FRÄNKLIN-BEENTJES AND CEFLU-LUZ DA FLORESTA v. THE NETHERLANDS

Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The first applicant, Ms Alida Maria Fränklin-Beentjes, is a Netherlands national who was born in 1957 and lives in Zutphen. The second applicant, CEFLU-Luz da Floresta, is a religious association (kerkgenootschap) with legal personality under Netherlands law and its statutory seat in Alkmaar. They were represented before the Court by Mr T. van Kooten, a lawyer practising in Utrecht. The respondent Government were represented by their Agent, Mr R.A.A. Böcker of the Ministry for Foreign Affairs.

The facts of the case, as submitted by the parties and apparent from documents available to the public, may be summarised as follows.

The first applicant is an office-holder of the second applicant. The second applicant is a religious association.

The applicant association claims affiliation to the Centro Eclético da Fluente Luz Universal Raimundo Irineu Serra (Eclectic Center of the Universal Flowing Light Raimundo Irineu Serra, “CEFLURIS”), an organisation based in Brazil. The aim of the applicant association as set forth in its statutes is to “research, study and practise the teachings of the Holy Daime and to incite with its works and rituals its godly spark with a view to its integration with the divine”. Its teachings are stated to be based on revelations by the Virgin Mary to the religion’s founder, Raimundo Ireneu Serra (1892-1971, referred to by his followers as Mestre (“Master”) Ireneu). CEFLURIS was founded after the death of Mestre Ireneu by Sebastião Mota de Melo (1920-1990, alias Padrinho (“Godfather”) Sebastião).

An essential part of the applicant association’s rites is the drinking of a particular hallucinogenic decoction, or brew, during the services. This decoction is stated to be produced in accordance with prescribed religious rituals; its ingredients are taken from plants and vines unique to the Amazon region. It is described as the “Holy Sacrament” of the applicant association and is referred to by believers as “Santo Daime” (from the Portuguese dai me, “give me”). In other circles it is more commonly referred to as ayahuasca (from the Quechua aya, spirit, and waska, liana or vine).

The plants that are used for the production of ayahuasca, and hence the decoction itself, contain, inter alia, N,N-Dimethyltryptamine, also described chemically as 3-[2-(dimethylamino)ethyl]indol (hereafter “DMT”).

DMT is a substance that can cause hallucinations if taken internally. When it is consumed in the form of ayahuasca, other possible effects include gastrointestinal reactions, such as nausea and vomiting. There is a possibility of more serious symptoms of acute toxicity, such as hypertension and increased body temperature, a rapid pulse rate and hyperventilation, sensory impairment in the limbs and difficulty walking.

On 2 March 1999 police officers searched the first applicant’s house. During this search the police found and confiscated, among other things, ten jerrycans each containing twelve liters of an unknown liquid. Chemical analysis performed by the Forensic Laboratory (Gerechtelijk Laboratorium) showed that the confiscated liquid contained DMT, which is one of a number of banned substances featuring on List 1 annexed to the Opium Act (Opiumwet, see below). The liquid was identified as ayahuasca.

On 29 August 2000 the Alkmaar Regional Court (rechtbank) found the first applicant guilty of, inter alia, the offence set out in section 2 (1)(C) of the Opium Act, namely the possession of a substance featuring on List 1 annexed to that Act.

On 7 September 2000 the first applicant lodged an appeal with the Amsterdam Court of Appeal (gerechtshof), sitting in Leeuwarden.

On 22 August 2005 the Court of Appeal discontinued the criminal proceedings against the first applicant as it found that the length of the appeal proceedings had exceeded a reasonable time within the meaning of Article 6 of the Convention.

On 14 September 2005 the first applicant lodged a notice of complaint (klaagschrift) with the Amsterdam Court of Appeal, sitting in Leeuwarden, requesting the return of the ten jerrycans that had initially been confiscated. She stated that she was a member of the “Santo Daime church”, within which ayahuasca is the most important sacrament. She further argued that the continued confiscation of the ayahuasca violated her rights under Article 9 of the Convention as this interference with her right was not necessary in a democratic society: in her submission, scientific expert reports showed that there were virtually no health and safety risks related to the drinking of ayahuasca.

On 14 December 2005 the Court of Appeal held a hearing on the first applicant’s case in the course of which she restated her arguments, claiming that, in her case, the protection of freedom of religion should outweigh the interests protected by the Opium Act. According to the official record of the hearing the first applicant stated, in reply to a question from the court, that she could also practise her religion without the use of ayahuasca. The public prosecutor submitted that since the ayahuasca brew contained DMT, a substance featuring on List 1 annexed to the Opium Act, the jerrycans could not be returned to the first applicant.

On 25 January 2006 the Court of Appeal dismissed the first applicant’s complaint. It considered that her religion, as practised by the applicant association, was protected by Article 9 of the Convention. However, since expert reports indicated that the use of ayahuasca did constitute a threat to public health, the court found that the interference with the first applicant’s rights had not been unreasonable as it was necessary in a democratic society. The Court of Appeal further noted that it had also taken into consideration the first applicant’s statement that the use of ayahuasca was not indispensable for the practice of her religion.

On 24 April 2006 the first applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad). She submitted that the Court of Appeal had drawn the wrong conclusions from the expert report since, after listing the effects of drinking ayahuasca, the report continued by stating that ayahuasca was used in the Santo Daime church’s services on such a small scale, and its consumption took place in such a controlled environment, that there existed virtually no risk to public health. According to the first applicant the Court of Appeal had failed to explain why it had not included that part of the report in its reasoning. The first applicant further submitted that the comment she had made at the hearing before the Court of Appeal had been taken out of context, since she had only meant to say that she would still adhere to her religious denomination even if she could not use ayahuasca. Accordingly, the confiscation of the ayahuasca did indeed interfere with her freedom to practise her religion following the church’s own rules and rituals.

In his advisory opinion, the Procurator General (ProcureurGeneraal) at the Supreme Court expressed the view that the appeal on points of law should be dismissed. He considered that the judiciary was not empowered to set aside a general prohibition of the possession of the substance solely because of the particular circumstances in which it was used, i.e. the specific situation being judged not to constitute a threat to public health.

