [sc. the Minister of Housing, Spatial Planning and the Environment (Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer)]. The aim of these restrictions is to reverse a process of overburdening and decreasing quality of life (leefkwaliteit), particularly by striving towards districts whose composition is more mixed from a socioeconomic point of view. The restrictions are also intended actively to counteract the existing segregation of incomes throughout the city through the regulation of the supply of housing in certain districts and in so doing improve the quality of life of the inhabitants of those districts (Parliamentary Documents, Lower House of Parliament (Kamerstukken II) 2004/2005, 30 091, no. 3 [i.e. the Explanatory Memorandum (Memorie van Toelichting), see paragraph 31 below], pages 11-13). In view of the aims of the law, as set out, these temporary restrictions on the freedom to choose one’s residence cannot be found not to be justified by the general interest in a democratic society. Nor can it be found that, given the considerable extent of the problems noted in certain districts in Rotterdam, the said restrictions are not necessary for the maintenance of ordre public. The Regional Court takes the view that the legislature has sufficiently shown that in those districts the ‘limits of the capacity for absorption’ have been reached as regards care and support for the socioeconomically underprivileged and that moreover in those districts there is a concentration of underprivileged individuals in deprived districts as well as considerable dissatisfaction among the population about inappropriate behaviour, nuisance and crime.

As regards the violation of Article 26 of the International Covenant on Civil and Political Rights posited by [the applicant], the Regional Court takes the view that sufficient reasons have been given (Parliamentary Documents, Lower House of Parliament, 2004/2005, 30 091, no. 3, pp. 18-20) that in so far as these measures constitute an indirect distinction, this distinction has sufficient objective justification.

The Regional Court observes in this connection that the restrictions based on the Inner City Problems (Special Measures) Act imposed by the 2003 Housing By-law [of the Municipality of Rotterdam] (Huisvestingsverordening 2003) constitute only a minimal and temporary restriction on the freedom to choose one’s residence. In so finding, the Regional Court notes that it does not appear – and [the applicant] has not made out a case – that [she] cannot obtain fitting housing elsewhere in the Municipality or the Region.”

The applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). As she had done before the Regional Court, she invoked Article 2 of Protocol No. 4 to the Convention and Articles 12 and 26 of the International Covenant on Civil and Political Rights.

On 4 February 2009 the Administrative Jurisdiction Division gave a decision (ECLI:NL:RVS:2009:BH1845) dismissing the applicant’s further appeal. In so far as relevant to the case before the Court, its reasoning included the following:

“2.3.2. The right freely to choose one’s residence, provided by Article 2 of Protocol No. 4, may, under the fourth paragraph, be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society. The right of everyone freely to choose one’s residence, laid down in Article 12 § 1 of the International Covenant on Civil and Political Rights, shall not be subject to any restrictions except those which are provided by law and are necessary to protect public order. The Administrative Jurisdiction Division observes in this connection that the concept ‘public order’ in the Covenant includes, in addition to the prevention of disorder, public safety, the prevention of crime and all universally accepted fundamental principles corresponding to human rights on which a democratic society is based. The arrangement set out in section 2.6(2) of the 2003 Housing By-law constitutes a restriction on Garib’s free choice of a place of residence. It is not disputed that this restriction is provided for by law and is inspired by the interest that society has in [ensuring] the quality of life in districts of major cities. The Administrative Jurisdiction Division finds that, considering that the area in issue is one designated under section 5 of the Inner City Problems (Special Measures) Act, the Burgomaster and Aldermen were entitled to take the view that the restriction [on freedom to choose one’s residence] is justified in the general interest in a democratic society within the meaning of Article 12 § 3 of the 1966 International Covenant on Civil and Political Rights. The area in issue is a so-called ‘hotspot’, where, as has not been disputed, the quality of life is under threat. The restriction resulting from section 2.6(2) of the 2003 Housing By-law is of a temporary nature, namely for up to six years. It is not established that the supply of housing outside the areas designated by the Minister in the Rotterdam Metropolitan Region is insufficient. What [the applicant] has stated about waiting times does not lead the Administrative Jurisdiction Division to reach a different finding. The Administrative Jurisdiction Division further takes into account that pursuant to section 7(1), introductory sentence and under b of the Inner City Problems (Special Measures) Act, the Minister is empowered to rescind the designation of the area if it turns out that persons seeking housing do not have sufficient possibility of finding suitable housing within the region in which the municipality is situated. In view of these facts and circumstances the Administrative Jurisdiction Division finds that the restriction in issue is not contrary to the requirements of a pressing social need and proportionality. The Administrative Jurisdiction Division therefore finds, as the Regional Court did, that section 2.6(2) of the 2003 Housing By-law does not violate Article 2 of Protocol No. 4 of the Convention or Article 12 of the 1966 International Covenant on Civil and Political Rights.

