Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

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

The first applicant, Mr Aleksey Yuryevich Vlasov, was born in 1957 and lives in Moscow.

On 6 October 2008 Mr Vlasov applied to the Federal Migration Service for a travel passport which would allow him to go abroad.

On 27 October 2008 the Golovinskiy District Court of Moscow convicted him of smuggling and sentenced him as follows:

“... the penalty in the form of three years’ imprisonment is not to be enforced and is to be considered conditional with a three years’ probationary period.

To require Mr Alexey Vlasov to report twice a month during the probationary period to the authority in charge of execution of conditional sentences, and to inform [that authority] of any change of residence ...”

On 11 November 2008 his application for a travel passport was refused by reference to the fact that he had been given a suspended threeyear sentence whose period of suspension had not yet expired.

The applicant Mr Vlasov applied for judicial review of the refusal.

On 3 June 2009 the Butyrskiy District Court of Moscow upheld the refusal as lawful, finding as follows:

“The argument by Mr Vlasov to the effect that the Golovinskiy District Court’s judgment of 27 October 2008 contained an exhaustive list of restrictions during the probation period which did not include a restriction on leaving Russia and which was not, in the claimant’s view, subject to expansive interpretation by State officials, does not contradict section 15(4) of the Entry and Exit Procedures Act which provides for a restriction on the right to leave for abroad in cases of both actual custodial and suspended sentences. A person who is given a suspended sentence is a convicted offender serving a sentence, and may be relieved from punishment only after the period of suspension has expired. Mr Vlasov’s period of suspension expires on 14 January 2012 and after its expiry Mr Vlasov’s criminal conviction will be spent in accordance with Article 86 of the Criminal Code. Until that time Mr Vlasov is an offender serving a sentence, which is a ground for restricting his right to leave for abroad.”

On 18 August 2009 the Moscow City Court rejected an appeal against the District Court’s judgment. It held:

“The arguments that Mr Vlasov was subjected to restrictions that go beyond those imposed by his conviction and that he was compelled to serve the sentence within the Russian Federation, whereas he needed to take care of his business interests and perform his duties abroad, are not grounds for setting aside the correct judgment [of the first-instance court].”

The second applicant, Mr Mikhail Mikhaylovich Benyash, was born in 1977 and lives in Sochi.

On 31 August 2011 the Tsentralnyy District Court of Sochi convicted Mr Benyash of extortion and sentenced him to three years’ imprisonment, suspended for three years. He was released in the courtroom. On 12 October 2011 the Krasnodar Regional Court upheld the conviction on appeal.

On 5 December 2011 the Federal Migration Service refused Mr Benyash’s application for a travel passport, noting that he had been arrested on 1 September 2010 and that, according to the available information, the criminal proceedings against him were still pending.

The applicant Mr Benyash applied for judicial review of the refusal.

On 28 June 2012 the Tsentralnyy District Court of Sochi upheld the refusal as lawful:

“...for the time being the conviction of 31 August 2011 is not yet spent, Mr Benyash is a convicted offender, and, accordingly, the refusal [of travel documents] does not violate his rights”.

On 29 November 2012 the Krasnodar Regional Court rejected the appeal, endorsing the reasoning of the District Court.

On 11 April 2013 the Regional Court refused him leave to appeal to the cassation instance.


CASE OF GALAIDA AND COPOSCIU v. THE REPUBLIC OF MOLDOVA

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

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 and of the lack of any effective remedy in domestic law.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate facilities;Adequate time;Preparation of defence;Article 6 - Right to a fair trial)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was born in 1984 and is currently being detained in a correctional colony in the village of Torbeyevo, Mordovia Republic, Russia.

On 21 April 2005 the applicant was convicted during a public hearing of murder and was sentenced to imprisonment. He and his lawyer had had thirty-five minutes to study the case file, which consisted of five volumes. The conviction was upheld on appeal in a public hearing on 18 August 2005 (“the 2005 proceedings”).

On 30 July 2010 the appeal judgment was quashed by way of a supervisory review (on grounds not related to the applicant’s Article 6 complaints in respect of the 2005 proceedings) as the applicant’s right to defence had been breached during the appeal hearing. The case was sent for fresh examination on appeal.

The applicant was allowed to re-read the case file within the new appeal proceedings. He and his lawyer had five days, from 4 to 8 October 2010, to study the now six-volume case file (about 1,500 pages) in remand prison no. IZ-24/1 in Krasnoyarsk, where the applicant was being detained. The applicant was allegedly held in a metal cage while studying the case, without a table or any other facilities to take notes. After studying the case file both the applicant and the lawyer filed appeals. In his appeal statements the applicant analysed the case materials in detail, referred extensively to all the main items of evidence, including expert opinions and witness testimony, and referred to exact pages in the case file.

The applicant’s case was examined by the Supreme Court of Russia (“the Supreme Court”) over four hearings, three of which (21 October, 30 November and 16 December 2010), according to the trial record and the court’s procedural decisions, were held in camera. The case file did not contain any formal decision by the Supreme Court to close the hearings to the public. The applicant was represented by two lawyers who confirmed to the court that they had had enough time to study the case file.

On 16 December 2010 the Supreme Court upheld the judgment of 21 April 2005. The Supreme Court’s judgment was delivered to the remand prison, where the applicant was still being detained, on 11 January 2011 (“the 2010 proceedings”).


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage)

Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

From 1996 onwards the applicant, a former police officer discharged for health reasons, enjoyed disability benefits under the Labour Disablement Insurance Act (Wet op de Arbeidsongeschiktheidsverzekering – “WAO”). He was allowed to earn by his own means a sum not exceeding 60,000 Netherlands guilders (NLG) without losing his entitlement under the WAO. This he did by running a one-man business as a trainer teaching people how to deal with stress.

The applicant states that he entered into an arrangement with an official of the competent social-security authority (at that time called Cadans), one Mr G., which was intended to make possible his transition into independent self-employment without the need for additional social security benefits. He alleges that Mr G. gave him the assurance that he would be permitted for a period of five years to earn income over and above the sum of NLG 60,000, the purpose being to allow him to create cash reserves in case his health should deteriorate further. The agreement had been witnessed by another official, one Mr S.

In February 1999 the applicant announced his intention to continue his business in the form of a limited liability company (besloten vennootschap met beperkte aansprakelijkheid). He wrote to the social-security authority (re-named Social Security Implementing Institution for Government and Education (Uitvoeringsinstelling sociale zekerheid voor overheid en onderwijs; “USZO”)) asking it to confirm that this change would not affect the arrangements made during the time when he was self-employed. In the ensuing domestic proceedings the social security authorities submitted one or more letters which they stated had been sent in response, including one dated 12 July 1999 denying the applicant the confirmation sought. The applicant states that he never received any reply.

In September 1999 the applicant’s business was transformed into a limited liability company. The shares were held by the applicant’s wife. The applicant was its managing director and its only employee; he entered its employ on 1 October 1999.

On 3 September 2003 Mr D., an official of the social-security authority (by this time re-named Employee Insurances Schemes Implementing Body (Uitvoeringsinstituut werknemersverzekeringen; “UWV”)) submitted an extensive investigation report implicating the applicant and his wife in suspected social-security fraud. According to the report, the applicant had defrauded the social-security system by declaring only his own income as an employee of the limited liability company but not the company’s profits, which were declared as taxable income by his wife. The report included the following passage:

“It was arranged in addition that only what Gillissen earned in self-employment after his discharge would be considered his residual earning capacity (resterende verdiencapaciteit). The labour expert (arbeidsdeskundige) Mr G. has stated that he discussed this extensively with Gillissen, who could agree to that position and who indicated during the conversation that in the coming years more growth was to be expected and that it was his intention to make his own living in self-employment with a corresponding gradual reduction to zero (afbouw) of the WAO benefits.”

On 28 January 2004 UWV gave a decision reducing the applicant’s WAO benefits with retroactive effect. On 3 March 2004 UWV gave a second decision ordering the applicant to repay the excess.

The applicant lodged objections (bezwaar) against both decisions. As relevant to the case before the Court, the applicant argued that as from 1999 he had kept the competent authorities informed of developments as they occurred, withholding no information, and invoked the arrangement which he had agreed with Mr G. He named Mr S. as a witness.

Having held a hearing on 11 January 2006, UWV gave a decision on 31 January 2006 dismissing the applicant’s objections. It found that the applicant could reasonably have been aware that the total of his additional income – the sum of his salary and the profits of the limited liability company – was too high for him to be entitled to the full amount of his social-security benefits. The alleged arrangement to the contrary was not reflected in the case file, and in any case, whatever statements had been made (assuming that any had been made at all) had been made by a person lacking the requisite competence and could not bind UWV.

