CASE OF TRAUSTASON AND OTHERS v. ICELAND

Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)

Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano

The first applicant was born in 1953 and lives in Mosfellsbær, the second applicant was born in 1980 and lives in Reykjavík and the third applicant was born in 1980 and lives in Seltjarnarnes. At the material time the first and second applicants were on the editorial board of the newspaper DV and the third applicant was a journalist for DV.

On 30 September 2010, an Icelandic private limited company, (hereafter “the company”), was declared bankrupt. The company was established in 1960 and is one of the leading industrial companies in Iceland in the production of plastic packaging material.

In October 2010 the liquidator of the bankruptcy estate hired an accountancy firm to investigate the company’s accounts.

On 31 January 2011 the accountancy firm finalised a report indicating a suspicion of criminal misconduct by the board members. The chairman of the board, A, who was also one of the owners of the company, was an assistant professor at the University of Iceland at the time.

The liquidator reported the suspected criminal misconduct to the police. A holding company and a bank also reported the company and A to the police.

On 14 March 2011 DV published a picture of A on its front page under the headline “Black report on [the company]: Police investigate Assistant Professor”. An article on the matter was printed on pages 2 and 3. The third applicant was identified as its author. The headline of the article read “Assistant professor entangled in police investigation” and another picture of A appeared beside the headline. The article was based on information from the accountancy firm’s report. It is not known how the applicants knew about the report and its contents. The article discussed inter alia A, who was a board member and one of three owners of the company and the former supervisor of the MBA programme and assistant professor of business studies at the University of Iceland. The article described the company´s situation with reference to the accountancy firm´s report. It stated that the report had concluded the company had paid for the A´s expenditures, which were unlikely to be connected to the company´s operations. The report had also indicated that A and one of his co-owners had known about the grave financial situation of the company long before it had been declared bankrupt in 2010. The report had concluded that the company´s assets had been partly expended when it was clear that it was insolvent. These assets had in fact been transferred to another company, owned by the A´s co-owner.When the company was declared bankrupt on 30 September 2010 the company owed approximately 1,100,000,000 ISK (approx. 7,150,000 euros at the time) to a large bank in Iceland. The amount had increased significantly after the financial crisis in 2008.

On 16 March 2011 A’s lawyer received an email from a police prosecutor confirming that the liquidator’s complaint had been received and was being “examined” and that two other complaints received by the police were also under consideration. He stated that no formal decision had been taken to instigate a police investigation. A’s lawyer sent this email to the first applicant and requested correction of the impugned statements. The first applicant refused his request.

On 28 April 2011 A lodged defamation proceedings against the applicants and DV before the Reykjavík District Court and requested that the statements published by DV, “Police investigate Assistant Professor” and “Assistant Professor entangled in police investigation”, be declared null and void and that the applicants be ordered to pay compensation, including expenses for publishing the final judgment.

The applicants and A were heard and the email of 16 March 2011 from the police prosecutor to A’s lawyer was submitted as evidence.

By a judgment of 5 March 2012 the District Court found that both disputed statements had been defamatory and ordered the applicants to pay 200,000 Icelandic Krónur (ISK) (approximately 1,600 euros (EUR)) to A in compensation for non-pecuniary damage, plus interest, ISK 200,000 for the cost of publishing the judgment and ISK 500,000 (approximately 4,200 EUR) for A’s legal costs before the District Court. The statements were declared null and void.

The judgment contained the following reasons:

“... According to Article 73(1) of the Constitution everybody has the right to freedom of opinion and belief. However, Article 73(3) of the Constitution allows certain restrictions on the freedom of expression. It states that freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions. In Chapter XXV of the Penal Code, freedom of expression is restricted in the interest of the rights and reputation of others. When deciding the limits of freedom of expression, the possibility of a public debate has to be guaranteed.

[The applicants] claim that the statements are true and refer to the principle that they cannot be held liable for true statements. It is undisputed that, before the newspaper coverage, [the police] had been informed by the liquidator of a reasonable suspicion of criminal acts by the company’s board members, of which A was one. It is also clear that the information given by the liquidator was based on [the accountancy firm’s] report of 31 January 2011. An email of 16 March 2011 from [the prosecutor] to [A’s] lawyer stated that the liquidator’s report was being “examined” [“til skoðunar”]. Furthermore, it was stated that two other entities [had reported, inter alia, A] to the police and that those reports “were also being considered” [litið til framangreindra kæra]. However, it is stated that no formal decision has been taken about a police investigation nor possible criminal acts defined.

[The applicants] base their defence on the fact that nothing in their statements, which [A] wants declared null and void, indicates that a formal decision had been taken to start [a police] investigation and that the wording of the statements should not be interpreted more widely than its general meaning indicates. Here it has to be taken into account that in general the media are required to base coverage on thorough research of the facts. Taking this into account, and having regard to [the absence of a formal decision by the police to investigate] [the company] and its board members, including [A], the court cannot accept [the applicant’s] arguments. No police investigation had been instigated against [A], thus the statements “Police investigate Assistant Professor” and “Assistant professor entangled in police investigation” were factually wrong, but both statements did in fact have the same meaning. It was not unreasonably difficult to verify whether such an investigation had in fact been opened. The wording of the statements was of such a nature as to make the reader believe that [A] was a suspect in a police investigation because of his criminal and punishable acts. This damaged [A’s] reputation. Therefore, the court has to agree with [A] that [the applicants] violated Article 235 of the Penal Code No 19/1940 (Almenn Hegningarlög) by publishing the aforementioned statements. In the light of the aforesaid, and with reference to Article 241(1) of the Penal Code, [A’s] request to declare the statements null and void is granted. However, there is no reason to impose punishment; therefore [A’s] request that [the applicants] be punished is rejected ...”

On 8 May 2012 the applicants appealed to the Supreme Court against the District Court’s judgment.

By judgment of 6 December 2012 the Supreme Court confirmed the District Court’s judgment and ordered the applicants to pay, in addition, ISK 500,000 for A’s legal costs before the Supreme Court.

As to the reasoning, the Supreme Court stated:

“... The aforementioned email from [the police prosecutor] can only be understood as meaning that no investigation had been instigated on account of the three reports [to the police] which are referred to in the email. There is nothing to indicate that such an investigation was initiated later and it will not be held against [A] that he did not provide confirmation of that during the proceedings as requested by [the applicants].

With these comments, [and] with reference to the District Court’s reasoning, the Supreme Court confirms the District Court’s decision on declaring the statements null and void and confirms the publication of the judgment in the next issue of DV and the next online edition of DV after the delivery of this judgment. The annulled statements were wrong and defamatory for [A]. When examining the coverage and the publication of pictures of [the company] and its representatives in the printed issue of DV and in the online edition of [DV], [A’s] reputation was attacked, at a time when there were no grounds for it ...”

By letter of 31 May 2013 the Special Prosecutor notified another company representative that “the investigation” into the complaints against him and A had been closed and the case had been dismissed.


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence in person);Violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-b - Preparation of defence)

André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in 1982 and lives in Cadiz.

On 2 March 2009 the Hamburg District Court, after having served a summons on the applicant to appear at the address that he had at that time in Hamburg, convicted the applicant of assault and sentenced him to forty dayfines of 25 euros (EUR) each and allowed him to pay his fine in instalments in the light of his economic situation. The District Court had, at the applicant’s request, authorised Mr Arif – at that time still a law student – to act as defence counsel under Article 138 § 2 of the Code of Criminal Procedure (see paragraph 19 below).

The applicant and the public prosecutor lodged appeals. The prosecutor’s appeal was directed merely against the sentencing. Thereafter, the applicant moved to Spain to work as a chef in a hotel and communicated his new address to the court.

On 24 April 2009 the Hamburg Regional Court withdrew the authorisation of Mr Arif to act as defence counsel, while at the same time rejecting the application lodged by Mr Arif for the applicant to be released from the obligation to appear in person at the appeal hearing. This decision was served on the applicant in Spain.

Also on 24 April 2009 the Regional Court fixed the date for the oral hearing of the applicant’s appeal to 9.10 a.m. on 13 May 2009. It decided to serve the summons on the applicant via public notification because the applicant had moved abroad. The summons was displayed on the court’s noticeboard from 27 April until 12 May 2009.

