Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicants were born in 1960 and 1970 respectively and live in Split.

The legislation of the former Yugoslavia, in particular section 29 of the 1980 Basic Property Act (see paragraph 25 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When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed the above-mentioned provision (see paragraph 26 below).

Subsequently, the new Property Act of 1996, which entered into force on 1 January 1997, provided that the period prior to 8 October 1991 was to be included in calculating the period for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 28 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.

By a decision of 17 November 1999, the Constitutional Court invalidated 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 decision see Trgo v. Croatia, no. 35298/04, § 17, 11 June 2009). The decision came into effect on 14 December 1999 when it was published in the Official Gazette.

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 (Općinski sud u Splitu) against Split Township (Grad Split – hereinafter “the local authorities”), 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.

By a judgment of 1 June 2007, the Municipal Court 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 19, 25 and 31-32 below). It found, however, that the applicants had proved that their predecessors had had continuous 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 11 above). The applicants’ predecessors had therefore, under Article 1472 of the 1811 Civil Code (applicable in Croatia from 1852 until 1980, see paragraphs 18-20 and 22 below), acquired ownership of the land by adverse possession even before that date.

Following an appeal by the defendant authority, on 29 May 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It stated that even though the Municipal Court had established the facts correctly, 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 forth in Article 1472 of the 1811 Civil Code had not therefore expired by 6 April 1941 (see paragraph 22 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 6 above and 25 below). This had interrupted the running of the statutory time-limits elapsed before that period. The time elapsed before 6 April 1941 had therefore not continued to run after 8 October 1991 – it had actually started to run again.

The applicants then 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.

By 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.


CASE OF CORNEA v. THE REPUBLIC OF MOLDOVA

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

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

The applicant was born in 1956 and lives in Curchi.

At the time of the events the applicant was head of female patient services at the Orhei Psychiatric Hospital. In February 2003 the hospital’s chief physician was suspended from his position – owing to his being the subject of a criminal investigation – and the applicant was appointed to temporarily replace him. Another doctor, V.C., was appointed to temporarily fill the applicant’s former position.

In October 2005 the criminal investigation conducted in respect of the hospital’s chief physician was terminated and, on the basis of a court order, he returned to his position. On 27 October 2005 the hospital ordered the applicant’s transfer to the position of head of female patient services and V.C.’s transfer to the position of an ordinary doctor. On the basis of that order, the applicant took up his initial position of head of female patient services and V.C. returned to being a simple doctor.

On an unspecified date V.C. challenged the order of 27 October 2005 arguing that he had not consented to being removed from the position of head of female patient services. The proceedings lasted until February 2006 during which time the applicant worked as head of female patient services. Nobody informed the applicant about the proceedings.

On 28 February 2006 the Orhei District Court examined the action brought by V.C. without involving the applicant in the proceedings, and upheld it, quashing the hospital’s order of 27 October 2005. V.C. was reinstated in the position of head of female patient services. The applicant learned about the trial after its conclusion and appealed against the judgment. He argued, inter alia, that the judgment was unlawful because he had not been involved in proceedings in which his own rights and interests were clearly affected, relying – inter alia – on Article 360 (1) (b) of the Code of Civil Procedure (see paragraph 14 below). The hospital did not appeal against the judgment but supported the applicant’s position during the proceedings before the Court of Appeal.

On 8 June 2006 the Chişinău Court of Appeal declared the applicant’s appeal inadmissible on the grounds that he had not been a party to the proceedings and had no right to lodge an appeal against the judgment of 28 February 2006. In dismissing his argument quoting Article 360 (1)(b) of the Code of Civil Procedure, the Court of Appeal stated: “[...] the [applicant’s] reference to Article 360 (1)(b) of the Code, which would have entitled him to appeal without having been a party to the proceedings [...], is based on a wrong interpretation of this procedural rule, which cannot be applied in the present case”.

The applicant lodged an appeal on points of law with the Supreme Court of Justice, again relying on Article 360 (1)(b) of the Code of Civil Procedure (see paragraph 14 below).

On 15 November 2006 the Supreme Court of Justice dismissed the applicant’s appeal on points of law after finding that the applicant did not have the right to lodge an appeal against the judgment of 28 February 2006 because his rights and obligations had not been affected by that judgment.

After the above events, the applicant took up a position as an ordinary doctor at the hospital, receiving a salary which was lower than that of the head of section.


András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant, Mr Dorinel Mihai Mucea, is a Romanian national, who was born in 1947 and lives in Bucharest. He was represented before the Court by Ms Diana-Elena Dragomir and Ms R. Chiric, lawyers practising in Bucharest.

The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, of the Ministry of Foreign Affairs.

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

The applicant was a high-level civil servant in the Ministry of Economy and Commerce, who at the time of the events was in charge of the privatisation of numerous State-owned strategic companies in the field of energy, oil and natural resources.

On 8 June 2006 Romanian Intelligence Service (Serviciul Român de Informaţii - “the SRI”) informed the Department for the Investigation of Organised Crime and Terrorism from the prosecutor’s office attached to the High Court of Cassation and Justice (“the High Court”) that the applicant was part of an organised criminal group which included senior government officials and foreign citizens. The group’s purpose was to help foreign companies to illegally acquire ownership of important Romanian State-owned companies which were in the process of privatisation. These accusations were based on information obtained through intercepting the telephone conversations of the members of the group, including the applicant.

The surveillance activity was carried out under Law no. 51/1991 (on the national security of Romania) and started in respect of the applicant on 30 May 2005. This activity had been authorised by a judge of the High Court.

On 21 November 2006 the applicant was charged with treason for the disclosure of State secrets and with creating an organised criminal group.

The criminal investigation and the surveillance of the applicant continued after the above date and on 18 April 2007 the applicant was indicted for the crimes charged, together with nine co-accused.

On 4 September 2007 the applicant’s lawyer sent a letter to the president of the Bucharest Court of Appeal, where his prosecution file had initially been registered, requesting that the transcripts of the intercepted phone conversations for the period between 30 May 2005 and 21 November 2006 should not be accepted as evidence against him since they had been obtained unlawfully. He argued that this part of the surveillance had been conducted before he had been charged with a crime and therefore should not have been accepted as evidence in the proceedings.

At a hearing held on 31 January 2013 before the High Court, where the applicant’s case had been sent for examination, the applicant contested the accuracy of the transcripts of the telephone conversations submitted as evidence in the proceedings. He alleged that there were discrepancies between the originals in English and their translated Romanian versions, discrepancies which implied that he had divulged State secrets when in fact that had not been the case.

On this occasion, the applicant lodged a written request asking the court to order the prosecutor’s office to submit as evidence the audio tapes of all his phone conversations recorded in the course of the investigation. The applicant explained that only a combined analysis of the entirety of his phone conversations in the period in question would prove his innocence. Relying on the provisions of Article 6 of the Convention the domestic court rejected the request considering that the tapes as well as the transcripts of all the phone conversations used as evidence in the case were already in the case file and no additional transcripts were necessary.

At the hearing of 31 October 2013 the High Court also held that the applicant’s allegations concerning the existence of discrepancies in the translation of the phone conversations had been noted and would be taken into consideration in the deliberations.

On 3 December 2013 the High Court convicted the applicant of treason for disclosure of State secrets and of creating an organised criminal group, and sentenced him to six years’ imprisonment.

The applicant appealed against the decision claiming in principal that the information he had indeed transmitted to the co-accused could not be considered a State secret. Quoting extensively from transcripts of his phone conversations submitted as evidence in his case file, the applicant explained that his actions had been in accordance with the law. As regards the interception of his phone conversations the applicant complained of the transcription and translation errors which had changed the true meaning of the discussions. He mentioned that the content of the intercepted phone conversations had not been sufficient to prove his guilt.

At two hearings held before the five-judge panel of the High Court on 17 and 19 December 2014, the applicant’s representatives argued as regards the interception of the applicant’s phone conversations that the transcripts submitted to the case file had discrepancies due to translation errors and that the court of first instance had not quoted them accurately in its judgment.

On 23 December 2014 one of the applicant’s two representatives submitted final written pleadings at the registry of the High Court. They included no mention of the interception of the applicant’s phone conversations.

On 27 January 2015 the High Court convicted the applicant of the crimes of disclosing secret information and creating an organised criminal group, and sentenced him to four years and six months’ imprisonment. The judgment became final.

