CASE OF NAVALNYY AND OFITSEROV v. RUSSIA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra

The applicants were born in 1976 and 1975 respectively and live in Moscow.

The first applicant is a political activist, opposition leader, anticorruption campaigner and popular blogger. He is a lawyer and was, before his criminal conviction, a member of the Moscow bar association. The second applicant, a businessman, was at the material time a director of the limited liability company OOO Vyatskaya Lesnaya Kompaniya (ООО «ВЛК» – hereinafter “VLK”).

In 2007 the Kirov region’s Property Management Department founded the State unitary enterprise Kirovles (КОГУП «Кировлес»). According to its incorporation documents, Kirovles’ commercial activities were woodcutting and timber processing. It owned thirty-six timber mills registered as its operational branches. It appears that by 2009 the company was in substantial debt and continued to make losses.

In January 2009 the Governor of the Kirov region, Mr Belykh, invited the first applicant to be a volunteer consultant on enhancing transparency of the region’s property management. At first, Mr Navalnyy carried out this role de facto, before being officially appointed on 21 May 2009. One of his projects was to help steer the region’s loss-making timber industry out of crisis.

In early 2009 the first applicant discussed Kirovles’ financial and logistical problems with its director, X. He suggested that the company join forces with a timber trading company to bring in customers and, in particular, curtail the Kirovles timber mills’ practice of direct sales for cash bypassing Kirovles’ accounts. X agreed, and the first applicant invited the second applicant, who he knew would be interested in working in the industry, to set up the timber trading company. The second applicant created VLK and registered it in March 2009.

On 15 April 2009 Kirovles, represented by X, concluded a framework contract with VLK, represented by the second applicant. The contract provided for non-exclusive sales by Kirovles to VLK, who would then sell the goods on to the customers at 7% commission. The timber specifications and prices were set out in thirty-six annexes to the contract, which were signed in the period 15 April to 13 July 2009. In accordance with the contract, from 12 May to 31 August 2009 Kirovles supplied VLK with timber worth 16,165,826 Russian roubles ((RUB), the equivalent of approximately 330,000 euros (EUR) at the material time).

On an unidentified date X’s stepdaughter, Ms B., the then director of Kirovles’ commercial department, was employed by VLK part-time as its deputy director general.

Between July and August 2009 the first applicant commissioned Kirovles’ audit. In view of its results, the Governor’s office set up a working group for restructuring Kirovles, to which the first applicant was appointed.

On 17 August 2009 the property management department suspended X as Kirovles’ director, and on 17 October 2009 he was dismissed for mismanagement.

On 1 September 2009 Kirovles terminated the contract with VLK.

In the course of 2010 the first applicant pursued an anticorruption campaign and published a number of articles and documents exposing high ranking officials’ involvement in large-scale fraud. In particular, on 16 November 2010 he published an article claiming that at least four billion US dollars of State funds had been misappropriated during the construction of the East Siberia-Pacific Ocean oil pipeline. In the article, he referred to a 2007 audit report and suggested that the President, Vladimir Putin, and the Deputy Prime Minister, Mr Igor Sechin, had both been personally implicated.

On 9 December 2010 the Kirov Regional department of the Prosecutor’s Office (later replaced by the Investigative Committee of the Russian Federation – “the Investigative Committee”) opened an inquiry on suspicion that the applicants had defrauded Kirovles by inducing its director to enter into a loss-making transaction. When questioned, X stated that he had met Mr Ofitserov and Mr Navalnyy at the Governor’s office and had complained to them that Kirovles was making losses because of falling timber prices and a lack of customers, among other reasons. Mr Navalnyy had later returned to him with the idea of setting up a trading intermediary, VLK, to bring customers to Kirovles, and they had concluded the contract. He indicated that although VLK had paid average market prices for the timber, he had later realised that their commission and the terms of supply had cost Kirovles extra, making it unprofitable. He had therefore terminated the contract. X further stated that when concluding the contract he had been under the impression that Mr Navalnyy had been acting in his official capacity at the Governor’s office, and that as a State enterprise director he had to comply with the decisions of regional government. Two other former Kirovles employees were questioned, Ms B. and its deputy director Z. They confirmed that although VLK had paid average market prices, Kirovles could have increased its margins by selling the timber directly and it had therefore made a limited profit on these sales. They also claimed that the contract had been entered into under pressure from both applicants, whom their director had perceived as acting for the Governor.

The Investigative Committee also questioned the second applicant. He stated that he had approached X directly because he knew that Kirovles needed customers and he had offered to act as an intermediary. The other party had not been subjected to pressure or deception, the prices had been fair, and the first applicant had not been involved in the negotiations. The first applicant was not questioned because “his whereabouts could not be established”.

On 11 January 2011 the Investigative Committee decided not to open a criminal investigation against either applicant for lack of corpus delicti.

On 12 January 2011 criminal proceedings were instituted against X for alleged abuse of his official position, unrelated to VLK; he was suspected of preferential treatment of a different private company he was affiliated with through his family.