On 9 January 2007 the Supreme Court dismissed the first applicant’s appeal on points of law. It considered that the Court of Appeal had established that ayahuasca contained DMT which was included amongst the banned substances appearing on List 1 annexed to the Opium Act. The Supreme Court further noted that it appeared from the parliamentary history (wetsgeschiedenis) of the Opium Act that the substances included on List 1 were banned, among other reasons, in order to comply with international treaty obligations concerning psychotropic substances that could cause damage to health. The fact that section 2 of the Opium Act banned the possession of substances included on List 1 therefore constituted a measure for the protection of public health. The Supreme Court concluded that the Court of Appeal had not made any errors of law in finding that the ban on the possession of ayahuasca was prescribed by law and necessary in a democratic society for the protection of public health. It further noted that this conclusion was not altered by the first applicant’s arguments that ayahuasca, in the manner in which it was used during church services, caused virtually no danger to (public) health, nor by the suggestion that the Court of Appeal had drawn the wrong conclusions from the scientific report. In relation to the first applicant’s comments made at the hearing before the Court of Appeal, the Supreme Court held that it had not been unreasonable for the Court of Appeal to consider them in relation to its finding that the interference with the first applicant’s freedom of religion was proportionate to the legitimate aim pursued.

On 22 February 2010 the applicants brought proceedings seeking a declaratory judgment which was to hold that, firstly, the applicant association was a religious denomination under section 2:2 of the Netherlands Civil Code (Burgerlijk Wetboek), secondly, that the members of the applicant association were excluded from section 2 of the Opium Act for the possession and the use during services of the “Santo Daime” (ayahuasca), and, thirdly, that the State was prohibited from prosecuting the members of the applicant association for the possession and use during services of the “Santo Daime” for as long as the State had not brought its policy into line with the rights protected by Article 9 of the Convention.

On 9 February 2011 the Regional Court of The Hague dismissed the first request (National Jurisprudence Number (Landelijk Jurisprudentie Nummer), “LJN” BP4424), holding that, although it was of the opinion that the applicant association was indeed a religious denomination within the meaning of section 2:2 of the Civil Code, the applicant association had not substantiated its interest in such a declaration. The Regional Court also dismissed the second and third claims, referring to the Supreme Court’s judgment of 9 January 2007 (see paragraph 17 above).

The relevant sections of the Opium Act read as follows:

“It is prohibited to

A. import to or export from the territory of the Netherlands;

B. cultivate, prepare, modify, process, sell, deliver, supply or transport;

C. possess;

D. manufacture

the substances featuring on List I annexed to this Act ...”

“1. The Minister [of Health, Well-being and Sports (Volksgezondheid, Welzijn en Sport)] can ... grant an exemption from a prohibition as referred to in section 2 ...”

“1. An exemption can be granted only if the person requesting it has satisfied the Minister:

a. that it serves the interest of public or animal health;

b. it is needed for carrying out scientific or analytical-chemical research or for educational purposes, in so far as the interest of public health is not harmed thereby, or

c. it is needed for carrying out an act as referred to in section 2 ... pursuant to an agreement with:

another person to whom an exemption has been granted under section 6;

a pharmacist, or a physician who keeps a pharmacy;

a veterinary surgeon;

an institution or person indicated under section 5(2) or (3) [i.e. specifically authorised medical, dental or veterinary institutions or practitioners, and their patients];

a person holding a license or exemption granted in another country for the import of the substances in issue into that country, in so far as the interest of public health is not harmed thereby. ...”

DMT appears on List I annexed to the Opium Act under the appellations N,N-dimethyltryptamine and 3-[2-(dimethylamino)ethyl]indol.

On 21 May 2001 (LJN: AB1739) the Amsterdam Regional Court held, in a case similar to the present one, that expert reports indicated that the Santo Daime church should be considered a legitimate religious association and that its teachings constituted a religious conviction (geloofsovertuiging) in themselves. It held that the prohibition contained in the Opium Act should not be applied in view of the fact that the ritual use of ayahuasca in church services entailed virtually no risks to public health. The Regional Court therefore considered that, since the drinking of the ayahuasca tea was such an essential part of the believers’ religious practice, freedom of religion as guaranteed by Article 9 of the Convention should attract greater weight than the prohibition contained in the Opium Act. Subsequently, the accused was discharged from further prosecution of the criminal offence under the Opium Act.

On 26 March 2009 (LJN: BH9844) – i.e. after the decision of the Supreme Court in the present case – the Haarlem Regional Court ruled on a case involving a person who had been apprehended at Amsterdam Schiphol Airport with a number of bags containing ayahuasca in his luggage, intended for use during church services as described above. The Regional Court found that there were virtually no risks to public health involved in the consumption of the brew in the setting of the church services. The Regional Court further considered that the import of ayahuasca was regulated by specific rules and regulations issued by the church. It concluded that in these circumstances the protection of freedom of religion guaranteed by Article 9 of the Convention outweighed the prohibitions contained in the Opium Act.

On 24 February 2012 (LJN: BV6888) the Amsterdam Court of Appeal upheld the Regional Court’s judgment of March 2009, against which the Public Prosecution Service (Openbaar Ministerie) had appealed. The Court of Appeal considered that there was a certain difference between the case before it and the case decided by the Supreme Court on 9 January 2007 – i.e. the first applicant’s case (see paragraph 17 above). In this case, the accused had established that the drinking of ayahuasca was indeed an essential part of the practice of his religion. The Court of Appeal held that this conclusion warranted an examination of the merits of the case and its specific circumstances, whereas the Supreme Court in January 2007 had only carried out an abstract examination of the merits of the case. Restating the judgment of the Haarlem Regional Court, it held that in this case the application of the Opium Act was not “necessary” within the meaning of Article 9 of the Convention.

On 17 September 2012 the Government informed the Court that an appeal on points of law had been lodged by the Public Prosecution Service against the Amsterdam Court of Appeal’s judgment of 24 February 2012. As far as the Court is aware, the proceedings are still pending.

The Convention on Psychotropic Substances (United Nations Treaty Series, “UNTS”, volume 1019, pages 175 and following) was adopted in Vienna on 21 February 1971. It entered into force on 16 August 1976. The Netherlands acceded to it on 8 September 1993. Attached to that Convention are four Schedules listing various categories of psychotropic substances.

As relevant to the case before the Court, the Convention on Psychotropic Substances provides as follows:


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

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

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


Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano

The applicant, Mr Patrick Joseph Cusack, is a British national, who was born in 1938 and lives in Harrow.