On 12 May 2009 Mr Arif learned by telephone of the Court of Appeal’s decision of that same day to overturn the Regional Court’s decision in respect of his authorisation to act as counsel for the applicant and of the appeal hearing having been scheduled for the next morning. He applied by fax for the hearing to be adjourned, citing the fact that he was going to be out of town the next day. He furthermore asked that documents from the case file – in particular the public prosecutor’s appeal – be sent to him. The presiding judge ordered that a copy of that appeal and of the decision to serve the summons of the applicant by public notification be sent to the applicant’s lawyer. This proved impossible, as the lawyer’s fax machine had no receiving function. The lawyer was offered access to the file at the courthouse the following day at 8 a.m. (that is to say immediately before the hearing), which he declined, stating that he would be out of town.

On 13 May 2009 the Regional Court refused, in a separate decision, an application lodged by the applicant’s lawyer for the appeal hearing to be adjourned. It stated that the lawyer had waived his right to be summoned within the respective time-limit because he had known about the date of the appeal hearing (as evidenced by his fax of the previous day), and that the properly summoned applicant had failed to appear without providing any reason. Simultaneously, the Regional Court dismissed the applicant’s appeal without an assessment of the merits, in accordance with Article 329 of the Code of Criminal Procedure (see paragraph 19 below), because he had not appeared at the appeal hearing (without any sufficient excuse, and despite having been summoned), nor had he been represented by a lawyer in a permissible manner.

On 10 March 2010 the Regional Court dismissed the applicant’s application for the restoration of the status quo ante. It found that the requirements for the serving of a summons by means of public notification, as set out in Article 40 §§ 2 and 3 of the Code of Criminal Procedure (see paragraph 19 below), had been met. The applicant’s lawyer had waived his right to be summoned, and his application for an adjournment had not relied on the failure to comply with the time-limit for serving a summons but had rather invoked scheduling problems, which he had not described in greater detail.

On 15 April 2010 the Court of Appeal upheld that decision. It considered that the applicant had been properly summoned to the appeal hearing because the requirements for service by public notification, as set out in Article 40 § 2 of the Code of Criminal Procedure, had been met. The summons to attend the hearing before the District Court had been served on the applicant’s previous address in Germany and he had lodged the appeal in question. As regards his interest in having the District Court’s judgment reviewed, it had been his responsibility to ensure that it was possible for the summons to appear at the appeal hearing to be served in Germany. As a result of his move to Spain it had not been possible to serve the summons at his previous address in Hamburg. It had thus been acceptable for the summons to be served by public notification. There had been neither an obligation to undertake an attempt to serve the summons at the applicant’s new address abroad prior to serving it via public notification nor one to notify him at that address that the summons had been served by public notification. The applicant had also not specifically authorised (under the first sentence of Article 145a § 2 of the Code of Criminal Procedure) his lawyer to receive summonses (see paragraph 19 below). Moreover, the applicant had not convincingly shown that he had been prevented through no fault of his own from appearing at the appeal hearing, as required by Article 44 § 1 of the Code of Criminal Procedure (see paragraph 19 below), because the applicant’s lawyer had not provided an affidavit to support his claim that he had advised the applicant, on 12 May 2009, that the latter did not need to attend the hearing because he had not been summoned. As his appearance in person had been ordered (see paragraph 8 above), it had not been possible to carry out the appeal hearing in his absence.

On 16 July 2010 the Court of Appeal rejected an appeal on points of law lodged by the applicant against the Regional Court’s judgment of 13 May 2009 as ill-founded, finding that the review of the Regional Court’s judgment had not revealed any legal errors that had been detrimental to the applicant.

On 16 November 2010 the Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant, without providing reasons (no. 2 BvR 2147/10). The decision was served on the applicant’s lawyer on 10 December 2010.

Following communication of the case and unsuccessful friendly settlement negotiations, on 8 July 2016 the Government informed the Court of their intention to resolve the issue raised by the application. They produced a unilateral declaration, in which they acknowledged violations of Article 6 §§ 1 and/or 3 (c), as well as Article 6 § 3 (b) and (c) of the Convention and offered to pay the applicant a sum to cover any pecuniary and non-pecuniary damage together with any costs and expenses. The Government requested that the Court strike out the application in accordance with Article 37 § 1 of the Convention.

By a letter to the Court of 30 August 2016 the applicant indicated that he was not satisfied with the terms of the unilateral declaration. The aim he pursued with the present application was a reopening of the criminal proceedings against him and a subsequent acquittal. He argued that, under domestic law, such a reopening could not be achieved if the Court struck the case out of its list, but required a judgment finding a violation. Furthermore, the compensation offered was insufficient.

By a submission of 14 October 2016 the Government confirmed that there was – and in fact, there still is – no case-law of the domestic courts regarding whether Article 359 no. 6 of the Code of Criminal Procedure, which provides for the reopening of criminal proceedings following a judgment of the Court finding a violation (see paragraph 19 below), also applies to violations acknowledged by the Government by way of a unilateral declaration. This question was for the domestic courts to assess. They acknowledged that the provision had, in practice, been construed narrowly.


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant in the first case, Mr Markus Mintken, is a German national who was born in 1967 and lives in Mülheim/Ruhr. He was represented before the Court by Mr N. Noch, a lawyer practising in Duisburg. The applicant in the second case, Mr Oktay Aydin, is a Turkish national who was born in 1973 and lives in Bielefeld. He was represented before the Court by Mr E. Ceylan, a lawyer practising in Duisburg.

The applicants and another coaccused were involved in call centre businesses. They were arrested on 13 April 2010 and remained in detention until 27 October 2011 when their detention was suspended. On 6 August 2010 both applicants and the other accused were indicted on 47,713 counts of commercial fraud as members of a gang. The Essen Regional Court allowed the charges in a modified form and heard the applicants’ case over 116 days as from 4 October 2010, hearing over 40 witnesses and experts. During the trial, the first applicant filed 82 and the second applicant 24 requests concerning the taking of evidence.

In July 2011 the first applicant and his counsel requested the appointment of another counsel. However, the domestic courts dismissed the request and upheld the appointment of counsel for the first applicant.

On 18 July 2013 the applicants were convicted. The first applicant was sentenced to three years and nine months’ imprisonment; the second applicant received a five-year prison sentence. All three accused lodged an appeal on points of law.

The minutes of the hearing comprised over 3,521 pages.

On 12 February 2014 the judgment, which ran to more than 1,243 pages, including 1,019 pages specifying the details of the victims of the alleged fraud, was served on the defence. The Regional Court held that it had been impossible to speed up the proceedings as the three accused and counsel for the accused had made numerous applications, inter alia, 368 requests to hear additional evidence, including applications to call several thousand witnesses. More frequent hearings had not been possible because the court had been confronted on almost every single day of the trial by new applications from the defence requesting termination and adjournment of proceedings, rectification of the transcript, consideration of new documents or other objections to the court’s handling of the case. As a result, the Regional Court saw no unreasonable delay attributable to the court, and no reason to reduce the sentences on that ground. However, in the sentencing of the applicants it took into account, in their favour, that the proceedings had been long.

On 12 March 2014 counsel for the three accused submitted their joint grounds for appeal on points of law to the Federal Court of Justice, comprising 411 pages, thus observing the onemonth timelimit prescribed by Article 345 § 1 of the Code of Criminal Procedures (CCP) (Strafprozessordnung) (see domestic law, paragraph 12 below). Their submission included, among others, a complaint that the time to supply the reasons for their appeals on points of law was insufficient.

On 14 July 2014 the Federal Prosecutor General made observations on the first applicant’s appeal on points of law to which the first applicant responded on 6 August 2014. The relevant dates in the second applicant’s case were not submitted.

On 6 November 2014 the Federal Court of Justice dismissed the applicants’ appeals on points of law as far as conviction and sentencing were concerned, finding them manifestly illfounded without providing further reasons.

On 5 February 2015 and 18 February 2015 the Federal Constitutional Court declined to consider the applicants’ constitutional complaints without providing reasons (file nos. 2 BvR 3069/14 and 2 BvR 10/15).

The relevant provisions of the CCP concerning reinstatement of proceedings and appeals on points of law, as in force at the relevant time provided:

“If a person was prevented from observing a timelimit through no fault of his own, he shall be granted a reinstatement of the proceedings upon application.”

“(1) The complainant shall make a statement concerning the extent to which he contests the judgment and is applying for it to be quashed (notices of appeal on law) and shall specify the grounds.

(2) The grounds must show whether the judgment is being contested because of violation of a legal norm concerning the proceedings or because of violation of another legal norm. In the former case the facts containing the defect must be indicated.”

