Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant in the first case, Mr Sergiy Valentynovych Malysh, is a Ukrainian national, who was born in 1961 and lives in Chasiv Yar (“the first applicant”).

The applicant in the second case, Mr Anatoliy Ivanovych Ivanin, is a Ukrainian national, who was born in 1931 and lives in Kostyantynivka (“the second applicant”).

The facts of the applicants’ cases, as submitted by the applicants, may be summarised as follows.

The applicants instituted separate sets of proceedings before the administrative courts claiming that their special pension and insurance payments had been wrongly calculated by the authorities. The courts rejected the applicants’ claims as unsubstantiated, finding that the impugned payments had been in accordance with the law and with due regard to the applicants’ specific circumstances. The final decisions were taken by the Donetsk Administrative Court of Appeal on 10 September 2013 in the first applicant’s case and by the Higher Administrative Court on 24 October 2013 in the second applicant’s case. The applicants did not take part in the hearings on 10 September and 24 October 2013 respectively.

On 9 October 2013 the Higher Administrative Court refused to examine the first applicant’s cassation appeal, finding that no cassation appeal lay against the appeal court’s decision of 10 September 2013.

The applicants did not indicate the dates on which they were informed of the decisions in their cases.

On 26 December 2013 the first applicant made submissions to the Court from which it appeared that he intended to lodge an application under the Convention. By a letter of 21 January 2014, the Court invited the first applicant to submit, by 19 March 2014 at the latest, a duly completed application form together with copies of all relevant documents. The Court’s letter enclosed copies of the Convention, an official application form and the Court’s information note for persons wishing to apply to the Court. On 28 March 2014 the Court received the first applicant’s application form, in which he complained principally about the outcome and unfairness of the domestic proceedings in his case. By a letter of 11 April 2014, the Court informed the first applicant that he had not complied with the requirements set out in Rule 47 of the Rules of Court, as he had failed to provide copies of all relevant documents relating to exhaustion of domestic remedies, in particular copies of his appeals. The first applicant was further informed that his complaints could not be examined by the Court and that the six-month period referred to in Article 35 § 1 of the Convention was interrupted only when a complete application was sent to the Court.

On 18 March 2014 the second applicant sent an application form to the Court, in which he complained about the outcome and alleged unfairness of the domestic proceedings in his case. On 26 March 2014 the Court received the second applicant’s application. By a letter of 3 April 2014, the Court informed the second applicant that he had not complied with the requirements of Rule 47 of the Rules of Court, as he had failed to provide copies of all relevant documents relating to exhaustion of domestic remedies, in particular copies of his claim and appeals. The second applicant was also informed that his complaints could not be examined by the Court and that the six-month period referred to in Article 35 § 1 of the Convention was interrupted only when a complete application was sent to the Court.

On 20 and 21 May 2014 respectively the first and second applicants lodged new applications forms with the Court concerning the same subject-matter as in their initial submissions. The applicants’ new applications enclosed copies of the domestic courts’ decisions and of the applicants’ claims and appeals. In his new application, the second applicant stated that, due to his age and poor state of health, claiming that he suffered from a disability, it had taken him a long time to get to the places where he could receive the help and information necessary for the preparation of his application to the Court. He provided no further details or documents concerning his health problems or the alleged complications he faced in the preparation of his application.


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

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

The applicants complained of the inadequate conditions of their detention. They also argued that they did not have an effective domestic remedy to complain about the poor detention conditions.


Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life)

Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in 1968 and lives in Charlotte, North Carolina (the United States).

On 7 June 2008 the applicant married Ms K.A., a Croatian national, in Sarajevo (Bosnia and Herzegovina). On 29 November 2008 K.A. gave birth to their son, N.A. In May 2009 she moved to the United States of America to join her husband.

In June 2011 the applicant’s wife and son spent their summer holidays in Croatia. They were supposed to return to the United States on 31 August 2011. Instead, the applicant’s wife sent him an e-mail, informing him that she and their son were to remain in Croatia and that she had brought a civil action against him there, seeking a divorce (see paragraph 51 below).

On 7 September 2011 the applicant’s legal representative sent an e-mail to the Ministry of Health and Social Welfare (Ministarstvo zdravstva i socijalne skrbi, hereafter “the relevant Ministry”), as the Croatian Central Authority within the meaning of the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”, see paragraph 61 below). She asked the Ministry to urgently contact the applicant’s wife and take other appropriate measures to seek the voluntary return of the child until the receipt of the official request under the Hague Convention from the United States Central Authority.

On 15 September 2011 the Ministry forwarded the applicant’s request to the competent local social welfare centre with a view to establishing his wife’s intentions regarding their son and the possibility of a voluntary return to the United States. The centre immediately invited her for an interview. During the interview of 26 September 2011 she stated that while living in the United States she had been subjected to constant psychological abuse by the applicant. She did not oppose the applicant’s having contact with their son, but insisted that any contact take place under the supervision of a child welfare professional.

On 3 October 2011 the Ministry received an official request from the United States Central Authority under the Hague Convention for the return of the applicant’s son.

On 13 October 2011 the Ministry forwarded the request for return to the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) and thus instituted non-contentious proceedings for the return of the applicant’s son. The court received the request the next day.

On 24 October 2011 the court invited the local social welfare centre to submit a report on the applicant’s wife’s social and financial situation, the reasons for her taking the child to Croatia, the child’s general and psychological condition, and the potential effects on his mental development of any decision to return him to the United States. On the same day the court also invited the applicant’s wife to respond to her husband’s request for the boy to be returned.

In her response of 15 November 2011 the applicant’s wife opposed his request for the return of their child, with or without her. She submitted in particular that the applicant had agreed to her trip to Croatia and that his consent was not time-limited. She also stated that the applicant had expressly forbidden her to return to their flat in the United States, that he had been abusing her, and that there, unlike in Croatia, she had been completely dependent on him in every way (financially, economically, and in terms of accommodation). Lastly, she claimed that no significant changes had occurred in the care the child was receiving, given that she had been the one taking care of their son thus far, which was the reason why the child was very emotionally attached to her.

On 30 November 2011 the court reiterated its request of 24 October 2011 to the local social welfare centre.

On 13 December 2011 the local social welfare centre submitted its report and supplemented it, at the court’s request, six days later. The report stated that the applicant’s wife was taking adequate care of their son and recognised his needs, that she was emotionally positively focused on him and that he was affectionate towards her. The report also stated that she did not undermine the applicant’s role as a father, and that she encouraged the child to have contact with him, but that she felt the need to protect him from the applicant’s possible irrational behaviour, which concern the centre considered credible. The child was mentally stable, showed no signs of trauma due to the separation from his father, and had adapted well to the new situation. The report noted that the child was emotionally attached to his mother, with whom he had spent every day since birth, and that separation from her and returning him to his father would be traumatic. The centre therefore considered that returning the child to the United States would not be in his best interest.

On 22 December 2011 the applicant submitted to the court a certified copy of the decision of a court in North Carolina of 26 October 2011 granting him interim custody of his son.

In her submissions of 28 December 2011 his wife argued that the report of the social welfare centre suggested that returning her son to the United States would expose him to psychological harm or place him in an intolerable situation within the meaning of Article 13 paragraph 1 (b) of the Hague Convention (see paragraph 62 below). She therefore invited the court to dismiss the applicant’s request for return on that ground.

On 18 January 2012 the relevant Ministry asked the court to inform it of developments in the case. The court delivered the requested information on 8 February 2012.

On 26 January 2012 the court invited the applicant’s representative to submit rectified translations of the documents submitted on 22 December 2011, given that certain dates had been wrongly translated. The applicant did so on 9 February 2012.

In his submissions of 26 January and 17 February 2012 the applicant argued that the report and recommendation of the local social welfare centre did not correspond to the objectives, spirit and purpose of the Hague Convention. He explained that the purpose of the Hague Convention was the prompt return of the child, and not an assessment of the child’s adaptation to a new environment. The applicant further argued that his wife had not presented any evidence for her allegations of abuse, and that she had never intended to establish a permanent relationship with him. He averred that tolerating his wife’s conduct in the proceedings constituted a violation of the European Convention on Human Rights, the Hague Convention and the Convention on the Rights of the Child.

In her submissions of 28 and 29 February 2012 the applicant’s wife replied by contesting all the applicant’s arguments, and submitted evidence in support of her allegations of abuse. In particular, she submitted a letter from the president and founder of the association for the protection of victims of domestic violence WISH, based in Charlotte, where she had sought help while living in the United States. She also stated that the applicant no longer lived in their matrimonial home in the United States and wondered where the child was supposed to return.