In December 1969 the applicant’s parents purchased a property, including a building and a forecourt, in Harrow. Around the same time the applicant began to practise as a solicitor from that property. He, and those visiting his office, have used the forecourt for parking their cars ever since. In order to park a car there, it is necessary to cross the pavement situated between the property and the adjacent road.

In the late 1990s or early 2000s the local authority constructed an uncontrolled pedestrian crossing outside the property. Such a crossing consists of a raised pedestrian refuge in the middle of the road and lowered pavements, with studded surfaces, on both sides of the road. The applicant, and other individuals visiting his office, continued to park vehicles on the forecourt.

In April 2008 a local authority employee, accompanied by a police constable, visited the property to request the applicant to remove the cars on the forecourt. Correspondence between the applicant and the local authority ensued, in the course of which the local authority indicated that it was considering erecting bollards to prevent vehicles accessing the forecourt.

If the bollards were erected, the applicant and his clients would no longer be able to use the forecourt as a car park. On 17 March 2009 the applicant therefore lodged a claim for injunctive relief in the County Court seeking to prevent the local authority from erecting bollards. On 13 August 2009 the local authority informed him that it proposed to rely on section 80 of the Highways Act 1980 (“the Act” – see paragraph 29 below) which provides in relevant part that a highway authority, in the present case a function performed by the local authority, may erect fences or posts to prevent access to highways which it maintains (see paragraphs 28 to 30 below, for information about what comprises a highway). It does not require the payment of compensation to anyone who suffers damage in the exercise of the relevant powers.

On 9 September 2009 the local authority lodged its defence to the claim, which confirmed its reliance on section 80 of the Act. In the alternative it relied on section 66 of the Act (see paragraph 28 below), which provides that a highway authority may provide such “highway furniture” as it thinks necessary to safeguard individuals using the highway. Section 66 requires the payment of compensation to anyone who suffers damage in the exercise of the relevant powers.

On 4 March 2010 the County Court refused the applicant’s claim. It decided that he had been exercising a frontager’s right in order to park on his forecourt. Frontagers’ rights included a right for the owner of a property adjacent to the highway to access that highway from any part of his property. It found that the local authority was able to interfere with that right under section 80 of the Act. The court decided that it did not have jurisdiction either to “read-down” legislation so as to ensure its compatibility with the Convention, under the Human Rights Act 1998, or to make a declaration of incompatibility (see paragraph 31 below) and therefore it did not consider the applicant’s human rights arguments.

The applicant appealed to the High Court. On 7 March 2011 the High Court rejected the applicant’s appeal. It found that section 80 of the Act applied to his case, none of the exceptions in that section were relevant and there were no other reasons to prevent the local authority from relying on it.

The court accepted that the local authority could also have acted under section 66 of the Act. However, it decided, applying Ching Garage Ltd v. Chingford Corporation (see paragraph 33 below), that the local authority owed a duty to its taxpayers to select a provision not requiring compensation if one was available. The local authority could therefore not be criticised for selecting section 80 of the Act. The court rejected the applicant’s argument that section 80 of the Act should be interpreted under section 3 of the Human Rights Act 1998 (see paragraph 31 below) either to exclude its application to private rights of access generally, or frontagers’ rights in particular, or to include a right to compensation. It was Parliament’s clear intention that private rights of access, including frontagers’ rights, were to be included and it was a necessary inference that it had intended to exclude compensation.

The High Court decided that Article 1 of Protocol No. 1 could not have assisted the applicant in any event. It observed that the applicant would not lose his property. He would lose only one aspect of his right of access to that property, namely vehicular access. His case fell under the second paragraph of Article 1 of Protocol No. 1, that is the control of property. It found, pursuant to Baner v. Sweden, no. 11763/85, Commission decision of 9 March 1989, Decisions and Reports 60-A, p. 128, that a property owner was not guaranteed compensation in such circumstances and observed that the Commission had decided that a measure affecting and re-defining rights of property owners would not normally be considered an expropriation even if some aspects of the right were interfered with or even taken away. The court found that a wide margin of appreciation was accorded to Parliament as regards the second paragraph of Article 1 of Protocol No. 1.

The High Court found that Parliament had “plainly” decided that section 80 of the Act was necessary in the general interest. It would not be possible to predict the wide variety of factual situations with which a highway authority might be confronted and in which it might think it necessary to take action in the public interest. There was nothing wrong in granting highway authorities a wide power to obstruct access to highways should the need arise. Parliament would have known that actions taken by a highway authority would be amenable to judicial review if they were “Wednesbury unreasonable”, that is to say if the decision to take them was so unreasonable that no reasonable authority could ever have come to it.

It found that sections of the pavement where the kerb had been lowered so as to be at the level of the highway, and for which planning permission had been granted, were specifically excluded from the operation of section 80 of the Act. A proposal to interfere with such a crossing under section 80 would almost certainly be found to be unreasonable.

The High Court then considered the applicant’s circumstances, stating in relevant part:

“53 ... Public safety considerations do in my view warrant the course that [the local authority] proposes to take. I have taken into account the points made by Mr Cusack in this regard, including that there have not yet been any accidents; but in my view there is a significant risk of an accident in future if access to the front of No. 66 remains as it is. Station Road is a very busy single carriageway road. In my view it would require skilled experienced driving to mount and drive over the kerb onto the forecourt, or reverse back over the pavement down the kerb and back onto the road surface while avoiding the nearby island. I am happy to accept that Mr Cusack has acquired the necessary skills, but there is no guarantee that all of his staff and clients using the forecourt will have done so. In my view there is a danger of road traffic accidents involving vehicles if things remain as they are. There is also the obvious risk of damage to the pavement, creating tripping hazards. Moreover, given the character of the road and the proximity of the pedestrian road crossing, it is reasonable to suppose that the pavement in the immediate vicinity of No. 66 is quite widely used by pedestrians, and in my view the present arrangements present a potential danger to them as well. The fact that a dropped kerb constructed specifically to allow pedestrians to walk onto and from the road crossing is being used by cars as a means of easier access to the forecourt of No.66 serves to emphasise the point. ...

55 ... In my view there is no substance in the assertion that [the local authority] had not referred to road safety issues before proceedings were commenced or that they are acting in bad faith by doing so now.