On an unidentified date the inquiry resumed in respect of the applicants. The investigator questioned X, Ms B., Kirovles’ deputy director Z., the Deputy Head of the Kirov Regional Government, S., and both applicants. The first applicant stated, in particular, that after X had reported to the Governor on Kirovles’ losses and lack of customers, the Governor had made an appeal to businesses interested in a commercial partnership with Kirovles. VLK had responded, along with others; the Governor’s office had not asked Kirovles to show any preference for VLK or taken part in the contract negotiations. The sales to VLK amounted to only 2% of the total volume of Kirovles’ sales.

On 28 January 2011 the Investigative Committee decided not to open a criminal investigation against the first applicant for lack of corpus delicti. As regards the second applicant, they decided to transfer the inquiry file to the Kirov Regional Department of the Interior, which had competence to decide whether there were grounds to open a criminal investigation.

On 2 February 2011 the first applicant gave a radio interview with a strong anti-corruption message, describing the ruling party of United Russia as “a party of crooks and thieves”.

On 7 February 2011 the inquiry resumed. The investigators questioned both applicants, X, two other former Kirovles employees, Ms B., two other former VLK employees and its then director (the second applicant’s brother), as well as five high-ranking officials of the Kirov region, including its Governor. He stated that in 2008 Kirovles had been in a difficult financial situation and had substantial debt. He had therefore assigned the first applicant to study ways of restructuring Kirovles, and the latter had participated in working groups and working meetings concerning this matter. He explained that the first applicant had not been able to put pressure on X or influence the commercial activities of the timber industry, including Kirovles. It was he himself who had ultimately taken the decision to terminate the contract between Kirovles and VLK as a result of a series of working meetings between him, X and both applicants.

On 9 February 2011 the Commercial Court of the Kirov region placed Kirovles in administration.

On 3 March 2011 the Privolzhskiy Federal Circuit Investigative Committee decided not to open a criminal investigation in respect of the applicants for lack of corpus delicti.

On 10 May 2011 the acting Chief of the investigation division of the Investigative Committee decided to open a criminal investigation in respect of both applicants. They were suspected of deception and abuse of trust of Kirovles director, an offence under Article 165 § 3 (b) of the Criminal Code.

During the investigation, which lasted for eleven months, both applicants were questioned, as well as X, Ms B., two former Kirovles employees and nineteen timber mill directors. Kirovles and VLK’s accounts were examined, and three reports were ordered from experts in accounting, finance and economics. It follows from the parties’ submissions that the following witnesses were also questioned. Witness Mr A., Chief of the Kirov Regional Forestry Department, made a statement about how the contract between VLK and Kirovles had been concluded and how the first applicant and X had been at odds. Witness Mr K., Deputy Chief of the Kirov Regional Forestry Department, stated that the first applicant had insisted on an independent audit of Kirovles and proposed restructuring it to prevent financial manipulation by X. Seven other witnesses, all managers of VLK, gave details about VLK’s work to find customers for Kirovles in accordance with the contract. Based on this evidence, the investigators found that there was no case against the applicants.

On 10 April 2012 the Investigative Committee closed the criminal investigation in respect of both applicants for lack of corpus delicti.

On 25 April 2012 the Investigative Committee reversed that decision.

On 5 July 2012 the Chief of the Investigative Committee, Mr Bastrykin, spoke at its general meeting and condemned, in particular, the decision to close the criminal investigation in respect of the first applicant. In the extract broadcasted on Russia’s main TV channels he stated:

“You have got a man there called Mr Navalnyy. The criminal case, why have you terminated it without asking the Investigative Committee superiors? Today the whole country is discussing [this fraud], the talks [between Mr Navalnyy and Mr Belykh] have been published, and we cannot hear anything except grunting. You had a criminal file against this man, and you have quietly closed it. I am warning you, there will be no mercy, no forgiveness if such things happen again. If you have grounds to close it, report it. Feeling weak, afraid, under pressure – report! We will help, support you, take over the file, but quietly, like that – no ...”

On 26 July 2012 the first applicant published an article accusing Mr Bastrykin of breaking laws imposing restrictions on high-ranking public servants. The article included copies of documents stating that he held a Czech residence permit and owned a private business during his tenure at the Investigative Committee.

On 30 July 2012 the Investigative Committee’s investigator for high profile cases decided to open a criminal investigation against X on suspicion that he had conspired with unknown individuals to dissipate Kirovles’ assets through VLK, thus committing an offence under Article 160 § 4 of the Criminal Code.

On the same day the case against X was joined with the criminal case against the applicants.

On 31 July 2012 charges were formulated against the first applicant under Article 160 § 4 of the Criminal Code. On 3 August 2012 the same charges were formulated in respect of X, and on 6 August 2012 in respect of the second applicant. They were all suspected of conspiring to dissipate Kirovles’ assets.

On 26 September 2012 the Deputy Prosecutor General granted X’s request to conclude a plea-bargaining agreement and to have his criminal case examined in accelerated proceedings.

On 1 October 2012 the plea-bargaining agreement was signed by X and the Deputy Prosecutor General. Among other conditions, X undertook to “actively provide the investigation with information” about “Mr Ofitserov and Mr Navalnyy’s involvement in the misappropriation [of assets], their roles in the commission of the crime, the specific steps taken to implement the criminal plan, including at the stages of preparation and conclusion of the sales contract and demonstration of its feasibility and utility.” On 17 October 2012 the criminal case-file against X was disjoined from the applicants’ case.