On 15 March 2012 the Zagreb Municipal Civil Court dismissed the applicant’s request for the return of the child. The relevant part of that decision reads as follows:

“... having regard to the fact that the separation of N.A. from his mother and from a safe environment would without a doubt have harmful and traumatic consequences for his psychological development, and that granting the applicant’s request might cause psychological trauma to the child and place him in an unfavourable position within the meaning of Article 13 paragraph 1 (b) of the [Hague] Convention, and having regard to the mother’s fear that the child would, upon his return to the United States, be subject to psychological and verbal abuse, which fear was deemed justified by the psychologist and the social worker of the social welfare centre ... and having regard to the fact that on 12 July 2011 proceedings for divorce of the parties were instituted, in which proceedings the court should decide on custody of the child and on the other parent’s contact rights, the petitioner’s request must be dismissed, without violating Article 8 of the European Convention on Human Rights or Article 9 of the Convention on the Rights of a Child, it was decided as in the operative part of this decision.”

On 17 April 2012 the applicant appealed against that decision, alleging procedural errors, incomplete findings of fact, and misapplication of substantive law as grounds for appeal. In particular, the applicant argued that his wife’s submissions of 28 and 29 February 2012 had been served on him together with the contested first-instance decision and thus in breach of the principle of equality of arms, that the court had not held a single hearing in the case, and that it had wrongly applied Article 13 paragraph 1 (b) of the Hague Convention.

On 2 July 2012 the Zagreb County Court (Županijski sud u Zagrebu) allowed the applicant’s appeal, quashed the first-instance decision and remitted the case. The relevant part of that decision reads as follows:

“... the first-instance court based [its] decision in part on undisputed facts, and in the relevant part on the arguments and the evidence submitted by the counterparty... even though it failed to give an opportunity to the petitioner to comment on them ... [T]herefore the petitioner’s appeal had to be allowed, the first-instance decision quashed and the case remitted ...”

On 27 August 2012 the decision of the Zagreb County Court was served on the Zagreb Municipal Civil Court.

In the resumed proceedings, on 17 October 2012 the applicant sought the withdrawal of Judge M.S.B., the first-instance court judge sitting in the case, for alleged bias on her part in favour of his wife. On 21 January 2013 the President of Zagreb Municipal Civil Court granted the application for the judge’s withdrawal, and on 30 January 2013 assigned the case to another judge.

In his submissions of 28 January 2013 the applicant invited the court to review recordings of his conversations with his son via Skype, and asked for a provisional measure ordering the seizure of his son’s passport with a view to preventing his wife from removing him from Croatia.

On 4 February 2013 the court invited the applicant to submit certificates from the relevant United States authorities on his son’s habitual residence in that country and the social background of the child within the meaning of Article 13 paragraph 3 of the Hague Convention (see paragraph 62 below). On 22 February 2013 the applicant submitted documents on his permanent residence and his son’s habitual residence in the United States, and on 19 March 2013 he submitted information on the social background of the child.

On 14 February 2013 the applicant urged the court to schedule a hearing.

On 28 February 2013 the court ordered the local social welfare centre to promptly assess whether the child was settled in his new environment in terms of Article 12 paragraph 2 of the Hague Convention (see paragraph 62 below).

In submissions she made on the same day, 28 February 2013, the applicant’s wife reiterated that she believed that the evidence showed that the applicant was abusive, and in that respect pointed to the opinion of the psychologist from the local social welfare centre, who had indicated that the applicant’s communication with his son via Skype constituted emotional blackmail and amounted to emotional abuse. She emphasised that she could not return to the United States, because her green card had expired and she did not have any means of supporting herself there.

On 26 March 2013 the local social welfare centre submitted the opinion of its psychologist prepared on the basis of interviews with the applicant’s wife and son. The psychologist stated that the child’s physical and mental development was normal and that he had adapted well. She emphasised that owing to his age and his mother’s constant care for him since birth the child was emotionally primarily attached to her; separating them would therefore be traumatising for him.

In his submissions of 8 April 2013 the applicant argued that the psychologist’s opinion was flawed, unprofessional and arbitrary. He therefore proposed that his son be examined by independent experts, namely an institution with no role in the proceedings. The court eventually agreed to the applicant’s proposal, and on 30 September and 31 October 2013 decided to obtain an opinion from a forensic expert in psychiatry (see paragraph 39 below).

In submissions made on 15 and 26 April 2013 the applicant’s wife commented on the documents on the child’s social background submitted by the applicant (see paragraph 28 above). She stated that those documents were not relevant, because they had not been provided by the competent authorities of the United States but by a private law firm lacking in professional competencies and jurisdiction for issuing such documents. She stated, inter alia, that the lawyer who had compiled the report did not speak Croatian and thus could not possibly have understood the applicant’s conversations with his son and make an assessment.

In his submissions of 3 May 2013 the applicant argued that his wife’s conduct in the proceedings amounted to abuse of process and warned the court that the resultant delay was operating in her favour.

On 6 May 2013 the court invited the applicant to submit evidence that his wife, as his son’s mother, could return to the United States, in particular that she would be provided with a visa, accommodation and a work permit. The applicant did so on 29 May 2013; his wife made further comments on 1 July 2013.

In his submissions of 27 September 2013 the applicant stated that the way the court had conducted the proceedings was unacceptable in view of their nature and the State’s obligation under the Hague Convention. He further submitted that his rights under Article 8 of the European Convention on Human Rights had also been violated.

On 22 October 2013 the applicant’s wife responded to his submission, also citing Article 8 of the Convention. She also reiterated that she could no longer return to the United States, because her green card had expired.

On 5 December 2013 the forensic expert in psychiatry (see paragraph 33 above) submitted her expert opinion and report on whether the return to the United States would expose the child to psychological harm. The opinion and report were prepared after conducting two interviews with the applicant’s son on 20 and 27 November 2013, the first in the presence of the mother and the second in her absence. She stated that: (a) the child was well adapted to his new environment, (b) he was showing no signs of trauma, (c) the applicant’s wife did not have a negative influence on the child regarding his relationship with the applicant as his father, (d) the separation from his mother as primary caregiver and “safe base” would traumatise him, (e) transferring the child into a different environment would also constitute a trauma, but that he would be able to overcome it if his mother lived with him and if he lived in a harmonious environment, (f) the relationship between the child and his mother was positive, enabling him to develop a “secure attachment” to her, (g) the relationship between the child and his father could not be assessed, as the father had not been subjected to an expert assessment. As regards this last point the expert nevertheless made the following observations:

“N. is a boy who is securely attached to his mother but also has a positive attitude towards his father, which means that the mother did not influence him [in that regard] by expressing negative views, stories, and so on ... One important factor is that the boy talks with his father, which he mentioned during the assessment, and in this way forms an opinion about him. What is most important however is that the parents coordinate their [behaviour] towards the child in order not to confuse him, which could jeopardise his normal mental development. During the assessment of the boy I did not find that such an issue was present ... [The child] does not object to going to America, but accepts it only if it is temporary and his mother can come along ... He does not show, verbally or non-verbally, any aversion to his father. It is therefore assumed that the mother influences him positively in that regard.”

On 2 January 2014 the relevant Ministry invited the Municipal Civil Court to speed up the proceedings and again submit a progress report (see paragraph 18 above). The court submitted the requested report on 14 February 2014.

In his submissions of 22 January 2014 the applicant commented on the expert report and opinion. He argued that the report suggested that his son had good memories of him and a positive attitude towards him, and that it was therefore evident that his return to the United States would not expose him to the risk envisaged in Article 13 paragraph 1 (b) of the Hague Convention. As regards the expert’s finding that the child’s return would be a traumatic experience for him, the applicant submitted that this would not have been the case had the domestic courts ordered his return within the time-limit set forth in Article 11 paragraph 2 of the Hague Convention. In any event, the evidence he submitted had suggested that his wife could accompany his son on his return to the United States, which according to the expert would have eliminated the risk of trauma.

On 31 January 2014 the applicant’s wife commented on the expert report and opinion by endorsing it. She argued that they, together with the previous opinions and reports of the local social welfare centre, suggested that it was evident the child should not be returned, as he would thereby suffer psychological trauma. The conditions set forth in Article 13 paragraph 1 (b) had therefore been met.

By a decision of 21 May 2014 the Zagreb Municipal Civil Court dismissed the applicant’s request for his son to be returned. It first held that the applicant’s wife’s removal of their son from the United States to Croatia was “wrongful” within the meaning of Article 2 of the Hague Convention (see paragraph 62 below). It then held, relying exclusively on the opinion and report of the local social welfare centre of 13 December 2011 and the opinion of the forensic expert in psychiatry of 5 December 2013 (see paragraphs 15 and 39 above), that the applicant’s son’s return to the United States would expose him to risk envisaged in Article 13 paragraph 1 (b) of the said Convention, but only if he returned without his mother. However, since the applicant had not proved that she could freely return to the United States and get a job there, the court concluded that the conditions for refusing the return of the child set forth in that Article had been met.

