Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Review of sentence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

This application was lodged on 20 October 2008 by Svetlana Ivanovna Tsvetkova, who was born in 1972 and lives in Irkutsk.

At 10 p.m. on 1 January 2008 Officer S. escorted the applicant to the police station, in accordance with Article 27.2 of the Federal Code of Administrative Offences (“the CAO”) (see paragraph 67 below), on suspicion of shoplifting.

Officer B. compiled an arrest record under Article 27.3 of the CAO (see paragraph 69 below). The administrative arrest record reads as follows:

“I, Officer B., ... compiled the present administrative arrest record in respect of: [the applicant’s name, date of birth, address] ... who has been escorted to ... on 1 January 2008 at 10 p.m., on account of an administrative offence under Article [blank] of the CAO.

Reasons for the arrest (Article 27.3 of the CAO): [blank] ...”

According to the applicant, after she had been taken away by the police, her minor son (who had apparently been with her in the shop) had been left unattended in the cold. The applicant was then subjected to a humiliating body-search procedure and was asked to take off her clothes, remaining in her underwear. She was then kept with drunk people in a small cell with no seats and no toilet.

In her application to the Court, the applicant specified that she had been released at 3 a.m. on 2 January 2008. In her observations before the Court, she specified that she had been released “after 4 a.m.”. According to the Government, the applicant was released at 0.35 a.m.

The applicant was not subsequently prosecuted for an administrative offence or a criminal offence.

Considering that the police actions in respect of her and the degrading treatment to which she had been subjected were sufficiently serious so as to amount to a criminal offence, on 27 May 2008 the applicant sought the institution of criminal proceedings against officer S., referring, inter alia, to the unlawful deprivation of liberty.

On 16 June 2008 an investigator refused to open a criminal case, finding that the officer had not committed any abuse of power, which was a criminal offence punishable under Article 286 of the Criminal Code. The investigator referred to a statement from B. affirming that the applicant had been taken to the police station on suspicion of theft.

On 20 June 2008 a superior officer overruled the refusal to open a case. A new refusal was issued on 30 June 2008 by the same investigator. That was also then overruled.

A further refusal was issued on 11 December 2008 and the applicant sought a judicial review. On 19 January 2009 the Oktyabrskiy District Court of Irkutsk confirmed the refusal. On 26 February 2009 the Irkutsk Regional Court set aside the judgment, considering that the applicant’s allegations concerning the unlawfulness of her arrest had not been examined.

The District Court then declined jurisdiction in favour of another court, but that was declared unlawful on appeal.

On 8 May 2009 the District Court discontinued the case because on 7 May 2009 the impugned refusal to prosecute had been overruled by a superior officer. However, a new refusal was issued on 12 November 2009 as regards offences under Articles 285, 286 and 293 of the Criminal Code. This refusal was then upheld by a final judgment of the Regional Court on 9 September 2010.

This application was lodged on 28 January 2011 by Aleksandr Vitalyevich Bgantsev, who was born in 1958 and lives in Volgograd. The applicant was represented before the Court by Ms Y. Lepilina, a lawyer practising in the Volgograd Region.

On 30 August 2010 the applicant’s superior, Mr I., called the police to report that the applicant had used (unspecified) foul language at his work place. Officer O. ordered the applicant to accompany him to the police station. The applicant refused and said that nothing prevented the officer from compiling an administrative-offence record on the spot. The officer insisted, stating that it would be more convenient for him to do it at the police station. The applicant obeyed and was escorted to the police station at around 1 p.m. (in accordance with Article 27.2 of the CAO). At 3.40 p.m. he was subjected to the arrest procedure (Article 27.3 of the CAO). The arrest record reads as follows:

“[The applicant] was escorted to the police station at: 3.40 p.m.

On account of: an administrative offence under: Article 20.1 of the CAO

For the purpose(s) of Article 27.3 of the CAO: for taking a decision.”

Officer O. compiled the administrative-offence record, which reads as follows:

“[The applicant] used foul language in the presence of Mr I. and continued his unruly behaviour, despite being asked to stop. Thus, [the applicant] committed an offence under Article 20.1 of the CAO.

Witnesses to the offence: Mr K.; Mr M.”

The applicant spent the night at the police station.

On 31 August 2010 the applicant was taken before a justice of the peace, who held a hearing at which he examined the applicant, as well as I., K. and M. On the same day, the justice of the peace convicted the applicant of minor hooliganism (Article 20.1 of the CAO) and sentenced him to five days of detention.

The applicant started to serve the sentence on the same day, in the police station. Between 30 August and 4 September 2010 he was locked in cells measuring six square metres and accommodating, on average, four detainees. Each cell was equipped with two benches some 35 cm in width. There was no window and no ventilation system. The other detainees smoked cigarettes, which caused discomfort to the applicant, who was not a smoker. There was no bed or bedding. The applicant was not provided with food or allowed outdoors. Access to a toilet (which was apparently outside the cell) was available every four hours (or sometimes every eight hours). The applicant submitted written statements from three co-detainees in support of his allegations.

The applicant was released at 3.40 p.m. on 4 September 2010.

On 4 October 2010 the Krasnoarmeyskiy District Court of Volgograd held an appeal hearing and examined the applicant, I., K., M. and Officer O. The appellate court upheld the judgment of 31 August 2010. On 3 November 2010 the Volgograd Regional Court upheld the judgments following a review.

This application was lodged on 1 February 2013 by Pavel Vladimirovich Andreyev, who was born in 1989 and lives in Syktyvkar. The applicant was represented before the Court by Ms I. Buryukova, a lawyer practising in the Moscow Region.

On 9 December 2011 the applicant distributed leaflets in various police stations, urging the police not to use force to disperse public gatherings which were to be held on 10 December 2011, after the contested elections to the State Duma earlier that month.

At 11 p.m. the traffic police took the applicant to the police station on suspicion of evading military service. At 11.50 p.m. the applicant was charged with an administrative offence under Article 20.25 of the CAO on account of an unpaid fine of 300 roubles (RUB) (equivalent to 7 euros (EUR)) for a traffic offence. The charge concerning evasion of military service was not pursued.

The arrest record reads as follows:

“[The applicant] was escorted to the police station: at 11.30 p.m.

On account of an administrative offence: under Article 20.25 of the CAO.

For the purposes of Article 27.3 of the CAO: for compiling an administrative record.”

The applicant was not released after the administrative-offence record had been drawn up, but was instead placed in a detention centre at 2 a.m., for reasons which were not specified.

At 3 p.m. on 11 December 2011 the applicant was taken before a justice of the peace, who then sentenced him to two days of detention for the offence under Article 20.25 of the CAO. The applicant was then taken back to the detention centre and was released at around 11.30 p.m.

The applicant appealed. On 31 January 2012 the Syktyvkar Town Court upheld the conviction.

The applicant brought proceedings, under Chapter 25 of the Code of Civil Procedure (“the CCP”), to challenge the deprivation of his liberty from 2 a.m. on 10 December 2011 to 3 p.m. the next day. By a decision of 12 May 2012, the Town Court discontinued the proceedings. On 2 August 2012 the Supreme Court of the Komi Republic upheld the decision. On 4 March 2013 the cassation instance of the same court confirmed it. The courts considered that while neither the CCP nor the CAO set out a separate procedure for challenging the measures of being escorted to the police station or of administrative arrest, arguments concerning those measures could be raised during an examination of the related CAO charges against the applicant, as well as in an appeal against a decision that had been taken on such charges.

In separate proceedings, the applicant lodged a claim for compensation, arguing that Article 27.4 required that a record of administrative arrest was to specify reasons for the arrest; the record of his arrest referred to the need to compile the administrative-offence record; such record had been compiled late at night on 9 December 2011; thereby the justification for his arrest had been exhausted and could no longer justify his continued deprivation of liberty on 10 and 11 December 2011. The applicant concluded from the above that the unlawful deprivation of liberty on those dates served as a legal basis for obtaining compensation on account of the non-pecuniary damage suffered.

By a judgment of 19 September 2012, the Town Court dismissed the applicant’s claim. The court considered that the matters relating to his being taken to the police station and the ensuing administrative arrest had been examined in the CAO case and there were therefore no reasons to award compensation. On 20 December 2012 the Supreme Court of the Komi Republic upheld that judgment. On 27 May 2013 the same court dismissed a cassation appeal lodged by the applicant, stating as follows:

“... [The applicant] was escorted to the police station for the compiling of a record of administrative offence ... With a view to the correct and expedient examination of the case, he was subjected to the measure of administrative arrest ... The actions of the police officers relating to the escorting and the arrest procedures were assessed by the courts dealing with the administrative charge and were, in substance, declared lawful ... The claimant’s argument that the courts in a civil case should assess the lawfulness of the police actions is based on a wrong interpretation of the law ... It is not appropriate to challenge the procedure of administrative arrest within the procedure under Chapter 25 of the Code of Civil Procedure, where there is a decision to engage the liability of a person for an administrative offence ...”

