Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

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

The applicant was born in 1977 and lives in West Drayton.

The applicant claims to have entered the United Kingdom illegally on 18 November 2003 with her son (“S”), who was born on 13 July 2000. On 22 November 2003 S was admitted to hospital with serious injuries.

On 3 December 2003 S became the subject of an interim care order and the applicant was later charged with child cruelty under section 1(1) of the Children and Young Persons Act 1993 and with Grievous Bodily Harm with intent.

On 29 January 2004 the applicant claimed asylum on the basis that if returned to Nigeria she would be killed by the wife of a man who, she alleged, had sexually assaulted her. Her application was rejected by the Secretary of State for the Home Department on 26 April 2004.

On 25 May 2004 the applicant was diagnosed with a psychotic illness and detained in hospital for one week.

In July 2004 the Asylum and Immigration Tribunal dismissed the applicant’s appeal against the refusal of her asylum claim on asylum and human rights grounds, finding, inter alia, that she was not a credible witness.

On 24 August 2004 the applicant pleaded guilty to one count of child cruelty. She was granted bail pending a further hearing set for 7 February 2005. She then absconded for a period of over two years.

In March 2005 a residence order was made in favour of S’s father and the child was returned to Nigeria.

On 14 July 2005 the applicant gave birth to her second child (“M”), who had a different father to S.

On 26 September 2007 the applicant was arrested and charged with possession of false documentation with intent to commit fraud. She was convicted and on 12 December 2007 she was sentenced to nine months’ imprisonment.

On 7 April 2008 the applicant was convicted of child cruelty. Before sentencing the applicant for the offence of child cruelty, the Crown Court asked Dr O, a specialist registrar in forensic psychiatry, to produce a report. The report, which was dated 29 May 2008, indicated that the applicant suffered from a recurrent depressive disorder and emotionally unstable personality disorder. However, at the date of the report her depressive and psychotic symptoms were being managed with medication and therapy, with the result that her mental illness was not considered to be of a nature or degree to warrant treatment either in the prison healthcare wing or in hospital. She did not, therefore, fulfil the criteria for treatment under the Mental Health Act 1983 (“the 1983 Act”).

On 21 July 2008 the applicant was sentenced to twelve months’ imprisonment for the offence of child cruelty. She also pleaded guilty to the offence of failure to surrender to bail and was sentenced to three months’ imprisonment, to be served concurrently. The judge recommended deportation in view of the seriousness of the offences.

On 5 August 2008 the United Kingdom Border Agency decided to deport the applicant. She therefore remained in detention under immigration powers when her criminal sentence ended on 8 August 2008.

On 12 August 2008 the applicant appealed against the decision to deport her. In her notice of appeal she reiterated her claim that she was at risk of being killed in Nigeria and that she had no family connections there. As M had been taken into the care of the local authority and was the subject of care proceedings, she also asserted a right to remain in the United Kingdom until those proceedings had concluded.

On 5 December 2008 the Asylum and Immigration Tribunal dismissed her appeal but found that it would be proportionate to allow her to remain in the United Kingdom for the short period that it would take to complete the care proceedings in respect of M.

The applicant was refused bail on 12 January 2009 and again on 17 March 2009 on the grounds that she could not be relied on to comply with bail conditions, she offered no sureties and she represented a danger to herself and to others.

On 30 April 2009 the applicant obtained a report from Professor K, a medical expert, on her mental health. He agreed with the diagnosis of Dr O and concluded that the applicant was not suitable for compulsory treatment under the 1983 Act as she was not in need of in-patient psychiatric care and her mental health needs could be met in the community. She was taking medication and if necessary could be admitted to hospital on a voluntary basis. Professor K did, however, note that the applicant’s mental health was likely to deteriorate in response to continued detention, although it should improve in response to release in the community.

Bail was again refused by the authorities on 1 June 2009 in view of the risk of the applicant once again absconding.

On 19 June 2009 the applicant made representations requesting that the decision to deport be reversed or, alternatively, that the representations be treated as a fresh asylum claim pursuant to the relevant immigration rules. In these representations the applicant claimed that she faced a real risk of treatment contrary to Articles 3 and 8 of the Convention if she were deported to Nigeria due to her mental health status and the poor standard of treatment facilities in the destination country. Additionally, the applicant claimed that her family life with M would be irrevocably disrupted.

On 25 June 2009 a judge in the Family Court made a care and placement order in respect of M. In concluding that the threshold criteria were met, he stated that:

“I am satisfied the evidence supports a finding of likelihood, that is to say a real possibility, of harm to [M], founded on [S’s] grave injuries; the previous court’s findings in respect of those; the mother’s mental history; her plea to a seriously abusive offence against [S]; her absenting herself from the care and the criminal processes; the social and practical vulnerability produced by the parties’ lack of immigration status; and their criminal offending, with its practical consequences for their availability to [M]. I am satisfied the matters I have outlined placed [M], at the relevant time, at significant risk of physical and emotional harm.”