2.3.3. As to Garib’s argument that section 2.6(2) of the 2003 Housing By-law violates Article 26, first sentence, of the International Covenant on Civil and Political Rights because it entails an indirect distinction, the Administrative Jurisdiction Division holds as follows. Since a relatively large number of people are resident in the areas covered by that section who are dependent on social-security benefits under the Work and Social Assistance Act, section 2.6(2) can lead to an indirect distinction being made. Such a distinction is permitted if there is an objective and reasonable justification for that distinction and the difference in treatment that flows from it. Whether such is the case must be considered in the light of the question whether the making of the distinction serves a legitimate aim and is proportionate to the aim sought to be achieved, i.e. is a suitable means to achieve that aim and the aim cannot be achieved by other, less intrusive means. Section 2.6(2) of the 2003 Housing By-law is intended by the Local Council (gemeenteraad) to effect differentiation in the districts in order to increase the quality of life. Given the seriousness of the problems the solution thereof must be considered a legitimate aim. The income requirement set by section 2.6(2) of the 2003 Housing By-law is the final measure of a package of measures (pakket van maatregelen) introduced to meet that goal. It has not, or not sufficiently, been disputed that the other measures in themselves produce insufficient effect. Considering the fact that the measure is limited in time and it does not appear that Garib cannot obtain suitable housing elsewhere in the Municipality or the Region, the Administrative Jurisdiction Division agrees with the Regional Court that the Burgomaster and Aldermen, taking into account the fact that the legislature created the possibility to make use of this means by statute and explicitly and the legislature equally weighed the need to open this possibility in addition to the existing possibilities, had good reasons to take the view that, in addition to the measures already in existence, this measure too is necessary and proportionate.

2.3.4. Finally, Garib has submitted that the Burgomaster and Aldermen were wrong to find that the particular circumstances on which she relied did not constitute grounds to apply the hardship clauses. These particular circumstances are that her present dwelling is too small for her and her two children and that its poor state of repair causes her inconvenience (voor overlast zorgt). It is the policy of the Burgomaster and Aldermen to apply the hardship clauses only in untenable situations, for example in cases of violence. Like the Regional Court, the Administrative Jurisdiction Division takes the view that the Burgomaster and Aldermen were entitled to consider that there is no such situation in the present case.”

According to figures published by the Municipality of Rotterdam, there were 289,779 dwellings in the municipality in 2010, of which 5,954 or 2.05% were situated in Tarwewijk. The total number of dwellings in the four districts designated in 2006 – Carnisse, Hillesluis, Oud-Charlois and Tarwewijk – was 23,449, i.e. 8.01% of the total for the municipality. With the addition of Bloemhof (designated on 1 July 2010), the total came to 29,759 or 10.27%.

On 1 January 2010 the population of the municipality of Rotterdam stood at 587,161. Of these, 11,690 or 1.99% were resident in Tarwewijk. The total number of inhabitants of the four districts designated in 2006 was 45,654, i.e. 7.77% of the total for the municipality. With the addition of Bloemhof, the total for the designated districts came to 59,367 or 10.11%.