On 11 June 2014 the applicant appealed against that decision. He referred to procedural errors, incomplete findings of facts, and misapplication of the substantive law as grounds for appeal. In particular, the applicant submitted that the first-instance court had, in breach of the principle of adversarial hearing, not held a single hearing in the case, and that it had not informed him of its decision to obtain an opinion from a forensic expert in psychiatry, thus preventing him from objecting to the choice of the expert. He further complained that he had not been involved in the expert’s assessment, even though he had previously expressed willingness to make himself available for such an assessment. The applicant also stated that the court had required him to prove that his wife could return to the United States and find a job there, instead of asking her to prove that she could not. It had thereby unjustifiably shifted the burden of proof to him as regards those matters. Moreover, as regards those matters the court had drawn the wrong conclusions from the evidence presented, and had embarked on an interpretation of foreign law it was not familiar with. Lastly, the applicant argued that the first-instance court had wrongly applied Article 13 paragraph 1 (b) of the Hague Convention.

By a decision of 22 October 2014 the Zagreb County Court dismissed the applicant’s appeal and upheld the first-instance decision.

On 29 December 2014 the applicant lodged a constitutional complaint against the second-instance decision. It would appear that the proceedings are currently pending before the Constitutional Court (Ustavni sud Republike Hrvatske).

Meanwhile, on 17 January 2013 the applicant lodged a request for protection of the right to a hearing within a reasonable time (zahtjev za zaštitu prava na suđenje u razumnom roku) with the Zagreb County Court about the length of the above proceedings. He argued that the proceedings had lasted for one year and four months without a scheduled hearing or a decision rendered, contrary to Article 11 of the Hague Convention (see paragraph 62 below) and Article 8 of the European Convention on Human Rights.

By a decision of 15 June 2014 the Zagreb County Court dismissed the applicant’s request. It held that the proceedings complained of had thus far lasted some two years and eight months, which could not be considered excessive, especially as there had been no substantial periods of inactivity.

On 9 September 2014 the applicant appealed against that decision.

By a decision of 20 November 2014 the Supreme Court (Vrhovni sud Republike Hrvatske) dismissed the applicant’s appeal and upheld the first-instance decision of 15 June 2014.

Meanwhile, on 12 July 2011 the applicant’s wife brought a civil action against the applicant in the Zagreb Municipal Civil Court seeking a divorce and custody of their son.

On 18 July 2011 she asked the court to issue a provisional measure granting her interim custody of N. until delivery of the final judgment in those proceedings.

In his submissions of 3 July 2012 the applicant argued that the Croatian courts lacked international jurisdiction in the case, and submitted a certified translation of the decision of a court in North Carolina of 27 April 2012 granting him sole custody of his son.

At the hearing held on 9 July 2012 the court dismissed the applicant’s objection regarding lack of jurisdiction.

By a decision of 15 October 2012 the court issued the provisional measure requested by the applicant’s wife and awarded her interim custody of their son.

On 21 November 2012 the applicant appealed against that decision to the Zagreb County Court.

On 24 April 2014 that court returned the case file to the Zagreb Municipal Civil Court, warning it that under Article 16 of the Hague Convention the judicial or administrative authorities of the State to which the child had been removed were not entitled to decide on the right of custody of the child until it had been determined under the Hague Convention that the child was not to be returned (see paragraph 62 below). Accordingly, it instructed the Municipal Civil Court to ascertain whether a final decision had been given in the proceedings for the return of the child. If no such decision was adopted, the County Court further instructed the Municipal Court to stay the proceedings until the delivery of such a decision.


Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1979 and lives in Istanbul.

The applicant’s husband, Ali Sinim, entered into an agreement with a truck owner, Mr A.S., for the transportation of some personal goods and furniture from Istanbul to Antalya on 5 August 2006. According to the applicant’s allegations, her husband was informed that the truck in question had been booked by a transport company for the same day and that it would also be carrying some raw materials belonging to another client.

On the date in question the applicant’s husband loaded his goods into the truck and got into it as a passenger. However, before reaching its destination the truck collided with another vehicle and caught fire. The truck’s driver and substitute driver died at the scene of the accident as a result of the fire. The applicant’s husband died a few days later at the hospital where he had been receiving treatment for his burns.

It was discovered after the accident that the “raw materials” being transported in the truck with the applicant’s husband’s goods were in fact an inflammable liquid, which had caught fire upon impact. According to the police scene-of-incident report, the containers that had contained the spilt inflammable liquid bore the words “Şenocak chafing fuel”.

An autopsy report issued on 31 January 2007 by the Forensic Medicine Institute stated that the applicant’s husband had died as a result of the burns he had sustained at the time of the accident rather than from trauma caused by the impact of the crash.

According to the initial report prepared by the traffic police at the scene, the driver of the truck, whose identity could not be established at the time, bore the main responsibility for the accident as he had hit the other vehicle, driven by S.S.H., from behind.

On 5 August 2006 officers from Sultanbeyli police station took statements from the applicant, S.S.H. and the owner of the truck, A.S., who was also the son of one of the truck drivers, M.S. A.S. confirmed in his statement that he was the owner of the truck, which his father M.S. had loaded with goods to be transported to Antalya. He stated that a third person, namely A.Ç., had also been in the truck to help his father during the journey. He was not asked any questions about the nature of the goods transported.

On 4 September 2006 the applicant filed a criminal complaint with the Sultanbeyli public prosecutor’s office against A.S., S.S.H, and the transport company to which the truck had been leased, if any, for causing her husband’s death by illegally carrying dangerous inflammable goods. The applicant stressed in her complaint that the incident in question had not been a simple traffic accident caused by negligence, and that her husband had lost his life because of the inflammable goods that had been loaded unlawfully in the truck without his knowledge and consent. The applicant argued that if her husband had been properly informed of the nature of the truck’s cargo, he would never have agreed to travel in it. The applicant therefore requested the identification of all the individuals or companies who may have been responsible for her husband’s death, including the transporter, the seller and the buyer of the inflammable goods. She also requested to be informed of developments in the investigation as she intended to join the proceedings as a civil party (müdahil).

On 9 November 2006 A.S. submitted a petition to the Sultanbeyli public prosecutor’s office for an investigation into the liability for the accident of both the transport company which had leased his truck and of the seller and buyer of the inflammable cargo, whom he accused of concealing the dangerous nature of the goods in question. As evidence, he submitted the invoice and delivery note (sevk irsaliyesi) prepared on 4 August 2006 by the transport company Salihli Nakliyat Otom. Ltd. Şti. (“Salihli Ltd. Şti.”) for the recipient, Şenocak Dış Ticaret ve Turizm Sanayi Ltd. Şti. (“Şenocak Ltd. Şti.”), where the shipment was described as “raw materials” without any further details. A.S. stated that if it had been made clear that the goods involved were inflammable then they would have been transported in accordance with the conditions set out in the law, which might have prevented the fatal accident.

On 28 November 2006 the applicant filed an additional complaint against the producer of the inflammable liquid, which she had identified as Şenocak Ltd. Şti. based on the information provided in the scene-of-incident report (see paragraph 8 above). The applicant claimed that the liquid in question contained ethanol and methanol, which had both been classified as “hazardous goods subject to control” in the Regulation on Dangerous Goods and the Regulation on the Transport by Land of Dangerous Goods, and which accordingly had to be packed, labelled, stored and transported in compliance with the strict requirements set down in those regulations. Moreover, under the Regulation on the Transport by Land of Dangerous Goods, it was prohibited to carry passengers, apart from a substitute driver and a guard, in vehicles transporting dangerous goods. Having regard to the various responsibilities imposed by the relevant legislation on the producer, seller, transporter and buyer of such goods, the applicant requested that the public prosecutor (i) check if Şenocak Ltd. Şti. was the producer and whether it also engaged in the distribution of such material; (ii) establish whether the truck in question had been leased by a transport company or by Şenocak Ltd. Şti. itself and whether it had a licence to carry such dangerous goods; and (iii) identify the buyer of the goods. She also repeated her request to be informed of developments in the investigation.

On 6 May 2007, at the request of the Sultanbeyli prosecutor, a traffic engineer submitted an expert report, where it was found that the deceased truck driver M.S. had been responsible for the accident by failing to comply with the law applying to vehicles carrying inflammable goods on keeping a distance of fifty metres. The expert found that S.S.H., the driver of the other vehicle, had not been at fault.

Relying mainly on the expert report, on 7 May 2007 the Sultanbeyli public prosecutor found that the only person responsible for the accident within the meaning of Article 85 of the Turkish Criminal Code (causing death by negligence – see paragraph 46 below) was M.S. However, since M.S. had also lost his life in the accident, the public prosecutor decided against prosecution. A.S. was listed as the sole complainant in the decision, which was not notified to the applicant.

After finding out about the decision on her own initiative, on 29 June 2007 the applicant objected to the public prosecutor’s decision not to prosecute, arguing mainly that the issues she had raised in her petitions of 4 September and 28 November 2006 had not been taken into account by the public prosecutor. She reiterated that her husband had not been informed that the truck was carrying inflammable liquids, and also argued that the prosecutor had failed to identify the companies involved in the shipment of such dangerous goods, including the seller, buyer and transport company, and had not established the relations of the truck owner, A.S., to those companies. She argued that it was of the utmost importance to collect that information in order to establish the facts and to identify those responsible for the accident, apart from the driver of the truck. She added that despite the numerous complaints she had lodged with the public prosecutor’s office and her requests to be informed of developments in the investigation, she had not been named as a complainant in the public prosecutor’s decision and the decision had not been notified to her.