Following the decision of the Family Court, on 21 September 2009 Professor K prepared a further report. He noted that the applicant’s mental state had deteriorated considerably since he last saw her as she was more depressed and more floridly psychotic. She was also experiencing sideeffects from the medication she was taking. Between May 2009 and September 2009 she had fought with another detainee, sustained injuries while being restrained, ingested washing powder, attempted to tie a ligature around her neck, stolen food from other detainees and smashed things in her room. Professor K considered that the deterioration in her mental health was largely due to her continued immigration detention. He expressed the opinion that the applicant would now benefit from hospital assessment and treatment and recommended her transfer under the provisions of section 48 of the 1983 Act.

On 10 October 2009 Professor K gave an opinion that the applicant was not fit to act as a litigant. He reiterated that she should be transferred to hospital under section 48 the 1983 Act. However, a transfer to a mental health hospital required the agreement of two clinicians responsible for a patient’s care. The applicant was not transferred as there was no agreement about whether she fulfilled the relevant criteria.

On 8 December 2009 the United Kingdom authorities contacted the responsible clinicians to request another mental health assessment of the applicant. However, the clinicians indicated that a further assessment was unnecessary as she had had four assessments already. The applicant was seen by the General Practitioner in the Immigration Removal Centre, who was satisfied that the medication being prescribed was best suited to her mental health situation and confirmed that there was no merit in arranging a further psychiatric assessment.

On 14 December 2009, following what the Court of Appeal described as a “lengthy delay” the Secretary of State refused to treat the applicant’s representations as a fresh claim for asylum. Further similar representations led to a further decision on 26 April 2010 in which the Secretary of State maintained that the conditions for a fresh claim were not met.

On 16 December 2009 the applicant lodged a judicial review claim challenging the lawfulness of her detention and the failure to transfer her to a mental hospital for compulsory treatment. She then added a further challenge to the refusal to treat her representations as a fresh claim for asylum. She was represented in these proceedings by the Official Solicitor as she lacked capacity to conduct the litigation on her own behalf.

In or around February 2010 the applicant was admitted to the Acute Assessment Wing of a hospital after attempting suicide.

Around this time Professor K examined the applicant once more and produced a report dated 1 March 2010. He noted that her condition had deteriorated due to her continued detention; she was more depressed, was describing mood-congruent auditory hallucinations, and continued to make multiple attempts to self-harm. He once again expressed the view that she should be transferred to hospital for compulsory treatment under section 48 of the 1983 Act.

While the applicant was in hospital she was examined by a nurse. She assessed the applicant’s risk of harming children as grade three on a scale of zero to three. She was also at a risk of suicide, deliberate self-harm and other offending behaviour at grade two. This gave the applicant a summary risk to herself of two and to others of three. Although the nurse noted that the applicant’s mood had improved since 1 March 2010, she still considered that she had ongoing and enduring mental health problems and that her needs could not adequately be met in Yarl’s Wood Immigration Removal Centre.

The applicant was readmitted to the Acute Assessment Wing on 12 March 2010, following a further attempt to self-harm.

On 15 March 2010 the applicant was assessed by Dr R, a consultant psychiatrist, Dr S, Acting Consultant for the Crisis Team, and Dr I of General Adult Psychiatry. They noted that she displayed a tendency to act impulsively and without consideration of the consequences. She also had a tendency to self-harm and exhibited behaviour which could be interpreted as suicidal. Furthermore, they considered her to be in an extremely stressful situation, given her detention and the ongoing care proceedings. In view of these considerations, they concluded that the applicant remained at very high risk due to her impulsivity and unpredictability. Although that risk could only be contained by constant supervision, this need could be met at Yarl’s Wood. Hospital admission would not provide management different to that.

The applicant was accordingly discharged back to Yarl’s Wood.

On 23 March 2010 Professor K considered Dr R’s report along with other materials. He agreed that the applicant was at high risk of suicide, but considered that this required not only constant supervision but also treatment of the underlying problem, which would be more appropriately managed therapeutically in a hospital setting. He further noted that other doctors had recommended psychological intervention in a secure in-patient setting.

Throughout the applicant’s detention, monthly detention reviews were carried out. During these reviews any change in circumstances was recorded, the likelihood of removal within a reasonable time was considered, and a proposal was made with regard to whether detention should be maintained.

Permission for the applicant’s first judicial review challenge was granted on 14 May 2010 and the hearing took place on 22 and 23 July 2010.

On 13 August 2010 the judicial review application was dismissed by a High Court judge, who found that while the Secretary of State had failed to take into account paragraph 55.10 of her own policy, Enforcement Instructions and Guidance (see paragraphs 58-63 below), when considering the justification for the applicant’s detention between 8 August 2008 and 28 April 2010 (“the first period of detention”), that failure had not caused any damage since the decision to detain would have been the same even had the policy been correctly considered and applied. The judge therefore dismissed the claim for false imprisonment.

