CASE OF SATAKUNNAN MARKKINAPORSSI OY AND SATAMEDIA OY v. FINLAND

Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

The applicant companies have their seat in Kokemäki.

The first applicant company Satakunnan Markkinapörssi Oy has been publishing Veropörssi magazine since 1994. The magazine publishes yearly information about natural persons’ taxable income and assets. This information is public according to Finnish law. Several other publications and media companies also publish such information. The editor-in-chief of the magazine lodged an application with the Court in 2010 (see Anttila v. Finland (dec.), no. 16248/10, 19 November 2013).

In 2002 the magazine appeared 17 times and each issue concentrated on a certain geographical area of the country. Data on 1.2 million persons’ taxable income and assets was published, which constituted at the time a third of all taxable persons in Finland. The magazine also published taxrelated articles and announcements.

The first applicant company Satakunnan Markkinapörssi Oy has worked in cooperation with the second applicant company, Satamedia Oy. The companies are owned by the same persons. In 2003 the second applicant company, together with a telephone operator, started an SMSservice. By sending a person’s name to a service number, taxation information concerning that person could be obtained if information was available in the database. The database was created using data already published in the magazine. Since 2006 the second applicant company has also been publishing Veropörssi magazine.

On an unspecified date the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen) contacted the applicant companies and advised them to stop publishing taxation data in the manner and to the extent that had been the case in 2002. Collecting data which was not to be published was not forbidden. The companies declined because they felt that this request violated their freedom of expression.

By letter dated 10 April 2003 the Data Protection Ombudsman requested the Data Protection Board (tietosuojalautakunta, datasekretessnämnden) to order that the applicant companies be forbidden to process taxation data in the manner and to the extent that had been the case in 2002 and to pass such data to an SMS-service. He claimed that, under the Personal Data Act, the companies had no right to establish such personal data registers and that the derogation provided by the Act concerning journalism did not apply to the present case. The collecting of taxation information and the passing of such information to third parties was not journalism but processing of personal data which the applicant companies had had no right to do.

On 7 January 2004 the Data Protection Board dismissed the request of the Data Protection Ombudsman. It found that the derogation provided by the Personal Data Act concerning journalism applied to the present case. As concerned the SMS-service, the data used in the service had already been published in Veropörssi magazine and the Act did not therefore apply to it.

By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), reiterating his request that the applicant companies be forbidden to process taxation information in the manner and to the extent that had been the case in 2002 and to pass such data to the SMS-service.

On 29 September 2005 the Administrative Court rejected the appeal. It found that the derogation provided by the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC, should not be interpreted too strictly as it would then favour protection of privacy over freedom of expression. The court considered that Veropörssi magazine had a journalistic purpose and that it was also in the public interest to publish such data. The court emphasised, in particular, that the published data was public. The derogation provided by the Personal Data Act concerning journalism thus applied to the present case. As concerned the SMS-service, the court agreed with the Data Protection Board that, as the information had already been published in the magazine, the Act did not apply to it.

By letter dated 26 October 2005 the Data Protection Ombudsman appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court.

On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the Court of Justice of the European Union on the interpretation of Directive 95/46/EC.

On 16 December 2008 the Court of Justice of the European Union, sitting in a Grand Chamber composition, gave its judgment (see Case C3/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, judgment of 16 December 2008 (Grand Chamber)). It found first of all that the activities in question constituted “processing of personal data” to which the Directive applied. Moreover, activities involving the processing of personal data such as that relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive. In order to take account of the importance of the right to freedom of expression in every democratic society, it was necessary to interpret notions relating to that freedom, such as journalism, broadly. However, in order to achieve a balance between the two fundamental rights, the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data provided for in the Directive had to apply only in so far as was strictly necessary. In conclusion, activities such as those involved in the domestic proceedings, relating to data from documents which were in the public domain under national legislation, could be classified as “journalistic activities” if their object was to disclose to the public information, opinions or ideas, irrespective of the medium which was used to transmit them. They were not limited to media undertakings and could be undertaken for profitmaking purposes.

On 23 September 2009 the Supreme Administrative Court quashed the previous decisions and referred the case back to the Data Protection Board. It requested the Board to forbid the processing of taxation data in the manner and to the extent carried out in 2002. The court noted first that the term “journalism” was not defined in Directive 95/46/EC but that, according to the Court of Justice of the European Union, it was necessary to interpret notions relating to freedom of expression, such as journalism, broadly. However, when balanced against the right to privacy, any derogations to the latter were to be kept only to what was strictly necessary. When balancing the right to freedom of expression against the right to privacy, the Court had found that the decisive factor was to assess whether a publication contributed to a public debate or was solely intended to satisfy the curiosity of readers. The Supreme Administrative Court found that the publication of the whole database collected for journalistic purposes could not be regarded as journalistic activity. The public interest did not require such publication of personal data to the extent seen in the present case, in particular as the derogation in the Personal Data Act was to be interpreted strictly. The same applied also to the SMS-service.

The SMS-service was shut down after the decision of the Supreme Administrative Court was served on the applicant companies. The magazine continued publishing taxation data in autumn 2009 when its content was only one fifth of the previous content. Since then the magazine has not appeared.

On 26 November 2009 the Data Protection Board forbade the first applicant company to process taxation data in the manner and to the extent that had been the case in 2002 and to forward this information to an SMSservice. The second applicant company was forbidden to collect, save or forward to an SMS-service any information received from the first applicant company’s registers and published in Veropörssi magazine.

By letter dated 15 December 2009, after the Data Protection Board had made its decision, the Data Protection Ombudsman asked the applicant companies to indicate what measure they were envisaging to take in view of the Board’s decision. In their reply, the applicant companies asked the Data Protection Ombudsman’s view on the conditions under which they could continue publishing public taxation data at least to a certain extent. In his reply the Data Protection Ombudsman stated that, according to the Supreme Administrative Court’s decision, the applicant companies lacked the legal right to maintain their taxation database and to publish it, and reminded them of his duty to report any breach of the Personal Data Act to the police.

By letter dated 9 February 2010 the applicant companies appealed against the decision of the Data Protection Board to the Helsinki Administrative Court which transferred the case to the Turku Administrative Court. They complained that the decision violated the prohibition of censorship guaranteed by the Constitution as well as their freedom of expression. The Finnish Constitution provided better protection than the international human rights treaties as the latter did not prohibit censorship fully. According to the domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication. Nor was it possible to use “public interest” as a criterion for preventing publication when preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication, if they thought that the publication did not promote discussion of a topic of public interest.

On 28 October 2010 the Turku Administrative Court rejected the applicant companies’ appeal. It found that, as far as the matter had been decided by the Supreme Administrative Court in its decision of 23 September 2009, it could not take a stand on the issue. In the latter decision the Supreme Administrative Court had stated that the case was not about the public nature of the taxation documents, nor about the right to publish such information. As the court was now examining only the decision rendered by the Data Protection Board which was issued as a result of the Supreme Administrative Court’s decision of 23 September 2009, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its decision. As the Board’s decision corresponded to the content of the Supreme Administrative Court’s decision, there was no reason to change it.

By letter dated 29 November 2010 the applicant companies appealed further to the Supreme Administrative Court, reiterating the grounds of appeal already presented before the Administrative Court. They noted in particular that the decision issued by the Data Protection Board had prohibited the processing of taxation information for publishing purposes as well as requiring that the internal registers of the first applicant company be protected in a manner required by the Personal Data Act. In practice the companies were prevented from collecting information for publishing purposes, which meant that there was an interdiction to publish such information. The companies noted that the Finnish Constitution also prohibited indirect preventive censorship.

On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Administrative Court. It found that the case was not about the right to publish taxation information as such, nor about preventive censorship. On these grounds and the grounds mentioned in the Administrative Court’s reasoning, the court found that there was no reason to change the latter’s decision.


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

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicants were born in 1928, 1949, 1958 and 1954 respectively. Mr Stanko Kalinov Stanev and Mr Kalin Tsvetanov Iliev live in Teteven and Mr Stanko Tsvetanov Iliev lives in Pleven. Ms Stanka Tsanova Ilieva also lived in Teteven.

Ancestors of the applicants owned agricultural land in the area of the village of Ribaritsa, Lovech region, which was collectivised after 1945.

In 1964 the municipal authorities in Lovech decided to allocate land for the construction of a hotel in Ribaritsa. The exact borders of the plot were specified in a decision delivered in 1984: it was one of the plots formerly owned by the applicants’ ancestors. In 1985 a proposal to formally expropriate the land from the agricultural co-operative in which it had been included earlier was rejected by a commission created by the Government.