This application was lodged on 5 September 2014 by Aleksey Olegovich Dragomirov, who was born in 1980 and lives in Roslavl in the Smolensk Region, Russia.

On various dates between 2001 and 2008, including from 9 to 11 June 2008 (see below), the applicant was kept in a temporary detention centre. According to him, the cells had no toilet; he had had to relieve himself in a bucket; there was no running water available in the cells, and no access to shower facilities.

According to a written report by Officer S., at 2.45 p.m. on 9 June 2008 he arrested the applicant for being drunk and looking untidy in a public place, and took him to the police station where he then remained until he sobered up. It appears, however, that the applicant was actually arrested (apparently, by another officer) and then tested for alcohol intoxication around 6 p.m. and 10.45 p.m. respectively (see paragraph 38 below). On 10 June 2008 before a justice of the peace the applicant admitted that he had consumed vodka with a friend in the morning the day before but denied that he had appeared untidy at 2. 45 p.m. or had been drunk or otherwise behaving in a manner offending public morals or human dignity. On the same day, referring to S.’s report, a medical report (the contents of which are not clear) and an arrest record, the justice of the peace convicted the applicant of an administrative offence under Article 20.21 of the CAO on account of being drunk in a public place at 2.45 p.m. on 9 June 2008 while having an untidy appearance, thus offending human dignity and public morals. The justice of the peace sentenced him to five days of administrative detention.

The applicant started to serve his sentence on 10 June 2008.

The applicant appealed. On 11 June 2008 the Bolsheukovskiy District Court quashed the conviction and discontinued the case for lack of any evidence to confirm the facts as imputed to the applicant. The appeal court considered that there had been nothing to suggest that the applicant had had an untidy appearance which offended human dignity or public morals; around the same time the applicant had had an appointment at the prosecutor’s office and no complaint had been made concerning his appearance or any state of drunkenness. The appeal decision reads as follows:

“The defendant was convicted of being drunk and looking untidy in a public place at 2.45 p.m. on 9 June 2008 ...

[The applicant] stated that he had consumed vodka with a friend in the morning of 9 June 2008; had then attended a sauna, had put clean clothes, had had lunch and had then gone to attend a meeting in the district prosecutor’s office; he had not seen any police officer at 2.45 p.m. ...

Mr Se. stated before the appeal court that he had had a meeting with [the applicant] at 3 p.m. While he could see that [the applicant] had consumed alcohol, he conducted himself, looked and spoke properly ...

Officer S. stated that he had been told on 9 June 2008 of [the applicant] being drunk but he had actually not seen him at 2.45 p.m. and had actually not effected his arrest at that time ...

The file contains a medical report compiled at 10.45 p.m. and the arrest record indicating that the defendant had been arrested at 6.05 p.m.

There is no other evidence in the file. The trial court relied on S.’s report, the medical report and the arrest record. However, it has now been established that the defendant was examined and arrested much later than at 2.45 p.m. on 9 June 2008 ... S.’s presentation of facts is not truthful and contradicts his earlier report. Shortly after that time the defendant was at the district prosecutor’s office and testified before an investigator [Se.]. His appearance and conduct did not offend human dignity and public morals ... So it has not been established that the defendant committed any offence under Article 20.21 of the CAO ... The proceedings should be discontinued for lack of a corpus delicti ...”

The applicant was released on 11 June 2008.

The applicant brought civil proceedings, seeking compensation in the amount of RUB 100,000 (equivalent to EUR 2,000) in respect of nonpecuniary damage owing to the conditions of his detention and the unlawful penalty of administrative detention. By a judgment of 5 March 2014, the District Court awarded the applicant RUB 5,000 (EUR 100 according to the Bank of Russia rate on the relevant date) on the basis of the fact that the prosecution had been discontinued. On 4 June 2014 the Omsk Regional Court upheld that judgment.

This application was lodged on 24 October 2014 by Viktor Grigoryevich Torlopov, who was born in 1963 and lives in Syktyvkar, Komi Republic. The applicant was represented before the Court by Ms I. Buryukova, a lawyer practising in the Moscow Region.

Section 8 of the Public Events Act of 2004 banned public gatherings “in the immediate vicinity of court buildings”. Relying on that provision of the Act, in 2011 the Syktyvkar town administration decided to ban the holding of public events within a radius of 150 metres of any court, to be measured from the entrance to each court building in the town.

At 9 a.m. on 12 October 2011, as part of a series of solo demonstrations held in late 2011, the applicant placed himself within a fenced-off area around the building housing the prosecutor’s office. He was holding a poster that read “The prosecutor’s office should return Stefanovskaya Square to demonstrators!”.

After ten minutes the police ordered the applicant to stop the demonstration because it was being held in the vicinity of the Town Court building. He was handcuffed and, allegedly, physical force was used against him. He was then taken to the police station and subjected to the measure of administrative arrest. The relevant record reads as follows:

“[The applicant] arrived at the police station at ‘11.25’ in connection with offences under: ‘Article 20.2, Article 19.3 of the CAO’

For (among the grounds listed in Article 27 of the CAO): for compiling a record of administrative offence ...”

The applicant was released at 8.30 p.m. He was later admitted to hospital.

By a judgment of 6 December 2011, a justice of the peace convicted the applicant under Article 20.2 of the CAO and sentenced him to a fine of RUB 500 (equivalent to EUR 12 at the time). On 14 March 2012 the Syktyvkar Town Court upheld the judgment. However, on 23 August 2013 the Supreme Court of the Komi Republic set aside the above judgments and discontinued the case. The court considered that there had been no evidence that the place where the applicant had stood was assigned to the territory of the Town Court under the applicable laws and regulations.

The applicant brought civil proceedings for compensation on account of the unlawful deprivation of his liberty on 12 October 2011. By a judgment of 12 February 2014, the Town Court dismissed his claim. On 24 April 2014 the Supreme Court of the Komi Republic upheld that judgment. The court observed as follows:

(a) Having regard to Articles 5, 10 and 11 of the Convention and the ruling of the Plenary Supreme Court of Russia dated 27 June 2013 (concerning the application of the Convention by courts of general jurisdiction), the police’s action in taking the applicant to the police station had been proportionate and had pursued a legitimate aim; it had been of short duration, and had not involved any recourse to physical force.

(b) The measure of taking the applicant to the police station had been aimed at ensuring prosecution for an administrative offence, including the drawing up of an arrest record.

This application was lodged on 30 September 2015 by Kirill Valentinovich Svetlov, who was born in 1990 and lives in Cherepovets in the Vologodsk Region.

On 4 September 2015 the applicant’s car was stopped by the police. The applicant was accused of an administrative offence under Article 12.7 of the CAO because he had no valid driving licence. The applicant was taken to the police station where he went through the procedure of being placed under administrative arrest. His mobile telephone was seized.

According to the applicant, he was not informed of his procedural rights, including the right to remain silent, when he was pulled up by the police, or at the police station.

On 6 September 2015 (a Sunday) the applicant was taken before a justice of the peace. At the hearing, the applicant asked for a lawyer. The judge adjourned the hearing for thirty minutes to allow the applicant to contact a lawyer. According to the applicant, during the break in the hearing, a guard took him to a metal cage where defendants were kept; the applicant had no access to a telephone. According to the Government, the applicant was not kept in a metal cage but in a room measuring some twelve square metres.

According to the Government, after the adjournment the applicant waived his right to legal assistance and opted to defend himself. The applicant submitted that he had not made any such statement.

The justice of the peace convicted the applicant of the offence and sentenced him to five days of administrative detention, to be counted from 4 September 2015. The justice of the peace stated that the applicant’s guilt was confirmed by, inter alia, the record of administrative offence compiled by the police as well as by the applicant’s guilty plea. The justice of the peace had dismissed as unsubstantiated his argument that as a military officer, he could not be sentenced to administrative detention.

The applicant began his sentence the same day.

On 8 September 2015 the applicant appealed. In his statement of appeal he mentioned that he had had difficulties with legal assistance since no law firms would be open on a Sunday. He was released on 9 September 2015.

On 18 September 2015 the Cherepovets Town Court examined the applicant and upheld the judgment against him. It stated, inter alia, that the justice of the peace had not been provided with any proof that the applicant was a military officer. It is unclear whether the applicant adduced the relevant evidence in the appeal proceedings.

The applicant also lodged a constitutional complaint. By decision no. 2732-O of 19 November 2015, the Constitutional Court held that the immediate execution of the sentence of administrative detention had not contravened the Constitution (see “Relevant domestic law and practice”, paragraph 79 below).

On 26 November 2015 the Vologda Regional Court dismissed an application by the applicant for review of the court decisions of 6 and 18 September 2015.

On 1 April 2016 the Supreme Court of Russia dismissed a further application for review lodged by the applicant.


CASE OF GROSSMANN AIR SERVICE BEDARFSLUFTFAHRTUNTERNEHMEN GMBH & CO KG v. AUSTRIA

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

Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant company is a limited liability company which is registered in Austria and has its seat in Vienna.