56 I turn to the argument that there is no evidence to support [the local authority’s] road safety arguments. In my view there is in fact some evidence ..., but this is principally a matter for my judgment based on the evidence which is available of the layout and traffic conditions of Station Road itself, the forecourt to no. 66, and the pedestrian crossing and dropped kerb associated with it ...”

The applicant appealed to the Court of Appeal. On 7 December 2011 the Court of Appeal overturned the High Court’s judgment. Lord Justice Lewison, with whom the other judges agreed, applied the maxim generalia specialibus non derogant, which he interpreted to mean that where there is a general provision and a more specific provision, and a course of action could potentially fall within both, the court will usually interpret the general provision as not covering matters covered by the specific provision. Lord Justice Lewison decided that the local authority should have relied on section

As regards the applicant’s argument that the local authority could have imposed conditions on the exercise of his right of access, Lord Justice Lewison decided that the imposition of conditions would not have resulted in a satisfactory solution because the local authority had formed the view that all vehicle movements into and out of the applicant’s forecourt posed a risk to pedestrians. Furthermore, the applicant had not raised the argument in the courts below.

In case he was wrong about section 66 of the Act, Lord Justice Lewison also considered the applicant’s Article 1 of Protocol No. 1 submissions. He decided that the case should be considered as a control of use. He noted that this Court afforded national legislatures a wide margin of appreciation when a case involved a control of use and would respect their decision unless it was manifestly arbitrary or unreasonable. He observed that, pursuant to J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, ECHR 2007III, no presumption existed that compensation had to be paid and its absence did not mean that a decision was disproportionate. The transfer of a title to land from one individual to another in that case was far more draconian than the applicant being prevented from accessing his property by vehicle. He concluded that section 80 was compatible with Article 1 of Protocol No. 1. If that was the case, the local authority’s reliance on that section had also been compatible with Article 1 of Protocol No. 1.

The local authority appealed the decision of the Court of Appeal to the Supreme Court. On 19 June 2013 the Supreme Court overturned the Court of Appeal’s decision.

Lord Carnwath, with whom the other justices of the Supreme Court agreed, decided that the maxim generalia specialibus non derogant did not apply because neither section 80 nor section 66 of the Act could be regarded as more specific or less general than the other. Whilst section 66 of the Act was directed towards a specific purpose, that is “safeguarding persons using the highway”, the powers available under it were defined in relatively wide terms. Although section 80 of the Act did not explicitly mention safety as a purpose, it was implicit that the section must be used for purposes related to those of the Act, one of which was safety of the highway. The powers in that section were expressed in narrower terms and related specifically to the prevention of access to an existing or future highway.

Lord Carnwath found that various other provisions illustrated the wide array of overlapping powers available under the Act but otherwise were not relevant. He also noted that in Ching Garage Ltd (see paragraph 33 below) the local authority had, as in the applicant’s case, been confused as to the appropriate statutory source of its power to act but that the House of Lords had not been concerned by the overlap of statutory provisions.

Lord Carnwath analysed the legislative history of both section 66 and section 80 of the Act. He acknowledged that the Act was a consolidating statute, that is to say it brought under one Act of Parliament existing provisions whose origins lay in various other Acts of Parliament. In relation to section 80, he traced its history back to a provision enacted in 1935 and noted that that provision had been amended in 1947 to prohibit its use where it would obstruct any means of access for which planning permission had been granted. Accordingly, section 80 continued to provide specific protection for means of access formed since 1947 if authorised by planning permission. He also considered the relevance of planning immunity, that is to say when breaches of domestic planning controls become immune from enforcement by the domestic authorities. Whilst doing so, he noted that the applicant’s use of his property as an office and the laying out of a means of access to that property had both been breaches of planning controls but that both breaches had long since become immune from enforcement. However, Parliament had subsequently approved legislative proposals that did not give breaches which had become immune from enforcement the same status as developments for which planning permission had been granted. The protection provided in section 80 of the Act to means of access authorised by planning permission did not extend to use of accesses which had been created in violation of the planning laws but which had become immune. As regards the applicant’s concern that the powers provided under section 80 might be abused, for example to avoid protections under section 66 of the Act, an individual could bring a judicial review claim. Lord Carnwath concluded that the local authority had been entitled to rely on section 80 of the Act.

He then proceeded to consider the implications of Article 1 of Protocol No. 1. He rejected the applicant’s argument that removal of vehicular access would amount to a deprivation of a possession. He found that it was clearly a control of property. He set out the necessary steps in the assessment of compliance with Article 1 of Protocol No. 1, namely:

“(i) whether there was an interference with the peaceful enjoyment of ‘possessions’;

(ii) whether the interference was ‘in the general interest’;

(iii) whether the interference was ‘provided for by law’; and

(iv) proportionality of the interference.”

He found that Article 1 of Protocol No. 1 did not impose any general requirement of compensation in cases falling within the second paragraph of that Article. He noted that in J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom, cited above, § 83, the Court had decided that absence of compensation might nevertheless be relevant to the issue of proportionality.

He decided that proportionality required a broad judgment as to what was a fair balance and was not confined to irrationality or “Wednesbury unreasonableness”. The issue was not whether the council’s action was an abuse of its powers but whether a fair balance had been struck between the competing general and individual interests. The applicant had not challenged the compatibility of section 80 with Article 1 of Protocol No. 1 as such. As a result, the mere fact that another statutory route with compensation was available did not lead to a conclusion that relying on section 80 of the Act was disproportionate.

Lord Carnwath continued:

“49. The question must however be answered principally by reference to the balance drawn by section 80 itself, allowing for the wide margin of appreciation allowed to the national authorities. It is in my view significant that the legislature did not adopt my recommendation that all immune uses and operations should be treated generally as though subject to planning permission, apart from the three cases specified in the section. There may be room for argument as to where the line in section 80 should have been drawn, but the compatibility of the section is not the issue. Given the availability of the power as a legitimate means of controlling use of a private access in the public interest, its use in the present circumstances was in my view neither an abuse of the council’s powers nor outside the boundaries of the discretion allowed by the Convention.”

Lord Neuberger agreed with Lord Carnwath’s statement in Ching Garage Ltd (see paragraph 33 below) that if a local authority could do what they wanted to do without paying compensation they should take that approach, Lord Neuberger decided that where two separate statutory provisions applied the local authority could rely on either provision provided that it was reasonable to do so in all the circumstances.