It appears that A.S., as the other complainant, did not lodge an objection against the public prosecutor’s decision.

On 4 September 2007 the Kadıköy Assize Court rejected the objection against the decision of the Sultanbeyli public prosecutor not to prosecute M.S. and S.S.H. It held, nevertheless, that complaints lodged by A.S. against Salihli Ltd. Şti. and Şenocak Ltd. Şti. had remained unanswered and instructed the Sultanbeyli public prosecutor to investigate their liability for the accident. A.S. was once again listed as the sole complainant in the decision, which was not notified to the applicant.

On 6 December 2007 the applicant submitted a petition to the Sultanbeyli public prosecutor’s office, asking it to investigate the matters raised in her previous petitions. The applicant also stressed that despite her numerous requests, she had, once again, not been recognised as a complainant in the Kadıköy Assize Court’s decision.

It appears that on 22 January 2008 an agent of the transport company Salihli Ltd. Şti., a certain B.T., was questioned about the accident for the first time by the police. B.T. stated that Şenocak Ltd. Şti. had requested a truck from them to transport some goods. The company had, however, put Şenocak Ltd. Şti. in touch with A.S., who provided transportation services with his truck upon request, and they had had no further involvement with the shipment in question.

In a further petition submitted by the applicant to the Sultanbeyli public prosecutor’s office on 23 May 2008, she expressed her concern that the investigation after the Kadıköy Assize Court’s decision had appeared to focus solely on the liability of the transport company Salihli Ltd. Şti., whereas both Şenocak Ltd. Şti., as the producer and/or the shipper of the goods, and A.S., as the owner of the truck, also bore responsibility for the accident on account of their failure to comply with the relevant legislation on the transport of dangerous goods.

On an unspecified date the Sultanbeyli public prosecutor asked the traffic branch of the Forensic Medicine Institute to prepare a report to determine the respective liability of Salihli Ltd. Şti. and Şenocak Ltd. Şti., or any others, for the accident in question. In its response dated 10 July 2008 the Forensic Medicine Institute stated that there was no information in the case file on Şenocak Ltd. Şti. and that, in the absence of such information, it could not report on the requested matters.

On 15 October 2008 S.Ş., the owner of Şenocak Ltd. Şti., was questioned about the accident for the first time by the police. S.Ş. stated that he had requested a truck from Salihli Ltd. Şti. to send goods to his company’s Antalya branch. A truck owned by A.S. had been provided to him by Salihli Ltd. Şti. and he had loaded it with the goods in question. He confirmed that the truck had been involved in an accident shortly after loading and that it and his goods had been destroyed in a fire.

Following the receipt of the above information, on 19 February 2009 the Forensic Medicine Institute submitted its report on the accident. It found that there was no information in the file that the truck in question had been loaded with inflammable goods by Şenocak Ltd. Şti. There was, furthermore, no information on the identity of the recipient of the shipment. Although containers bearing the name “Şenocak” had been found in the truck after the accident, there was no other evidence in the file to enable the Institute to determine who had loaded the truck. In those circumstances, it had not been possible to establish the liability of Şenocak Ltd. Şti., Salihli Ltd. Şti., or anyone else for the accident.

On 8 May 2009 the applicant submitted objections to the Forensic Medicine Institute’s report. She contested the finding that there had been no evidence to suggest the involvement of Şenocak Ltd. Şti. with the shipment in question. She argued that the owner of Şenocak Ltd. Şti. had made it clear in his police statement that the truck had been loaded with his company’s goods, which had consisted of chafing fuel. Moreover, in response to the compensation request she had made to the Sultanbeyli Civil Court of First Instance (see below paragraph 30 for further details), the owner of Şenocak Ltd. Şti. had stated, inter alia, that he had also suffered a loss as a result of the accident as he had lost all of his merchandise. A representative of Salihli Ltd. Şti. had similarly told the Sultanbeyli Civil Court of First Instance that the truck involved in the accident had been sent to Şenocak Ltd. Şti. for loading, accompanied by a delivery note prepared by them on 4 August 2006. In the applicant’s opinion, those statements provided sufficient proof that the inflammable goods loaded in the truck had belonged to Şenocak Ltd. Şti. On the basis of that information, and having regard to the legal requirements in the relevant legislation on the packaging, labelling, storing and transportation of inflammable goods, none of which had been observed in the instant case, it was clear that both Şenocak Ltd. Şti. and Salihli Şti., as well as the owner and driver of the truck, had been responsible for the accident.

On 25 May 2009 the Sultanbeyli prosecutor decided not to prosecute representatives of Salihli Ltd. Şti. and Şenocak Ltd. Şti. on the basis of the Forensic Medicine Institute’s report of 10 July 2008. In the decision, the public prosecutor did not respond to any of the applicant’s allegations.

On 17 June 2009 the applicant objected to that decision. Reiterating mainly the arguments she had raised in her objection to the Forensic Medicine Institute’s report, she submitted that the public prosecutor had failed to establish the facts of the case and had disregarded essential evidence in the investigation file which pointed to the representatives of Salihli Ltd. Şti. and Şenocak Ltd. Şti, A.S. and the deceased driver of the truck as being criminally liable for the accident.

On 23 July 2009 the Kadıköy Assize Court rejected the applicant’s objection, without responding to any of her arguments.

On 16 July 2007 the applicant brought an action for compensation before the Sultanbeyli Civil Court of First Instance against Şenocak Ltd. Şti., Salihli Ltd. Şti, the owner of the truck, A.S., the heirs of both dead truck drivers, and an insurance company. Reiterating the legal requirements for the packaging, labelling, storage and transportation of dangerous goods that she had referred to during the criminal proceedings, the applicant argued that the defendants had caused her husband’s death by their failure to comply with the relevant legislation.

On unspecified dates, representatives of Salihli Ltd. Şti. and Şenocak Ltd. Şti. responded to the applicant’s allegations, as noted in paragraph 26 above.

At the request of the Sultanbeyli Civil Court of First Instance, on 19 March 2012 three experts from the traffic branch of the Forensic Medicine Institute submitted a report (“the first report”) on the defendants’ liability for the accident in question, where they made the following findings:

- Şenocak Ltd. Şti., which was the producer of the inflammable goods in question, had requested Salihli Ltd. Şti.’s services for the transportation of merchandise from its headquarters in Istanbul to its Antalya office;

- Salihli Ltd. Şti. had subcontracted A.S. for the business;

- in the consignment note it had prepared, Şenocak Ltd. Şti. had described the consignment as sixteen tonnes of raw material, without indicating that it consisted of inflammable goods;

- the fire that had broken out upon impact with S.S.H.’s vehicle and that had claimed the applicant’s husband’s life had been caused by the inflammable goods loaded in the truck;

- Şenocak Ltd. Şti. was liable for the accident because it had failed to comply with the consignor’s obligations set out in the relevant legislation;

- Salihli Ltd. Şti. and A.S. were liable on account of their failure to pay heed to the type of raw material they had accepted, which had resulted in the transportation of dangerous goods in a truck which had not fulfilled the relevant criteria for such transportation;

- A.S. was also liable for having unlawfully loaded other goods in the truck and accepting a passenger (the applicant’s husband);

- the driver of the truck was liable owing to his failure to drive with care.

In the light of those considerations, the Forensic Medicine Institute found that Şenocak Ltd. Şti. bore 40% of the liability for the accident, Salihli Ltd. Şti. and A.S. bore 20% each, while the remaining liability lay with the driver.

On 18 October 2012 Salihli Ltd. Şti. objected to the Forensic Medicine Institute’s report.

Following that objection, seven experts from the traffic branch of the Forensic Medicine Institute, including the three experts who had prepared the previous report, issued another report on 18 September 2013 (“the second report”). They found that while Salihli Ltd. Şti., Şenocak Ltd. Şti. and A.S. may all have disregarded their legal obligations on the transport of dangerous goods, the accident had been caused by the driver’s carelessness rather than the other defendants’ failure to comply with those obligations. They could not therefore be held accountable for the accident in any way.

On 19 November 2013 the applicant objected to the Forensic Medicine Institute’s report, which in her opinion conflicted with its previous report of 19 March 2012. The applicant reiterated that her husband had not died as a result of a simple traffic accident, but had burned to death because of the inflammable goods carried unlawfully in the truck, for which all the defendants bore responsibility. The applicant requested that the Sultanbeyli Civil Court of First Instance obtain a third report from independent experts to resolve the contradictions between the two reports prepared by the Forensic Medicine Institute.

At a hearing held on 29 April 2014, the civil court of first instance appointed a group of experts, consisting of a mechanical engineer and two professors of mechanical engineering and chemistry from Istanbul Technical University. The court asked them to comment on the contradictions between the two Forensic Medicine Institute reports and to state which report they agreed with.