The judge found that the policy had been taken into account from 29 April 2010 up to the date of the hearing on 22 July 2010 (“the second period of detention”). He therefore found that continuing detention was lawful during this second period. The judge also rejected submissions that the period of detention had become unreasonable and unlawful under the principles set out in R v. Governor of Durham Prison, ex parte Hardial Singh [1974] 1 WLR 704 (“the Hardial Singh principles”) (see paragraph 54 below). In this regard, he noted that, taking an analytical approach to each of the periods of detention following 8 August 2008, the applicant’s detention was explicable by steps she had taken, or failed to take (for example, cooperation in relation to emergency travel documents, and the conflicting advice in the hands of the authorities as to the effect of detention on her mental condition and the possibility of treating it while in detention). In relation to the applicant’s own conduct, the judge noted that:

“It is clear from the Hardial Singh principles that obstacles to the Claimant’s removal caused by the Claimant’s conduct do not count in the formula. The initial conduct of the Claimant was her commission of the offence on her son. Relevant to the decision to deport and to detain pending deportation were her conviction for absconding and her conviction for fraud. The Claimant’s utilisation of the rights available under the legislation to challenge the Defendant’s decisions allowed her to remain in the UK. In a sense she is rightfully in the United Kingdom while these processes unwind. On the other hand, they are of her choosing since she could repatriate herself voluntarily to Nigeria. Put neutrally as the authorities do, without tendentious issues such as fault, it is her conduct which has caused her to be here. She appealed asylum and deportation decisions, engaged at some stages in the family proceedings and issued a purported fresh claim and judicial review.”

With regard to the Secretary of State’s refusal to accept the applicant’s representations as a fresh claim, the judge found that the further representations were not “significantly different” from material that had already been considered. Further, and in any event, the judge found that there was no Article 3 issue within the meaning of N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008 and that any interference with the applicant’s rights under Article 8 § 1 was justified under sub-paragraph 2.

The applicant appealed to the Court of Appeal against the dismissal of her judicial review claim on 13 August 2010. Permission was granted in light of the recent judgment of 23 March 2011 by the Supreme Court in R (Walumba Lumba and Kadian Mighty) v. Secretary of State for the Home Department [2011] UKSC 12 (“Lumba and Mighty”) (see paragraphs 64-65 below), in which the application by the Secretary of State of a “secret policy” in respect of immigration detention was held to be unlawful in violation of public law principles.

On 31 August 2010 the applicant applied for assisted return to Nigeria under the Facilitated Reintegration Scheme (a scheme under which financial incentives are provided for a voluntary return by an individual to his or her country of nationality) but the application was refused.

The applicant was served with a deportation order on 25 November 2010. Although she submitted further representations for a fresh asylum and human rights claim the immigration authorities refused to revoke the deportation order. The immigration authorities also declined to give her a further statutory appeal right in relation to that decision and removal directions were set for 27 January 2011. The applicant challenged this decision by way of judicial review and obtained an injunction preventing removal until this judicial review claim had been determined.

On 6 July 2011, shortly before the Court of Appeal hearing, the applicant was released on bail by the Asylum and Immigration Tribunal.

At the court hearing, the Secretary of State conceded that following the decision of the Supreme Court in Lumba and Mighty the applicant’s detention between 8 August 2008 and 28 April 2010 had been unlawful on account of a failure to consider the guidance on detention of mentally ill persons in the published policy on immigration detention (see paragraphs 5863 below). As a result, on 28 July 2011 the Court of Appeal allowed the applicant’s appeal against the High Court’s judgment. However, as the Secretary of State had continued to detain the applicant after the relevant policy had been taken into account (from 29 April 2010 onwards), the court was satisfied that she would have been detained during the earlier period even if the policy had been considered. Moreover, having assessed all the evidence in the case – in particular, the risk of the applicant reoffending, self-harming, or absconding –Despite the concerns over her mental health, the balance of expert advice was that her needs could be managed appropriately in detention. It therefore concluded that not only would the applicant have been detained during this period, but that she could have been detained lawfully.

With regard to the Hardial Singh principles, the court did not consider that the period of detention had become unreasonable by the date of the hearing before the judge, either on account of its length or because it should have been apparent that it would not be possible to effect deportation within a reasonable period. On the contrary, the court considered that deportation within a reasonable period had remained a sufficient prospect at every stage. In this regard, it noted that there was no external barrier to removal and no case-specific problem such as the absence of travel documentation. The only intermittent delaying factor was the applicant’s legal challenges but that did not oblige a finding that the prospects of removal were fanciful. Although it accepted that the Secretary of State could have responded sooner to the “fresh claim” representations, the “lengthy delay” only had a minor effect overall and did not constitute a failure to act with due diligence.

Finally, in relation to the Secretary of State’s refusal to treat the new representations as a fresh claim, the court found that he had been entitled to reach the conclusion he did.

Consequently, the court awarded the applicant nominal damages of GBP 1 in relation to the period which had been conceded to be unlawful. Permission to appeal was refused by the Supreme Court on 7 February 2012.

The applicant succeeded in quashing the decision not to give her a further statutory appeal right in relation to the decision to refuse to revoke the deportation order in light of the second set of representations for a further fresh claim (see paragraph 43 above). This case is now being reconsidered by the authorities in light of all the current circumstances.

In the meantime, the applicant has brought further judicial review claims (not related to the present application). She has also been litigating in the Family Court and is bringing a personal injury claim against the immigration authorities.

By the end of July 2010 contact between the applicant and M had been limited to two hours every two months with a view to further reduction and the prospect of a goodbye meeting once the applicant was deported or M adopted. However, the local authority subsequently agreed not to proceed with adoption and instead opted for long-term fostering for M. The applicant had her first contact with M in July 2012 and the local authority have agreed to further contact every three months.