An evaluation report, commissioned by Rotterdam’s own City Construction and Housing Service (Dienst Stedebouw en Volkshuisvesting) after the first year following the introduction of the housing permit in Rotterdam, was published on 6 December 2007 by the Centre for Research and Statistics (Centrum voor Onderzoek en Statistiek), a research and advice bureau collecting statistical data and carrying out research relevant to developments in Rotterdam in areas including demographics, the economy and employment (hereafter “the 2007 evaluation report”).

The report noted a reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act in “hotspot” areas, though not, of course, a complete stop because Rotterdam residents of six years’ standing were not prevented from moving there.

From July 2006 until the end of July 2007 there had been 2,835 requests for a housing permit. Of these, 2,240 had been granted; 184 had been refused; 16 had been rejected as incomplete; and 395 were still pending. The hardship clause (section 8(2) of the Inner City Problems (Special Measures) Act) had been applied in 38 cases.

Three-quarters of the housing permits granted concerned housing let by private landlords; the remainder – 519 – had been granted through the intermediary of social housing bodies (woningcorporaties). The latter selected their tenants with due regard to the official requirements, so that refusals of housing permits with regard to social housing were unheard of.

Of the persons refused a housing permit, 73 (40% of all those who met with a refusal) were known to have found housing elsewhere relatively quickly.

The 2007 evaluation report was presented to the Local Council on 15 January 2008. On 24 April 2008 the Local Council voted to maintain the housing permit system as was and have a new evaluation report commissioned for the end of 2009.

A second evaluation report, also commissioned by Rotterdam’s City Construction and Housing Service, was published by the Centre for Research and Statistics on 27 November 2009. It covered the period from July 2006 until July 2009 (“the 2009 evaluation report”), during which the events complained of took place.

During this period, the social housing bodies had let 1,712 dwellings in the areas concerned. Since the social housing bodies could only accept tenants who qualified for a housing permit, no applications for such a permit had been rejected in this group.

Out of 6,469 applications for a housing permit relating to privatelylet housing, 4,980 had been accepted (77%); 342 had been refused (5%); and 296 had been pending at the beginning of July 2009. Examination of a further 851 had been discontinued without a decision being taken (13%), generally because these applications had been withdrawn or abandoned; the assumption was that many of these applications would in any case have been rejected. It followed, therefore, that if the pending cases were not taken into account, approximately one-fifth of this category of applications had been either refused or not pursued to a conclusion.

The reason to reject an application for a housing permit had been related to the income requirement in 63% of cases, sometimes in combination with another ground for rejection; failure to meet the income requirement had been the sole such reason in 56% of cases.

Of 342 persons refused a housing permit, some two-thirds were known to have managed to find housing elsewhere, either in Rotterdam (47%) or elsewhere in the Netherlands (21%).

The hardship clause had been applied 185 times – expressed as a percentage of applications relating to privately-let housing, 3% of the total. These had been cases of preventing squatters from taking over housing left empty (antikraak), illegal immigrants whose situation had been regularised by a general measure (generaal pardon), assisted living arrangements for vulnerable individuals (begeleid wonen), cooperative living arrangements (woongroepen), start-up enterprises, the re-housing (herhuisvesting) of households forced to clear substandard housing for renovation, and foreign students. In addition, in one-third of cases the hardship clause had been applied because a decision had not been given within the prescribed time-limit.

The effects of the measure were considered based on four indicators: proportion of residents dependent on social-security benefits under the Work and Social Assistance Act, corrected for the supply of suitable housing; perception of safety; social quality; and potential accumulation of housing problems:

(a) It had been observed that in the areas where the housing permit requirement applied, the reduction of the number of new residents dependent on social-security benefits under the Work and Social Assistance Act had been more rapid in “hotspot” areas than in other parts of Rotterdam. In addition, the number of residents in receipt of such benefits as a proportion of the total population of those areas had also declined, although it was still greater than elsewhere.