In a letter to the Court dated 11 March 2008 the applicant complained of the fact that excerpts from his telephone conversations which had been obtained through telephone tapping during criminal surveillance operations had been disclosed to the media by the prosecutors investigating his case during the criminal proceedings against him.

The applicant enclosed with the above letter several copies of newspaper articles which had been published in the national media in May, November and December 2006.

The transcript of a discussion that one of the co-defendants in the applicant’s case had had with journalists during a television news programme on 29 November 2007 on Realitatea TV, a national channel, was also attached. The transcript read as follows:

“[S.]’s network of economic espionage.

The network of [S.S.] severely distorted the Romanian market, damaged Romania’s image abroad and even endangered its accession to the European Union ... In the privatisations case, DIICOT [the Department for the Investigation of Organised Crime and Terrorism] opened an investigation against eight people, all accused of blackmail, treason and complicity in these crimes. ...The Bulgarian citizen [S.S.], an international consultant, was considered the key person in the privatisations case. He is accused of espionage and of organising an espionage network.”

Half an hour later, on the same channel, [M.S.] [one of the co-suspects in the applicant’s case at the time] stated:

“I have not received anything official; I have only heard of the accusations from the media and from you. I am ready to come back to Romania and to contribute to the clarification of the situation, even if these privatisations have been, in my opinion, a success.

[M.S.]’s agenda included the minister of economy, Dorinel Mucea, [M.O.] and [S.S.], the other accused in the case.”

On 21 July 2008 the applicant also sent to the Court excerpts from a television programme broadcast on 17 July 2008 on Antena 3, a national channel. According to the transcript of the discussions as published on the channel’s internet page, several journalists and political analysts presented their opinions on the case in which the applicant was standing trial at the time. The transcript of the programme reads as follows in its relevant parts:

“Daily brief [Sinteza zilei]: The ‘Treason and espionage’ scandal. Is the DNA [the National Anticorruption Department] betraying the President?

The DNA’s decision not to open an investigation into the “treason and espionage” scandal, two and a half years after making announcements about the fight against corruption, was the main topic of the programme Daily Brief on Antena 3. In the mentioned investigation, former ministers [Z.N.] and [C.S.], former ministry advisers Dorinel Mucea and [R.D.] and the Bulgarian consultant [S.S.], had been accused of bribe taking.

The latter was even imprisoned as a result of the mentioned scandal. The political expert Bogdan Teodorescu stated that it had been proved one more time that ‘human rights are carelessly breached in Romania’. ‘These people have their lives in pieces. Who will repair it for them? If the system wants to destroy you it will ...’ said Teodorescu.

Military expert Radu Tudor underlined: ‘DNA prosecutors woke up and understood that they have been used as political lure. There is a report adopted by CSM [the Superior Council of Magistracy] which mentions incredible things. It states that the manner in which investigations are carried out by the DNA is dangerous for the Romanian justice system. DNA prosecutors have brought in some cases charges which could not be found in the criminal code. So, either you are dumb, or you received a political order.’ explained Radu Tudor. ...

Referring to the ‘treason and espionage’ scandal, Radu Tudor mentioned that it was all a lie, because ‘one cannot commit political treason to the advantage of a consultancy company engaged by the Romanian State, for which [S]. also worked.’ The analyst Ion Cristoiu ... also condemned the approach adopted by the media who ran with these stories without verifying all the ‘leaks of information’ from the DNA and used them deliberately to mislead the public ...”

On 10 January 2014, together with his observations on the admissibility and merits of his application, the applicant submitted additional copies of newspaper articles published between November 2006 and January 2007.

The legislation in force at the relevant time concerning telephone tapping and the changes to the law brought into force on 1 January 2004 are described in Dumitru Popescu v. Romania (no. 2) (no. 71525/01, §§ 39-46, 26 April 2007).


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1944 and lives in Kłomnice.

The applicant is proprietor and editor-in-chief of the local weekly newspaper “Komu i Czemu”, published in the Radomsko and Bełchatów Districts.

In issue no. 33 of 18 August 2004 the applicant published an article entitled “Elegantly wrapped dung” (“Łajno – elegancko opakowane”). It read, in so far as relevant:

“A poser is someone who does everything to produce external effects by his conduct, speech and, in particular, with the populism he preaches. He is a numbskull posing as the people’s tribune. The only panacea, or universal cure, for such a person is to recognise his intentions and take up a bloodless fight using arguments. An argument against any kind of tricks by a poser or populist will be always a counterargument based on reality, logic and the opportunity to put one’s intentions into practice.

I remember when, not so long ago, the author of the proposal to develop a quail farm as a panacea against rural unemployment had a go at me in an accommodating local newspaper, accusing me of malice, a willingness to discredit every good idea, and mindlessness leading to nasty mental disease and many other irreversible disorders of the mind. At the same time he declared that he would continue doing his job, that is, condemning farmers to breeding nice little birds in order to collect their eggs. His boss considered the quail business very important, because it would eliminate the need for viagra. There has not been a sideshow like it in the Radomsko District for a long time. So the time is approaching when pilgrimages of men from all over Poland, and maybe even the European Union, will come to Radomsko to taste quail eggs and later begin procreating.

I wonder who has gone mad in the district, and why mad ideas, supported by even madder arguments, can be accepted by our officials. But no matter. Every dull boss can be convinced by any rubbish. Once more I want to authoritatively and responsibly declare that neither quail breeding, nor mushroom growing, nor Eternit [a registered trademark for fibre cement], which suddenly seems to have dropped out of the picture, will solve the unemployment problem in the villages of our region. And I will continue calling the actions of dim-witted officials and their dull bosses pretentious and populist, and no numbskull will convince me that I am wrong. ...”

The applicant went on to describe in general terms a local economic development programme, which had been presented to him by a businessman. He finished his article with the following paragraph:

“This is not a venture of the quail variety by some smart poser or populist who is able to sell his dull bosses dung nicely wrapped in words. And he actually sells it.”

On 8 March 2005 M.D., the mayor of the Radomsko District (starosta), G.D., the head and spokesperson of the district’s marketing department, and K.H., an employee of that department, lodged a private bill of indictment against the applicant with the Radomsko District Court. In respect of the impugned article, they accused him of defamation committed through the mass media under Article 212 § 2 of the Criminal Code. In particular, they alleged that the copious use of words such as “numbskull”, “dull boss”, “dim-witted official”, “poser” and “populist” (“palant”, “nierozgarnięty szef”, “przygłupawy urzędnik”, “pozer”, “populista”) had defamed them as local government officials. The statements had lowered them in public opinion and undermined the public confidence necessary for the discharge of their duties.

The private prosecutors sought an order requiring the applicant to publish an apology in the weekly newspaper. They further sought reimbursement of their legal costs and payment by the applicant of 5,000 Polish zlotys (PLN) to a charity.

The Radomsko District Court ruled that it did not have jurisdiction in the case, and transmitted the private bill of indictment to the Piotrków Trybunalski District Court. The trial court held two hearings.

On 8 February 2006 the Piotrków Trybunalski District Court gave its judgment. It held that the use of the words “numbskull”, “poser” and “dimwitted official” in respect of K.H., and the use of the words “dull bosses” in respect of M.D. and G.D., had amounted to insult (zniewaga) committed through the mass media, within the meaning of Article 216 § 2 of the Criminal Code. The court convicted the applicant under that provision and ordered him to pay a fine of PLN 10,000 (approximately 2,630 euros (EUR)). It also ordered him to reimburse the private prosecutors’ costs (PLN 900, approximately EUR 236) and the costs of the State Treasury (PLN 1,000, approximately EUR 263).

As to the facts, the court observed that, since March 2004, the applicant’s newspaper had been publishing articles which were critical of M.D., the mayor of the Radomsko District, and his officials. The newspaper was particularly critical of K.H.’s initiative to develop quail farming in order to tackle the impoverishment of the local population. K.H. was an official in the district’s marketing department. G.D., the head of the marketing department, was also involved in the implementation of this project. In April 2004 the applicant had published an article in which he had made ironic remarks about K.H.’s initiative. In June 2004 a journalist at the same newspaper had published a detailed article on the same subject. The conflict between the applicant and the private prosecutors had intensified with each successively published article.

The court further noted that, in his article entitled “Elegantly wrapped dung”, the applicant had again written about the quail farming. Being aware of the publicity which the initiative promoted by K.H. and G.D. had received, the applicant had decided once again to mock the two officials, as well as their superior, M.D. He had referred to K.H., the author of the initiative, as a “poser”, “numbskull” and “dim-witted official”, while the idea of quail farming had been referred to as “nicely wrapped dung”. According to the applicant, this kind of “product” had been sold to “dull bosses”, that is, first G.D. and then M.D., the mayor of the district.