In relation to Article 1 of Protocol No. 1, Lord Neuberger agreed that there had been no deprivation of property. Because the disadvantage suffered by the applicant fell within control of possessions, he could not see how the local authority’s reliance on section 80 could violate Article 1 of Protocol No. 1. He noted that there was no general right to compensation where control of possessions was in issue but accepted that that was not decisive for proportionality. It was also necessary to consider whether the exceptions to section 80, and the fact that the applicant’s case did not fall within them, were arbitrary. He decided that the distinction between cases subject to planning permission and those immune from enforcement was narrow but because it definitely existed, and had long done so, was not arbitrary. Article 1 of Protocol No. 1 did not require that where the State sought to control property and was able to do so under two different provisions it should choose the one which provided for compensation, except if special facts existed which require it.

Section 66 of the Highways Act 1980, which falls under the crossheading “Safety Provisions”, sets out the duties of the highway authority in relation to the provision of footways and the powers available to it to maintain in a footway such “furniture” as they consider necessary to safeguard pedestrians. In relevant part it states:

“(2) A highway authority may provide and maintain in a highway maintainable at the public expense by them which consists of or comprises a carriageway, such raised paving, pillars, walls, rails or fences as they think necessary for the purpose of safeguarding persons using the highway.

(8) A highway authority or council shall pay compensation to any person who sustains damage by reason of the execution by them of works under subsection (2) or (3) above.”

Section 80, which falls under cross-heading, “Fences and Boundaries”, provides that a highway authority may erect fences or posts to prevent access to a highway. In relevant part it reads:

“(1) Subject to the provisions of this section, a highway authority may erect and maintain fences or posts for the purpose of preventing access to—

(a) a highway maintainable at the public expense by them,

(3) The powers conferred by this section shall not be exercised so as to—

(a) interfere with a fence or gate required for the purpose of agriculture; or

(b) obstruct a public right of way; or

(c) obstruct any means of access for the construction, formation or laying out of which planning permission has been granted under Part III of the Town and Country Planning Act 1990 ... or

(d) obstruct any means of access which was constructed, formed or laid out before 1st July 1948 ...”

Section 329 of the Act provides inter alia that “carriageway” means a way constituting or comprised in a highway over which the public has a right of way for the passage of vehicles and that “footway” means a way comprised in a highway which also comprises a carriageway and over which the public have a right of way on foot only.

Section 3 of the Human Rights Act 1998 (“the Human Rights Act”) provides:

“(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights ...”

Section 4 of the Human Rights Act provides:

“(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.

(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”

Section 6(1) of the Human Rights Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.

In Ching Garage Ltd v Chingford Corporation [1961] 1 All E.R. 671, the House of Lords was asked whether a highway authority had the power to obstruct a means of access from a privately owned garage to a road junction. Lord Radcliffe stated that:

“If they can do what they want to without having to pay compensation, they have no business to use public funds in paying over money to an objector who is not entitled to it.”


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Inhuman treatment)

The applicant was born in 1966 and lives in St Petersburg.

On 5 April 2010 the applicant was arrested on suspicion of having planned and carried out a murder and of having injured two persons. Four days later he was charged with murder and attempted murder committed within an organised criminal group. The Leninskiy District Court of St Petersburg (“the District Court”) authorised his pre-trial detention for two months.

On 3 June 2010 the District Court examined an application by the investigating authorities to extend the applicant’s detention. They relied on the seriousness of the charges, the applicant’s de facto residence not being at his registered address, and the potential risk of intimidation of witnesses or victims, and the risk of obstruction of justice and reoffending. The defence argued that the applicant had no criminal record, that he lived at a known address, had a family with two minor children, and that he suffered from severe diabetes. Having been fully satisfied with the prosecution’s arguments, the District Court extended the detention until 15 August 2010.

On 1 July 2010 the St Petersburg City Court (“the City Court”) upheld the decision on appeal.

On 12 August 2010 the District Court extended the applicant’s detention until 30 August 2010 citing the seriousness of the charges and the fact that the investigation had not yet been completed. The court found that if released the applicant could influence his co-accused or the victims. With reference to the medical report of 15 July 2010 (see paragraph 41 below) the court noted that the state of health of the accused was compatible with further detention on remand. The decision contained the following phrase:

“The investigation has proved [the applicant’s] guilt in that crime”

The defence did not appeal against the extension order.

On 27 August 2010 the District Court ruled that the applicant should remain in detention until 30 November 2010. The court endorsed the reasoning of the decision of 12 August 2010 and noted that there were still certain investigative actions to be taken. In particular, the authorities had to obtain an expert report, to investigate the applicant’s alleged involvement in five more criminal incidents and to finish examining evidence.

On 23 September 2010 the City Court upheld the order on appeal.

On 29 November 2010 the District Court examined another application for extension of the applicant’s detention. The same judge as at the hearing of 12 August 2010 presided. Relying on the wording of the court order of that date (see paragraph 10 above) the defence challenged the judge, alleging that he was biased.

The District Court dismissed that application, having found that the hearing on 12 August 2010 and the ensuing decision had not concerned the determination of the applicant’s guilt and that there was no evidence of the judge’s partiality.

The court extended the applicant’s detention until 28 February 2011, repeating its earlier reasoning. It also concluded that his state of health was “close to satisfactory” and that he could be transferred to a prison hospital should his health worsen.

On 30 November 2010 the applicant appealed against both the extension order and the court’s decision regarding the impartiality of the judge. On 15 December 2010 he amended his appeal.

The next day the applicant’s lawyer was informed that the appeal hearing had been listed for 23 December 2010. Citing his busy schedule, the lawyer asked the court to adjourn the hearing. The court allowed the request and set the hearing for 20 January 2011.

On 20 January 2011 the City Court discovered that a copy of the decision of 29 November 2010 dismissing the application for a change in the composition of the District Court had not been served on the defence, which therefore had had no opportunity to challenge it. The case was remitted to the District Court.

A week later the District Court provided the defence with a copy of the impugned decision.

On 17 and 24 February 2011 the City Court postponed hearings owing to the applicant’s inability to participate for health reasons.

At the hearing on 3 March 2011 the applicant informed the City Court of his wish to change lawyer. The hearing was adjourned again.

On 10 March 2011 the City Court upheld the extension order and rejected the applicant’s challenge to the District Court’s judge as unfounded.