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions)

Angelika Nußberger;Branko Lubarda;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Iulia Motoc;Julia Laffranque;Linos-Alexandre Sicilianos;Mārtiņš Mits;Nebojša Vučinić;Paul Lemmens;Robert Spano;Síofra O’Leary;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Georges Ravarani;Ksenija Turković;Pere Pastor Vilanova

The applicants live in Stobreč (application no. 37685/10) and Split (application no. 22768/12). Their names and dates of birth are set out in the Appendix.

The legislation of the former Yugoslavia, in particular section 29 of the 1980 Basic Property Act (see paragraph 53 below), prohibited the acquisition of ownership of socially owned property by adverse possession (dosjelost).

When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed the above-mentioned provision (see paragraph 54 below).

Subsequently, the new Property Act of 1996, which entered into force on 1 January 1997, provided in section 388(4) that the period prior to 8 October 1991 was to be included in calculating the time-limit necessary for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 56 below).

Following several petitions for an abstract constitutional review (prijedlog za ocjenu ustavnosti) submitted by former owners of properties that had been appropriated under the socialist regime, on 8 July 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the initiative and decided to institute proceedings to review the constitutionality of section 388(4) of the 1996 Property Act.

In a decision of 17 November 1999 the Constitutional Court invalidated with ex nunc effect section 388(4) of the 1996 Property Act. It held that the impugned provision had retroactive effect resulting in adverse consequences for the rights of third parties (primarily those who, under the restitution legislation, were entitled to the restitution of property appropriated during the Communist regime) and was therefore unconstitutional (for the relevant part of the Constitutional Court’s decision see Trgo v. Croatia, no. 35298/04, § 17, 11 June 2009). The Constitutional Court’s decision came into effect on 14 December 1999 when it was published in the Official Gazette.

On 19 April 2002 the applicants brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against Split Township (Grad Split – hereinafter “the respondent authority”) seeking a declaration of their ownership of five plots of land and registration in their names in the land register. They submitted that the property at issue, even though it had been recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township, had been in their possession and the possession of their predecessors for more than seventy years. Given that the statutory period for acquiring ownership by adverse possession had elapsed, the applicants claimed to have acquired ownership of the land. Their statement of claim (tužba) read as follows:

“Plots of land nos. 866/91 (...), 866/117 (...), 866/136 (...) and 866/175 ... are registered in the name of the Stobreč Municipality.

EVIDENCE: Extract from the land register.

However, the plaintiffs and their legal predecessors have been holding the above-mentioned immovable property in their possession for more than 70 years, and thereby acquired the ownership of that immovable property.

EVIDENCE: Extract from the cadastre, testimony of the witness N.P., parties’ testimonies and other evidence, if needed.

(a) [...]

(b) Plot no. 866/136 belongs to the plaintiffs Mladen Radomilja and Frane Radomilja in two equal parts;

(c) Plot no. 866/175 belongs to the plaintiff Ivan Brčić in its entirety.

EVIDENCE: See above

For these reasons it is proposed that the court, after having conducted the proceedings, adopt the following

Judgment

It is [hereby] established that the plaintiffs are the owners and co-owners, respectively, of the [following] immovable property ... and therefore:

(a) [...]

(b) Plot no. 866/136 Mladen Radomilja and Frane Radomilja in two equal parts;

(c) Plot no. 866/175 Ivan Brčić in its entirety

The plaintiffs are, on the basis of this judgment, entitled to seek and obtain registration in their name of the right of ownership and co-ownership, respectively, of the immovable property listed in point 1 of this judgment in the land register, as well as concurrent deletion of that right as registered to date in the name of the respondent authority’s legal predecessor, the Stobreč Municipality.

The respondent authority shall, if it opposes the action, reimburse the plaintiffs for the costs of these proceedings.”

By a judgment of 20 September 2004 the Municipal Court ruled in favour of the applicants. It held that they had proved that they and their predecessors had had continuous and exclusive possession of the land in question since at least 1912 and in good faith. Furthermore, it held that the statutory period for acquiring ownership by adverse possession at the relevant time had been twenty years. Consequently, in the applicants’ case that period had elapsed in 1932. The relevant part of that judgment reads:

“In the statement of claim it is submitted ... that the plaintiffs and their predecessors had been in possession of the immovable property [in question] for more than 70 years and that they had thereby acquired ownership of that property by adverse possession.

The plaintiffs base their claim on ... adverse possession. [E]ven if they do not expressly state it, the facts alleged in their statement of claim suggest that they maintain that the requirements for acquiring ownership by adverse possession had been met before 6 April 1941. This means that it was necessary to establish whether the requirements prescribed by the ... laws and other regulations in force at the time were met.

In the opinion of this court, because of changed economic and social circumstances, the time-limits for acquiring title to property by adverse possession prescribed by ... laws and other regulations in force on 6 April 1941 do not correspond to the principle of protection of legitimate interests of individuals, long-term possessors in good faith, or to the principle of legal certainty. [The court] therefore considers that the period of 20 years is required and sufficient to acquire ownership of immovable property by adverse possession.”

In its appeal the respondent authority emphasised that the applicants could not have become the owners of the property in question because prior to 8 October 1991 it had been prohibited to acquire ownership of socially owned property by adverse possession, and that the lifting of that prohibition had not had retroactive effect (see paragraphs 11-15 above). In their reply the applicants responded that it was undisputed that they had been in exclusive possession of the property since the beginning of the twentieth century and thus for more than thirty years even before 6 April 1941.