“Notices of appeal on points of law including the grounds for the appeal shall be submitted to the court whose judgment is being contested no later than one month after expiry of the timelimit for seeking the appellate remedy. If the judgment has not been served by expiry of that timelimit, the timelimit shall start to run upon service thereof.”

“The notice of appeal on points of law including the grounds therefor shall be served on the complainant’s opponent if the appeal on points of law and the notices of appeal on points of law were submitted in time and in the prescribed form. The opponent may submit a written response within one week. ...”

It is well-established case-law of the criminal courts that the timelimit pursuant to Article 345 § 1 CCP is nonextendable, with the exception of cases in which an admissible request to rectify the judgment is lodged before the end of the timelimit (compare judgment of the Federal Court of Justice of 14 November 1990, file no. 3 StR 310/90).

Section 198 of the Court Organisation Act (Gerichtsverfassungsgesetz) provides a remedy for unreasonably long proceedings and reads, as far as relevant, as follows:

“(1) Whoever as the result of the unreasonable length of a set of court proceedings experiences a disadvantage as a participant in those proceedings shall be given reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case concerned, in particular the complexity thereof, the importance of what was at stake in the case, and the conduct of the participants and of third persons therein. ...

(3) A participant in proceedings shall obtain compensation only if he has complained about the length of the proceedings to the court seized of the case (censure of delay). ...

(5) A court action to enforce a claim under subsection (1) can be brought at the earliest six months after the filing of the censure of delay. The court action must be brought no later than six months following entry into final and binding force of the decision ending the proceedings, or following another manner of disposal of the proceedings. ...”

Section 199 § 3, second sentence, of the Court Organisation Act, however, limits the leeway for the compensation court regarding unreasonably long criminal proceedings and reads, as far as relevant, as follows:

“(3) ... Where the accused in criminal proceedings seeks compensation for excessive length of proceedings, the court of compensation shall be bound, in respect of the assessment of the reasonableness of the length of the proceedings, by a decision given by the criminal court.”

On 19 February 1998 the Federal Constitutional Court, in the case of an accused who had unsuccessfully requested the extension of the timelimit under Article 345 § 1 CCP, decided by a panel of three judges not to accept the constitutional complaint for adjudication (file no. 2 BvR 1888/97). It held that, in general, the statutory onemonth timelimit laid down in Article 345 § 1 of the CCP allowed ample time to supply the reasons for an appeal on points of law, even in difficult cases involving economic offences or Nazi crimes. The complainant in that case had not substantiated why, in his individual case, the time available had not been sufficient. The Federal Constitutional Court further found that the complainant had not sufficiently discussed in his complaint whether, in a case in which the reasons for the appeal cannot be drawn up within the statutory timelimit for reasons not attributable to the accused, redress might be found under the provisions governing the reinstatement of proceedings (see Article 44 CCP, paragraph 12 above).


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

The applicant was born in 1964 and lives in Riga.

On 24 November 2005 a residential building maintenance services provider, Kurzemes Namu Apsaimniekotājs, a limited liability company (“the plaintiff”), brought a claim against the applicant for recovery of a debt for their services in the amount of 320 Latvian lati (LVL – approximately 455 euros (EUR)). The next day civil proceedings were instituted in that connection. The applicant disagreed; she argued that she did not owe any money to the plaintiff – they had not concluded an agreement for maintenance services and she was free to choose another service provider. In those proceedings the applicant was represented by Mr S. Seļezņovs, who was not a lawyer.

On 30 December 2005 a judge of the Riga City Kurzeme District Court (Rīgas pilsētas Kurzemes rajona tiesa – hereinafter “the City Court”) scheduled the first hearing to take place on 21 April 2006. During this hearing the applicant’s representative requested additional time to examine the relevant legal norms and to obtain the relevant documents from the plaintiff. The City Court postponed the hearing to allow both parties to “prepare documents”. The next hearing was scheduled for 9 August 2006.

On 9 August 2006 the plaintiff applied to have the hearing postponed because the applicant’s debt for services had in the meantime increased and the plaintiff had not yet settled the courts fees for the increased claim. The application was granted and the next hearing was scheduled for 17 October 2006.

On 17 October 2006 the plaintiff increased the amount of the claim and submitted the relevant documents. The applicant’s representative applied to have the hearing postponed so as to examine those documents. The application was granted and the next hearing was scheduled for 31 January 2007.

On 31 January 2007 the plaintiff increased the amount of the claim to LVL 426 (approximately EUR 606) and submitted more documents. The applicant’s representative submitted written observations and some documents showing some debts that had been paid. The City Court admitted them to the case file and scheduled the next hearing for 23 March 2007.

On 23 March 2007 the plaintiff increased the amount of the claim and submitted more documents. The applicant’s representative requested that more detailed information be provided in this connection. The City Court ordered the plaintiff to provide observations by 13 August 2007 and scheduled the next hearing for 12 September 2007.

On 11 September 2007 the City Court informed both parties that another judge was taking over the case; the next hearing was scheduled for 17 October 2007.

On 17 October 2007 both parties pleaded their case. The City Court ordered the plaintiff to provide more detailed information and scheduled the next hearing for 13 November 2007.

On 13 November 2007 the applicant’s representative applied to have the hearing postponed as he had only received the relevant documents on the previous day. The application was granted and the next hearing was scheduled for 14 February 2008.

On 14 February 2008 the applicant’s representative pleaded the case. He argued that the service charges which the applicant had been asked to settle had been unclear. The plaintiff did not have all the relevant documents at hand and thus requested time to submit additional information. The City Court ordered the plaintiff to submit the specific documents and scheduled the next hearing for 17 April 2008.

On 17 April 2008 the plaintiff submitted the relevant documents and the applicant’s representative applied to have the hearing postponed to examine them. His application was granted and the next hearing was scheduled for 4 June 2008.

The parties continued to plead their case in the hearing of 4 June 2008. The City Court imposed a monetary fine on the applicant’s representative for disobeying a judge’s order. Following an application by the plaintiff the hearing was postponed because the applicant’s debt for services had in the meantime increased; they had not prepared the documents for the increased amount of the debt. The plaintiff was ordered to submit the relevant documents by an unknown date in September 2008 and the next hearing was scheduled for 28 October 2008.

On 28 October 2008 the City Court held the last hearing in the case; it refused a fresh application by the plaintiff to postpone the hearing once again. On 6 November 2008 the City Court dismissed the plaintiff’s claim against the applicant as unsubstantiated – the plaintiff had not proved that the expenses had actually been incurred and that they had duly reflected the services provided. On 27 November 2008 the plaintiff appealed against the judgment. On 28 November 2008 a judge of the City Court gave the plaintiff additional time to comply with the procedural requirements for lodging an appeal. On 2 December 2008 the plaintiff rectified those deficiencies. On 3 December 2008 the appeal was admitted and sent to the Riga Regional Court (Rīgas apgabaltiesa – hereinafter “the Regional Court”).

The first hearing before the Regional Court was held on 13 September 2010. The plaintiff increased the amount of the claim because the applicant’s debt for services had in the meantime increased to LVL 3,173 (approximately EUR 4,515) and submitted the relevant documents. The applicant’s representative disagreed with the increase of the claim. The Regional Court admitted those documents to the case file and scheduled the next hearing for 8 December 2010.

On 8 December 2010 the Regional Court held the last hearing in the case. The plaintiff did not attend, nor did it inform the court of any reasons for its absence. The Regional Court decided to proceed with the case. On 22 December 2010 the Riga Regional Court partly allowed the plaintiff’s claim and ordered the applicant to settle the debt in the total amount of LVL 2,854 (approximately EUR 4,059). Although the parties had not concluded an agreement for maintenance services, the applicant was obliged to pay for those services in accordance with domestic law. She could contest bills provided by the plaintiff, however she had failed to do so. The applicant had selectively paid some bills, but not all of them. The Regional Court refused the plaintiff’s claim to receive contractual penalty (līgumsods) for late payment but awarded default interest of 6%. On 18 January 2011 the applicant lodged an appeal on points of law. On 3 February 2012 the Senate of the Supreme Court (Augstākās tiesas Senāts) remitted it to the Regional Court as the applicant had not paid the security deposit for lodging it. Those deficiencies were rectified.

On 3 April 2012 the Senate of the Supreme Court, following a preparatory meeting, refused to institute proceedings on points of law.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);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);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

The applicant was born in 1942 and lives in Nalchik. She is the mother of the late Ms Madina Eneyeva, who was born in 1972 and died in 2007.