In their report dated 13 November 2014 (“the third report”), the experts established at the outset that the action brought by the applicant concerned the death of her husband as a result of the burns he had sustained because of the fire caused by the accident. The examination in the instant case therefore had to focus not on the technical cause of the accident per se, which was what the second report had done, but on the reasons and the responsibility for the fire that had claimed her husband’s life. The experts stated in that connection that the fire had been caused by chafing fuel, which was a “highly inflammable liquid”, according to the Regulation on the Transport by Land of Dangerous Goods and which therefore had to be transported in accordance with the relevant legislation concerning the transportation of such dangerous substances. The truck in which the chafing fuel had been loaded in the instant case had, however, not been suitable for the transportation of dangerous goods: it had not been equipped with an electrical system to prevent short circuits and fire; it had had no warning signs; and the driver had not been trained in the transportation of such goods. Şenocak Ltd. Şti., as the producer of the chafing fuel, bore the principal liability (40%) for the fire on account of its failure to ensure the safe transportation of its merchandise in accordance with the relevant legal requirements. Salihli Ltd. Şti., which had procured the truck in question, and A.S., the owner and operator of the truck, were each 20% liable for agreeing to transport such dangerous goods in a vehicle unfit for the job. A.S. was further liable because he had accepted additional cargo in the truck. The remaining responsibility lay with the deceased driver, who had not kept a safe distance from the vehicle in front. On the basis of those findings, the experts stated that they agreed with the first report’s conclusions.

At a hearing held on 7 October 2015 the civil court of first instance decided to appoint an expert to calculate the applicant’s pecuniary damage, on the basis of the findings of the third report of 13 November 2014.

In a report dated 19 November 2015 the expert calculated the applicant’s pecuniary damage as 229,613 Turkish liras (TRY) (approximately 75,145 euros (EUR) at the material time).

According to the latest information in the case file, the compensation proceedings are still ongoing in the court of first instance.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

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

The first applicant, Ms Jenőné Barcza, was born in 1962 and lives in Solymár; the second applicant, Ms Jánosné Básits, was born in 1957 and lives in Dunabogdány; the third applicant, Mr László Pávai, was born in 1930 and lived in Leányfalu.

The applicants were co-owners of a vacant plot of land situated in the urban area of the municipality of Leányfalu. It was originally designated as non-agricultural land and registered under plot no. 2733.

On an unspecified date, the Central Danube Valley Directorate of Water Management (Közép-Duna-völgyi Vízügyi Igazgatóság) established a protection zone for the water reserve of Leányfalu municipality. According to this decision, the applicants’ property, together with other plots of land, formed part of the protection zone. The administrative decision ordered the owner of the protected water reserve, the Hungarian State, to make an offer compensating the owners of the plots of land within the protection zone within sixty days.

On 16 December 2002 the General Directorate of Water Management (Országos Vízügyi Igazgatóság) upheld the first-instance decision on the establishment of a protection zone for the municipality’s water reserve. The decision also required that if the owner of the protected water reserve was different from that of the land in the protection zone, the owner of the protected water reserve had the obligation to acquire ownership of the land in the protection zone, either through expropriation or through a sale and purchase agreement (see paragraphs 24 and 25 below). That decision also quashed the obligation to proceed with compensation for the landowners within sixty days.

By a decision of 4 October 2005 the Szentendre District Land Registry redesignated the applicants’ plot of land as an “inner protection zone”.

Under the law, owners of land within the water protection zone were under an obligation to refrain from any activity that could endanger water quality or lead to pollution and from constructing any facility that did not serve the purposes of the water reserve. Moreover, they were obliged to allow the use of their property for any work necessary for the maintenance of the water reserve (see paragraph 25 below).

On 16 November 2005 the owners of the plots of land within the protection zone addressed a letter to the Treasury Asset Management Directorate (Kincstári Vagyoni Igazgatóság), the trustee of the water reserve, offering their plots of land for sale and asking the Directorate to make an offer.

The Directorate transferred the request to the Central Danube Valley Inspectorate for Environmental Protection, Nature Conservation and Water Management (Közép-Dunavölgyi Környezetvédelmi és Vízügyi Igazgatóság), which, due to lack of jurisdiction, returned the case to the Directorate on 13 December 2005, informing the Ministry of Environment Protection and Water Management about the measure. On 12 April 2006 the Ministry instructed the Danube Regional Waterworks Inc. (Duna Menti Regionális Vízmű Zrt.), the managing body of the water reserve, that the expropriation fell within the Waterworks’ competence.

Meanwhile, in proceedings initiated by some of the landowners, the Pest County Regional Court established that the Treasury Asset Management Directorate was under an obligation to proceed with the expropriation. Accordingly, the applicants made a new representation to the Ministry on 31 October 2007, asking it to make an offer within thirty days of receipt of the letter.

On 18 February 2008 they re-submitted their request to the Central Directorate for Water and Environment (Vízügyi és Környezetvédelmi Központi Igazgatóság), the body appointed by the Ministry for further decision-making.

On 11 August 2008 the owners of the plots of land, including the applicants, asked the Central Hungarian Regional Administration Office (Közép-magyarországi Regionális Közigazgatási Hivatal) to instruct the Ministry to proceed with the expropriation by setting a time-limit.

Their request was dismissed on 11 August 2008. According to the Administration Office, the owners had first requested the expropriation of their properties on 31 October 2007, thus the statutory three-year period during which the Ministry could acquire the property had not expired. The owners sought judicial review of this decision.

By a decision of 22 October 2009 the Pest County Regional Court overturned the administrative decision and remitted the case to the Administration Office, stating that the three-year period had expired since the expropriation proceedings were initiated, on 16 November 2005, at which time the claimants had offered their plot of land for sale.

On 2 December 2008 the Danube Regional Waterworks informed the applicants that any measure concerning the ownership of the disputed plot of land fell within the competence of the State.

On 19 January 2009 the Central Directorate for Water and Environment informed the applicants that it had appointed a limited liability company to prepare the sale and purchase agreements and the documents necessary for the expropriation by 29 May 2009.

On 27 January 2009 the limited liability company forwarded a purchase offer for the acquisition of the applicants’ plot of land for 3,974,000 Hungarian forints (HUF – approximately 13,000 euros (EUR)). The applicants disputed the amount of the compensation; nevertheless, the case file indicates that they never received an answer to their submissions.

On 14 December 2010 the Pest County Governmental Office (Pest Megyei Kormányhivatal) (the legal successor of the Central Hungarian Regional Administration Office) ordered National Asset Management Inc. (Magyar Nemzeti Vagyonkezelő Zrt) (the legal successor of the Treasury Asset Management Directorate) to serve an expropriation notice on the land owners within ninety days of receipt of the decision. This did not take place. After the deadline had passed the applicants applied to National Asset Management Inc. seeking the enforcement of the compulsory expropriation decision. The application was granted by the Government Office; despite this National Asset Management Inc. did not respond to any of the measures taken by the Government Office. Accordingly, the Government Office proceeded with the expropriation of its own motion, commissioning an expert opinion and holding hearings.

Finally, the decision on the expropriation of the applicants’ plot of land was issued by the Government Office on 16 December 2011, establishing the amount of compensation at HUF 39,170,000 (approximately EUR 126,000).

The applicants received the compensation on 27 January 2012.


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in 1964 and lives in Chelyabinsk.

In 1971 a local factory, which was the owner of a block of flats, assigned the flat at 125-56 Ulitsa Kommuny, Chelyabinsk, to P. under a social housing agreement. In 1992 the title to the building was transferred to Chelyabinsk Municipality. P. resided in the flat as a tenant until his death on 3 December 2010.

Following P.’s death, Chelyabinsk Municipality started the process for registering the flat as vacant in order to assign it to another person eligible for social housing. However, it turned out that, according to the documents, the flat was no longer municipal property and that it belonged to L. The federal registration service sent the relevant data to the head of the municipality’s administration on 16 February 2011. The head of the administration asked the regional prosecutor to look into the situation with the flat.

The prosecutor established that the flat had been subject to a number of transactions. According to the relevant documents, on 9 November 1992 the factory had signed a privatisation agreement to transfer the flat to Kh. On 3 December 1992 the transaction was registered by the registration service. On 25 January 2011 Kh. sold the flat to L., who sold it on 21 April 2011 to Ya. Those transactions were also registered by the registration service.

A police investigator questioned Kh., who denied having anything to do with the flat. As regards his passport details indicated in the privatisation agreement, he explained that in 2009 and 2010 he had lost his passport twice and that he had never met P. or L. The police further established that L., who was serving in the army at the time, had also lost his passport in 2009.

On 31 March 2011 the prosecutor responded to the head of the administration advising him as follows:

“It appears that the persons who were parties to the transactions with the flat committed a crime in this respect. Accordingly the materials have been forwarded to the [police] for further inquiry ... .

[The police] will inform you of the results of the inquiry ... .