On 19 October 2012 the first applicant learned of the pleabargaining agreement from the press and filed a complaint with the Investigative Committee and the Prosecutor General, alleging that it had breached his procedural rights in the criminal case against him. He requested that X’s case, if it had been severed, be joined with their case again.

On 21 November 2012 the prosecutor’s office replied that the pleabargaining agreement had been concluded lawfully.

On 5 December 2012 the first applicant served the Leninskiy District Court of Kirov (“the District Court”) with a complaint challenging the decision to sever X’s criminal case and examine it in accelerated proceedings. On the same day he filed another complaint with the Prosecutor General, challenging the decision to disjoin X’s criminal file from his own.

On 10 December 2012 the Investigative Committee dismissed the request to join X’s criminal case with the applicants’ case.

On 18 December 2012 the prosecutor’s office replied that the cases had been disjoined lawfully.

On 24 December 2012 the District Court gave judgment in X’s case, after examining it in accelerated proceedings, without an examination of evidence. The court found X guilty of dissipating Kirovles’ assets (Article 160 § 4 of the Criminal Code) and handed him a four-year suspended sentence with three years’ parole. The judgment indicated that X had conspired with two others, “N.” and “O.” and contained, in particular, the following findings:

“... at the end of December 2008 [to the] beginning of January 2009...the Governor of the Kirov region ... met the directors of the big State enterprises, including [X] ... and introduced his volunteer consultants including N., who was officially appointed to this role ... on 21 May 2009.

In approximately January to February 2009 N. ... developed a criminal plan to misappropriate Kirovles’ assets in favour of a newly created entity under his control, to be founded and led by O.

In approximately February to March 2009 N. continued to implement his criminal intent to dissipate Kirovles’ assets, ordered the commission of the crime ... informed [X] about the forthcoming creation of an intermediary enterprise ... aimed at dissipating the assets in [X’s] charge.

[X] ... did not take any steps to prevent N.’s unlawful acts [and] agreed with him, thus entering into a criminal conspiracy with N. and O. aimed at large-scale dissipation of the assets ... entrusted to him.

To implement N.’s criminal plan, O., acting in agreement with him, created in March 2009 ... the limited liability company “OOO VLK” ... thus facilitating the commission of the crime ...

Later, [X] ... acting deliberately and in agreement with N. and O., signed a sales contract with VLK ... in full realisation of the damaging consequences ... because of [VLK’s ]lack of adequate collateral ...

In doing so, [X], N. and O. had sound knowledge that OOO VLK would pay for the goods under the terms of the contract and its annexes at a price known to be lower than that Kirovles could have received without an intermediary ...

In the period 15 April 2009 to 13 July 2009 ... [X] and O., in conspiracy with N., who had organised the crime and ordered its implementation, signed [thirty-six] annexes to the contract ... which stipulated ... a price which was deliberately reduced by all [of the] partners in crime without any economic need compared to the price Kirovles could have sold its products for if it supplied the VLK customers of directly.

While doing so, N. and O. realised that [X] was unlawfully depriving Kirovles of the possibility of independent sales of its timber products at market prices and was thus placing its timber products at VLK’s disposal without a sufficient and equivalent reimbursement of its market value.

In the period 15 April 2009 to 30 September 2009 in Kirov, [X], acting in abuse of his official position, and O., in conspiracy with and on the instructions of N., deliberately implemented the terms of the sales contract ... and its annexes ...

[X], acting in premeditated conspiracy with N. and O., out of acquisitive motives therefore abused his official position, ... unlawfully dissipated the assets he was in charge of ... for the benefit of third parties – partners in crime and OOO VLK under their control, thus causing significant damage to the assets of their owner, Kirovles.

The Deputy Prosecutor General ... proposed [using] accelerated proceedings for the judicial hearing and issuing the judgment ... in respect of [X] ...

The accused [X] has pleaded guilty to the entirety of charges, accepted the indictment and the proposal ... of accelerated proceedings on the basis of the concluded plea-bargaining agreement.

Information stated by [X] in compliance with the terms of the concluded pleabargaining agreement, is full and true and corroborated by the evidence gathered in the case. The court therefore concludes that [X] has complied with the obligations set out in the plea-bargaining agreement, and that judgment may therefore be given in respect of the accused without an examination of evidence, in accordance with the procedure set out in Article 316 of the Code of Criminal Procedure as required by Article 317.7 ...”

On 3 January 2013 the first applicant lodged an appeal against the judgment given in X’s case. He challenged, in particular, the use of accelerated proceedings in that case, the fact that it had been disjoined from the case against him and the second applicant and alleged that the judgment had been prejudicial to the outcome of their case.

On 9 January 2013 the judgment against X acquired legal force.

On 17 January 2013 the District Court informed the first applicant that he could not appeal against the judgment in X’s case because he had not been a party to those proceedings. He was denied access to the transcript of the court hearing for the same reason.

On the same day the charges under Article 165 § 3 (b) of the Criminal Code were lifted in respect of both applicants. The charges under Article 160 § 4 of the Criminal Code were maintained, although they were reformulated in respect of the second applicant.