On 26 May 2007 Ms Eneyeva was at a local market together with Mr A, her brother-in-law. One of the stall-holders, Ms G.Zh., suspected that Ms Eneyeva was planning to steal a skirt from her market stall. The two women started a fight and exchanged a few blows. The police arrived and arrested the applicant’s daughter on suspicion of theft. Ms Eneyeva and Mr A. were both put into a police vehicle.

The parties have presented different accounts of the subsequent events.

According to Mr A., after Ms Eneyeva had been put into the police vehicle, an unknown police officer with the rank of lieutenant approached the vehicle, kicked Ms Eneyeva fifteen times on her legs and then left. Once at the police station, Mr A. was released. According to the applicant, upon arrival at the police station, her daughter was taken to the interrogation room situated on the second floor (in Russian referred to as the “third floor”) of the police station and was beaten by the police officers until she fainted. While Ms Eneyeva was unconscious, unspecified police officers threw her out of the window.

In the Government’s submission, it was alleged that during the drive to the police station Ms Eneyeva had unsuccessfully tried to escape from the police vehicle. Upon arrival at the police station, she had been escorted to the office of Lieutenant A.Zh. She had refused to answer his questions and had asked for permission to use a lavatory. Since there were no female police officers in sight, A.Zh. escorted her to the lavatory on the second floor of the police station himself and waited for her in the corridor outside the locked door. Being unguarded, Ms Eneyeva jumped out of the window in an attempt to escape from police custody.

Ms Eneyeva was then taken to hospital by ambulance. She underwent urgent surgery. At 10.45 p.m. on 26 May 2007 Ms Eneyeva died of complex internal injuries to her head, body and extremities.

The applicant then sought an investigation into her daughter’s suspicious death and ill-treatment. According to the applicant, her daughter had no suicidal tendencies; she had three young children and a good home in recently obtained social housing.

On 26 May 2007 the prosecutor’s office of Nalchik (“the town prosecutor’s office”) were notified that Ms Eneyeva had jumped out of the window of the police station and then died.

On an unspecified date the town prosecutor’s office opened preinvestigative inquiry no. 663-07 into the circumstances of Ms Eneyeva’s death.

On 28 May 2007 a forensic expert issued a post-mortem report, according to which ‒ apart from various injuries ‒ Ms Eneyeva had bruises and scratches on her legs, those injuries being unrelated to the fall.

On 4 June 2007 the deputy town prosecutor received and examined the applicant’s complaint, in which she alleged that her daughter had been thrown out of the window by the police officers. He stated that the investigator in charge of pre-investigative inquiry no. 663-07 had not yet carried out all requisite investigative measures, in particular, that he had not questioned a number of persons: the police officers who had arrived at the market once Ms G.Zh. had reported the theft, those who had arrested Ms Eneyeva, the ambulance crew members and Mr A. Nonetheless, the deputy town prosecutor concluded that “there is nothing to suggest that Ms Eneyeva’s death on 26 May 2007 in Nalchik was a violent one, as suggested in the complaint; moreover, there is no proof that the police officers of Nalchik were implicated in her death ...” and decided to dismiss the applicant’s complaint.

After a pre-investigation inquiry, on 5 June 2007 an investigator from the Nalchik prosecutor’s office concluded that the applicant’s daughter “had made another attempt” to escape from the police station, and refused to institute criminal proceedings in relation to Ms Eneyeva’s death.

The above decision was later quashed by the Nalchik prosecutor who considered that it was established that the applicant had sustained injuries at the hands of an unspecified police officer.

On 17 June 2007 the investigator again refused to open a criminal investigation into the applicant’s daughter’s death. The decision was quashed by the deputy town prosecutor on 20 June 2007.

On 7 July 2007 the investigator from the Nalchik prosecutor’s office refused to institute a criminal case to investigate the circumstances of Ms Eneyeva’s death.

On 27 July 2007 the Kabardino-Balkariya prosecutor’s office quashed the decision of 7 July 2007 refusing to open an investigation into Ms Eneyeva’s death. However, no further investigation into the circumstances of the death appears to have taken place and no further decision regarding this appears to have been taken after 27 July 2007. On 11 August 2007, however, Lieutenant A.Zh. was subjected to disciplinary measures for failure to comply with the procedure concerning escorting detainees.

For reasons unknown, on 27 July 2007, while quashing the refusal to investigate the death of Ms Eneyeva, the Kabardino-Balkariya prosecutor’s office opened criminal proceedings in case no. 25/35-07 to investigate an alleged abuse of powers by an unidentified police officer who had hit Ms Eneyeva on her legs inside the police vehicle at the market on 26 May 2007. They referred to the medical expert report (see paragraph 15 above) according to which there had been bruises on Ms Eneyeva’s legs which had not been caused by the fall out of the window. The authorities relied on Article 286 of the Russian Criminal Code (“abuse of power by a public official”). The circumstances of Ms Eneyeva’s death lay outside the scope of the investigation in question.

On 13 September 2007 the applicant was granted victim status in case no. 25/35-07.

On 22 October 2007 a forensic expert carried out another examination of Ms Eneyeva’s body to establish the origin of the scratches and bruises on the legs and concluded that the injuries in question had been inflicted by blunt objects.

On 27 October 2007 the investigation into the abuse of power was stayed for failure to identify those responsible. On 19 November 2007 the investigation was resumed and eventually stayed again on 28 February 2008.

In view of the authorities’ failure to institute a criminal investigation into Ms Eneyeva’s death, the applicant brought court actions on 31 January 2008 and on 26 February 2008. Eventually, on 23 June 2008 the Nalchik Town Court held in favour of the applicant, finding that the investigator’s failure to investigate had been unlawful.

On 8 April 2009 the applicant again complained about the investigator’s lack of action. On 14 May 2009 the Nalchik Town Court granted the applicant’s claim and held that the investigator’s continued failure to comply with the judgment of 23 June 2008 was unlawful.

On 23 March 2010 the deputy prosecutor of Nalchik quashed the ruling of 28 February 2008 staying the investigation (see paragraph 25 above).

Accordingly, on 31 March 2010 the investigation was again resumed.

On 11 April 2010 Mr K., a police officer on duty on 26 May 2007, was questioned as a witness. No essential information was obtained as a result of the interview.

In April 2010 the investigators tried to find eye-witnesses who had seen Ms Eneyeva at the market on 26 May 2007, but in vain. Also in April 2010 the certificate of death of Mr A. was included in the case file.

On 15 April 2010 the investigators decided to carry out a forensic medical examination of the injuries found on Ms Eneyeva’s body by a group of experts on the basis of the documents in the case file. However, no information on the results of the examination had been made available by 29 January 2015.

On 25 April 2010 Mr Ch., a police officer on duty on 26 May 2007, was questioned as a witness. He did not provide any relevant information.

On 8 May 2010 two shop assistants were questioned as witnesses and submitted that they had not seen the police using any force on Ms Eneyeva.

On 8 May 2010 the investigation was suspended owing to failure to find those responsible.

On 28 August 2010 the investigation was resumed.

On 22 September 2010 the investigators questioned Ms B. as a witness. Ms B. was the wife of Mr O., a forensic expert who had examined Ms Eneyeva’s dead body in 2007. Ms B. stated that her husband had left for Moscow for a lengthy period of time.

On 30 September 2010 the investigation was again suspended.

On 21 January 2015 the investigation was resumed. An internal inquiry was instituted by the Investigative Committee of Russia regarding poor supervision of the investigation of case no. 25-35/07. The investigation appears to be still pending.

The applicant stated that after 23 March 2010 she had not received any update on the progress of the investigation from the domestic authorities.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The first applicant, Mr Mijo Gojević-Zrnić was born in 1954 and lives in Knin, Croatia. The second applicant, Mr Stipan Gojević-Zrnić was born in 1949 and lives in Šibenik, Croatia. The third applicant, Ms Marija Mančić was born in 1952 and lives in Augsburg, Germany. They are all Croatian nationals and represented by Mr H. Alajbeg, a lawyer practicing in Split.

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

The President of the Section decided to grant the Government’s request for confidentiality of the case file documents (Rule 33 of the Rules of Court).

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

On 30 January 1993 the applicants’ mother, P.G.Z., was killed in the village of K. in Croatia, then occupied by Serbian paramilitary forces.

The Croatian authorities regained control over that territory in August 1995.

On an unspecified date, the Croatian police found photographs which the police of the Serbian paramilitary authorities had taken on 26 February 1993 in the course of an on-site inspection concerning the killing of the applicants’ mother.