The hotel was constructed between 1962 and 1968. It consisted of a main building ‒ comprising a restaurant and five bedrooms, ten bungalows and maintenance buildings. In the 1990s the complex also included an unfinished building, designed to be used as six bedrooms and a lounge, and a swimming pool. The plot of land on which it was constructed measured 8,182 square metres.

In March 1987 the local authorities in Lovech created a State-owned enterprise named “Pochivno delo na SO”, which was charged with the task, in particular, of using and managing the hotel in Ribaritsa. On 23 January 1995 the Minister of Agriculture ordered the creation of a State-owned limited liability company named “Pochivno delo na SSHP” EOOD, which took over the assets of the enterprise; under the applicable domestic provisions, this entailed the company becoming the owner of these assets. “Pochivno delo na SSHP” EOOD was entered in the companies register in Lovech on 1 March 1995.

In June 1996 the company initiated a procedure aimed at changing the status of the land on which the hotel was constructed, and which was still formally considered agricultural. The course of that procedure is unclear.

On 13 November 1998 the Minister of Agriculture issued an “act of State ownership” of the hotel and the land on which it was constructed. The document noted that the property had been included in the capital of “Pochivno delo na SSHP” EOOD.

In 1991, following the adoption of the Agricultural Land Act (“the ALA”), the applicants, who had inherited their ancestors in equal shares, applied for the restitution of the land formerly owned by them.

In a decision of 25 July 1995 the Teteven agricultural land commission (“the land commission”) restored the applicants’ property rights to several plots, including one of 8,290 square metres on which the hotel had been constructed. The decision referred to this plot as a “meadow”.

On 26 February 1996 the land commission issued a new decision concerning the applicants’ land, amending its previous one. In the new decision the commission did not mention the plot on which the hotel had been constructed, which, according to the applicable rules, was considered to amount to a tacit refusal to order restitution.

The applicants instigated proceedings for judicial review of the decision of 26 February 1996. In a final judgment of 9 April 1998 the Teteven District Court quashed the decision. It noted that in 1985 a proposal to expropriate the disputed plot from the agricultural co-operative had been rejected by the competent commission. It noted further that the procedure aimed at changing the land’s status initiated by “Pochivno delo na SSHP” EOOD had not been completed and that the plot had not yet been registered as State or municipally-owned. It concluded that the land commission had had no valid legal grounds on which to amend its decision of 25 July 1995 ordering restitution in kind, quashed its subsequent tacit refusal in that regard and restored the applicants’ property rights to the plot of land.

On the basis of the above judgment, on 5 March 1999 the applicants obtained a notarial deed.

On 7 August 1998 “Pochivno delo na SSHP” EOOD brought an action against the applicants, seeking a declaratory judgment to the effect that it was the owner of the plot of land at issue. The applicants brought a counter-claim for rei vindicatio. They argued that the hotel’s buildings were unlawful and that the land had never formally ceased to be considered agricultural. They based their claims to be the owners of the land on the land commission’s decision of 25 July 1995.

The case was examined by three levels of jurisdiction. The Supreme Court of Cassation’s final judgment was given on 19 January 2005.

The domestic courts found that “Pochivno delo na SSHP” EOOD had become the owner of the plot following its transformation into a Stateowned company in 1995, since the State enterprise of which it was the successor had previously used and managed that property. As to the applicants’ claims, the courts noted that they were based on the land commission’s decision of 25 July 1995. However, this decision, as well as the Teteven District Court’s judgment of 9 April 1998, were not binding on “Pochivno delo na SSHP” EOOD, as it had not been party to the restitution proceedings. The courts thus considered that they were free to conduct an “indirect judicial review” (косвен контрол) of the restitution decision and concluded that it was invalid as the preconditions for restitution in kind had not been met. This was so in particular in the light of the provision contained in section 10b of the ALA, which barred such restitution where a “complex of construction works” had been carried out on the land at issue. Section 10b did not require the construction works to have been lawful, since what mattered was the situation at the moment of the ALA’s entry into force.

Following the above developments, in a decision of 28 February 2006 the Teteven Agriculture and Forestry Department (former land commission) held that the applicants were entitled to compensation in lieu of restitution. In another decision of 6 April 2006 it held that the compensation would be effected through compensation bonds, with a face value of 5,360 Bulgarian levs (BGN). The applicants received the bonds on 20 December 2006.

The applicants sold the bonds in February 2013. They received, in total, BGN 2823.88.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano

The applicant was born in 1956 and lives in Dobele. He was employed by the State Border Guard Service as a border guard from 1992.

On 20 January 1997 the applicant was promoted to head of the Jelgava section. On 5 October 1998 a certification commission (atestācijas komisija) deemed him suitable for his new position.

After the Law on State Secrets (see paragraphs 30 to 34 below) came into force on 1 January 1997 and the adoption of Regulation no. 225 of the Cabinet of Ministers, entitled “Regulations for the Protection of State Secrets” (see paragraph 36 below) on 25 June 1997, the applicant was invited to apply for security clearance for work with State secrets. He filled in a questionnaire on 23 September 1997. According to a letter sent to the Government Agent by the Constitution Protection Bureau (Satversmes aizsardzības birojs, hereinafter “the SAB”), one of the Latvian intelligence services responsible, inter alia, for issuing security clearances, he had been invited to attend a “discussion” (pārrunas) on 20 April 1998 in respect of his application. The Government provided a copy of additional written explanations submitted by the applicant the same day. Therein he had explained that he had been a reserve lieutenant in the Soviet Army and a member of the Latvian Communist Party until approximately 1990. He denied having had any links with foreign secret services, and in that regard referred to a prior interview he had apparently had with the Security Police.

On 19 January 1999 the head of the Border Guard Service showed the applicant a letter from the SAB, which indicated that he had been refused the first category security clearance. The letter did not contain any motivation of the refusal apart from a reference to section 9(3)(4) of the Law on State Secrets (see paragraph 32 below).

The applicant presumed that clearance had been refused because he had been suspected of past collaboration with the State Security Committee of the former USSR (Комитет государственной безопасности in Russian, hereinafter – “the KGB”). He accordingly made use of the remedy available under the domestic system to have the question of his alleged collaboration adjudicated in court. As a result, in a judgment of 19 May 1999, the Dobele District Court established that the KGB archives contained a document which indicated that on 30 July 1991 the applicant had been recruited as a KGB “agent” and given a codename. His recruiter had been a KGB operative, V.P. The court, however, went on to note that there was no indication that the applicant had ever submitted any reports in his alleged capacity as a KGB agent. Moreover, the court considered that there was no evidence to suggest that the applicant had been aware that he had been an “informer” of the KGB. Accordingly, the court concluded that the applicant had not knowingly collaborated with the KGB. That judgment was not appealed against and became final on 30 May 1999.

However, prior to the completion of the inquiry into the applicant’s alleged collaboration with the KGB, and after he had refused to leave his job voluntarily, an order was made by the head of the Border Guard Service on 11 March 1999 to dismiss him from service with effect from 16 March 1999. The reasons given for the termination of his employment were the letter of the SAB and section 39(1)(8) of the Law on Border Guard Service (Robežsardzes likums), which provided that border guards were to be retired from service if they were deemed unsuitable for their duties. Another border guard, Major G.K., was appointed to fill the applicant’s position.

In July 1999 the applicant wrote to the SAB, seeking a review of the decision concerning his clearance. On 8 September 1999 the SAB responded, refusing to change the “findings of the Security Police of the Ministry of the Interior, in accordance with which it is impossible to issue Andris Ternovskis the first category special clearance on the basis of section 9(3)(6) of the Law on State Secrets”. Section 9(3)(6) provided that clearance would not be issued to persons suffering from alcoholism, drug addiction, mental illness or who were otherwise deemed unsuitable for work with State secrets (see paragraph 32 below). It was some two years later that the applicant discovered that on 16 December 1999 the director of the SAB had changed the legal basis of the refusal of the clearance from section 9(3)(4) to section 9(3)(6) of the relevant law.

The applicant then appealed against the SAB’s decision to the Prosecutor General. On 21 December 1999 the latter issued a decision, upholding the refusal to issue him clearance on the basis of section 9(3)(6) while referring to:

“circumstances that attest to [the applicant’s] personal and professional characteristics which give rise to legitimate doubts as to [his] ability to preserve State secrets – [the applicant’s] frequent contact with the former ... KGB employee [V.P.], his hiding of information concerning the involvement of officers of the Jelgava section of the State Border Guard Service in illegal activities and needless and dangerous brandishing of a firearm in the presence of other employees of the Border Guard Service while intoxicated.”

Section 11(5) of the Law on State Secrets provided that the Prosecutor General’s decision was final and not amenable to further appeal, either in court or elsewhere.