In a judgment of 17 May 2007 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It held that the Municipal Court had established the facts correctly (continuous and exclusive possession of the land in good faith since 1912) but had erred in its application of the substantive law. It established, firstly, that the land in question had been in social ownership on 8 October 1991 and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by 6 April 1941 (see paragraphs 48, 53-54, 57 and 59-60 below). However, those requirements had not been met in the applicants’ case. That was so because under Article 1472 of the 1811 Civil Code (which was applicable in Croatia from 1852 until 1980, see paragraphs 47-49 and 51 below) immovable property owned by municipal authorities could be acquired by adverse possession only after forty years. However, having regard to the factual findings of the first-instance court, according to which the applicants and their predecessors had possessed the land at issue since 1912 (see paragraph 17 above), that time-limit had not expired before 6 April 1941. The relevant part of that judgment reads:

“In calculating the time-limit for acquiring by adverse possession immovable property socially owned on 8 October 1991, the period ... before 8 October 1991 is not to be taken into account because before that date section 29 of the Act on Basic Ownership Relations Act expressly prohibited acquiring ownership of socially owned property by adverse possession. Even though [that] provision was repealed by section 3 of the Act on the Incorporation of the Basic Ownership Relations Act, it is because of that prior express statutory prohibition that the time elapsed before that date cannot be taken into account in calculating the time-limit necessary for acquiring ownership by adverse possession of immovable property socially owned on 8 October 1991, unless [that] time-limit had elapsed before 6 April 1941 under the regulations in force at the time.”

The applicants then, on 23 July 2007, lodged a constitutional complaint against the second-instance judgment alleging infringements of their constitutional rights to equality before the law, equality before the courts and fair procedure. In their constitutional complaint they stated, inter alia:

“... according to the findings in the contested judgment the plaintiffs ... have been in continuous exclusive possession from 1912 until the present day in good faith. ... The case therefore concerns [such] possession in the period of 90 years before the bringing of the civil action.

... In the instant case the court did not apply the cited provisions even though the plaintiffs’ predecessors had possessed [the property in question] since at least the beginning of the twentieth century and their possession had been continuous until the bringing of the civil action and lasts until the present day.

If the view that the property in question was socially owned on 8 October 1991 is to be accepted, even though in the land register it was not registered as such in accordance with the [relevant regulations concerning registration of the property in the State and social ownership], then it was, in accordance with the cited statutory provisions, necessary to take into account the entire period of possession until the bringing of the civil action, except [the period] between 6 April 1941 and 8 October 1991.”

In a decision of 30 September 2009 the Constitutional Court dismissed the applicants’ constitutional complaint and on 19 November 2009 it served its decision on their representative. The relevant part of that decision reads:

“Only those facts on the existence of which depends the assessment of a violation of a constitutional right are relevant for the Constitutional Court.

In the civil proceedings ... it was established that ... the complainants ... had been in continuous exclusive possession of the disputed property since at least 1912 and in good faith.

In the reasoning of its judgment the second-instance court notes that the case concerns immovable property which was socially owned on 8 October 1991 and that, in calculating the time-limit necessary for acquiring ownership by adverse possession of [such] property, the time which elapsed before that date cannot be taken into account.

In the examination of the constitutional complaint ... one has to take note of the fact that section 388(4) of the 1996 Property Act was invalidated by the Constitutional Court’s decision of [17 November 1999] ... [I]n that decision the Constitutional Court held that possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time-limit for acquiring ownership by adverse possession. Given that the time-limit for acquiring ownership of property socially owned on 8 October 1991, did not run in the period between 6 April 1941 and 8 October 1991 (which view the Constitutional Court expressed in the decision UIII1595/2006 of 5 February 2009), the court finds that the legal views expressed in the contested judgment of the County Court are based on a constitutionally acceptable interpretation and application of the relevant substantive law.”

On 25 May 1993, 21 February 1996 and 20 July 1999 respectively, the applicants bought three plots of land from various individuals. However, the plots were recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township.

On 4 April 2002 the applicants brought a civil action in the Split Municipal Court against Split Township, seeking a declaration of their ownership of the three plots of land and registration in their names in the land register. They submitted that the property at issue, even though it had been recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township, had been in the possession of their legal predecessors for more than 100 years. Given that the statutory period for acquiring ownership by adverse possession had elapsed in respect of their legal predecessors, the applicants claimed that by buying the land from them they had validly acquired ownership. Their statement of claim read as follows:

“The plaintiffs together, each in one half, bought from R.K. and M.K. ... the plots of land no. 866/34 (...) ... from T.F. ... the plot of land no. 866/59 (...), ... and from M.S. ... the plot of land no. 866/35 (...) ...

EVIDENCE: [The three sale and purchase agreements between the plaintiffs and the above mentioned individuals]

The plaintiffs immediately, upon the conclusion of the above sale and purchase agreements entered into possession of all the immovable property listed above. They remained in possession of it until the present day. After the [relevant tax authority ordered them to pay tax] they paid it.

EVIDENCE: Tax payment receipt

Witness testimonies of R.K., M.K., T.F., and M.S. ...