It appears that the Croatian authorities opened an investigation into the killing of the applicants’ mother. On 27 February 1996 the Croatian police interviewed B.E., A.E. and P.E, neighbours of the applicants’ late mother. None of them had any relevant information about her killing.

On 26 January 1997, on the order of an investigating judge of the Šibenik County Court, the body of the applicants’ mother was excavated. The autopsy showed that she had been killed.

Between 21 September 2009 and 15 March 2010 the police interviewed six people in connection with the killing of the applicants’ mother, but none of them gave any relevant information.

In the meantime, on 1 December 2008 the applicants brought a civil action for damages against the State in connection with the killing of their mother, before the Knin Municipal Court. In the course of the proceedings before the first-instance court, at a hearing held on 15 April 2009, in the presence of the applicants’ legal counsel and the applicants themselves, all the evidence gathered during the investigation was presented. On 30 April 2009 the claim was dismissed. In their appeal of 3 June 2009 the applicants alleged, inter alia, that the Croatian authorities had failed to carry out any relevant measures in order to identify and punish those responsible for the killing of their mother. The first-instance judgment was upheld by the Šibenik County Court on 8 March 2010, the Supreme Court on 15 June 2011 and the Constitutional Court on 30 May 2012.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić

The applicant was born in 1960.

At the time of the events the applicant was serving in the Turkish Army as a lieutenant-colonel.

On 8 May, 10 May and 11 May 2000, the applicant was interrogated by the military prosecutor within the context of a criminal investigation initiated against him for embezzlement.

On 16 June 2000 an arrest warrant was issued in respect of the applicant on suspicion of embezzlement.

19 June 2000 the applicant applied to the Military Prosecutor’s Office. He was placed in detention on remand on the same day by the General Staff Military Court.

On the same day, the applicant gave a power of attorney to a lawyer.

On 22 June 2000 the applicant’s brother Şükrü Aymelek, who was a lawyer, was also placed in detention on remand. On 10 April 2012 the applicant’s brother was released.

On 26 June 2000 the General Staff Military Prosecutor filed a bill of indictment with the General Staff Military Court charging the applicant with embezzlement under Section 131 of Military Criminal Code, involving in trade activities as a soldier under Additional Section 1 of Military Criminal Code and breaching Article 13 of the Law No. 3628 (Law on Disclosure of Assets and Fight Against Bribery and Corruption). The siblings of the applicant, Şükrü Aymelek and Ulviye Toprakkıran were also charged with the same bill of indictment with embezzlement and breaching Article 13 of the Law No. 3628.

On 29 May 2001 the General Staff Military Prosecutor filed an additional bill of indictment and charged the accused with additional acts related to the crimes already stated in the first bill of indictment.

On 19 September 2001, the applicant submitted a petition with the prison authorities, complaining that he had not been able to see his brother Şükrü Aymelek, who was also detained in remand. The applicant stated that he regretted that his brother was also in prison because of him, and requested to see him.

On 19 September 2002 the applicant was found guilty and sentenced to imprisonment for embezzlement and being involved in trade activities as a soldier by the General Staff Military Court, composed of a military officer with no legal background and two military judges.

On 6 January 2003 the applicant appealed against the decision of the General Staff Military Court.

On 2 April 2003 the Military Court of Cassation quashed the judgment of 19 September 2002 on procedural grounds and on the merits.

On 17 December 2003 the General Staff Military Court found the applicant guilty for embezzlement and being involved in trade activities as a soldier, but reduced his prison sentence. The applicant appealed.

On 2 June 2004 the Military Court of Cassation upheld the decision of 17 December 2003.

On 13 January 2014 the applicant requested from the Military Court of Cassation to reopen the criminal proceedings alleging that a witness who had not been heard, was ready to give statements before the court. The applicant submitted that witness’ written statements to the Military Court of Cassation as well.

On 19 February 2014 rejected the applicant’s request for reopening of the criminal proceedings, on the grounds that the witness’ statements did not have any evidential value, which could warrant a lesser sentence or the acquittal of the applicant.


András Sajó;Egidijus Kūris;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant, Mr György Gőbl, is a Hungarian national, who was born in 1964 and lives in Sopron. He was represented before the Court by Mr T. Gaudi-Nagy, a lawyer practising in Budapest.

The Hungarian Government (“the Government”) were represented by Mr Z. Tallódi, Agent, Ministry of Justice.

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

On 27 November 2006 the applicant appeared at the main entrance of Erzsébet Hospital in Sopron, for the purpose of demonstrating against Prime Minister Mr Gyurcsány and his government. He held a 100x40 cm placard saying “Gyurcsány to resign! Voluntary contribution pay-desk; minimum 200 Hungarian forints”, and he distributed flyers to the passers-by. The applicant had his two children, respectively two and three years old, with him.

Upon a citizen’s notice the police appeared to check the applicant’s identity. He explained that he had been demonstrating on his own and that was the reason why he had failed to notify the authorities about the demonstration in advance. However, the police officers said he had been committing an infringement and obliged him to terminate the demonstration. The applicant obeyed, put all his belongings into his car and drove to Sopron Municipal Police Department, escorted by two police cars on his way. He did so at the police’

On the same day, shortly after his release, the applicant filed a complaint with the Police Department, complaining about the offensive style of communication of the police officers dealing with the incident, and about not taking minutes and not giving him the chance to indicate his objections. The chief officer of the Police Department dismissed the applicant’s complaint on 9 December 2006. Upon the applicant’s appeal, the Győr-Moson-Sopron County Police Department upheld the decision. The applicant challenged the decision before the Győr-Moson-Sopron County Regional Court but his claim was dismissed.

On 18 December 2006 the Sopron Municipal Police Department, acting as administrative authority, imposed a fine of 50,000 Hungarian forints (approximately 200 euros) on the applicant for the offence of misusing the right to assembly.

Upon the appeal of the applicant – in which he argued that he had not exercised his right to assembly as he was on his own – the Sopron District Court terminated the regulatory offence proceedings against the applicant on 8 January 2007. The court emphasised that the applicant had been exercising his right to freedom of expression but, as he was demonstrating on his own, he could not possibly commit the offence of misuse of the right to assembly.

In November 2009 the applicant lodged an action in damages against the Győr-Moson-Sopron County Police Department, stating that the police had violated his rights to freedom of expression, to liberty and to human dignity, and claiming non-pecuniary damages in the amount of 500,000 Hungarian forints (approximately 1,700 euros). The applicant argued that by escorting him to the Police Department and retaining him for two hours, the police officers had violated his right to liberty. Moreover, by their offensive style of communication, they had violated his right to dignity. He also asserted that the officers – by virtue of their intervention as such – had infringed his right to freedom of expression. Moreover, the police officers had acted wrongfully when not taking minutes or allowing the applicant to make objections.

On 12 April 2010 the Győr-Moson-Sopron County Court found that the applicant’s act was to be considered as expression of political opinion. The Győr-Moson-Sopron County Police Department had violated his right to freedom of expression by seizing the objects used for the purposes of the demonstration. Apart from this, the court dismissed the applicant’s claims. Although, as a finding of fact, it was established that the applicant had been called upon to follow the officers to the Police Department, the court found that he had been neither forced to go to the Police Department nor arrested. There had not been any evidence proving that the police officers’ action was a coercive measure. The court was satisfied that the applicant had voluntarily driven to the Police Department, that – while inside – he had stayed in a public waiting room and his cell phone had not been seized. The court also noted that the applicant could not prove that his personal documents had been withheld during the time he spent at the Police Department. It had not been proved either that the applicant’s right to dignity had been violated. Moreover, his right to a remedy was not infringed by not providing him with a pen and paper on site, as he was able to file a complaint later on. The court dismissed the applicant’s claim for non-pecuniary damages since the violation of right to freedom of expression – even if the claim was well-founded – did not, in the court’s view, justify the awarding of non-pecuniary damages in the case.

The applicant appealed against the judgment. The Győr Court of Appeal upheld the first-instance court’s judgment in essence.

The applicant challenged this judgment before the Supreme Court. In his petition for review he reiterated that the police officers had violated his right to liberty since he had driven to the Police Department because of the express instruction given by the officers and he had not been able to leave the police Department until his ID cards had been restored to him.

On 2 May 2012 the Supreme Court upheld the judgment finding that there had not been any evidence proving that the police officers had pursued any coercive measure against the applicant. On the contrary, the police officers had escorted him to the Police Department because he had requested more information about the legal qualification of his act and that information could only have been provided there. The applicant had driven to the Police Department voluntarily and had not been deprived of his liberty. Neither could the applicant prove a violation of his right to dignity. Finally, the Supreme Court agreed with the first and second instance courts on the consideration that a violation of the right to freedom of expression – even if the claim was well-founded – did not justify the awarding of damages in the applicant’s case.