On 24 February 2011 the District Court extended the applicant’s detention until 5 April 2011, and dismissed a prior application for early release on medical grounds. The court decided that he was receiving adequate medical carecall for his release.

On 28 February 2011 the applicant appealed against the extension order with reference to his frail health and the lack of adequate medical care. His appeal reached the court on 10 March 2011.

The City Court upheld the extension order on 31 March 2011.

On 5 April 2011 the City Court held another detention hearing. The applicant and his lawyer were absent. According to a medical certificate, the applicant was unable to appear owing to ongoing inpatient treatment. A written statement from the investigator said that the applicant’s counsel had been informed of the hearing by telephone on 1 April 2010. Noting the counsel’s absence, the City Court appointed a new lawyer for the defence. The appointed lawyer objected to the extension of the applicant’s detention, referring to the latter’s family situation, permanent residence at a known address and his poor health.

The City Court extended the applicant’s detention until 30 May 2011. In addition to the usual reference to the seriousness of the charges, it noted the complexity of the case and the need for the investigating authorities to look into recently obtained evidence suggesting that two more people had been involved in the criminal offences. The court made a detailed list of the investigative steps taken since the most recent detention order, and declared reasonable the length of the investigation. The court also found that the applicant could not be released on medical grounds given the absence of a medical report assessing the compatibility of the applicant’s health with prolonged detention.

On 7 April 2011 the defence appealed against the extension. On 21 April and 5 May 2011 a supplement to the appeal was submitted by the applicant’s lawyer, who, referring to the call records on her mobile telephone, argued that the investigator had not informed her of the hearing on 5 April 2011.

On 25 May 2011 the Supreme Court held the appeal hearing in the absence of the applicant – who was still receiving inpatient treatment – and his counsel, who asked the court to examine the issue in his absence. The applicant was represented by court-appointed counsel, who supported the arguments put forward in the statement of appeal statement.

The Supreme Court upheld the extension order. As it was satisfied with the investigator’s statements about the telephone conversation with the applicant’s lawyer, the court dismissed the argument that the lawyer had not been notified of the hearing on 5 April 2011.

On 30 May 2011 the St Petersburg City Court extended the applicant’s detention for three months. The court reiterated that he had been charged with multiple counts of very serious crimes and that the case was very complex. It also cited the applicant’s liability to abscond. As regards his state of health, the court found that in the absence of an expert report release was not warranted.

The applicant appealed. On 1 and 8 June 2011 his lawyer submitted supplements to the statement of appeal.

The appellate hearing was initially scheduled for 27 June 2011, but then adjourned until 13 July 2011 owing to the applicant’s ongoing medical treatment. On the latter date the Supreme Court upheld the detention order.

A number of additional orders followed, extending the detention until 30 November 2011. The extensions were authorised in view of the seriousness of the charges and the necessity for the applicant to study the case file. The applicant was found fit to stay in detention because the requisite treatment was available in prison. Other measures of restraint could not, in the court’s opinion, secure his appearance before the investigating authorities or his law abidance.

On 30 November 2011 the District Court refused to extend the applicant’s detention. It found that he was living in St Petersburg at a known address, and that he was employed, and had two minor children. There was no evidence confirming the risk of witness intimidation or reoffending. The court also took into account the applicant’s poor health and his unequivocal intent to cooperate with the prosecution. It appears that on the same day the applicant was released. The City Court upheld that decision on 22 December 2011.

There is no information about further developments in the criminal proceedings.

Since 1989 the applicant had been suffering from insulin-dependent type-one diabetes. In 2008 he was certified as having a second-degree disability.

After the arrest in April 2010 he was taken to the medical unit of remand prison no. IZ-47/1 in St Petersburg. During the first months of detention his treatment was overseen by a prison endocrinologist.

On 15 June 2010, at the request of the applicant’s wife, a panel of experts examined his medical condition. They confirmed the diagnosis of type-one-diabetes and frequent instances of ketoacidosis complicated by concomitant diseases. The experts observed that his condition was aggravated by chronic pancreatitis and called for his constant supervision by an endocrinologist and a gastroenterologist of a specialised medical institution licensed to provide those types of medical assistance. The applicant needed a specific diet and insulin injections. A specialist was needed to monitor and correct the applicant’s insulin level. A failure to comply with those recommendations could threaten the applicant’s life. The experts further concluded that the remand prison medical unit was unable to provide adequate medical assistance.

At the investigator’s request, on 15 July 2010 a medical panel issued a report concluding that the applicant was fit to stay in the remand prison if he received specific medical care comprising: monitoring of blood sugar levels throughout the day; administration of the requisite medicines and adherence to a specific diet; insulin injections; and “active supervision by an endocrinologist” in order to ensure the correct insulin therapy. The experts noted that “inappropriate” insulin intake could lead to severe complications.

In August 2010 the prison endocrinologist was discharged from the medical unit. A resident general practitioner started supervising the applicant’s treatment. According to the applicant, no checks of his insulin level were carried out in the medical unit. Medical documents show that he developed face and feet oedemas. On that account he was sent to Gaaza Prison Hospital in St Petersburg on 13 October 2010.

License no. FS 78-01-001560 of 23 April 2009 indicates that Gaaza Prison Hospital was not authorised to provide endocrinological medical services. It did not employ an endocrinologist.

On 26 October 2010 the applicant was seen by a civilian endocrinologist. The applicant’s wife paid for the visit. The doctor noted that the patient was suffering from severe diabetes complicated by several concomitant conditions and that he needed “dynamic supervision by an endocrinologist”.

Three days later the applicant was transferred from Gaaza Prison Hospital back to the medical unit in the remand prison.

On 23 November 2010 and 21 February 2011 a medical board carried out an additional expert examination and repeated its earlier conclusion made in the report on 15 July 2010.

According to the applicant, the medical unit staff changed his insulin regimen because the prescribed medication was not available. No consolations with an endocrinologist preceded that decision. As a result his blood sugar level increased significantly.

In April and May 2011 he underwent short courses of inpatient treatment in Gaaza Prison Hospital.

On 15 June 2011 he was taken by ambulance to Mariyinskaya City Hospital in St Petersburg and was admitted to the emergency department in view of his serious medical condition. He was diagnosed with type-one severe diabetes; diabetic ketoacidosis; non-proliferative diabetic retinopathy; cataracts in both eyes; diabetic angiopathy of both feet; encephalopathy of mixed origin; diabetic sensory polyneuropathy; and diabetic nephropathy. A special medical board stated that those illnesses were not on the list of medical conditions precluding detention; accordingly, the applicant was not eligible for release on medical grounds. The board also called for “dynamic supervision” of the applicant’s treatment by an endocrinologist.