Furthermore, in order to prevent further transactions with the flat, I have asked the Chief State Registrar to refuse state registration of any future transactions with the flat.”

On an unspecified date the police opened a criminal investigation into the transactions involving the flat.

On 22 June 2011 Ya. sold the flat to the applicant.

On 30 June 2011, acting on behalf of the municipality, the prosecutor brought an action against Kh., L. and Ya. to seek repossession of the flat and the annulment of all transactions executed in respect of it. The prosecutor argued that Kh., had never resided in the flat and that the flat had never been transferred to him from the municipality under a privatisation scheme. The prosecutor asked the court to invalidate the privatisation agreement of 9 November 1992 and subsequent transactions in respect of the flat as having no basis in law. The Tsentralniy District Court of Chelyabinsk fixed a hearing for 1 September 2011.

On 6 July 2011 the registration service issued a certificate confirming the purchase of the flat by the applicant and her title to it.

On 16 September 2011 the District Court granted the applicant’s request and allowed her to take part in the proceedings initiated by the prosecutor. She claimed that she had bought the flat in good faith and that the municipality could not recover it from her.

On 5 October 2011 the District Court issued an injunction against the registration of any transactions involving the flat.

On 23 December 2011 the Tsentralniy District Court of Chelyabinsk granted the prosecutor’s claims brought on behalf of the municipality. The applicant’s title to the flat was annulled and transferred to the municipality. The court also ordered the applicant’s eviction. Lastly, it ruled that Ya. should return to the applicant the sum she had paid for the flat. The court reasoned as follows:

“Pursuant to Article 302 of the Civil Code of the Russian Federation, if a property has been purchased from a person who had no right to sell it, and the purchaser is unaware and could not have been aware [of that fact] (the bona fide purchaser), the owner shall have the right to reclaim that property from the purchaser, if the said property was lost by the owner or by the person into whose possession the owner has conveyed the property, or if it was stolen from either of them, or if it left their possession against their will in another way.

It has been established in the course of the proceedings that the flat in question left the municipality’s possession against the latter’s will. Accordingly, the flat ... should be recovered from [the applicant] and transferred to the municipality.”

On 5 March 2012 the Chelyabinsk Regional Court upheld the judgment of 23 December 2011 on appeal. The court also noted that the applicant could not be recognised as a bona fide purchaser given that she had known that the flat had been resold three times within five months.

On 13 December 2013 Ya. died. The part of the judgment of 23 December 2011 concerning the monetary award in the applicant’s favour remains unenforced.

According to the Government, the applicant has not been evicted and continues to reside in the flat.

On an unspecified date the applicant brought an action against the State, alleging that the local authorities’ inaction had resulted in her buying a flat from a person who had no right to sell it to her.

On 19 December 2013 the Tverskoy District Court of Moscow dismissed the applicant’s claims.

On 16 June 2014 the Moscow City Court upheld the judgment of 19 December 2013 on appeal.


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

The applicant has been detained in various departments of correctional colony no. 36/5 of Krasnoyarsk, Russia (hereinafter “IK-36/5”), since 30 May 2011.

The applicant disposed of between 2.2 and 5.2. square metres (sq.m.) of personal space during different periods of his detention.

The applicant complained of overcrowding, insufficient number of toilets and of the fact that the toilets were not separated from the rest of the cells.


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Non-pecuniary damage - award

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos

The applicant, Mr Laszlo Kilyen, was born in 1972 and lives in Murgeşti.

On 10 May 2003 police officers T.M. and L.C.V. were carrying out an investigation into the theft of two cars in the village of Murgeşti. The applicant, who lived alone in a house with a yard, was away from home on a trip abroad. On the same day at around 4 p.m., the two officers entered the applicant’s yard by breaking the main gate which had a closing system made by the applicant from metal wires. The officers took note of the chassis series of two cars found in the applicant’s shed. They also looked in several boxes which contained spare parts for cars.

After a certain period of time, the applicant’s neighbour, K.M., entered the yard and questioned the two officers about the reason for their presence there. T.M. and L.C.V. disclosed their identities and informed K.M. that they were carrying out an investigation into the theft of two cars. Before leaving the yard, the officers informed K.M. that the two cars found in the applicant’s shed were not the ones reported stolen and left him a summons ordering the applicant to report to the police station as soon as possible.

On 15 May 2003, upon his return home, the applicant lodged a complaint with the Prosecutor’s Office of the Mureş County Court against the two police officers for the crime of trespassing under Article 192 of the Criminal Code. He alleged that the officers had entered his yard in his absence and without his consent. He also sought civil damages from the two alleged perpetrators.

In his statement given before the prosecutor on 1 July 2003, the applicant mentioned that he was a car mechanic and that he often travelled to Hungary to buy spare parts. He alleged that he felt harassed by local police officers working in the Car Theft Department who, on several occasions, had entered his yard in his absence in order to check whether he was hiding stolen cars. The applicant also alleged that, although the police never found stolen cars in his possession, the frequent police checks gave him a reputation in the village of being a car thief.

The two officers declared before the prosecutor that they had found K.M. in the applicant’s yard and had entered believing that he was the owner and assuming that they had his permission.

On 8 July 2003 the Prosecutor’s Office of the Târgu Mureş Court of Appeal decided to discontinue the proceedings against T.M. and L.C.V. The prosecutor investigating the case noted that the two officers had entered the applicant’s yard in his absence and without his permission. However, when K.M. had arrived at the scene, they had immediately disclosed their identities. Moreover, they had been on duty and had only noted the chassis series of the applicant’s cars. The prosecutor therefore concluded that the officers had had no intention of committing a crime. On 29 October 2003 a complaint by the applicant against this decision was rejected by the superior Prosecutor from the Prosecutor’s Office of the Târgu Mureş Court of Appeal.

On 27 January 2004 the applicant appealed against the prosecutors’ decisions before the Târgu Mureş Court of Appeal. He alleged that the two officers had illegally entered his home in his absence, without his consent and without a search warrant. He also complained that his rights as guaranteed by Article 8 of the Convention had been breached by the unlawful search carried out by the two police officers.

The Court of Appeal rejected the applicant’s appeal on 27 February 2004 holding that T.M. and L.C.V. had acted in accordance with their duties as provided for by articles 41, 42 and 43 of Law no. 360/2002 on the Status of Police Officers. The court underlined that the officers had disclosed their identities and the purpose of their presence on the premises as soon as the applicant’s neighbour enquired. It was further held that they had been on duty and carrying out an investigation, and therefore it could not be held that they had intended to commit a crime.

The appeal by the applicant on points of law (recurs) against this decision was dismissed on 28 May 2004 by a final judgment of the High Court of Cassation and Justice which held that the officers had acted in accordance with the provisions of the Law no. 218/2002 on the Organisation of the Romanian Police. The court held that the officers had been in the presence of a witness and that they had disclosed their identities, and therefore had no intention of illegally entering the applicant’s home.


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

The applicant, Mr Behruz Vazvan, is a Finnish national who was born in 1961 and lives in Vantaa. He was represented before the Court by Mr Risto Rouvari, 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.

The applicant made a technical invention, for which he applied for a patent on 28 October 1994. Subsequently, on 14 December 2001, he received a patent for his invention which was, however, later withdrawn.

On 1 November 1994 the applicant joined a big telecommunications company in Finland. He told the company early on about his invention and proposed cooperation with the company. The company apparently learned about his patent application on 12 July 1995 but was not interested in cooperation. On 18 October 1995 the applicant’s employment with the company ended.

In 2002 the applicant noticed that the company was infringing his patent and informed the company of this. The company initiated civil proceedings against the applicant, claiming ownership of the applicant’s invention. On 9 February 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) rejected the company’s claim to ownership of the applicant’s invention but accepted its alternative claim and confirmed that the applicant had made the invention in question while working for the company. The court also confirmed that the company held a licence for the invention and that it had to pay the applicant reasonable compensation for this patent licence. On 31 January 2008 the Helsinki Appeal Court (hovioikeus, hovrätten) upheld the District Court judgment. This judgment became final.

As the applicant and the company could not agree on reasonable compensation for the patent licence, the applicant initiated civil proceedings against the company in the Helsinki District Court on 27 November 2006. He claimed, inter alia, compensation of 924,720,000 euros (EUR) for the use of the patent licence.

On 6 October 2010 the Helsinki District Court accepted the applicant’s claims partly and ordered the company to pay him EUR 12,000 in compensation. The applicant was also ordered to pay the company’s costs and expenses before the District Court, which after mitigation amounted to EUR 60,000. The court found that the applicant had not been able to show that the company had actually used the invention for which it held the licence. The invention had thus had no greater value for the company. The fact that the company held the patent licence had not prevented the applicant from patenting the invention or giving further licences to it, as the applicant still held all rights. As there were six separate patents, the court estimated the proper compensation to be EUR 2,000 for each patent and thus EUR 12,000 in total. At the same time as the judgment, the parties also received, for information, a statement drafted by the technical experts appointed by the court and given to the court in the present case.