The applicant then attempted to obtain access to the materials in the investigation file on the basis of which he had been refused clearance. On 23 February 2001 he was informed by the SAB that the materials were confidential (in accordance with the regulation no. 226 of the Cabinet of Ministers; see paragraph 35 below) and not accessible to the person subject to the investigation. However, on 14 June 2004 the applicant received permission to access some parts of the file and obtained copies of several documents contained therein. One of the documents contains excerpts from a report by a border guard, officer G.K. (who was promoted to head of the Jelgava section following the applicant’s dismissal, see paragraph 10 above) to the deputy director of the SAB containing intimations that the information the applicant had disclosed about his former collaboration with the KGB had been inaccurate. Another report (which did not contain any indication of its source) indicated that the applicant, while intoxicated, “had behaved aggressively with a service weapon, threatening to either shoot himself or [G.K.]”. The third document was a report by G.K. reciting information supposedly provided by third parties concerning the applicant’s former collaboration with the KGB and concerning “the covering up of extraordinary incidents of alcohol use and smuggling in the Jelgava section”.

The applicant complained about his dismissal from service to three levels of courts of general jurisdiction. In a judgment of 19 September 2001 the Riga City Latgale District Court noted the change that had been made to the legal basis on which refusals of clearance had been made; however, it did not find it necessary to analyse that issue, since the judgment of the Dobele District Court had not refuted the fact that the applicant had been an “agent” of the KGB, and that section 9(3)(4) of the Law on State Secrets provided that clearance should not be issued to former “agents” of, inter alia, the KGB, irrespective of how active their involvement had been. The applicant had also asked the first-instance court to renew the procedural time-limit for appealing against the refusal to issue him security clearance. The court rejected this request by noting that the applicant had already made use of the procedure for appealing against the refusal.

An appeal hearing took place on 23 January 2002 at the Riga Regional Court but the applicant did not attend. Two days prior to the hearing, he had informed the court that he was ill and that a doctor had ordered him to stay in bed (“gultas režīms”). The case file contains a copy of a medical certificate, dated 21 January 2002, which states that the applicant had been put on sick leave until 25 January 2002. The certificate is made out on a pre-typed form and contains no specific details of the applicant’s medical condition. Under the heading “the reason for a temporary inability to work” the doctor preparing it has ticked “other reasons”, as opposed to being infected with tuberculosis, having an occupational disease or having had an accident at the workplace. The court considered that the applicant had not submitted any evidence in support of his claim that his health condition had prevented him from attending the hearing. Neither had he substantiated his claim that he had been ordered to stay in bed.

The court considered that his arguments had been fully expressed in his written appeal and on that basis had decided to proceed with the hearing in his absence. The applicant was not fined for failure to attend the hearing without a justified reason. As summarised by the appeal court, the applicant in his appeal had complained, among other things, that he had been dismissed from service even before the appeal procedure against the refusal to issue security clearance had been completed.

The applicant was not represented by counsel. A representative of the State Border Guard Service, the respondent in the proceedings, was present at the hearing and in his oral observations before the court endorsed the validity of the judgment of the first-instance court and disagreed with the applicant’s claim and appeal.

As to the merits of the appeal, the appellate court in its judgment of 23 January 2002 indicated that the first-instance court had not adequately analysed the arguments of the parties and had exceeded the scope of its competence. It nevertheless decided to dismiss the applicant’s claim. It held that the order of 11 March 1999 discharging the applicant from service could not be deemed to be a restriction of his rights, since he had already been aware of the SAB’s refusal to issue him security clearance since January of that year. In any event, the court considered that it was impossible to reinstate the applicant to his position, since the position required him to obtain security clearance, which had been refused by a final decision of the Prosecutor General, which was not amenable to appeal. The appeal court also held that there were no legal grounds to renew the time-limit for appealing against the decision to refuse the applicant a security clearance and that in any case the applicant had exhausted the appeal procedure legally available to him.

The applicant lodged an appeal on points of law. On 10 April 2002 the Senate of the Supreme Court adopted a judgment dismissing his appeal. It dismissed his complaint concerning the fact that the appellate court had conducted the hearing in his absence. The Senate noted that the appellate court had regarded the applicant’s reason for having failed to appear at the hearing as unjustified, but said that it was a question of fact which the Senate, being a level of jurisdiction which deals with alleged violations of procedural and substantive law and not with the re-evaluation of facts, was not competent to review. As regards the merits of the case, the Senate agreed with the conclusions of the appellate court.

The applicant then submitted a complaint to the Human Rights Bureau (Cilvēktiesību birojs, the predecessor of the Ombudsman). On 10 October 2002 he received a response, in which the Bureau expressed doubts as to the constitutionality and compatibility with the Convention of the process for appealing refusals of security clearance, given that such appeals could only be made to the director of the SAB and to the Prosecutor General.

The applicant then lodged a complaint of unconstitutionality with the Constitutional Court, alleging firstly that there had been no opportunity for him to address his complaint concerning a refusal of security clearance to a court, and secondly that he had been denied access to the investigation file on the basis of which the refusal had been made. On 23 April 2003 the Constitutional Court adopted a judgment in which it declared the legal provisions in question constitutional. Two of the seven judges dissented (see paragraphs 27 and 28 below).

The majority considered that the right of access to a court guaranteed by the Constitution did not include a right to resolve in a court every issue that might be of importance to an individual. Accordingly it started its analysis by questioning whether the disputed legal norms concerned the applicant’s rights or lawful interests. Firstly, it was noted that the freedom to obtain information did not incorporate access to State secrets, since there were legitimate grounds for restricting access to such information. Secondly, refusing the applicant security clearance had restricted his right to employment and equal access to employment in public service. Nevertheless, it concluded that such a restriction had been legitimate, since it had occurred for reasons related to national security.

Despite finding that the refusal did not impinge upon the applicant’s constitutional rights, the majority of the Constitutional Court proceeded to analyse the question whether the appeal process involving the director of the SAB and the Prosecutor General was sufficient to satisfy the requirement of access to a court. In that regard it was firstly pointed out that the Prosecutor General could not be understood to be a “court” for the purposes of the right of “access to a court”. Secondly, the court referred to the Strasbourg Court’s judgments in the cases of Golder v. the United Kingdom (21 February 1975, § 38, Series A no. 18) and Fogarty v. the United Kingdom ([GC], no. 37112/97, § 33, ECHR 2001XI), in which it was held that the right to access to a court was not absolute and was subject to limitations. The court then went on to analyse whether the impossibility of disputing the validity and legality of a refusal of security clearance before a court pursued a legitimate aim, and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. It considered that the legitimate aim was the need to protect the confidentiality of materials contained in the investigation file regarding the person in question’s suitability for security clearance. As concerns the issue of proportionality, the Constitutional Court took into account the fact that the legislation provided at least one possible method of disputing a refusal of clearance before an independent authority, namely by way of an appeal to the Prosecutor General.

With regard to the adequacy of the appeal process, the court noted that the domestic legislation did not contain any details of the decision-making process involved in refusing clearance or of the subsequent appeal procedure. In particular, the observance of the audiatur et altera pars principle was not guaranteed. That led the Constitutional Court to conclude that:

“in a country governed by the rule of law it is possible to provide for a more thought-out mechanism which would permit, in the course of deciding upon whether to issue a special clearance, to take into account, in so far as is possible, both interests of State security and the individual interests of each person under consideration.”

To illustrate that point, the court referred to the system in Germany as an example, where security clearance candidates were given an opportunity to make representations concerning facts relevant to the decision and to be represented by a lawyer, save in cases where a personal interview could significantly harm State security. The Constitutional Court then went on to conclude that Latvian legislation did not, in principle, prevent the competent authorities from implementing the audiatur et altera pars principle, particularly if the legislation were to be interpreted in the light of the Constitution. It followed that the limitation of the rights of security clearance candidates was proportionate to the legitimate aim of protecting State security.

As regards the fact that the applicant had been denied access to the investigation file, the Constitutional Court viewed it as a restriction of the right to respect for private life. Referring to the European Court of Human Rights’ judgment in the case of Leander v. Sweden (26 March 1987, § 59, Series A no. 116), it noted that interests of national security could justify such an interference with private life and concluded that in the applicant’s particular situation such an interference had been justified.

Judge Anita Ušacka in her dissenting opinion focused on the fact that the process for appealing a refusal of security clearance to the director of the SAB and the Prosecutor General did not ensure an adequate implementation of the audiatur et altera pars principle. She criticised the majority’s reliance on the assumption that the applicable legislation would be interpreted broadly and in accordance with the Constitution so as to implement the principle of hearing both parties’ arguments because “the practice shows that in transitional legal systems, such as Latvia, the principle of hearing all parties is not implemented unless it is provided for in the law, which is a fact borne out by the present case”.