The trial court rejected the applicant’s argument that the impugned article had been a simple weekly column in which any similarity to actual persons had been purely coincidental. It found that the article in issue had been part of a campaign carried out by the newspaper against the private prosecutors. They had not been mentioned by name, but they had been easily identifiable on account of the publicity generated by the quail farming project and the earlier articles published by the applicant’s newspaper. The court established that there was no doubt that the words “numbskull”, “dimwitted official” and “poser” had referred to K.H., and the term “dull bosses” to M.D. and G.D.

With regard to the applicant’s criminal responsibility, the trial court noted that a journalist had the right to criticise the actions of public officials, but was not entitled to use media in a manipulative way to wage private wars. The latter behaviour was not only unethical and unprofessional, but also incompatible with the role of the media, which was to serve the State and society. The trial court further held:

“The fair criticism and objective coverage, free from personal emotions, which is desired in journalism, gave way to the private interest of the defendant, pursued through expressions which, in common understanding, remain offensive and disrespectful. It is difficult not to agree with the position that the word “numbskull” (“palant”) in the analysed context, although its literal meaning is legally irrelevant, fulfils all the criteria of insult within the meaning of Article 216 of the Criminal Code. Of an equally offensive character are the terms “poser”, “dim-witted official” and “dull boss”. It would be hard to find a person who would not feel offended by similar epithets, especially if formulated in the press.

Incidentally, it should also be noted that the word “dung” used in the title of the article has a cruder equivalent, and undoubtedly that equivalent was meant to describe K.H.’s contribution to the development of local entrepreneurship, which was accepted without reservation by his “dull bosses”. “Dull” meaning not sharp, unintelligent, intellectually retarded.

However, the court found no grounds to hold that the impugned words had the effect of lowering the private prosecutors in public esteem, or undermining the public confidence necessary for the discharge of their duties as local government officials. Accordingly, it would not be justified to classify the applicant’s acts as coming under Article 212 § 2 of the Criminal Code. The quoted statements were rather harmful to the private prosecutors’ perception of their dignity, and such, in the court’s view, was the defendant’s intention. By using insulting words in respect of the district officials, Maciej Ziembiński intended to derive satisfaction from doing them moral harm. By doing so in a newspaper, he fell within the scope of Article 216 § 2 of the Criminal Code, acting unlawfully, reprehensibly, and, in the absence of circumstances capable of precluding or mitigating his guilt, also culpably.”

The trial court noted that the present case involved a conflict between constitutionally guaranteed freedom of speech and the right of each citizen to have his reputation protected. However, it found that the applicant’s acts had constituted a blatant abuse of freedom of speech and professional ethics. The court observed that his acts and motivation had been reprehensible, since he had been settling a private conflict with the officials and transgressing basic professional standards.

As regards sentence, the court found that,, it would be disproportionate to impose a prison sentence, and that a fine would be the most appropriate penalty. It imposed a fine of PLN 10,000, which it considered proportionate to the gravity of the offence and the degree of the applicant’s guilt.

The applicant appealed. He contested the factual findings of the firstinstance court, in particular that his article had concerned the private prosecutors personally. He argued that the impugned article had presented in a sarcastic light people who achieved personal gain by pretending to work, and their dull bosses who accepted such practices. The applicant emphasised that criticism of the quail farm project as a solution to a decline in agriculture in the region had been entirely legitimate. Lastly, he submitted that public figures such as M.D., the district mayor, and other officials had to accept harsh criticism of their activities.

On 18 April 2006 the Piotrków Trybunalski Regional Court (“the Regional Court”) upheld the first-instance judgment. It ordered the applicant to pay PLN 1,000 (approx. EUR 256) in respect of the costs of the appeal proceedings.

The Regional Court held that the lower court had correctly established the facts of the case. It endorsed the trial court’s findings that the words used in the article had been insulting and harmful to the private prosecutors’ dignity. It further held that, although fair criticism of public authorities and officials was socially desirable and legally accepted, the protection afforded by law did not extend to the use of insulting words which offended human dignity.

The judgment was served on the applicant on 29 May 2006.


George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicant in the first case, Mr Alan White, is a British national, who was born in 1958. His current address has not been notified to the Court. He was represented before the Court by Mr Mark Davies of Frisby & Co., a firm of solicitors practising in Stafford. The second applicant, Mr Shinder Singh Gangar, is a British national who was born in 1961. His current address has not been notified to the Court. He was represented before the Court by Janes Solicitors, a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Ruth Tomlinson, of the Foreign and Commonwealth Office.

On 22 October 2012 the applicants’ complaint concerning the length of criminal proceedings only was communicated to the Government.

The applicants, who were both accountants, were partners in the firm Dobbs White. In October 1998 the Financial Services Authority (“FSA”) began investigating the firm. This investigation found that there had been no violation of the Banking Act 1987. In January 2000 the FSA began a second investigation which was subsequently transferred to the Serious Fraud Office (“SFO”) and which formed the basis for criminal charges that followed in 2005.

In January 2001 the SFO and the Money Laundering Investigation Team (“MLIT”) raided the offices of Dobbs White, as well as the second applicant’s home, and seized documents. The applicants were subsequently arrested on suspicion of money laundering and granted bail. In October 2002 the SFO carried out a second raid, following which they arrested both applicants on suspicion of conspiracy to defraud. Both applicants were granted bail.

In November 2002 the MLIT charged the applicants with money laundering.

In March 2003 the SFO carried out a third raid, following which both applicants were arrested on suspicion of conspiracy to corrupt. They were again granted bail.

The applicants’ trial in relation to the 2002 money laundering charge was due to commence in September 2003. However, following an application by the MLIT an adjournment was granted and the trial was postponed until September 2004. On 17 September 2004 Her Honour Judge Faber, sitting in Wood Green Crown Court, stayed the prosecution on grounds of abuse of process by reason of a disbelief that the prosecution would honour their disclosure obligations and a violation of the reasonable time guarantee contained within Article 6 § 1.

On 13 October 2005 the SFO charged both applicants with conspiracy to defraud and conspiracy to corrupt in connection with an alleged bribe. It was the prosecution’s case that after 2002 the applicants had developed in the United Kingdom a Ponzi scheme referred to as the “Dobbs White” scheme. The value of the alleged fraud was put at over USD 200 million. Both applicants were granted bail.

In February 2006 the prosecution provided a case summary to the applicants and on 31 March 2006 His Honour Judge Stokes fixed a trial window for Easter 2007. At the same time the second applicant was remanded in custody and later sentenced to five months’ imprisonment for breaching his bail conditions. He was released in November 2006 as the SFO had failed to extend the custody time limits.

On 21 November 2006 Mr Justice Langstaff (Langstaff J) set a firm trial date for 8 May 2007. However, at the same time nearly all defence counsel withdrew citing other professional commitments. A new defence team was subsequently appointed.

In December 2006 and March 2007 the prosecution made two late and substantial disclosures of further evidence, consisting of thousands of pages.

On 19 March 2007, an application was made jointly by the prosecution and the new defence team to postpone the trial as neither side considered that the case could be made ready in time for the original trial date. The defence sought an adjournment until October 2007. A limited postponement of eight weeks was granted until 3 July 2007.

In early June 2007 the applicants dismissed their legal representatives, alleging certain deficiencies in the quality of the service they provided. The applicants then sought to transfer their representation orders. This was required to enable the applicants to instruct new representation whilst continuing to benefit from publicly funded legal advice and assistance. On 12 June 2007 the judge refused. Later, following a written application and oral submissions, for which the applicants were assisted by counsel, the judge indicated that he might transfer the representation order. However, one of the requirements of new leading counsel was that the trial be pushed back again to January 2008. The judge again refused as he considered that the applicants had not given a good reason for dismissing their previous representation.

The applicants’ trial began on 3 July 2007 and lasted for more than seven months. At the beginning of the trial, the applicants made an outoftime application to Langstaff J to stay the proceedings as an abuse of process arguing a breach of the Article 6 § 1 reasonable-time requirement. In a decision dated 12 July 2007 Langstaff J found that the period of unexplained delay between the beginning of proceedings, deemed to be summer 2004, and the date of the formal charge on 13 October 2005, had amounted to a breach of the reasonable-time requirement.