(b) In two of the areas where the housing permit requirement had been introduced, the increase in the perception of public safety had been more rapid than the Rotterdam average. Tarwewijk had shown an increase initially, but was now back to where it had been before the measure was introduced. One other area had actually declined significantly in this respect. All of the areas where the housing permit requirement applied were still perceived as considerably less safe than Rotterdam as a whole.

(c) In terms of social quality, there had been improvement in most of the parts of Rotterdam where problems existed, Tarwewijk among them. It was noted, however, that the effect of the housing permit in this respect was limited, since it only influenced the selection of new residents, not that of residents already in place.

(d) Housing problems – defined in terms of turnover, housing left unused, and house price development – had increased somewhat in the affected areas including Tarwewijk, though on the whole at a slower rate there than elsewhere. Reported reasons for the increase were an influx of immigrants of mostly non-European extraction (nieuwe Nederlanders, “new Netherlands nationals”) and new short-term residents from Central and Eastern Europe; the latter in particular tended to stay for three months or less before moving on, and their economic activity was more difficult to keep under review as many were self-employed.

Social housing bodies tended to view the housing permit requirement as a nuisance because it created additional paperwork. They perceived the measure rather as an appropriate instrument to tackle abuses by private landlords, provided that it be actively enforced and administrative procedures be simplified. Others with a professional involvement in the Rotterdam housing market mentioned the dissuasive effect of the measure on would-be new residents of the affected areas.

The report suggested that the housing permit requirement might no longer be needed for one of the existing “hotspots” (not Tarwewijk). Conversely, five other Rotterdam districts scored high for three indicators, while a sixth exceeded critical values for all four.

A third evaluation report, this time commissioned by Rotterdam’s City Development Service (Housing Department), was published by the Centre for Research and Statistics in August 2012 (second revised edition). It covered the period from July 2009 until July 2011 (“the 2011 evaluation report”).

The social housing bodies had let 1,264 dwellings in the areas concerned; as during the previous period, no applications for housing permits had been rejected in this group because the social housing bodies could only accept qualifying tenants.

There had been 3,723 applications for a housing permit relating to privately-let housing. Of these, 3,058 had been accepted (82%); 97 had been refused (3%); and 282 had been pending on 1 July 2011. Examination of 286 had been discontinued without a decision being taken (8%), generally because they had been withdrawn or abandoned. This meant that, if the pending cases were not taken into account, approximately one-tenth of applications were either rejected or not pursued to a conclusion because the household concerned had reconsidered its decision to move.

The reasons to reject an application for a housing permit had included failure to meet the income requirement in 81% of cases, sometimes combined with other reasons. In the remaining cases the decision to reject had been based on the excessive number of persons wishing to take up residence in a particular dwelling; the unlawful sub-letting of rooms; the absence of valid residence rights; or the fact that the person making the application was underage.

The individual hardship clause had been applied in 93 cases; as a proportion of successful applications for a housing permit, this amounted to just under 3%. In addition, in 55 cases objections had been lodged against refusals; of these, 5 had been successful and had resulted in the grant of a housing permit. The grounds on which the hardship clause was applied were the same as those stated in the 2009 evaluation report (see paragraph 61 above).

In terms of social index, Tarwewijk continued to score lowest of all the Rotterdam districts. Social cohesion was very weak, which was explained by the number of house moves but also by a general lack of participation in social life. In terms of residential environment (leefomgeving), the district was vulnerable, the problem being a lack of suitable housing.

Based on the same indicators and methodology as the previous report, the 2011 evaluation report concluded that the housing permit system should be continued in Tarwewijk and two other areas (including one in which it had been introduced in the meantime, in 2010); discontinued in two others; and introduced in one area where it was not yet in force.