In 1998 the Federal Finance Minister made a public call for tenders concerning flight services for delegations of the Federal Government. The applicant company submitted an offer, but simultaneously complained that the public tender was tailored towards one specific tenderer, namely the L. company. It was therefore revoked.

On 28 July 1998 an amended public call for tenders was issued. The applicant company did not submit an offer.

Upon request, the applicant company was informed that the Federal Government decided on 8 October 1998 to award the contract to the L. company. The respective contract was concluded on 29 October 1998.

On 19 October 1998, received by the Federal Procurement Authority (Bundesvergabeamt) on 27 October 1998, the applicant company requested to initiate review proceedings concerning the public call for tenders and to declare the awarding of the contract to the L. company null and void.

On 4 January 1999 the Federal Procurement Authority rejected the applicant company’s request, holding that it had failed to show its legal interest in the public tender.

On 2 March 1999 the applicant company filed a complaint with the Constitutional Court and asked it to seek a preliminary ruling from the Court of Justice of the European Union (CJEU) on the question of the existence of a legal interest.

On 10 December 2001 the Constitutional Court set aside the Federal Procurement Authority’s decision and held that it should have requested a preliminary ruling.

On 14 May 2002 the Federal Procurement Authority therefore requested a preliminary ruling from the CJEU.

On 12 February 2004 the CJEU issued a preliminary ruling, holding in essence that a person who did not participate in the public tendering proceedings due to an allegedly discriminatory call may still request their review.

On 30 November 2004 the Federal Procurement Authority again rejected the applicant company’s request.

On 10 January 2005 the applicant company filed a complaint with the Constitutional Court.

On 26 September 2005 the Constitutional Court declined to deal with the applicant company’s complaint, holding that it did not raise any questions of constitutional law, and transferred the case to the Administrative Court.

On 5 December 2005 the applicant company submitted its amended complaint to the Administrative Court.

On 29 October 2008 the Administrative Court set aside the Federal Procurement Authority’s decision, holding that the applicant company had been eligible to file a request for review proceedings.

On 2 July 2009 the applicant company filed a letter to the AuditorGeneral’s Department (Finanzprokuratur), asking whether the Republic of Austria would be interested in reaching a settlement in this case, referring to the Federal Procurement Authority’s inactivity after the Administrative Court’s last decision and the fact that the proceedings have already lasted for over ten years.

On 13 July 2009 the Auditor-General’s Department replied and requested the applicant company to specify their claims for compensation. It further stated that the applicant company could file an application against the Federal Procurement Authority’s failure to decide.

On 22 September 2009 the applicant company filed an application with the Administrative Court against the Federal Procurement Authority’s failure to decide (Säumnisbeschwerde).

On 30 September 2009 the Administrative Court requested the Federal Procurement Authority to issue, within three months, either a decision or to explain why it did not violate its duty to decide.

On 8 October 2009 a meeting took place between the parties, but no settlement could be reached.

On 22 December 2009 the Federal Procurement Authority issued its decision, finding that awarding the contract to the L. company in the public tender proceedings had not been unlawful.

On 24 February 2010 the Administrative Court discontinued the proceedings concerning the applicant company’s application filed against the Federal Procurement Authority’s failure to decide as the latter had issued its decision on 22 December 2009, but awarded the applicant company the legal costs.

On 1 February 2010 the applicant company filed a complaint with the Administrative Court.

On 25 March 2010 the Administrative Court declined to deal with the complaint. It held that the impugned decision had not deviated from the Administrative Court’s case-law and that the complaint did not raise any legal questions of fundamental significance.

This decision was served on the applicant company’s counsel on 8 April 2010.


Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for private life);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in 1975 and lives in Elazığ.

On 19 October 1999 the applicant sat an examination in order to become a public servant. She was successful in the examination and on an unspecified date she was informed by the State Personnel Department attached to the Prime Minister’s office that she had been appointed to the post of security officer in the Batman branch of TEDAŞ, the state-run Electricity Company, the first of the five choices that the applicant had made in the course of the examination procedure.

On 5 July 2000 the human resources department of the Batman branch of TEDAŞ informed the applicant that she would not be appointed as she did not fulfil the requirements of “being a man” and “having completed military service”.

In a letter dated 9 August 2000 and addressed to the Ministry of Energy and Natural Resources, the human resources department of TEDAŞ requested the Ministry to provide a list of new persons to be appointed instead of a number of persons, including the applicant, who could not be recruited for various reasons. As regards the applicant and three other persons, B.U., R.B. and A.O.C., the human resources department of TEDAŞ informed the Ministry that they were women and therefore could not work as security officers. In the letter, it was stated that security officers had the task of protecting depots, switchyards and transformer stations in rural areas far from city centres, against attacks and in case of fire and sabotage. They were obliged to work day and night and to use weapons, including those with long barrels, and physical force in case of an attack. It was therefore considered that women were not suitable for the post of security officer.

On 18 September 2000 the applicant lodged an action against the general directorate of TEDAŞ with the Ankara Administrative Court requesting the annulment of the decision of the Batman branch of TEDAŞ with all its financial consequences. In her deposition, the applicant noted that being a man was not a requirement for appointment to the post in question and that she fulfilled all the requirements for that post. The applicant also noted that she had been deprived of the opportunity to be appointed to one of the other four posts that she had indicated following the refusal in question and that she could not sit the examination again in 2000 as she had succeeded in 1999.

On an unspecified date the general directorate of TEDAŞ submitted to the administrative court that one of the requirements for the post in question had been declared by the State Personnel Department as “having completed military service” and that therefore only men could be appointed to the post. The applicant, being a woman, could therefore not be recruited as a security officer.

On 27 February 2001 the Ankara Administrative Court annulled the decision of the Batman branch of TEDAŞ. The court held that the requirement of “having completed military service” should be considered to apply only to male candidates and that there had been no restriction on women working as security officers in TEDAŞ. The court also noted that another woman, Y.P., who had also brought a case against TEDAŞ for the same reasons as the applicant, had been appointed to the post of security officer after she had lodged the case.

Subsequent to the judgment of 27 February 2001, the applicant was offered a contract by the Batman branch of TEDAŞ. On 11 July 2001 she took up her duties. On 1 March 2002 she was transferred to the Elazığ branch of TEDAŞ as her husband lived and worked in that city.

On 8 May 2001 TEDAŞ lodged an appeal against the judgment of 27 February 2001, requesting the Supreme Administrative Court to order a stay of execution of the judgment of the Ankara Administrative Court and to subsequently quash it. The representative of TEDAŞ submitted, inter alia, that the announcement of the post of security officers in the Batman branch contained the requirement of “having completed military service” and not “in respect of male candidates, having completed military service”, unlike the post in the Gaziantep branch of TEDAŞ, which first rejected Y.P. According to the lawyer, this expression demonstrated that the post was reserved for male candidates only and that therefore the status of the applicant was different from that of Y.P.

On 27 June 2001 the Supreme Administrative Court dismissed the request for a stay of execution.

On 31 March 2003 the Twelfth Division of the Supreme Administrative Court quashed the judgment of the Ankara Administrative Court, holding that the requirement regarding military service demonstrated that the post in question was reserved for male candidates and that this requirement was lawful having regard to the nature of the post and the public interest. The high court therefore found that the administration’s decision had been in accordance with the law.

On 1 August 2003 the applicant requested rectification of the decision of 31 March 2003. In her petition, she submitted that the post of security officer was not reserved for male candidates and that therefore the high court’s decision was in breach of the principle of equality.

On 17 March 2004 the applicant was dismissed from her post at the Elazığ branch of TEDAŞ. According to the letter sent by the deputy head of the human resources department of TEDAŞ to the Elazığ branch, the applicant’s contract was to be terminated on account of the decision of the Supreme Administrative Court dated 31 March 2003.

On 22 March 2004 the applicant lodged a petition with the Supreme Administrative Court. She maintained that she had lost her post and requested the high court to order a stay of execution of the decision of 31 March 2003. She noted, in her petition, that the post in question should not be reserved only for men, since certain acts, such as a body search on women, should be carried out by female officers.

On 16 April 2004 her request was dismissed by the Twelfth Division.

On 11 October 2005 the Twelfth Division of the Supreme Administrative Court further dismissed the applicant’s request for rectification.

On 21 February 2006 the Ankara Administrative Court dismissed the applicant’s case, taking into consideration the decision of the Supreme Administrative Court.

On 24 April 2006 the applicant appealed. In her deposition she noted that there were three other similar cases brought against TEDAŞ by female candidates for the same reasons as hers and that one of these cases, brought by R.B., who had also not been appointed to a post of security officer in the Batman branch of TEDAŞ on the same grounds as those applied to the applicant, was pending before the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions. She further noted that she would have lost the opportunity to apply for another public post, had the high court decided in favour of TEDAŞ.

On 6 December 2007 the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions (Danıştay İdari Dava Daireleri Genel Kurulu) issued a decision in favour of R.B. The General Assembly held that the requirement of “having completed military service” should be considered to apply only to male candidates and that the refusal to appoint R.B. to the Batman branch of TEDAŞ had therefore been unlawful.