The applicant lodged an appeal (beroep) with the Roermond Regional Court (rechtbank). As relevant to the case before the Court, he complained about UWV’s failure to question Mr G. and Mr S., which in his submission reflected a lack of due care affecting the quality of the investigation. He also submitted that Mr G. had acted within his competence in making the agreement alleged.

Having held a hearing on 30 August 2006, the Regional Court gave judgment on 21 November 2006 dismissing the applicant’s appeal. Its reasoning included the following:

“The [applicant] has also stated that [UWV] officials had agreed with him that he would be permitted to earn unlimited income in addition to his WAO benefits for a period of five years. The Regional Court has found no evidence of such an agreement in the documents available, nor is there any other reason to consider it plausible. On the contrary, it appears from the labour expert Mr G.’s report of 26 October 1998 that the [applicant’s] income did in fact have to be taken into account. In addition, [UWV] answered the [applicant]’s questions about the possibilities of obtaining income from work (additional income) in a letter of 12 July 1999, which letter incidentally the [applicant] claims not to have received. This letter states in no uncertain terms that [UWV] must always be informed immediately of any taking up of work and generation of income. But even without this letter it ought in reason to have been clear to the [applicant] that income can have an effect on the benefits. This ground of appeal therefore also fails.”

The applicant lodged a further appeal (hoger beroep) with the Central Appeals Tribunal (Centrale Raad van Beroep). As relevant to the case before the Court, he again complained in his written submissions about UWV’s failure to hear Mr G. and Mr S. as witnesses. He asked for them both to be heard as a witness in order to prove the existence of the agreement. He also prayed in aid his acquittal by the ‘s-Hertogenbosch Court of Appeal, which had been given in the meantime (see paragraph 22 below). He did not, however, himself summon Mr G. and Mr S. as witnesses by registered letter or bailiff’s writ.

The Central Appeals Tribunal held a hearing on 8 August 2008. The applicant did not bring Mr G. and Mr S. along but restated his request to have them heard as witnesses. The Central Appeals Tribunal decided to reopen its examination of the facts of the case in order to put an additional question to UWV. UWV replied to the Central Appeals Tribunal’s question in writing. The applicant and UWV waived the right to a further hearing.

The Central Appeals Tribunal gave judgment on 30 January 2009 dismissing the further appeal without having heard any witnesses. Its reasoning included the following:

“The agreement relied on by the [applicant], which is denied by UWV, does not appear from the case file and no other credible case for its existence has been made out by the [applicant].”

In response to a question by the Court, the applicant acknowledged that he had made no attempt to summon Mr G. and Mr S. himself or bring them along to the hearing of either the Regional Court or the Central Appeals Tribunal, as permitted by section 8:60(4) of the General Administrative Law Act (Algemene wet bestuursrecht; see paragraph 25 below).

In parallel with the administrative proceedings outlined above, the applicant was prosecuted for social security fraud and forgery.

On 20 January 2006 the single-judge chamber of the criminal division (politierechter) of the Roermond Regional Court convicted the applicant.

The applicant appealed to the ‘s-Hertogenbosch Court of Appeal (gerechtshof).

Having held a hearing on 4 May 2007, the Court of Appeal gave judgment on 16 May 2007 acquitting the applicant. Its reasoning included the following:

“The suspect states that he drew up a common plan with Mr G. of USZO in 1998 with a view to the gradual reduction to zero of the WAO benefits over five years. The applicant further states that he made arrangements with that Mr G. concerning the amount of additional income he would be allowed to earn in the said five-year period. The suspect understood these arrangements in the sense that he would in principle be allowed to earn unlimited additional income without losing his benefits.

Prompted by the transformation of the one-man business into one or more limited liability companies the suspect sought confirmation from UWV that it would not matter for the arrangements made whether the provider of the income was the one-man business or the said limited liability companies. To this end he got in touch with USZO on multiple occasions by means of letters. These letters were answered by USZO with automatised standard letters which did not address the specific situation in which the suspect found himself and which the suspect himself had raised with USZO.

By the time this question was put by the suspect to USZO Mr G. had been succeeded by Mr M. The latter found no report in the USZO file of the arrangements mentioned by the suspect. It is not apparent from the file that any attempt was made to hear Mr G. about the said arrangements within the framework of this criminal case.

In view of the facts outlined above, the Court of Appeal considers it plausible (aannemelijk) that the suspect made arrangements with Mr G. of USZO in one form or another concerning the amount of permitted additional income within the framework of the gradual reduction to zero of his WAO benefits. It makes no difference that no report of any arrangements was found in the USZO file because no attempt has been made to verify the existence of these arrangements with Mr G.”


CASE OF PAUNOVIĆ AND MILIVOJEVIĆ v. SERBIA

Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections);Violation of Article 13+P1-3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 of Protocol No. 1 - Right to free elections;Right to free elections-{general});Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicants, Mr Goran Paunović (“the first applicant”) and Ms Ksenija Milivojević (“the second applicant”), are Serbian nationals who were born in 1965 and 1975 and currently live in Novi Sad and Belgrade, respectively.

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

Parliamentary elections in Serbia are held on the basis of a proportional representation system in which candidates for Parliament are included on lists put forward by political parties or coalitions. Voters choose between these lists, without voting directly for individual candidates.

In 2003 the applicants were elected as members of parliament (MPs) for a political party called G17PLUS.

Before the elections, however, all candidates, including the applicants, had been required by their party to sign undated letters of resignation and hand them in to the party. The documents also authorised the party to appoint other candidates in their place if necessary.

Following political differences between the applicants and their party, on 5 May 2006 the first applicant signed a separate, officially certified statement, in which he declared his prior resignation letter to be null and void. The first applicant informed G17PLUS and the President of Parliament of this statement and made it public.

The second applicant also subsequently told Parliament, the party and the public that she considered her earlier resignation letter to be null and void.

On 15 May 2006 the head of the G17PLUS party group in Parliament dated the applicants’ resignation letters and submitted them to the President of the Parliament.

On the same day, the first applicant addressed the Parliamentary Committee on Administrative Affairs, explaining that he did not intend to resign and that he wished to keep his seat as an independent MP. He provided the committee with his certified statement of 5 May 2006. However, the committee concluded that both applicants had resigned and held that their parliamentary mandates were deemed to be terminated.

On 16 May 2006 a plenary session of Parliament confirmed that decision and accepted two other candidates proposed by G17PLUS as MPs in place of the applicants.

On 25 May 2006 the applicants filed two separate complaints with the Supreme Court and the Constitutional Court, seeking the annulment of Parliament’s decisions to terminate their mandates and replace them with other candidates.

On 29 May 2006 the complaint made to the Supreme Court was dismissed on procedural grounds. The court stated that the impugned parliamentary decisions had not been “administrative acts” and could not, as such, be subject to judicial review.

On 29 May 2008 the Constitutional Court also ruled against the applicants, without considering the merits of their case. It stated that new parliamentary elections had been held in January 2007, which was why the applicants’ complaint had effectively become moot. It noted that their complaint could not have been treated as a constitutional appeal, as envisaged under the Constitution adopted in November 2006, since the parliamentary decisions at issue had been made several months before the new Constitution had been adopted (see B.4 below).

Article 2 § 2 of the 1990 Constitution provided, inter alia, that citizens exercised sovereignty through their “freely elected representatives”.

Article 42 provided, inter alia, that a citizen who had reached the age of eighteen had the right to vote for Parliament and be elected; that parliamentary elections were direct, and that political parties, as well as other bodies, had the right to nominate candidates.

Article 76 provided that an MP represented the citizens of the district in which he or she had been elected.

The 1990 Constitution was repealed in November 2006 and the new Constitution, published in OG RS no. 98/06, entered into force.

Article 88 § 1(1) provided that the term of office of a member of parliament would end before it was due to expire officially if the person ceased to be a member of the political party or coalition on whose list he or she had been elected. On 27 May 2003 this provision was declared unconstitutional by the Constitutional Court of Serbia and was effectively removed from the Act (see paragraph 34 below).

Article 88 § 1(2) provides that a parliamentary term of office ends before its official expiry if a member submits his or her resignation.

On 25 May 2011 Article 88 was amended with the insertion of a provision requiring an MP to tender his or her resignation in person, in an officially certified document, and hand it to the President of Parliament within three days of the date of official certification.

Article 230 provides that an MP, when tendering his or her resignation, must do so in writing and hand it to the President of Parliament, who must then forward it to all other MPs.

Articles 111 and 112 provide that a contract can be declared null and void if it was concluded by a party acting with limited legal capacity or if it was concluded as a result of shortcomings in the intentions of the parties (mane volje).

Articles 199 and 200 provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his or her personal rights (prava ličnosti) is entitled, depending on the duration and intensity of the breach, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress capable of affording adequate non-pecuniary satisfaction.