In determining the start date of proceedings, Langstaff J had noted that in October 2003, the SFO investigation was on-going and that no decision had been made whether to bring charges against the applicants; that at some time between late 2003 and 2004 a decision had however been made; that in summer 2004 it had been “indicated” and notified to the applicants that they would probably face charges; and that summer 2004 was therefore, the relevant date for Article 6 § 1 purposes. He explicitly rejected the applicants’ assertion that the relevant time period for the purposes of Article 6 had commenced any earlier. In particular, Langstaff J found that the charges on which the applicants faced trial were sufficiently different to the earlier money-laundering charges, so that the relevant time period did not extend to incorporate those charges; that if the reasonabletime period necessarily began running the moment there had been an arrest, an investigation or a seizure of documents, such might incline the authorities to take precipitant haste in deciding whether or not to bring charges; that the authorities should take care not to hastily charge an individual where such would be unjustified; and that a proper distinction should be drawn between an investigation and a decision to prosecute, at which time the individual concerned would be duly informed. Langstaff J also concluded that there was no other period of unreasonable delay in the applicants’ case, having regard to the complexity of the case and the conduct of the parties. He determined that the appropriate remedy for the identified breach was not a stay of the indictment: rather that it should be taken into account when deciding the question of costs in the event of acquittal, or by taking it into account at the time of sentence in the event of a conviction.

At the close of the prosecution case, the applicants renewed their Article 6 § 1 abuse-of-process submissions to Langstaff J. In a decision promulgated on 19 December 2007, he upheld his previous decision of 12 July 2007.

On 22 February 2008 the applicants were convicted by a jury, on a majority verdict, of conspiracy to defraud and conspiracy to corrupt.

On 11 April 2008 both applicants were sentenced to sevenandahalf years’ imprisonment. Langstaff J noted that the maximum sentence available for a conviction of conspiracy to defraud was ten years’ imprisonment and that the offence committed by the applicants fell towards the top of that tariff. The maximum sentence available on the conspiracytocorrupt conviction was seven years’ imprisonment. Although Langstaff J found that the corruption offence had a close relationship to the defraud offence, it was not “part and parcel” of it. Therefore, a separate penalty was required. Considering however the period of some fifteen months’ unreasonable delay in the course of the case (during which time the applicants had been at liberty), the period of “effective custody” to which the applicants had been subjected during the length of the trial, and the fact that there was no previous involvement in like offending, a sentence of six years in respect of the conspiracy to defraud and one and a half years consecutive in respect of the conspiracy to corrupt was imposed.

The applicants sought leave to appeal their conviction to the Court of Appeal. They argued that their conviction was unsafe because, inter alia, the trial judge had refused to transfer the representation order. The applicants’ grounds of appeal did not contain any Article 6 § 1 abuseofprocess submissions and did not seek to challenge the trial judge’s finding with regard to the commencement of proceedings for the purposes of the reasonable-time requirement. The application for permission to appeal was refused on 7 July 2009 following an oral hearing, on the ground that the request for a change of representation order was not reasonable and that the judge had been entitled to find same.

Meanwhile, on 22 February 2008, following conviction, confiscation proceedings were brought against both applicants. On 1 April 2009 all parties to the proceedings agreed that the applicants had each benefited by over GBP 60 million. Contested hearings took place in October 2009 and June 2010. Provisional judgment was given on 2 July 2010 and an amended and finalised judgment was handed down on 28 July 2010. In respect of the first applicant, a confiscation order was made in the sum of GBP 1,166,339 to be paid within eighteen months, with a sentence in default of five years’ imprisonment. In respect of the second applicant, a confiscation order was made in the sum of GBP 2,758,416 to be paid within an unknown period of time, with a sentence in default of six years’ imprisonment.

Both applicants sought leave to appeal those orders. Permission to appeal was granted to argue the specific point of the realisable value of jointly held assets and refused on all other grounds. The applicants pursued an application for leave to appeal on unparticularised additional grounds. That application and the appeal on the ground for which leave had been granted were considered at one hearing held on 22 and 23 May 2012.

On 21 June 2012 the Court of Appeal refused leave to appeal on the additional grounds argued. Furthermore, in considering the appeal before it, the court concluded that the orders made were wrong insofar as they were based upon treating the jointly held assets as one hundred percent available to each of the applicants. The appeals were allowed to the limited extent of repairing the identified error. The previous orders were quashed and substitute orders made. In respect of the first applicant, a confiscation order was made in the sum of GBP 686,996.81 to be paid within eighteen months, with a sentence in default of three and a half years’ imprisonment. In respect of the second applicant, a confiscation order was made in the sum of GBP 2,289,074.03 to be paid within an unknown period of time, with a sentence in default of six years’ imprisonment.

In Attorney General’s Reference (No 2 of 2001) [2004] 2 A.C. 72, HL, the majority in the House of Lords considered the implications of Article 6 on the question whether a prosecution should be stayed by reason of delay alone. Lord Bingham, delivering the majority judgment, stated:

“24. If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such breach there must be afforded such remedy as may (section 8(1)) be just and appropriate or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again, in any case where neither of conditions (a) or (b) applies, the prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.

The category of cases in which it may be unfair to try a defendant of course includes cases of bad faith, unlawfulness and executive manipulation of the kind classically illustrated by R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42, but Mr Emmerson contended that the category should not be confined to such cases. That principle may be broadly accepted. There may well be cases (of which Darmalingum v The State [2000] 1 WLR 2303 is an example) where the delay is of such an order, or where a prosecutor’s breach of professional duty is such (Martin v Tauranga District Court [1995] 2 NZLR 419 may be an example), as to make it unfair that the proceedings against a defendant should continue. It would be unwise to attempt to describe such cases in advance. They will be recognisable when they appear. Such cases will however be very exceptional, and a stay will never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant’s Convention right.”

Lord Bingham concluded that:

“(1) Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant.”

That approach was followed by the Court of Appeal in Altaf v The Crown Prosecution Service, West Midlands [2007] EWCA Crim. 691, in which Moses LJ said:

“A breach of the defendant’s right to have a criminal charge determined within a reasonable time, contrary to Article 6(1) of the Convention, will not necessarily require criminal proceedings to be stayed. It will only be appropriate to stay or dismiss proceedings if there can no longer be a fair hearing or it will otherwise be unfair to try the defendant ... Once there has been a conviction, this court should only quash that conviction if the hearing has proved to be unfair, or it was unfair to try the defendant at all.”

Where an abuse of process is alleged, the burden of establishing that the bringing or the continuation of criminal proceedings amounts to an abuse of the court’s process is on the accused: R v Telford Justices ex parte Badhan [1991] 2 Q.B. 78; R v Great Yarmouth Magistrates ex parte Thomas [1992] Crim. L.R. 116. As a general principle of domestic United Kingdom law, it will normally be necessary to prove not only that an abuse has taken place but that the accused has been prejudiced in the presentation of his or her case as a result, so that a fair trial is no longer possible. As Lord Woolf LCJ said in the Court of Appeal hearing in Attorney General’s Reference (No 2 of 2001) [2004] 2 A.C. 72, HL:

“... if there has been prejudice caused to a defendant which interferes with his right to a fair trial in a way which cannot otherwise be remedied, then of course a stay is an appropriate remedy. But in the absence of prejudice of that sort, there is normally no justification for granting a stay.”

In the context of confiscation proceedings, in R v Shabir [2008] EWCA Crim 1809 the Court of Appeal held that:

“22. Once the Crown decides to invoke the confiscation process, the making of an order is mandatory, and its amount is arithmetically determined but can be moderated by judicial decision.

The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court’s process. In the present context, that power exists where it would be oppressive to seek confiscation, or to do so on a particular basis.

This jurisdiction must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the Judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic.”

In the case of R v P [2008] EW Misc 2 (EWCC) the applicant, having been convicted of criminal offending, had confiscation proceedings initiated against him. Moreover, he was subject to a restraint order which related to funds the Crown Prosecution Service believed could constitute the proceeds of criminal activity. Until a judicial determination had been made as to the source of those funds, the applicant was unable to employ them for the purposes of securing legal representation. The alternative was to rely upon state legal aid funding. HHJ Mole QC however accepted that, not least owing to the complexity of the case, if the applicant were to rely on the State legal aid fund, there was no prospect of him being able to engage properly qualified and competent counsel so as to ensure a fair trial. HHJ Mole QC therefore stayed the confiscation proceedings as an abuse of process.