On 20 February 2013 the first applicant filed a complaint with the Kirov Regional Court (“the Regional Court”) about the refusal to consider his appeal.

On 13 March 2013 the Deputy President of the Kirov Regional Court replied, stating that his appeal could not be examined because he had not been a party to the proceedings. Moreover, he indicated that the judgment against X could not be prejudicial to the applicant; his guilt had not been established, he had not participated in those proceedings and his name had not been mentioned in it.

On 20 March 2013 the indictment was issued in respect of both applicants.

On 3 April 2013 the District Court fixed the hearing in the applicants’ case for 13 April 2013.

On 10 June 2013 the applicants filed a request with the District Court to have the judgment given in X’s case excluded from evidence. They argued, in particular, that admitting it would prejudice the outcome of their case.

On 11 June 2013 the court dismissed the request on the grounds that the judgment against X did not predetermine the applicants’ guilt and, moreover, their names had not been mentioned in it.

During the hearing, X was called and examined as a witness. He was first questioned by the public prosecutors, who then asked to read out his statements given during the investigation on the grounds that he could not remember some details and had given contradictory answers to some questions. The applicants objected on the grounds that during the investigation X had made the statements in his capacity as an accused, and an accused had the right to make false statements, not being under oath. Moreover, reading out his previous statements, especially in full, would hinder his cross-examination by the defence as it would remind the witness of the “correct” version of events he had accepted during his trial but could not remember at the applicants’ hearing. The court dismissed these objections and allowed the statements made by X during the investigation to be read out. The applicants and their defence team questioned X afterwards.

The court also allowed, despite the applicants’ objections, the statements of Ms B. and six other witnesses to be read out. They were each first questioned by the prosecutor, then their previous testimony and statements were read out in their presence. Only then could the defence question them.

On 10 June and 2 July 2013 a challenge by the applicants to the trial judge was rejected.

On 11 June 2013 the court dismissed the applicants’ request to have material obtained by interception of the applicants’ telephone calls excluded. On 3 July 2013 it admitted this material as evidence.

On 18 June and 2 July 2013 the court rejected the applicants’ requests to have several people called and examined as witnesses, including Mr A., Chief of the Kirov Regional Forestry Department, Mr K., Deputy Chief of the Kirov Regional Forestry Department, and the seven VLK managers who had been questioned during the investigation, as well as three expert witnesses.

On 2 and 3 July 2013 the court rejected the applicants’ request for the following evidence: documents relating to Kirovles’ insolvency proceedings, Kirovles’ financial reports, an approved list of standard minimum prices for timber, complete records of intercepted telephone calls between the applicants, material relating to the criminal proceedings against X instituted on 12 January 2011 and the criminal case file relating to X’s conviction in the Kirovles case.

On 3 July 2013, at the applicants’ request, the court admitted as evidence a report issued by a trade specialist indicating that the prices paid by VLK to Kirovles were above average. On the same day it rejected their request for the court to order expert reports by finance, economics and merchandising experts.

On 17 July 2013 the first applicant was registered as a candidate for the Moscow mayoral elections.

On 18 July 2013 the District Court gave judgment, finding the first applicant guilty of organising, and the second applicant of facilitating, large-scale embezzlement. The court relied on the testimony of X and his statements made during the investigation. It also relied on the testimony of forty-four witnesses and statements made by eight of them during the investigation, material obtained by way of operational-search activities, in particular intercepted email correspondence and telephone calls between the applicants, accounting documents and expert reports. As regards the judgment in respect of X, the court said:

“It follows from the judgment of the Leninskiy District Court of Kirov given on 24 December 2012 that [X] was found guilty of dissipation [and] embezzlement, that is stealing Kirovles’ assets entrusted to [X], on an especially large scale, committed by abuse of his official position in conspiracy with N. and O. ... a criminal offence under Article 160 § 4 of the Criminal Code.”

The court further noted that it found X’s testimony, as well as his statements made during the investigation, truthful and concordant with other evidence; it also found that they were admissible and had been lawfully obtained.

The court dismissed the first applicant’s allegations of political persecution or revenge by individuals who had lost their jobs at Kirovles or were otherwise disconcerted with his role in reforming the timber industry in the Kirov region. It also dismissed the objection to admitting X and Ms B.’s testimony and statements on the grounds that X had a vested interest in the proceedings, finding the objection unfounded and illogical. It explained the discrepancies between the testimony and pre-trial witness statements by the passage of time that had elapsed since the events in question and held that, in any event, the witnesses at the trial had confirmed the validity of their previous statements.

The court noted that X had treated the first applicant as an official from the Governor’s office and that the applicant knew this. However, it stressed that the first applicant had not been accused, or convicted, of any abuse of his official position at the Governor’s office:

“Mr Navalnyy [is not suspected of] committing a crime by abuse of his official position; consequently, the defence’s arguments that the Governor’s volunteer consultant had no powers to give binding instructions to the companies’ management do not refute the accusation [or] prove that it was impossible for Mr Navalnyy to commit the crime and order its execution.”

As regards the legal classification of the applicants’ offences, the court held:

“The court finds that the arguments put forward by the defence about the absence of unlawfulness, a necessary element of theft, because a regular civillaw transaction has been concluded by persons with legal capacity, are unfounded.