Article 376 §§ 1 and 2 provide that a claim based on the above-mentioned provisions may be brought within three years of the date on which the injured party learnt of the damage in question and identified the person responsible, but must in any case be brought within five years of the event itself.

Article 377 § 1 further provides that if the damage at issue has been caused as the result of the commission of a criminal offence, the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations.

Article 52 provides, inter alia, that every citizen who is of age and of working ability has the right to vote and stand for election; that elections are direct; and that election rights are protected in accordance with the law.

Article 102 § 2 provides that, “under the terms prescribed by law, an MP shall be free to put his or her mandate irrevocably at the disposal of the political party on the proposal of which he or she was elected”.

Article 170 provides that “a constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed”.

The new Constitution entered into force in November 2006.

On 27 May 2003, whilst reviewing the constitutionality of election legislation in abstracto, the Constitutional Court held that the mandate of an elected MP belonged to the MP personally, and not to the political party on whose list he or she was elected. In its reasoning, the court emphasised that once elected, MPs should be accountable primarily to the voters who elected them, not to their political party. This flows from the fact that they hold a mandate from the people, not from their party. The fact that an MP has resigned from the party or been expelled should not therefore lead to their expulsion from parliament. There is no constitutional obligation on MPs to resign if they have political disagreements with their party, even if they are expelled from it (decision IU no. 197/2002).

The Parliamentary Assembly of the Council of Europe (“the Assembly”) has adopted a number of resolutions and recommendations regarding the issue of the recall of peoples’ representatives by political parties.

On 25 June 2008 the Assembly adopted Resolution 1619 (2008) entitled “State of democracy in Europe. The functioning of democratic institutions in Europe and progress of the Assembly’s monitoring procedure”, which stated, inter alia:

“... constitutional and legislative provisions providing for the recall of peoples’ representatives by the political parties (the so-called ‘imperative mandate’) should be abrogated in the Russian Federation, Serbia and Ukraine;

the recall of peoples’ representatives by the political parties (the so-called ‘imperative mandate’) is unacceptable and contrary to the principles of the rule of law and the separation of powers.”

On 23 June 2010 the Assembly adopted Resolution 1747 (2010) entitled “State of democracy in Europe and the progress of the Assembly’s monitoring procedure”, which stated, inter alia:

“... the Assembly urges ... the Parliaments of the Russian Federation, Serbia and Ukraine to abrogate constitutional and legislative provisions providing for the recall of peoples’ representatives by the political parties (the so-called ‘imperative mandate’) ...”

On 25 January 2012 the Assembly adopted Resolution 1858 (2012) entitled “The honouring of obligations and commitments by Serbia”, which stated, inter alia:

“9.4. [The Assembly] congratulates Serbia for adopting, in 2011, the Act on Altering and Amending the Act on Election of Members of Parliament of the Republic of Serbia in accordance with the Joint Opinion of the European Commission for Democracy through Law (Venice Commission) and the OSCE/ODIHR, which has brought the system of allocation of mandates in the parliament into line with European standards; it abolished the ‘party-administrated mandates’ and the ‘blank resignations’, as requested by the Assembly in its Resolution 1661; ... The Assembly notes, however, that the Serbian Constitution still contains a provision allowing for “imperative mandates”;

9.10. [The Assembly] therefore calls on the Serbian authorities to:

9.10.1. eliminate from the constitution the provisions establishing the imperative mandate of members of parliament; ... ”

The Venice Commission, the Council of Europe’s advisory body on constitutional matters, adopted an Opinion at its 70th plenary session (document CDL-AD(2007)004 of 19 March 2007), the relevant part of which reads:

“ ... [Section 2 of Article 102 of the Serbian Constitution] ... states that ‘Under the terms stipulated by the Law, a deputy shall be free to irrevocably put his/her term of office at the disposal [of] a political party upon which proposal he or she has been elected a deputy’. It seems that its intent is to tie the deputy to the party position on all matters at all times. This is a serious violation of the freedom of a deputy to express his/her view on the merits of a proposal or action. It concentrates excessive power in the hands of the party leaderships.”

The Report on the Imperative Mandate and Similar Practices adopted by the Council for Democratic Elections at its 28th meeting (Venice, 14 March 2009) and by the Venice Commission at its 79th Plenary Session (document CDL-AD(2009)027 of 16 June 2009) reads, in so far as relevant, as follows:

“3.2.1. Obligation of Members of the parliament to resign if they change their political affiliation – the case of Serbia.

At present, imperative mandate stricto sensu and recall are unknown in practice in Europe. Moreover, there are very few countries among the Council of Europe member States which have legislation giving the power to political parties to make members of the elected bodies resign if they change their political affiliation. The mechanisms of control of individual representatives proposed in the Serbian or Ukrainian cases cannot be equalled to ‘imperative mandate’ which is a practice forbidden in virtually all European countries. These mechanisms come closer to the model of ‘party administered mandate’ which is or has been characteristic in countries such as India or South Africa with the objective of preventing massive turn round of voters’ decision by means of party switching. Whilst in these countries these practices have [been] considered consistent with their own constitutions, the Venice Commission has consistently argued that losing the condition of representative because of crossing the floor or switching party is contrary to the principle of a free and independent mandate. Even though the aim pursued by this kind of measures (i.e. preventing the ‘sale’ of mandates to the top payer) can be sympathetically contemplated, the basic constitutional principle which prohibits imperative mandate or any other form of politically depriving representatives of their mandates must prevail as a cornerstone of European democratic constitutionalism.”


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

André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer

The applicant was born in 1967 and lives in Riga. At the material time he was the chairman of the supervisory board of a Latvian bank – Latvijas Krājbanka (“Krājbanka” or “the Bank”). The State held 32.12% of its shares.

A.L. was one of the shareholders of Krājbanka. He was also the President of the Bank until January 2002, when he voluntarily stepped down from this position. In November 2002 he was elected as a member of the Latvian Parliament (Saeima), representing a newly established political party, Latvijas Pirmā Partija (the Latvia’s First Party – also referred to below as the “Pastors’ Party”), which had been established in the same year.

At the material time an advertising agency, Z., was contracted by both Krājbanka and the Latvia’s First Party to provide certain advertising services.

Neatkarīgā Rīta Avīze (“NRA”) was one of the main daily newspapers in Latvia at the material time. It was published by a joint-stock company, Preses Nams (until 2 January 2003) and, subsequently, by the limited liability company Mediju Nams.

On 30 September 2002 the applicant prepared a report on the advertising and marketing expenses incurred by Krājbanka in 2001 and the first seven months of 2002, which he then presented to the Bank’s supervisory board. His report was based on information which he had requested from the heads of the marketing and economics departments. According to the applicant’s report, the Bank had transferred substantial sums for advertising and marketing services to, inter alia, Z., for which no supporting documents could be found. This raised suspicions that the Bank’s funds had been misappropriated. The parties did not provide the Court with a copy of the applicant’s report, nor any further details of that report.

On 2 October 2002 the Bank’s supervisory board held an extraordinary meeting and ordered an internal audit to verify the applicant’s findings. At a meeting of 16 October 2002 the head of the internal audit department informed the supervisory board that no undocumented advertising and marketing expenses had been incurred. In response to press reports (see paragraphs 13 et seq. below), the internal audit had verified all deals concluded with Z. in 2002; the internal audit in relation to 2001 was ongoing. The information published in the press had not been confirmed. The conclusions of the final report, dated 30 October 2002, indicated that in 2001 no undocumented advertising and marketing expenses had been incurred. All contracted services had been received, but on some occasions no supporting documents have been kept (for example, copies of certain advertisements in the press and some printed material – such as concert posters and tickets – were no longer available).

On 16 October 2002 the supervisory board ordered an additional external audit. In May 2003 the audit agency in its report concluded that while the advertising and marketing expenses incurred in 2001 (755,000 Latvian lati (LVL), approximately 1,074,268 euros (EUR)) and 2002 (LVL 555,000, approximately EUR 789,694) had been greater than in previous years (in 1998 the figure had been LVL 374,000, approximately EUR 532,154; in 1999, LVL 324,000, approximately EUR 461,010; and in 2000, LVL 640,000, approximately EUR 910,638), this could be explained by the fact that the Bank had been in the process of changing its corporate identity during the period under consideration. This process had continued while the external audit was being carried out and the Bank had incurred more expenses in this regard. All contracts with Z. had been approved and signed by the Bank’s highest management. The external audit concluded that there was no evidence that payments had been made for services or goods that had not been received or that the payments had exceeded the value of the services received. No personal links had been found between A.L. or the Bank’s staff members and the advertising companies. There was no evidence that the staff members had been forced to work with the particular service provider or to prepare documents for services which the Bank had not received.