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

Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković

The applicants were born in 1958 and 1961 respectively and live in Zagreb.

On 13 February 2001 the applicants’ mother died after being admitted for respiratory problems to the Jordanovac Clinical Hospital Centre (Klinički bolnički centar Jordanovac; hereinafter: the “Hospital”), a public health care institution.

An autopsy performed on the next day by the General Medical Pathology and Anatomical Pathology Department of the Zagreb University Medical Faculty (Zavod za opću patologiju i patološku anatomiju Medicinskog fakulteta Sveučilišta u Zagrebu) indicated that the cause of death was a respiratory insufficiency leading to cardiac complications.

The applicants were informed of the results of the autopsy and the measures which had been taken in the treatment of their mother were explained to them.

According to the applicants, based on a mutual agreement, it was decided that the first applicant would pursue legal remedies concerning the death of their mother.

In July 2001 the first applicant met two health inspectors at the Ministry of Health (Ministarstvo zdravstva; hereinafter: the “Ministry”) to whom she complained of their inability to obtain their mother’s medical records and about the circumstances in which she had died. The inspectors, however, took no further action concerning these complaints.

On 1 October 2002 the first applicant complained to the Croatian Medical Chamber (Hrvatska liječnička komora; hereinafter: the “CMC”) that her mother had died in unclear circumstances which had severely affected her family. She also expressed her dissatisfaction with the functioning of the medical system and complained in particular of her own medical treatment.

Upon receiving the first applicant’s complaint, the Professional Supervisory Commission of the Croatian Medical Chamber (Povjerentsvo za stručni nadzor Hrvatskw liječničke komore; hereinafter: the “Commission”) invited the first applicant to specify in respect of which doctor and medical institution she made her complaints.

By a letter of 28 February 2003 the Commission informed the first applicant that it considered her complaints to be withdrawn as she had failed to specify them as requested.

On 17 March 2003 the first applicant replied to the letter of the Commission maintaining that there must have been some misunderstanding with the correspondence she had received from them. She indicated that her complaint concerned the Hospital, its director doctor, LJ.P., and the head of the intensive care unit doctor, B.S. The first applicant in particular submitted that her family had never received any relevant documents concerning their relative’s death. A copy of this reply was sent to the Ministry.

After receiving the first applicant’s complaint, the Ministry requested the Hospital to provide a report concerning her mother’s death.

On 16 April 2003 the Hospital submitted a report to the Ministry concerning the medical treatment of the applicants’ mother and the circumstances of her death.

On 30 April 2003 the Ministry forwarded all available documents to the Commission and requested a report on the actions taken with regard to the first applicant’s complaint.

By a letter of 2 May 2003 the Commission informed the first applicant that it had not found any malpractice in the medical treatment of her mother.

The first applicant objected to these findings on 6 June 2003. She stressed that her family had never received any concrete document indicating the cause of death of their relative and that the letter which she had received from the Commission lacked the relevant reasoning.

On 15 July 2003 the first applicant submitted further observations on her objection and on 20 November 2003 she urged the CMC to adopt a decision on the matter.

On 21 October 2003 the CMC Executive Board (Izvršni odbor Hrvatske liječničke komore), as a second-instance body of the CMC, dismissed the first applicant’s objection as ill-founded, upholding the decision of the Commission. It also informed the first applicant that she could challenge its decision by lodging an administrative action in the Administrative Court (Upravni sud Republike Hrvatske).

After receiving the decision of the CMC Executive Board, the first applicant requested the CMC for an explanation concerning the procedure before it. On 4 December 2003 she received a reply from the CMC indicating that she had been accordingly informed that she could lodge an administrative action in the Administrative Court and that there was no need for the CMC to communicate further with her concerning the matter.

On 24 November 2003 the first applicant lodged an administrative action in the Administrative Court challenging the decision of the CMC Executive Board. She argued that the bodies of the CMC had not replied to her submissions and had failed to properly assess the circumstances of her mother’s death.

On 24 April 2006 the first applicant urged the Administrative Court to examine her case. She received a reply from the Administrative Court on 11 May 2006 indicating that due to a backlog at that court her case had still not been examined.

The applicant then complained to the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske) about the manner in which her case was processed by the Administrative Court and on 4 October 2006 the Ministry of Justice requested the Administrative Court for a report on the matter. The Administrative Court replied on 14 November 2006, reiterating its previous explanation as to the reason why the case had not been examined.

On 14 February 2007, upon another complaint by the first applicant, the Ministry of Justice requested the Administrative Court for a report concerning the progress of the case.

On 2 March 2007 the Office of the President of the Republic of Croatia (Ured Predsjednika Republike Hrvatske), based on the first applicant’s complaint, urged the Administrative Court to speed up the proceedings in her case.

On 5 October 2007 the Administrative Court declared the first applicant’s administrative action inadmissible on the ground that the decision of the CMC Executive Board was not an administrative decision concerning any of her rights or obligations or legal interests.

On 8 January 2008 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of the ineffectiveness of the proceedings before the lower bodies and her family’s inability to obtain any concrete information about the circumstances of their relative’s death.

On 27 February 2010 the first applicant urged the Constitutional Court to examine her case. Meanwhile she supplemented her constitutional complaint with further arguments and complaints, complaining in particular about the inordinate length of the proceedings in her case.

On 19 August 2010, the first applicant also asked the Constitutional Court to allow her to inspect the case file.

In the meantime, the first applicant complained to various domestic authorities, including the Office of the President of the Republic of Croatia, the Office of the Prime Minister of Croatia (Ured Predsjednika Vlade Republike Hrvatske) and a Deputy in the Parliament about the ineffectiveness of the domestic authorities’ response to her complaints concerning her mother’s death.

On 26 November 2012 the Ministry, replying to a question of the Deputy, stressed that it had never taken any action within its competence concerning the applicants’ case, although it had taken note of the proceedings before the competent bodies of the CMC and informed the first applicant of its findings with regard to the decisions of the CMC.

On 17 December 2013 the Constitutional Court dismissed the applicant’s constitutional complaint of 8 January 2008 as ill-founded (see paragraph 29 above), upholding the decision of the Administrative Court. It also declared the applicant’s additional complaints inadmissible as being lodged out of time and for non-exhaustion of the length of proceedings remedies. The decision of the Constitutional Court was served on the first applicant on 14 January 2014.

On 6 February 2004 the first applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) alleging medical negligence by unknown Hospital staff. In particular, the first applicant submitted that upon the admission of her mother to the Hospital she had been given a drug to which she was allergic, which had caused an allergic reaction and further medical complications leading up to her death.

After lodging the criminal complaint, the first applicant inquired several times with the Zagreb Municipal State Attorney’s Office about the progress of the investigation.

On 13 September 2006 the first applicant submitted a written request to the Zagreb Municipal State Attorney’s Office urging it to examine her criminal complaint.

As she received no reply from the Zagreb Municipal State Attorney’s Office, the first applicant complained to the Ministry of Justice about the inactivity in processing her complaint.

Based on the first applicant’s complaint, on 4 October 2006 the Ministry of Justice requested a report from the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) concerning the case.

Since it received no reply, on 14 February 2007 the Ministry of Justice again urged the State Attorney’s Office of the Republic of Croatia to produce a report concerning the proceedings at issue.

On 1 March 2007 the State Attorney’s Office of the Republic of Croatia informed the Ministry of Justice and the first applicant that the Zagreb Municipal State Attorney’s Office had requested an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to commission an expert report concerning the circumstances of the applicants’ mother’s death. It also stressed that this fact should be known to the first applicant as she had been duly informed about the status of the proceedings when she had made an inquiry in the Zagreb Municipal State Attorney’s Office.

After receiving this information, the first applicant made several inquiries in the Zagreb County Court concerning the status of the case. On 11 January 2008 she was informed by that court that the Zagreb Municipal State Attorney’s Office had never requested any investigative actions concerning her criminal complaint.

Meanwhile, on 21 December 2007 the Zagreb Municipal State Attorney’s Office found that the first applicant’s case file had been lost and ordered that it should be reconstructed.

The Zagreb Municipal State Attorney’s Office also ordered the police to conduct an investigation into the circumstances of the first applicant’s complaint. In addition, it requested the Zagreb University Medical Faculty to provide the autopsy report, and it commissioned an expert report concerning the circumstances of the applicants’ mother’s death.