On 12 February 2008 the Twelfth Division of the Supreme Administrative Court upheld the judgment of 21 February 2006, holding that the latter was in accordance with the law. In its decision, the court noted the content of the decision of the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions but did not comment on it.

On 17 March 2008 the applicant requested rectification of the decision of 12 February 2008, maintaining that the decision in question constituted a breach of the principle of equality and the right to a fair hearing since the Supreme Administrative Court’s General Assembly of Administrative Proceedings Divisions had ruled in favour of R.B. She further claimed that there had been discrimination, since pursuant to the Constitution no distinction could be made in public employment.

On 17 September 2008 the Twelfth Division of the Supreme Administrative Court dismissed the applicant’s request.


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

The applicants complained that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties.


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Pecuniary and non-pecuniary damage - award

The applicant was born in 1963 and lives in Balassagyarmat.

The applicant is a television journalist. From 15 February 2001 he was employed by the State television company (Magyar Televízió Zrt.). Following an amendment of his work contract on 10 July 2002, he was appointed for an indeterminate period. At the material time, he was chairman of the Trade Union of Public Service Broadcasters (Közszolgálati Műsorkészítők Szakszervezete), active within the television company.

The applicant was in charge, as editor and presenter, of a periodical cultural programme called Éjjeli menedék (Night Shelter) which involved interviews with various figures of cultural life.

According to point 10 of his work contract, the applicant was bound by professional confidentiality. He was obliged not to reveal any information acquired in connection to his position the disclosure of which would be prejudicial to either his employer or any other person. According to the labour contract, he also took note of the fact that a breach of this obligation would lead to the immediate termination of his employment.

Following the appointment of a new cultural director the applicant had apparently contacted the television company’s president, since he had perceived the new director’s conduct in modifying and cutting certain contents of Éjjeli menedék as censorship. He had received no response to his complaint.

On 6 June 2003 the editor-in-chief of Éjjeli menedék addressed a letter to the board of Magyar Televízió Zrt. stating, amongst other things, that the appointment of the new cultural director had led to censorship of the programme by his suggesting modifications to, and the deletion of, certain contents.

On 19 June 2003 an article appeared in the online version of a Hungarian daily (Magyar Nemzet Online), containing the editor-in-chief’s letter as well as a statement of Magyar Elektronikus Újságírók Szövetsége (Hungarian Union of Electronic Journalists), inviting the board to end censorship in the television company.

In 2004 the applicant published a book entitled “Az antifasiszta és a hungarista – Titkok a Magyar Televízióból” (The Antifascist and the Hungarista - Secrets from the Hungarian Television). Each chapter of the book contained an extract from different interviews recorded in 2003, which had not been broadcast in the cultural programme, apparently on the basis of the instructions of the cultural director in question. Along with the extracts, the applicant included numerous in-house letter exchanges between the cultural director and the editor-in-chief concerning the suggested changes in the programme. Moreover, the chapters contained a short introduction or summary of the events, reflecting the applicant’s personal opinion. The preface of the book said that it would contain documentary evidence of censorship exercised in the State television company. It called on the readers to decide whether the documents indicated the cultural director’s legitimate exercise of his supervisory functions or an interference with the broadcaster’s freedom of expression.

On 11 November 2004 the television company dismissed from employment the applicant and the editor-in-chief of Éjjeli menedék, with immediate effect. The reason for the applicant’s summary dismissal was that, by publishing the book in question, he had breached the confidentiality clause contained in his labour contract.

The applicant challenged his dismissal in court. He argued, inter alia, that he had received the in-house letter-exchange in connection with his position as the chairman of the trade union, in order for him to take steps against the alleged censorship at the television company, and that he had published the impugned book in that capacity.

In its judgment of 8 April 2008 the Budapest Labour Court dismissed the applicant’s action, stating that he had breached his obligations under point 10 of his work contract by publishing information about his employer without its consent. The court also found that the applicant’s position as chairman of the trade union did not exempt him from the duty of confidentiality.

The applicant appealed, arguing that the publication of the book had not in any way prejudiced his employer or any other person and that he had not acquired the published information in connection with his position but in his capacity as trade union chairman. In that position, and in representation of the interests of his colleagues, he was obliged to act against the censorship within the television company. Thus, according to the applicant, the conditions of dismissal, as stipulated in point 10 of his labour contract, had not been fulfilled.

On 13 February 2009 the Budapest Regional Court dismissed the appeal on the same grounds as the Labour Court, adding that the publication of the book might have had a certain detrimental effect on the television company’s reputation. Furthermore, in the Regional Court’s opinion, the impugned measure had not constituted an abuse of rights on the employer’s side, since the applicant had voluntarily agreed to the restriction of his freedom of expression by signing his labour contract.

The applicant pursued a petition for review before the Supreme Court. He argued that he had been unlawfully dismissed in that his conduct, namely to inform the public about censorship at the State television company in a book – which was a last-ditch option given that his efforts vis-à-vis the management to have the matter investigated had been to no avail – should have been regarded as an exercise of his freedom of expression rather than an unlawful breach of his labour contract, especially in view of the fact that the allegation of censorship had not been refuted.

On 26 May 2010 the Supreme Court found against the applicant. Referring to the applicant’s submission concerning freedom of expression, it held that the scope of the case did not extend beyond the examination of the applicant’s breach of his labour obligations. In the court’s view, the applicant had indeed breached the contract by means of the unauthorised publication of internal documents of his former employer. The court expressly excluded from its scrutiny the question whether or not the applicant’s freedom of expression justified, in the circumstances, a formal breach of his labour contract.

This decision was served on 13 July 2010.


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

Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicant was born in 1951 and lives in Piatra-Neamț.

The applicant (also referred to herein as prosecutor L.), in her capacity as a prosecutor at the prosecutor’s office attached to the Neamț County Court, initiated criminal proceedings against A.B. on two occasions. She filed an indictment proposing A.B.’s conviction in both sets of proceedings.

The first indictment, filed by the applicant on 17 January 2000, sought the conviction of A.B. for the offences of making false declarations and destruction. On 20 September 2001 the Ploiești District Court found A.B. guilty as charged and sentenced her to six months’ imprisonment in respect of each offence. The judgment was upheld by the Prahova County Court, which dismissed an appeal lodged by A.B. on 7 January 2002. On 22 March 2002 the Ploiești Court of Appeal allowed an appeal on points of law lodged by A.B. in part, noting that the limitation period had expired in respect of the offence of destruction.

The second indictment of 25 July 2001 was not approved by the chief prosecutor, who ordered the discontinuance of the criminal proceedings against A.B.

On 7 February 2002 disciplinary proceedings were initiated against the applicant following a complaint being lodged by A.B. On 6 March 2002 the prosecutor’s office attached to the Supreme Court of Justice found that the applicant had not committed any disciplinary offence and closed the investigation.

A.S., a journalist at the national newspaper Romania Liberă, wrote two articles concerning the applicant’s professional activity in connection with the criminal proceedings against A.B.

The first article published on 13 February 2002 was entitled “Judicial corruption. Prosecutor L. falsified two indictments! An innocent person was sentenced to prison” and had six sections. The first section, entitled “Professional dross, confirmed by her superiors” (“Rebut professional, confirmat de șefi”), referred to an allegedly “falsified” indictment filed by the applicant on 25 July 2001. It concerned A.B., who according to the journalist had been innocent and a victim of the applicant’s corrupt actions. In the journalist’s opinion the fact that this indictment had been invalidated by the chief prosecutor proved that it had been the result of falsification and could be considered professional dross (“rebut professional”).

In the second section, entitled “Exclusion from the magistracy” (“Excludere din magistratură”), the journalist referred to “the cheating prosecutor L.” (“procurorul măsluitor”) who “did not manage to send A.B. before a court on the basis of her falsified indictment on this occasion. However she had already managed to send A.B. before a court of justice on the basis of another indictment, the product of scandalous falsification”. It was stated that an examination of the applicant’s conduct in connection with the first indictment “could result, besides criminal charges against her for abuse of position, in her rapid exclusion from the magistracy by the disciplinary board of the public prosecutor’s office. By misleading her superiors, cheating prosecutor L. managed to send the defendant A.B. before a court on 17 January 2000 for criminal damage and making false declarations. The lies and the wilfully erroneous interpretation contained in the ten pages of the second falsified indictment could fill a whole chapter in ‘a real handbook of judicial corruption’”.

The third and the fourth sections of the article concerned civil proceedings brought by A.B., without making any reference to the applicant. The fifth section concerned a complaint of criminal damage lodged by “the mafia of crooked businessmen” against A.B. and allocated to “cheating prosecutor L.” In the last section, the journalist accused the applicant, “the cheating prosecutor”, of causing A.B. to be sentenced to prison by lying to the courts with her “falsified indictment”.

The second article, published on 22 February 2002, was entitled “E.L., the prosecutor who falsifies indictments”. It referred to the conviction of A.B. on the basis of an indictment drafted by the applicant. The journalist claimed to have exposed the alleged influence exercised over the applicant by S.E., directly interested in the affair, which had led to A.B.’s conviction. According to the journalist, S.E. had repeatedly “brought a variety of food products to [the applicant’s] home in bags or in boot of her car (...). Once she brought a pig cut in half to [the applicant’s] home, leaving bloodstains in the building’s corridors”.