Between June and November 2011 the applicant was moved several times between the medical unit in the remand prison and Gaaza Prison Hospital. According to the Government, he was seen once, on 28 June 2011, by a civilian endocrinologist.

On 5 April 2012 at the request of the applicant’s lawyer three medical experts prepared a report on the quality of his treatment in detention. It addressed the following questions:

“1. What does the necessity of dynamic medical supervision by an endocrinologist’ suggest?

Does [the applicant] have an illness ... calling for continuous inpatient treatment in a specialised medical institution?

How did the absence of ‘dynamic medical supervision by an endocrinologist’ between 5 April 2010 and 30 November 2011 affect [the applicant’s] health? ...”

The doctors came to the following conclusions:

“1. Dynamic medical supervision by an endocrinologist involves regular medical tests and contact with a doctor ... In a case of stable diabetes with no changes in the insulin level, a medical examination by an endocrinologist must be performed once a month ... [However,] if important changes are being introduced into a patient’s insulin regimen, he or she must have a daily consultation by an endocrinologist ... until the target glucose level is achieved and there is no risk of hypoglycaemia...

Irregular examinations of [the applicant] did not constitute ‘dynamic supervision’, as their frequency was clearly insufficient for the assessment of the patient’s wellbeing in its dynamic ... or for the adjustment of his treatment.

... The seriousness of [the applicant’s] diabetes ... shows that inpatient treatment in a specialised medical facility was required.

... The lack of ‘dynamic medical supervision by an endocrinologist’ between 5 April 2010 and 30 November 2011 resulted in the deterioration of [the applicant’s] health. Developed vascular disease (vascular angiopathy of the lower extremities) and encephalopathy, an irreversible brain damage ... were signs of his worsening health.

In the absence of dynamic medical supervision, improper adjustment of the medical treatment led to an increased risk of ketoacidosic/hypoglycemic comas...”


CASE OF RANĐELOVIĆ AND OTHERS v. MONTENEGRO

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

Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicants are the next-of-kin of several Roma who died or disappeared in the circumstances described below.

On the night of 15 August 1999 around seventy Roma boarded the boat “Miss Pat” on the Montenegrin coast with the intention of reaching Italy. A few hours later the boat sank owing to the large number of passengers.

By 30 August 1999 one of the passengers had been found alive on the Montenegrin shore, and thirty-five bodies had been found in the sea, thirteen of which were identified by their relatives. The forensic specialists who had performed autopsies on the bodies by 30 August 1999 stated that the cause of death could not be established with certainty on the basis of autopsies alone. In their opinion, however, the cause of death was drowning.

On 1 September 1999 the Court of First Instance (Osnovni sud) in Bar initiated a formal judicial investigation (rješenje o sprovođenju istrage) against seven individuals on suspicion of illegally crossing the State border in connection with reckless endangerment.

By 21 October 1999 the investigating judge had (a) questioned two suspects who were available to the authorities at the time, as well as thirty other individuals in relation to the incident, including the eleventh applicant; (b) requested that some other witnesses be questioned by the relevant authorities in Serbia; and (c) asked for the autopsy reports, an expert opinion on the capacity of the boat and a report on the weather conditions on the night of the incident. The eleventh applicant was questioned on 10 September 1999. She stated that she had been living with her brother and sister-in-law and their children in Kosovo, but that her brother and sister-in-law had decided to go to Montenegro. They had not called her from Podgorica or mentioned that they had intended to go to Italy. She also stated that she had not recognised them amongst the bodies found, but had recognised her brother’s arm in one of the photographs shown to her during questioning. Being illiterate, she had “signed” the minutes of the hearing by giving a fingerprint.

On 21 October 1999 the State prosecutor in Bar lodged an indictment with the Court of First Instance in Bar against the seven suspects.

On 29 October 1999 the court decided that it lacked territorial competence to deal with the case and transferred it to the Court of First Instance in Kotor. On 6 December 1999 the High Court (Viši sud) in Podgorica declared that the court in Bar was territorially competent to process the case and the case was returned.

By the end of 2002 the court in Bar had decided that two defendants still at large would be tried in their absence and appointed representatives for them. The remaining five defendants appeared before the court.

Between 25 December 2002 and 24 September 2003 ten trial hearings (glavni pretres) were scheduled, five of which took place. Four were adjourned because some of the defence lawyers, defendants, witnesses and an interpreter did not attend court; there is no information in the case file about one of the hearings. During the hearings that did take place, the court questioned four defendants and eleven witnesses.

On 24 September 2003 the court decided to recommence the trial hearing due to the passage of time. By 14 April 2004 ten hearings had been scheduled, six of which took place. Four were adjourned because one of the defence lawyers and some of the witnesses did not attend court. During the hearings that did take place, the court read out the indictment again, questioned four defendants and sixteen witnesses, including the eleventh applicant, and read out the earlier statements made by the witnesses; the fifth defendant chose to remain silent. The eleventh applicant was heard on 8 October 2003. She stated that she had come to Podgorica with her brother and his family and had had no idea that her brother and his wife had intended to go to Italy. When asked to explain the differences between that and her previous statement of 10 September 1999, she stated that she was certain that they had all been together since they had all been living together in one tent. She also confirmed that she was illiterate.

On 14 April 2004 the Supreme State Prosecutor (Vrhovni državni tužilac) in Podgorica instructed the State prosecutor in Bar to specify the indictment in terms of the facts and legal classification of the criminal offences, after which the court in Bar would declare that it lacked competence to deal with the case and would transfer it to the High Court in Podgorica (hereinafter “the High Court”), as the competent court to deal with it. Accordingly, the indictment was amended and the case file transferred to the High State Prosecutor (Viši državni tužilac) and the High Court.

On 26 May 2004 the High State Prosecutor requested that an investigation be opened (zahtjev za sprovođenje istrage) against the same seven people and another individual, Z, on suspicion of committing reckless endangerment.

By 20 October 2004 the High Court had questioned four of the defendants, while the fifth had chosen to remain silent. It also ordered that the remaining three defendants be brought before the court.