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants were born in 1974 and 1981 respectively and live in Podgorica.

At the relevant time they were in detention (u pritvoru) at the Institution for the Execution of Criminal Sanctions (Zavod za izvršenje krivičnih sankcija, hereinafter “IECS”), where they shared a cell with five other detainees.

On 27 October 2009 the first applicant was to be transferred to a disciplinary unit (disciplinsko odjeljenje) and the cell in which he was detained was to be searched. The submissions of the applicants and the Government as to what exactly happened on that occasion differ.

The first applicant submitted that after having entered his cell, several guards had grabbed him and thrown him on to the concrete floor of the corridor outside the cell. They had handcuffed him, beaten him using batons and their fists, and sworn at him. In addition, two rows of guards positioned along the corridor had beaten him as he was being taken away.

The second applicant submitted that he had protested against this abuse. In response, four guards had started to kick him and had beaten him with their fists and batons. After that he had been taken into the corridor outside the cell, where eight other guards had continued to beat him. The beating had continued after he had returned to the cell.

The Government, for their part, submitted that the applicants had resisted the actions of the prison guards and had tried to prevent them from performing their duties, which had triggered the guards’ intervention. In particular, when they had entered the cell the second applicant had attacked one of the guards without any reason and had injured him.

The first applicant had refused to be examined by a prison doctor as he doubted his impartiality. On the same day, however, he had talked to the doctor and, in answer to the doctor’s question whether he was feeling well and whether he had any injuries, he had apparently said “No, doctor, I am healthy and both physically and psychologically stable, and I do not consent to an examination; there is no need for it as I have not been ill-treated either physically or psychologically by the security forces”.

The second applicant had been examined by the prison doctor after the Deputy Ombudsman had made a request to that effect. It would appear that the doctor made two reports in this regard. The Ombudsman, who obtained the reports from the IECS, described them as barely legible and apparently referring to the same subject matter in two different ways.

On 30 October 2009 the first applicant’s representative in the domestic criminal proceedings reported the incident to the prison governor and requested that the appropriate responsible bodies be informed, that his client be provided with medical assistance, and that no further punitive measures be taken against him.

On an unspecified date before 4 November 2009 the State prosecutor (Osnovno državno tužilaštvo) asked the Court of First Instance (Osnovni sud) in Danilovgrad to establish the elements of criminal offences of torture and ill-treatment (predlog radi utvrđivanja elemenata bića krivičnog djela mučenje i zlostavljanje). Acting upon this an investigating judge (istražni sudija) from the Court of First Instance requested, inter alia, the medical examination of both applicants by an external forensic doctor, and ordered evidence to be heard from a number of individuals, including the prison guards, and the second applicant.

On 4 November 2009 an external forensic doctor examined the second applicant. He confirmed in his report that the second applicant had light body injuries, namely a 10-day old haematoma (krvni podliv) measuring 8 x 15 cm on the back of his left thigh and a haematoma on the lower lid of each eye. The doctor added that there was an undated medical report in the second applicant’s file confirming the presence of bruises around his eyes. He emphasised that the medical documentation provided by the IECS was “largely illegible”. The first applicant refused an examination by the external forensic doctor, as the examination had apparently been ordered when his bruises were already fading.

On 5 November 2009, the first applicant’s mother – during a visit – observed bruises on his face and haematomas on visible parts of his body. She reported this immediately to the prison administration (Upravi zavoda). On 9 November 2009 she lodged a criminal complaint (krivična prijava) with the competent State prosecutor against persons unknown, stating that the first applicant had two bruises, one on his left temple – which was already fading – and another on one of his legs, and that he had also complained that he was having difficulty sitting.

On an unspecified date the second applicant’s mother – who had been informed by one of the detainees about what had happened – reported the incident to the Ombudsman and visited her son. She observed that his eyes were closed and his face and visible parts of his body were covered in bruises. She reported this to the prison administration and asked that it be investigated. On 6 November 2009 she lodged a criminal complaint with the police (Upravi policije) against persons unknown.

On 5 November and 10 November 2009 the State prosecutor asked the Court of First Instance in Danilovgrad to investigate the complaints lodged on behalf of the second and first applicants respectively (predlog za preduzimanje istražnih radnji). Acting upon this the investigating judge requested, inter alia, a video-recording from the prison, the identification of all the guards who had been involved in the cell search, and that the evidence be heard from a number of individuals, including the prison guards, other detainees in the cell, the first applicant, and the first applicant’s representative in the domestic criminal proceedings.

The requested questioning (see paragraphs 14 in fine and 18 in fine above) took place between 4 November and 9 December 2009. Two of the detainees stated that they had seen the first applicant being beaten. Some of the guards stated that the first applicant had resisted being handcuffed by “attempting to get out of [their] hands, cursing and swearing” and, when on the floor, by kicking out (“gicao se i mlatio nogama i rukama”). One of the guards admitted “hitting [the first applicant] once with a baton, as he continued to resist and kick”. Another guard, who had seen the first applicant several days after the incident, had observed a cut below his left eye as well as a visible injury to one of his legs.

When visiting his client several days after the incident, the first applicant’s representative in the domestic criminal proceedings had observed a bruise under one of his eyes, and a bruise on the calf of his left leg with a diameter of about 20 cm. He described him as frightened and “mentally broken”.

One of the guards stated that the second applicant had grabbed the collar of one of his colleagues from behind, following which the guard in question had fallen over a bench. The guard had pushed him away and the second applicant had hit the wall and sunk to the floor (pao je na zid i spustio se dolje na sjedalo). The guard stated that his colleague had not hit the second applicant. Three other guards confirmed this. The prison doctor stated that he had noticed a haematoma under the second applicant’s eye. Three detainees confirmed that the second applicant had been beaten by several guards both in the cell and in the corridor. The applicants, for their part, repeated their allegations.

On 12 February 2010 the State prosecutor rejected (odbacio) the criminal complaints against two guards, I.M. and R.T., on the ground that even though they had used force by hitting the first applicant three times and the second applicant once with a baton, they had done so in order to overcome the applicants’ resistance and thus acted within their powers (u granicama službenog ovlašćenja). While the first applicant had not been examined by a doctor, the medical documentation of the second applicant confirmed that he had sustained light injuries. That being so, the prosecutor concluded that the force used had not infringed human dignity and that there were no elements of any criminal offence entailing prosecution ex proprio motu. The prosecutor’s decision also identified other guards who had participated in the cell search. At the same time, the applicants were informed that they could pursue a subsidiary prosecution by lodging an indictment (optužni predlog) with the Court of First Instance.

On 23 February 2010 the lawyer retained by the applicants in respect of the complaints of alleged ill-treatment lodged an indictment for torture and ill-treatment which had resulted in severe bodily injuries (teške tjelesne povrede) against 16 prison guards named in the previous decision, including I.M. and R.T.

On 16 March 2010 the lawyer was informed by the first applicant that the video-recording obtained from the IECS by the Court of First Instance did not show the entire incident, namely it omitted his being beaten by two rows of guards in the corridor. He claimed, however, that another camera in the corridor must have recorded the beating and that the recording should be obtained from the prison authorities.

On 30 March 2010 the lawyer asked the court to obtain a recording from another camera, but apparently without success.

On 22 April 2010 the Court of First Instance decided that the applicants’ indictment was to be treated as a criminal complaint and, as such, was to be lodged with the State prosecutor.

On 10 May 2010 the applicants appealed against the above decision. At the same time they also lodged a criminal complaint with the State prosecutor.

On 13 September 2010 the High Court rejected the applicants’ appeal on the ground that the State prosecutor had delivered a decision only in respect of I.M. and R.T. and not the other guards.

On 19 October 2010 the State prosecutor rejected the applicants’ criminal complaint on the ground that there were no elements of any criminal offence entailing prosecution ex proprio motu. At the same time the applicants were notified that they could pursue a subsidiary criminal prosecution by lodging a request for an investigation (zahtjev za sprovođenje istrage) with the Court of First Instance.

On 12 November 2010 the applicants lodged a request for an investigation with the Court of First Instance.

On 10 February 2011 the Constitutional Court rejected (odbacuje se) a constitutional appeal by the applicants against the above decisions of the Court of First Instance and the High Court on procedural grounds. In particular, it considered that the applicants’ complaints were in substance about the criminal prosecution of other individuals and that – pursuant to the Court’s case-law – such complaints were incompatible ratione materiae with the Convention. It was also concluded that the decision of the Court of First Instance did not represent an “individual decision” in respect of which the Constitutional Court would be competent, but rather a procedural decision establishing whether the conditions were met for conducting an investigation in response to a direct indictment lodged by the applicants. In the impugned proceedings the courts had not decided on the merits of the request itself, but rather had ruled that the request should be treated as a criminal complaint.