On 15 April 2002 the applicant lodged a criminal complaint for defamation against A.S. The applicant complained that A.S. had damaged her reputation and dignity by publishing the two above-mentioned articles in February 2002. She sought one million Romanian lei (ROL) in compensation for non-pecuniary damage.

By a judgment of 3 November 2003, the Călărași District Court found the journalist guilty of defamation and sentenced him to a criminal fine of 10,000,000 Romanian lei (ROL), the equivalent of EUR 270. The journalist and the newspaper were jointly ordered to pay the applicant damages of ROL 300,000,000, the equivalent of EUR 8,000. The court found that the expressions “falsifier and cheater” did not correspond to reality, as a disciplinary investigation had concluded that the applicant had conducted herself professionally and appropriately in connection with the charges she had brought against A.B. in her capacity as a prosecutor. The court noted that in February 2002, when the articles had been published, the journalist had been aware that the prosecutor’s indictment in the first set of proceedings had been upheld by the first two levels of the domestic courts and the appeal on points of law was still pending. The court also noted that the journalist had been aware that the disciplinary investigation against the applicant was pending when he had written the articles. It therefore held that this should have caused the journalist to exercise a certain amount of caution in his approach and use of language, given that he could have exposed the applicant to disciplinary and even criminal sanctions.

The district court examined the indictment of 17 January 2000, mentioned by A.S. in his first article, and noted that it had been upheld by final decisions of the domestic courts.

As regards the second indictment, the court noted that it had not been approved by the chief prosecutor on 18 January 2002. The court also noted that at the time the articles were published the chief prosecutor’s decision was not yet final, as a complaint had been lodged against it. The court considered that the refusal of the chief prosecutor to approve the applicant’s indictment should not have led the journalist to the conclusion that the applicant had falsified the indictment.

The court concluded that in the two articles the journalist had overstepped the limits of acceptable speech provided by Article 10 of the Convention.

Journalist A.S. and the newspaper appealed against this judgment. On 28 December 2004 the Hunedoara County Court allowed the appeal, quashed the first-instance judgment and proceeded to rehear the case. It acquitted the journalist of the defamation charge and dismissed the applicant’s request for damages. The county court held that the journalist had merely provided details of A.B.’s situation as it emerged from the court records. It also held that the article published on 22 February 2002 had simply been a reproduction of the administrative complaints lodged by A.B. with the Ministry of Justice and the Public Prosecutor’s Office. The county court classified the relevant statements of the journalists as value judgments and found that the expressions used were to be examined in connection with the function of the press in a democratic society to impart information and ideas on all matters of public interest, as was the case in respect of the matter before it, which concerned the administration of justice. It referred to the judgment Dalban v. Romania ([GC], no. 28114/95, § 49, ECHR 1999VI), noting that the journalist had had recourse to a certain degree of exaggeration and provocation.

The relevant domestic provisions of the Civil and Criminal Codes concerning slander and defamation and liability for paying damages in force at the material time, as well as the subsequent developments in the legislation, are described in Timciuc v. Romania (no. 28999/03, §§ 95-97, 12 October 2010).


Remainder inadmissible;Violation of Article 4 - Prohibition of slavery and forced labour (Article 4-2 - Compulsory labour;Forced labour);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Erik Møse;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in 1968 and lives in Thessaloniki.

On 15 September 1986 he was admitted to the Corps Officers’ Military Academy (medical section). He was paid a salary and was granted welfare benefits. He pursued academic studies free of charge at the University of Thessaloniki’s Faculty of Medicine, taking the six-year degree course for medical professionals in the national health system.

On 3 June 1993, on completion of his studies, he was appointed to the rank of second lieutenant in the army medical corps.

In accordance with Article 64 § 1 of Legislative Decree no. 1400/1973 on the status of officers of the armed forces, as applicable at the material time, the applicant had undertaken to serve in the armed forces for a period corresponding to three times the duration of his studies at the military academy – that is, eighteen years. The relevant provision was later amended by section 1 of Law no. 3257/2004 and the period in question was reduced to twice the duration of his studies – that is, twelve years.

On 18 January 1996 the Army General Staff organised a competitive examination for the recruitment of medical specialists. Officers in the medical corps, such as the applicant, were invited to apply in order to acquire a specialist qualification. The applicant was attached to the 424 General Military Hospital in Thessaloniki, where he worked as an intern from 26 July 1996 to 30 July 1997. Subsequently, from 30 July 1997 to 27 July 2001, he occupied a paid supernumerary position (by virtue of section 8 of Law no. 123/1975) at the Papanikolaou General Regional Hospital in Thessaloniki as a junior doctor specialising in anaesthesiology.

After completing his specialist training, which lasted approximately five years – during which time he was paid his salary as an army officer – the applicant gave an undertaking, in accordance with Article 64 § 7 of Legislative Decree no. 1400/1973, to serve in the army for a further five years. He provided a sworn declaration to that effect as required by Article 67 § 10 of the Legislative Decree.

The applicant served in the armed forces until 22 January 2006, when he resigned at the age of 37 as an anaesthetist with the rank of colonel.

By a notice of 12 September 2006 the Army General Staff informed the applicant that, pursuant to Article 64 of Decree no. 1400/1973, he was required either to serve in the armed forces for a further nine years, four months and twelve days or to pay the State a fee calculated on the basis of the period remaining to be served.

In a decision of 26 May 2007 the accounts department of the Army General Staff assessed the amount of the fee at 106,960 euros (EUR). The decision stated that the applicant could apply to the Court of Audit for judicial review, but that the application would not have suspensive effect as far as the payment procedure was concerned.

On 25 June 2007 the applicant applied to the Fifth Division of the Court of Audit for judicial review of the notice of 12 September 2006. He argued that Article 64 of Decree no. 1400/1973 was in breach of Article 22 § 4 of the Constitution (prohibition of all forms of compulsory labour) and Article 4 § 2 of the Convention, read separately and in conjunction with Article 14. On 27 June 2007 the applicant also applied for a stay of execution of the decision of 26 May 2007.

On 5 July 2007 a division president of the Court of Audit made an interim order staying the execution of the decision of 26 May 2007. On 29 October 2007 the Fifth Division of the Court of Audit confirmed the stay of execution sought by the applicant.

In judgment no. 175/2009 of 13 February 2009 the Fifth Division of the Court of Audit dismissed the applicant’s application for judicial review as ill-founded. It held in particular that the fee to be paid by the applicant did not constitute a menace of a penalty, did not infringe the proportionality principle, had been calculated objectively and was designed to ensure that the State was refunded the expenses it had incurred in training regular members of the armed forces, who were also paid a salary throughout their basic and specialist training.

On 3 March 2009 the applicant appealed on points of law to the plenary Court of Audit. On 4 March 2009 he applied to the same court for a stay of execution of the decision of 26 May 2007.

On 17 March 2009 the president of the plenary Court of Audit made an interim order staying the execution of the decision in question. On 18 March and 9 April 2009, while those proceedings were ongoing, the Thessaloniki Tax Office ordered the applicant to pay the sum of EUR 106,960, plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund.

On 21 October 2009 the plenary Court of Audit confirmed the stay of execution sought by the applicant.

On 10 May 2010 the Revenue Department of the Ministry of Finance informed the applicant that because the amount assessed in the decision of 26 May 2007 had not been paid by the end of the previous year, interest of EUR 13,143.24 had been charged for late payment. It also informed him that if he paid the outstanding amount by 31 May 2010, he would be entitled to an 80% discount on the interest.

On 26 May 2010 the applicant deposited the sum of EUR 112,155.69 at the Thessaloniki Tax Office.

In judgment no. 3230/2011 of 7 December 2011 (served on the applicant on 10 February 2012) the plenary Court of Audit partly allowed the appeal on points of law.

It found that the failure to include a period of five years – which had been essential for the applicant to complete his specialist training – as part of his total length of service was in breach of the proportionality principle enshrined in Article 25 of the Constitution.

It held that the period during which a medical officer worked towards obtaining a specialist qualification formed part of the officer’s actual military service. Accordingly, it quashed the Fifth Division’s decision as regards the finding that the applicant’s period of specialist training constituted years of study that should not be included in the calculation of his overall period of compulsory service.

It dismissed as ill-founded the ground of appeal alleging a violation of the Convention, reasoning as follows:

“Paragraph 7 of Article 64 of the Decree ... is compatible with the provisions of the Constitution, the Social Charter and the Convention, in view of the fact that during the period of five years the medical officer serves the armed forces that have trained him or her, and it achieves the aim pursued, namely providing supervisory personnel for the armed forces, without the officer being required to work. As to the fee to be calculated in accordance with paragraph 16 of the same Article, this is a means of offsetting the expenditure incurred by the State in training officers and on no account constitutes a penalty.”