On 2 January 2008 the police produced a report on the interviews with the applicants’ mother’s general practitioner and doctor B.S. The latter denied any medical malpractice and administration of the drug to which the applicants’ mother was allergic. His statement was confirmed by the Hospital director, doctor LJ.P. The police also obtained the relevant medical records concerning the medical treatment and death of the applicants’ mother.

On 8 January 2008 an expert, doctor J.Š., produced a report indicating that the cause of death of the applicants’ mother was a respiratory insufficiency leading to cardiac complications. The report did not indicate any medical malpractice on the part of the Hospital doctors.

On 25 January 2008 the Zagreb Municipal State Attorney’s Office rejected the first applicant’s criminal complaint on the ground that there was no reasonable suspicion that a criminal offence had been committed in the medical treatment of the applicants’ mother. The first applicant was instructed that she could take over the prosecution as a subsidiary prosecutor.

On 13 February 2008 the first applicant asked the Zagreb Municipal State Attorney’s Office to provide her with a copy of the entire domestic case file.

On 21 February 2008, after she had received the relevant documents from the Zagreb Municipal State Attorney’s Office, the first applicant instituted criminal proceedings in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) against doctor B.S. on charges of medical negligence.

In the meantime, the first applicant complained to various domestic authorities about the ineffectiveness of proceedings before the Zagreb Municipal State Attorney’s Office and on 11 April 2008 she received a reply from the State Attorney’s Office of the Republic of Croatia expressing its regrets for the protracted length of the proceedings dealing with her criminal complaint.

On 7 August 2008 the Zagreb Municipal Criminal Court requested the Zagreb Municipal State Attorney’s Office to forward the relevant documents concerning the first applicant’s case.

The documents were provided on 16 October 2008.

On 16 March 2009 the Zagreb Municipal Criminal Court invited the first applicant to amend her request to prosecute (optužni prijedlog) as required under the relevant domestic law concerning the factual and legal basis of the charges against doctor B.S.

On 30 March 2009 the first applicant submitted an indictment (optužnica) against doctor B.S. on charges of medical negligence.

As there was no progress in the proceedings, on 13 November 2009 the applicant urged the Zagreb Municipal Criminal Court to examine her case.

On 22 December 2009 the Zagreb Municipal Criminal Court commissioned an expert report concerning the medical treatment and death of the applicants’ mother. It requested an investigating judge of the Zagreb County Court to coordinate that procedural action.

An expert report of 11 March 2010, drafted by doctors D.M. and I.Š., indicated that there had been no irregularity in the medical treatment of the applicants’ mother. It further found that the drug, to which the applicant’s mother was allergic, had neither been used nor indicated for use during her treatment on 13 February 2001. The experts also excluded the possibility that the applicants’ mother had died as a result of an allergic reaction.

The first applicant received the expert report on 27 August 2010.

On 22 September 2010 the first applicant challenged the findings of the expert report, arguing that it had failed to examine all aspects of the medical treatment and death of her mother. The first applicant thus requested that the experts be ordered to re-examine and accordingly supplement their findings.

On 4 April 2011 a three-judge panel of the Zagreb Municipal Criminal Court returned the indictment to the first applicant, ordering her to institute an investigation before an investigating judge of the Zagreb County Court.

The first applicant complied with that order and on 25 April 2011 requested that an investigation be opened before an investigating judge of the Zagreb County Court.

On 14 October 2011 an investigating judge of the Zagreb County Court questioned doctor B.S., who denied any medical malpractice maintaining that the drug to which the applicants’ mother was allergic had neither been used nor indicated in her treatment.

On 12 December 2011 the investigating judge expressed his disagreement with the first applicant’s request for opening of an investigation and forwarded the case file to a three-judge panel of the Zagreb County Court.

On 16 February 2012 a three-judge panel of the Zagreb County Court dismissed the first applicant’s request for an investigation on the ground of lack of evidence of medical malpractice. The first applicant challenged this decision by lodging an appeal before the Supreme Court (Vrhovni sud Republike Hrvatske).

Meanwhile, the first applicant complained to the Supreme Court about the length of the criminal proceedings and on 18 September 2012 the Supreme Court found a violation of her right to a trial within a reasonable time and awarded her 2,500 Croatian kunas (HRK) in non-pecuniary damage (approximately EUR 340).

On 28 November 2012 the Supreme Court dismissed the first applicant’s appeal and upheld the decision of the Zagreb County Court of 16 February 2012 (see paragraph 64 above). The decision of the Supreme Court was served on the first applicant on 24 December 2012.

The first applicant then lodged a constitutional complaint with the Constitutional Court, complaining of the ineffectiveness of the proceedings before the lower courts and their failure to elucidate the circumstances of her mother’s death.

On 28 February 2013 the Constitutional Court declared the constitutional complaint inadmissible on the ground that the decisions of the lower courts did not concern any of her rights or obligations or any criminal charge against her. The decision of the Constitutional Court was served on the first applicant on 12 March 2013.

On 28 March 2013 the first applicant lodged a request for the reopening of the proceedings before the Zagreb County Court, alleging procedural flaws in the processing of her case.

The Zagreb County Court rejected the request as unfounded on 29 October 2013 and this was upheld by the Supreme Court on 20 March 2014.

The first applicants also lodged a criminal complaint against the medical experts D.M. and I.Š. on 27 August 2013 alleging that they had provided false evidence. On 7 October 2013 she received a reply from the Zagreb Municipal State Attorney’s Office indicating that it considered her criminal complaint unfounded in any respect.


Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Non-pecuniary damage - claim dismissed (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano

The applicant was born in 1951 and lives in Weinheim.

On 18 and 19 July 2005 the applicant, who campaigns against abortion, distributed leaflets in the immediate vicinity of the medical practices of anesthetists Dr M. and Dr R., who run a day clinic. Furthermore, the applicant deposited leaflets in all letterboxes in the vicinity of the day clinic.

The front page of the leaflets contained the following text in bold letters:

“In the day clinic Dr M./Dr R. [full names and address] unlawful abortions are performed” (“In der Tagesklinik Dr.M./Dr.R. [...] werden rechtswidrige Abtreibungen durchgeführt”)

Followed by an explanation set in smaller letters:

“which are, however, allowed by the German legislator and are not subject to criminal liability. The attestation of counselling protects the “doctor” and the mother from criminal responsibility, but not from their responsibility before God.” (“die aber der deutsche Gesetzgeber erlaubt und nicht unter Strafe stellt. Der Beratungsschein schützt „Arzt“ und Mutter vor Strafverfolgung, aber nicht vor der Verantwortung vor Gott.“)

A box below contained the following text:

“According to international criminal law: murder is the intentional “bringing-to-death” of an innocent human being!” (“Sinngemӓβ aus den internationalen Strafgesetzen: Mord ist das vorsӓtzliche “Zu-Tode-Bringen” eines unschuldigen Menschen!”)

On the back of the folded leaflet, the applicant quoted the Federal Constitutional Court’s leading judgment with regard to abortion (see paragraph 28 below) as well as a statement by ChristophWilhelm Hufeland, the personal physician of Goethe and Schiller, dealing with the role of doctors in relation to voluntary euthanasia and abortion. He also cited section 12 § 1 of the Law on Conflicts in Pregnancy (see paragraph 27 below) and asked readers to make use of their influence on those performing and assisting in abortions.

Furthermore, the following text appeared on the back of the folded leaflet:

“The murder of human beings in Auschwitz was unlawful, but the morally degraded NS-State allowed the murder of innocent people and did not make it subject to criminal liability.” (“Die Ermordung der Menschen in Auschwitz war rechtswidrig, aber der moralisch verkommene NS-Staat hatte den Mord an den unschuldigen Menschen erlaubt und nicht unter Strafe gestellt.”)

Below this sentence the leaflet referred to the website “www.babycaust.de”. This website, which was operated by the applicant, contained, inter alia, an address list of so-called “abortion doctors”, in which the day clinic and the full names of Dr M. and Dr R. were mentioned. This list was accessible on the website under the link “death or life”/“request for prayers for Germany” (Gebetsanliegen für Deutschland).

Dr M. and Dr R. filed a request for a civil injunction against the applicant. They submitted that only legal abortions were performed at their day clinic. The applicant’s leaflet created the erroneous impression that the abortions performed were contrary to the relevant legal provisions.