Judge Andrejs Lepse

After gaining partial access to his investigation file (see paragraph 14 above), and acting on the advice of the Human Rights Bureau, the applicant, relying on new information, applied for the proceedings concerning the alleged illegality of his dismissal to be reopened. On 13 October 2004 the Supreme Court dismissed his application, finding that the new information related to the reasons for the refusal of security clearance, the illegality of which had not been the subject matter of the original proceedings. The applicant then missed the time-limit for submitting an ancillary complaint against the Supreme Court’s decision. In a final decision of 12 January 2005 the Senate of the Supreme Court refused to accept the applicant’s belated ancillary complaint.


GEREGHIHER GEREMEDHIN v. THE NETHERLANDS

Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant, Mr Firay Gereghiher Geremedhin, was born in 1971 in Tesenay, Eritrea. His nationality is unknown and he is living in Rotterdam. The applicant, who has been granted legal aid, was represented before the Court by Mr C.F. Wassenaar, a lawyer practising in Rotterdam.

The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs.

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

In the late nineties, whilst the applicant was serving in the Eritrean military, his spouse Y fell ill. After her death in July 2002, their four children, Filmon, Mary, Robiel and Henok, were taken into the care of their paternal grandparents in Eritrea as the applicant was refused a discharge from the army for the purpose of taking care of his children.

Later in 2002, the applicant married Mislal, his current spouse, and in 2003 their son Hannibal was born. Having grown increasingly frustrated with the policies of the Eritrean Government and his unsuccessful requests for a discharge from the military, the applicant and his wife fled in June 2004 to Saudi Arabia where they applied for asylum. In October 2004, they were recognised by the United Nations High Commissioner for Refugees (“UNHCR”) as refugees under the 1951 Convention on the Status of Refugees. The applicant’s four children from his first marriage and Hannibal remained in Eritrea with the applicant’s parents.

During the stay of the applicant and Mislal in Saudi Arabia, their daughter Betlehem was born in January 2005. She is suffering from congenital hydrocephalus and a congenital heart condition.

At the request of the UNHCR, the applicant, his spouse and their child Betlehem were accepted for resettlement as quota refugees in the Netherlands. According to information provided by the applicant to the UNHCR and recorded in the UNHCR Resettlement Registration Form signed by the applicant on 11 January 2007, Filmon had been born in 1990, Mary in 1993, Rob(i)el in 1994, and Henok in 1995.

On 6 November 2007, the applicant, his spouse and Betlehem were granted Netherlands asylum-based residence permits. According to information provided by the applicant to the Amersfoort municipal authorities after their arrival in the Netherlands, Filmon had been born in 1991, Mary in 1995, Robiel in 1997, and Henok in 1999.

On 28 January 2008, the applicant’s spouse filed a request for advice on the issuance of a provisional residence visa (machtiging tot voorlopig verblijf) for Hannibal for the purpose of family reunion in the Netherlands.

Also on 28 January 2008, the applicant filed a request for advice on the issuance of a provisional residence visa for his four children born out of his first marriage with Y for the purpose of family reunion in the Netherlands.

On an unspecified date in 2009, the five children left Eritrea for Sudan as their grandparents were getting too old to care for them. They ended up in the Shagarab refugee camp in eastern Sudan, where they were registered as refugees after a refugee status determination carried out jointly by the UNHCR and the Government of Sudan.

On 9 March 2009, the Visa Service (Visadienst) of the Netherlands Ministry of Foreign Affairs issued a positive recommendation in respect of the request concerning Hannibal, who until their flight in June 2004 had been part of the nuclear family unit (gezin) of the applicant and Mislal, and provided inter alia that it would be demonstrated by official documents – when submitting the request for a provisional residence permit – that Mislal had legal custody (rechtmatig gezag) over Hannibal. As he lacked official documents demonstrating his family tie with the applicant and his spouse, Hannibal was considered to find himself in a situation in which – through no fault of his own – he was hampered by a lack of evidence (bewijsnood). He was therefore offered the possibility to demonstrate the relationship by means of a free DNA test for which he had to travel to the Netherlands mission in Khartoum. Following a delay caused by logistical problems, he was eventually taken to the Netherlands mission in Khartoum – accompanied by a UNHCR staff member – to provide a DNA sample.

On 15 December 2009, the Netherlands mission reported that the results of the DNA test showed a strong probability verging on certainty that Hannibal was the applicant’s son. Consequently, he could be admitted to the Netherlands and a provisional residence visa was issued to him. On 31 January 2010, the Netherlands mission in Khartoum provided Hannibal with travel documents allowing him to travel to the Netherlands and join his parents. He entered the Netherlands on 7 April 2010 and was granted a residence permit on 14 April 2010.

In a separate decision also taken on 9 March 2009, the Visa Service of the Netherlands Ministry of Foreign Affairs issued a negative recommendation in respect of the request for advice concerning the applicant’s four children born out of his first marriage. Unlike Hannibal, there were no grounds to authorise family reunion in the Netherlands under the rules applicable for reunification of refugee families since the close family ties (gezinsband) between the applicant and the four children were considered to have ceased to exist as the children had no longer formed a part of the applicant’s nuclear family unit when in June 2004 the applicant and his wife had left Eritrea but, since the death of their mother in July 2002, had belonged to the nuclear family unit of the applicant’s parents as the applicant was unable to care for them. Accordingly, there were doubts as to the relationship of dependency between the applicant and these four children. For this reason, the applicant had been requested to substantiate this relationship of dependency and to submit the birth certificates of these children, which he had not done. Further taking into account the ages of the children, the fact that they were living together in the care of their grandparents, that they were rooted in Eritrean society and of an age that they should be regarded as able to fend for themselves, it was also found that leaving the four children in Eritrea did not amount to such a harrowing situation that it should be qualified as undue hardship (onevenredige hardheid). It was further found that there were no special facts or circumstances giving rise to a positive obligation under Article 8 of the Convention to admit the four children to the Netherlands. At the foot of the decision was a note that, according to settled case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), no appeal lay against a recommendation in respect of a request for advice given by the Visa Service on the issuance of a provisional residence visa.

By 17 August 2009, when the present application was introduced, neither the applicant nor the four children from his first marriage had filed a formal request for the issue of a provisional residence visa for the purpose of family reunion in the Netherlands either under the rules for family reunion of refugee families or under the rules applicable to regular family reunion.

According to a medical statement, drawn up on 24 September 2009 by a doctor at the Utrecht Wilhelmina Children’s Hospital, Betlehem had undergone operations in this hospital from 30 November 2008 to 1 May 2009 and her present medical condition did not allow her to go to Sudan.

On 23 April 2010 the applicant informed the Court inter alia that he had recently rented a house in Khartoum for his children.

On 28 November 2012 the applicant informed the Court that his oldest son Filmon had been arrested by the Eritrean authorities on the territory of Sudan and had been taken into detention for failure to comply with his military obligations in Eritrea and possibly also for having illegally left Eritrea. The other three children were still in Sudan.

On 7 January 2013 the applicant filed a fresh request for advice on the issuance of a provisional residence visa, submitting inter alia that, pursuant to Article 8 of the Convention, the Netherlands authorities were under a positive obligation to provide the four children concerned with a provisional residence permit. By letter of 20 March 2013, the applicant was informed by the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst) of the Ministry for Security and Justice (Ministerie van Veiligheid en Justitie) that his request was not suited for consideration in proceedings on a request for advice because he was asking for several exemptions and investigations which could not be considered in proceedings on a request for advice. The applicant was informed that his four children should file a formal request for the issuance of a provisional residence visa in the country of origin or habitual residence. As to his requests for a DNA test and exemption of the minimum income requirement under the applicable immigration rules, he was informed that these belonged to the possibilities but would only be considered in the context of a formal request.

On 9 October 2013 the applicant informed the Court that, due to great difficulties in Sudan, the four children born out of his first marriage had had to leave that country. The youngest two, Robiel and Henok, had returned to Eritrea where they were living with their paternal grandmother. His oldest son was still in detention in Eritrea for failure to comply with his military obligations, and the applicant’s daughter Mary had been kidnapped and was being held by rebel forces in the south of Libya. These rebel forces had asked the applicant for money for her release.

On 10 December 2014 the applicant informed the Court that Mary had managed to travel to Europe. She had joined the applicant in the Netherlands where she had been granted asylum. The applicant further stated that he was unaware of the whereabouts and fate of his oldest son Filmon and that he intended to file an application for a provisional residence visa in due time for his two youngest sons Robiel and Henok who were still living with their grandmother in Eritrea and who would soon come of age and therefore eligible for military service in Eritrea.