All the above-mentioned immovable property is registered in the land register in the name of the Stobreč Municipality even though the vendors in the enclosed [sale purchase] agreements and their legal predecessors have been in possession of that immovable property for more than 100 years, which means that they acquired ownership of that immovable property by adverse possession.

EVIDENCE: Extract from the land register;

Witness testimonies of R.K., M.K., T.F., and M.S., ... ; and

other evidence, if needed.

Given that the vendors were non-registered owners of the above-mentioned immovable property, they have by the sale purchase agreements transferred their right of ownership to the plaintiffs as buyers. [In this way] the plaintiffs, through their legal predecessors, acquired ownership of the plots nos. 866/34 (...), 866/59 (...) and 866/35 (...) ...

EVIDENCE: See above.

For these reasons it is proposed that the court adopt the following

Judgment

It is [hereby] established that the plaintiffs Jakov Jakeljić and Ivica Jakeljić are the co-owners, each in one half, of the plots nos. 866/34, 866/59 and 866/35 ...

The respondent authority shall within 15 days, on pain of enforcement, provide the plaintiffs with the document containing clausula intabulandi necessary to record the right of ownership in the land register and delete that right as registered to date in the name of the respondent authority’s legal predecessor, the Stobreč Municipality. Otherwise, this judgment shall replace [such document].

The respondent authority shall, within 15 days, on pain of enforcement, reimburse the plaintiffs for the costs of these proceedings.”

In the response to the applicants’ action the respondent authority submitted that the property in question had been in social ownership and that, having regard to the Constitutional Court’s decision invalidating section 388(4) of the 1996 Property Act (see paragraph 15 above), the fact of possessing socially owned property before 8 October 1991 could not be taken into account in calculating the time-limit for adverse possession. The applicants replied that the Constitutional Court’s decision to which the respondent authority had referred was of no relevance for the resolution of the dispute.

In a judgment of 19 December 2002 the Municipal Court ruled in favour of the applicants. However, following an appeal lodged by the respondent authority, that judgment was quashed on 2 March 2006 by the Osijek County Court (Županijski sud u Osijeku) on procedural grounds.

In the resumed proceedings, by a judgment of 1 June 2007, the Split Municipal Court again ruled in favour of the applicants. It established, firstly, that the land in question had been in social ownership on 8 October 1991 and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by 6 April 1941 (see paragraphs 48, 52 and 59-60 below). It found, however, that the applicants had proved that their predecessors had had continuous and exclusive possession of the three plots of land in good faith for more than forty years before 6 April 1941, and had continued to do so until they had sold them to the applicants (see paragraph 22 above). The applicants’ predecessors had therefore, under Article 1472 of the 1811 Civil Code (applicable in Croatia from 1852 until 1980, see paragraphs 47-49 and 51 below), acquired ownership of the land by adverse possession even before that date. The relevant part of that judgment reads as follows:

“In the response to the action the respondent denied the claim because the property in question had been [in] social ownership and because, pursuant to the Constitutional Court’s decision invalidating section 388(4) of the [1996 Property Act], possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time-limit for acquiring title to property by adverse possession.

Given that the action was brought in 2002, that in the land register the right of ownership is registered in the name of the Stobreč Municipality, that section 388(4) of the [1996 Property Act] was invalidated by the Constitutional Court’s decision of 17 November 1999 – which means that the fact of possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time necessary for adverse possession – ... the plaintiffs and their predecessors could not have acquired ownership before 1991 unless they manage to prove that they had acquired [it] by adverse possession before 6 April 1941. The plaintiffs’ action evidently relies precisely on that. Therefore, since [for the court] it is beyond dispute that the plot in question had been socially owned on 8 October 1991 ... in order to determine whether it had been acquired by adverse possession it had to be established whether the plaintiffs’ legal predecessors had been in possession of certain quality of the disputed property before 6 April 1941 and thus for the period prescribed for adverse possession by the rules applicable at the time.”

In their appeal the respondent authority emphasised that the applicants could not have become the owners of the property in question because prior to 8 October 1991 it had been prohibited to acquire ownership of socially owned property by adverse possession unless the ownership had been acquired in that manner before 6 April 1941. The respondent authority claimed that the lifting of that prohibition had not had retroactive effect (see paragraphs 11-15 above). In their reply the applicants retorted that it was undisputed that they had been in exclusive and continuous possession of the property in good faith for more than a hundred years and that they had in any event acquired ownership thereof by adverse possession, having possessed it for more than forty years before 6 April 1941.

In a judgment of 29 May 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It found that the applicants’ predecessors had only been in possession of the land in question (continuously and in good faith) since 1912. The forty-year time-limit for acquiring ownership by adverse possession set out in Article 1472 of the 1811 Civil Code had not therefore expired by 6 April 1941 (see paragraph 51 below). In the subsequent period between 6 April 1941 and 8 October 1991 the relevant legislation had prohibited the acquisition of ownership of socially owned property by adverse possession (see paragraph 11 above and paragraphs 52-53 below). This had discontinued the running of the statutory time-limits. The time which had elapsed before 6 April 1941 had therefore not continued to run after 8 October 1991 – it had actually started to run again. The relevant part of that judgment reads:

“In calculating the time-limit for acquiring by adverse possession immovable property socially owned on 8 October 1991, the period ... before 8 October 1991 is not to be taken into account because before that date section 29 of the Basic Ownership Relations Act expressly prohibited acquiring ownership of socially owned property by adverse possession. Even though [that] provision was repealed by section 3 of the Incorporation of the Basic Ownership Relations Act, it is because of that prior express statutory prohibition that the time which elapsed before that date cannot be taken into account in calculating the time-limit necessary for acquiring ownership by adverse possession of immovable property socially owned on 8 October 1991, unless [that] time-limit had elapsed before 6 April 1941 under the regulations in force at the time.”