The plenary Court of Audit remitted the case to a different bench of the Fifth Division. The only question referred was that of the reassessment of the fee by counting the applicant’s five years of specialist training as part of his overall length of service.

In judgment no. 4909/2013 of 12 December 2013 (served on the applicant on 10 January 2014) the Fifth Division of the Court of Audit varied the decision of 26 May 2007 issued by the accounts department of the Army General Staff by reducing the amount payable by the applicant to EUR 49,978.33.

In particular, the Court of Audit held firstly that the decision of 26 May 2007 was lawful in that the applicant had left the army before completion of the period of eighteen years’ compulsory service. However, it found that the length of his remaining period of compulsory service was not nine years, four months and twelve days, as the Army General Staff had calculated, but four years, four months and ten days. It pointed out that the period already served by the applicant should have included his specialist training, which had begun on 26 July 1996 and ended on 27 July 2001, since, as judgment no. 3230/2011 had made clear, the period of specialist training was to be counted as part of the actual service performed.

On 13 March 2014 the State reimbursed the applicant the sum of EUR 59,749.61, corresponding to the difference between the payment he had already made and the amount determined in judgment no. 4909/2013.

According to information supplied by the Government, the applicant is now working in a large private hospital in Thessaloniki.


CASE OF ANTOVIĆ AND MIRKOVIĆ v. MONTENEGRO

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicants were born in 1969 and 1961 respectively and live in Podgorica.

On 1 February 2011 the Dean of the School of Mathematics of the University of Montenegro (Prirodno-matematički fakultet), at a session of the School’s council, informed the professors teaching there, including the applicants, that “video surveillance has been introduced” (da je uveden video nadzor) and that it was in the auditoriums where classes were held.

On 24 February 2011 the Dean issued a decision introducing video surveillance in seven amphitheatres and in front of the Dean’s Office (ispred dekanata). The decision specified that the aim of the measure was to ensure the safety of property and people, including students, and the surveillance of teaching (praćenje izvršavanja nastavnih aktivnosti). The decision stated that access to the data that was collected was protected by codes which were known only to the Dean. The data were to be stored for a year.

On 14 March 2011 the applicants complained to the Personal Data Protection Agency (Agencija za zaštitu ličnih podataka, “the Agency”) about the video surveillance and the collection of data on them without their consent. They relied on the Personal Data Protection Act (see paragraphs 2427 below).The applicants submitted, in particular, that the amphitheatre where they taught was locked both before and after the classes, that the only property there was fixed desks and chairs and a blackboard, that they knew of no reason to fear for anybody’s safety and that, in any event, there were other methods for protecting people and property and monitoring classes. They requested that the cameras be removed and the data erased.

On 21 March 2011 two Agency inspectors issued a report (zapisnik) after visiting the School of Mathematics, stating that the video surveillance was in accordance with the Personal Data Protection Act. According to them, there had been cases of destruction of university property, the bringing in of animals, drink and tobacco, and the presence of people who were not students. They also noted that the cameras provided “a picture from a distance without clear resolution, that is people’s features [could not] be easily recognised”, that they could not zoom in and out and did not record any audio (ne reprodukuju audio zapis). While the decision on introducing video surveillance had provided that data would be stored for a year, the servers’ capacity was such that the data was stored for thirty days and then automatically erased by new recordings. The inspectors also noted that information on a “plan to introduce video surveillance” (planiranje uvođenja video nadzora) had been given at a session of the School Council on 1 February 2011.

On 22 March 2011 the applicants filed an objection to the report, submitting, inter alia, that they were not aware of any of the alleged incidents and that, in any event, it was unclear how such cameras could ensure the safety of people and property. They agreed that cameras over the entrances and exits from the university building might perhaps be an adequate form of ensuring such security. They also submitted that employees had not been “notified in writing on the introduction of video surveillance before it started” (nijesu bili obavješteni o uvođenju video nadzora u pisanom obliku prije početka vršenja istog). Notably, the decision had been issued on 24 February 2011 whereas surveillance had commenced a few weeks before. They did not specify when exactly but referred to the minutes of the session of 1 February 2011 (see paragraph 6 above).

On 28 April 2011, after the applicants’ objection to the report, the Agency’s Council (Savjet Agencije za zaštitu ličnih podataka) issued a decision (rješenje) ordering the School of Mathematics to remove the cameras from the auditoriums within fifteen days as the video surveillance was not in accordance with the Personal Data Protection Act, notably sections 10, 35 and 36 (see paragraphs 24, and 26-27 below). In particular, the Council held that the reasons for the introduction of video surveillance provided for by section 36 had not been met, given that there was no evidence that there was any danger to the safety of people and property in the auditoriums, still less to confidential data, and that the surveillance of teaching was not among the legitimate grounds for video surveillance. None of the parties initiated an administrative dispute in court against that decision.

On 25 January 2012 the School of Mathematics was served with the Agency Council’s decision of 28 April 2011. The cameras were removed by 27 January 2012 at the latest. It appears that the data that had been collected was also erased on an unspecified date.

On 19 January 2012 the applicants brought a compensation claim against the University of Montenegro, the Personal Data Protection Agency and the State of Montenegro, for a violation of their right to a private life, notably by the unauthorised collection and processing of data on them. They submitted in particular that such an interference with their private lives, without any possibility to control that process, was not provided for by any piece of legislation and that therefore it had not been in accordance with the law, within the meaning of Article 8 § 2 of the Convention. They also maintained that it had not pursued any legitimate aim and had not been necessary in a democratic society. They relied on the relevant provisions of the Personal Data Protection Act, Article 8 of the Convention and the relevant case-law of the Court.

On 27 December 2012 the Court of First Instance (Osnovni sud) in Podgorica ruled against the applicants. The court found that the notion of private life certainly included activities in the business and professional spheres. It also held, however, that the university was a public institution performing activities of public interest, teaching being one of them (poziv redovnog profesora [je] takođe javan), and that it was thus not possible for video surveillance of the auditoriums as public places to violate the applicants’ right to respect for their private life. It was a working area, just like a courtroom or parliament, where professors were never alone, and therefore they could not invoke any right to privacy that could be violated. The data that had been collected could thereby also not be considered as personal data. The university’s failure to remove the cameras immediately had been unauthorised, but it could not be classed as an interference with the applicants’ private life and was therefore irrelevant. The court further held that such a conclusion was in accordance with the Court’s case-law given that the monitoring of actions taking place in public was not an interference with a person’s private life when those means just recorded (bilježi) what others could see if they happened to be in the same place at the same time. The court also held that the monitoring of the actions of an individual in a public place by the use of photographic equipment which just instantaneously recorded visual data did not give rise to an interference with that individual’s private life, which could arise once any footage of such material became publicly available. It concluded that the installation and use of video surveillance and the collection of data thereby had not violated the applicants’ right to privacy (pravo na privatnost) and had therefore not caused them any mental anguish. During the proceedings one of the witnesses stated that there had been cases of theft and of damage to the interior of the building and that on one occasion five laptops had disappeared from a laboratory. Those events had led to the hiring of a private security agency two or three years earlier. According to the witness, the police had suggested installing video surveillance equipment on the School’s premises. The court, for its part, did not deal with those issues.

On 31 December 2012 the applicants appealed. They relied, inter alia, on Article 8 of the Convention. They maintained, in particular, that the interference with their right to respect for their private lives had not been in accordance with any law and had therefore been contrary to Article 8 § 2 of the Convention. It had also not been necessary in a democratic society. Furthermore, the Court of First Instance had not relied on any legal provision in ruling against them and had failed to assess their arguments.

On 17 July 2013 the High Court (Viši sud) in Podgorica upheld the first-instance judgment, endorsing its reasons in substance. The High Court held in particular that the applicants had not proved that their right to privacy had been violated and found that the first-instance court had “sufficiently related the Court’s case-law to the case at issue (dao jasan osvrt na odnos prakse Evropskog suda za ljudska prava i konkretnog slučaja) ... The court considered the [applicants’] other arguments and found that they did not justify ruling otherwise in the present case...”.

The applicants did not file a constitutional appeal.


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

The applicant was born in 1963 and lives in Žalec.

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

On 4 May 2008, the applicant lost control over his motorcycle on a bend by, allegedly, failing to adjust his speed to the road conditions. Consequently, he was severely injured.

On 29 July 2008 the police sent the applicant a penalty notice fining him 460 euros (EUR) and six penalty points for failing to adjust his speed according to the road conditions under Section 30 (5) of the Road Traffic Safety Act.

On 1 August 2008 the applicant lodged a request for judicial review. He argued that he had not exceeded the speed limit since he had been driving together with his friends during a Sunday trip and the bends on the relevant part of the road prevented a speed which exceeded the speed limit. In this regard, B. and G., who were driving behind him with their motorcycles, could confirm that he had not exceeded the speed limit. Firstly, in his view, the road could have been covered with sand, as it was the end of the winter time. Secondly, he argued that the road could have been slippery. Whatever the nature of the obstacle on the road, it was that obstacle that caused the traffic accident. In his further submissions he stressed again that he had been driving within the speed limit. He further drew attention to the fact that a sign should have been installed earlier, considering that many accidents involving motorcycles had happened in the past on that road. According to the applicant, one or two days after the accident a slippery road sign had been installed. Therefore, he requested the hearing of the responsible person of the Slovenian Roads Agency. Finally, he pointed out that he was a careful and experienced driver who had followed several trainings on road security.