On 20 October 2015 the applicant informed the Court that the application for a provisional residence visa he had filed on 20 March 2015 as a sponsor (mvv-referent aanvraag) on behalf of Robiel and Henok had been rejected on 17 July 2015 by the Deputy Minister for Security and Justice because there was a discrepancy between the information provided by the applicant and the UNHCR about the exact year of birth of Robiel and Henok, and the applicant had not demonstrated that he had legal custody of them as minor children. The applicant filed an objection (bezwaar) against this decision and, on 10 September 2015, submitted his written ground of appeal to the Deputy Minister and a hearing was scheduled for 14 January 2016. No further information about these proceedings has been submitted.

On 12 January 2016 the applicant informed the Court that his son Henok had managed to reach the Netherlands where he had applied for asylum and that he was allowed to await the outcome of this application in the Netherlands. During his journey, he had been separated from his brother Robiel, who was still in Sudan or Libya. The applicant was still in contact with Robiel. Their eldest brother Filmon was doing his military service in Eritrea and therefore could not apply for a provisional residence visa, as Eritrea does not allow its nationals to leave the country and as there is no Netherlands embassy in Eritrea.

In a ruling handed down on 12 January 2004 (case no. 200306128/1; ECLI:NL:RVS:2004:31), the Administrative Jurisdiction Division found that the Visa Service’s response on a request for advice for the issuance of a provisional residence visa is merely a recommendation (advies) and not a formal decision (beslissing) producing legal effects (rechtsgevolgen) within the meaning of the General Administrative Law Act (Algemene Wet Bestuursrecht). Consequently, unlike a formal decision on a formal request for a provisional residence visa, such a response from the Visa Service cannot be challenged in administrative appeal proceedings.

A decision on a formal application for a provisional residence visa can be challenged in administrative appeal proceedings by filing an objection (bezwaar) with the executive administrative authority that took the decision, a subsequent request for judicial review before the Regional Court (rechtbank) of The Hague and, finally, a further appeal to the Administrative Jurisdiction Division. In these administrative appeal proceedings, an appellant can challenge the compatibility of the decision concerned with, for instance, Article 8 of the Convention.

A positive recommendation on a request for advice for the issuance of a provisional residence visa does not automatically entail the issuance of such a visa. In order to obtain it, a petitioner must submit an actual application request for a provisional residence visa at the Netherlands mission in his or her country of origin or country of habitual residence. Any subsequent appeal proceedings can be brought by the petitioner or by a sponsor (referent) on the petitioner’s behalf.

The rules governing the possibility to obtain an exemption from the obligation to pay statutory administrative charges (leges) in immigration proceedings have been set out in G.R. v. the Netherlands (G.R. v. the Netherlands, no. 22251/07, § 19, 10 January 2012).

Under the Netherlands immigration rules, the reunification of refugee families is in certain aspects less demanding for applicants than the procedure for regular family reunion in that, in the procedure for the reunification of refugee families, the accepted refugee does not have to comply with any income requirement (on this point, see Haydarie and Others v. the Netherlands (dec.), no. 8876/04, 20 October 2005) before his or her nuclear family members may be eligible for family reunion and no administrative charges must be paid for an application for reunification of a refugee family. The requirements for documentary evidence from the country of origin are also less strict than in the regular procedure.

At the relevant time, a residence permit for the purpose of the reunification of a refugee family could be issued to the alien who actually belonged – whether as a spouse or minor child – to the de facto nuclear family unit (feitelijke gezinsband) at the time of flight of the accepted refugee, who held the same nationality as the accepted refugee, and who had entered the Netherlands at the same time as the accepted refugee or in respect of whom an application for a provisional residence visa had been filed within three months of the date on which the status of refugee had been granted to the person with whom family reunion was sought. The same applied in respect of a request for advice for the issuance of a provisional residence visa for the purpose of reunification of refugee families. Since 1 June 2013 it is no longer possible to request such an advice as, from that date, it is possible for persons holding the status of refugee and living in the Netherlands to apply themselves, as a sponsor, for a provisional residence visa for relatives for the purpose of refugee family reunification.

Until 8 June 2013, a person eligible for a residence permit for the purpose of joining a spouse/partner in the Netherlands where the latter had been granted the status of refugee under the rules applicable to the reunification of a refugee family obtained an asylum-derived residence permit (afgeleide verblijfsvergunning asiel), i.e. a residence permit dependent on the refugee status of the person with whom reunion had been allowed. Given the strict distinction between an asylum-related residence permit and a “regular” (i.e. non-asylum related) residence permit, arguments based on Article 8 of the Convention could not be entertained in proceedings on an application for an asylum-related residence permit, including proceedings on a request for a residence permit for reunification of a refugee family.

As from 8 June 2013, when the order amending the Aliens Act 2000 Implementation Guidelines 2013/13 (Wijzigingsbesluit Vreemdelingen-circulaire 2000, “WBV 2013/13”) entered into force, Article 8 principles are taken into account in assessing – in proceedings on a request for a residence permit for the reunification of a refugee family – whether a person belongs to the family of an accepted refugee.


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

The applicant, Mr Nikola Kovačević, is a Croatian national who was born in 1966 and lives in Zaprešić. He was represented before the Court by Mr M. Čičković, a lawyer practising in Zagreb.

The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.

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

On 17 August 2002 the applicant was physically attacked by a certain M.M. Following the said event, on 25 November 2002 M.M. was found guilty in minor offence proceedings for breaching public order and peace and ordered to pay a fine.

On 21 July 2003 the applicant lodged a civil action with the Zagreb Municipal Court (Općinski sud u Zagrebu) against M.M., claiming damages in connection with the physical attack on him. He submitted medical documentation in relation to the injuries he had sustained and requested that an expert report be obtained detailing the duration and intensity of his physical pain and mental suffering as a result of the attack on him.

On 23 August 2005 the Zagreb Municipal Court declared that it lacked jurisdiction to examine the applicant’s case. The case was referred to the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) as the competent court.

At a hearing held on 6 December 2005 the trial judge informed the applicant of the possibility of hiring a lawyer to assist him in the proceedings. The applicant maintained that he wished to represent himself.

At a hearing held on 14 June 2006 the applicant and M.M.’s representative agreed that the trial court should question the parties and three witnesses, and should order an expert medical report detailing the means of infliction, the duration and the intensity of the applicant’s physical pain and mental suffering as a result of M.M.’s attack on him.

On 6 September 2006 the trial court heard evidence from the applicant.

On 27 October 2006 the trial court heard two witnesses, as well as the applicant (the plaintiff) and the defendant. It dismissed the applicant’s proposal for the police records of action undertaken in relation to the attack on him to be obtained. The applicant then stated that he had no further proposals for evidence. The relevant part of the record of the hearing reads as follows:

“The plaintiff proposes in the next part of the proceedings to seek from the police their records of action undertaken, but the judge dismisses that evidence proposal, given that the minor offence proceedings file has been obtained ...

The plaintiff does not have any further evidence, or any proposal to adduce further evidence. The judge explains what evidence he can propose in the proceedings and in what manner, and warns him of the repercussions of applying the burden of proof rule.

The Court renders a

decision

Given that the parties do not have any further proposals for evidence, even after a warning of the repercussions of applying the burden of proof rule, the court, which cannot itself propose evidence in these proceedings, closes the hearing.”

The applicant signed the record of the hearing without expressing any objections.

On 3 November 2006 the Dubrovnik Municipal Court dismissed the applicant’s civil action on the grounds that the scope and intensity of the consequences of the attack on him by M.M. had not been proven as he had not proposed the gathering of the necessary evidence, that is to say the obtaining of a medical expert report. The relevant part of the judgment reads as follows:

“The medical documentation in question was included in the civil action, the credibility of which was undisputed ... The court does not have the expertise to establish facts on the basis of medical documentation – that requires the expertise of a medical expert. However, in order to use the assistance of an expert in proving a fact or clarifying the real nature of the matter, it is necessary that a party, in this case the plaintiff, proposes doing so. It is only then that the court can order an examination and an expert report on the question of whether the plaintiff sustained injuries in the incident concerned, and if so, which and of what kind, and also whether he experienced mental suffering and physical pain, and if so, of what intensity and duration...

Therefore, there was neither any evidence as to the viability and the extent of the consequences, nor any proposal to adduce such evidence (obtaining the medical expert report), as the damage caused by the defendant to the plaintiff ...