Meanwhile, A.L. applied to have criminal proceedings instituted in respect of the alleged intentional dissemination of false information about him. By a final decision of 13 August 2003 the prosecution refused to institute criminal proceedings. The information and conclusions, which the applicant had provided to the journalists, had been based on erroneous findings contained in the applicant’s initial report on the advertising and marketing expenses. However, there was no evidence that the applicant had intentionally disseminated false information about A.L. The latter was informed of his right to lodge a civil claim in that regard.

Between August 2002 and May 2003 NRA published numerous articles on various topics of public interest concerning the 2002 parliamentary elections. It appears that NRA journalists contacted the applicant for a comment shortly after the meeting of 2 October 2012 of the Bank’s supervisory board had taken place.

In their submissions to the Court, the parties disagreed on the manner and form in which the applicant had provided the respective information to the NRA journalists. The Government stated that the applicant had provided this information to the journalists on several occasions, and that his comments, which had contained concrete descriptions of A.L.’s actions, had been provided in the form of facts susceptible of proof. The applicant, however, stated that he had only on one occasion provided a short comment to the journalists via telephone about the issues discussed at the meeting of the Bank’s supervisory board. Furthermore, the comments had constituted merely his own opinion about Krājbanka’s management; they had still needed to be verified by the Bank’s internal audit.

The following excerpts are from nine articles, which were published between 3 and 23 October 2002, and which were based on the information provided by the applicant in this regard:

“ ‘Krājbanka’s former management accused of fraud’

[Since] the beginning of 2001, [LVL] 522,000 has been transferred [to finance] [Krājbanka’s] advertising and marketing activities, in respect of which no documentation – the relevant contracts, delivery/acceptance deeds etc. – has been provided ... [T]he transfer of this sum in an unknown direction (nezināmā virzienā) actually amounts to the destruction of the Bank’s [available] assets. ... As [the applicant] suggested to [NRA], either ‘somebody is receiving this paid money back’ or Krājbanka’s money is being used to create advertising of a completely different kind than that indicated in the available documents. ‘This is money that has been stolen from the shareholders’, [the applicant] stated. ... Moreover, significant advance payments were made [for services to be provided within a year] shortly before [a] change in Krājbanka’s management at the beginning of [2002]. The supervisory board has ordered an internal audit to discover where these funds have disappeared to ... Documents in the possession of [NRA] show that the role of A.L. in the affair of the strange advertising [funds] transfers could be quite significant ... The [Bank’s] public relations unit has dispatched [LVL] 168,000 to who knows whom and who knows where. The Bank’s marketing department stands out even more blatantly. Of a total of [LVL] 743,000 spent, no documentary evidence exists regarding the expenditure of [LVL] 356,000.” (Information published in NRA, 3 October 2002 edition, article written by R.P. and E.L.: “Krājbanka’s former management accused of fraud”.)

“This week, Krājbanka’s current officials discovered massive excess expenditure on advertising that was allowed during the period of management of A.L. and V.K. –evidently these persons had been advertising themselves at the expense of Krājbanka.” (Information published in NRA, 5 October 2002 edition, article written by R.R. and U.D.: “The Pastors’ Party – a Šlesers’ family enterprise”.)

“ ‘Advertising for the Pastors’ Party – with Krājbanka’s money’

The advertising agency, Z., responsible for creating the Latvia’s First Party’s preelection campaign, is one of the companies to which Krājbanka’s former management transferred several hundred thousand [Latvian] lati at the beginning of [2002]. The transfer was carried out without documentary certification as an advance payment for advertising services ... [NRA] has already announced that since the beginning of 2001, Krājbanka has transferred [LVL] 522,000 [to finance] its advertising and marketing activities, in respect of which no documentation is available. ... As [the applicant] admitted to NRA, Z. was the very agency to which more than [LVL] 200,000 of Krājbanka’s funds was transferred at the beginning of [2002] as an advance payment; [details of the] subsequent expenditure [of those funds] are unknown. ‘It is possible that this is the money that provided the foundation for the Latvia’s First Party’s sizable advertising campaign’, admitted [the applicant]. ... Documents in the possession of NRA show that the role of A.L. in the affair of the strange advertising [funds] transfers could have been rather significant.” (Information published in NRA, 12 October 2002 edition, article written by K.P. and E.L.: “Advertising for the Pastors’ Party – with Krājbanka’s money”.)

“[The applicant] confirmed to [NRA] that the advertising agency, Z., the creator of Latvia’s First Party’s advertising campaign, is one of the companies to which the former management of Krājbanka transferred more than [LVL] 200,000 at the beginning of [2002] without documentary certification as an advance payment for advertising services. It has already been reported that since the beginning of 2001, Krājbanka has transferred [LVL] 522,000 [to finance] its advertising and marketing activities, in respect of which no documentation – the relevant contracts, delivery/acceptance deeds, etc. – has been provided.” (Information published in NRA, 15 October 2002 edition, article written by R.P.: “Krājbanka’s President concerned about his reputation”.)

“ ‘Crisis within Krājbanka’s Management’

The scandal revolving around the potentially unlawful activities of A.L., the former President of Krājbanka, has reached its culmination. ... A.L. has a negative opinion of [NRA’s] publications to date regarding the action of Krājbanka’s former management in transferring hundreds of thousands of [Latvian] lati to advertising firms without documentary certification in respect of the expenditure of that money ... [NRA] has already repeatedly written about the long-standing battle among Krājbanka’s shareholders, during which A.L. was accused several times of potentially unlawful actions ... This, however, has not prevented the friends of A.L. from resorting to extreme methods. [NRA] was informed by [the applicant] that ... at the last meeting of the supervisory board, a member of ‘A.L.’s group’, V.D., asked him in a forthright manner: ‘Have the folks from Ventspils insured your property?’ ‘This is an unprecedented event – the chairman of the Bank’s supervisory board being blatantly threatened!’ admitted [the applicant]. He believes that A.L. is now speculating that he will soon be afforded immunity as a member of [parliament], preventing him from being criminally prosecuted without a majority vote of [the Parliament] ... Commenting on the value of marketing, advertising and public relations contracts, [the applicant] admitted that even though it is necessary to carry out in-depth market research, during A.L.’s era various procedures were breached and payments were made whose sums currently cannot be precisely determined ... NRA has already written that [LVL] 522,000 has been transferred [to finance Krājbanka’s] advertising and marketing activities since the beginning of the year 2001, in respect of which no documentation – the relevant contracts, delivery/acceptance deeds, etc. – has been provided ... Additionally, doubts lie in respect of A.L. that certain actions regarding the administration of certificate accounts were also contrary to the interests of both the Bank and the State.” (Information published in NRA, 18 October 2002 edition, article written by R.P.: “Crisis within Krājbanka’s management”.)

“[NRA] has already reported that the actions of A.L. as the President of Krājbanka are being questioned in relation to advertising contracts concluded in the amount of several hundreds of thousands of [Latvian] lati. These contracts have no documentary corroboration regarding the specific measures [financed by] the money in question.” (Information published in NRA, 19 October 2002 edition, article written by R.P., E.L. and L.T.: “Repše: the Minister must be morally clean”.)

“NRA has already reported that in 2001, when A.L. was still the President of Krājbanka, [LVL] 522,000 was transferred without documentation, apparently for Krājbanka’s advertising and marketing activities, of which [LVL] 200,000 went to the advertising agency, Z., which also happened to be responsible for creating Latvia’s First Party’s pre-election campaign.” (Information published in NRA, 22 October 2002 edition, article written by B.L.: “Parties divide money portfolios!”)

“It is possible that during A.L.’s term of office [LVL] 522,000 was transferred [to finance] Krājbanka’s advertising and marketing activities, in respect of which the relevant documentation has not been provided.” (Information published in NRA, 22 October 2002 edition, article written by R.P.: “Krājbanka goes against A.L. at the prosecutor’s office”.)

“[NRA] has already written that [LVL] 522,000 was transferred in 2001, without any accompanying documentation, apparently for [Krājbanka’s] advertising and marketing activities, of which [LVL] 200,000 [went] to the advertising agency, Z., which was responsible for creating Latvia’s First Party’s pre-election campaign.” (Information published in NRA, 23 October 2002 edition, article written by B.L.: “Millionaires compete for power”.)

On 28 July 2003 A.L. lodged a claim against the applicant and the publishers of NRA seeking compensation and the retraction of a total of thirtyone allegedly defamatory articles. He also indicated that the applicant had provided false information to NRA, which had formed the basis of the above-mentioned nine articles (see paragraph 15 above).