The applicants then, on 1 August 2008, lodged a constitutional complaint against the second-instance judgment, alleging violations of their constitutional rights to equality before the law, equality before the courts and fair procedure. In their constitutional complaint they, inter alia, stated:

“Therefore, from the legal and factual situation where, as in the instant case, the plaintiffs have, themselves and through their predecessors, indisputably been in possession in good faith of the property in question for more than 100 years, and viewing such situation in the light of Croatian law in force, ... it follows that it is necessary to ... quash the contested judgment and remit the case ...

... by not taking into account the entire period of possession of the property at issue before the bringing of the civil action the court misapplied the substantive law and thereby violated constitutional rights relied on by the plaintiffs.”

In a decision of 15 September 2011, the Constitutional Court dismissed their constitutional complaint and on 4 October 2011 it served its decision on their representative. The relevant part of that decision reads:

In the reasoning of its judgment the second-instance court notes that the case concerns immovable property which was socially owned on 8 October 1991 and that in calculating the time-limit necessary for acquiring ownership by adverse possession of [such] property the time which elapsed before that date cannot be taken into account.

In the examination of the constitutional complaint ... the Constitutional Court notes that section 388(4) of the 1996 Property Act was invalidated by the Constitutional Court’s decision of [17 November 1999] ... [I]n that decision the Constitutional Court held that possessing socially owned property in the period before 8 October 1991 could not be taken into account in calculating the time-limit for acquiring ownership by adverse possession. Given that the time-limit for acquiring ownership of property socially owned on 8 October 1991 did not run in the period between 6 April 1941 and 8 October 1991 (which view the Constitutional Court expressed in decision UIII1595/2006 of 5 February 2009), the court finds that the legal views expressed in the contested judgment of the County Court are based on a constitutionally acceptable interpretation and application of the relevant substantive law.”

In the proceedings before the Chamber the applicants complained that the Split County Court judgments in their cases were in breach of their rights guaranteed by Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention.

The relevant part of the application forms in both cases reads as follows:


Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Kazakhstan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5+5-5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) (Article 5 - Right to liberty and security;Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström

The applicant was born in 1980 and is detained in Atyrau, Kazakhstan.

According to the applicant’s submissions, he left Kazakhstan in 2008 and lived in Saudi Arabia and Syria as a student until June 2011. He did not wish to return to his country as a number of people had been detained on charges of religious extremism in Kazakhstan and some of his friends had left the country after coming under pressure from the Kazakhstan government because of their political and religious identity.

In June 2011 the applicant arrived in Turkey. The Government submitted that subsequent to his arrival in Turkey, two entry bans were issued against him on the grounds that he was suspected of having provided logistical support to foreign nationals who were engaged in international terrorism.

On an unspecified date the applicant was taken into police custody and thereafter transferred to the Kumkapı Foreigners’ Removal Centre with a view to his removal to Kazakhstan. As the applicant applied for asylum while in detention, on 28 October 2011 he was released pending the determination of his asylum application. On the same day he was notified that he should go and reside in Denizli province.

On 4 November 2011 the applicant lodged his asylum application again – this time with the Denizli Governor’s Office. On the same day a police officer from Denizli Security Headquarters held a preliminary interview with the applicant. The applicant stated that he had learned that he was being sought for by the Kazakhstan authorities on terrorism charges and asked to be granted leave to stay in Turkey. He submitted that his removal to Kazakhstan would expose him to a risk of death. According to a report dated 22 November 2011 concerning the applicant’s interview of 4 November 2011, the interpreter who was appointed by the police authorities noted that the applicant spoke Turkish.

On 28 November 2011 the applicant was notified that his asylum application had been rejected. According to the report of 22 November 2011, the police officer who had interviewed the applicant found that the latter had failed to submit any concrete evidence concerning his nationality, identity and the problems he had experienced in Kazakhstan. The officer, however, found it established that the applicant feared to be returned to his country and that it was known to the Turkish authorities that he would be prosecuted if returned to Kazakhstan.

On 29 November 2011 the applicant objected to the rejection of his asylum application. He once again submitted that he would be exposed to a real risk of death if he were to be removed to Kazakhstan.

According to the Government’s submissions, on 26 December 2011 his objection was dismissed.

On 12 January 2012 the applicant lodged an application to be allowed to leave Turkey with the Denizli Security Headquarters and informed the police that he had been offered a visa to enter and live in Egypt.

On 18 January 2012 the police authorised the applicant to leave the country.