The court warned the plaintiff of the repercussions of applying the burden of proof rule at a hearing held on 7 October 2006 ‒ after he [the plaintiff] stated that he had neither any further evidence nor any proposals to adduce further evidence ‒ and informed him that he could be represented by a lawyer ... which he [the plaintiff] disregarded.”

The applicant appealed against this judgment, alleging in particular that his statement concerning the obtaining of a medical expert report had been incorrectly entered into the record of the hearing. The relevant part of his appeal reads as follows:

“...the statement which appears in the reasoning of the first-instance judgment to the effect that the plaintiff did not propose the obtainment of an expert report is incorrect, because the plaintiff’s statement in that respect was not correctly entered in the records. In particular, the plaintiff stated that, if the court could not establish the facts on the basis of the offered evidence, and if the presence of the plaintiff’s witness (N.I.) could not be ensured, then, if necessary, [the court should] supplement the evidence as to the facts with an expert report.

The court misinterpreted the plaintiff’s statement in that respect and therefore came to the wrong conclusion ...”

16 On July 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku) dismissed the applicant’s appeal as ill-founded, holding that the first-instance court had duly examined all the parties’ relevant submissions. It noted in particular that the record of the hearing held before the first-instance court indicated that the trial judge had warned the applicant of the repercussions of failing to propose the gathering of relevant evidence, and that the records had been signed without any objections.

The applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske), alleging in particular that the lower courts should not have dismissed his civil action merely because no expert report had been obtained in the proceedings.

On 30 March 2011 the Supreme Court dismissed the applicant’s appeal on points of law as ill-founded. It held, in particular, that the lower courts had correctly dismissed the applicant’s civil action by applying the burden of proof rule, given that the applicant, although warned, had failed to propose that an expert medical report be obtained.

The applicant then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske), challenging the decisions of the lower courts. He alleged, in particular, that the courts had dismissed his civil action on the grounds that he had failed to propose that the expert medical report be obtained, even though he had expressly proposed that such evidence be obtained at the hearing held on 14 June 2006.

On 25 January 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded. This decision was served on the applicant’s representative on 15 February 2012.


Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

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

The applicant’s identity has been the subject of controversy at the national level. In his submission to the Court he referred to himself as mentioned above (see paragraph 1), and indicated his year of birth as 1977.

During the proceedings in Slovakia described below, the applicant also was or has been referred to as Jurij Rybakovas, with the surname at birth of Vilcinskas, alias Kolja, born in 1976, and as Valerij Juriovi Grinevsky, a Lithuanian national.

On 31 December 2007 the applicant was arrested; on 4 January 2008 he was remanded in custody pending trial on charges of conspiracy and murder.

On 18 June 2009 the Bratislava I District Court (Okresný súd) authorised extension of his pre-trial detention until 28 August 2009. Following an appeal by the applicant the Bratislava Regional Court (Krajský súd) on 25 June 2009 upheld that decision.

On 11 August 2009 the applicant was indicted to stand trial; on 22 August 2009 the District Court dismissed his request for release.

The District Court heard the case on 27-29 October 2010 and a further hearing was scheduled for 12 to 14 January 2011.

On 27 July 2011 the applicant was acquitted; his acquittal was upheld on appeal on 18 April 2013.

On 16 September 2010, while he was still in detention, and acting through the intermediary of his lawyer, the applicant requested release. In support of the request, he argued that he was innocent and that his detention in the present trial was no more than an arbitrary means of retaining him in detention in the interest of another trial.

The request was submitted by mail and was received at the District Court on 20 September 2010.

On 12 January 2011 the District Court heard the applicant in private, when he confirmed that he was seeking a response to the request for release he had made in September 2010. On the same day the District Court dismissed the request and the applicant stated on the record that he wished to appeal.

Through his lawyer, the applicant submitted his reasons for appealing in writing on 17 January 2011. At the same time, he offered a pledge that, if released, he would live in accordance with the law.

On 25 January 2011, at a private session, the Regional Court dismissed the applicant’s appeal and rejected his offer. It observed, inter alia, that there had been unjustified delay in dealing with the applicant’s request at the first level of jurisdiction, which could potentially serve as a ground for calling the President of its Chamber to account, but which in itself did not constitute a reason for releasing the applicant.

The written version of the decision of 25 January 2011 was served on the applicant via the District Court on 23 February 2011. It was not amenable to appeal.

In March 2011 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) with the Constitutional Court (Ústavný súd).

He directed the complaint against the District Court and alleged that, in determining his request for release of September 2010, there had been a violation of his right under Article 5 § 4 of the Convention to a “speedy” review of the lawfulness of his detention.

In terms of redress, he claimed reimbursement of his legal costs and 6,000 euros (EUR) by way of compensation.

On 5 April the Constitutional Court declared the complaint admissible; on 21 June 2011 it found a violation of the applicant’s right as claimed.

Referring to its previous judgments in cases nos. III. ÚS 7/00, I. ÚS 18/03, III. ÚS 126/05 and III. ÚS 216/07, the Constitutional Court observed that the “speediness” requirement would usually not be deemed to have been respected if the length of the proceedings in question amounted to months, as opposed to weeks; if the proceedings lasted more than one month at a single level of jurisdiction; or if there had been a period of judicial inactivity amounting to weeks.

As regards the merits, the Constitutional Court found the District Court’s handling of the applicant’s request “particularly lengthy” and “extraordinarily and unacceptably long”. It could neither be justified nor explained by the fact that, at the hearing held on 27-29 October 2010 (see paragraph 10 above), the applicant had taken no action and had not demanded a decision on his request for release.

As regards just satisfaction, it awarded the applicant reimbursement of his legal costs but rejected the remainder of his claim. In that regard, the Constitutional Court referred ’s fundamental rights and freedoms. It concluded that the finding of a violation of the applicant’s rights was sufficient just satisfaction for him.

The Constitutional Court’s decision was served on the applicant on 23 September 2011.


Branko Lubarda;Dmitry Dedov;Guido Raimondi;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants, Ms E.T. (“the first applicant”), born in 1986, and her son N.T. (“the second applicant”), born in 2009, are Eritrean nationals. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms S. Motz, a lawyer practising in Zurich.

In 2004 the first applicant fled her home country, travelling via Sudan and Libya, from where she reached the island of Lampedusa in Italy where she claimed asylum on 9 November 2006. She was assigned to a centre for asylum-seekers in Crotone, Calabria. After two months there, she was recognised as a refugee. However, she was no longer entitled to stay in the asylum centre. She therefore went to Rome where her boyfriend, who had fled with her from Eritrea and had also been recognised as a refugee, was living. It was very difficult for the first applicant to find a place to stay and she slept in a train station in Rome and later in a squat for refugees called “Selam Palace”. She claimed that the situation in that squat had been especially difficult for women. Her boyfriend had not been allowed to stay with her and she therefore had lived under the constant threat of sexual attacks from other men living there. Without knowledge of the Italian language it was furthermore impossible for her to find a job. She received food from soup kitchens run by Caritas in Rome. The first applicant and her boyfriend also approached the Ufficio Immigrazione in Via Assisi 39a, the communal accommodation office for homeless people in Rome (“the immigration office”). The immigration office put them on a waiting list. Some months later, on 11 February 2008, the first applicant was allocated a sleeping place but she was somehow not informed of this. The applicant remained in the Selam Palace for more than a year. She became pregnant with the second applicant and her boyfriend left her. Owing to the unbearable living conditions in Italy she decided, when she was several months pregnant, to apply for asylum in Switzerland.

On 5 March 2009 she applied for asylum in Switzerland. On 25 June 2009 she gave birth to her son, the second applicant. By a decision of 23 July 2009 the Federal Office for Migration (“the FOM”) dismissed her asylum request based on her having been granted refugee status in Italy. In November 2009 both applicants were removed to Italy.

During the applicants’ second stay in Italy, they were informed by the immigration office in Rome that they could not be provided with housing immediately, but that they would be put on a waiting list. The first applicant approached private organisations to obtain housing, without success. As she was even unable to find a place for her and her son to sleep in one of the squats in Rome, both applicants ended up sleeping in the streets and in the main train station with other homeless people. With the remainder of the money the first applicant had received from the Swiss authorities she decided to travel, together with the second applicant, to Norway to apply for asylum there. She sought to claim asylum there in December 2009 and her asylum request was registered on 1 January 2010. Approximately one and a half years later it was dismissed and in February 2011 they were removed from Norway to Italy.