On 18 March 2011 the Court of First Instance dismissed the applicants’ request for an investigation on the grounds of lack of reasonable suspicion (osnovana sumnja) that the guards had tortured and ill-treated the applicants and that the force they had used had been necessary to overcome the applicants’ resistance. On 13 June 2011 the High Court upheld this decision.

On 30 October and 12 November 2009 the Deputy Ombudsman visited the applicants. She also spoke with other detainees from the same cell, who confirmed the first applicant’s allegations. She noted that the second applicant, who had “visible injuries on his head, especially around the eyes” as well as on his legs, had asked that he be allowed to lodge a criminal complaint and to be examined by the prison doctor.

In its response to an inquiry from the Ombudsman, the IECS stated that the second applicant had unjustifiably resisted and physically attacked guards who, in response, had used force and a baton to the extent necessary to overcome his resistance. The IECS also provided the doctor’s reports in respect of the second applicant, which were described by the Ombudsman as barely legible and from which it could be concluded that they dealt with the same subject matter, but had a different content.

In an opinion of 29 March 2010, the Ombudsman found that the applicants’ rights had been violated on 27 October 2009. The opinion stated that they had offered no resistance and that there had been no justification for the use of force (sredstva prinude), especially not to the extent and in the manner alleged. At the same time the Ombudsman recommended that the IECS institute disciplinary proceedings against the guards responsible and report to the Ombudsman within 20 days on the measures taken.

On 1 April 2010 disciplinary proceedings were instituted against three prison guards, I.M., I.B. and R.T. On 31 May 2010 they were found responsible and fined 20% of their salaries in October 2009 for abusing their position or exceeding their authority (zloupotreba položaja ili prekoračenje ovlašćenja) as they had used excessive force disproportionate to the resistance offered by the applicants on 27 October 2009. In particular, I.M. had hit both applicants once with a rubber baton, I.B. had kicked the first applicant, and R.T. had hit the second applicant on the lower part of the body with the baton. The applicants’ families and the Ombudsman were informed about the outcome of the disciplinary proceedings and the applicants’ lawyer attended the hearing before the disciplinary commission.

Four other staff members who had participated in the cell search on the stated date, in relation to whom it was not proved that force had been used against the applicants, had apparently been transferred to other posts in other IECS units.

On 5 May 2010, during the parliamentary hearing of the prison governor (see paragraph 47 below), the Ombudsman confirmed that the IECS administration had duly acted upon his recommendations within the set time-limit.

On 15 March 2011 the applicants lodged a compensation claim against the IECS relying, inter alia, on Article 3 of the Convention, and seeking 15,000 euros (EUR) each for non-pecuniary damage caused by torture on 27 October 2009.

On 7 November 2013, after a remittal, the Court of First Instance in Podgorica ruled partly in favour of the applicants by awarding EUR 1,050 each for non-pecuniary damage on account of violations of their rights and EUR 397 for the costs of the proceedings. The court based its decision on section 166 of the Obligations Act (see paragraph 62 below). In its reasoning the court took into account the statements of the applicants and the prison guards, medical findings, the video-recording, the fact that the three prison guards had been found responsible in disciplinary proceedings for the disproportionate use of force and had been fined, and the fact that the applicants had offered resistance, thus contributing to the non-pecuniary damage. The court found that the guards had exceeded their powers but also explicitly held that such actions could not be qualified as torture or inhuman or degrading treatment.

On 29 May 2014 the High Court upheld this judgment. In so doing it did not disagree with the conclusion of the first-instance court as to the qualification of the impugned incident.

On 23 October 2014 the Supreme Court partly overturned the previous decisions by awarding the applicants 1,500 EUR each for non-pecuniary damage, together with the statutory interest. In so doing the Supreme Court held, inter alia, that the use of force by prison guards could not be justified by the applicants’ resistance and held that such action was in breach of fundamental values of every democratic society and degraded human dignity, but that it did not constitute torture or inhuman treatment. The applicants received this decision on 25 November 2014.

The applicants also maintain that they were threatened or abused between 23 December 2009 and 15 January 2010, in which regard their mothers lodged criminal complaints on 18 January 2010. On 22 June 2011 the State prosecutor (Osnovni državni tužilac) rejected the criminal complaint as regards the threat against the first applicant on the ground that no such incident had taken place. The criminal complaint in respect of the abuse alleged by the second applicant would appear to be still pending.

Between 27 April and 5 May 2010 the first applicant went on hunger strike, the reason being that disciplinary proceedings, with regard to the events of 27 October 2009, had been instituted against only three guards, who – according to him – were those least responsible for what had happened to him.

On an unspecified date in early May 2010 the first applicant had a meeting with the prison governor. On that occasion he apparently suggested to show the prison governor the camera which had recorded the entire incident of 27 October 2009. The governor allegedly suggested that the first applicant draw a sketch instead.

On at least two occasions the applicants complained to their lawyer that their ill-treatment had been continuous, and on at least one occasion they threatened to commit suicide if the pressure on them did not ease. The lawyer informed the High Court, the Minister of Justice, and the prison governor, requesting that disciplinary proceedings be instituted against those responsible.

On 5 May 2010 and 14 June 2011 the prison governor was questioned by the parliamentary Human Rights Committee.

On 25 June 2011 the parliamentary Human Rights Committee submitted its report to Parliament, one of its conclusions being that “there had been no torture or systemic violations of human rights in the IECS and that all the reported cases of the use of force and exceeding of powers had been sanctioned”.

The applicants also submitted that they had been deprived of an effective domestic remedy because one of the deputy State prosecutors at the time was the prison governor’s daughter and the Deputy Supreme State Prosecutor was his wife.

The first applicant is currently serving four prison sentences. He had been convicted eight times prior to this for various criminal offences. During his detention he had been subject to disciplinary sanctions four times, and twice more while serving his prison sentence.


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)

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicant was born in 1952 and lives in Zagreb.

On 10 December 2010 the Zagreb Police Department (Policijska Uprava Zagrebačka; hereinafter “the police”) lodged a criminal complaint with the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) against the applicant, alleging that in 1991, as commander of a police unit, he had committed war crimes against the civilian population. They relied on extensive material obtained in the course of a preliminary investigation. An investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) was also informed of the case. The case immediately attracted wide media interest and coverage.

On the same day, based on the criminal complaint lodged by the police, the investigating judge questioned the applicant. The applicant contested the allegations of the police and decided not to give further evidence, stressing that he was suffering from health problems. He submitted extensive medical documentation showing that he had suffered a stroke in 2007.

Later on the same day, the Zagreb County State Attorney’s Office requested the investigating judge to open an investigation in respect of the applicant on suspicion of war crimes against the civilian population, as alleged in the criminal complaint lodged by the police. It relied in particular on the material provided to the Croatian authorities by the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia (hereinafter “the ICTY”) concerning the crimes allegedly committed by a unit under the applicant’s command.

Following the request of the Zagreb County State Attorney’s Office, on 13 December 2010 the investigating judge questioned the applicant. The applicant decided to remain silent and refused to give any evidence.

On the same day the investigating judge opened an investigation in respect of the applicant on suspicion of war crimes against the civilian population. The investigating judge found, on the basis of the available material, that there was a reasonable suspicion that in the period between October and December 1991, in his capacity as commander of a police unit, the applicant had ordered arbitrary arrests, ill-treatment and the killing of a number of civilians, and that, by not taking the necessary measures to prevent and punish those responsible, he had consented to a number of other arbitrary arrests, the unlawful confiscation of property, ill-treatment and the killing of civilians by his subordinates.

During the investigation the investigating judge heard evidence from thirty-one witnesses and requested international legal assistance from the Serbian authorities in obtaining evidence from the witnesses. He also obtained a number of relevant reports on the DNA analyses of the victims’ remains, as well as exhumation and autopsy reports, and various documents concerning the actions of the unit under the applicant’s command.