On 22 January 2007 the Ulm Regional Court granted the requested injunction and ordered the applicant to desist from further disseminating in the immediate vicinity of the day clinic leaflets containing the plaintiffs’ names and the assertion that unlawful abortions were performed in the plaintiffs’ medical practice. The Regional Court further ordered the applicant to desist from mentioning the plaintiffs’ names and address in the list of “abortion doctors” on the website “www.babycaust.de”.

The Regional Court considered that the statements in the applicant’s leaflet made the incorrect allegation that abortions were performed outside the legal conditions. This was not called into question by the further explanation that the abortions were not subject to criminal liability, as the whole layout of the leaflet was intended to draw the reader’s attention to the first sentence set in bold letters, while the further additions were set in smaller letters with the intent of dissimulating their content. The Regional Court further considered that by singling out the plaintiffs, who had not given him any reasons to do so, the applicant had created a socalled “pillory effect”. The allegations raised by the applicant seriously interfered with the plaintiffs’ personality rights. It followed that the applicant’s right to freedom of expression had to cede.

The Regional Court considered that the same principles applied to the mentioning of the plaintiffs’ names on the website entitled “babycaust.de”. This implied a connection between the plaintiffs and crimes which were, according to the applicant, comparable to the crimes committed by the Nazis during the Holocaust, and was not covered by the applicant’s freedom of expression and had thus not to be tolerated by the plaintiffs.

On 27 October 2007 the Stuttgart Court of Appeal rejected the applicant’s appeal. It did not find it necessary to examine whether the text of the leaflets had to be qualified as a statement of facts or as an expression of opinion as, in any event, the applicant’s freedom of opinion had to cede. The Court of Appeal confirmed the Regional Court’s assessment that the text in the leaflet implied that the plaintiffs performed unlawful actions. This was not called into question by the further explanations, as the average reader could not be expected to draw the distinction between the act of abortion which was justified under Article 218a § 2 of the Criminal Code and the act of abortion which was merely exempt from prosecution under Article 218a § 1 of the Criminal Code (see paragraph 26 below). Seen from a layman’s point of view, the text of the leaflet created the impression that the act of abortion, as permitted by the German legislator, amounted to unlawful homicide, or even to murder. The statement was at the very least ambiguous and had not to be tolerated by the plaintiffs.

Even if one were to assume that the leaflet did not contain a wrong statement of facts, the applicant’s freedom of expression had to cede. The Court of Appeal reiterated that freedom of expression conveyed the right to express an opinion even in an offending, shocking or disturbing way. If the expression of opinion was part of a debate on matters of public interest, there was an assumption militating in favour of freedom of expression. However, in the instant case the applicant had created a massive “pillory effect” by singling out the plaintiffs, who had not given the applicant any reason to do so. The performance of abortions was criticised with harsh and rigid words. This was further aggravated by the Holocaust reference. The Court of Appeal further noted that the applicant was not under any specific pressure to express his general criticism of the facilitation of abortions with such a massive violation of the plaintiffs’ personality rights.

The Court of Appeal further considered that it had not been necessary for the plaintiffs to submit the exact content of the website, as this website was generally accessible and its content was thus known. It then went on to state:

“The content of the webpage is likewise characterised by the fact that the defendant labels individuals, including the plaintiffs, “abortion doctors” and puts their actions on a level with the national-socialist Holocaust and with mass murder. Therefore, the plaintiffs’ claim to compel the defendant to refrain from performing the impugned action must be granted. In that connection, the court refers to its above reasoning. Furthermore, the defendant himself admitted that he had, on the webpage, labelled the plaintiffs “abortion doctors” who are directly or indirectly involved in the performance of abortions.”

The Court of Appeal did not grant leave to appeal on points of law.

On 12 February 2008 the Federal Court of Justice refused the applicant’s request for legal aid, on the ground that the applicant’s intended appeal on points of law lacked sufficient prospect of success.

On 17 March 2008 the applicant lodged a constitutional complaint against the judgments of the Ulm Regional Court, of the Stuttgart Court of Appeal and against the decision of the Federal Court of Justice. He complained, in particular, that the impugned decisions violated his right to freedom of expression.

On 2 July 2009 the Federal Constitutional Court, sitting as a Committee of three judges, refused to admit the applicant’s complaint for adjudication for being inadmissible, without providing reasons (no. 1 BvR 671/08). This decision was served on the applicant’s counsel on 18 July 2009.

On 8 June 2010 the Federal Constitutional Court, sitting as a Committee of three judges, granted a further constitutional complaint of the applicant dealing with another set of proceedings before the Munich Regional Court and the Munich Court of Appeal (no. 1 BvR 1745/06). In this set of proceedings the courts had granted a civil injunction against the applicant, as the Ulm Regional Court and the Stuttgart Court of Appeal had done in the present case. They had ordered him, inter alia, to desist from disseminating leaflets similar to the ones now in dispute in the immediate vicinity of another gynaecological practice and to desist from publishing on his webpage the information that the doctor in question had performed or assisted in “unlawful” abortions.

The Federal Constitutional Court held that the civil injunction had violated the applicant’s right to freedom of expression as provided in Article 5 § 1 of the German Basic Law (Grundgesetz) because the civil courts had not sufficiently taken into account that the doctor, who had himself publicly announced on the Internet that he performed abortions in his gynaecological practice, had not been confronted with an extensive loss of social reputation as a result of the applicant’s activities. Furthermore, it underlined that the applicant had only blamed the doctor for having carried out allegedly immoral acts, but had not reproached him for having committed acts which were subject to criminal liability or forbidden by law in a wider sense. The Federal Constitutional Court moreover insisted on the fact that the applicant had contributed to a highly controversial debate of public interest and pointed out that, against the factual background of that case, the courts had not sufficiently clarified why and to what extent the special relationship between the doctor and women searching for counselling and medical treatment in the practice might have been jeopardised.


Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

André Potocki;Mārtiņš Mits;Síofra O’Leary

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time)

The applicants complained of the excessive length of criminal proceedings and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention.


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

The applicant, Mr Anzor Chadidovich Chentiev, is a Russian national of Chechen ethnic origin. He was born in 1983 and is detained in Leopoldov prison.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

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

The applicant arrived illegally in Slovakia from Ukraine in January 2006. He unsuccessfully applied for asylum. The Slovak authorities found that his extradition to the Russian Federation for the purpose of his criminal prosecution there was admissible.

On 14 September 2010 the Court declared inadmissible application no. 21022/08 in which the applicant complained that his extradition to the Russian Federation would amount to a breach of his rights under Articles 3 and 6 of the Convention and under Article 1 of Protocol No. 6.

On 12 November 2010 the applicant lodged a new application with the same subject-matter as application no. 21022/08 while relying on additional facts. In parallel the applicant filed a fresh asylum request with reference to those facts.

On 15 December 2010 the President of the Fourth Section to which the case had been allocated decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not been extradited to the Russian Federation. On 23 November 2010 the Court (Fourth Section) decided to prolong under further notice that interim measure.

On 21 February 2012 the Court decided to give notice of the application to the Government of Slovakia and to invite the Government to submit written observations on the complaints that the applicant’s extradition to the Russian Federation would amount to a breach of his rights under Articles 3 and 6 of the Convention. The Chamber declared the remainder of the application inadmissible.

As regards the domestic proceedings on his fresh asylum request, the Bratislava Regional Court, in a judgment of 21 November 2013, dismissed the applicant’s action against the decision given by the Ministry of the Interior.

The applicant filed an appeal through his legal representative.

In two letters of 6 February 2014 the applicant informed the Regional Court that he had terminated the authority of his representative and withdrawn his action for review of the administrative decisions on his asylum request.

On 13 March 2014 the Supreme Court discontinued the proceedings on that ground without addressing the merits of the case.

In the meantime, on 11 February 2014, the applicant informed the Court that he no longer wished to pursue the application and that he had petitioned for the domestic proceedings to be discontinued. The respondent Government confirmed that information.

On 18 March 2014 the Court reconsidered the application in the light of the information submitted by the parties and decided to lift the interim measure under Rule 39 of the Rules of Court previously indicated in respect of the applicant.

In a letter which was delivered on 1 April 2014 the applicant informed the Court that he and his family were threatened by Russian authorities in order to make him return to Russia voluntarily. The applicant maintained that he wished to pursue the application.


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.


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

Alena Poláčková;Helen Keller;Johannes Silvis

The applicants were all targeted in undercover operations carried out by the police in the form of test purchases of drugs under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). Those operations led to their criminal convictions for drug dealing.

The applicants disagreed with their convictions and argued that the police had incited them to commit drug-related offences. They also complained that they had not been able to examine the witnesses who had testified against them.