By letter dated 16 December 2010 the applicant appealed to the Helsinki Appeal Court requesting, inter alia, that the company be ordered to pay him EUR 924,720,000 in compensation for the holding of the patent licence and that he be freed from the obligation to pay the company’s costs and expenses. He requested that an oral hearing be held and that the technical experts attend this hearing. Moreover, the applicant complained about the fact that the obligation to pay costs and expenses completely cancelled out his right to compensation and asked to be dispensed from paying. The company lodged a counter appeal, requesting that the compensation be reduced to EUR 2,000 and that the applicant be ordered to pay the company’s costs and expenses.

On 17 October 2012 the Helsinki Appeal Court, after having held an oral hearing, accepted the company’s claims and reduced the amount of compensation payable to the applicant to EUR 2,000. It also ordered the applicant to pay the company’s costs and expenses before the District Court and the Appeal Court to a total of EUR 444,471.08 plus interest. The court found that as the compensation concerned just one patent, to which the company held only a licence, EUR 2,000 was proper compensation. As to the costs and expenses, the court found that the different material positions of the applicant and the company spoke for the mitigation of the payment obligation in the applicant’s favour. However, even though the invention had been important to the applicant, he had requested compensation equal to 4% to 8% of the annual turnover of the whole company-group. His claims had, from the outset, been manifestly ill-founded and non-itemised, and no evidence had been presented to support them. The grounds for mitigation were not therefore fulfilled and the applicant was ordered to pay the costs and expenses of the company in full.

By letter dated 11 December 2012 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds of appeal already presented before the Appeal Court. Moreover, he stressed the fact that the technical experts had not attended the Appeal Court hearing and requested that they be asked to present a further statement on the matter at hand. If that option was not available, he requested that the case be referred back to the Appeal Court for the hearing of the experts.

On 30 May 2013 the Supreme Court refused the applicant leave to appeal.

According to sections 65 and 66 of the Patents Act (patenttilaki, patentlagen, Act no. 550/1967, as in force at the material time), the Helsinki District Court is competent to hear patent matters. When examining a patent matter, the District Court is to be assisted by two technical experts appointed by the court. The experts are to give their views on the matters submitted to them by the court. Their views are entered in the record and they are entitled to question the parties and witnesses.

Section 67 of the Patents Act provides the following:

“The District Court shall appoint an appropriate number of experts as referred to in section 66 for each calendar year. Before making the appointments, the Court shall request the opinion of the Technical Research Centre of Finland. Such appointment may not be refused without statutory justification.

Before taking up his appointment, an expert shall be required to take the prescribed oath.

Experts shall be paid a reasonable fee for each case as laid down by the Court together with compensation for travelling expenses as prescribed by the Government.”

It appears from the Government proposal HE 124/2012 vp that the practice at the relevant time was that the experts practically always gave their statement after the conclusion of the oral hearing. The parties to the proceedings were not given a possibility to comment on the experts’ statement.

This state of affairs changed when the Patents Act was amended with effect from 1 September 2013 (Act no. 101/2013). According to the new section 66c of the Act, the District Court shall provide the parties a possibility to comment on the statement of the experts before deciding the case. According to the transitional provisions, if such a matter has already become pending in a District Court before the entry into force of the amendment, the previous provision is applicable.

Chapter 17, section 46, of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken, Act no. 571/1948) provides that:

“Before an expert witness is appointed, the parties shall be heard on this. If the parties agree on an expert witness, that person shall be used if he or she is deemed to be suitable and there is no impediment to the same. In addition, the court may appoint one expert witness.

No one may be appointed an expert witness against his or her will, unless he or she is under the obligation to serve as an expert witness by virtue of public office or function or on the basis of a special provision.”

Chapter 17, section 50, of the same Act (as amended by Act no. 1052/1991) further provides that:

“An expert shall give a detailed account on the findings in his or her investigation and, on the basis of the account, a substantiated statement on the question put to him or her. The statement shall be compiled in writing, unless the court deems there to be reason to allow for its being given orally. When a person is appointed as an expert witness not on the basis of his or her official position or function, the court shall determine the time within which the statement is to be given.

An expert witness who has given a written statement shall be orally heard in court, if a party so requests and the hearing is not evidently irrelevant, or if the court deems the hearing of the expert witness necessary. If there are several expert witnesses, one or several of them may be called to be heard.”


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1945 and lives in Kaliningrad.

On 17 January 2007 the applicant’s son, Mr Pavel Agarkov, was taken to the Kaliningrad Emergency Hospital (больница скорой медицинской помощи г. Калининграда) with a severe head trauma. He lapsed into a coma a week later, and died on 1 February 2007.

On 5 February 2007 the Moskovskiy District Prosecutor’s Office of Kaliningrad (“the District Prosecutor’s Office”) received a pre-investigation inquiry file containing evidence of the elements of a crime under Article 111 § 4 of the Criminal Code (intentional infliction of serious bodily harm causing the victim’s death).

The pre-investigation inquiry established that at about 5 a.m. on 17 January 2007 the applicant’s son had started a fight with a certain V. In the course of the fight the applicant’s son had inflicted several blows on V. with a wooden baseball bat. On the third blow the bat had struck a wall and had broken into two pieces. The applicant’s son had continued to beat V. with his bare hands and kick him with his feet. V. had then managed to pick up a fragment of a broken bat and had hit the applicant’s son several times on the head, causing the latter the physical injuries that resulted in his death on 1 February 2007.

On 15 February 2007 an investigator of the District Prosecutor’s Office issued a decision refusing the institution of criminal proceedings against V., being of the opinion that V. had acted in necessary self-defence.

On 26 February 2007 the District Prosecutor set aside the above decision. Criminal proceedings into the death of the applicant’s son were instituted on the same day (criminal case no. 030292/07).

On 7 March 2007 V. confessed to having inflicted on the applicant’s son bodily injuries which caused his death. On the same day a preventive measure in the form of an undertaking not to leave the town and to behave properly was imposed on him.

On 14 March 2007 V. was charged with homicide committed as a result of exceeding the limits of necessary self-defence (Article 108 § 1 of the Criminal Code). He was questioned as an accused and fully acknowledged his guilt in relation to the actions with which he was charged.

On 19 March 2007 two fragments of the baseball bat were seized and examined by the investigator.

On 22 March 2007 the applicant was admitted to the proceedings as an aggrieved party. She was questioned by the investigator the same day, but could not submit any information regarding the circumstances of her son’s death. During her additional questioning as a victim on 7 April 2007 she stated that her son had told her that he had been beaten by police officers from the Moskovskiy District Department of the Interior of Kaliningrad (ОВД Московского района г. Калининграда).

The investigation established that on 17 January 2007 officers from the Moskovskiy District Department of the Interior of Kaliningrad had arrived at the scene of the incident in order to stop a disturbance of public peace caused by the applicant’s son’s unlawful actions. Upon his arrival at the police station the police officers, having assessed the victim’s medical condition as critical, called an ambulance for him.

On 6 April 2007 during an on-site verification of his testimony, V. demonstrated with the help of an assistant and an improvised object how the applicant’s son had struck him with a wooden baseball bat, how this bat had broken when it struck the wall, and how he had afterwards inflicted several blows on the applicant’s son’s head with a fragment of this bat.

On 23 April 2007 the forensic medical examination was carried out, establishing that the applicant’s son’s death had been caused by an open blunt traumatic brain injury accompanied by contused head wounds and bruises, haemorrhages in the soft tissues of the head, fractures of the skull bones, haemorrhages above and under the layers of mater, complicated by brain oedema and compression (forensic medical report no. 39/696).

On 10 May 2007 the District Prosecutor approved the bill of indictment and referred the case to the Moskovskiy District Court of Kaliningrad (“the District Court”) for examination on the merits.

On 22 October 2007 the District Court returned the criminal case to the Prosecutor for re-drafting of the bill of indictment and remedying of deficiencies that prevented examination of the case, in particular, the formulation of exactly how V.’s actions had exceeded the limits of necessary self-defence.

On 29 December 2007 the chief investigator from the Kaliningrad investigative division of the Investigation Department of the Investigative Committee at the Russian Federation’s Prosecutor’s Office for the Kaliningrad Region (“the Kaliningrad investigative division”) discontinued the criminal proceedings, having arrived at the conclusion that the injuries resulting in the death of the applicant’s son on 1 February 2007 had been inflicted by V. as actions of necessary self-defence. The decision was not supported by reference to any evidence.

On 18 January 2008 the Deputy Head of the Kaliningrad investigative division set aside the above decision and ordered a fresh investigation.