On 18 July 2012 the Minister of the Interior and Kingdom Relations (Minister van Binnenlandse Zaken en Koninkrijksrelaties) sent a separate evaluation report assessing the effectiveness of the Inner City Problems (Special Measures) Act since its inception and its effects in practice to the Lower House of Parliament, as required by section 17 of that Act (Parliamentary Documents, Lower House of Parliament, no. 33 340, no. 1). The Minister’s covering letter stated the intention of the Government to introduce legislation in order to extend the validity of the Inner City Problems (Special Measures) Act. Requests to that effect had been received from a number of affected cities. It was noted that not all of the cities concerned had made use of all of the possibilities offered by the Act; in particular, only Rotterdam used housing permits to select new residents for particular areas. Appended to the Minister’s letter was a copy of the 2009 evaluation report and a letter from the Burgomaster and Aldermen of Rotterdam in which they, inter alia, confirmed the desirability of extending the indication of particular areas for applying the housing permit requirement beyond the first two four-year periods: the measure was considered a success, and a twenty-year programme involving the large-scale improvement of housing and infrastructure (the “National Programme Quality Leap South Rotterdam” (Nationaal Programma Kwaliteitssprong Rotterdam Zuid, see below)) had been started in the southern parts of Rotterdam in 2011.

Both the applicant and the Government have submitted a report entitled “Evaluation of the effects of the Inner City Problems (Special Measures) Act”, by the Amsterdam Institute for Social Science Research (University of Amsterdam; the report is referred to hereafter as the “Amsterdam University report”). This report was commissioned by the Minister of the Interior and Kingdom Relations, who published it in November 2015, to be put before Parliament.

The report comprises 16 pages of introduction, 116 pages of analysis and 40 more pages of references and appendices (tables, methodology, list of interviewees). Its conclusion reads, inter alia, as follows:

“8. Conclusion

In the study we have distinguished between two groups: the potentially refused and the reference group. The potentially refused are members of households without any income from work who have been living in the metropolitan area for less than six years. On this basis they are not eligible for a housing permit in the designated districts of Bloemhof, Carnisse, Hillesluis, Oud-Charlois and Tarwewijk. The reference group also has no income from work, but satisfies the residence requirement.

8.1. Findings

The excluded group: the potentially refused

More often than the reference group, the potentially refused are young, male and live alone. More often than the reference group, the potentially refused are of non-European foreign origin, and much more often, they are from the European migrant population. Trends between 2004 and 2013 show a strong increase in the proportion of persons among the European migrant population, principally from Eastern European countries like Poland, Bulgaria and the Czech Republic.

Effect on the position of the potentially refused on the housing market

The group of the potentially refused tends to move house relatively frequently and during the period covered by this research their mobility increased (from 34.5% in 2004 to 38.1% in 2013). This high rate of mobility would appear to be a consequence of the composition of the group (relatively young persons and small households, often without children). After correction for background characteristics, it turns out that new arrivals tend to move more often, and continue to do so after the year in which they arrive.

Effect on the designated districts: house-moving flows and population composition

Changes in the Rotterdam housing market, including as a result of the Act, have led to new patterns of spatial distribution of new arrivals without income from work. An analysis of population dynamics confirms that the increase in the proportion of potentially refused is generally the consequence of changed house-moving flows (and not of any other dynamic such as downward social mobility of the resident population).

Designated districts: quality of life and security

3a. Has the application of the measure under Chapter 3 of the Act had any actual effect on the quality of life and security in the designated areas?

Based on a (modified) Security Index we find that during the period 2006-2013 the designated districts have shown a more negative development in their scores than the other districts of the city. This interrelation has been examined more closely by comparing the development trend in all Rotterdam districts, taking into account the district status and other changes in the housing markets. After these checks have been carried out it still appears that the districts covered by the Act display a significantly worse development than the other districts of Rotterdam.

In so concluding it must be observed that the Act is not necessarily the cause of these lagging developments. Changes in city policy, police and justice, education, social assistance, etc. at the neighbourhood, municipal and national level are beyond the scope of this evaluation. These findings do however suggest that the Act has not contributed to any improvement.

Quality of life elsewhere

3b. What development is seen in districts with a considerable influx of house-movers who do not qualify for a housing permit as regards quality of life and security?