During a hearing of 16 January 2004 the applicant admitted before the first-instance court that the information concerning the possible misappropriation of Krājbanka’s funds, which he had provided to NRA, had proved to be incorrect. He made the following statements:

“The information [was] wrong, unfounded. [As part of my duties] I was carrying out my task of managing [the Bank’s] activities. I was not interested in A.L.’s private life. I have always respected him. I tried to organise [my] work correctly.

As to the mistake regarding numbers, there was one, and I apologise to A.L. and to the journalists.

A.L. worked at the Bank and worked in accordance with [its] budget. A.L. made decisions. There were others responsible for [the Bank’s] budget. [The Bank] did not overpay for [its] advertisements.

The mistake regarding numbers could not have offended A.L.’s honour and dignity.

There were no public statements; maybe there were other [people] who [provided more information to the press].”

On 3 October 2005 the Riga Regional Court (Rīgas apgabaltiesa) delivered its judgment, dismissing the claims against the applicant. The court concluded that the nine articles in question (see paragraph 15 above), which had been based on the information provided by the applicant, had reported his personal opinion about the functioning of Krājbanka and its management, which could not be considered defamatory. Moreover, no claim for defamatory information to be retracted was lodged against the applicant. The claims against both publishers of NRA (Preses Nams and Mediju nams) were partly upheld in so far as they concerned six out of the nine articles which had been based on information provided by the applicant and six other articles reporting on other matters.

On 28 May 2007 the Civil Cases Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta) – after appeals by A.L., Preses Nams, and Mediju nams – re-examined the case and delivered a new judgment. The judgment took immediate effect.

The appellate court noted that at the material time the press and other mass media had been widely reporting on the 2002 parliamentary elections – that is to say the political parties and their leaders, including the newly-established political party, of which A.L. was one of the leaders. He had stood for election, his candidacy had been widely advertised and it had been, accordingly, examined by the press and other mass media. NRA had published a series of articles about the money spent on the pre-election advertising of the Latvia’s First Party, linking the source of these funds to Krājbanka and its former President, A.L. It had been reported that during his time in office, LVL 522,000 had been transferred for advertising and marketing purposes without any documentary proof thereof having been preserved and that this had been considered to constitute a misappropriation of the bank’s funds. These funds had been spent on the party’s large-scale advertising; as the applicant had put it: “[T]his money has been stolen from the shareholders”. The nine articles had also contained other information provided by the applicant – that during A.L.’s time in office, there had been breaches not only in relation to the advertising expenses, but also other breaches in respect of banking operations, payments without approval, the administration of certificate accounts against the interests of the Bank and the State.

The appellate court stated that the information contained in those articles about the use of Krājbanka’s funds and transactions had been provided by the applicant (who had mentioned specific sums), and that the articles had contained references to his statements.

The appellate court found that since the applicant had provided this information to NRA journalists, he had to bear responsibility for giving and disseminating false information. The court held that this information had not corresponded to the facts and that this had been acknowledged by the applicant himself during the hearing before the first-instance court (see paragraph 17 above). This had also been confirmed by the results of the external audit and by the prosecution (see paragraphs 11 and 12).

The court also held that the journalists had not had a responsibility to verify the accuracy of the provided information, since the applicant’s status as the chairman of the supervisory board of Krājbanka had created a legitimate expectation that the provided information was correct.

Lastly, the court found that, even if the margin of permissible criticism in respect of A.L. as a member of parliament was necessarily a wider one than would normally be the case, the false information had nevertheless offended his honour and dignity, as it had contained serious allegations of unlawful activities and had given the impression that A.L. was a dishonest person.

Given the above, and in view of the seriousness of the interference and the applicant’s position in the Bank, the court ordered the applicant to pay compensation to A.L. in connection with the nine articles in the amount of LVL 10,000 (approximately EUR 14,229), together with statutory interest (6% per annum).

In addition, the court upheld the claim against Preses Nams alone in respect of one other article, and ordered it to pay compensation in the amount of LVL 5,000 (approximately EUR 7,114), together with statutory interest (6% per annum).

The applicant and Preses Nams were also ordered to pay A.L.’s legal costs in the amount of LVL 495 (approximately EUR 704) and LVL 375 (approximately EUR 534) respectively.

The appellate court dismissed A.L.’s claims against Preses Nams and Mediju Nams as regards all the other articles that had not been based on any information provided by the applicant.

On 28 June 2007 the applicant lodged an appeal on points of law with the Senate of the Supreme Court (Augstākās tiesas Senāts). He did not contest that the information he had provided to the journalists had turned out not to be supported by evidence. However, this information had constituted his evaluation of the actions taken by Krājbanka’s management as a whole. He had not directly mentioned A.L. by name, surname or his position when giving the information to the journalists. His allegations regarding the misappropriation of Krājbanka’s funds could only have infringed the interests of the Bank as a legal entity; it could not have offended the honour and dignity of certain executives, who had been under an obligation to inform the supervisory board and the mass media of the truth. Furthermore, the applicant had provided the information in the form of a supposition by indicating that it still needed to be verified by the Bank’s internal audit. It was the NRA journalists who had linked the applicant’s report with the allegations of wrongdoing by A.L. Thus, the applicant could not be held responsible for the manner in which the journalists had decided to present this information, since he had had no means of influencing this.

On 30 January 2008 the Senate of the Supreme Court delivered a new judgment, which in essence upheld the appellate court’s judgment. The relevant parts of the judgement read as follows:

“[The appellate court’s] conclusion that the applicant had disseminated defamatory and false information was supported by the applicant’s own submissions before the first-instance court, in which he admitted that he had provided incorrect information to [the journalists] ... . The fact that this information was not truthful was confirmed by [the audit agency and the prosecution].

The applicant in his appeal on points of law did not contest these findings. ... He merely noted that he was a source and could not influence the evaluation given by the journalists.

Having examined the testimony of [the NRA journalists], the appellate court found that the false information provided by the applicant had related not to Krājbanka’s management, as the applicant indicated, but specifically to A.L., as the then President of the Bank, thus infringing his honour and dignity. ...

[The appellate court] found that the journalists had had no reason to doubt the credibility of the information, as it had been provided by the applicant [in his capacity as] chairman of the supervisory board of Krājbanka, and his position had undoubtedly created a legitimate expectation that this information was true ... Accordingly, the appellate court rightly held that the journalists had had no obligation to verify the accuracy of the information provided by the applicant. ...

A.L. had requested compensation in the amount of LVL 10,000 from [the applicant]. By granting his claim, the [appellate] court, taking into account the scope of the distributed information and its audience, rightly considered it justified.”

The Senate of the Supreme Court also upheld the claim against Preses Nams alone in respect of one other article; they held that A.L.’s honour and dignity had not been offended in other articles. The appellate court had referred to the Court’s case-law and had taken into account A.L.’s status and the fact that he had refused to offer comment. The appellate court had correctly applied the relevant principle that the journalistic freedom also covered possible recourse to a degree of exaggeration, or even provocation; the Senate referred to a/s Diena and Ozoliņš v. Latvia (no. 16657/03, § 84, 12 July 2007) in this regard.

Referring to section 2352a of the Civil Law and section 29(3) of the Law on the Mass Media, the Senate of the Supreme Court ordered the applicant (who had disseminated that defamatory information), and not Preses Nams, to retract the relevant parts of the articles in question (see paragraph 15 above). The latter, however, still remained obliged to publish the retracted information.


CASE OF ABDULKHADZHIYEVA AND ABDULKHADZHIYEV v. RUSSIA

Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+2-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2-1 - Life;Effective investigation;Article 2 - Right to life);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property)

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

The applicants were born in 1953 and 1957 respectively and live in the village of Savelyevskaya, in the Naurskiy District of the Chechen Republic. The second applicant is the first applicant’s brother-in-law.

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

At the material time, a counterterrorist campaign – involving intense military clashes between federal troops and local rebels – was taking place in the Chechen Republic. The law-enforcement bodies and the courts were not functioning. Upon the arrival of the military in Savelyevskaya, the local residents did not flee but remained in their homes. The village and the area around it were under the control of federal troops that were stationed in the vicinity.

At the beginning of October 1999 the outskirts of the village came under artillery fire, which forced the residents to seek the military’s permission to evacuate their cattle.

After permission to evacuate the cattle was obtained, on 8 October 1999 (in the documents submitted the date was also referred to as 8 October 2000), at around noon, the applicants and their neighbours, Mr R.M. and Mr M.R., arrived at the agreed spot at a copse of trees next to Savelyevskaya and approached the Russian federal servicemen who were stationed in the vicinity. The servicemen agreed to let them pass through to the field where their cattle were pastured to retrieve them. However, after the applicants, Mr R.M. and Mr M.R., had walked about several dozen metres away in the direction of the pasture, the servicemen opened fire on them. As a result, both applicants received wounds to the upper extremities (верхние конечности) and fell on the ground. Having witnessed the attack, a civilian, Mr D., tried to approach the servicemen, but was shot dead in the presence of the applicants and Mr M.R. Meanwhile, Mr R.M. managed to crawl away and inform the local authorities about the incident.