The Kirov region’s Property Management Department, acting on behalf of the owner of Kirovles, has provided in the certificate of incorporation and [X’s] employment contract that [X was under an] obligation to carry out his duties in good faith, reasonably and in accordance with the applicable legislation.

In accordance with Article 10 §1 of the Civil Code, it is not permitted to exercise one’s civil rights with the exclusive purpose of causing damage to another person, act in circumvention of the law with unlawful intent, [or any other] intentional exercise of civil rights in bad faith (abuse of rights).

The court has established that contrary to the said provisions of the certificate of incorporation, the employment contract and the law, [X], acting on behalf of the company directed by him, has entered into a sales contract ... with OOO VLK represented by Mr Ofitserov to exclusively facilitate stealing Kirovles’ property and transferring [it] for the benefit of OOO VLK ... The conclusion of this sales contract has resulted in material damage [being caused] to Kirovles.

The court notes that neither Mr Navalnyy nor Mr Ofitserov is charged with organising and facilitating the conclusion of a legally invalid sales contract. On the contrary, what the [applicants are suspected of] is organising and facilitating the dissipation of Kirovles’ assets by concluding a sales contract with OOO VLK intended exclusively to create the impression that Kirovles had civil-law obligations towards OOO VLK to transfer timber goods to shipment recipients, as if for collateral, whereas in reality the goods would be transferred without OOO VLK [having] equivalent and sufficient collateral.

According to the ruling of the Plenary of the Supreme Court of the Russian Federation no. 51 dated 27 December 2007 “On Court Practice in Cases of Fraud, Misappropriation or Embezzlement”, a perpetrator of misappropriation or embezzlement may only be someone entrusted with the assets of another legal person or individual, based on legal grounds for a specific purpose or for a defined activity. Based on the provisions of Article 34 § 4 of the Criminal Code, those who do not possess these special subjective characteristics qualifying [them] for misappropriation or embezzlement, but who directly participated in stealing assets in prior agreement with the person entrusted with the assets, must be criminally liable under Article 33 in conjunction with Article 160 of the Criminal Code in their capacity as organisers, inciters or facilitators.

It follows from the judgment of the Leninskiy District Court of Kirov given on 24 December 2012, which has acquired legal force, that the perpetrator of the crime Mr Navalnyy and Mr Ofitserov [are suspected of] was found to be [X], who had been entrusted with Kirovles assets as its director general. [X’s] acts were classified by the court as falling under Article 160 § 4 of the Criminal Code.”

The court estimated that the damage caused to Kirovles amounted to RUB 16,165,826. It concluded that the first applicant was guilty of organising the theft of Kirovles’ assets by X (Article 33 § 3 in conjunction with Article 160 § 4 of the Criminal Code), and the second applicant of facilitating that theft (Article 33 § 4 in conjunction with Article 160 § 4 of the Criminal Code). They were sentenced to five and four years’ imprisonment respectively, to be served in a correctional colony. In addition, they were both fined RUB 500,000.

The applicants were taken into custody immediately after the hearing.

On the same day the prosecutor’s office of the Kirov region asked the court to release the applicants pending appeal, particularly since the first applicant was a registered candidate in the Moscow mayoral elections.

On 19 July 2013 the Regional Court granted the request and released the applicants on parole.

On 26 July 2012 both applicants lodged an appeal against the judgment of 18 July 2013. They challenged their conviction, insisting that it was unlawful and unfounded and that the first-instance court had relied on the judgment of 24 December 2012 against X in violation of the rules of criminal procedure. They also complained about the court’s assessment of evidence and the manner in which it had examined the witnesses.

On 8 September 2013 the first applicant stood as a candidate in the Moscow mayoral elections. He came second, securing approximately 27% of the votes.

On 13 September 2013 the applicants questioned the accuracy of the transcript of the first-instance hearing. The requested amendments were set out in an eighty-nine page document.

On 27 September 2013 the District Court accepted a small number of amendments but rejected the rest.

On 2 and 3 October 2013 the applicants filed additional grounds of appeal elaborating on those lodged previously.

On 16 October 2013 the Regional Court dismissed the applicants’ appeal and upheld the first-instance judgment in substance. It amended their sentence and gave them both suspended prison terms on an undertaking not to change their place of residence.

On 7 February 2013 the applicants each lodged appeals on points of law. On 1 and 2 April 2014 the Regional Court, sitting in a single judge formation, refused to give them leave to appeal.

On 28 February 2014 the Basmannyy District Court ordered that the first applicant be placed under house arrest pending another, unrelated, criminal case against him. To justify the application of this preventive measure the court referred to, among other factors, the first applicant’s prior criminal conviction in the Kirovles case. The conditions of the house arrest included a number of restrictions, in particular a ban on communicating with anyone other than his immediate family and legal counsel, a ban on using the Internet and a ban on making public statements or comments to the media. The first applicant remained under house arrest for ten months.


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant, Ms Radojka Kukavica, is a Croatian national who was born in 1956 and lives in Crkveni Bok. She was represented before the Court by Mr L. Šušak, a lawyer practising in Zagreb.