In Italy the first applicant unsuccessfully approached on several occasions the immigration office in Rome as well as private organisations in order to obtain accommodation. In relation to a residence document for her son, the immigration office informed her that she should return to Crotone since she had been registered there and the authorities there were responsible for her. In April 2011 the applicant therefore travelled to Crotone in order to register her son and to seek accommodation for them. The authorities there however informed her that there was no organisation which could assist her and that she should return to Rome. Upon her return to Rome, the immigration office eventually registered her on the waiting list on 18 June 2011. Since no accommodation in Rome was available, the applicants had to return to the Selam Palace. The living conditions in that squat were unacceptable, especially for a child. Owing to the precarious sanitary conditions and the lack of adequate nutrition, the second applicant suffered serious dental problems. As the first applicant could furthermore not pay the required fees for staying in the Selam Palace, she was repeatedly asked to leave the place.

Out of despair and in order to avoid sleeping in the streets of Rome in wintertime with a little child, the first applicant decided to travel to Switzerland again. She applied a second time for asylum in Switzerland on 10 November 2011. According to the immigration office in Rome, the applicants would have received a place to stay in November 2011, but at this point they had already gone to Switzerland. On 25 October 2012 the FOM dismissed the applicants’ request on the basis that the applicants could avail themselves of the protection of a safe third country, namely Italy.

On 1 July 2013 the applicants lodged a qualified application for review with the FOM. The applicants claimed that the FOM had failed to take into account the various indications that the applicants had to live in inhuman conditions in Italy. By decision of 2 August 2013 the FOM dismissed their request ruling that Italy was under an obligation under the EU Qualification Directive to provide the applicants with accommodation and financial support. In addition, private aid organisations could also assist the applicants. The FOM also held that the removal to Italy would not violate the rights of the child under the United Nations Convention on the Rights of the Child.

Upon appeal, the Federal Administrative Court (“the FAC”) granted the applicants interim measures on 26 August 2013 in order to await the outcome of the proceedings in Switzerland. By a decision of 14 November 2013 the FAC dismissed the applicants’ appeal.

With regard to a possible breach of Article 3 of the Convention, the FAC established that based on the facts of the case no particular risk of illtreatment in Italy could be identified. Italy had signed all the relevant international human-rights treaties which it was obliged to respect and was bound to the EU Qualification Directive, which provides that recognised refugees should in principle be treated like nationals regarding social assistance and health care. The FAC found that some structural deficits for refugees in Italy existed, primarily in the regions of Lampedusa, Sicily and Calabria as well as in Rome and Milan. Based on the facts of the case, the FAC had no doubts that the situation for refugees and asylum-seekers in Rome was unbearable and that they were not provided with basic social assistance. Furthermore, it accepted that there was a considerable risk if returned to Rome, the applicants would be obliged to live in the streets again. Since the immigration office in Rome had already offered the applicants a place to stay in the past, it could be expected that they would also be offered one in the future, however not immediately. Therefore, the FAC considered the risk of the applicants’ living in the streets of Rome upon their return there to be considerable. However, the situation for refugees was not as bad in other regions of Italy as in Rome. As recognised refugees, the applicants had the possibility to settle in another region of Italy where the living conditions were presumably better. In this regard the FAC held that it was not comprehensible why the first applicant, who had been able to seek refuge in Switzerland and Norway, had not travelled to another region of Italy, in particular to the North, in order to look for housing there. It found that it was feasible to expect the applicants to seek and find housing in another region of Italy, as, for example, provided by Caritas in Bolzano (House of Margareth), in Bressanone (House of Solidarity), in Bologna (Centro polifunzionale Madre Teresa di Calcutta) as well as in different places in Trieste. The FAC stated that it was more likely than not that the applicants would be able to find adequate accommodation there and would be able to live with dignity. Therefore, they were not at risk of ill-treatment if returned to Italy.

Following this ruling, the Swiss Refugee Council (Schweizerische Flüchtlingshilfe), a Swiss non-governmental organisation (“NGO”), contacted on behalf of the applicants the mentioned organisations in Bolzano, Bressanone, Bologna and Trieste in order to enquire whether the applicants could be accommodated there. The Swiss Refugee Council was however informed that none of the organisations would be able to accommodate the applicants as they firstly needed to have their official residence in that municipality and secondly there were no resources for a single mother with her child. As there were very long waiting lists, it was impossible to tell how long it would take to obtain a place. In addition, the fact that the applicants had been registered in Crotone made it even more difficult for them to relocate elsewhere despite the fact that the situation in Crotone was well-known for being inadequate for single mothers with children. It was also possible that the mother and the child would be separated since social services only had obligations towards the child but not towards the mother.

On 26 May 2014, the applicants submitted a letter written by the teacher of the second applicant about his integration in Switzerland. The applicants also repeated their complaints.

The relevant provisions of the Federal Asylum Act of 26 June 1998, as in force at the relevant time, read as follows:

The Federal Council shall identify states in which on the basis of its findings:

a. States of origin or provenance which are safe, that is to say those in which the applicant runs no risk of persecution;

b. safe third countries, that is to say those in which it considers that the principle of non-refoulement, within the meaning of section (5)(1), is actually observed.

It shall periodically review decisions made under paragraph 2.

If the asylum-seeker has arrived from a country where he or she does not run the risk of persecution within the meaning of section 6a(2)(a), the Office [the Federal Office for Migration, now the State Secretariat for Migration [Staatssekretariat für Migration]] shall not examine the application unless there are signs of persecution.

As a general rule, the Office shall not examine an asylum application where the asylum-seeker

a. can return to a safe third country within the meaning of section 6a(2)(b) where he or she has resided previously;

A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum-seekers in Italy is also set out in the Grand Chamber judgment Tarakhel v. Switzerland (no. 29217/12, §§ 37-50, ECHR 2014 (extracts)).

By a letter of 9 January 2014, the co-Agent of the Italian Government submitted a message of 7 January 2014 of the Servizio centrale, the body running the SPRAR (Sistema di protezione per richiedenti asilo e rifugiati) network, stating that it had asked the municipality of Sezze to accommodate the applicants as a single-parent family in the appropriate structures put in place by the municipality.

By a letter of 27 January 2014, the co-Agent of the Italian Government submitted a note from the Ministry of the Interior and replied to the Acting President’s invitation to provide the Court with a letter from the NGO in question which confirms the availability of accommodation for the applicants. The co-Agent’s reply included the following:

“It is clear from the aforementioned memorandum that the Ministry of the Interior, on the basis of its own requirements, may directly allocate places in favour of beneficiaries of international protection in the reception facilities that are part of the SPRAR network.

Accordingly, the message of 7 January 2014 of the Servizio centrale, which is running the SPRAR network, constitutes in itself confirmation of the reservation in the reception project in favour of the applicant and her son, without further confirmation being necessary.”


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

The applicant in both cases, Mr Đorđe Ćapin, is a Montenegrin national, who was born in 1963 and lives in Herceg Novi. At the relevant time he was the Director of the Museum and Art Gallery, a public institution. He was also a member of the Executive Committee of the Serb People’s Party (Srpska narodna stranka; hereinafter “SNS”). He was represented before the Court by Mr M. Ivanović, a lawyer practising in Igalo.

The Montenegrin Government (“the Government”) were represented by their Agent, Mr Z. Pažin.

On 24 June 2013 the complaints concerning the applicant’s freedom of expression were communicated to the Government and the remainder of the applications was declared inadmissible.

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

On 22 January 2004 a “Public letter to the artists and writers of Herceg Novi” (Otvoreno pismo hercegnovskim umjetnicima i piscima), signed by M.M., on his own behalf and on behalf of four other artists, was published in some of the printed and electronic media in Montenegro. The letter stated, inter alia, that the applicant, as the Director of the Museum and Art Gallery, had refused an exhibition of an Istria painter in May 2003, as well as, soon afterwards, a programme for the presentation of “The Days of Istria in Herceg Novi”. He had allegedly also attempted to censor an artistic selection for another exhibition, which had made several artists withdraw. In conclusion, it was requested that the art institutions in Herceg Novi be run again “by artists and writers of integrity and reputation and not by semi-skilled culture-agitators and party activists”.

On 6 December 2005 the applicant, apparently as an associate journalist (novinar saradnik) of an opposition weekly magazine “Pokret”, which existed at the time, wrote an article entitled “A special war against Herceg Novi”. The article stated, inter alia, that “the idea about the ‘prohibition’ of the exhibition was [...] elaborated by a group of the so-called ‘prominent Montenegrin intellectuals’ [including M.M.]. [...] Of course, few cared what the ‘prominent Montenegrin intellectuals’ would say, as it was well known that they had to sign whatever nastiness (gadost) they were given to sign, as otherwise they would be neither ‘prominent’ nor ‘Montenegrin’, and they were certainly not intellectuals”.

On 14 December 2005 M.M. filed a private criminal action (privatna krivična tužba) against the applicant for insult (uvreda), claiming that the above-cited statement publicly “belittled him and underestimated his personal and professional values”.