On 11 November 2004 an investigating judge of the High Court decided to initiate a formal judicial investigation against the eight individuals, a decision which was upheld by the High Court on 25 November 2004.

On 25 February 2006 the High State Prosecutor urged the investigating judge to finish the investigation.

On 28 March 2006 an expert witness issued an opinion on the capacity of the boat.

On 31 October 2006 the High State Prosecutor charged eight defendants with reckless endangerment under Article 338 § 2 in connection with Article 327 §§ 1 and 3 of the Criminal Code (see paragraphs 43-44 below).

Between 24 and 28 November 2006 the indictment was served on four of the defendants.

On 15 January 2007 the president of the chamber informed the president of the High Court that a trial hearing could not be scheduled yet as the indictment had not yet been served on all the defendants.

By 15 February 2008 the High Court had issued a national arrest warrant (potjernica) against one of the defendants, and had attempted to serve one on the other three, one of whom was in detention in Podgorica at the time. The other two were based in Serbia and Bosnia and Herzegovina respectively.

On 3 April 2008 the High Court rejected the indictment against Z (the defendant based in Serbia), a decision which was upheld by the Court of Appeal on 26 May 2008.

By 28 September 2009 the High Court had decided that the two defendants at large, one of whom was based in Bosnia and Herzegovina, would be tried in their absence.

At the first trial hearing on 28 September 2009 one of the defendants, X, stated that he was illiterate and did not understand the indictment. At the request of his lawyer the hearing was adjourned until further notice, so that the indictment could be translated into Romani. By 31 October 2009 the translation of the indictment into Romani had become available.

In the course of 2010 seven hearings were scheduled. One was held on 8 October 2010, during which the indictment was read out and four defendants were heard, the fifth having chosen to remain silent. Six hearings scheduled for 5 February, 29 April, 4 June, 2 July, 17 November and 17 December 2010 were adjourned because some of the defendants, defence lawyers, the interpreter for Romani and a witness did not attend court.

On 25 January 2011 another judge of the High Court took over the case. In the course of 2011 eight hearings were scheduled, seven of which were adjourned: (a) three because there was no permanent court interpreter for Romani; (b) two because the defence lawyers and witnesses did not attend court; (c) one because one defendant and several defence lawyers did not attend court and an interpreter had not yet been appointed; and (d) one because of changes to the Criminal Procedure Code, which made the relevant court panel incomplete. One hearing was held on 21 November 2011, during which four defendants were heard and their earlier defence statements made in 1999, 2003, 2004 and 2010 read out. The fifth defendant chose to remain silent.

In the course of 2012 seven hearings were scheduled, two of which were adjourned because one defendant, a defence lawyer, some of the witnesses, including the seventh applicant, and/or the interpreter did not attend court. Five hearings were held, two of which by 24 September 2012, when several witnesses were heard. On 24 September 2012 the trial hearing was recommenced due to “the passage of more than three months”. During that hearing and the subsequent two hearings four defendants and several witnesses were heard again, and a number of written documents were read out, including the indictment, the defendants’ earlier statements and witness statements from 1999, 2003 and 2012, reports by the Kotor and Budva police directorates (odjeljenja bezbjednosti), as well as information provided by the Radio and Television of Montenegro and the Bar Public Information Centre. The fifth defendant remained silent.

In the course of 2013 nine hearings were scheduled, five of which were adjourned because one of the defendants, two lawyers, an expert witness, a judge, and/or the interpreter did not attend. The lawyers were fined 500 euros (EUR) for their unjustified absence. By 18 December 2013 three hearings had been held, during which one expert witness was heard, and a number of other pieces of documentary evidence were read out, such as an earlier statement of another expert witness, earlier statements of other witnesses from 1999, 2003 and 2004, including the statements of the eleventh applicant, autopsy reports and reports from the Port of Bar of 1995 and 1998 relating to the boat. On 18 December 2013 the trial hearing was recommenced due to the passage of time. Four defendants and one of the expert witnesses were heard and their earlier statements read out.

In the course of 2014 five hearings were scheduled, two of which were adjourned because the interpreter and one of the expert witnesses did not attend court and because one defendant was justifiably absent. By 4 June 2014 one hearing had been held, at which earlier statements of witnesses, including the eleventh applicant’s statements, official reports, autopsy reports and experts witness statements were read out. On 4 June 2014 the trial hearing was recommenced due to the passage of time. At that and the subsequent hearing held in 2014 the court read out the indictment, the defendants’ earlier statements and some witness statements, including the eleventh applicant’s, as well as other written evidence. One of the witnesses was also heard.

On 24 July 2014 the High Court acquitted all the accused for lack of evidence. On 10 November 2014 the High State Prosecutor appealed against that judgment. There is no information in the case file as to the outcome of the appeal.

On an unspecified date prior to 7 December 2009 the Roma Centre complained to the Ombudsman, asking for the criminal proceedings to be expedited and the responsible persons punished, as well as for a DNA analysis of the bodies which had been buried.

On 7 December 2009 the Ombudsman issued a report in this regard noting, in substance, that the investigation had lasted for more than seven years and that ten years after the impugned event the criminal proceedings had not yet been terminated, which was unjustified. He recommended that the High Court undertake all necessary steps to terminate the proceedings as soon as possible.

On 21 December 2010 the Ombudsman enquired what had been done in the meantime. The judge in charge informed him of the hearings scheduled between October and December 2010.

On 19 August 1999 the only surviving passenger was found guilty of boarding the boat on 16 August 1999 with the intention of illegally crossing the border to Italy and was fined by the Misdemeanour Court (Sud za prekršaje) in Kotor.

In the course of 2002 a number of family members of those who had disappeared, two of them applicants in the present case, urged that the proceedings at issue be expedited. Some of them claimed that their next-of-kins were alive but had been trafficked. It appears that some others also hoped that their family members might still be alive.

On 15 June 2011 the president of the High Court requested the Ministry of Justice to appoint a permanent court interpreter for Romani as soon as possible, stressing that one of the reasons for the criminal proceedings in question having “lasted too long” had been the absence of an adequate interpreter for Romani.

It would appear that on several occasions the Roma Centre requested the High Court to expedite the proceedings, and that on 16 August 2010 it issued a statement that the investigation had not been effective.

The eleventh applicant’s initial representative submitted an authority form signed by her. He also specified that her two sons, two daughters-in-law and five grandchildren had died or disappeared in the impugned event.