Subsequently, between 23 February 2008 and 29 October 2009 the criminal proceedings were discontinued and resumed on nine occasions. Three of the decisions, namely those of 23 February, 23 May and 30 June 2008, repeated word for word the previous decision of 29 December 2007. The following six decisions, namely the decisions of 22 November 2008 and 8 January, 20 February, 15 July, 29 August and 29 October 2009, reached the same conclusion, relying on:

- forensic medical report no. 39/696 of 23 April 2007 (see paragraph 17 above);

- statements by V. submitting that on 17 January 2007 he had had a fight with the applicant’s son and had administered to the latter at least two blows to the head with a piece of broken baseball bat, following which he had called the police, who had taken the applicant’s son to the police station;

- statements by witnesses T. and P. who were present at the scene of the fight and confirmed V.’s statements;

- statements by police officer Erk, who arrived at the scene and saw the applicant’s son squatting down, with blood streaming from his head and a bruise below his eye; he submitted that the applicant’s son, V., T. and P. had been taken to the police station, following which an ambulance had been called for the applicant’s son as his head was bleeding; no violence had been used against the latter;

- statements by duty officer Tr., who had received information about the fight and had seen the applicant’s son brought to the police station in a state of alcoholic intoxication, with a lacerated wound in the region of one eye and several abrasions, following which an ambulance had been called to take him to hospital; he submitted that nobody in his presence had subjected the applicant’s son to any beatings;

- similar statements by duty officer Ser.;

- statements by operative agent Mir., who saw the applicant’s son at the police station with injuries to his body; he submitted that he had not seen anybody beating the applicant’s son at the police station;

- statements by witness F., who arrived at the police station having been told that the applicant’s son had been taken there; however, she had then been informed that the latter had been taken to hospital to be treated for his injuries; she further submitted that in the hospital the applicant’s son told her that he had been beaten up by the police in the entrance to V.’s house;

- statements by witness G., who had accompanied the applicant’s son in his car to the scene of the fight; he submitted that the applicant had told him that he had a score to settle with a man called “Erik” who had cooperated with the police; he had seen the applicant’s son knock on a window and enter the building with a baseball bat in his hands; about fifteen minutes later he had seen the police arrive at the exit from the building; the applicant’s son had been walking unassisted, he had not been handcuffed, but had been holding his head; one of the police officers had been holding a plastic bag containing two fragments of the baseball bat; the applicant’s son had got into the police car and been taken to the police station; he had not seen anybody hitting the applicant’s son or threatening him;

- statements by the applicant, who submitted that her son had told her that he had been beaten up by the police;

- statements by witness Min., who had heard about the fight from V.;

- statements by witness Mot., who had heard about the fight from T.;

- statements by neighbours Sukh. and Tishch., who knew nothing about the events in question;

- statements by witness Gor., the applicant’s son’s partner, who had been told by the applicant’s son that he had been beaten by the police;

- statements by witness Ven., who was receiving treatment in the hospital at the time when the applicant’s son was admitted and who submitted that the latter had told him that he had sustained the injuries through being beaten with a baseball bat;

- the police station’s registration log, which contained no mention of the applicant’s son being arrested on the 17 January 2007;

- expert report no. 366, according to which V. had an abrasion on his right forearm which could have been caused on 17 January 2007 by a blow from a hard blunt object;

- expert report no. 250 on the examination of a sample of the applicant’s son’s skin from the left half of the parietal region of the head containing well-defined diffuse microinclusions of iron;

- expert report no. 52 of 2 July 2008 stating that the applicant’s son’s open blunt brain injury had been caused by a combination of traumatic impacts in the region of the head which could have resulted from the circumstances described by V., that is to say by the infliction of multiple blows by a baseball bat fragment in the region of the head.

In the meantime, the applicant repeatedly challenged the adequacy of the investigation alleging the involvement of police officers in the death of her son. In particular, she complained about the failure of the investigator to inform her of the decisions taken in the case and to explain the possible avenues for appeal. She further complained about the refusal of her requests for information about the exact time when V.’s call was registered at the police station, the exact time when her son was brought to the police station and when the ambulance was called for him. The applicant also sought to have clarified the reasons why her son had not been questioned about the circumstances of the incident during the week before he lapsed into a coma, to obtain an expert examination of the bloodstains on his clothes which could have clarified whether he had been standing up or lying down when he sustained his injuries, and an expert examination which could have clarified the origin of metal particles found in the wounds of her son.

In response to her complaints, the District Court on 18 August, 5 September, 26 September and 12 December 2008 found the investigator’s refusals and lengthy inactivity unlawful and unjustified and ordered him to remedy the above deficiencies by conducting a thorough and comprehensive investigation.

On 16 December 2008 the applicant’s son’s clothes were seized from the applicant for expert examination.

On 14 September 2009 the District Court found the investigator’s inactivity unlawful, having noted that when taking the decision of 15 July 2009 the investigator had failed to comply with his own ruling of 10 July 2009 granting the applicant’s requests.

On 13 January 2010 the Deputy Head of the Investigative Committee at the Russian Federation’s Prosecutor’s Office for the Kaliningrad Region set aside the decision of 18 January 2008 (see paragraph 21 above) as having been taken in violation of the criminal procedure. As a result, all the evidence obtained after 18 January 2008 was found inadmissible.

On 15 January and 22 January 2010 forensic biological and forensic trace examinations of the applicant’s son’s clothes were ordered, which duly established that the latter had been in an upright position, or close to such a position, when the bloodstains appeared on his clothes (report no. 32 of 12 February 2010).

On 22 January 2010 a forensic medical examination by an expert commission was ordered. The examination established that the open blunt traumatic brain injury inflicted on the applicant’s son had been caused by at least five traumatic impacts, and that it could have arisen in the circumstances indicated by the accused V. during his questioning on 7 March 2007 and the on-site verification of his testimony on 6 April 2007 (see paragraphs 11 and 16 above) (report no. 13 of 9 February 2010).

On unspecified dates the applicant and the witnesses were questioned for a second time and confirmed their previous statements.

Between 14 February 2010 and 21 February 2012 the criminal proceedings were discontinued on five occasions on the grounds of absence of the constituent elements of a crime under Article 108 § 1 of the Criminal Code in the actions of V., and were subsequently resumed.

On 4 May 2012 the District Court found the decision of 21 February 2012 unlawful and unsubstantiated. The District Court also found unlawful the investigator’s failure to notify the applicant of the procedural decisions taken in reply to her requests.

On 6 July 2012 the acting head of the Moskovskiy District of the Kaliningrad investigative division set aside the decision of 21 February 2012.

On 6 August 2012 the investigator for the Moskovskiy District from the Kaliningrad investigative division discontinued the criminal proceedings. The decision noted that the investigation had identified the constituent elements of a crime under Article 108 § 1 of the Criminal Code in the actions of V. However, since the crime belonged to the category of minor crimes and had been committed over two years earlier, in 2007, V. was to be exempted from criminal liability pursuant to Article 78 § 1 (a) of the Criminal Code (exemption from criminal liability due to expiration of statutory time-limits for criminal prosecution).

On 5 December 2012 the acting head for the Moskovskiy District of the Kaliningrad investigative division took the decision to resume the proceedings in view of the necessity of conducting psycho-physiological expert examinations − using a polygraph − of the police officers who had brought the applicant’s son to the police station so as to verify the veracity of their statements.

According to information contained in the case file, the proceedings were still pending in December 2012.

The case file contains no information regarding further developments in the investigation of the circumstances surrounding the applicant’s son’s death.

On 28 December 2007 the applicant sought the institution of criminal proceedings against the police officers allegedly involved in the death of her son.

On 6 June 2008 the chief investigator of the Kaliningrad investigative division issued a decision refusing the institution of criminal proceedings against officers Erk., K., Tr. and Ser. of Kaliningrad’s Moskovskiy District Department of the Interior under Articles 285 and 286 of the Criminal Code (abuse of power by an official, actions of a public official which clearly exceed his or her authority).

On 14 July 2008 the Deputy Head of the Kaliningrad investigative division set aside the above decision and ordered a fresh pre-investigation inquiry. In particular, the investigator was instructed to assess the actions of the police officers under Articles 125 (leaving without help a person in danger) and 306 (knowingly false accusation) of the Criminal Code.

On 24 July 2008 the investigator of the Kaliningrad investigative division again issued a decision refusing the institution of criminal proceedings against officers.

On 26 September 2008 the District Court found the above decision unlawful. The District Court established that no fresh inquiry had been conducted and that the instructions given in the decision of 14 July 2008 had not been complied with.

On 18 November 2008 the Kaliningrad Regional Court (“the Regional Court”) upheld the decision of 26 September 2008 on appeal.

On 8 February 2010 the Kaliningrad investigative division’s investigator refused to open criminal proceedings against the police officers under Articles 125, 285 and 286 of the Criminal Code on the grounds that the constituent elements of a crime were absent in their actions.

On 19 August 2010 the District Court found the above decision lawful. The applicant did not appeal.

On 25 December 2008 the applicant brought civil proceedings against the Ministry of Finance seeking compensation in respect of nonpecuniary damage caused to her by the failure of the domestic authorities to investigate her son’s death.

On 31 March 2009 the Tsentralniy District Court of Kaliningrad dismissed the applicant’s claims.

On 20 May 2009 the Kaliningrad Regional Court upheld the judgment on appeal.