Both applicants and Mr M.R. remained on the ground for several hours; each time they tried to get up they were subjected to gunfire. Then three military servicemen approached, blindfolded them and took them to the premises of military unit no. 54262. In the meantime, after Mr R.M. informed the authorities of the incident, the head of the local administration, Mr Kh.S., arrived at the military unit, spoke to the servicemen and had the detainees released. As a result of the injuries she had sustained during the attack the first applicant was left with a permanent disability of the third degree.

The applicants’ cattle remained under the control of the servicemen and were never returned. According to the first applicant, as a result of the incident she lost sixteen head of cattle and the second applicant four head of cattle. In November 1999, after military unit no. 54262 had changed its stationing location from the vicinity of Savelyevskaya to a site elsewhere, the applicants and their relatives found the remains of seven cows whose meat had been consumed by the military unit; nine head of cattle were missing completely.

In July 2000, as soon as the local law-enforcement bodies had begun functioning again in their district, the applicants lodged an official complaint in respect of the events of 8 October 1999 with the local police (see paragraph 15 below). Towards September 2000 the law-enforcement bodies in other parts of Chechnya started to function again.

In support of their account of the events of 8 October 1999 the applicants furnished the Court with statements from witnesses Mr M.R. and Mr R.M., both dated 10 July 2008.

The Government did not contest the applicants’ account of the attack against them on 8 October 1999 and the loss of their cattle, but stressed that the perpetrators had not been identified. In their observations on the admissibility and merits of the application of 9 April 2012, they stated, in particular, the following:

“... the damage to the applicants’ health occurred as a result of unidentified persons opening fire on them on 8 October 1999 in the village of Savelyevskaya in the Naurskiy District. After the shooting the unidentified persons stole cattle belonging to the applicants ...”

On 17 July 2000 the first applicant complained in writing of the infliction of bodily injuries and the theft of her livestock to the Naurskiy district temporary department of the interior (Наурский Временный Отдел Внутренних Дел) (hereinafter “the Naurskiy VOVD”).

In her complaint she described the circumstances of the attack and stated, in particular, that she had been wounded by military servicemen, who had then blindfolded her and taken her and two other men to the premises of their military unit. She further stated that after her release the cattle had remained in the hands of the military and that all her efforts to recover them had been to no avail.

On 20 July 2000 the investigators questioned the first applicant, who stated that on 8 October 1999 she, the second applicant and Mr M.R. had gone to the pasture where cattle had been grazing, including a number of cows belonging to her. On the way there, at around noon, she had seen one of her cows lying shot and dying on the ground. The first applicant had approached her cow, but had been stopped by a group of military servicemen in light-coloured camouflage uniform, armed with machine guns, standing next to an armoured personnel carrier (hereinafter “the APC”). The first applicant had asked for their permission to drive the cattle home; one of the servicemen had gone to the APC and spoken to someone on the radio. After that he had returned and said that the applicants and Mr M.R. could proceed and collect their cattle. The applicant had walked just several metres away when she and her two companions had been subjected to gunfire, as a result of which she had been wounded in the left arm and the second applicant in the right arm. They had fallen to the ground and stayed there for about three to five hours; each time they had tried to get up, shots had been fired in their direction. Then three military servicemen had approached them, ordered them to put their hands behind their heads, blindfolded them and taken them in the APC to the premises of military unit no. 54262. The applicant provided the investigators with a detailed description of those three servicemen’s appearance. At the military unit the applicants had been given medical assistance. The applicant had asked the unit commander to drive her cattle over to pasture land lying closer to the village. The commander had promised to do that but he had not kept his promise and her cattle had gone missing. Then the head of the village administration had arrived and taken the applicants and Mr M.R. home. The applicant provided the investigators with a detailed description of the unit commander. She further stated that after the military unit had left the place where it had been stationed, she had gone to the field and found an envelope with the address of one of the servicemen who had been stationed there and that she still had the envelope and could provide it to the investigators. Subsequently the unit commander, Vadim, had visited her at home with a nurse to assist with the treatment of her wounded arm. Between August 1999 and February 2000 the applicant had not been able to seek official medical assistance, as hospitals in Chechnya had not been functioning. In February 2000, when the local hospital had resumed its activities, she had gone there and sought medical assistance for her wounded arm; she had stayed in the hospital for one month but had been left with a disability.

On 20 July 2000 the investigators questioned the second applicant and Mr M.R., both of whom stated that on 8 October 1999 they and the first applicant had gone out to drive their cattle home. On their way to the pasture they had met military servicemen who had given them permission to take their cattle home. However, after they and the applicant had then walked a dozen metres away from the servicemen the latter had opened fire. The first applicant had fallen to the ground, bleeding. Then the second applicant and Mr M.R. had screamed, asking the servicemen to stop firing, but to no avail. As a result, the second applicant had been shot in the upper extremities. Then they had fallen to the ground and after several hours had been found by the servicemen and taken to the military unit.

On 12 October 2000 the Naurskiy VOVD opened criminal case no. 30471 on account of the infliction of minor bodily injuries on the applicants (Article 112 § 2 of the Criminal Code). The decision stated:

“... on 8 October 1999 during the day unidentified persons intentionally inflicted bodily injuries on [the applicants] ...”

On 20 October 2000 the investigators granted the first applicant victim status in the criminal case and questioned her again. She reiterated her earlier statement (see paragraph 17 above) and added that the unit commander’s name had been Vadim and that he had had the rank of lieutenant-colonel. She also provided a detailed description of her disappeared cattle and reiterated that as a result of the incident she had lost sixteen cows.

On 20 October 2000 the investigators seized the envelope found by the applicant on the former premises of the military unit (see paragraph 17 above).

On 23 October 2000 the investigators granted the second applicant victim status in the criminal case and questioned him again. His statement was similar to that of the first applicant (see paragraph 17 above). In addition, he stated that after the servicemen had taken him, the first applicant and Mr M.R. to the military unit’s premises, they had provided him with medical assistance for his wounded arm and that the unit commander, a lieutenant-colonel named Vadim, had given him his apologies for his soldiers’ actions. Subsequently, the officer had visited him at home with a nurse to assist with the treatment of his wounds, as the local hospitals had not been functioning at that time. The second applicant also provided the investigators with a detailed description of his four cows, which had disappeared as a result of the incident.

On 24 October 2000 the investigators granted Mr M.R. victim status in the criminal case and questioned him. His statement concerning the incident was similar to the ones given by the applicants (see paragraphs 17 and 18 above). In addition, he provided a detailed description of the three servicemen who had approached him and the applicants after the shooting. He also stated that the commander’s name had been Vadim and that his military rank had been that of lieutenant-colonel. Two days after the events, on 10 October 1999, he had gone to the place of the incident and found the corpses of two of his cows, which had been shot. Two other cows had gone missing.

On 24 October 2000 the investigators questioned two of the first applicant’s neighbours, Ms S.G. and Ms P.Kh., both of whom stated that they had not witnessed the incident in October 1999, but that they had been told that the first and second applicants had been shot and wounded by the military servicemen and one man had been shot dead by them and that as a result of the incident the applicants’ cattle had been lost.

On 30 October 2000 an expert examination ordered by the investigator took place; the examination identified the scars on the first applicant’s left forearm as likely to have resulted from a perforating firearms wound in the circumstances described by her and categorised them as bodily harm of “medium gravity”.

On the same day, 30 October 2000, the second applicant was also examined by the expert. The examination identified the scars on his right forearm and the fingers of the left hand as likely to have resulted from perforating firearms wounds and categorised them as bodily harm of “minor gravity”.

On 20 and 23 October 2000 respectively both applicants were granted victim status in the criminal case. The relevant decisions stated, amongst other things, that:

“... on 8 October 1999 unidentified persons ... inflicted bodily injuries on [the applicants] and stole [their] cattle ...”

Two months later, on 12 December 2000, the investigation was suspended for failure to identify the perpetrators. The applicants were not informed of that suspension.

On an unspecified date between January 2001 and May 2005 the first applicant complained to a supervising prosecutor about the delays in the investigation. On 29 July 2005 the Naurskiy VOVD replied to the complaint, stating that the investigation had been suspended for failure to identify the perpetrators.

On an unspecified date in 2005, the first applicant also lodged an official complaint about his lack of access to the investigation file. On 28 December 2005 the Naurskiy district prosecutor’s office (hereinafter “the district prosecutor’s office”) replied to her, stating that she could access the file only upon the completion of the criminal investigation.