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

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

During 1991 and 1992 Serbian para-military forces gained control of about one third of the territory of Croatia and proclaimed the so-called “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter the “Krajina”). The applicant continued to live in the Krajina. At the beginning of August 1995 the Croatian authorities announced a campaign of military action with the aim of regaining control over Krajina. The action was codenamed “Storm” and lasted from 4 to 7 August 1995. Before that action, the vast majority of the population of the Krajina fled Croatia, initially for Bosnia and Herzegovina, but later many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000.

According to the applicant, on 4 August 1995 she and her nephew Z.D. – in a vehicle of the “Lada” make – and her other nephew A.V. – in a vehicle of the “Zastava” make – were driving along the road between the villages of Strmen and Slovenci, trying to flee Croatia and reach Bosnia and Herzegovina. After overtaking a convoy of tractors and while passing through a forest called Zelenik, Croatian soldiers started to fire at them. The applicant and both her nephews were wounded. The applicant and Z.D. got out of the vehicle and ran into the woods. Later on, they both managed to flee into Bosnia and Herzegovina. A.V. surrendered to the Croatian soldiers and was provided with first aid.

The Croatian authorities learned about the applicant’s wounding in 2005 when she submitted a request for damages to the State Attorney’s Office in that connection.

On 27 January 2005 the police interviewed A.V. and Z.D., who both gave an account of the events of 4 August 1995 like that described in paragraph 5 above.

On 31 January 2005 the police interviewed the applicant, P.T. and I.Š. The applicant confirmed the accounts of A.V. and Z.D. P.T. said that he had been checking on his cattle in the same area on 4 August 1995 and had hidden in the woods during the shooting. After that he had been captured by the Croatian soldiers. He had seen A.V., who had a head wound that had already been tended to, being held by Croatian soldiers.

I.Š., the commander of a unit comprising 178 soldiers of the XVII Home Guard Regiment of the Croatian Army, said that their task on 4 August 1995 had been “to cut communication on the road between Strmen and Slovinci”. They had completed that task in the morning and in the afternoon had stationed themselves in the forest known as Zelenik, near that road. Tractors and people had occasionally passed along the road. In the afternoon he had received the order to “destroy a foresters’ lodge” in the Zelenik forest and had sent ten soldiers to carry out that task. A battle between these soldiers and Serbian para-military forces issued. At that moment two vehicles, a Zastava and a Lada, and a tractor appeared on the road. I.Š. was not sure who had fired at the vehicles, since they had found themselves in crossfire from both sides. The crossfire lasted for about twenty minutes. He had no knowledge about the wounding of the applicant.

On 12 May 2006 the police interviewed M.D., who said that on 4 August 1995 she had been in a convoy of tractors and that while they had been passing through the forest of Zelenik, Croatian soldiers had started to fire at them and several people had been killed or wounded.

On 23 October 2012 the Ministry of Defence sent the daily log of I.Š.’s unit for 4 August 1995 to the Sisak Police. This log confirmed the events described by I.Š. in his statement of 31 January 2005.

On 27 November 2012 the applicant lodged a criminal complaint with the State Attorney’s Office against I.Š. on charges of war crimes against the civilian population. On 30 November 2012 she extended her complaint to M.L.

Between 8 and 19 February 2013 the police interviewed A.V., Z.D., the applicant and P.T. They all repeated their prior statements.


Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani

The applicant, Mr Darryl Luke Borg, is a Maltese national who was born in 1986 and lives in Birkirkara. He was represented before the Court by Dr D. Camilleri and Dr J. Gatt, lawyers practising in Valletta.

The applicant suffered from Attention-Deficit Hyperactivity Disorder (hereinafter referred to as “ADHD”), and was the subject of a treatment order. In view of the treatment order, he was being kept at Mount Carmel Hospital (the State mental health hospital).

On 4 August 2013 a shop in Birkirkara, Malta, was burgled.

On 6 August 2013 the applicant was arrested by the police on suspicion of committing the burglary in question. The applicant was questioned at police headquarters and detained overnight.

On 7 August 2013, the applicant was arraigned before the Court of Magistrates (as a Court of Criminal Inquiry) charged with aggravated theft and other related offences. During the arraignment procedure the applicant requested that he be released on bail, but this was refused. Since the applicant was the subject of a treatment order, the court ordered that he be kept under arrest at the Forensic Section of Mount Carmel Hospital. However, the applicant was kept under arrest at the Corradino Correctional Facility rather than the hospital.

On 9 August 2013, the applicant’s lawyers became aware that on 8 August a certain R.G. had admitted committing the burglary in Birkirkara (of which the applicant had been accused), and that that person had, on the 9 August, confirmed his admission before the Court of Magistrates. On the same day, the applicant applied to the Court of Magistrates to be released on bail.

Later on 9 August 2013, the police inspector who had arrested the applicant was informed of R.G.’s arrest for the same incident the applicant had been accused of, and that R.G. had admitted to committing the crime. The inspector communicated later that day with the Attorney General (hereinafter referred to as “the AG”), who directed him to submit an urgent application to the Court of Magistrates for the applicant’s release.