On the basis of the evidence obtained during the investigation, on 9 June 2011 the Zagreb County State Attorney’s Office indicted the applicant in the Zagreb County Court on charges of war crimes against the civilian population. The indictment listed twenty-two counts of arbitrary arrest, unlawful confiscation of property, ill-treatment and the killing of civilians. The relevant part of the indictment concerning the applicant’s participation in those acts reads:

“In the period between 8 October and mid-December 1991, in Zagreb and Pakračka Poljana, during an international armed conflict between the forces of the Republic of Croatia and the former [Yugoslav People’s Army] and the paramilitary Serb forces, assisted by volunteer fighters from other parts of the former Yugoslavia, contrary to Articles 2, 3 § 1 (a) and (c), 13 and 32 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Articles 4 §§ 4 and 2 (a), 51 §§ 2 and 6, 86 and 87 of the Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), as an official in the Ministry of the Interior of the Republic of Croatia and the commander of the reserve unit of the Ministry of the Interior stationed in Pakračka Poljana and partially in Zagreb, where it had its compound, and thereby authorised to command his subordinates and responsible for the application of rules of international humanitarian law concerning the protection of civilians, ordered the unlawful deprivation of liberty, torture and killing of certain civilians, and when he was not present in the field, although aware that his subordinates were acting unlawfully by arbitrarily depriving civilians of their liberty, robbing, ill-treatment, torture, causing physical harm and killing civilians, did not take the necessary measures to prevent or suppress such unlawful actions, thereby accepting that his subordinates continue with such acts and condoning their consequences ...”

On 28 June 2011 the applicant lodged an objection against the indictment, arguing that it was not supported by any relevant evidence.

On 12 September 2011 a three-judge panel of the Zagreb County Court dismissed the applicant’s objection against the indictment as ill-founded on the grounds that there was sufficient evidence supporting the conclusion that there was a reasonable suspicion that he had committed the offences for which he had been charged.

On 4 October 2011 the Zagreb County Court commissioned an expert report concerning the possibility of the applicant following the trial.

In a report of 14 December 2011 a court expert found that with the appropriate accommodation arrangements and medical supervision, the applicant could follow the trial.

In the further course of the proceedings a number of hearings were held before the Zagreb County Court. A hearing held on 29 March 2012 was adjourned to 2 April 2012 due to deterioration in the applicant’s health during the questioning of a witness. A hearing held on 15 June 2012 was also adjourned due to the applicant’s state of health.

The criminal proceedings against the applicant are still pending.

The applicant was arrested on 10 December 2010 in connection with the criminal complaint lodged against him by the police (see paragraph 6 above).

On the same day, having questioned the applicant (see paragraph 7 above), the investigating judge of the Zagreb County Court ordered his remand in custody for a further forty-eight hours on the grounds that he might try to influence the witnesses and on account of the gravity of the charges. The investigating judge noted in particular that some forty-three witnesses needed to be questioned and that the allegations of war crimes against the civilian population imputed to the applicant were of a particularly serious nature, involving killings and severe ill-treatment.

On the order of the investigating judge and because of the applicant’s medical condition (see paragraph 7 above), he was placed in a prison hospital. Later during his confinement he was also treated in a special rehabilitation hospital in Krapinske Toplice.

On 12 December 2010 the investigating judge ordered that the applicant be remanded in custody for a further day.

On 13 December 2010 the investigating judge ordered the applicant’s pre-trial detention for one month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges), reiterating his previous arguments.

The applicant appealed against the decision of the investigating judge before a three-judge panel of the Zagreb County Court, invoking his state of health and arguing that twenty years had passed since the alleged crimes had taken place.

On 17 December 2010 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal as unfounded. The relevant part of the decision reads:

“It is firstly to be noted that in connection with the offences imputed to the defendant, in particular concerning the acts of the reserve [police] forces under his command, the questioning of a number of victims and witnesses, who have the relevant knowledge about the events from the period at issue, has been requested. Irrespective of the time that has passed since the period at issue, the defendant, who has only recently been informed of the facts of the offences forming the charges against him, if at large is likely to try to contact the [following] witnesses ... [These witnesses] still feel distress and fear and [the defendant could], in order to minimise his criminal responsibility, directly or indirectly influence their statements and thereby hinder the proper course of the investigation. Therefore, in order to avert the collusion, the investigating judge properly ordered the defendant’s pre-trial detention under Article 102 § 1 (2) of the Code of Criminal Procedure.

Furthermore, in view of the manner in which the war crimes against the civilian population under Article 120 of the Criminal Code were allegedly committed by the defendant, and which are punishable by twenty years’ imprisonment, the investigating judge correctly found that the circumstances of the offences were particularly grave, warranting pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure. These particularly grave circumstances of the offences concern, in the view of this panel, the manner in which the civilians ... were unlawfully and arbitrarily deprived of their liberty, how their property was confiscated without any legal basis, how they were physically and mentally ill-treated (often by the use of electric shocks) and eventually killed; and the fact that some of these unlawful acts were committed on the basis of the defendant’s orders, while the others he did not prevent although he was aware of them ...”

On 5 January 2011 the investigating judge extended the applicant’s detention for a further two months under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that some more witnesses needed to be questioned and reiterated his previous findings concerning the gravity of the charges against the applicant.

The applicant appealed against that decision and on 14 January 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, reiterating its previous arguments.

The investigating judge extended the applicant’s detention on 9 March 2011 for a further two months, relying on Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges). He found that eight witnesses still needed to be questioned and that the arguments concerning the gravity of the charges were still valid.

The applicant appealed against that decision, reiterating his previous arguments, and on 18 March 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, relying on the same grounds as those in its previous decisions.

On 9 May 2011 the investigating judge extended the applicant’s detention for a further month under Article 102 § 1 (2) and (4) of the Code of Criminal Procedure (risk of collusion and gravity of charges), reiterating his previous arguments concerning the gravity of the charges and finding that five more witnesses needed to be questioned.

The applicant appealed against that decision and on 27 May 2011 a three-judge panel of the Zagreb County Court dismissed his appeal as ill-founded, noting in particular that, in view of the gravity of the charges imputed to the applicant and given that he had been detained for some six months, there was still a predominant interest in keeping him in detention. It also considered that he should be remanded in custody until all the witnesses had been questioned.

Following the submission of the indictment against the applicant to the Zagreb County Court (see paragraph 12 above), on 10 June 2011 a three-judge panel of that court extended the applicant’s detention pending trial under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). The relevant part of the decision reads:

“When assessing whether further extension of the detention is needed under Article 102 § 1 (4) of the Code of Criminal Procedure, the panel looked into the facts of the indictment and found that there was a reasonable suspicion that the accused Tomislav Merčep, in the period between 8 October 1991 and mid-December 1991, as an official and the commander of the reserve unit of the Ministry of the Interior of the Republic of Croatia, authorised to command his subordinates, ordered the unlawful deprivation of liberty, torture and killing of certain civilians. When he was not present in the field, although aware that his subordinates were acting unlawfully by arbitrarily depriving civilians of their liberty, robbing, ill-treatment, torture, causing physical harm and killing civilians, he did not take the necessary measures to prevent and suppress such unlawful actions, therefore accepting that his subordinates continue with such acts and condoning their consequences.

Furthermore, the perpetrators – members of the accused’s unit – took money and valuables from their victims (cars, jewellery, household appliances etc.) and subsequently exposed them to brutal torture, such as electric shocks through an induction telephone, cutting open muscles and wiring open wounds, severe beatings, physical ill-treatment, degrading treatment and locking them in rooms without beds or toilets. In addition, the charges against the accused also concern an incident in which members of the unit under his command killed a twelve year-old girl A.Z. by firing six bullets into her head, together with her mother M., both of whom had been taken away after her father, M.Z., had been killed in their doorway in Z.

Consequently, and bearing in mind the extent of the unlawful actions which there is a reasonable suspicion that the accused committed and in particular the number of victims, which was, according to the facts of the indictment, more than twenty, all of them civilians, who were brutally tortured, robbed and killed or who have disappeared, the panel finds that the perpetrator acted with extreme cruelty, brutality, persistence and an extraordinary degree of criminal intent.

All of the above-mentioned circumstances, in the opinion of this panel, represent particularly grave circumstances that overcome the usually grave circumstances pertinent to such offences. Therefore, the detention is necessary under Article 102 § 1 (4) of the Code of Criminal Procedure ...”

The applicant appealed against that decision to the Supreme Court (Vrhovni sud Republike Hrvatske), challenging the necessity of his detention and alleging a number of substantive and procedural flaws.

On 6 July 2011 the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Zagreb County Court. The Supreme Court in particular noted:

“... the finding of the first-instance court that the grounds for further detention of the accused under Article 102 § 1 (4) of the Code of Criminal Procedure still exist is correct.