In 2005 the first applicant lodged several complaints about the delays in the investigation with the Prosecutor General’s office, which forwarded them to the district prosecutor’s office. The complaints remained unanswered.

It appears that as a result of the first applicant’s complaints, the investigation was resumed on 18 January 2006 and the applicants were informed accordingly.

On 28 January 2006 the investigators examined the envelope seized from the first applicant (see paragraph 21 above). As a result, the name and the address of officer B. (to whom it had been sent at an address in the town of Kostroma) were established.

On 6 February 2006 the investigators examined the crime scene in the vicinity of the village of Savelyevskaya. No evidence was collected.

On 20 February 2006 the investigators again questioned the first applicant, whose statement was similar to the ones she had given previously (see paragraphs 17 and 20 above).

On 22 February 2006 the investigators questioned the second applicant, who reiterated his earlier statements (see paragraphs 18 and 22 above). In addition, he stated that the body of the man who had been shot dead during the incident had been recovered by the villagers about a week after the events and buried shortly afterwards.

On 22 February 2006 the investigators questioned Mr Z. Kh., who stated that in October 1999 he had assisted in negotiating the applicants’ and Mr M.R’s release from the premises of the military unit. Mr Z. Kh. stated that he did not know what military unit it was.

On 22 February 2006 the investigators questioned Mr Kh.S., who stated that since 1999 he had been the head of the local administration. His statement was similar to those given by the applicants. In addition, he stated that the commander of the military unit had promised to drive the cattle back to the village, but that this had not happened.

On 22 February 2006 the investigators again questioned Mr M.R., whose statement was similar to the ones he had previously given (see paragraphs 18 and 23 above).

On 26 February 2006 the investigators terminated the investigation of criminal case no. 30471 because of the expiry of the time-limits for prosecution under Articles 78 and 112 of the Criminal Code.

On the same date (26 February 2006) the investigators refused (in the light of the expiry of the time-limit) to initiate a new criminal investigation into the injuries sustained by the applicants on 8 October 1999.

On 17 March 2006 investigators in Kostroma questioned officer B., who stated that in October 1999 he had been serving in military unit no. 54262, which had been stationed in the Naurskiy District, Chechnya. He had no information concerning the attack on the applicants and had no idea who had been the commander of the military unit at the material time. Officer B. stated that in December 2000 (while he had been in Chechnya) he had been questioned about the incident, but he could not remember by whom and under what circumstances.

On 26 April 2008 the head of the Naurskiy VOVD overruled the decision to terminate the criminal investigation as unsubstantiated and premature and ordered that the proceedings be reopened and the case file be transferred to another law-enforcement body, in accordance with the rules of jurisdiction. The reasoning for the decision stated, inter alia, the following:

“... The investigation established that an unidentified person had opened fire and wounded in the arm [the first and the second applicants], causing them medium and minor gravity bodily harm, respectively [...]

... it was also established that unidentified persons had committed the theft of sixteen cows belonging to [the applicants] and of two cows belonging to Mr M.R.

On 26 February 2006 the investigation of the criminal case was terminated for failure to identify the perpetrators.

The examination of the contents of the criminal case file demonstrated that the victims [the applicants] had been shot at with firearms, from a distance ... and the location of their wounds showed that life-threatening damage could have been caused to them ... In addition, according to the information in the case file, Mr D. had been shot and killed on the spot in [the applicants’] presence.

In the light of the above, the investigation of the criminal case failed to establish in full whether an attempt on the lives of [the applicants] had been made by the unidentified persons who [were responsible for] their gunshot wounds ...”

On 29 April 2008 the re-opened criminal case file no. 30471 was forwarded to the Naurskiy Inter-district Investigations Department of the Chechnya Prosecutor’s office (hereinafter “the investigations department”) for investigation.

On 7 May 2008 the investigations department refused to institute criminal proceedings, noting that:

“... [the applicants] had been injured in non-vital parts of their bodies, which was confirmed by expert examinations. Therefore, there are no grounds for thinking that the alleged perpetrators intended to commit ... ‘attempted murder’,.. as argued by [the applicants] ...”

The decision did not mention anything about the applicants’ cattle.

On 14 May 2008 the investigations department adopted a decision terminating the investigation in criminal case no. 30741 because of the expiry of the time-limits for prosecution.

From the documents submitted it appears that on 10 July 2008 the supervising prosecutor overruled the above decision to terminate the criminal investigation as unsubstantiated and premature.

On 14 March 2012 the deputy Chechnya district prosecutor overturned the investigations department’s decision of 7 May 2008 to refuse to open a criminal case (see paragraph 45 above) as unlawful and unsubstantiated. The applicants were informed thereof.

On the same date (14 March 2012) the deputy Chechnya prosecutor also ordered that the criminal case file be sent to the Chechnya Investigations Committee for further investigation. The decision criticised the investigators’ failure to take basic steps and stated, amongst other things, the following:

“... at the same time, the investigation established that the shooting had been aimed at them [the applicants, Mr M.R., Mr R.M. and Mr D.] and had been carried out with automatic firearms simultaneously, from the same place next to the forest; as a result [the applicants] had received gunshot wounds of varying gravity and [Mr D.] had been shot dead.

Therefore, the above information provides grounds for concluding unequivocally that the unidentified person had the clear intention of killing [the applicants and Mr D.]; ... thus, the actions of the unidentified person should be deemed to constitute murder under parts 1 and 2 (subparagraph “a”) of Article 105 of the Russian Criminal Code, and the case file in respect of criminal case no. 30471 should be transferred to the Chechnya Investigations Committee for investigation and joined with criminal case no. 60012 [concerning the killing of Mr D.].

In addition, up until the present, no request for information concerning the exact place where military unit no. 546262 was stationed has been sent. Neither has any request for information concerning the possible stationing of a military unit next to Savelyevskaya in the Naurskiy District been forwarded.

The military commander of the Naurskiy District, officer A.S. Kalugin, has not been questioned about the circumstances of the incident.”

As can be seen from the documents submitted, the investigation is still pending.

On 12 April 2008 the first applicant lodged a complaint before the Naurskiy District Court (hereinafter “the District Court”) challenging the decision of 26 February 2006 to terminate the investigation. She argued, inter alia, that she had been both the target of an attempted murder and a victim of theft and asked for the case to be transferred to the Military Prosecutor’s Office for a proper investigation.

On 26 April 2008, shortly before the scheduled start of the first-instance court hearing (see paragraph 43 above), the prosecutor quashed the decision of 26 February 2006 and as a result, by a decision of 28 April 2008 the District Court rejected the first applicant’s complaint as groundless.

On 19 June 2008 each applicant lodged a complaint before the District Court challenging the investigations department’s refusal of 7 May 2008 to initiate a criminal investigation.

On 10 July 2008 the District Court rejected the complaints, as the impugned decision had already been quashed earlier on the same date (see paragraph 47 above).

On an unspecified date between January and March 2009 the applicants lodged a complaint before the District Court about the defects in the investigation and the investigators’ failure to act with expedition.

On 8 April 2009 the District Court examined and partly rejected their complaint. It ruled that the investigators could only be criticised for their failure to inform the applicants in a timely manner about the procedural decisions in the criminal case. The decision stated, among other things, the following:

“... the court has no legal rights to impose obligations on the investigation bodies concerning the order and direction of the conduct of the investigation.

... The complaint should be allowed only in part and only in so far as the investigator ... failed to inform [the applicants] in a timely manner about the decisions taken in the case ...”.

On 13 May 2009 this decision was upheld by the Supreme Court of the Chechen Republic on appeal.


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

The applicant, Mr Imrich Degro, is a Slovak national, who was born in 1941 and lives in Prešov. He was represented before the Court by Mr I. Jurčišin, a lawyer practising in Košice.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

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

On 9 June 2008 the applicant lodged an action against a private company alleging that it had sold him a car that had permanent defects. Accordingly, the applicant asked the court to order the defendant to replace the car or, alternatively, refund him the purchase price.

The action was granted by the Prešov District Court (Okresný súd) on 25 June 2010 and, following an appeal lodged by the defendant, its judgment was upheld by the Prešov Regional Court (Krajský súd) on 13 December 2010.

The order that the defendant replace the car or refund the purchase price became final and binding (právoplatnosť) on 12 January 2011, following service of the Regional Court’s judgment on the parties. After the expiry of the period allowed for voluntary compliance with the order, the order became enforceable (vykonateľnosť) on 16 January 2011.

The defendant then filed a petition with the Office of the Prosecutor General (“the PG”), requesting that the latter exercise his discretionary power to challenge the above-mentioned judgments by way of an extraordinary appeal on points of law (mimoriadne dovolanie – “extraordinary appeal”).