In sum, it can be stated that there is a slight negative interrelation between changes in the influx of the potentially refused and the quality of life and security of the neighbourhoods. This interrelation is, however, not uniform and the causal link is not firmly established. Although the potentially refused can cause a deterioration of the quality of life and security in a neighbourhood, the interrelation may also point the other way. Because of their weak and deteriorating position on the housing market, the potentially refused will generally be limited to districts where there is a relative decline in quality of life and security.”

On 19 September 2011 the Minister of the Interior and Kingdom Relations (on behalf of the Government), the Burgomaster of Rotterdam (on behalf of the municipality of Rotterdam), and the presidents of a number of South Rotterdam boroughs (deelgemeenten), social housing bodies and educational institutions signed the National Programme “Quality Leap South Rotterdam”. This document noted the social problems prevalent in South Rotterdam inner-city areas, which it was proposed to address by providing improved opportunities for education and economic activity and improving, or if need be replacing housing and infrastructure. It was intended to terminate the programme by the year 2030.

On 31 October 2012 the Minister of the Interior and Kingdom Relations, Rotterdam’s Alderman for housing, spatial planning, real property and the city economy (wethouder Wonen, ruimtelijke ordening, vastgoed en stedelijke economie) and the presidents of three social housing bodies active in Rotterdam signed an “Agreement concerning a financial impulse for the benefit of the Quality Leap South Rotterdam (2012-2015)” (Convenant betreffende een financiële impuls ten behoeve van de Kwaliteitssprong Rotterdam Zuid (2012-2015)). This agreement provided for a review of priorities in Government financing of housing and infrastructure projects in the South Rotterdam area within existing budgets and for a once-only additional investment of 122 million euros (EUR). Of the latter sum, EUR 23 million had been reserved by the municipality of Rotterdam until 2014; another EUR 10 million would be added for the period starting in 2014. These funds would be used to refurbish or replace 2,500 homes in South Rotterdam. A further EUR 30 million would be provided by the Government. The remainder would be spent by the social housing bodies on projects within their respective remit.

On 19 November 2013 the Government introduced a Bill proposing to amend the Inner City Problems (Special Measures) Act (Parliamentary Documents, Lower House of Parliament 2013/2014, 33 797, no. 2). The Explanatory Memorandum stated that its purpose was to empower municipalities to tackle abuses in the private rented housing sector, give municipalities broader powers of enforcement and make further temporal extension of the Act possible.

The Inner City Problems (Special Measures) (Extension) Act (Wet uitbreiding Wet bijzondere maatregelen grootstedelijke problematiek) entered into force on 14 April 2014, enabling the designation of particular areas under section 8 of the Inner City Problems (Special Measures) Act to be extended the day before it was due to expire. It makes further extensions of the designation possible for successive four-year periods (section 5(2) of the Inner City Problems (Special Measures) Act, as amended).

With effect from 1 January 2017 the Inner City Problems (Special Measures) Act was amended further to enable the selective allotment of housing in order to limit nuisance and criminal behaviour.

On 27 September 2010 the applicant moved to housing in the municipality of Vlaardingen. This municipality is part of the Rotterdam Metropolitan Region. She rents her dwelling from a Government-funded social housing body.

The applicant states that she has found paid work.

As of 25 May 2011 the applicant had been resident in the Rotterdam Metropolitan Region for more than six years. She therefore became entitled to reside in one of the areas designated under the Inner City Problems (Special Measures) Act regardless of her sources of income.

The Government state that no renovation or building permits were sought for the dwelling in A. Street inhabited by the applicant at the time of the events complained of between 2007 and 2010 and that no such permit was applied for in the period prior to 2007 either.

Until 2015 only the municipality of Rotterdam made full use of the possibilities which the Inner City Problems (Special Measures) Act offered. In 2015 and 2016, three other municipalities followed suit (Nijmegen, Capelle aan den IJssel and Vlaardingen, the latter two being part of the Rotterdam Metropolitan Region).