On 29 March 2006 Z.D., as a single judge of the Court of First Instance (Osnovni sud) in Herceg Novi, found the applicant guilty of insult, fined him 1,500 euros (“EUR”), ordered him to pay EUR 50 for the court fees (sudski paušal) and decided that the judgment at issue would be published in “Pokret”. The judgment further specified that if the fine was not paid within three months as of the day when the judgment became final, it would be converted into a prison term, EUR 40 being equal to a day in prison.

The court rejected the applicant’s defence that he could not be held responsible for something he had said as a journalist and without any intention to belittle, and that his statement was merely an opinion provoked by the untrue allegations relating to the refusal of the said exhibition contained in the public letter. The court also considered that the applicant, being also a journalist, must have known that the freedom of expression was restricted by the need to protect the honour and the reputation of others, and should have acted accordingly. It was further held that the public letter was not insulting for the applicant, as it was written in the context of a serious professional criticism of the applicant’s work as the Museum and Art Gallery’s Director, with the aim of protecting interests of greater public importance. The court concluded that the expressions used by the applicant belittled and underestimated M.M.’s personal and professional integrity. In deciding on the amount of the fine, the court took into consideration, inter alia, that the applicant’s insulting statement was given “as a reaction to an earlier insult by the private prosecutor and the others”.

On 22 June 2006 the High Court (Viši sud) in Podgorica upheld the decision that the applicant was guilty of insult and at the same time reduced the fine to EUR 600. It was reaffirmed that the fine, if not paid, would be converted into a prison sentence.

On an unspecified date thereafter the fine was allegedly paid by the SNS, following a decision of the SNS President to that effect.

On 30 December 2006 the Court of First Instance in Herceg Novi issued a decision converting the fine into 15 days of imprisonment as it had apparently not been paid within the specified time-limit. The applicant did not file an appeal against this decision. It would also appear that he has not served a prison sentence.

The applicant maintained in his submissions to the Court that a number of the court documents had not been served on him properly and in a timely manner. The Government, for their part, submitted a copy of the delivery slips signed by the applicant and his representative in the domestic proceedings confirming that the High Court judgment was served on them on 11 July 2006 and 12 July 2006 respectively.

On 31 March 2006 one of the Montenegrin daily newspapers published an article entitled “Ćapin: SDP wants to move me out of Montenegro” (“Ćapin: SDP hoće da me iseli iz Crne Gore”). The article contained the SNS’s comments on the first-instance judgment rendered by Z.D. in the first set of criminal proceedings against the applicant. It continued with the applicant’s comment, part of which read as follows: “The Social Democratic Party of Montenegro filed three complaints (prijave) with the court in Herceg Novi against me as an associate journalist of “Pokret”. [The complaints] have been processed as a priority (preko reda) even though the [court] has a backlog of 8,000 unresolved cases. This time, due to loyalty to the party (po partijskoj dužnosti), everything had to be done as a priority. A hearing was scheduled in a particularly short period. One such trial was held two days ago and it resembled the proceedings before a court martial (prijeki sud) rather than regular proceedings. I was fined EUR 1,500 for a publicly expressed opinion which I made as an associate journalist.”

On 11 April 2006 Z.D. filed a private criminal action against the applicant, claiming that the following words, in particular, amounted to defamation: “this time, due to loyalty to the party, everything had to be done as a priority. A hearing was scheduled in a particularly short period. One such trial was held two days ago and it resembled the proceedings before a court martial rather than regular proceedings”.

On 19 August 2009, at the hearing held after a remittal, the applicant stated, inter alia, that as a politician, journalist and a legal representative of the Museum and Art Gallery he had the right to express his personal, political and professional opinions as well as to criticise negative phenomena in society. He stated that he had never mentioned Z.D., although, as a public official, she had a duty to tolerate criticism even when it was not justified. He maintained that the trial against him had been treated as a priority as the judges had first to deal with the older cases. In this regard he referred to a public statement of the President of the Supreme Court that each judge at the court in Herceg Novi had a backlog of 400 cases and that the older cases were priority. The applicant confirmed that several days after the delivery of the judgment in the first set of criminal proceedings he had indeed commented publicly on the work of the court and its dealing with cases which were not priority.

On 20 August 2009 the Court of First Instance in Kotor found the applicant guilty of defamation and fined him EUR 600, which fine could be converted into a prison sentence if it was not paid within three months as of the day when the judgment became final. He was also ordered to pay EUR 50 for the court fees. The court considered that even though the applicant had not mentioned Z.D. personally, it was clear from the text and its context which judge and judgment he had been referring to. The court held that the statement at issue was untrue and that, in particular, the words “due to loyalty to the party”, “in a particularly short period” and “court martial” could harm Z.D.’s personal and professional honour and reputation.

On 17 September 2009 the applicant appealed against this decision. He submitted, in particular, that the court had not taken into consideration either the Convention or the Court’s case-law and that both the private prosecutor and himself, as public officials, had a duty to tolerate a higher level of criticism.

On 22 February 2010 the High Court in Podgorica upheld the first-instance judgment, in substance endorsing the reasons given by the Court of First Instance. The court rejected the applicant’s argument that he had criticised the work of the court in general and not Z.D.

On 18 July 2013 the Constitutional Court upheld the applicant’s constitutional appeal filed on 5 May 2010 and found a violation of Article 10 of the Convention. It quashed the High Court judgment and ordered a re-trial. In doing so, the Constitutional Court held, in particular, that the interference with the applicant’s freedom of expression was not necessary in a democratic society and that the reasoning of the domestic courts was not relevant and sufficient to justify it. The disputed expressions used by the applicant related to the behaviour of Z.D. in her official capacity and not to her private life. In addition, the nature and the level of the fine, which under certain conditions could be replaced by imprisonment, were of particular importance in assessing the proportionality of the interference. The court also ordered that its decision be published in the Official Gazette.

On 16 October 2013 the High Court overturned the judgment of the Court of First Instance of 20 August 2009 and acquitted the applicant given that the defamation had been decriminalised in the meantime (see paragraph 30 below).

The applicant paid the court fees. It would appear that he has never paid the above fine.

On 26 May 2007 the President of the Supreme Court stated that each judge of the Court of First Instance in Herceg Novi was in charge of 300-400 cases, some of which were several years old, and that the older cases (predmeti iz prethodnih godina) should be given priority.

In 2009 the applicant’s salary was 733 EUR per month.

Article 149 provides that the Constitutional Court shall rule on a constitutional appeal lodged in respect of an alleged violation of a human right or freedom guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

The Constitution entered into force on 22 October 2007.

Section 48 provides that a constitutional appeal may be lodged against an individual decision of a State body, an administrative body, a local self-government body or a legal person exercising public authority, for violations of human rights and freedoms guaranteed by the Constitution, after all other effective legal remedies have been exhausted.

Sections 49-59 provide additional details as regards the processing of constitutional appeals. In particular, section 56 provides that when the Constitutional Court finds a violation of a human right or freedom, it shall quash the impugned decision, entirely or partially, and order that the case be re-examined by the same body which rendered the quashed decision.

This Act entered into force in November 2008.

Articles 195 and 196 provided that insult and defamation, respectively, were criminal offences and specified sanctions therefor. These Articles were repealed on 9 July 2011 by virtue of the amendments to the Criminal Code.

Article 39 § 6 provided that if the fine was not paid within the specified time, it would be replaced by a prison sentence, EUR 40 corresponding to a day in prison. This provision was changed by virtue of another set of amendments to the Criminal Code, which entered into force on 1 August 2006, and which provided that EUR 25 corresponded to a day in prison. At the same time a new provision was introduced to the effect that the unpaid fine could also be replaced by work in the public interest (rad u javnom interesu) instead of a prison sentence, EUR 25 corresponding to eight hours of such work.

Section 1 provides, inter alia, that the sanctions for insult and defamation shall not be enforced, the convictions shall be expunged and their legal consequences shall cease.

Section 2 provides that a decision to this effect shall be rendered of its own motion by a court which is in charge of the enforcement of the sanction or upon the request of a convicted person.

This Act entered into force on 23 June 2012.

Sections 151, 206 and 207 of the Obligations Act, taken together, provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his reputation, personal integrity, liberty or of his other personal rights (prava ličnosti) shall be entitled to seek injunctive relief, sue for financial compensation and request other forms of redress “which might be capable” of affording adequate non-pecuniary satisfaction.

Section 166 provides, inter alia, that a legal entity (pravno lice), which includes the State, shall be liable for any damage caused by one of its bodies to a “third person” in the course of performing its functions or related thereto.

This Act entered into force on 15 August 2008.