At an unspecified time, presumably still in 2011, the PG acceded to the request by challenging the contested judgments in the Supreme Court (Najvyšší súd).

In his extraordinary appeal, the PG relied on Article 243f § 1 (c) of the Code of Civil Procedure (Law no. 99/1963 Coll., as amended – “the CCP”), which permits such an appeal on the grounds that the challenged decision is based on an incorrect assessment of points of law.

In particular, the PG argued that the courts had misinterpreted the consumerprotection rule pertaining to the case. The rule provided that a consumer who purchased goods or a service that had a reparable defect had the same remedies available to him or her as when the goods or service had an irreparable defect, provided that the supplier of such goods or service had failed to repair the reparable defect within thirty days of being asked to do so.

According to the PG, however, that rule was not applicable in a situation where the consumer – such as the applicant in the present case – had not used the remedy related to irreparable defects but had taken possession of the repaired goods despite the fact that the repair had been carried out after the statutory thirty-day period.

In his observations in reply, the applicant disagreed with the interpretation of the relevant rule by the PG. It was far too restrictive and disregarded the object and purpose of the consumer protection legislation. He argued that the interpretation of that rule by the lower courts had been correct in his case: since the defendant had failed to observe the statutory thirty-day period for repairing the car, the applicant had been entitled to the remedies granted by those courts.

On 27 March 2013 the Supreme Court allowed the appeal by quashing the contested judgments and remitting the case to the first-instance court for re-examination, having fully endorsed the line of argument pursued by the PG. The Supreme Court’s judgment was served on the applicant’s lawyer on 6 May 2013.

The proceedings are now pending at first instance.

Article 127 reads as follows:

“1. The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

If the Constitutional Court finds a complaint to be justified, it shall deliver a decision stating that the person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash that decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the [person’s] rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order that authority to refrain from violating the [person’s] fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation.

In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to a person whose rights under paragraph 1 have been violated.

The liability for damage or other loss of a person who has violated the rights or freedoms as referred to in paragraph 1 shall not be affected by the Constitutional Court’s decision.”

Article 1 of the CCP lays down the procedures to be applied by the courts and to be followed by the parties in civil proceedings, with a view to ensuring fair and just protection of the rights and legitimate interests of the parties, and promoting compliance with the statutory law, fulfilment of duties and respect for the rights of fellow citizens.

Under Article 101 § 1, the parties to the proceedings are to contribute to the purpose of the proceedings, in particular by giving a truthful and complete description of all the relevant facts, adducing evidence, and abiding by the instructions of the court.

Pursuant to Article 120 § 1, the parties to the proceedings are to adduce evidence to uphold their claims.

Under Article 159 § 3, as soon as a matter has been resolved by force of a final and binding decision or a judgment, it may not give rise to new proceedings.

The relevant provisions concerning appeals on points of law (dovolanie) are summarised, for example, in the Court’s decision in Ringier Axel Springer Slovakia, a.s. v. Slovakia (no. 35090/07, §§ 65-68, 4 October 2011, with further references). Appeals on points of law have no automatic suspensive effect, as the power to suspend the enforceability of the impugned decision is entrusted to the Supreme Court (Article 243).

Extraordinary appeals on points of law are regulated by the provisions of Articles 243e et seq.

The PG has the power to challenge a decision of a court by means of an extraordinary appeal. He or she may do so following the filing of a petition by a party to the proceedings or another person concerned or injured by the decision, provided that the PG concludes that: the final and binding decision has violated the law; the protection of the rights and legitimate interests of individuals, legal entities or the State requires that such an appeal be brought; such protection cannot be achieved by other means; and the matter at hand is not excluded from judicial review (Articles 243e § 1 and 243f § 2).

An extraordinary appeal may only be lodged against a ruling in a decision which has been contested by the party to the proceedings or the person concerned or injured by that decision (Article 243e § 2). Unless a statute provides otherwise, the PG is bound by the scope of the petition for an extraordinary appeal (Article 243e §§ 3 and 4).

Further conditions of admissibility of an extraordinary appeal are listed in Article 243f § 1. They comprise (a) major procedural flaws within the meaning of Article 237 (see, for example, Ringier Axel Springer Slovakia, a.s. v. Slovakia, no. 41262/05, § 62, 26 July 2011), (b) other errors of procedure resulting in an erroneous decision on the merits, and (c) wrongful assessment of points of law.

An extraordinary appeal is to be lodged with the Supreme Court within one year of the contested judicial decision becoming final and binding (Article 243g).

If the PG concludes, following the filing of a petition by a party to the proceedings or another person concerned or injured by the impugned decision, that there is the risk of considerable economic loss or other serious irreparable consequences, the extraordinary appeal may be lodged without stating the reasons for appeal. The reasons must then be stated within sixty days of the lodging of the extraordinary appeal with the Supreme Court, failing which the proceedings will be discontinued (Article 243h §§ 3 and 4).

If the extraordinary appeal is accompanied by a request that the enforceability of the contested decision be suspended, its enforceability must be suspended following the lodging of the extraordinary appeal with the Supreme Court (Article 243ha § 1).

The duration of such a suspension is regulated by Article 243ha § 2, pursuant to which the suspension ceases (a) when the request is dismissed or (b) with a decision on the extraordinary appeal, unless extended by the Supreme Court, no later than one year from the lodging of the extraordinary appeal with it.

A copy of the extraordinary appeal is to be sent to the parties to the proceedings for observations. The decision on the extraordinary appeal must be sent to the parties to the proceedings and to the PG (Article 243i § 1 and Article 243j).

The results of the ongoing work to re-codify the rules on civil procedure are summarised in a 2013 green paper (Návrh legislatívneho zámeru rekodifikácie civilného práva procesného) of the re-codification commission under the auspices of the Ministry of Justice.

The green paper envisaged abolishing extraordinary appeals on the grounds that there are doubts as to their compatibility with the Convention, especially as regards the principles of equality of arms, legal certainty and res judicata. Extraordinary appeals are retained, albeit in a modified form, in the final text of the new Code of Civil Contentious Procedure (Civilný sporový poriadok).

In a decision (uznesenie) of 19 July 2000 in an unrelated case (no. PL. ÚS 57/99), the Constitutional Court dismissed a motion by the Supreme Court that certain provisions of the CCP concerning extraordinary appeals were contrary to the Constitution. That motion was lodged by the Supreme Court in the context of extraordinary appeal proceedings instituted by the PG concerning the review of an administrative decision on a restitution claim (see Veselá and Loyka v. Slovakia (dec.), no. 54811/00, 23 November 2004).

In its decision, the Constitutional Court observed, inter alia, that the extraordinary appeal was an extraordinary means for ensuring that judicial decisions were not only formally final but also right in terms of content. A clear discrepancy between the degrees of respect shown for those two principles in an individual case could justify an interference with the former principle for the benefit of the latter. However, that would be so only in instances of a striking violation of constitutional principles of procedure, the principle of a fair trial or a denial of justice, which were not amenable to correction by other means.

According to the Constitutional Court, for an extraordinary appeal to be acceptable its use had to be limited to instances of the most serious errors in procedure or its outcome (linked to either factual or legal assessment), and to instances where other available legal remedies had been exhausted.

Moreover, the Constitutional Court held that by virtue of the power to lodge an extraordinary appeal, the PG was a statutory intermediary for ensuring protection of the rights of the parties and other persons concerned or injured by the contested decision.

In a decision of 29 October 2003 in an unrelated case (no. IV. ÚS 197/03) concerning an individual complaint, the Constitutional Court held, inter alia, that in extraordinary appeal proceedings before the Supreme Court the PG did not have the standing of a party to the proceedings as such, but rather had a sui generis standing, similar to that of the parties. In such proceedings, the PG had no subjective interest of his or her own. Rather, the protection from unlawful final and binding decisions pursued in those proceedings served the general interest.

In a decision of 3 June 2008 in another unrelated case (no. IV. ÚS 180/08) concerning an individual complaint, the Constitutional Court observed, among other things, that individuals and legal entities that had petitioned the PG to lodge an extraordinary appeal had no legal claim to have such an appeal lodged and that, conversely, the PG was under no legal duty to accommodate the request. It was within the PG’s entire discretion to decide whether or not to lodge an extraordinary appeal. The extraordinary appeal was an extraordinary remedy. There was no legal right to have it lodged on one’s behalf. A petition for an extraordinary remedy did not enjoy constitutional protection and was not covered by the catalogue of fundamental rights.

In its decision of 27 September 2012, in an unrelated case (no. 1 M Obdo V 2/2011), the Supreme Court rejected an extraordinary appeal by the PG concerning a property dispute. It held that an extraordinary appeal was not admissible in circumstances where it was open to the party concerned to pursue its rights directly by way of an appeal on points of law.