According to a document dated 6 January 2012 sent by the Deputy Director of the General Police Headquarters to a number of police authorities, during a meeting held on 4 January 2012 the ambassador of Kazakhstan in Ankara requested the Turkish Interior Minister to extradite Kazakhstan nationals who had been involved in terrorist acts and in respect of whom Kazakhstan had issued wanted notices (“Red Notices”) via Interpol. A formal extradition request in respect of such persons was submitted by the Kazakhstan embassy in Ankara to the Ministry of Foreign Affairs on 31 December 2011. According to the document prepared by the embassy, the applicant and four other persons were members of the “Islamic Jihad Union”, a terrorist organisation which carried out terrorist attacks in the western region of Kazakhstan. They had been detained by the Turkish authorities upon receipt of a Red Notice via Interpol by Kazakhstan. The embassy pointed out that subsequent to their asylum claims, four of those persons, including the applicant, had been released from detention in Turkey. The Kazakhstan authorities considered that these five persons had been in the process of preparing a new terrorist attack in their country and that following their release four of them had organised a terrorist attack in the Atyrau province of Kazakhstan, in co-operation with another terrorist organisation, Jund al-Khilafa (“Soldiers of the Caliphate”). The embassy accordingly requested the Turkish authorities not to grant asylum to them and to extradite them to Kazakhstan.

On 19 January 2012, while he was waiting at Istanbul Atatürk Airport to board a flight to Egypt, the applicant was taken into police custody on the basis of the extradition request submitted to the Turkish authorities by the Kazakhstan embassy.

On 23 January 2012 the Interpol-Europol department attached to the General Police Headquarters informed the Ministry of Justice and a number of security departments that a Red Notice had been issued by Kazakhstan via Interpol in respect of the applicant on the basis of terrorism-related offences.

On 24 January 2012 the Bakırköy Magistrates Court ordered the applicant’s detention within the context of the extradition proceedings for a period of forty days. The applicant was then placed in detention in Maltepe Prison, in Istanbul.

On 25 January 2012 the applicant lodged a petition with the Bakırköy Assize Court and challenged his detention. In his petition, he stated, inter alia, that a person who would be subjected to torture or other forms of ill-treatment in his country of origin should not be extradited to that country.

On 27 January 2012 the Bakırköy Assize Court dismissed the applicant’s petition challenging his detention.

On 28 February 2012 the Bakırköy Assize Court rejected the extradition request submitted by the Kazakhstan authorities. During the hearing held on the same day the assize court did not find it necessary to appoint an interpreter for the applicant as he spoke Turkish. According to the reasoning contained in the court’s decision, in his defence submissions the applicant had contended that he had been wrongly accused of being a member of alQaeda or Islamic Jihad and had asked the court not to extradite him to Kazakhstan. The Bakırköy Assize Court held that the applicant could not be extradited to Kazakhstan because the charge against him in Kazakhstan fell within the scope of one of the offence categories, precluding extradition, listed in Article 18 § 1 (b) of the Criminal Code, as in force at the material time (see paragraph 30 below). The court also ordered the applicant’s release from detention. The decision of 28 February 2012 became final as no appeal was lodged against it.

On 28 February 2012 the applicant was released from prison but was immediately transferred to the Kumkapı Foreigners’ Removal Centre in Istanbul. According to a document dated 29 February 2012, the applicant was informed that he was being held pending the outcome of the deportation procedure conducted in this respect.

On 7 March 2012 the Deputy Director of General Security ordered the Istanbul Police Headquarters to deport the applicant.

On 12 March 2012, while in detention, the applicant appointed his representatives to undertake the necessary legal and procedural actions on his behalf before the domestic authorities and the Court by way of a issuing a power of attorney before a notary public.

According to the applicant’s submissions, on 21 March 2012, when Mr Yılmaz, one of his representatives, went to the Kumkapı Foreigners’ Removal Centre to meet him, he was orally informed by officers at the centre that the applicant had been deported to Kazakhstan on 12 March 2012.

Upon a request by the applicant’s lawyer, on 31 May 2012 the Istanbul Police Headquarters sent a letter to the applicant’s lawyer informing him that the applicant had been deported to Kazakhstan on 12 March 2012.

In a letter dated 10 May 2014, Mr Yılmaz submitted that the applicant had been remanded in custody and placed in Atyrau Prison upon his return to Kazakhstan. The lawyer stated that he did not have information as to whether the applicant had been subjected to ill-treatment in Kazakhstan given that the applicant’s family members had refrained from answering his questions regarding that matter during their telephone conversations with him.

Between 28 February and 12 March 2012 the applicant was detained at the Kumkapı Foreigners’ Removal Centre. The applicant claimed that the centre had been overcrowded at the time of his detention. He had not been allowed exercise outdoors or any other type of social activity throughout his detention. The applicant further alleged that there had been hygiene problems at the centre and that the quantity of the food provided had also been poor.

The Government submitted that the Kumkapı Foreigners’ Removal Centre, where the applicant had been held, had a capacity of 300 persons and that a total of between 100 and 140 persons had been held during the period between 28 February and 12 March 2012. Detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were four dormitory rooms on the first floor, respectively measuring 50, 58, 76 and 84 sq. m. On the second floor there were five dormitories measuring 50, 58, 69, 76 and 84 sq. m. There was a total of 120 bunk beds in the ten rooms reserved for male detainees and all rooms received natural light. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69 sq. m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise if the physical conditions and the number of staff available allowed. A doctor was present on the premises every week and the detainees also had access to medical care in cases of emergency. As for the hygiene in the facility, there were six cleaning staff working full time.