On 20 May 2009 the Slovenske Konjice Local Court rejected the applicant’s request without holding a hearing. On the basis of the police record of the scene visit, the sketch of the road accident, the notice of the applicant’s physical injury, the penalty notice and the request for judicial review it held that the applicant had been driving carelessly. According to the police findings of fact, the accident happened on a sharp bend with poor visibility due to a forest embankment. Moreover, the road was divided by a solid line. The Local Court held that the applicant should have expected a slippery road and the presence of sand but he failed to adjust his speed accordingly. It further considered that the applicant’s complaints related only to exceeding the speed limit, an offence with which he was not charged. The Local Court did not comment on the applicant’s request for a hearing.

On 24 August 2009 the applicant proposed to the Supreme State Prosecutor’s Office to file a request for the protection of legality.

On 21 September 2009 the Supreme State Prosecutor’s Office notified the applicant that it would not use this legal remedy, having found no violation of a legislative provision.

The applicant lodged a constitutional appeal and a petition for a review of the constitutionality and legality of the Minor Offences Act (hereinafter referred to as “the MOA”).

On 22 June 2011 the Constitutional Court rejected the constitutional appeal and the petition as inadmissible. On 18 July 2011 this decision was served on the applicant.


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

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

The applicant was born in 1966 and is currently being detained in Târgu Jiu Prison.

In 1998 the applicant started serving a twenty-five-year sentence for murder. On 23 July 1998 he was placed in Târgu Jiu Prison. Except for short periods of time when he was transferred to other prisons in order to appear before the courts and three occasions when he was hospitalised for a maximum of one day in prison hospitals, the applicant was held in Târgu Jiu Prison.

The applicant alleged that the conditions of his detention in Târgu Jiu Prison since his incarceration in 1998 amounted to torture. More specifically, he alleged that he was being held in severely overcrowded cells with thirty-five to forty prisoners, with worn-out furniture and without natural light or ventilation. He further submitted that the cells were full of bed bugs and the food was insufficient and of very poor quality. The applicant also alleged that he was being held in cells with smokers.

The applicant lastly alleged that he had become sick as a result of the inhuman conditions to which he had been subjected. He submitted in that connection a medical certificate issued by the prison doctor on 17 March 2014, according to which he was suffering from: chronic cholecystitis, fatty liver disease, chronic venal insufficiency of the legs, type-II diabetes, chronic pancreatitis, gastroduodenitis, lumbar discopathy and impulsive personality disorder.

The Government submitted that the applicant had been held for unspecified periods of time in three different cells of the Târgu Jiu Prison infirmary block, which are described below.

Cell E 2.2 measured 22.62 sq. m, of which 2.41 sq. m were occupied by a bathroom (20.21 sq. m of remaining space). The cell had five rows of bunk beds and accommodated eight prisoners (2.52 sq. m of personal space, including the space occupied by the beds). Ventilation was ensured by a window measuring 0.97 by 1.45 m. The bathroom had its own window measuring 40 by 45 cm.

Cell E 2.3 measured 21.75 sq. m, of which 3.85 sq. m were occupied by a bathroom (17.92 sq. m of remaining space). The cell had four rows of bunk beds and accommodated five prisoners (3.5 sq. m of personal space, including the space occupied by the beds). Ventilation was ensured by a window measuring 0.97 by 1.45 m. The bathroom had its own window measuring 40 by 45 cm.

Cell E 2.4 measured 24.05 sq. m, of which 3.36 sq. m were occupied by a bathroom (20.69 sq. m of remaining space). The cell had four rows of bunk beds and accommodated four to six prisoners (between 3.44 and 4.13 sq. m of personal space, including the space occupied by the beds). Ventilation was ensured by a window measuring 0.97 by 1.45 m. The bathroom had its own window measuring 40 by 45 cm.

For the rest of the time the applicant was held in non-smoking cells, a description of which is set out below.

Cell E 2.5 measured 49.8 sq. m, of which 7.31 sq. m were occupied by a bathroom (42.49 sq. m of remaining space). The cell had twenty-seven beds and accommodated twenty-five to twenty-six prisoners (an average of 1.63 sq. m of personal space, including the space occupied by the beds). The cell had three windows measuring 90 by 109 cm and the bathroom had a window measuring 40 by 45 cm.

Cell E 3.4 measured 36.15 sq. m, of which 5.55 sq. m were occupied by a bathroom (30.6 sq. m of remaining space). The cell had eight rows of bunk beds and usually accommodated twenty prisoners (1.53 sq. m of personal space, including the space occupied by the beds). The cell had a window measuring 118 by 158 cm. The bathroom had its own window measuring 110 by 50 cm.

Cell E 1.13 measured 48.40 sq. m, of which 9.25 sq. m were occupied by a bathroom and 2.17 sq. m by a storage room (36.98 sq. m of remaining space). The cell had eleven rows of bunk beds and accommodated twenty-five to twenty-nine prisoners (between 1.47 sq. m and 1.27 sq. m of personal space, including the space occupied by the beds). It also had three windows measuring 100 by 125 cm and 100 by 150 cm. The bathroom had its own window measuring 60 by 50 cm.

The Government submitted that all of the cells contained adequate furniture and that disinfection operations took place whenever the presence of insects was reported.


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

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in 1956 and lives in Jesenice.

On 15 April 1998 the Kranj District Court instituted insolvency proceedings against the company S., at that time the applicant’s employer.

On 29 April 1998 the receiver in insolvency issued a decision on the termination of the applicant’s employment contract with the company S.

On an unknown date, the applicant lodged his claim for a redundancy payment in the insolvency proceedings. Since the receiver disputed the claim, the Kranj District Court on 11 September 1998 referred the applicant to labour proceedings.

On 22 December 1998 the applicant instituted proceedings before the Kranj Divison of the Labour and Social Court.

In the same period about 150 claims similar to that of the applicant were lodged before the same court.

In 1999 the Kranj Labour and Social Court issued decisions in four cases similar to the applicant’s, dismissing the claims. It held that the workers who had lost their jobs owing to the employer’s insolvency before section 19 of the 1999 Act Amending the Guarantee Fund of the Republic of Slovenia Act (“the 1999 Act”) became effective were not entitled to a redundancy payment. Section 19 explicitly foresaw a right to a redundancy payment for workers who were let go after a company had become insolvent.

In 2000 several applications for a constitutional review of section 19 of the 1999 Act were lodged with the Constitutional Court, challenging the constitutionality of non-retroactive application of that provision.

On 5 October 2001, following the negative decisions issued in the four cases (see paragraph 11 above), the trade union which was also representing the applicant requested the court to postpone hearings scheduled in other cases. The union wanted to first check whether the other workers wanted to withdraw their claims in order to avoid the costs of the proceedings.

No formal decision on adjourning or staying the proceedings was issued by the court.

On 10 April 2003 the Constitutional Court dismissed the motions for review of the constitutionality of section 19 of the 1999 Act. It held that they were unfounded, since they were based on the false premises that the right to a redundancy payment for workers laid off because of their employer’s insolvency was introduced only by section 19, and that moreover it did not apply retroactively. Referring to its own decisions issued in 1994, 1995 and 2000, it stressed that this right had already been foreseen by the general labour legislation in force prior to the adoption of the 1999 Act. It explained that the purpose of Section 19 was solely to explicitly clarify that also workers who lost their jobs because of the insolvency of their employers were entitled to redundancy payments. Such clarification was needed because of the conflicting case-law of the lower courts. In this respect the Constitutional Court emphasised that while it could not interfere with the correct interpretation of legal norms by the lower courts, the latter could not apply an interpretation which would be unconstitutional, arbitrary, or clearly wrong.

On 14 July 2003, the parties settled with the company S., which acknowledged the applicant’s claim.

On 13 July 2006 the applicant lodged a claim for compensation for damage sustained because of the length of the labour proceedings.

On 27 September 2007 the Ljubljana Local Court dismissed his claim. It held that Section 25 of the 2006 Act on Protection of the Right to a Trial without Undue Delay (“the 2006 Act”) was not applicable, since that provision only applied to cases where an individual had already lodged an application on account of length of proceedings before an international court. Applying the general rules of the 2001 Code of Obligations on pecuniary damages, it further concluded that since the case had been settled the applicant had failed to prove that he had incurred any damage. In any case, there was also no causal link between the conduct of the court and the damage allegedly sustained. The applicant appealed.

On 9 January 2008 the Ljubljana Higher Court upheld the applicant’s appeal and remitted the case back to the first-instance court.

On 8 May 2008 the Ljubljana Local Court, in a renewed set of proceedings, again dismissed the applicant’s claim. It concluded that he had failed to prove either any damage on account of delays in the proceedings or any causal link. The applicant appealed.