At 6.00 p.m. that day, in the light of the applicant’s and the police’s applications for his release on bail, the Court of Magistrates ordered the applicant’s conditional release against a personal guarantee of 7,000 euros (EUR). He was forbidden to leave the country, approach witnesses or commit any other crimes. He was also obliged to sign in at the police station every day and a curfew was imposed from 10 p.m. to 8 a.m.

On 12 August 2013, the police withdrew the charges against the applicant. According to the applicant, he lost his right to the treatment order at Mount Carmel Hospital as a result of the arrest and arraignment.

On 14 August 2013, the applicant filed proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. He argued that he had been arraigned without there having been a reasonable suspicion against him. Moreover, on the basis of that arraignment he had been denied release on bail. The applicant further submitted that the Commissioner of Police, despite realising that the applicant had been detained for no reason (because R.G. had admitted to committing the crime the applicant had been accused of), had failed to withdraw immediately the accusations against the applicant. In the applicant’s view, all those facts, either taken together or separately, had resulted in an infringement of his right to liberty under the Convention and the Constitution.

On 27 June 2014, the Civil Court (First Hall) in its constitutional jurisdiction found that the applicant had not suffered any violation of his rights. The costs of the proceedings were to be paid by the applicant.

The court held that it would not substitute its own discretion for that of the police. Its role was to analyse whether the police could have had a reasonable suspicion that the applicant had committed the crime, in the light of the evidence they had had before them at the time they had made the decision to arrest and eventually arraign the applicant. It noted firstly that when the applicant had been arraigned he had failed to contest the validity of his arrest. In determining whether the police could have had a sufficiently reasonable suspicion, the court considered factors, including, but not limited to: the fact that the police had received a tip-off/confidential information that the applicant had committed the crime; CCTV footage of the shop that had been held-up and CCTV footage of some of the neighbours of the shop. According to the court, in the light of other information the police had had in its possession, it had been reasonable for them to conclude that the person seen in the footage was the applicant, especially given the similar build and hair style. Indeed, once the police had seen the applicant in person they had confirmed that he looked like the person in the CCTV footage. Moreover, the court noted that, according to the police, the applicant’s mother had failed to confirm that her son had been at home at 9 p.m. (the time of the commission of the offence), leading the chief investigator to believe that he had no alibi for the time of the crime. Also, the police had found out that on the weekend where the burglary occurred the applicant had been on leave from the hospital. In addition, the applicant’s past had been taken into account, including: the fact that the applicant was known to the police as a person taking drugs; that he had ongoing proceedings against him for theft with aggravated assault allegedly committed in March 2013; and that he had previously been found guilty of crimes related to theft and drug abuse. Furthermore, the police had discovered that on the day of the hold-up the applicant had argued with his mother about money and drugs-related issues. Taking all those factors into account, the Civil Court (First Hall) in its constitutional jurisdiction confirmed the existence of a reasonable suspicion and thus a justification for the arrest.

It also concluded that the Court of Magistrates’ refusal to grant the applicant release on bail had not been unreasonable. The Court of Magistrates had considered the applicant’s regular visits to Mount Carmel Hospital; his past involvement in crimes involving violence; and factors associated with the risk and gravity of the crime at issue.

With regard to the applicant’s complaint that the criminal proceedings against him had not been withdrawn immediately upon R.G.’s arrest and admission to the crime, the court noted that the only person who could have shed light on what had happened was the inspector, but he had not been produced as a witness. Nevertheless, based on the evidence before it, the court observed that as soon as the inspector who had carried out the applicant’s arrest had found out that another person (R.G.) had been arrested for the same crime, he had requested direction from the AG. The inspector had then proceeded to submit an urgent application to the Court of Magistrates for the applicant’s release. The first time a third person had come into the scene had been on 9 August 2013, when R.G. had been arraigned. The applicant had been released from detention later the same day. In the light of those facts the court concluded that there had been no failings by the police. It noted that Article 5 concerned protection from arbitrary arrest or detention and that the applicant had been released on 9 August 2013. The fact that the accusations against the applicant had only formally been withdrawn on 12 August 2013 did not raise any issue under Article 5 of the Convention or Article 34 of the Constitution.

On 11 July 2014, the applicant lodged an appeal with the Constitutional Court. He reiterated his claims and argued, inter alia, that there had been no reason for the Court of Magistrates to fear that he would not attend court proceedings, or that he would in any way influence the proceedings against him because he had been undergoing a treatment order at Mount Carmel Hospital. The applicant also stated that the police had found out about R.G.’s involvement in the hold-up on 8 August 2013 but had waited until 9 August 2013 (when R.G. had been arraigned before the Court of Magistrates and had pleaded guilty to the charges) to take action towards remedying the applicant’s situation. He argued that the police were obliged to remedy a situation of unlawful detention as soon as they became aware of it, as was also contemplated under Article 137 of the Criminal Code. He complained that as a result of their delay he had spent an extra day in detention and had later been subject to conditional release.

The Constitutional Court upheld his claims in part. It found a violation of the applicant’s rights as protected under Article 5 § 1 (c) of the Convention and Article 34(1)(f) of the Constitution for the limitation of liberty the applicant had suffered between 9 August and 12 August 2013, but rejected his other complaints. It awarded him EUR 150 as compensation for non-pecuniary damage.