The indictment shows a relevant degree of reasonable suspicion that the accused committed the criminal offence under Article 120 § 1 of the Criminal Code, by which the general statutory condition under Article 102 § 1 of the Code of Criminal Procedure has been fulfilled.

According to the indictment ... the behaviour of the accused, in the view of this second-instance court, significantly surpasses the ordinary circumstances and consequences of such offences, and represents particularly grave circumstances of the offence allegedly committed by the accused which warrant detention under Article 102 § 1(4) of the Code of Criminal Procedure.

In his appeal, the accused alleged that there had been a serious breach of criminal procedure, without specifying his argument. In this regard, the second-instance court was unable to find breaches that should have been examined ex officio.

The appeal argument of errors of facts is also unfounded, since the first-instance court fully determined the facts and gave detailed, valid and clear reasons for its findings, which this second-instance court fully accepts.

The accused also relied on the case-law of the Constitutional Court in its decision U-III-1683/2008 of 7 May 2008 and Article 5 § 1 [of the Convention], arguing that deprivation of liberty before a final judgment is a particularly sensitive issue, and that such detention should not turn into a prison sentence. Thus, [according to the accused] it can be ordered only when there is a high probability that guilt will be established and a sentence imposed, in cases where there is a reasonable suspicion that the accused has committed a criminal offence and only for the purposes of the proper conduct of the proceedings, conditions which had not been met in the case at issue.

Contrary to the appeal arguments, the extension of detention under Article 102 § 1 (4) of the Code of Criminal Procedure is not contrary to the Constitution or Article 5 of the European Convention on Human Rights. Detention under Article 102 § 1 (4) of the Code of Criminal Procedure has a preventive purpose, namely the deprivation of liberty of the perpetrators of such serious crimes that, if they would be at large, the reputation of the judiciary and the public’s faith in it would be diminished; its purpose is not to avert the risk of the proceedings being hindered.

The poor state of health of the accused does not call into question the reasonableness of his detention, since adequate medical care, bearing in mind that he suffers from a chronic disease, can be offered to him in detention, that is to say in the prison hospital.”

The applicant challenged the decision of the Supreme Court before the Constitutional Court (Ustavni sud Republike Hrvatske), arguing that the Supreme Court had failed to provide relevant and sufficient reasons for his prolonged pre-trial detention.

On 30 August 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the decisions of the Zagreb County Court and the Supreme Court. The relevant part of the decision reads:

“In view of the competence of the Supreme Court as the highest court ensuring the coherent application of the law and the equality of everyone in its application (Article 116 § 1 of the Constitution), the likelihood of a prison sentence within the given term and the particularly grave circumstances of the offence, the Constitutional Court finds that the Supreme Court and the Zagreb County Court satisfied the relevant opinions and requirements when extending the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure ...”

On 6 September 2011 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), reiterating its previous arguments.

The applicant appealed against that

On 28 November 2011 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) on the grounds that the reasons warranting his detention still persisted.

The applicant appealed against that decision and on 14 December 2011 the Supreme Court dismissed his appeal as ill-founded, endorsing the reasoning of the Zagreb County Court.

The applicant’s detention was further extended on 14 February 2012 by a decision of a three-judge panel of the Zagreb County Court, relying on Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges) and reiterating its previous arguments.

The applicant challenged that decision before the Supreme Court and on 29 February 2012 the Supreme Court dismissed his appeal as ill-founded on the grounds that no doubts had been raised as to the findings of the Zagreb County Court.

The applicant then lodged a constitutional complaint before the Constitutional Court, arguing that his detention was no longer justified and proportionate.

On 18 April 2012 the Constitutional Court dismissed the applicant’’s state of health, when deciding whether his pre-trial detention should be extended.

On 27 April 2012 a three-judge panel of the Zagreb County Court extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges), finding that the circumstances warranting his detention still persisted. With regard to the applicant’s state of health, it indicated that so far, nothing suggested that he could not receive appropriate medical treatment in detention.

The applicant appealed to the Supreme Court alleging lack of appropriate reasoning in the decision of the Zagreb County Court to extend his pre-trial detention.

On 21 May 2012 the Supreme Court accepted the applicant’s appeal and remitted the case to the Zagreb County Court on the grounds that it had not established all the relevant facts concerning the health care provided to the applicant in detention.

In compliance with the order of the Supreme Court, a three-judge panel of the Zagreb County Court re-examined the case. On 29 May 2012 it extended the applicant’s detention under Article 102 § 1 (4) of the Code of Criminal Procedure (gravity of charges). With regard to the applicant’s state of health, it noted that he was receiving appropriate medical treatment in detention.

The applicant challenged that decision before the Supreme Court. On 29 June 2012 the Supreme Court accepted his appeal and remitted the case for re-examination on the grounds that the decision of the Zagreb County Court lacked relevant reasoning.

On 5 July 2012 a three-judge panel of the Zagreb County Court revoked the decision on the applicant’ the quality of the medical treatment which he was receiving in detention was not adequate. Since that could raise an issue under Article 3 of the Convention, the Zagreb County Court considered that he should be released pending trial. It stressed in particular:

“Thus, in the concrete case priority should be given to the values protected by Article 3 of the European Convention on Human Rights because the public interest is reflected not only in the grounds for detention under Article 102 § 1 (4) of the Code of Criminal Procedure but also in the protection and application of the values provided for under the cited provision of the European Convention on Human Rights. In this respect, the time that has elapsed since according to the indictment the offence was committed should be noted, and in particular the period which the accused has spent in detention, as well as the likely duration of the criminal proceedings.”


CASE OF MIŠKOVIĆ v. BOSNIA AND HERZEGOVINA

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

The applicant lives in Bosnia and Herzegovina.

By a judgment of the Prijedor Court of First Instance of 24 November 2000 which became final on 12 January 2001, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, 7,000 convertible marks (BAM) in respect of non-pecuniary damage and BAM 600 in respect of pecuniary damage together with default interest at the statutory rate to the applicant.

The Banja Luka Court of First Instance issued a writ of execution (rješenje o izvršenju) on 24 August 2001.

The applicant complained of non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 20 December 2005 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. The applicant did not claim compensation, but even if she had done so, her claim would most likely have been refused (see, for example, the Constitutional Court’s decisions AP 774/04 of 20 December 2005, § 438; AP 557/05 of 12 April 2006, §195; AP 1211/06 of 13 December 2007, §79; AP 224/08 of 8 December 2010, §37).

After the extensive information campaign explaining the available options for the settlement of the Republika Srpska’s public debt (including its debt arising from domestic judgments), on 25 April 2012 the applicant informed the authorities that she agreed to be paid the principal debt and default interest in bonds. Government bonds were then issued to the applicant on 31 May 2012. On 17 September 2012 the applicant sold all of her bonds on the Stock Exchange.


Branko Lubarda;Dmitry Dedov;Luis López Guerra

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

The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention.


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Georges Ravarani

The applicants are Turkish nationals, who were both born in 1968. The first applicant, Mr Fethi Oktay, was detained in the Bolu F-type prison and the second applicant, Mr Bülent Özçan, was detained in the Kırıkkale F-type prison when the present applications were lodged.

On 21 January 2011 the Bolu prison disciplinary board decided to withhold the first applicant’s letter addressed to the Iranian Embassy in Turkey on the ground that the letter contained defamatory statements. The disciplinary board based its decision on Article 68 (3) of Law no. 5275 on the execution of sentences and preventive measures.

On 17 February 2011 the Bolu Enforcement Judge dismissed the applicant’s objection. Subsequently, on 21 March 2011 the Bolu Assize Court dismissed a further appeal lodged by the applicant.

On 27 December 2011 the Kırıkkale prison disciplinary board decided to withhold the second applicant’s letter addressed to a journalist, on the ground that the letter contained statements praising a terrorist organisation (PKK) and its leader. The disciplinary board based its decision on Article 68 (3) of Law no. 5275 on the execution of sentences and preventive measures and Article 123 § 3 of the Regulations on prison management and execution of sentences.

On 20 January 2012 the Kırıkkale Enforcement Judge dismissed the applicant’s objection, and on 24 February 2012 the Kırıkkale Assize Court dismissed a further appeal lodged by the applicant.

A full description of the domestic law and practice at the relevant time may be found in Sayan v. Turkey ((dec.), no. 49460/11, §§ 6-12, 7 July 2016).