On 5 November 2008 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged a constitutional appeal.

On 27 May 2010 the Constitutional Court granted the applicant’s constitutional appeal by referring to its decision of 18 March 2010 (see paragraph 29 below) and remitted the case to the higher court.

On 15 September 2010 the Ljubljana Higher Court remitted the case back to the first-instance court.

On 25 October 2010 the Ljubljana Local Court, applying by analogy, in accordance with the instructions of the Constitutional Court, the provisions of the 2006 Act, dismissed the applicant’s claim. Referring to the case-law of the European Court of Human Rights, it held that it had been reasonable to suspend the examination of the applicant’s claim pending the outcome of some similar cases and of the proceedings before the Constitutional Court (see paragraph 15 above). It held that it could not identify any unreasonable delays in these similar cases, which took five years at three levels of jurisdiction, of which three years were before the Constitutional Court. The applicant appealed.

On 13 April 2011 the Ljubljana Higher Court dismissed the applicant’s appeal. The applicant lodged an application for leave to appeal on points of law and a constitutional appeal.

On 14 July 2011 the Supreme Court dismissed the applicant’s request for leave to appeal on points of law.

On 8 May 2012 the Constitutional Court rejected the applicant’s constitutional appeal.


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

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

All the applicants were convicted by Russian courts and given custodial sentences.

They served their sentences in penitentiary facilities which were overcrowded and suffered from a shortage of sanitary installations.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Extradition;Prevent unauthorised entry into country);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Extradition;Prevent unauthorised entry into country)

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

The applicant was born in 1992, and at the time of the introduction of the application was detained in Lyster Barracks Detention Centre, in Ħal Far.

The applicant entered Malta in an irregular manner by boat on 6 May 2012. On arrival she was registered by the immigration police, given an identification number (12D-001) and presented with a Return Decision and a Removal Order. The applicant was immediately detained in Lyster Barracks; her detention was based on Article 14 (2) of the Immigration Act (see Relevant domestic law below).

The Return Decision stated that she was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days.

On 9 May 2012 the applicant was assisted to submit a Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta. On 21 May 2012 the applicant was called for an interview by the Office of the Refugee Commissioner (ORC).

On 30 June 2012 the ORC rejected her application on the basis, inter alia, that she had failed to support her claim that she was from central/southern Somalia with convincing evidence (in particular, she had shown insufficient knowledge about Mogadishu and her speech displayed phonological, grammatical and lexical features not typical of those spoken in Mogadishu). Her appeal was also rejected by the Refugee Appeals Board (the “RAB”) on 18 December 2012. The appeal decision reads as follows:

“The Refugee Appeals Board refers to a fill-in-the-blanks form received in its Office on 18 July 2012 and to a legal submission on your behalf received in its Office on 8 October 2012.

The Board notes that you travelled to Libya in December 2011, first via Kenya and then via Sudan. In none of these countries did you consider applying for refugee status. During the popular insurrection against the Gaddafi regime in Libya you disembarked on the island of Malta, illegally and undocumented on 6 May 2012, claiming that you were looking for peace, although seven of your siblings still live in Somalia. You also claim that your brother had been killed by a terrorist Islamic organization, Al Shabab, because they thought he worked for the Government. However, you also claim that if there was peace back home, you would be prepared to return. Since you left, as you may know, Al Shabab has been driven out of Mogadishu and Presidential elections have been successfully held and several Somalis are repatriating.

Your appeal for the grant of refugee status by Malta cannot be upheld according to law.”

Up to the date of the lodging of her application with the Court on 19 August 2013 the applicant had heard no news about any steps being taken in connection with her removal. In practice Malta effected no removals to Somalia or Somaliland.

Ever since her arrival in Malta the applicant suffered from several medical problems, such as headaches, earaches and fainting, and was frequently hospitalised (see paragraphs 16-19 below). She showed signs of severe anxiety and depression which got worse following the refusal of her asylum request. In consequence, on 1 October 2012, she was referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Jesuit Refugee Service (JRS). This referral was made with a view to obtaining her release from detention in terms of government policy on the grounds of vulnerability due to physical and psychological ill-health. According to the referral form, filled in by an official of the JRS:

“Sagal has been complaining of several medical problems ever since she arrived in Malta. She had several appointments in hospital was also taken to emergency by ambulance after collapsing in detention. Sagal was also rejected by the Office of the Refugee Commission, causing her to be very depressed. Every time we visit she is in her bed crying and showing signs of severe anxiety.”

In December 2012 the applicant was interviewed (for a few minutes) by the Vulnerable Adults Assessment Team of AWAS, with a view to determine whether she should be released on the grounds of vulnerability. The interview was held in English and the applicant was assisted by another detainee who was not fluent in the language. Her impression is that she was verbally informed that she would be released. On 10 August 2013, that is just under one year after the referral, the interviewers verbally informed her that she would be released. The Government also confirmed that eventually the applicant’s request for release on the ground of vulnerability was acceded to by AWAS.

Nevertheless, up to the date of the lodging of her application with the Court on 19 August 2013 the applicant was still in detention. She hoped to be released in November 2013 after the lapse of an eighteen month detention as per domestic practice at the time.

The applicant submitted that the Vulnerable Adult Assessment Procedure operated by AWAS was developed by the said organisation in order to give effect to a government policy introduced in January 2005 which stated that vulnerable individuals should not be detained. The applicant submitted that although AWAS was not formally charged with the responsibility of this procedure by the law which set it up, in practice the agency had full responsibility for the procedure. However, in spite of the fact that this procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The determining authority does not give written reasons for its decision and there is no possibility of appeal, although it may be possible to request a review if more evidence is available or there is a degeneration of the individual’s condition.

According to the Government the Vulnerable Adult Assessment Procedure, which was operated to assess vulnerability, was widely known within the migration sector and a policy document had been issued about it. Forms were distributed to individuals working in the sector such as NGOs. The Government submitted that the Vulnerable Adult Assessment Procedure was a quick process in straightforward cases (such as pregnant women and families with very young children) which were usually determined within two weeks. However, less straightforward cases such as assessments on the grounds of mental health, psychological problems or chronic illness, required a more complex assessment procedure which was therefore lengthier.

A certificate issued by a doctor in May 2012 confirmed that the applicant had been hospitalised on 7 and 8 May 2012 (upon her arrival in Malta) for dehydration, she was seen again on 15 May and 15 June of the same year. She suffered “fits” and was waiting for an appointment.

According to the documents provided by the applicant, after her initial hospitalisation, and apart from the two visits mentioned above, she was seen by a doctor at the state hospital around sixteen times between May and September 2012, and each time was prescribed medication. On these occasions she suffered from, inter alia, epigastric pain and nausea (repeatedly), bilateral conjunctivitis, inflammation, bleeding gums, insomnia, otalgia/earaches (also repeatedly) causing reduced hearing, as well as headaches and toothaches, and dizziness. In none of these occasions was she kept under observation overnight, or hospitalised. In June 2012 following claims by the applicant that she had been falling repeatedly, and that she was having episodes of jerking and tongue biting (which had left evident marks), the doctor requested her referral to a specified department to run the relevant tests to exclude epilepsy – the result of these tests, if undertaken, are unknown to the Court.

A medical certificate issued in March 2013 states that at the time the applicant was suffering from “low mood and insomnia” and had been “complaining of somatic symptoms such as chest pain”. The doctor noted “evident deterioration of her mental state” and suggested she be considered as vulnerable.

An attestation issued by a doctor in May 2013 states that according to available records “she has stayed unwell and been treated or referred to Mater Dei Hospital [the State hospital] more than usual” and that “her health has posed challenges in keeping her at the Ħal Far detention centre and any assistance will be appreciated”.

The applicant was detained in Hermes Block in Lyster Barracks, in conditions which she considered prison-like and basic. She explained that the Block is divided into five zones alike in terms of layout and facilities. The applicant was detained in Zone C for the first seven to eight months and was afterwards transferred to Zone D for a number of months until she moved to Zone A.

She noted that in Zone C there were over eighty (sic) single women and at one point the detention centre was so crowded that there were not enough beds and people had to sleep on metal tables in the television room. She noted that Zone D was less crowded but that it still lacked privacy and sanitation.

She complained about the lack of constructive activities to occupy detainees, overcrowding (particularly during the summer months), lack of privacy, limited access to open air, difficulties in communication with staff, other detainees and with the outside world, lack of information about their own situations, and the lack of proper arrangements for heating and cooling, leading to extreme cold in winter and extreme heat in summer. The applicant highlighted the lack of female staff - in particular she noted that every morning male soldiers barged into her dormitory while the inmates were still asleep to make a head count, during which they removed the sheets to check for their presence. This meant that the applicant had to sleep fully dressed every night, including her headscarf, to avoid embarrassing moments.

The applicant also complained of limited access to medical care, also because of a lack of interpreters to enable communication with medical staff.

The applicant was informed of the AWAS decision to accede to her request and was released from detention on 12 September 2013.