The Constitutional Court confirmed the first-instance court’s finding in respect of the existence of a reasonable suspicion justifying arrest which had persisted until the applicant’s arraignment before the Court of Magistrates. The applicant had thus not suffered a violation of his rights protected by Article 5 § 1 (c) of the Convention during that period.

The Constitutional Court considered that until 9 August 2013 the applicant’s situation had remained the same as on 7 August 2013. However, it had changed on 9 August 2013, when a third party had been arraigned before the Court of Magistrates for the same crime. The Constitutional Court observed that as soon as the inspector responsible for the applicant’s arrest had been informed that another person had been arrested for the same offence the inspector had taken action. On the same day, as requested by both the police and the applicant himself, the Court of Magistrates had ordered the applicant’s conditional release. The applicant had been released later that day, against a personal guarantee. The Constitutional Court found that the amount of time that had passed between the third party being arrested and the applicant’s release had been reasonable. Therefore, the applicant’s detention until his release on 9 August 2013 had not been arbitrary and had not violated his rights protected under Article 5 § 1 (c).

According to the Constitutional Court, the same could not be said of the period between 9 and 12 August 2013, during which the prosecution had no longer held a reasonable suspicion against the applicant. At that point, the restriction of liberty had, according to the Constitutional Court, no longer been justified under Article 5 § 1 (c) of the Convention.

In awarding compensation, the Constitutional Court considered that the applicant had contributed to the violation himself by only requesting conditional release on 9 August 2013, rather than unconditional release. The court ordered the applicant to pay three-quarters of the costs of the proceedings before the first-instance court and the Constitutional Court and the Commissioner of Police to pay one-quarter.


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property)

Jon Fridrik Kjølbro;Paul Lemmens;Ksenija Turković

The applicant was born in 1948 and lives in Split.

She is the owner of a flat in Zagreb with a surface area of 80.58 square metres. The flat is occupied by a “protected lessee” (zaštićeni najmoprimac), a certain Ms S.Š. Under the Lease of Flats Act (Zakon o najmu stanova), which entered into force on 5 November 1996, such lessees are subject to a number of protective measures, such as the duty of landlords to contract a lease of indefinite duration, payment of protected rent (zaštićena najamnina), the amount of which is set by the Government and significantly lower than the market rent; and better protection against termination of the lease.

The applicant refused to recognize S.Š., who had been living in her flat since 1975, as a holder of a specially protected tenancy (“stanarsko pravo”) and to conclude a lease contract with her. On 18 May 2007 S.Š. brought a civil action against the applicant before the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) relying on sections 33(3) and 37(2) of the Lease of Flats Act (see paragraph 18 below), seeking recognition of her legal status of a protected lessee and obtaining a judgment in lieu of the lease contract.

Shortly afterwards in 2007 the applicant brought a counterclaim before the same court seeking to obtain a judgement ordering S.Š. and the members of her household to vacate the flat in question. She also sought that S.Š. be ordered to pay her 500 Croatian kunas (HRK) per month together with the accrued interest, for the period between June 2002 and December 2006. The applicant specified that the said amount represented her estimate of a freely negotiated rent (“slobodno ugovorena najamnina”) as provided by section 6 of the Lease of Flats Act and the Government of Croatia’s Decision on the determination of the level of freely negotiated rent (Odluka o utvrđivanju slobodno ugovorene najamnine, Official Gazette no. 120/00).

By a judgement of 5 December 2011 the Zagreb Municipal Civil Court found in favour of S.Š. It recognised her legal status of a protected lessee and substituted the lease contract stipulating protected rent in the amount of HRK 190.25 per month. The court dismissed the applicant’s counterclaim as unfounded.

On 11 December 2012 the Zagreb County Court (Županijski sud u Zagrebu) dismissed an appeal by the applicant and upheld the first-instance judgement, which thereby became final.

The applicant then lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) alleging violations of her right to equality before the law guaranteed by Article 14 of the Constitution and of her ownership rights guaranteed by Articles 48, 49 and 50 of the Croatian Constitution (see paragraph 17 below). By a decision of 12 September 2013 the Constitutional Court dismissed the applicant’s constitutional complaint. This decision was served on the applicant’s representative on 23 September 2013.

The applicant submitted a document dated 11 May 2007 from which it follows that the protected rent for her flat was set at HRK 178.73. The Government submitted a document dated 16 April 2015 from which it follows that the protected rent was set at HRK 217.57.

According to the documents submitted by the parties, the applicant was not obliged to pay the condominium fee into the common reserve fund for the flat. That fee was incumbent on another individual.

According to the applicant, she never paid any income tax on the income generated by renting her flat subject to the protected lease scheme. The Government did not contest this information.

The applicant furnished information as regards the monthly market rent for renting out flats in the vicinity of hers. She submitted an advertisement from the Internet dated 2 June 2014 offering for rent a flat of a similar size as hers (80 m²) for EUR 700 per month, and another one dated 17 December 2014 of 36 m² for EUR 420 per month. In addition to this she submitted a copy of a lease agreement of 30 January 2014 for a flat with the surface area of 44.94 m² rented out for HRK 1,600 per month.

The Government did not furnish any information in this respect.